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2012 Florida Statutes
Chapter 210
TAX ON TOBACCO PRODUCTS
TAX ON TOBACCO PRODUCTS
CHAPTER 210
TAX ON TOBACCO PRODUCTS
PART I
TAX ON CIGARETTES(ss. 210.01-210.22)
PART II
TAX ON TOBACCO PRODUCTS OTHER THAN CIGARETTES OR CIGARS(ss. 210.25-210.75)
PART I
TAX ON CIGARETTES210.01 Definitions.
210.011 Cigarette surcharge levied; collection.
210.02 Cigarette tax imposed; collection.
210.021 Payment of taxes by certified check or 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 Machines.
210.08 Bond for payment of taxes.
210.085 Transactions only with permitted manufacturers, importers, distributing agents, dealers, and retail dealers.
210.09 Records to be kept; reports to be made; examination.
210.095 Mail order, Internet, and remote sales of tobacco products; age verification.
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.
210.1801 Exempt cigarettes for members of recognized Indian tribes.
210.181 Civil penalties.
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 H. Lee Moffitt Cancer Center and Research Institute facilities; 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 located inside or outside this state who sells cigarettes to retail dealers or other persons for purposes of resale only. Such term shall not include any cigarette manufacturer, export warehouse proprietor, or importer with a valid permit under 26 U.S.C. s. 5712 if such person sells or distributes cigarettes in this state only to dealers who are agents and who hold valid and current permits under s. 210.15 or to any cigarette manufacturer, export warehouse proprietor, or importer who holds a valid and current permit under 26 U.S.C. s. 5712.
(7) “Retail dealer” means any person located inside or outside this state other than a wholesale dealer engaged in the business of selling cigarettes, including persons issued a permit pursuant to s. 569.003.
(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 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 surcharge and tax required by this part have 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.
(19) “Stamp” or “stamps” means the indicia required to be placed on cigarette packages which evidence payment of the surcharge on cigarettes under s. 210.011 and the tax on cigarettes under s. 210.02.
(20) “Importer” means any person with a valid permit under 26 U.S.C. s. 5712 who imports into the United States, directly or indirectly, a finished cigarette for sale or distribution.
(21) “Manufacturer” means any domestic person or entity with a valid permit under 26 U.S.C. s. 5712 that manufactures, fabricates, assembles, processes, or labels a finished cigarette.
(22) “Counterfeit cigarettes” means cigarettes that have false manufacturing labels, tobacco product packs with counterfeit tax stamps, or any combination thereof.
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; s. 1, ch. 2005-228; s. 2, ch. 2009-79; s. 1, ch. 2012-208.
210.011 Cigarette surcharge levied; collection.—
(1) A surcharge, in addition to all other taxes of every kind levied by law, is levied upon the sale, receipt, purchase, possession, consumption, handling, distribution, and use of cigarettes in this state, in the following amounts, except as otherwise provided in subsections (2)-(5), for cigarettes of standard dimensions:
(a) Upon all cigarettes weighing not more than 3 pounds per thousand, 5 cents on each cigarette.
(b) Upon all cigarettes weighing more than 3 pounds per thousand and not more than 6 inches long, 10 cents on each cigarette.
(c) Upon all cigarettes weighing more than 3 pounds per thousand and more than 6 inches long, 20 cents on each cigarette.
(2) The descriptions of cigarettes contained in subsection (1) are declared to be standard as to dimensions for the purpose of levying a surcharge as provided in this section. If any cigarette is received, purchased, possessed, sold, offered for sale, given away, or used which is of a size other than those standard dimensions, the cigarette is subject to a surcharge at the rate of 4.2 cents on each cigarette.
(3) When cigarettes as described in paragraph (1)(a) are packed in varying quantities of 20 cigarettes or fewer, except the manufacturer’s free samples authorized under s. 210.04(9), the following rates shall govern:
(a) Packages containing 10 cigarettes or fewer require a surcharge of 50 cents.
(b) Packages containing more than 10 but not more than 20 cigarettes require a surcharge of $1.
(4) When cigarettes as described in paragraph (1)(b) are packed in varying quantities of 20 cigarettes or fewer, except the manufacturer’s free samples authorized under s. 210.04(9), the following rates shall govern:
(a) Packages containing 10 cigarettes or fewer require a surcharge of $1.
(b) Packages containing more than 10 but not more than 20 cigarettes require a surcharge of $2.
(5) When cigarettes as described in paragraph (1)(c) are packed in varying quantities of 20 cigarettes or fewer, except the manufacturer’s free samples authorized under s. 210.04(9), the following rates shall govern:
(a) Packages containing 10 cigarettes or fewer require a surcharge of $2.
(b) Packages containing more than 10 but not more than 20 cigarettes require a surcharge of $4.
(6) This surcharge 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 such sale or transfer is to the ultimate purchaser or consumer. The seller or dealer shall collect the surcharge from the purchaser or consumer, and the purchaser or consumer shall pay the surcharge to the seller. The seller or dealer is responsible for the collection of the surcharge and payment of the surcharge to the division. All surcharges 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 surcharge due for a given period is assessed without allocating it to any particular month, the interest begins accruing on 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 is responsible for the surcharge on the cigarettes and payment of the surcharge to the division.
