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A bill to be entitled

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An act relating to the Beverage Law; creating s. 561.585,

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F.S.; authorizing certain direct shipments of wine;

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requiring licensure of winery shippers; providing

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requirements for licensure; providing prohibitions;

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requiring that a winery shipper licensee file a surety

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bond with the Division of Alcoholic Beverages and Tobacco

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of the Department of Business and Professional Regulation;

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requiring that each container of wine shipped directly be

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labeled with a notice; providing signature and

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identification requirements; providing limitations on the

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amount of wine a winery shipper may ship or cause to be

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shipped; limiting the size of wine containers; providing

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age requirements for those purchasing wine for direct

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shipment or receiving direct shipments of wine; providing

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a defense to certain actions; requiring monthly reports by

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winery shipper licensees; requiring the collection,

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remittance, and payment of certain taxes by direct

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shippers; requiring certain proceeds from discretionary

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sales surtaxes to be deposited into an account in the

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Discretionary Sales Surtax Clearing Trust Fund; requiring

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that winery shippers maintain certain records for a

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certain time period; providing for jurisdiction; providing

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penalties; amending s. 561.14, F.S.; classifying the

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winery shipper license; amending s. 561.54, F.S.; removing

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a provision requiring that the licensee be aggrieved by a

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violation involving prohibited delivery from without the

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state to have standing to bring an action; exempting from

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such prohibition shipment of wine by a winery shipper

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licensee; amending s. 561.545, F.S.; exempting

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applicability of the prohibition against direct shipment

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of alcoholic beverages to the shipment of wine by a winery

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shipper licensee; amending s. 561.57, F.S.; providing that

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Internet orders shall be construed as telephone orders;

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exempting common carriers, licensees, or licensees

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utilizing common carriers as their agents from certain

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report filing requirements; requiring common carriers to

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verify the age of persons receiving shipments; providing a

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defense to certain actions; providing criteria for the

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defense; amending s. 599.004, F.S.; revising

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qualifications for the certification of Florida Farm

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Wineries; amending s. 561.24, F.S.; revising an effective

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date; authorizing certain manufacturers of wine holding a

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distributor's license to renew such license; removing an

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exemption of Florida Farm Wineries from prohibition

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against the manufacturer being licensed as distributor or

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registered as the exporter; providing for severability;

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providing for nonimpairment of contracts; providing for

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rulemaking authority; authorizing additional positions;

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providing appropriations; providing an effective date.

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Be It Enacted by the Legislature of the State of Florida:

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     Section 1.  Section 561.585, Florida Statutes, is created to

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read:

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     561.585 Direct shipment of wine for personal consumption.--

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     (1) WINERY SHIPPER LICENSURE REQUIREMENTS.--

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     (a) Wineries may not ship or cause to be shipped any wine

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to individual consumers in this state unless licensed under this

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section. Notwithstanding any provision of the Beverage Law or any

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rule to the contrary, a person, firm, corporation, or other

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entity that is licensed as a winery shipper under this section

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may ship wine directly to any person who is at least 21 years of

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age for personal use only and not for resale. To obtain or renew

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a winery shipper's license, an applicant must:

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     1. File an application with the division on forms

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prescribed by the division.

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     2. Qualify for licensure under ss. 561.15 and 561.17 or

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provide a true copy of a certification from the alcoholic

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beverage licensing authority of the Federal Government, or the

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state in which the winery is located, with license qualifications

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and procedures for that winery license that include, at a

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minimum, the following components:

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     a. Fingerprinting of applicants.

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     b. Disqualification for applicants under 21 years of age.

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     c. Disqualification for applicants convicted of the

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following:

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     (I) Within the past 5 years, any violation of the beverage

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laws of this state, the United States, or any other state;

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     (II) Within the past 15 years, any felony in this state or

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any other state of the United States; or

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     (III) Any criminal violation of the controlled substance

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act of this state, the United States, or any other state.

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     3. Obtain and maintain a current license as a primary

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American source of supply as provided in s. 564.045.

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     4. Provide to the division a true copy of its current wine

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manufacturer's license issued by this state or another state and

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a true copy of its current federal basic permit as a wine

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producer issued in accordance with the Federal Alcohol

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Administration Act.

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     5. Pay an annual license fee in the amount of $250.

