The Florida Senate

210.01  Definitions.

210.02  Cigarette tax imposed; collection.

210.021  Payment of taxes by electronic funds transfer.

210.03  Prohibition against levying of cigarette taxes by municipalities.

210.04  Construction; exemptions; collection.

210.05  Preparation and sale of stamps; discount.

210.06  Affixation of stamps; presumption.

210.07  Metering machines.

210.08  Bond for payment of taxes.

210.09  Records to be kept; reports to be made; examination.

210.10  General powers of the Division of Alcoholic Beverages and Tobacco.

210.11  Refunds; sales of stamps and payment of tax.

210.12  Seizures; forfeiture proceedings.

210.13  Determination of tax on failure to file a return.

210.14  Warrant for collection of taxes.

210.15  Permits.

210.151  Initial temporary cigarette permits.

210.16  Revocation or suspension of permit.

210.1605  Renewal of permit.

210.161  Examination of records.

210.18  Penalties for tax evasion; reports by sheriffs.

210.185  Prohibition on sale or distribution of cigarettes; criminal penalties; administrative sanctions; applicability.

210.19  Records to be kept by division.

210.20  Employees and assistants; distribution of funds.

210.201  Cancer research facility at the University of South Florida; establishment; funding.

210.22  Declaration of legislative intent.

210.01  Definitions.--When used in this part the following words shall have the meaning herein indicated:

(1)  "Cigarette" means any roll for smoking, except one of which the tobacco is fully naturally fermented, without regard to the kind of tobacco or other substances used in the inner roll or the nature or composition of the material in which the roll is wrapped, which is made wholly or in part of tobacco irrespective of size or shape and whether such tobacco is flavored, adulterated or mixed with any other ingredient.

(2)  "Persons" means any individual, copartnership, society, club, association, corporation, joint stock company, and any combination of individuals and also an executor, administrator, receiver, trustee or other fiduciary.

(3)  "Sale" means any transfer, exchange or barter in any manner, or by any means whatever.

(4)  "Retail sale" or "sale at retail" means a sale to a consumer or to any person for any purpose other than resale.

(5)  "Dealer" means any wholesale dealer as hereinafter defined.

(6)  "Wholesale dealer" means any person who sells cigarettes to retail dealers or other persons for purposes of resale only, or any person who operates more than one cigarette vending machine located in more than one place of business.

(7)  "Retail dealer" means any person other than a wholesale dealer engaged in the business of selling cigarettes.

(8)  "Package" means the individual package, box or other container in or from which retail sales of cigarettes are normally made or intended to be made.

(9)  "Agent" means any person authorized by the Division of Alcoholic Beverages and Tobacco to purchase and affix adhesive or meter stamps under this part.

(10)  "Division" means the Division of Alcoholic Beverages and Tobacco of the Department of Business and Professional Regulation.

(11)  "Use" means the consuming, giving away or disposing, in any manner, of cigarettes.

(12)  "First sale" means the first use or consumption of cigarettes within this state.

(13)  "Operating ad valorem millage" means all millages other than those fixed for debt service.

(14)  "Distributing agent" means every person, firm or corporation in this state who acts as an agent for any person, firm or corporation outside or inside the state by receiving cigarettes in interstate or intrastate commerce and storing such cigarettes subject to distribution or delivery upon order from said principal to wholesale dealers and other distributing agents inside or outside this state.

(15)  "Place of business" means any place where cigarettes are sold or where cigarettes are stored or kept for the purpose of sale or consumption; or if cigarettes are sold from a vending machine the place in which the vending machine is located.

(16)  "Manufacturer's representative" means a person who represents a manufacturer of cigarettes but who has no place of business in this state where cigarettes are stored. A manufacturer's representative is required to obtain any cigarettes required by her or him through a wholesale dealer in this state and to make such reports as may be required by the Division of Alcoholic Beverages and Tobacco of the Department of Business and Professional Regulation.

(17)  "Exporter" means a person who transports tax-exempt cigarettes into this state under bond for delivery beyond the borders of this state. Each permit shall entitle the permittee to store such cigarettes under bond at one location in this state pending shipment beyond the borders of this state.

(18)  "Unstamped package" or "unstamped cigarettes" means a package on which the tax required by this part has not been paid, regardless of whether or not such package is stamped or marked with the indicia of any other taxing authority, or a package on which there has been affixed a counterfeit or fraudulent indicium or stamp.

History.--s. 1, ch. 21946, 1943; s. 1, ch. 22645, 1945; s. 1, ch. 24363, 1947; s. 1, ch. 26320, 1949; ss. 1, 2, ch. 29884, 1955; s. 1, ch. 61-399; s. 1, ch. 67-45; ss. 16, 35, ch. 69-106; s. 45, ch. 71-377; s. 1, ch. 73-123; s. 59, ch. 77-104; s. 3, ch. 77-421; s. 1, ch. 79-11; s. 1, ch. 87-86; s. 13, ch. 94-218; s. 1488, ch. 95-147.

210.02  Cigarette tax imposed; collection.--

(1)  An excise or privilege tax, in addition to all other taxes of every kind imposed by law, is imposed upon the sale, receipt, purchase, possession, consumption, handling, distribution, and use of cigarettes in this state, in the following amounts, except as hereinafter otherwise provided, for cigarettes of standard dimensions:

(a)  Upon all cigarettes weighing not more than 3 pounds per thousand, 16.95 mills on each cigarette.

(b)  Upon all cigarettes weighing more than 3 pounds per thousand and not more than 6 inches long, 33.9 mills on each cigarette.

(c)  Upon all cigarettes weighing more than 3 pounds per thousand and more than 6 inches long, 67.8 mills on each cigarette.

(2)  The description of cigarettes contained in paragraphs (a), (b), and (c) of subsection (1) are hereby declared to be standard as to dimensions for taxing purposes as provided in this law and should any cigarette be received, purchased, possessed, sold, offered for sale, given away, or used of a size other than of standard dimensions, the same shall be taxed at the rate of 1.41 cents on each such cigarette.

(3)  When cigarettes as described in paragraph (1)(a) are packed in varying quantities of 20 cigarettes or less, except manufacturer's free samples authorized under s. 210.04(9), the following rate shall govern:

(a)  Packages containing 10 cigarettes or less require a 16.95-cent tax.

(b)  Packages containing more than 10 but not more than 20 cigarettes require a 33.9-cent tax.

(4)  When cigarettes as described in paragraph (1)(b) are packed in varying quantities of 20 cigarettes or less, except manufacturer's free samples authorized under s. 210.04(9), the following rates shall govern:

(a)  Packages containing 10 cigarettes or less require a 33.9-cent tax.

(b)  Packages containing more than 10 but not more than 20 cigarettes require a 67.8-cent tax.

(5)  When cigarettes as described in paragraph (1)(c) are packed in varying quantities of 20 cigarettes or less, except manufacturer's free samples authorized under s. 210.04(9), the following rates shall govern:

(a)  Packages containing 10 cigarettes or less require a 67.8-cent tax.

(b)  Packages containing more than 10 but not more than 20 cigarettes require a 135.6-cent tax.

(6)  This tax shall be paid by the dealer to the division for deposit and distribution as hereinafter provided upon the first sale or transaction within the state, whether or not such sale or transfer be to the ultimate purchaser or consumer. The seller or dealer shall collect the tax from the purchaser or consumer, and the purchaser or consumer shall pay the tax to the seller. The seller or dealer shall be responsible for the collection of the tax and the payment of the same to the division. All taxes are due not later than the 10th day of the month following the calendar month in which they were incurred, and thereafter shall bear interest at the rate of 1 percent per month. If the amount of tax due for a given period is assessed without allocating it to any particular month, the interest shall begin with the date of the assessment. Whenever cigarettes are shipped from outside the state to anyone other than a distributing agent or wholesale dealer, the person receiving the cigarettes shall be responsible for the tax on said cigarettes and the payment of same to the division.

(7)  It is the legislative intent that the tax on cigarettes shall be uniform throughout the state.

History.--s. 2, ch. 21946, 1943; s. 2, ch. 22645, 1945; s. 7, ch. 24337, s. 1, ch. 23871, s. 2, ch. 24363, 1947; s. 11, ch. 25035, s. 1, ch. 26320, 1949; s. 3, ch. 29884, 1955; ss. 1, 3, ch. 63-480; s. 1, ch. 65-442; s. 1, ch. 68-30; ss. 16, 35, ch. 69-106; ss. 40, 41, ch. 71-355; s. 6, ch. 72-360; s. 1, ch. 75-104; s. 1, ch. 77-409; s. 2, ch. 79-11; s. 1, ch. 82-85; s. 1, ch. 85-294; s. 1, ch. 86-123; s. 1, ch. 88-308; s. 20, ch. 90-132.

210.021  Payment of taxes by electronic funds transfer.--The Secretary of Business and Professional Regulation may require a dealer who sells cigarettes within the state to remit by electronic funds transfer any tax imposed under s. 210.02 if the taxpayer is subject to the tax and if the total of such taxes he or she paid in the prior year amounted to $50,000 or more.

History.--s. 2, ch. 89-153; s. 26, ch. 89-356; s. 14, ch. 94-218; s. 1489, ch. 95-147.

210.03  Prohibition against levying of cigarette taxes by municipalities.--No municipality shall, after July 1, 1972, levy or collect any excise tax on cigarettes.

History.--s. 1, ch. 26320, 1949; s. 1, ch. 63-486; ss. 16, 35, ch. 69-106; s. 10, ch. 72-360.

210.04  Construction; exemptions; collection.--

(1)  The amount of taxes advanced and paid to the state aforesaid shall be added to and collected as a part of the sales price of the cigarettes sold or distributed, which amount may be stated separately from the price of the cigarettes on all display signs, sales and delivery slips, bills and statements which advertise or indicate the price of the product.

(2)  The cigarette tax imposed shall be collected only once upon the same package or container of such cigarettes.

(3)  No tax shall be imposed by this part upon cigarettes not within the taxing power of the state under the Commerce Clause of the United States Constitution.