(7) It is the legislative intent that the surcharge on cigarettes be uniform throughout the state.
(8) The surcharge levied under this section shall be administered, collected, and enforced in the same manner as the tax imposed under s. 210.02.
(9) Revenue produced from the surcharge levied under this section shall be deposited into the Health Care Trust Fund within the Agency for Health Care Administration.
History.—s. 3, ch. 2009-79.
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 certified check or electronic funds transfer.—
(1) The Secretary of Business and Professional Regulation may require a dealer who sells cigarettes within the state to remit by certified check or electronic funds transfer any tax imposed under s. 210.02.
(2) The Secretary of Business and Professional Regulation shall require for a period not to exceed 12 months that a dealer or agent, during the dealer’s or agent’s initial period of licensure or appointment, remit by certified check or electronic funds transfer any tax imposed under s. 210.02.
(3) The division shall adopt rules pursuant to ss. 120.536(1) and 120.54 to administer this section.
History.—s. 2, ch. 89-153; s. 26, ch. 89-356; s. 14, ch. 94-218; s. 1489, ch. 95-147; s. 2, ch. 2005-228.
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 surcharge and tax stamps provided copies of shipping invoices on such cigarettes are furnished, and payment of all surcharges and taxes imposed on such cigarettes by law is made, directly to the division not later than the 10th day of each calendar month. The surcharge and tax on cigarettes in sample packages shall be based on a unit in accordance with the surcharges levied under s. 210.011(1) and 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; s. 4, ch. 2009-79.
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.
(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) Cigarettes sold to the Seminole Indian Tribe of Florida shall be administered as provided in s. 210.1801.
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; s. 9, ch. 2009-79; s. 2, ch. 2012-208.
210.06 Affixation of stamps; presumption.—
(1) Every dealer within the state shall affix or cause to be affixed to such package or container of such cigarettes such stamps as are required under this section within 10 days after receipt of such products. Dealers outside this state shall affix such stamps before the shipment of cigarettes into this state.
(a) A tax stamp shall be applied to all cigarette packages intended for sale or distribution to consumers subject to the tax imposed under s. 210.02, except as otherwise provided in this part.
(b) No stamp shall be applied to any cigarette package exempt from tax under 26 U.S.C. s. 5704 that is distributed by a manufacturer pursuant to federal regulations.
(c) Dealers may apply stamps only to cigarette packages received directly from a manufacturer or importer of cigarettes, or a distributing agent representing a manufacturer or importer of cigarettes, who possesses a valid and current permit under this part.
(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.
(5) Except as provided in s. 210.04(9) or s. 210.09(1), no person, other than a dealer or distributing agent that receives unstamped cigarette packages directly from a cigarette manufacturer or importer in accordance with this section and s. 210.085, shall hold or possess an unstamped cigarette package. Dealers shall be permitted to set aside, without application of stamps, only such part of the dealer’s stock that is identified for sale or distribution outside this state. If a dealer maintains stocks of unstamped cigarette packages, such unstamped packages shall be stored separately from stamped product packages. No unstamped cigarette packages shall be transferred by a dealer to another facility of the dealer within this state or to another person within this state.
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; s. 3, ch. 2005-228.
210.07 Machines.—
(1) 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 retail dealer owning, leasing, furnishing, or operating the vending machine.
(2) A person may not operate a vending machine in the state unless the identification sticker required by this section is affixed to the vending machine. A person may not operate a vending machine in the state which 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 affixed thereto are clearly visible. A person, firm, or corporation operating a cigarette vending machine in this state must furnish to the division the location of the vending machine and 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; s. 3, ch. 2012-208.
210.08 Bond for payment of taxes.—Each dealer, agent, or distributing agent shall file with the division a surety bond, certificate of deposit, or irrevocable letter of credit acceptable to the division in an amount equal to 110 percent of the estimated tax liability for 30 days, but not less than $2,000.
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; s. 32, ch. 2002-299; s. 4, ch. 2005-228.
210.085 Transactions only with permitted manufacturers, importers, distributing agents, dealers, and retail dealers.—Except as otherwise provided in s. 210.04(9), a manufacturer or importer, or a distributing agent representing a manufacturer or importer, may sell or distribute cigarettes to a person located or doing business within this state only if such person is a dealer or importer with a valid, current permit under s. 210.15. A distributing agent may accept cigarettes from a manufacturer or importer with a valid, current permit for transfer to a dealer with a valid, current permit but may not own or sell cigarettes. A dealer may sell or distribute cigarettes to a person located or doing business within this state only if such person is a dealer or retail dealer with a valid, current permit under s. 569.003. A dealer may obtain cigarettes only from a manufacturer or importer or from a distributing agent or dealer with a valid, current permit under s. 210.15. A retail dealer may obtain cigarettes only from a dealer with a valid, current permit under s. 210.15.
History.—s. 5, ch. 2005-228.
210.09 Records to be kept; reports to be made; examination.—
(1)(a) 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.