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     6. File with the division a surety bond acceptable to the

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division in the sum of $5,000 as surety for the payment of all

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taxes, provided that when, at the discretion of the division, the

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amount of business done by the winery shipper licensee is such

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volume that a bond of less than $5,000 will be adequate, the

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division may accept a bond in a lesser sum but not less than

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$1,000. The surety bond currently on file with the division for a

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winery pursuant to s. 561.37 is deemed to comply with this

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requirement. Upon written request of the winery shipper, the

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division shall review the total tax liability to the state by the

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winery shipper and reduce the bond to 110 percent of the prior

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year's total tax liability as a licensee under this section but

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not less than $1,000.

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     (b) Applicants under this section may obtain a temporary

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initial license as authorized in s. 561.181.

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     (c) Winery shipper licensees may not ship or cause to be

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shipped more than 18 cases of wine per calendar year per

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household. For purposes of this section, a case is defined as a

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container or containers that contain no more than 9,000

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milliliters of wine.

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     (d) Licensees shall comply with s. 564.05, which limits the

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size of wine containers.

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     (e) Purchasers may not purchase or cause to be shipped more

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than 18 cases of wine per calendar year per household.

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     (f) Each winery shipper licensee must verify the

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purchaser's age at the point of purchase before completing any

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transaction and must refuse sale of wine to any person under 21

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years of age. Verification methods for purposes of this paragraph

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must include receiving a copy, electronic or otherwise, of a

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purchaser's driver's license or other acceptable identification

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methods approved by the division. An alternative verification

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method that may be used by the winery shippers shall include

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asking and recording all purchasers' names, ages, and dates of

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birth. Such recordings shall be kept for a minimum of 3 years.

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Purchasers shall further be advised that they must show the

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person making the delivery one of the acceptable identification

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cards in subsection (3) prior to delivery.

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     (2) LABEL.--Each winery shipper licensee shall ensure that

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the outside shipping label on each package is conspicuous and

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includes the following components:

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     (a) This package contains alcohol.

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     (b) An adult signature is required.

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     (c) The recipient must be at least 21 years of age.

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     (3) SIGNATURE.--

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     (a) Each winery shipper licensee and common carrier shall

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require, prior to delivery, that the signature of the addressee

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or other person at least 21 years of age is obtained after

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presentation of a valid driver's license, an identification card

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issued under the provisions of s. 322.051, or, if the person is

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physically handicapped, a comparable identification card issued

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by another state which indicates the person's age, a passport, or

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a United States Uniformed Services identification card.

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     (b) A winery shipper licensee or common carrier who

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violates this subsection shall have a complete defense to any

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civil action therefor, except for any administrative action by

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the division, if, at the time the alcoholic beverage was sold,

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given, delivered, or transferred, the person falsely evidenced

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that he or she was of legal age to purchase or consume the

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alcoholic beverage and the appearance of the person was such that

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an ordinarily prudent person would believe him or her to be of

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legal age to purchase or consume the alcoholic beverage and if

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the winery shipper licensee or common carrier acted in good faith

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and in reliance upon the representation and appearance of the

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person in the belief that he or she was of legal age to purchase

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or consume the alcoholic beverage and carefully checked one of

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the following forms of identification with respect to the person:

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a valid driver's license, an identification card issued under the

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provisions of s. 322.051, or, if the person is physically

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handicapped, a comparable identification card issued by another

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state which indicates the person's age, a passport, or a United

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States Uniformed Services identification card.

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     (4) MONTHLY REPORT.--

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     (a) Each winery shipper licensee shall report monthly to

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the division on forms prescribed by the division:

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     1. Whether any wine product was shipped into or within this

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state under this section during the preceding month.

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     2. The total amount of wine shipped into or within this

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state under this section during the preceding month.

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     3. The quantity and types of wine shipped into or within

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this state under this section during the preceding month.

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     4. The amount of excise tax paid to the division for

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shipments of wine into or within this state under this section

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during the preceding month.

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     (b) The report required by this subsection is not required

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from a winery shipper licensee who files a monthly report

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pursuant to s. 561.55 that contains all the information required

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in paragraph (a). The division is authorized to prescribe the

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format for submission of this information in order that duplicate

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filings are eliminated.

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     (5) TAXES.--

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     (a) Each winery shipper licensee shall collect and remit

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monthly to the Department of Revenue all sales taxes and pay to

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the division all excise taxes due on sales to persons in this

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state for the preceding month. Notwithstanding s. 212.0596, the

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amount of such taxes shall be calculated as if the sale took

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place at the location where the delivery occurred in this state.