(4)  No tax shall be required to be paid:

(a)  Upon cigarettes sold at post exchanges, ship service stores, ship stores, slop chests, or base exchanges to members of the Armed Services of the United States when such post exchanges, ship service stores, or base exchanges are operated under regulations of the Army, Navy, or Air Force of the United States on military, naval, or air force reservations in this state or when such ship stores or slop chests are operated under the regulations of the United States Navy on ships of the United States Navy; however, it is unlawful for anyone, including members of the Armed Services of the United States, to purchase such tax-exempt cigarettes for purposes of resale. Any person who resells, or offers for resale, tax-exempt cigarettes purchased at post exchanges, ship service stores, ship stores, slop chests, or base exchanges is guilty of a violation of the cigarette tax law, punishable as provided in s. 210.18(1).

(b)  Upon the sale or gift of cigarettes by charitable organizations to bona fide patients in regularly established government veterans' hospitals in Florida for the personal use or consumption of such patients.

(5)  It shall be presumed that all cigarettes are subject to the tax imposed by this part until the contrary is established, and the burden of proof that they are not taxable shall be upon the person having possession of them.

(6)  The sale of single or loose unpacked cigarettes is prohibited. The division may authorize any person to give away sample packages of cigarettes, each to contain not less than two cigarettes upon which the taxes have been paid.

(7)  Nothing in this part shall be construed to prohibit the sale of cigarettes, upon which the tax has been advanced, through the medium of vending machines where the tax is collected by the said vending machines.

(8)  Except as hereinafter provided, all agents shall be liable for the collection and payment of the tax imposed by this part and shall pay the tax to the division by purchasing, under such regulations as it shall prescribe, adhesive stamps of such design and denominations as it shall prescribe.

(9)  Agents, located within or without the state, shall purchase stamps and affix such stamps in the manner prescribed to packages or containers of cigarettes to be sold, distributed, or given away within the state, in which case any dealer subsequently receiving such stamped packages of cigarettes will not be required to purchase and affix stamps on such packages of cigarettes. However, the division may, in its discretion, authorize manufacturers to distribute in the state free sample packages of cigarettes containing not less than 2 or more than 20 cigarettes without affixing any tax stamps provided copies of shipping invoices on such cigarettes are furnished, and payment of all taxes imposed on such cigarettes by law is made, directly to the division not later than the 10th day of each calendar month. The tax on cigarettes in sample packages shall be based on a unit in accordance with the taxing provisions of s. 210.02(1).

History.--s. 2, ch. 21946, 1943; s. 2, ch. 22645, 1945; s. 3, ch. 24363, 1947; s. 11, ch. 25035, 1949; s. 1, ch. 26320, 1949; s. 1, ch. 28227, 1953; s. 1, ch. 57-169; ss. 16, 35, ch. 69-106; s. 11, ch. 72-360; s. 3, ch. 79-11; s. 3, ch. 79-317; s. 111, ch. 81-259; s. 2, ch. 82-85; s. 2, ch. 87-86.

210.05  Preparation and sale of stamps; discount.--

(1)  The tax imposed by this part shall be paid by affixing stamps in the manner herein set forth or by affixing stamp insignia through the device of metering machines authorized in this part.

(2)  The division shall prescribe, prepare, and furnish stamps of such denominations and quantities as may be necessary for the payment of the tax imposed by this part, and may from time to time and as often as it deems advisable provide for the issuance and exclusive use of stamps of a new design and forbid the use of stamps of any other design. However, all stamps prescribed by the division must be designed and furnished in a fashion that permits identification of the agent or wholesale dealer that affixed the stamp to the particular package of cigarettes by means of a serial number or other mark on the stamp. The division shall make provisions for the sale of such stamps at such places and at such time as it may deem necessary.

(3)(a)  The division may appoint dealers in cigarettes, manufacturers of cigarettes, within or without the state as agent to buy or affix stamps to be used in paying the tax herein imposed, but an agent shall at all times have the right to appoint a person in his or her employ who is to affix the stamps to any cigarettes under the agent's control; provided, however, that any wholesale dealer in the state shall have the right to buy and affix such stamps. Whenever the division shall sell and deliver to any such agent or wholesaler any such stamps, such agent or wholesaler shall be entitled to receive as compensation for his or her services and expenses as such agent or wholesaler in affixing and accounting for the taxes represented by such stamps and to retain out of the moneys to be paid by the agent or wholesaler for such stamps a discount of 2 percent of the par value of any amount of stamps purchased during any fiscal year from July 1 through June 30 of the following year, provided the discount shall be computed on the basis of 24 cents per pack. No such discount shall be allowed to a dealer, vendor, or distributor who sells or deals in any form of candy which resembles drug paraphernalia. Stamping locations approved by the division shall be responsible for computing the discount they receive pursuant to this paragraph, and said computations shall be retained by the stamping location for a period of 5 years and shall be available to the division. All stamps purchased from the division under this part shall be paid for in cash on delivery, except as hereinafter provided.

(b)  Each agent appointed by the division to affix stamps shall be authorized to purchase stamps by furnishing an irrevocable letter of credit or unconditional guaranty contract or by executing bond with a solvent surety company qualified to do business in this state, in an amount of 110 percent of the agent's estimated tax liability for 30 days, but not less than $2,000, conditioned upon said agent paying all taxes due the state arising hereunder. This form of payment in lieu of cash on delivery or its equivalent shall not preclude supplemental purchases for cash. Payment for each month's liability shall be due on or before the 10th day of the month following the month in which the stamps were sold. Default in the aforesaid bonding and payment provisions by any agent may result in the revocation of his or her privilege to purchase stamps except for cash on delivery for a period up to 12 months in the discretion of the division.

(4)  The division may in its discretion revoke the authority of any agent failing to comply with the requirements of this part or the rules and regulations promulgated hereunder and such agent may in addition be punished in accordance with the provisions of this part.

(5)  Agents or wholesale dealers may sell stamped but untaxed cigarettes to the Seminole Indian Tribe, or to members thereof, for retail sale. Agents or wholesale dealers shall treat such cigarettes and the sale thereof in the same manner, with respect to reporting and stamping, as other sales under this part, but agents or wholesale dealers shall not collect from the purchaser the tax imposed by s. 210.02. The purchaser hereunder shall be responsible to the agent or wholesale dealer for the services and expenses incurred in affixing the stamps and accounting therefor.

History.--s. 3, ch. 21946, 1943; s. 3, ch. 22645, 1945; s. 1, ch. 26320, 1949; s. 1, ch. 57-255; s. 2, ch. 63-480; s. 2, ch. 68-30; ss. 16, 35, ch. 69-106; s. 1, ch. 69-221; s. 2, ch. 71-364; s. 12, ch. 72-360; s. 60, ch. 77-104; s. 8, ch. 77-421; s. 1, ch. 78-442; s. 4, ch. 79-11; ss. 2, 4, ch. 79-317; s. 2, ch. 86-123; s. 3, ch. 87-86; s. 21, ch. 90-132; s. 84, ch. 91-45; s. 1095, ch. 95-147; s. 1, ch. 2000-251.

210.06  Affixation of stamps; presumption.--

(1)  Every dealer within or without the state shall affix or cause to be affixed to such package or container of such cigarettes, stamps, evidencing the payment of the tax imposed by virtue of this part before such cigarettes are offered for sale or use or consumed or before they are otherwise disposed of in the state.

(2)  Each retail dealer shall open such box, carton or other container of cigarettes prior to exposing for sale or selling such cigarettes and examine the packages contained therein for the purpose of ascertaining whether or not the said packages have affixed thereto the proper tax stamp. If unstamped or improperly stamped packages of cigarettes are discovered, the retail dealer shall immediately notify the dealer from whom said cigarettes were purchased. Upon such notification, the dealer from whom said cigarettes were purchased shall replace such unstamped or improperly stamped packages of cigarettes with those upon which stamps have been properly affixed, or immediately affix thereto the proper amount of stamps.

(3)  Whenever any cigarettes are found in the place of business of any such retail dealer, or in the possession of any other person without the stamps affixed, the presumption shall be that such cigarettes are kept in violation of the provisions of this law.

(4)  Stamps shall be affixed to each package of cigarettes of an aggregate denomination not less than the amount of the tax upon the contents therein, and shall be affixed in such manner as to be visible to the purchaser. All stamps shall be affixed in the manner prescribed by the division. The state may not impose an additional charge on stamps for printing costs.

History.--s. 4, ch. 21946, 1943; s. 4, ch. 22645, 1945; s. 1, ch. 26320, 1949; ss. 16, 35, ch. 69-106; s. 5, ch. 79-11; s. 4, ch. 87-86; s. 1, ch. 89-293.

210.07  Metering machines.--

(1)(a)  The tax may also be paid through the use of cigarette tax stamp insignia to be applied by the use of metering machines. The division shall prescribe and promulgate appropriate rules and regulations governing the use of metering machines, the procedure for the payment of such cigarette taxes through the use thereof, requiring adequate surety bonds of the users thereof to assure the proper use of such machines and payment of all cigarette taxes that might come due by the users thereof, and all other rules and regulations necessary and proper to govern the use of same.

(b)  The provisions of s. 210.05(3)(a) and (b) shall be applicable to cigarette taxes paid through the use of metering machines.

(2)  All provisions of this part governing the use of cigarette tax stamps, the compiling of records, the making of reports, permits and revocation of permits, seizures and forfeitures, penalties, and all other provisions pertaining to the payment of cigarette taxes through the use of stamps, shall likewise be applicable to the payment of said taxes through the use of metering machines.

(3)  Wholesale or retail dealers of cigarettes owning, leasing, furnishing, or operating cigarette vending machines shall affix to each such machine, in a conspicuous place, an identification sticker furnished by the division. Every sticker shall show the vending machine serial number and the name and address of the cigarette wholesale or retail dealer owning, leasing, furnishing, or operating said vending machine.