(b) Any person who ships unstamped cigarette packages into this state other than to a manufacturer, an importer, or a distributing agent representing a manufacturer or an importer, or dealer holding a valid, current permit pursuant to s. 210.15 shall first file with the division a notice of such shipment. This paragraph shall not apply to any common or contract carrier that:
1. Is transporting cigarettes through this state to another location outside this state under a proper bill of lading or freight bill that states the quantity, source, and destination of such cigarettes or to cigarettes shipped or otherwise transported pursuant to s. 210.04(9); or
2. Does not issue paper bills of lading or freight bills and does not obtain specific information about the contents of the shipment that includes a description of the freight carried but uses electronic shipping documents as part of its ordinary course of business to provide transportation services for individually addressed packages weighing less than 150 pounds, which electronic shipping documents shall be made available for inspection upon request.
(c) In any case in which the division or its duly authorized agent, or any law enforcement officer of this state, has probable cause to believe that any vehicle is transporting cigarettes in violation of this part, the division, such agent, or such law enforcement officer is authorized to stop such vehicle and inspect the vehicle for contraband cigarettes.
(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 manufacturer, importer, 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 manufacturers, importers, 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 manufacturers, importers, 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 manufacturers, importers, wholesalers, 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; s. 6, ch. 2005-228.
210.095 Mail order, Internet, and remote sales of tobacco products; age verification.—
(1) For purposes of this section, the term:
(a) “Adult” means an individual who is at least of the legal minimum purchase age for tobacco products.
(b) “Consumer” means a person in this state who comes into possession of any tobacco product subject to the tax imposed by this chapter and who, at the time of possession, is not a distributor intending to sell or distribute the tobacco product, a retailer, or a wholesaler.
(c) “Delivery sale” means any sale of tobacco products to a consumer in this state for which:
1. The consumer submits the order for the sale by telephonic or other voice transmission, mail, delivery service, or the Internet or other online service; or
2. The tobacco products are delivered by use of mail or a delivery service.
(d) “Delivery service” means any person engaged in the commercial delivery of letters, packages, or other containers.
(e) “Legal minimum purchase age” means the minimum age at which an individual may legally purchase tobacco products in this state.
(f) “Mail” or “mailing” means the shipment of tobacco products through the United States Postal Service.
(g) “Retailer” means any person who is not a licensed distributor but who is in possession of tobacco products subject to tax under this chapter for the purposes of selling the tobacco products to consumers.
(h) “Shipping container” means a container in which tobacco products are shipped in connection with a delivery sale.
(i) “Shipping document” means a bill of lading, airbill, United States Postal Service form, or any other document used to verify the undertaking by a delivery service to deliver letters, packages, or other containers.
(j) “Tobacco products” means all cigarettes, smoking tobacco, snuff, fine-cut chewing tobacco, cut and granulated tobacco, cavendish, and plug or twist tobacco.
(2)(a) A sale of tobacco products constituting a delivery sale pursuant to paragraph (1)(c) is a delivery sale regardless of whether the person accepting the order for the delivery sale is located inside or outside this state.
(b) A retailer must obtain a license from the division pursuant to the requirements of this chapter before accepting an order for a delivery sale.
(c) A person may not make a delivery sale of tobacco products to any individual who is not an adult.
(d) Each person accepting an order for a delivery sale must comply with each of the following:
1. The age-verification requirements set forth in subsection (3).
2. The disclosure requirements set forth in subsection (4).
3. The shipping requirements set forth in subsection (5).
4. The registration and reporting requirements set forth in subsection (6).
5. The tax collection requirements set forth in subsection (7).
6. The licensing and tax stamp requirements set forth in this chapter which apply to sales of tobacco products occurring entirely in this state.
7. All laws of this state generally applicable to sales of tobacco products occurring entirely in this state which impose excise taxes and assessments.
(3) A person may not mail, ship, or otherwise deliver tobacco products in connection with an order for a delivery sale unless, before the first delivery to the consumer, the person accepting the order for the delivery sale:
(a) Obtains from the individual submitting the order a certification that includes:
1. Reliable confirmation that the individual is an adult; and
2. A statement signed by the individual in writing and under penalty of perjury which:
a. Certifies the address and date of birth of the individual; and
b. Confirms that the individual wants to receive delivery sales from a tobacco company and understands that, under the laws of this state, the following actions are illegal:
(I) Signing another individual’s name to the certification;
(II) Selling tobacco products to individuals under the legal minimum purchase age; and
(III) Purchasing tobacco products, if the person making the purchase is under the legal minimum purchase age.
(b) Makes a good faith effort to verify the information contained in the certification provided by the individual pursuant to paragraph (a) against a commercially available database that may be reasonably relied upon for accurate age information or obtains a photocopy or other image of a valid government-issued identification card stating the date of birth or age of the individual.
(c) Provides to the individual, via electronic mail or other means, a notice meeting the requirements of subsection (4).
(d) If an order for tobacco products is made pursuant to an advertisement on the Internet, receives payment for the delivery sale from the consumer by a credit or debit card issued in the name of the consumer, or by personal or company check of the consumer.