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The proceeds of the discretionary sales surtaxes imposed under s.

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212.055 shall be deposited into an account in the Discretionary

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Sales Surtax Clearing Trust Fund described in s. 212.054(4)(c)

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and distributed as provided therein.

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     (b) Each winery shipper licensee shall maintain for at

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least 3 years after the date of delivery records of its shipments

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into or within this state pursuant to this section, including the

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names, addresses, amounts, and dates of all shipments to persons

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in this state, and shall allow the Department of Revenue or the

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division, upon request, to perform an audit of such records.

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     (c) The cost of performing an audit under paragraph (b)

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shall be assigned to the agency requesting the audit unless the

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winery shipper licensee is found to be in material violation of

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this subsection, in which case the cost of the audit shall be

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assigned to the licensee.

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     (6) JURISDICTION.--Each winery shipper licensee is deemed

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to have consented to the jurisdiction of the division or any

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other state agency or local law enforcement agency and the courts

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of this state concerning enforcement of this section and any

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related laws or rules.

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     (7) PENALTIES.--

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     (a) In addition to any other penalty provided in the

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Beverage Law, the division may suspend or revoke a winery shipper

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license or impose fines on the winery shipper licensee in an

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amount not to exceed $1,000 per violation for any violation of

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this section.

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     (b) A winery shipper licensee that knowingly and

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intentionally ships, or causes to be shipped, wine to any person

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in this state who is under 21 years of age commits a felony of

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the third degree, punishable as provided in s. 775.082, s.

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775.083, or s. 775.084.

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     (c) Any common carrier, permit carrier, or other commercial

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conveyance that knowingly and intentionally delivers wine

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directly to any person in this state who is under 21 years of age

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commits a misdemeanor of the second degree, punishable as

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provided in s. 775.082 or s. 775.083.

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     (d) A person who knowingly and intentionally obtains wine

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from a winery shipper licensee in violation of this section

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commits a misdemeanor of the second degree, punishable as

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provided in s. 775.082 or s. 775.083.

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     Section 2.  Subsection (8) is added to section 561.14,

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Florida Statutes, to read:

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     561.14  License and registration classification.--Licenses

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and registrations referred to in the Beverage Law shall be

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classified as follows:

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     (8) Wineries licensed as winery shippers under s. 561.585.

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     Section 3.  Section 561.54, Florida Statutes, is amended to

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read:

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     561.54  Certain deliveries of beverages prohibited.--

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     (1)  It is unlawful for common or permit carriers, operators

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of privately owned cars, trucks, buses, or other conveyances or

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out-of-state manufacturers or suppliers to make delivery from

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without the state of any alcoholic beverage to any person,

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association of persons, or corporation within the state, except

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to qualified manufacturers, distributors, and exporters of such

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beverages so delivered and to qualified bonded warehouses in this

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state.

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     (2) Any licensee aggrieved by a violation of this section

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may bring an action in any court of competent jurisdiction to

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recover for the state all moneys obtained by common carriers or

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permit carriers; obtained by operators of privately owned cars,

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trucks, buses, or other conveyances; or obtained by out-of-state

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manufacturers or suppliers as a result of the delivery of

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alcoholic beverages in violation of this section, and may obtain

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a declaratory judgment that an act or practice violates this

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section and enjoin any person from violating this section. In

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addition to such relief, the court may order the confiscation and

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destruction of any alcoholic beverages delivered in violation of

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this section. In assessing damages, the court shall enter

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judgment against a defendant for three times the amount of the

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delivery charges proved or the fair market value of merchandise

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unlawfully brought into the state. Payment or satisfaction of any

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judgment under this section, other than for costs and attorney's

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fees, shall be made in its entirety to the state. In any

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successful action under this section, the court shall award the

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plaintiff costs and reasonable attorney's fees.

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     (3) This section does not apply to the shipment of wine by

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a winery shipper licensee to a person who is at least 21 years of

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age in accordance with s. 561.585.