(4)  No vending machine shall be allowed to operate in the state that does not have affixed thereto the identification sticker required by this section nor shall any vending machine be allowed to operate in the state that does not display at all times at least one package of each brand of the packages located therein so the same are clearly visible and arranged in such a manner that the cigarette tax stamps or meter impressions of stamps affixed thereto are clearly visible. It shall be the duty of any person, firm or corporation operating a cigarette vending machine in this state to furnish the division the location of the vending machine and to report within 30 days to the division any change of location of the vending machine.

History.--s. 5, ch. 21946, 1943; s. 5, ch. 22645, 1945; s. 1, ch. 26320, 1949; s. 2, ch. 57-169; s. 2, ch. 61-399; ss. 16, 35, ch. 69-106; ss. 2, 3, ch. 69-221; s. 6, ch. 79-11; s. 1, ch. 79-317; s. 5, ch. 87-86.

210.08  Bond for payment of taxes.--Each dealer, agent or distributing agent shall file with the division a surety bond acceptable to the division in the sum of $10,000 as surety for the payment of all taxes; provided, however, that where in the discretion of the division the amount of business done by the dealer, agent or distributing agent is of such volume that a bond of less than $10,000 will be adequate to secure the payment of all taxes assessed as authorized by the cigarette tax law, the division may accept a bond in a lesser sum than $10,000, but in no event shall it accept a bond of less than $1,000, and it may at any time in its discretion require any bond in an amount less than $10,000 to be increased not to exceed $10,000.

History.--s. 6, ch. 22645, 1945; s. 1, ch. 26320, 1949; s. 3, ch. 57-169; ss. 16, 35, ch. 69-106; s. 7, ch. 79-11.

210.09  Records to be kept; reports to be made; examination.--

(1)  Every person who shall possess or transport any unstamped cigarettes upon the public highways, roads, or streets of the state, shall be required to have in his or her actual possession invoices or delivery tickets for such cigarettes. The absence of such invoices or delivery tickets shall be prima facie evidence that such person is a dealer in cigarettes in this state and subject to the provisions of this part.

(2)  The division is authorized to prescribe and promulgate by rules and regulations, which shall have the force and effect of the law, such records to be kept and reports to be made to the division by any distributing agent, wholesale dealer, retail dealer, common carrier, or any other person handling, transporting or possessing cigarettes for sale or distribution within the state as may be necessary to collect and properly distribute the taxes imposed by s. 210.02. All reports shall be made on or before the 10th day of the month following the month for which the report is made, unless the division by rule or regulation shall prescribe that reports be made more often.

(3)  All distributing agents, wholesale dealers, agents, or retail dealers shall maintain and keep for a period of 3 years at the place of business where any transaction takes place, such records of cigarettes received, sold, or delivered within the state as may be required by the division. The division or its duly authorized representative is hereby authorized to examine the books, papers, invoices, and other records, the stock of cigarettes in and upon any premises where the same are placed, stored, and sold, and the equipment of any such distributing agents, wholesale dealers, agents, or retail dealers, pertaining to the sale and delivery of cigarettes taxable under this part. To verify the accuracy of the tax imposed and assessed by this part, each person is hereby directed and required to give to the division or its duly authorized representatives the means, facilities, and opportunity for such examinations as are herein provided for and required.

(4)(a)  All persons who are either cigarette wholesalers, vending machine operators or distributing agents, and agents and employees of the same, are required to keep daily sales tickets or invoices of cigarette sales and it shall be the duty of said persons to see that each sales ticket and invoice handled by them or on behalf of them show the correct name and address to whom sold and the number of packages or cartons of each brand sold. It shall also be the duty of said persons to see that each sales ticket or invoice correctly shows whether the same is inside or outside of a qualified municipality and if the sale is made within the limits of a qualified municipality, the correct name of the municipality must be indicated.

(b)  The division shall suspend or revoke the license of any person who is either a cigarette wholesaler, vending machine operator or distributing agent upon sufficient cause appearing that the said persons, their agents or employees have failed to keep daily sales tickets or invoices in accordance with this section.

(5)  Common carriers in this state are required to report to the division all packages or cartons of unstamped cigarettes which are refused by the consignee because of damage or otherwise. Authority in writing from the division must be obtained to sell or dispose of such unstamped cigarettes. Any dealer or distributing agent, who refuses any shipment or part of a shipment of unstamped cigarettes, must show in the next monthly report to the division the number of packages or cartons of cigarettes refused and the name of the common carrier from whom the cigarettes were refused.

History.--ss. 6, 10, 11, ch. 21946, 1943; ss. 7, 11, 12, ch. 22645, 1945; s. 1, ch. 26320, 1949; s. 4, ch. 29884, 1955; s. 4, ch. 57-169; s. 1, ch. 57-784; ss. 16, 35, ch. 69-106; s. 13, ch. 72-360; s. 9, ch. 78-95; s. 8, ch. 79-11; s. 6, ch. 87-86; s. 1096, ch. 95-147.

210.10  General powers of the Division of Alcoholic Beverages and Tobacco.--The Division of Alcoholic Beverages and Tobacco has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this part. All cigarette permits issued hereunder shall have printed thereon a notice to the effect that such permit is issued subject to the provisions of this part and such rules. The division shall provide upon request without charge to any applicant for a permit a copy of this part and the rules prescribed by it pursuant hereto.

History.--s. 7, ch. 21946, 1943; s. 8, ch. 22645, 1945; s. 1, ch. 26320, 1949; s. 7, ch. 29615, 1955; ss. 16, 35, ch. 69-106; s. 6, ch. 77-421; s. 7, ch. 87-86; s. 18, ch. 98-200; s. 1, ch. 2000-323; s. 2, ch. 2000-340.

210.11  Refunds; sales of stamps and payment of tax.--Whenever any cigarettes upon which stamps have been placed, or upon which the tax has been paid by metering machine, have been sold and shipped into another state for sale or use therein, or have become unfit for use and consumption or unsalable, or have been destroyed, the dealer involved shall be entitled to a refund or credit of the actual amount of the tax paid with respect to such cigarettes less any discount allowed by the division in the sale of the stamps or payment of the tax by metering machine, upon receipt of satisfactory evidence of the dealer's right to receive such refund or credit, provided application for refund or credit is made within 9 months of the date the cigarettes were shipped out of the state, became unfit, or were destroyed. Only the division shall sell, or offer for sale, any stamp or stamps issued under this part. The division may redeem unused stamps lawfully in the possession of any person. The division may prescribe necessary rules and regulations concerning refunds, credits, sales of stamps, and redemptions under the provisions of this part. Appropriation is hereby made out of revenues collected under this part for payment of such allowances.

History.--s. 8, ch. 21946, 1943; s. 9, ch. 22645, 1945; s. 1, ch. 26320, 1949; s. 5, ch. 29884, 1955; ss. 16, 35, ch. 69-106; s. 9, ch. 79-11; s. 2, ch. 85-294; s. 8, ch. 87-86; s. 2, ch. 88-308.

210.12  Seizures; forfeiture proceedings.--

(1)  The state, acting by and through the division, shall be authorized and empowered to seize, confiscate and forfeit for the use and benefit of the state, any cigarettes upon which taxes payable hereunder may be unpaid, and also any vending machine or receptacle in which such cigarettes are held for sale, or any vending machine that does not have affixed thereto the identification sticker required by the provisions of s. 210.07, or which does not display at all times at least one package of each brand of cigarettes located therein so the same is clearly visible and arranged in such a manner that the cigarette tax stamp or meter impression of the stamp affixed thereto is clearly visible. Such seizure may be made by the division, its duly authorized representative, any sheriff or deputy sheriff, or any police officer.

(2)  The procedure for seizure, the listing, appraisal, advertisement and sale of the property seized, the bond of any claimant, the court proceedings, if any, including the parties, personal service of citation, and other personal services, the services by publication, judicial sale, and all other proceedings for the confiscation and forfeiture of the property for the nonpayment of the taxes shall be regulated, conducted, governed and controlled in the manner provided by chapter 562, relating to the seizure, confiscation and forfeiture of property under the Beverage Law which is incorporated herein by reference except to the extent that such sections may conflict or be inconsistent herewith.

(3)  From the proceeds of any sale hereunder the division shall collect the tax on the property, together with a penalty of 50 percent thereof and the costs incurred in such proceedings; the balance, if any, shall be payable by the division to the person in whose possession the said property was found or as the court may direct.

(4)  The distribution by the division of the proceeds of the sale from any cigarettes or other property that may be forfeited and confiscated hereunder shall, after the payment of expenses of such forfeiture, be governed by the provisions of this part.

(5)  No sale shall be made hereunder to any person except a licensed wholesale or retail dealer authorized to engage in the sale of cigarettes under the laws of Florida. All sales shall be made to the highest and best bidder for cash. The division shall provide for the payment of any taxes payable upon any cigarettes sold hereunder before the same are delivered to any purchaser.

(6)  The state attorney for the judicial circuit in which such property was seized shall act as the attorney for the division in such confiscation and forfeiture proceedings.

History.--s. 9, ch. 21946, 1943; s. 10, ch. 22645, 1945; s. 1, ch. 26320, 1949; s. 5, ch. 57-169; ss. 16, 35, ch. 69-106; s. 10, ch. 79-11; s. 9, ch. 87-86.

210.13  Determination of tax on failure to file a return.--If a dealer fails to file any return required under this part, or having filed an incorrect or insufficient return, fails to file a correct or sufficient return, as the case may require, within 10 days after the giving of notice to the dealer by the Division of Alcoholic Beverages and Tobacco that such return or corrected or sufficient return is required, the division shall determine the amount of tax due by such dealer any time within 3 years after the making of the earliest sale included in such determination and give written notice of such determination to such dealer. Such a determination shall finally and irrevocably fix the tax unless the dealer against whom it is assessed shall, within 30 days after the giving of notice of such determination, apply to the division for a hearing. Judicial review shall not be granted unless the amount of tax stated in the decision, with penalties thereon, if any, shall have been first deposited with the division, and an undertaking or bond filed in the court in which such cause may be pending in such amount and with such sureties as the court shall approve, conditioned that if such proceeding be dismissed or the decision of the division confirmed, the applicant for review will pay all costs and charges which may accrue against the applicant in the prosecution of the proceeding. At the option of the applicant, such undertaking or bond may be in an additional sum sufficient to cover the tax, penalties, costs, and charges aforesaid, in which event the applicant shall not be required to pay such tax and penalties precedent to the granting of such review by such court.