(e) Imposes a two-carton minimum on each order of cigarettes, and requires payment for the purchase of any tobacco product to be made by personal or company check of the purchaser or the purchaser’s credit card or debit card. Payment by money order or cash may not be received or permitted. The person accepting the order for delivery sale shall submit, to each credit card acquiring company with which the person has credit card sales, identification information in an appropriate form and format so that the words “tobacco product” may be printed in the purchaser’s credit card statement when a purchase of a tobacco product is made by credit card payment.
(f) Makes a telephone call after 5 p.m. to the purchaser confirming the order before shipping the tobacco products. The telephone call may be a person-to-person call or a recorded message. The person accepting the order for delivery sale is not required to speak directly with a person and may leave a message on an answering machine or through voice mail.
In addition to the requirements of this subsection, a person accepting an order for a delivery sale may request that a consumer provide an electronic mail address.
(4) The notice described in paragraph (3)(c) must include prominent and clearly legible statements that sales of tobacco products are:
(a) Illegal if made to individuals who are not adults.
(b) Restricted to those individuals who provide verifiable proof of age in accordance with subsection (3).
(c) Taxable under this chapter.
The notice must include an explanation of how each tax has been, or is to be, paid with respect to the delivery sale.
(5) Each person who mails, ships, or otherwise delivers tobacco products in connection with an order for a delivery sale must:
(a) Include as part of the shipping documents, in a clear and conspicuous manner, the following statement: “Tobacco Products: Florida law prohibits shipping to individuals under 18 years of age and requires the payment of all applicable taxes.”
(b) Use a method of mailing, shipping, or delivery which obligates the delivery service to require:
1. The individual submitting the order for the delivery sale or another adult who resides at the individual’s address to sign his or her name to accept delivery of the shipping container. Proof of the legal minimum purchase age of the individual accepting delivery is required only if the individual appears to be under 27 years of age.
2. Proof that the individual is either the addressee or the adult designated by the addressee, in the form of a valid, government-issued identification card bearing a photograph of the individual who signs to accept delivery of the shipping container.
(c) Provide to the delivery service, if such service is used, evidence of full compliance with subsection (7).
If the person accepting a purchase order for a delivery sale delivers the tobacco products without using a delivery service, the person must comply with all of the requirements of this section which apply to a delivery service. Any failure to comply with a requirement of this section constitutes a violation thereof.
(6)(a) Before making sales or shipping tobacco products in connection with sales, a person shall file with the division a statement providing the person’s name, trade name, and the address of the person’s principal place of business, as well as any other place of business.
(b) No later than the 10th day of each month, each person who has made a sale or mailed, shipped, or otherwise delivered tobacco products in connection with any sale during the previous calendar month shall file with the division a memorandum or a copy of the invoice, providing for each sale:
1. The name and address of the individual who submitted the order for the sale.
2. The name and address of the individual who accepted delivery of the tobacco products.
3. The name and address of the person who accepted the order for the sale of the tobacco products.
4. The name and address of the delivery service and the name of the individual making the delivery.
5. The brand or brands of the tobacco products sold in the sale.
6. The quantity of each brand of tobacco products sold in the sale.
(c) A person may comply with the requirements of this subsection by complying with the requirements of 15 U.S.C. s. 376.
(d) This section does not apply to sales of tobacco products by a licensed distributor or to sales of tobacco products by a retailer purchased from a licensed distributor.
(7) Each person accepting a purchase order for a delivery sale shall collect and remit to the division all taxes imposed on tobacco products by this state with respect to the delivery sale. With respect to cigarettes, the collection and remission are not required if the person has obtained proof in the form of the presence of applicable tax stamps or tax-exempt stamps, or other proof that the taxes have already been paid to this state.
(8)(a) Except as otherwise provided in this section, a violation of this section by a person other than an individual who is not an adult is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, and:
1. For a first violation of this section, the person shall be fined $1,000 or five times the retail value of the tobacco products involved in the violation, whichever is greater.
2. For a second or subsequent violation of this section, the person shall be fined $5,000 or five times the retail value of the tobacco products involved in the violation, whichever is greater.
(b) A person who is an adult and knowingly submits a false certification under subsection (3) commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. For each offense, the person shall be fined $10,000 or five times the retail value of the tobacco products involved in the violation, whichever is greater.
(c) A person who fails to pay any tax required in connection with a delivery sale shall pay, in addition to any other penalty, a penalty of five times the retail value of the tobacco products involved.
(d) Any tobacco products sold or attempted to be sold in a delivery sale not meeting the requirements of this section shall be forfeited to the state pursuant to s. 210.185.
(e) A person who, in connection with a delivery sale, delivers tobacco products on behalf of a delivery service to an individual who is not an adult commits a misdemeanor of the 1third degree, punishable as provided in s. 775.082 or s. 775.083.
(f) Any fixture, equipment, or other material or personal property on the premises of any person who, with the intent to defraud this state, mails or ships tobacco products into this state and fails to satisfy any of the requirements of this section is a contraband article within the definition of s. 932.701(2)(a)3.