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     Section 4.  Section 561.545, Florida Statutes, is amended to

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read:

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     561.545  Certain shipments of beverages prohibited;

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penalties; exceptions.--The Legislature finds that the direct

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shipment of alcoholic beverages by persons in the business of

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selling alcoholic beverages to residents of this state in

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violation of the Beverage Law poses a serious threat to the

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public health, safety, and welfare; to state revenue collections;

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and to the economy of the state. The Legislature further finds

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that the penalties for illegal direct shipment of alcoholic

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beverages to residents of this state should be made adequate to

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ensure compliance with the Beverage Law and that the measures

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provided for in this section are fully consistent with the powers

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conferred upon the state by the Twenty-first Amendment to the

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United States Constitution.

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     (1)  Any person in the business of selling alcoholic

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beverages who knowingly and intentionally ships, or causes to be

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shipped, any alcoholic beverage from an out-of-state location

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directly to any person in this state who does not hold a valid

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manufacturer's or wholesaler's license or exporter's registration

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issued by the Division of Alcoholic Beverages and Tobacco or who

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is not a state-bonded warehouse is in violation of this section.

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     (2)  Any common carrier or permit carrier or any operator of

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a privately owned car, truck, bus, or other conveyance who

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knowingly and intentionally transports any alcoholic beverage

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from an out-of-state location directly to any person in this

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state who does not hold a valid manufacturer's or wholesaler's

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license or exporter's registration or who is not a state-bonded

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warehouse is in violation of this section.

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     (3)  Any person found by the division to be in violation of

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subsection (1) shall be issued a notice, by certified mail, to

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show cause why a cease and desist order should not be issued. Any

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person who violates subsection (1) within 2 years after receiving

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a cease and desist order or within 2 years after a prior

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conviction for violating subsection (1) commits a felony of the

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third degree, punishable as provided in s. 775.082, s. 775.083,

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or s. 775.084.

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     (4)  Any common carrier or permit carrier, or any operator

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of a privately owned car, truck, bus, or other conveyance found

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by the division to be in violation of subsection (2) as a result

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of a second or subsequent delivery from the same source and

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location, within a 2-year period after the first delivery shall

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be issued a notice, by certified mail, to show cause why a cease

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and desist order should not be issued. Any person who violates

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subsection (2) within 2 years after receiving the cease and

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desist order or within 2 years after a prior conviction for

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violating subsection (2) commits a felony of the third degree,

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punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

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     (5) This section does not apply to:

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     (a) The direct shipment of sacramental alcoholic beverages

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to bona fide religious organizations as authorized by the

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division;

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     (b) The or to possession of alcoholic beverages in

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accordance with s. 562.15(2); or

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     (c) The shipment of wine in accordance with s. 561.585.

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     Section 5.  Subsections (1) and (6) of section 561.57,

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Florida Statutes, are amended to read:

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     561.57  Deliveries by licensees.--

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     (1)  Vendors shall be permitted to make deliveries away from

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their places of business of sales actually made at the licensed

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place of business; provided, telephone or mail orders received at

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vendor's licensed place of business shall be construed as a sale

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actually made at the vendor's licensed place of business. For

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purposes of this section, Internet orders shall be construed as

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telephone orders.

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     (6)  Common carriers are not required to have vehicle

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permits to transport alcoholic beverages. Nothing in this section

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shall prohibit any licensee from utilizing a common carrier as

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his or her agent to make deliveries of alcoholic beverages within

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the state. Deliveries of alcoholic beverages by licensees or

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common carriers utilized by licensees under this section are

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exempt from the report filing requirements in s. 562.20. All

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common carriers making deliveries under this section shall verify

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that any person receiving alcoholic beverages is at least 21

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years of age upon the delivery of such alcoholic beverages, as

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prescribed in division rules. Compliance with the prescribed age

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verification measures in s. 561.585(3) shall give the common

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carrier and the licensee a complete defense to any civil action

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thereof, except for any administrative action by the division,

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if, at the time the alcoholic beverage was sold, given,

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delivered, or transferred, the person falsely evidenced that he

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or she was of legal age to purchase or consume the alcoholic

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beverage and the appearance of the person was such that an

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ordinarily prudent person would believe him or her to be of legal

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age to purchase or consume the alcoholic beverage and if the

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licensee or common carrier acted in good faith and in reliance

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upon the representation and appearance of the person in the

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belief that he or she was of legal age to purchase or consume the

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alcoholic beverage and carefully checked one of the following

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forms of identification with respect to the person: a valid

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driver's license, an identification card issued under the

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provisions of s. 322.051, or, if the person is physically

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handicapped, a comparable identification card issued by another

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state which indicates the person's age, a passport, or a United

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States Uniformed Services identification card.