History.--s. 12, ch. 21946, 1943; s. 13, ch. 22645, 1945; s. 1, ch. 26320, 1949; s. 1, ch. 63-512; ss. 16, 35, ch. 69-106; s. 9, ch. 78-95; s. 10, ch. 87-86; s. 1097, ch. 95-147.

210.14  Warrant for collection of taxes.--

(1)  In addition to all other remedies for the collection of any taxes due under the provisions of this part, the division may issue a warrant under its official seal, which warrant may be filed by the division in the office of the clerk of the circuit court of any county where the delinquent taxpayer owns property. Upon presentation of the warrant, the clerk of the circuit court shall enter it in the judgment docket. The name of the person mentioned in the warrant, the amount of the tax and penalties for which the warrant was issued, and the date such copy was filed shall be included in the record of the warrant. The clerk shall be allowed the same fees as are allowed by law for similar services rendered in judgment execution proceedings. The warrant issued by the division may then be directed to the sheriff of any county commanding that sheriff to levy upon and sell the goods and chattels of the specified delinquent person found within the sheriff's jurisdiction, for the payment of the amount of such delinquency plus a penalty equal to 50 percent of the amount thereof, and interest on the total at 1 percent per month and the cost of executing the warrant, and to return such warrant to the division and to pay it the money collected by virtue thereof within 60 days after receipt of such warrant.

(2)  The amount of the warrant docketed pursuant to subsection (1) shall become a lien upon the title to or the interest in real or personal property of the person against whom the warrant is issued. The sheriff to whom any such warrant is directed shall proceed upon the warrant in all respects and with like effect and in the same manner as prescribed by law in respect to executions issued against goods and chattels upon judgments by a court of record, and the sheriff shall be entitled to the same fees for his or her services in executing the warrant to be collected in the same manner.

(3)  In the discretion of the division, a warrant of like terms, force, and effect may be issued and directed to any officer or employee of the division; and in the execution thereof such officer or employee shall have all the power conferred by law upon sheriffs, but shall be entitled to no fee or compensation in excess of the actual expenses paid in the performance of such duty. If a warrant is returned not satisfied in full, the division may from time to time issue new warrants and shall also have the same remedies to enforce the amount due thereunder as if the state had recovered judgment therefor and execution thereon had been returned satisfied.

History.--s. 13, ch. 21946, 1943; s. 14, ch. 22645, 1945; s. 1, ch. 26320, 1949; s. 6, ch. 29884, 1955; ss. 16, 35, ch. 69-106; s. 8, ch. 76-261; s. 11, ch. 79-11; s. 9, ch. 82-118; s. 11, ch. 87-86; s. 1098, ch. 95-147.

210.15  Permits.--

(1)(a)  Every person, firm, or corporation desiring to deal in cigarettes as a distributing agent, wholesale dealer, or exporter within this state shall file an application for a cigarette permit for each place of business with the Division of Alcoholic Beverages and Tobacco. Every application for a cigarette permit shall be made on forms furnished by the division and shall set forth the name under which the applicant transacts or intends to transact business, the location of the applicant's place of business within the state, and such other information as the division may require. If the applicant has or intends to have more than one place of business dealing in cigarettes within this state, the application shall state the location of each place of business. If the applicant is an association, the application shall set forth the names and addresses of the persons constituting the association, and if a corporation, the names and addresses of the principal officers thereof and any other information prescribed by the division for the purpose of identification. The application shall be signed and verified by oath or affirmation by the owner, if a natural person, and in the case of an association or partnership, members or partners thereof, and in the case of a corporation, by an executive officer thereof or by any person specifically authorized by the corporation to sign the application, to which shall be attached the written evidence of this authority. The cigarette permit for a distributing agent shall be issued annually for which an annual fee of $5 shall be charged.

(b)  The holder of any duly issued, annual permit for a distributing agent shall be entitled to a renewal of his or her annual permit from year to year as a matter of course, on or before July 1, upon making application to the division and upon payment of this annual permit fee.

(c)  The permit for a distributing agent, wholesale dealer, or exporter shall be issued only to persons of good moral character, who are not less than 18 years of age. Distributing agent, wholesale dealer, or exporter permits to corporations shall be issued only to corporations whose officers are of good moral character and not less than 18 years of age. There shall be no exemptions from the permit fees herein provided to any persons, association of persons or corporation, any law to the contrary notwithstanding. No distributing agent, wholesale dealer, or exporter permit shall be issued to any person who has been convicted within the past 5 years of any offense against the cigarette laws of this state or who has been convicted in this state, any other state, or the United States during the past 5 years of any offense designated as a felony by such state or the United States, or to a corporation, any of whose officers have been so convicted. The term "conviction" shall include an adjudication of guilt on a plea of guilty or a plea of nolo contendere, or the forfeiture of a bond when charged with a crime.

(d)  The division may refuse to issue a distributing agent, wholesale, or exporter permit to any person, firm, or corporation whose permit under the cigarette law has been revoked or to any corporation, an officer of which has had his or her permit under the cigarette law revoked, or to any person who is or has been an officer of a corporation whose permit has been revoked under the cigarette law. Any permit issued to a firm or corporation prohibited from obtaining such permit under the cigarette law may be revoked by the division.

(e)  Prior to an application for a distributing agent, wholesale dealer, or exporter permit being approved, the applicant shall file a set of fingerprints on forms provided by the division. The applicant shall also file a set of fingerprints for any person or persons interested directly or indirectly with the applicant in the business for which the permit is being sought, when so required by the division. If the applicant or any person interested with the applicant, either directly or indirectly, in the business for which the permit is sought shall be such a person as is within the definition of persons to whom a distributing agent, wholesale dealer, or exporter permit shall be denied, then the application may be denied by the division. If the applicant is a partnership, all members of the partnership are required to file said fingerprints, or if a corporation, all principal officers of the corporation are required to file said fingerprints. The cigarette permit for a wholesale dealer or exporter shall be originally issued at a fee of $100, which sum is to cover the cost of the investigation required before issuing such permit.

(f)  The cigarette permit for a wholesale dealer or exporter shall be renewed from year to year as a matter of course, at an annual cost of $100, on or before July 1, upon making application to the division and upon payment of the annual renewal fee.

(g)  Permittees, by acceptance of their permits, agree that their places of business or vehicles transporting cigarettes shall always be subject to be inspected and searched without a search warrant for the purpose of ascertaining that all provisions of this part are complied with by authorized employees of the division and also by sheriffs, deputy sheriffs, and police officers during business hours or during any other time such premises are occupied by the permittee or other persons. Retail cigarette dealers and manufacturers' representatives, by dealing in cigarettes, agree that their places of business or vehicles transporting cigarettes shall always be subject to inspection and search without a search warrant for the purpose of ascertaining that all provisions of this part are complied with by authorized employees of the division and also by sheriffs, deputy sheriffs, and police officers during business hours or other times when the premises are occupied by the retail dealer or manufacturers' representatives or other persons.

(h)  No retail sales of cigarettes may be made at a location for which a wholesale dealer, distributing agent, or exporter permit has been issued. The excise tax on sales made to any traveling location, such as an itinerant store or industrial caterer, shall be paid into the General Revenue Fund unallocated. Cigarettes may be purchased for retail purposes only from a person holding a wholesale dealer permit. The invoice for the purchase of cigarettes must show the place of business for which the purchase is made and the cigarettes cannot be transferred to any other place of business for the purpose of resale.

(2)  The division may not furnish stamps or approve the use of meter machines to evidence the payment of the taxes on cigarettes except to qualified wholesale dealers.

(3)  Upon approval of the application, the division shall grant and issue to each applicant a cigarette permit for each place of business set forth in the application. Cigarette permits shall not be assignable and shall be valid only for the persons in whose names issued and for the transaction of business at the places designated therein and shall at all times be conspicuously displayed at the places for which issued.

(4)  All permits of distributing agents, wholesale dealers, or exporters shall remain in force and effect until July 1 following their issuance, or until suspended or revoked for cause by the division, or surrendered by the permitholder.

(5)  Whenever any permit issued under the provisions of this part is destroyed or lost, the holder thereof shall immediately make application for a duplicate permit on a form prescribed by the division, which application shall be filed with the division. The said application shall be under oath and shall state that the applicant is a holder of a valid permit which has been destroyed or lost as the case may be and that the said permit has not been suspended or revoked for cause by the division or surrendered by the permitholder.

(6)  Applicants for a permit hereunder, by the acceptance of such permit, agree that their places of business covered by such permit shall always be subject to be inspected and searched without search warrant by the division or any of its authorized assistants and also by sheriffs, deputy sheriffs or police officers.

(7)  The division shall promulgate suitable rules for carrying out the provisions of this section.

(8)  Every person, firm, corporation, or business entity who deals in, or sells, stores, or operates as a wholesale dealer in, cigarettes, or who acts as a cigarette distributing agent or exporter in any manner whatsoever, and who does so without a cigarette permit as required by this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.--s. 14, ch. 21946, 1943; s. 15, ch. 22645, 1945; s. 1, ch. 26320, 1949; ss. 7, 8, ch. 29884, 1955; s. 6, ch. 57-169; s. 3, ch. 61-399; s. 2, ch. 63-486; s. 2, ch. 67-45; ss. 16, 35, ch. 69-106; s. 3, ch. 76-168; s. 8, ch. 77-121; s. 1, ch. 77-421; s. 1, ch. 77-457; ss. 1, 3, ch. 78-351; s. 2, ch. 81-318; s. 12, ch. 87-86; s. 2, ch. 89-293; s. 1, ch. 91-97; s. 1099, ch. 95-147.