(g) An individual who is not an adult and who knowingly violates any provision of this section commits a misdemeanor of the 1third degree, punishable as provided in s. 775.082 or s. 775.083.
(9) The Attorney General, the Attorney General’s designee, a state attorney, or any person who holds a permit under 26 U.S.C. s. 5713 may bring an action in the appropriate court in this state to prevent or restrain violations of this section by any person.
History.—s. 5, ch. 2009-79.
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, 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, 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 after 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 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; s. 4, ch. 2012-208.
210.12 Seizures; forfeiture proceedings.—
(1) The state, acting by and through the division, may seize, confiscate, and forfeit any cigarettes upon which taxes payable hereunder may be unpaid or which are otherwise held in violation of the requirements of this chapter, and also any vending machine or receptacle in which cigarettes upon which taxes have not been paid are held for sale, or any vending machine that does not have affixed thereto the identification sticker required by s. 210.07, or that 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 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) All fixtures, equipment, and other materials and personal property on the premises of any dealer, retail dealer, or distributing agent who, with intent to defraud the state, fails to keep or make any record, return, report, or inventory required by this part; keeps or makes any false or fraudulent record, return, report, or inventory required by this part; refuses to pay any tax imposed by this part; or attempts in any manner to evade or defeat the requirements of this part shall be forfeited to the state as provided by the Florida Contraband Forfeiture Act.
(3) All cigarettes seized, confiscated, and forfeited to the state under this part shall be destroyed.
(4) 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.
(5) 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.
(6) 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.
(7) 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.
(8) 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; s. 7, ch. 2005-228; s. 5, ch. 2012-208.
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 engage in business as a manufacturer, importer, exporter, distributing agent, or wholesale dealer of cigarettes within this state shall file with the division an application for a cigarette permit for each place of business located within this state or, in the absence of such place of business in this state, for wherever its principal place of business is located. 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, if any, 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.
(b) Permits shall be issued only to persons of good moral character, who are not less than 18 years of age. 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.
(c) No permit under this part or chapter 569 shall be issued, maintained, or renewed if the applicant, its officers, or any person or persons owning directly or indirectly, in the aggregate, more than 10 percent of the ownership interests in the applicant:
1. Has been finally adjudicated as owing $500 or more in delinquent cigarette taxes;
2. Had a permit revoked by the division within the previous 2 years;
3. Has been convicted of selling stolen or counterfeit cigarettes, receiving stolen cigarettes, or being involved in the counterfeiting of cigarettes;
4. Has been convicted within the past 5 years of any offense against the cigarette laws of this state or 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 “convicted” 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;
5. Has imported, or caused to be imported, into the United States any cigarette in violation of 19 U.S.C. s. 1681a; or
6. Has imported, or caused to be imported, into the United States, or manufactured for sale or distribution in the United States, any cigarette that does not fully comply with the Federal Cigarette Labeling and Advertising Act (15 U.S.C. ss. 1331 et seq.).
(d) The division may refuse to issue a permit to any person, firm, or corporation whose permit under the cigarette law has been revoked, 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 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 manufacturer, importer, distributing agent, 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 permits issued under this section shall be renewed from year to year 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 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; s. 8, ch. 2005-228; s. 6, ch. 2012-208.
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 person receiving a permit to engage in business under this part or chapter 569 for violation of any of the provisions of this part or chapter 569.
(2) The division shall revoke the permit or permits of any person who would be ineligible to obtain a new license or renew a license by reason of any of the conditions for permitting provided in s. 210.15(1)(c)1.-6.
(3) The division may suspend for a reasonable period of time or revoke, in its discretion, the permits issued under the provisions of this part or chapter 569 to any person who has violated any other provision of this part or chapter 569.
(4) At the discretion of the wholesale dealer making the sale, credit for the sale of tobacco products may be extended to a retail dealer that has been issued a permit pursuant to chapter 569. Upon submission of proof to the division by a wholesale dealer, the division shall suspend or deny the renewal of a retail permit to any person or, if a corporation, to any officer or stockholder of the corporation who has failed to satisfy the terms of a civil judgment obtained against the person, corporation, officer, or stockholder for failure to pay for tobacco products purchased from a wholesale dealer. The permit shall remain suspended until the retail dealer submits proof to the division that it has entered into an agreed payment plan with the wholesale dealer or satisfied the civil judgment in full.
(5) No person whose permit for any place of business has been revoked shall engage in business under this part or chapter 569 at such place of business after such revocation until a new permit is issued. No person 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 2 years after the date such revocation becomes final.
(6) In addition to 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 $2,500 for each offense, and all amounts collected shall be deposited with the Chief Financial Officer 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; s. 180, ch. 2003-261; s. 9, ch. 2005-228; s. 1, ch. 2012-72.
210.1605 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.
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) Except as otherwise provided in this section, any person who fails, neglects, or refuses to comply with, or violates the provisions of, this part or the rules adopted by the division under this part commits 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.