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     Section 6.  Subsection (1) of section 599.004, Florida

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Statutes, is amended to read:

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     599.004  Florida Farm Winery Program; registration; logo;

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fees.--

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     (1)  The Florida Farm Winery Program is established within

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the Department of Agriculture and Consumer Services. Under this

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program, a winery may qualify as a tourist attraction only if it

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is registered with and certified by the department as a Florida

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Farm Winery. A winery may not claim to be certified unless it has

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received written approval from the department.

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     (a)  To qualify as a certified Florida Farm Winery, a winery

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shall meet the following standards:

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     1. Produce or Sell less than 250,000 gallons of wine

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annually of which at least 60 percent must be made from

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agricultural products produced in this state. The Commissioner of

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Agriculture may waive this requirement in times of hardship.

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     2.  Maintain a minimum of 10 acres of owned or managed

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vineyards in Florida.

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     3.  Be open to the public for tours, tastings, and sales at

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least 30 hours each week.

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     4.  Make annual application to the department for

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recognition as a Florida Farm Winery, on forms provided by the

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department.

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     5.  Pay an annual application and registration fee of $100.

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     (b)  To maintain certification and recognition as a Florida

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Farm Winery, a winery must comply with the qualifications

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provided in this section. The Commissioner of Agriculture is

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authorized to officially recognize a certified Florida Farm

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Winery as a state tourist attraction.

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     Section 7.  Subsection (5) of section 561.24, Florida

392

Statutes, is amended to read:

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     561.24  Licensing manufacturers as distributors or

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registered exporters prohibited; procedure for issuance and

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renewal of distributors' licenses and exporters' registrations.--

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     (5)  Notwithstanding any of the provisions of the foregoing

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subsections, any corporation which holds a license as a

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distributor on June 3, 1947, shall be entitled to a renewal

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thereof, provided such corporation complies with all of the

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provisions of the Beverage Law of Florida, as amended, and of

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this section and establishes by satisfactory evidence to the

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division that, during the 6-month period next preceding its

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application for such renewal, of the total volume of its sales of

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spirituous liquors, in either dollars or quantity, not more than

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40 percent of such spirituous liquors sold by it, in either

406

dollars or quantity, were manufactured, rectified, or distilled

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by any corporation with which the applicant is affiliated,

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directly or indirectly, including any corporation which owns or

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controls in any way any stock in the applicant corporation or any

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corporation which is a subsidiary or affiliate of the corporation

411

so owning stock in the applicant corporation. Any manufacturer of

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wine holding a license as a distributor on July 1, 2008, the

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effective date of this act shall be entitled to a renewal of such

414

license notwithstanding the provisions of subsections (1)-(5).

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This section does not apply to any winery qualifying as a

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certified Florida Farm Winery under s. 599.004.

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     Section 8. Should any portion of this act be held

418

unconstitutional, it is the intent of the Legislature that the

419

courts disturb only as much of the regulatory system of this

420

state as is necessary to enforce the United States Constitution.

421

     Section 9. Notwithstanding the provisions of s. 561.585,

422

Florida Statutes, contracts not otherwise prohibited by the

423

Beverage Law shall not be impaired.

424

     Section 10. The Division of Alcoholic Beverages and Tobacco

425

of the Department of Business and Professional Regulation and the

426

Department of Revenue may adopt rules pursuant to ss. 120.536(1)

427

and 120.54, Florida Statutes, to implement and administer this

428

act.

429

     Section 11. For fiscal year 2008-2009, six full-time

430

equivalent positions and $164,577 in associated salary rate are

431

authorized, and the sums of $332,422 in recurring funds and

432

$59,664 in nonrecurring funds from the Alcoholic Beverage and

433

Tobacco Trust Fund of the Department of Business and Professional

434

Regulation are hereby appropriated for the purpose of carrying

435

out the regulatory activities provided in this act. In addition,

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for fiscal year 2008-2009, two full-time equivalent positions,

437

with associated salary rate of $106,106, are authorized, and the

438

sums of $212,165 in recurring funds and $11,901 in nonrecurring

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funds from the Administrative Trust Fund of the Department of

440

Business and Professional Regulation are hereby appropriated for

441

the purpose of carrying out the central-service administrative

442

support functions related to the regulatory activities provided

443

in this act.

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     Section 12.  This act shall take effect upon becoming a law.