210.151  Initial temporary cigarette permits.--When a person has filed a completed application which does not on its face disclose any reason for denying a cigarette permit under s. 210.15, the Division of Alcoholic Beverages and Tobacco of the Department of Business and Professional Regulation shall issue a temporary initial permit of the same type and series for which the application has been submitted, which is valid for all purposes under this chapter.

(1)  A temporary initial permit shall be valid for up to 90 days and may be extended by the division for up to an additional 90 days for good cause. The division may at any time during such period grant or deny the permit applied for, notwithstanding s. 120.60.

(2)  A temporary initial permit expires and may not be continued or extended beyond the date the division denies the permit applied for; beyond 14 days after the date the division approves the permit applied for; beyond the date the applicant pays the permit fee and the division issues the permit applied for; or beyond the date the temporary permit otherwise expires by law, whichever date occurs first.

(3)  Each applicant seeking a temporary initial cigarette permit shall pay to the division for such permit a fee of $100.

(4)  Any fee or penalty collected under the provisions of this section shall be deposited into the Alcoholic Beverage and Tobacco Trust Fund.

History.--ss. 1, 3, ch. 91-131; s. 15, ch. 94-218; s. 2, ch. 2000-323.

210.16  Revocation or suspension of permit.--

(1)  The Division of Alcoholic Beverages and Tobacco is given full power and authority to revoke the permit of any wholesale dealer receiving a permit to engage in business under this part for violation of any of the provisions of this part.

(2)  The division may suspend for a reasonable period of time, in its discretion, the permits of wholesale dealers issued under the provisions of this part for the same causes and under the same limitations as is authorized hereunder to revoke the permits of such wholesale dealers.

(3)  No wholesale dealer whose permit for any place of business has been revoked shall engage in business under this part at such place of business after such revocation until a new permit is issued. No wholesale dealer whose permit for any place of business has been revoked shall be permitted to have said permit renewed, or to obtain an additional cigarette permit for any other place of business, for a period of 6 months after the date such revocation becomes final.

(4)  In lieu of the suspension or revocation of permits, the division may impose civil penalties against holders of permits for violations of this part or rules and regulations relating thereto. No civil penalty so imposed shall exceed $1,000 for each offense, and all amounts collected shall be deposited with the State Treasurer to the credit of the General Revenue Fund. If the holder of the permit fails to pay the civil penalty, his or her permit shall be suspended for such period of time as the division may specify.

History.--s. 14, ch. 21946, 1943; s. 15, ch. 22645, 1945; s. 1, ch. 26320, 1949; s. 1, ch. 63-512; ss. 16, 35, ch. 69-106; s. 1, ch. 72-159; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 9, ch. 78-95; ss. 2, 3, ch. 78-351; s. 2, ch. 81-318; s. 13, ch. 87-86; s. 2, ch. 91-97; s. 1100, ch. 95-147.

¹210.1605  Renewal of permit.--

(1)  A permit may be renewed after its expiration only by filing with the division a delinquent application for approval and upon payment of a penalty of $20 for each month or part of a month of such delinquency. A permit not renewed within 60 days after its expiration date shall be canceled by the division unless the permit is involved in litigation. However, the division may allow a permittee to renew a permit after the 60-day period for good and sufficient cause.

(2)  Any fee or penalty collected under the provisions of this section shall be deposited into the Alcoholic Beverage and Tobacco Trust Fund.

History.--ss. 2, 3, ch. 91-131; s. 3, ch. 2000-323.

¹Note.--Also published at s. 210.51.

210.161  Examination of records.--The division, or any employee designated by it, shall have the power and authority to examine into the business, books, records, and accounts of any permittee and to issue subpoenas to said permittee or any other person from whom information is desired and to take depositions of witnesses within or without the state. The division, or any employee designated by it, may administer oaths and issue subpoenas. The provisions of the civil law of the state in relation to enforcing obedience to a subpoena lawfully issued by a judge or other person duly authorized to issue subpoenas in civil cases shall apply to a subpoena issued by the division, or any employee designated by it, as authorized in this section, and may be enforced by writ of attachment to be issued by the division, or any employee designated by it, for such witness to compel him or her to attend before the division, or any employee designated by it, and give testimony and to bring and produce such books, papers, and documents as may be required for examination. The division, or any employee designated by it, may punish any willful refusal to so appear or give testimony by citation of any witness before the circuit court which shall punish such witness for contempt as in cases of refusal to obey the orders and process of the circuit court. The division may in such cases pay such attendance and mileage fees as are permitted to witnesses in civil cases appearing before the circuit court.

History.--s. 2, ch. 78-351; s. 2, ch. 81-318; s. 3, ch. 91-97; s. 1101, ch. 95-147.

210.18  Penalties for tax evasion; reports by sheriffs.--

(1)  Any person who possesses or transports any unstamped packages of cigarettes upon the public highways, roads, or streets in the state for the purpose of sale; or who sells or offers for sale unstamped packages of cigarettes in violation of the provisions of this part; or who willfully attempts in any manner to evade or defeat any tax imposed by this part, or the payment thereof, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Any person who has been convicted of a violation of any provision of the cigarette tax law and who is thereafter convicted of a further violation of the cigarette tax law is, upon conviction of such further offense, guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2)  Any wholesale or retail dealer who fails, neglects, or refuses to comply with, or violates the provisions of, this part or the rules and regulations promulgated by the division under this part is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Any wholesale or retail dealer who has been convicted of a violation of any provision of the cigarette tax law and who is thereafter convicted of a further violation of the cigarette tax law is, upon conviction of such further offense, guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3)  Any person who falsely or fraudulently makes, forges, alters, or counterfeits any stamp or impression die used in meter machines prescribed by the division under the provisions of this part; or, with intent to evade taxes, jams, tampers with, or alters such a machine; or causes or procures to be falsely or fraudulently made, forged, altered, or counterfeited any such stamp or die; or knowingly and willfully utters, purchases, passes or tenders as true any such false, altered, or counterfeited stamp or die impression is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(4)(a)  Any person or corporation that owns or is in possession of any cigarettes upon which a tax is imposed by the cigarette law, or would be imposed if such cigarettes were manufactured in or brought into this state in accordance with the regulatory provisions of the cigarette law, and upon which such tax has not been paid is, in addition to the fines and penalties otherwise provided in the cigarette law, personally liable for the amount of the tax imposed on such cigarettes; and the division may collect such tax from such person or corporation by suit or by restitution if the taxpayer is convicted, found guilty, or pleads nolo contendere or guilty to any crime under this chapter. This paragraph is applicable even if adjudication is withheld.

(b)  This subsection does not apply to a manufacturer or distributor licensed under the cigarette law, to a state bonded warehouse, or to a person possessing not in excess of three cartons of such cigarettes, which cigarettes were purchased by such possessor outside the state in accordance with the laws of the place where purchased and brought into this state by such possessor. The burden of proof that such cigarettes were purchased outside the state and in accordance with the laws of the place where purchased shall in all cases be upon the possessor of such cigarettes.

(5)(a)  All cigarettes on which taxes are imposed by the cigarette law, or would be imposed if such cigarettes were manufactured in or brought into this state in accordance with the regulatory provisions of such law, which are found in the possession or custody or within the control of any person for the purpose of being sold or removed by him or her in fraud of the cigarette law or with design to evade payment of such taxes may be seized by the division or any supervisor, sheriff, deputy sheriff, or other law enforcement agent and shall be forfeited to the state.

(b)  This subsection does not apply to a person possessing not in excess of three cartons of cigarettes, which cigarettes were purchased by such possessor outside the state in accordance with the laws of the place where purchased and brought into this state by such possessor.

(6)(a)  Every person, firm, or corporation, other than a licensee under the provisions of this part, who possesses, removes, deposits, or conceals, or aids in the possessing, removing, depositing, or concealing of, any unstamped cigarettes not in excess of 50 cartons is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. In lieu of the penalties provided in those sections, however, the person, firm, or corporation may pay the tax plus a penalty equal to the amount of the tax authorized under s. 210.02 on the unstamped cigarettes.

(b)  Every person, firm, or corporation, other than a licensee under the provisions of this part, who possesses, removes, deposits, or conceals, or aids in the possessing, removing, depositing, or concealing of, any unstamped cigarettes in excess of 50 cartons is presumed to have knowledge that they have not been taxed and is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(c)  This section does not apply to a person possessing not in excess of three cartons of such cigarettes purchased by such possessor outside the state in accordance with the laws of the place where purchased and brought into this state by such possessor. The burden of proof that such cigarettes were purchased outside the state and in accordance with the laws of the place where purchased shall in all cases be upon the possessor of such cigarettes.

(7)  Any sheriff, deputy sheriff, or police officer, upon the seizure of any unstamped cigarettes under this section, shall promptly report such seizure to the division or its representative, together with a description of all such unstamped cigarettes seized, so that the state may be kept informed as to the size and magnitude of the illicit cigarette business.

(8)(a)  It is unlawful for any person to conspire with any other person or persons to do any act in violation of the provisions of this part, when any one or more of such persons does or commits any act to effect the object of the conspiracy.

(b)  Any person who violates the provisions of this subsection:

1.  If the act conspired to be done would constitute a misdemeanor, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

2.  If the act conspired to be done would constitute a felony, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.--s. 16, ch. 21946, 1943; s. 17, ch. 22645, 1945; s. 1, ch. 26320, 1949; ss. 16, 35, ch. 69-106; s. 1, ch. 69-253; s. 1, ch. 69-254; s. 1, ch. 69-275; s. 1, ch. 69-276; s. 1, ch. 69-397; s. 121, ch. 71-136; s. 20, ch. 73-334; s. 61, ch. 77-104; s. 2, ch. 77-421; s. 12, ch. 79-11; s. 1, ch. 84-19; s. 14, ch. 87-86; s. 6, ch. 89-293; s. 17, ch. 91-224; s. 1102, ch. 95-147.