(3) Any person who falsely or fraudulently makes, forges, alters, or counterfeits any stamp prescribed by the division under the provisions of this part; or causes or procures to be falsely or fraudulently made, forged, altered, or counterfeited any such stamp; or knowingly and willfully utters, purchases, passes or tenders as true any such false, altered, or counterfeited stamp; or, with the intent to defraud the state, fails to comply with any other requirement of this part commits 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 is presumed to have knowledge that they have not been taxed and commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) 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, police officer, or state law enforcement 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. The division shall keep records showing the number of seizures and seized cigarettes reported to, or seized by, the division.
(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.
(9) Notwithstanding any other provision of law, the sale or possession for sale of counterfeit cigarettes by any person or by a manufacturer, importer, distributing agent, wholesale dealer, or retail dealer shall result in the seizure of the product and related machinery by the division or any law enforcement agency.
(10) It is unlawful to sell or possess with the intent to sell counterfeit cigarettes, as defined in s. 210.01(22).
(a) A person who does not hold a permit or holds a retail permit under the provisions of this chapter and who violates this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, and is subject to the imposition of fines and additional penalties as follows:
1. If the quantity of counterfeit cigarettes sold or possessed with the intent to sell is less than two cartons or the equivalent, the fine for a first violation shall not exceed $1,000 or five times the retail value of the counterfeit cigarettes, whichever is greater. A subsequent violation may result in the imposition of a fine not to exceed $5,000 or five times the retail value of the counterfeit cigarettes, whichever is greater, and shall result in revocation of the retail permit by the division.
2. If the quantity of counterfeit cigarettes sold or possessed with the intent to sell is two cartons or more or the equivalent, the fine for a first violation shall not exceed $2,000 or five times the retail value of the counterfeit cigarettes, whichever is greater. A subsequent violation may result in the imposition of a fine not to exceed $50,000 or five times the retail value of the counterfeit cigarettes, whichever is greater, and shall result in revocation of the retail permit by the division.
(b) A person who holds a permit, other than a retail permit, under the provisions of this chapter and who violates this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, and is subject to the imposition of fines and additional penalties as follows:
1. If the quantity of counterfeit cigarettes sold or possessed with the intent to sell is less than 10 cartons or the equivalent, the fine for a first violation shall not exceed $1,000 or five times the retail value of the counterfeit cigarettes, whichever is greater. A subsequent violation may result in the imposition of a fine not to exceed $5,000 or five times the retail value of the counterfeit cigarettes, whichever is greater, and shall result in revocation of the permit by the division.
2. If the quantity of counterfeit cigarettes sold or possessed with the intent to sell is 10 cartons or more or the equivalent, the fine for a first violation shall not exceed $2,000 or five times the retail value of the counterfeit cigarettes, whichever is greater. A subsequent violation may result in the imposition of a fine not to exceed $50,000 or five times the retail value of the counterfeit cigarettes, whichever is greater, and shall result in revocation of the permit by the division.
For purposes of this subsection, any counterfeit cigarettes seized by the division shall be destroyed.
(11) The division shall create a toll-free number for reporting violations of this part. Upon a determination that a violation has occurred, the informant who provided the information that led to the determination shall be paid a reward of up to 50 percent of the fine levied and paid under this section. A notice must be conspicuously displayed in every location where cigarettes are sold which contains the following provision in conspicuous type: “NOTICE TO CUSTOMER: FLORIDA LAW PROHIBITS THE POSSESSION OR SALE OF UNSTAMPED CIGARETTES. REPORT VIOLATIONS TO (TOLL-FREE NUMBER). YOU MAY BE ELIGIBLE FOR A CASH REWARD.” This notice must be provided at the expense of the retail dealer.
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; s. 10, ch. 2005-228; s. 6, ch. 2009-79; s. 7, ch. 2012-208.
210.1801 Exempt cigarettes for members of recognized Indian tribes.—
(1) Notwithstanding any provision of this chapter to the contrary, a member of an Indian tribe recognized in this state who purchases cigarettes on an Indian reservation for his or her own use is exempt from paying a cigarette tax and surcharge. However, such member purchasing cigarettes outside of an Indian reservation or a nontribal member purchasing cigarettes on an Indian reservation is not exempt from paying the cigarette tax or surcharge when purchasing cigarettes within this state. Accordingly, the tax and surcharge shall apply to all cigarettes sold on an Indian reservation to a nontribal member, and evidence of such tax or surcharge shall be by means of an affixed cigarette tax and surcharge stamp.
(2) In order to ensure an adequate quantity of cigarettes on Indian reservations which may be purchased by tribal members who are exempt from the cigarette tax and surcharge, the division shall provide recognized Indian tribes within this state with Indian-tax-and-surcharge-exemption coupons as set forth in this section. A reservation cigarette seller shall present such Indian-tax-and-surcharge-exemption coupons to a wholesale dealer licensed in this state in order to purchase stamped cigarettes that are exempt from the imposition of the cigarette tax and surcharge. A tribal member may purchase cigarettes that are exempt from the cigarette tax and surcharge from a reservation cigarette seller even though such cigarettes have an affixed cigarette tax-and-surcharge stamp.
(3) Indian-tax-and-surcharge-exemption coupons shall be provided to the recognized governing body of each Indian tribe to ensure that each Indian tribe can obtain cigarettes that are exempt from the tax and surcharge which are for the use of the tribe or its members. The Indian-tax-and-surcharge-exemption coupons shall be provided to the Indian tribes quarterly. It is intended that each Indian tribe will distribute the Indian-tax-and-surcharge-exemption coupons to reservation cigarette sellers on such tribe’s reservation. Only Indian tribes or reservation cigarette sellers on their reservations may redeem such Indian-tax-and-surcharge-exemption coupons pursuant to this section.
(a) The number of Indian-tax-and-surcharge-exemption coupons to be given to the recognized governing body of each Indian tribe shall be based upon the probable demand of the tribal members on the tribe’s reservation plus the number needed for official tribal use. The annual total number of Indian-tax-and-surcharge-exemption coupons to be given to the recognized governing body of each Indian tribe shall be calculated by multiplying the number of members of the tribe times five packs of cigarettes times 365.
(b) Each wholesale dealer shall keep records of transactions involving Indian-tax-and-surcharge-exemption coupons and shall submit appropriate documentation to the division when claiming a refund as set forth in this section. Documentation must contain at least the following information:
1. The identity of the Indian tribe from which an Indian-tax-and-surcharge-exemption coupon is received;
2. The identity and the quantity of the product for which an Indian-tax-and-surcharge-exemption coupon is provided;
3. The date of issuance and the date of expiration of the Indian-tax-and-surcharge-exemption coupon; and
4. Any other information as the division may deem appropriate.
(4)(a) An Indian tribe may purchase cigarettes for its own official use from a wholesale dealer without payment of the cigarette tax and surcharge to the extent that the Indian tribe provides the wholesale dealer with Indian-tax-and-surcharge-exemption coupons entitling the Indian tribe to purchase such quantities of cigarettes as allowed by each Indian-tax-and-surcharge-exemption coupon without paying the cigarette tax and surcharge.
(b) A tribal member may purchase cigarettes for his or her own use without payment of the cigarette tax and surcharge if the tribal member makes such purchase on a qualified reservation.
(c) A reservation cigarette seller may purchase cigarettes for resale without payment of the cigarette tax from a wholesale dealer licensed pursuant to this chapter:
1. If the reservation cigarette seller brings the cigarettes or causes them to be delivered onto a qualified reservation for resale on the reservation;
2. To the extent that the reservation cigarette seller provides the wholesale dealer with Indian-tax-and-surcharge-exemption coupons entitling the reservation cigarette seller to purchase such quantities of cigarettes as allowed on each Indian-tax-and-surcharge-exemption coupon without paying the cigarette tax and surcharge; and
3. If the cigarettes are affixed with a cigarette tax and surcharge stamp.
(d) A wholesale dealer may not collect the cigarette tax and surcharge from any purchaser if the purchaser gives the dealer Indian-tax-and-surcharge-exemption coupons that entitle the purchaser to purchase such quantities of cigarettes as allowed on each such Indian-tax-and-surcharge-exemption coupon without paying the cigarette tax and surcharge.
(5) A wholesale dealer who has one or more Indian-tax-and-surcharge-exemption coupons may file a claim for a refund with respect to any cigarette tax previously paid on cigarettes that the wholesale dealer sold without collecting the tax because the dealer accepted an Indian-tax-and-surcharge-exemption coupon from a purchaser pursuant to this section.
(6) If an Indian tribe enters into an agreement with the state and the Legislature approves such agreement regarding the sale and distribution of cigarettes on the tribe’s reservation, the terms of the agreement take precedence over the provisions of this section and exempt the tribe from the tax and surcharge if the tax and surcharge are specifically addressed in the agreement. The sale or distribution, including transportation, of any cigarettes to the tribe’s reservation shall be in accordance with the provisions of the agreement. The agreement must provide for revenue sharing between the tribe and the state relating to the imposition and collection of the taxes imposed by ss. 210.02 and 210.30 and the surcharges imposed by ss. 210.011 and 210.276 and must, at a minimum, provide for the state to receive as revenue sharing from the tribe the full amounts of the surcharges imposed by ss. 210.011 and 210.276.
History.—s. 10, ch. 2009-79; s. 31, ch. 2010-5.
210.181 Civil penalties.—
(1) Except as provided in s. 210.16(6), whoever knowingly omits, neglects, or refuses to comply with any duty imposed upon him or her by this part, or to do or cause to be done any of the things required by this part, or does anything prohibited by this part shall, in addition to any other penalty provided in this part, be liable for a fine of $1,000 or five times the retail value of the cigarettes involved, whichever is greater.
(2) Whoever fails to pay any tax imposed by this part at the time prescribed by law or rules shall, in addition to any other penalty provided in this part, be liable for a penalty of five times the unpaid tax due.
History.—s. 11, ch. 2005-228; s. 2, ch. 2012-72.
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 Chief Financial Officer 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.