210.185  Prohibition on sale or distribution of cigarettes; criminal penalties; administrative sanctions; applicability.--

(1)  PROHIBITIONS.--It is unlawful for any person:

(a)  To sell or distribute in this state; to acquire, hold, own, possess, or transport, for sale or distribution in this state; or to import, or cause to be imported, into this state for sale or distribution in this state:

1.  Any cigarettes the package of which:

a.  Bears any statement, label, stamp, sticker, or notice indicating that the manufacturer did not intend the cigarettes to be sold, distributed, or used in the United States, including but not limited to labels stating "For Export Only," "U.S. Tax-Exempt," "For Use Outside U.S.," or similar wording; or

b.  Does not comply with:

(I)  All requirements imposed by or under federal law regarding warnings and other information on packages of cigarettes manufactured, packaged, or imported for sale, distribution, or use in the United States, including but not limited to the precise warning labels specified in the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. s. 1333; and

(II)  All federal trademark and copyright laws;

2.  Any cigarettes imported into the United States in violation of 26 U.S.C. s. 5754 or any other federal law, or implementing federal regulations;

3.  Any cigarettes that a person otherwise knows or has reason to know the manufacturer did not intend to be sold, distributed, or used in the United States; or

4.  Any cigarettes for which there has not been submitted to the Secretary of the United States Department of Health and Human Services the list or lists of the ingredients added to tobacco in the manufacture of those cigarettes required by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. s. 1335a;

(b)  To alter the package of any cigarettes, before sale or distribution to the ultimate consumer, so as to remove, conceal, or obscure any statement, label, stamp, sticker, or notice described in sub-subparagraph (a)1.a. or any health warning that is not specified in or does not conform with the requirements of the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. s. 1333;

(c)  To affix any stamp required under this part to the package of any cigarettes described in paragraph (a) or altered in violation of paragraph (b).

(2)  DOCUMENTATION.--On or before the 10th day of each month, each person permitted to affix the tax stamp to cigarettes shall file with the division, for all cigarettes imported into the United States to which the person has affixed the tax stamp in the preceding month, a copy of the permit issued under the Internal Revenue Code, 26 U.S.C. s. 5713, to the person importing the cigarettes into the United States which allows that person to import those cigarettes; a copy of the customs form containing, with respect to the cigarettes, the internal revenue tax information required by the United States Bureau of Alcohol, Tobacco and Firearms; and a statement, signed by an officer of the manufacturer or importer under penalty of perjury, certifying that the manufacturer or importer has complied with the package health warning and ingredient reporting requirements of the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. ss. 1333 and 1335a, with respect to those cigarettes.

(3)  CRIMINAL PENALTIES.--Any person who violates subsection (1), either knowing or having reason to know he or she is doing so, or who fails to comply with subsection (2), commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(4)  ADMINISTRATIVE SANCTIONS.--

(a)  The division may revoke or suspend the permit of any distributing agent or wholesale dealer, or the retail tobacco dealer permit of any retailer, and impose on the permittee a civil penalty, in an amount not to exceed the greater of 500 percent of the retail value of the cigarettes involved or $5,000, upon finding a violation of this section or any implementing rule adopted by the division.

(b)  Cigarettes that are acquired, held, owned, possessed, transported in, imported into, or sold or distributed in this state in violation of this section are considered contraband and are subject to seizure and forfeiture under this part. Any cigarettes so seized and forfeited shall be destroyed. The cigarettes are considered contraband whether the violation of this section is knowing or otherwise.

(5)  UNFAIR TRADE PRACTICES.--A violation of subsection (1) or subsection (2) constitutes an unlawful trade practice under part II of chapter 501 and, in addition to any remedies or penalties set forth in this section is subject to any remedies or penalties available for a violation of that part.

(6)  GENERAL PROVISIONS.--

(a)  The division shall enforce this section. However, at the request of the division, any law enforcement agency shall enforce this section.

(b)  For the purpose of enforcing this act, the division and any agency to which the division has delegated enforcement responsibility may request information from any state or local agency, and may share information with, and request information from, any federal agency or any agency of any other state or any local agency thereof.

(c)  In addition to any other remedy provided by law, including enforcement as provided in paragraph (a), any person may bring an action for appropriate injunctive or other equitable relief for a violation of this section; for actual damages, if any, sustained by reason of the violation; and, as determined by the court, for interest on the damages from the date of the complaint, taxable costs, and reasonable attorney's fees. If the trier of fact finds that the violation is flagrant, it may increase recovery to an amount not in excess of 3 times the actual damages sustained by reason of the violation.

(7)  DEFINITIONS.--As used in this section, the term:

(a)  "Cigarette" means:

1.  Any roll of tobacco wrapped in paper or tobacco leaf or in any substance not containing tobacco, including a bidi, kretek, or other similar product, which is to be burned;

2.  Any roll of tobacco wrapped in any substance containing tobacco, including a bidi, kretek, or other similar product, which, because of its appearance, the type of tobacco used in the filler, or its packaging or labeling is likely to be offered to or purchased by consumers as a cigarette described in subparagraph 1.; or

3.  Loose rolling tobacco that, because of its appearance, type, packaging, or labeling, is likely to be offered to or purchased by consumers as tobacco for making cigarettes.

(b)  "Importer" means "importer" as that term is defined in 26 U.S.C. s. 5702(l).

(c)  "Package" means "package" as that term is defined in 15 U.S.C. s. 1332(4).

(8)  APPLICABILITY.--

(a)  This section does not apply to cigarettes allowed to be imported or brought into the United States for personal use and cigarettes sold or intended to be sold as duty-free merchandise by a duty-free sales enterprise in accordance with 19 U.S.C. s. 1555(b) and any implementing regulations, but this section does apply to any such cigarettes that are brought back into the customs territory for resale within the customs territory.

(b)  The penalties provided in this section are in addition to any penalties imposed under any other law.

History.--s. 2, ch. 2000-251.

210.19  Records to be kept by division.--The division shall keep records showing the total amount of taxes collected, which records shall be open to the public during the regular office hours of the division. The division shall maintain records that identify which agent or wholesale dealer affixed the tax stamp to each package of cigarettes. The identifying records must be made available for public inspection and retained for at least 3 years.

History.--s. 1, ch. 26320, 1949; ss. 16, 35, ch. 69-106; s. 14, ch. 72-360; s. 13, ch. 79-11; s. 3, ch. 2000-251.

210.20  Employees and assistants; distribution of funds.--

(1)  The division under the applicable rules of the Department of Management Services shall have the power to employ such employees and assistants and incur such other expenses as may be necessary for the administration of this part, within the limits of an appropriation for the operation of the Department of Business and Professional Regulation as may be authorized by the General Appropriations Act.

(2)  As collections are received by the division from such cigarette taxes, it shall pay the same into a trust fund in the State Treasury designated "Cigarette Tax Collection Trust Fund" which shall be paid and distributed as follows:

(a)  The division shall from month to month certify to the Comptroller the amount derived from the cigarette tax imposed by s. 210.02, less the service charges provided for in s. 215.20 and less 0.9 percent of the amount derived from the cigarette tax imposed by s. 210.02, which shall be deposited into the Alcoholic Beverage and Tobacco Trust Fund, specifying the amounts to be transferred from the Cigarette Tax Collection Trust Fund and credited on the basis of 2.9 percent of the net collections to the Revenue Sharing Trust Fund for Counties and 29.3 percent of the net collections for the funding of indigent health care to the Public Medical Assistance Trust Fund.

(b)  The division shall from month to month certify to the Comptroller the amount derived from the cigarette tax imposed by s. 210.02 on all cigarettes sold at retail on any property of the Inter-American Center Authority, created by ¹chapter 554, and such amount, less the service charge provided for in s. 215.20, shall be paid to said Inter-American Center Authority by warrant drawn by the Comptroller upon the State Treasury, which amount is hereby appropriated monthly out of such Cigarette Tax Collection Trust Fund.

(c)  Beginning January 1, 1999, and continuing for 10 years thereafter, the division shall from month to month certify to the Comptroller the amount derived from the cigarette tax imposed by s. 210.02, less the service charges provided for in s. 215.20 and less 0.9 percent of the amount derived from the cigarette tax imposed by s. 210.02 which shall be deposited into the Alcoholic Beverage and Tobacco Trust Fund, specifying an amount equal to 2.59 percent of the net collections, and that amount shall be paid to the Board of Directors of the H. Lee Moffitt Cancer Center and Research Institute, established under s. 240.512, by warrant drawn by the Comptroller upon the State Treasury. These funds are hereby appropriated monthly out of the Cigarette Tax Collection Trust Fund, to be used for the purpose of constructing, furnishing, and equipping a cancer research facility at the University of South Florida adjacent to the H. Lee Moffitt Cancer Center and Research Institute. In fiscal years 1999-2000 and thereafter with the exception of fiscal year 2008-2009, the appropriation to the H. Lee Moffit Cancer Center and Research Institute authorized by this paragraph shall not be less than the amount which would have been paid to the H. Lee Moffitt Cancer Center and Research Institute for fiscal year 1998-1999 had payments been made for the entire fiscal year rather than for a 6-month period thereof.

(3)  After all distributions hereinabove provided for have been made, the balance of the revenue produced from the tax imposed by this part shall be deposited in the General Revenue Fund.

History.--s. 17, ch. 21946, 1943; s. 18, ch. 22645, 1945; s. 1, ch. 26320, 1949; s. 16, ch. 26869, 1951; s. 1, ch. 29827, 1955; s. 7, ch. 57-169; s. 2, ch. 61-119; s. 3, ch. 61-493; s. 1, ch. 67-437; ss. 3, 5, ch. 68-30; ss. 16, 35, ch. 69-106; ss. 8, 9, ch. 72-360; s. 3, ch. 77-409; s. 14, ch. 79-11; s. 3, ch. 85-294; s. 3, ch. 86-123; s. 15, ch. 87-86; ss. 22, 80, ch. 90-132; s. 113, ch. 91-112; s. 81, ch. 92-279; s. 55, ch. 92-326; s. 16, ch. 94-218; s. 1, ch. 98-286; s. 28, ch. 2000-355.