1(b) Beginning July 1, 2004, and continuing through June 30, 2013, the division shall from month to month certify to the Chief Financial Officer 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 1.47 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. 1004.43, by warrant drawn by the Chief Financial Officer. Beginning July 1, 2013, and continuing through June 30, 2033, the division shall from month to month certify to the Chief Financial Officer 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 2.75 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. 1004.43, by warrant drawn by the Chief Financial Officer. These funds are appropriated monthly out of the Cigarette Tax Collection Trust Fund, to be used for lawful purposes, including constructing, furnishing, equipping, financing, operating, and maintaining cancer research and clinical and related facilities; furnishing, equipping, operating, and maintaining other properties owned or leased by the H. Lee Moffitt Cancer Center and Research Institute; and paying costs incurred in connection with purchasing, financing, operating, and maintaining such equipment, facilities, and properties. In fiscal years 2004-2005 and thereafter, the appropriation to the H. Lee Moffitt Cancer Center and Research Institute authorized by this subparagraph shall not be less than the amount that would have been paid to the H. Lee Moffitt Cancer Center and Research Institute in fiscal year 2001-2002, had this subparagraph been in effect.
1(c) Beginning July 1, 2013, and continuing through June 30, 2021, the division shall from month to month certify to the Chief Financial Officer 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 1 percent of the net collections, and that amount shall be deposited into the Biomedical Research Trust Fund in the Department of Health. These funds are appropriated annually in an amount not to exceed $3 million from the Biomedical Research Trust Fund for the Department of Health and the Sanford-Burnham Medical Research Institute to work in conjunction for the purpose of establishing activities and grant opportunities in relation to biomedical research.
(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; s. 32, ch. 2001-60; s. 914, ch. 2002-387; s. 2, ch. 2002-393; s. 18, ch. 2003-1; s. 181, ch. 2003-261; s. 1, ch. 2009-58; s. 3, ch. 2012-32.
1Note.—Section 25, ch. 2012-32, provides that:
“(1) The executive director of the Department of Revenue is authorized, and all conditions are deemed met, to adopt emergency rules under ss. 120.536(1) and 120.54(4), Florida Statutes, for the purpose of implementing this act.
“(2) Notwithstanding any provision of law, such emergency rules shall remain in effect for 6 months after the date adopted and may be renewed during the pendency of procedures to adopt permanent rules addressing the subject of the emergency rules.”
1210.201 H. Lee Moffitt Cancer Center and Research Institute facilities; 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 and clinical and related facilities of the H. Lee Moffitt Cancer Center and Research Institute funded with proceeds from the Cigarette Tax Collection Trust Fund pursuant to s. 210.20. Moneys transferred to the Board of Directors of the H. Lee Moffitt Cancer Center and Research Institute pursuant to s. 210.20 may be used to secure financing to pay costs related to constructing, furnishing, equipping, operating, and maintaining cancer research and clinical and related facilities; furnishing, equipping, operating, and maintaining other leased or owned properties; and paying costs incurred in connection with purchasing, financing, operating, and maintaining such equipment, facilities, and properties as provided in s. 210.20. Such financing may include the issuance of tax-exempt bonds or other forms of indebtedness 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 facilities pursuant to s. 210.20 may be replaced annually by the Legislature from tobacco litigation settlement proceeds.
History.—s. 2, ch. 98-286; s. 3, ch. 2002-393; s. 4, ch. 2012-32.
1Note.—Section 25, ch. 2012-32, provides that:
“(1) The executive director of the Department of Revenue is authorized, and all conditions are deemed met, to adopt emergency rules under ss. 120.536(1) and 120.54(4), Florida Statutes, for the purpose of implementing this act.
“(2) Notwithstanding any provision of law, such emergency rules shall remain in effect for 6 months after the date adopted and may be renewed during the pendency of procedures to adopt permanent rules addressing the subject of the emergency rules.”
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.
PART II
TAX ON TOBACCO PRODUCTS OTHERTHAN CIGARETTES OR CIGARS
210.25 Definitions.
210.276 Surcharge on tobacco products.
210.30 Tax on tobacco products; exemptions.
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.
210.276 Surcharge on tobacco products.—
(1) A surcharge is levied upon all tobacco products in this state and upon any person engaged in business as a distributor of tobacco products at the rate of 60 percent of the wholesale sales price. The surcharge shall be levied 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. A surcharge may not be levied on tobacco products shipped or transported outside this state for sale or use outside this state.
(2) A surcharge is imposed upon the use or storage by consumers of tobacco products in this state and upon such consumers at the rate of 60 percent of the wholesale sales price. The surcharge imposed by this subsection does not apply if the surcharge imposed by subsection (1) on such tobacco products has been paid. This surcharge does 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 surcharge has once been imposed under this section is not again subject to surcharge under this section.
(4) No surcharge shall be imposed by this section 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) also apply to tobacco products subject to a surcharge under this section.
(6) The surcharge levied under this section shall be administered, collected, and enforced in the same manner as the tax imposed under s. 210.30.
(7) Revenue produced from the surcharge levied under this section shall be deposited into the Health Care Trust Fund within the Agency for Health Care Administration.
History.—s. 7, ch. 2009-79.
210.30 Tax on tobacco products; exemptions.—
(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 Chief Financial Officer 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; s. 182, ch. 2003-261.
210.51 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.
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.