¹Note.--Repealed by s. 1, ch. 75-131; various property and functions relating to the authority were transferred to Dade County and other entities.

210.201  Cancer research facility at the University of South Florida; establishment; funding.--The Board of Directors of the H. Lee Moffitt Cancer Center and Research Institute shall construct, furnish, and equip, and shall covenant to complete, the cancer research facility at the University of South Florida adjacent to the H. Lee Moffitt Cancer Center and Research Institute. Moneys transferred to the Board of Directors of the H. Lee Moffitt Cancer Center and Research Institute shall be used to secure financing to pay costs related to constructing, furnishing, and equipping the cancer research facility. Such financing may include the issuance of tax exempt bonds by a local authority, municipality, or county pursuant to parts II and III of chapter 159. Such bonds shall not constitute state bonds for purposes of s. 11, Art. VII of the State Constitution, but shall constitute bonds of a "local agency," as defined in s. 159.27(4). The cigarette tax dollars pledged to this facility shall be replaced annually by the Legislature from tobacco litigation settlement proceeds.

History.--s. 2, ch. 98-286.

210.22  Declaration of legislative intent.--In the event that any section or clause hereof shall for any reason be held or declared invalid, the same shall be eliminated and the remaining portion or portions hereof shall remain in full force and effect as if such invalid clause or section had not been incorporated herein, provided that ss. 210.03 and 210.20 are declaratory of the specific legislative intent in the passage of this part, and should either of said sections be declared unconstitutional, ineffective, or invalid, then in such event, the entire part shall become inoperative and void.

History.--s. 3, ch. 26320, 1949; s. 16, ch. 87-86.

210.25  Definitions.

210.30  Tax on tobacco products.

210.31  Payment of taxes by electronic funds transfer.

210.35  Distributor's license required; application; out-of-state applicant.

210.40  License fees; surety bond; application for each place of business.

210.405  Initial temporary permits for other tobacco products.

210.45  Issuance, expiration, and display of licenses; license not transferable.

210.50  Revocation or suspension of license.

210.51  Renewal of permit.

210.55  Distributors; monthly returns.

210.60  Books, records, and invoices to be kept and preserved; inspection by agents of division.

210.65  Penalties for tax evasion.

210.67  Refunds.

210.70  Disposition of funds.

210.75  Administration.

210.25  Definitions.--As used in this part:

(1)  "Business" means any trade, occupation, activity, or enterprise engaged in for the purpose of selling or distributing tobacco products in this state.

(2)  "Consumer" means any person who has title to or possession of tobacco products in storage for use or other consumption in this state.

(3)  "Division" means the Division of Alcoholic Beverages and Tobacco of the Department of Business and Professional Regulation.

(4)  "Distributor" means:

(a)  Any person engaged in the business of selling tobacco products in this state who brings, or causes to be brought, into this state from outside the state any tobacco products for sale;

(b)  Any person who makes, manufactures, or fabricates tobacco products in this state for sale in this state; or

(c)  Any person engaged in the business of selling tobacco outside this state who ships or transports tobacco products to retailers in this state to be sold by those retailers.

(5)  "Manufacturer" means any person who manufactures and sells tobacco products.

(6)  "Place of business" means any place where tobacco products are sold, manufactured, stored or kept for the purpose of sale or consumption, including any vessel, vehicle, airplane, train, or vending machine.

(7)  "Retail outlet" means each place of business from which tobacco products are sold to consumers.

(8)  "Retailer" means any person engaged in the business of selling tobacco products to ultimate consumers.

(9)  "Sale" means any transfer, exchange, or barter for a consideration. The term "sale" includes a gift by a person engaged in the business of selling tobacco products for advertising or as a means of evading this part or for any other purpose.

(10)  "Storage" means any keeping or retention of tobacco products for use or consumption in this state.

(11)  "Tobacco products" means loose tobacco suitable for smoking; snuff; snuff flour; cavendish; plug and twist tobacco; fine cuts and other chewing tobaccos; shorts; refuse scraps; clippings, cuttings, and sweepings of tobacco, and other kinds and forms of tobacco prepared in such manner as to be suitable for chewing; but "tobacco products" does not include cigarettes, as defined by s. 210.01(1), or cigars.

(12)  "Use" means the exercise of any right or power incidental to the ownership of tobacco products.

(13)  "Wholesale sales price" means the established price for which a manufacturer sells a tobacco product to a distributor, exclusive of any diminution by volume or other discounts.

History.--s. 1, ch. 85-141; s. 1, ch. 86-286; s. 4, ch. 91-429; s. 17, ch. 94-218.

210.30  Tax on tobacco products.--

(1)  A tax is hereby imposed upon all tobacco products in this state and upon any person engaged in business as a distributor thereof at the rate of 25 percent of the wholesale sales price of such tobacco products. Such tax shall be imposed at the time the distributor:

(a)  Brings or causes to be brought into this state from without the state tobacco products for sale;

(b)  Makes, manufactures, or fabricates tobacco products in this state for sale in this state; or

(c)  Ships or transports tobacco products to retailers in this state, to be sold by those retailers.

(2)  A tax is hereby imposed upon the use or storage by consumers of tobacco products in this state and upon such consumers at the rate of 25 percent of the cost of such tobacco products. The tax imposed by this subsection shall not apply if the tax imposed by subsection (1) on such tobacco products has been paid. This tax shall not apply to the use or storage of tobacco products in quantities of less than 1 pound in the possession of any one consumer.

(3)  Any tobacco product with respect to which a tax has once been imposed under this part shall not again be subject to tax under this part.

(4)  No tax shall be imposed by this part upon tobacco products not within the taxing power of the state under the Commerce Clause of the United States Constitution.

(5)  The exemptions provided for cigarettes under s. 210.04(4) shall also apply to tobacco products under this part.

History.--s. 1, ch. 85-141; s. 1, ch. 86-286; s. 4, ch. 91-429.

210.31  Payment of taxes by electronic funds transfer.--The Secretary of Business and Professional Regulation may require a distributor who sells tobacco products within the state to remit by electronic funds transfer any tax imposed under s. 210.30 if the taxpayer is subject to the tax and if the total of such taxes the distributor paid in the prior year amounted to $50,000 or more.

History.--s. 3, ch. 89-153; s. 27, ch. 89-356; s. 18, ch. 94-218; s. 7, ch. 99-7.

210.35  Distributor's license required; application; out-of-state applicant.--

(1)  No person shall engage in the business of selling or dealing in tobacco products as a distributor in any place of business in this state without first having received a license from the division to engage in such business at the place of business. Every application for such license shall be made on a form prescribed by the division and shall state the name and address of the applicant; if the applicant is a firm, partnership, or association, the name and address of each of its members; if the applicant is a corporation, the name and address of each of its officers; the address of its principal place of business; the place where the business to be licensed is to be conducted; and such other information as the division may require for the purpose of the administration of this part.

(2)  A person outside this state who ships or transports tobacco products to retailers in this state, to be sold by those retailers, may make application for license as a distributor, be granted such a license by the division, and thereafter be subject to all the provisions of this part and entitled to act as a licensed distributor.

History.--s. 1, ch. 85-141; s. 1, ch. 86-286; s. 4, ch. 91-429.

210.40  License fees; surety bond; application for each place of business.--Each application for a distributor's license shall be accompanied by a fee of $25. The application shall also be accompanied by a corporate surety bond issued by a surety company authorized to do business in this state, conditioned for the payment when due of all taxes, penalties, and accrued interest which may be due the state. The bond shall be in the sum of $1,000 and in a form prescribed by the division. Whenever it is the opinion of the division that the bond given by a licensee is inadequate in amount to fully protect the state, the division shall require an additional bond in such amount as is deemed sufficient. A separate application for a license shall be made for each place of business at which a distributor proposes to engage in business as a distributor under this part, but an applicant may provide one bond in an amount determined by the division for all applications made by the distributor.

History.--s. 1, ch. 85-141; s. 1, ch. 86-286; s. 4, ch. 91-429.

210.405  Initial temporary permits for other tobacco products.--When a person has filed a completed application which does not on its face disclose any reason for denying a permit for other tobacco products under s. 210.40, the Division of Alcoholic Beverages and Tobacco of the Department of Business and Professional Regulation shall issue a temporary initial permit of the same type and series for which the application has been submitted, which is valid for all purposes under this chapter.

(1)  A temporary initial permit shall be valid for up to 90 days and may be extended by the division for up to an additional 90 days for good cause. The division may at any time during such period grant or deny the permit applied for, notwithstanding s. 120.60.

(2)  A temporary initial permit expires and may not be continued or extended beyond the date the division denies the permit applied for; beyond 14 days after the date the division approves the permit applied for; beyond the date the applicant pays the permit fee and the division issues the permit applied for; or beyond the date the temporary permit otherwise expires by law, whichever date occurs first.

(3)  Each applicant seeking a temporary initial permit for other tobacco products shall pay to the division for such permit a fee of $25.

(4)  Any fee or penalty collected under the provisions of this section shall be deposited into the Alcoholic Beverage and Tobacco Trust Fund.

History.--ss. 1, 3, ch. 91-131; s. 19, ch. 94-218; s. 4, ch. 2000-323.

210.45  Issuance, expiration, and display of licenses; license not transferable.--Upon receipt of an application in proper form and payment of the required license fee, the division shall, unless otherwise provided by this part, issue to the applicant a license which shall permit the applicant to engage in business as a distributor at the place of business shown on the license. Each license shall expire on June 30 following its date of issue unless sooner revoked by the division or unless the business for which the license was issued is transferred. In either case, the holder of the license shall immediately surrender it to the division. Each license shall be prominently displayed on the premises covered by the license. No license shall be transferable to any other person.

History.--s. 1, ch. 85-141; s. 1, ch. 86-286; s. 4, ch. 91-429.

210.50  Revocation or suspension of license.--

(1)  The division is authorized upon sufficient cause appearing of the violation of any of the provisions of this part by any distributor licensed under this part to revoke the license of the distributor.

(2)  The division may suspend for a reasonable period of time, in its discretion, the license of any distributor issued under the provisions of this part for the same causes and under the same limitations as are authorized for license revocation.

(3)  No distributor whose license for any place of business has been revoked shall engage in business under this part at such place of business, after the revocation, until a new license is issued. No distributor whose license for any place of business has been revoked shall be permitted to have the license renewed or to obtain an additional license for any other place of business for a period of 6 months after the date such revocation becomes final.

(4)  In lieu of the suspension or revocation of licenses, the division may impose civil penalties against holders of licenses for violations of this part or rules relating thereto. No civil penalty so imposed shall exceed $1,000 for each offense, and all amounts collected shall be deposited with the State Treasurer to the credit of the General Revenue Fund. If the holder of the license fails to pay the civil penalty, his or her license shall be suspended for such period of time as the division may specify.

History.--s. 1, ch. 85-141; s. 1, ch. 86-286; s. 4, ch. 91-429; s. 1103, ch. 95-147.

¹210.51  Renewal of permit.--

(1)  A permit may be renewed after its expiration only by filing with the division a delinquent application for approval and upon payment of a penalty of $20 for each month or part of a month of such delinquency. A permit not renewed within 60 days after its expiration date shall be canceled by the division unless the permit is involved in litigation. However, the division may allow a permittee to renew a permit after the 60-day period for good and sufficient cause.

(2)  Any fee or penalty collected under the provisions of this section shall be deposited into the Alcoholic Beverage and Tobacco Trust Fund.

History.--ss. 2, 3, ch. 91-131; s. 5, ch. 2000-323.

¹Note.--Also published at s. 210.1605.

210.55  Distributors; monthly returns.--

(1)  On or before the 10th of each month, every taxpayer with a place of business in this state shall file a return with the division showing the taxable price of each tobacco product brought or caused to be brought into this state for sale, or made, manufactured, or fabricated in this state for sale in this state, during the preceding month. Every taxpayer outside this state shall file a return showing the quantity and taxable price of each tobacco product shipped or transported to retailers in this state, to be sold by those retailers, during the preceding month. Returns shall be made upon forms furnished and prescribed by the division and shall contain any other information that the division requires. Each return shall be accompanied by a remittance for the full tax liability shown.

(2)  As soon as practicable after any return is filed, the division shall examine each return and correct it, if necessary, according to its best judgment and information. If the division finds that any amount of tax is due from the taxpayer and unpaid, it shall notify the taxpayer of the deficiency, stating that it proposes to assess the amount due together with interest and penalties. If a deficiency disclosed by the division's examination cannot be allocated to one or more particular months, the division shall notify the taxpayer of the deficiency, stating its intention to assess the amount due for a given period without allocating it to any particular months.

(3)  If, within 60 days after the mailing of notice of the proposed assessment, the taxpayer files a protest to the proposed assessment and requests a hearing on it, the division shall give notice to the taxpayer of the time and place fixed for the hearing, shall hold a hearing on the protest, and shall issue a final assessment to the taxpayer for the amount found to be due as a result of the hearing. If a protest is not filed within 60 days, the division shall issue a final assessment to the taxpayer. In any action or proceeding in respect to the proposed assessment, the taxpayer shall have the burden of establishing the incorrectness or invalidity of any final assessment made by the division.

(4)  If any taxpayer required to file any return fails to do so within the time prescribed, the taxpayer shall, on the written demand of the division, file the return within 20 days after mailing of the demand and at the same time pay the tax due on its basis. If the taxpayer fails within that time to file the return, the division shall prepare the return from its own knowledge and from the information that it obtains and on that basis shall assess a tax, which shall be paid within 10 days after the division has mailed to the taxpayer a written notice of the amount and a demand for its payment. In any action or proceeding in respect to the assessment, the taxpayer shall have the burden of establishing the incorrectness or invalidity of any return or assessment made by the division because of the failure of the taxpayer to make a return.

(5)  All taxes are due not later than the 10th day of the month following the calendar month in which they were incurred, and thereafter shall bear interest at the annual rate of 12 percent. If the amount of tax due for a given period is assessed without allocating it to any particular month, the interest shall begin with the date of the assessment.

(6)  In issuing its final assessment, the division shall add to the amount of tax found due and unpaid a penalty of 10 percent, but if it finds that the taxpayer has made a false return with intent to evade the tax, the penalty shall be 50 percent of the entire tax as shown by the corrected return. In assessing a tax on the basis of a return made under subsection (4), the division shall add to the amount of tax found due and unpaid a penalty of 25 percent.

(7)  For the purpose of compensating the distributor for the keeping of prescribed records and the proper accounting and remitting of taxes imposed under this part, the distributor shall be allowed 1 percent of the amount of the tax due and accounted for and remitted to the division in the form of a deduction in submitting his or her report and paying the amount due; and the division shall allow such deduction of 1 percent of the amount of the tax to the person paying the same for remitting the tax in the manner herein provided, for paying the amount due to be paid by him or her, and as further compensation to the distributor for the keeping of prescribed records and for collection of taxes and remitting the same.

(a)  The collection allowance may not be granted, nor may any deduction be permitted, if the tax is delinquent at the time of payment.

(b)  The division may reduce the collection allowance by 10 percent or $50, whichever is less, if a taxpayer files an incomplete return.

1.  An "incomplete return" is, for purposes of this part, a return which is lacking such uniformity, completeness, and arrangement that the physical handling, verification, or review of the return may not be readily accomplished.

2.  The division shall adopt rules requiring such information as it may deem necessary to ensure that the tax levied hereunder is properly collected, reviewed, compiled, and enforced, including, but not limited to: the amount of taxable sales; the amount of tax collected or due; the amount claimed as the collection allowance; the amount of penalty and interest; the amount due with the return; and such other information as the division may specify.

History.--s. 1, ch. 85-141; s. 4, ch. 86-123; s. 1, ch. 86-286; s. 4, ch. 91-429; s. 1104, ch. 95-147.

210.60  Books, records, and invoices to be kept and preserved; inspection by agents of division.--Every distributor shall keep in each licensed place of business complete and accurate records for that place of business, including itemized invoices of tobacco products held, purchased, manufactured, brought in or caused to be brought in from without the state, or shipped or transported to retailers in this state, and of all sales of tobacco products made, except sales to an ultimate consumer. Such records shall show the names and addresses of purchasers and other pertinent papers and documents relating to the purchase, sale, or disposition of tobacco products. When a licensed distributor sells tobacco products exclusively to ultimate consumers at the addresses given in the license, no invoice of those sales shall be required, but itemized invoices shall be made of all tobacco products transferred to other retail outlets owned or controlled by that licensed distributor. All books, records and other papers, and other documents required by this section to be kept shall be preserved for a period of at least 3 years after the date of the documents, as aforesaid, or the date of the entries thereof appearing in the records, unless the division, in writing, authorizes their destruction or disposal at an earlier date. At any time during usual business hours, duly authorized agents or employees of the division may enter any place of business of a distributor and inspect the premises, the records required to be kept under this part, and the tobacco products contained therein to determine whether all the provisions of this part are being fully complied with. Refusal to permit such inspection by a duly authorized agent or employee of the division shall be grounds for revocation of the license. Every person who sells tobacco products to persons other than an ultimate consumer shall render with each sale an itemized invoice showing the seller's name and address, the purchaser's name and address, the date of sale, and all prices and discounts. The seller shall preserve legible copies of all such invoices for 3 years from the date of sale. Every retailer shall produce itemized invoices of all tobacco products purchased. The invoices shall show the name and address of the seller and the date of purchase. The retailer shall preserve a legible copy of each such invoice for 3 years from the date of purchase. Invoices shall be available for inspection by authorized agents or employees of the division at the retailer's place of business.

History.--s. 1, ch. 85-141; s. 1, ch. 86-286; s. 52, ch. 87-224; s. 4, ch. 91-429.

210.65  Penalties for tax evasion.--

(1)  Any distributor or any other person who fails, neglects, or refuses to comply with, or violates the provisions of, this part or the rules promulgated by the division under this part, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2)  Any retailer who purchases tobacco products from a distributor not licensed under the provisions of this part is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(3)  Any distributor or any other person who has been convicted of a violation of this part and is thereafter convicted of a further violation of this part shall, upon conviction of said further offense, be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.--s. 1, ch. 85-141; s. 1, ch. 86-286; s. 53, ch. 87-224; s. 4, ch. 91-429.

210.67  Refunds.--Where tobacco products, on which the tax imposed by this part has been reported and paid, or which have been reported for the purpose of determining and imposing the tax for the privilege of doing business under the provisions of this part and on which the tax has been paid, are sold, shipped, or transported by the distributor to retailers, distributors, or ultimate consumers outside the state, or are returned to the manufacturer by the distributor or destroyed by the distributor, a refund or credit of such tax shall be made to the distributor.

History.--s. 1, ch. 85-141; s. 1, ch. 86-286; s. 4, ch. 91-429.

210.70  Disposition of funds.--As collections from the taxes imposed under this part are received by the division, it shall pay the same into the General Revenue Fund.

History.--s. 1, ch. 85-141; s. 20, ch. 86-269; s. 1, ch. 86-286; s. 4, ch. 91-429.

210.75  Administration.--

(1)  The division, under the applicable rules of the Department of Management Services, shall have the power to employ such employees and assistants and to incur such other expenses as may be necessary for the administration of this part within the limits of an appropriation for the operation of the Department of Business and Professional Regulation as may be authorized by the General Appropriations Act.

(2)  The division has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to enforce the provisions of this part.

History.--s. 1, ch. 85-141; s. 1, ch. 86-286; s. 4, ch. 91-429; s. 82, ch. 92-279; s. 55, ch. 92-326; s. 20, ch. 94-218; s. 19, ch. 98-200.