Senate Bill 2120

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    Florida Senate - 1998                                  SB 2120

    By Senators Harris and Latvala





    24-301B-98

  1                      A bill to be entitled

  2         An act relating to the shipment of wine;

  3         amending s. 561.545, F.S.; decreasing the

  4         penalty imposed for the offense of shipping or

  5         transporting any alcoholic beverage from an

  6         out-of-state location directly to a person in

  7         this state; providing for the penalty to remain

  8         unchanged if the person who receives the

  9         alcoholic beverage is less than 21 years of

10         age; providing that the prohibition against

11         shipping alcoholic beverages to state residents

12         does not apply to the direct shipment of wine

13         from outside the state to an individual of a

14         specified age or older for personal use and not

15         for resale; prohibiting the shipment of more

16         than a specified amount of wine to the same

17         individual within a specified period; amending

18         ss. 562.15, 562.16, F.S., relating to a

19         prohibition against possessing alcoholic

20         beverages on which taxes have not been paid;

21         providing that such prohibition is inapplicable

22         to the possession of wine shipped directly to

23         an individual from outside the state for

24         personal use and not for resale; limiting the

25         amount of such wine an individual may receive

26         within a specified period; amending s. 564.06,

27         F.S.; providing that certain excise taxes on

28         wine are not required for wine shipped directly

29         from outside the state for personal use and not

30         for resale; providing that the delivery of such

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    Florida Senate - 1998                                  SB 2120
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  1         wine does not constitute a sale for purposes of

  2         the Beverage Law; providing an effective date.

  3

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

  5

  6         Section 1.  Section 561.545, Florida Statutes, is

  7  amended to read:

  8         561.545  Certain shipments of beverages prohibited;

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

10  shipment of alcoholic beverages by persons in the business of

11  selling alcoholic beverages to residents of this state in

12  violation of the Beverage Law poses a serious threat to the

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

14  collections; and to the economy of the state.  The Legislature

15  further finds that the penalties for illegal direct shipment

16  of alcoholic beverages to residents of this state should be

17  made adequate to ensure compliance with the Beverage Law and

18  that the measures provided for in this section are fully

19  consistent with the powers conferred upon the state by the

20  Twenty-first Amendment to the United States Constitution.

21         (1)  Any person in the business of selling alcoholic

22  beverages who knowingly and intentionally ships, or causes to

23  be shipped, any alcoholic beverage from an out-of-state

24  location directly to any person in this state who does not

25  hold a valid manufacturer's or wholesaler's license or

26  exporter's registration issued by the Division of Alcoholic

27  Beverages and Tobacco or who is not a state-bonded warehouse

28  is in violation of this section.

29         (2)  Any common carrier or permit carrier or any

30  operator of a privately owned car, truck, bus, or other

31  conveyance who knowingly and intentionally transports any

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    Florida Senate - 1998                                  SB 2120
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  1  alcoholic beverage from an out-of-state location directly to

  2  any person in this state who does not hold a valid

  3  manufacturer's or wholesaler's license or exporter's

  4  registration or who is not a state-bonded warehouse is in

  5  violation of this section.

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

  7  violation of subsection (1) shall be issued a notice, by

  8  certified mail, to show cause why a cease and desist order

  9  should not be issued. Any person who violates subsection (1)

10  within 2 years after receiving a cease and desist order or

11  within 2 years after a prior conviction for violating

12  subsection (1) commits a misdemeanor felony of the first third

13  degree, punishable as provided in s. 775.082 or, s. 775.083,

14  or s. 775.084.

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

16  operator of a privately owned car, truck, bus, or other

17  conveyance found by the division to be in violation of

18  subsection (2) as a result of a second or subsequent delivery

19  from the same source and location, within a 2-year period

20  after the first delivery shall be issued a notice, by

21  certified mail, to show cause why a cease and desist order

22  should not be issued. Any person who violates subsection (2)

23  within 2 years after receiving the cease and desist order or

24  within 2 years after a prior conviction for violating

25  subsection (2) commits a misdemeanor felony of the first third

26  degree, punishable as provided in s. 775.082 or, s. 775.083,

27  or s. 775.084.

28         (5)(a)  Any person in the business of selling alcoholic

29  beverages who knowingly and intentionally ships, or causes to

30  be shipped any alcoholic beverage from an out-of-state

31  location directly to any person in this state who is less than

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    Florida Senate - 1998                                  SB 2120
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  1  21 years of age commits a felony of the third degree,

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

  3  775.084.

  4         (b)  Any common carrier or permit carrier or any

  5  operator of a privately owned car, truck, bus, or other

  6  conveyance who knowingly and intentionally transports any

  7  alcoholic beverage from an out-of-state location directly to

  8  any person in this state who is less than 21 years of age

  9  commits a felony of the third degree, punishable as provided

10  in s. 775.082, s. 775.083, or s. 775.084.

11         (6)(5)  This section does not apply to:

12         (a)  The direct shipment of sacramental alcoholic

13  beverages to bona fide religious organizations as authorized

14  by the division. or to

15         (b)  The possession of alcoholic beverages in

16  accordance with s. 562.15(2).

17         (c)  The direct shipment of wine from outside the state

18  to an individual 21 years of age or older for personal use and

19  not for resale. A person in the business of selling alcoholic

20  beverages may not ship more than four cases of wine per year

21  from outside the state to the same individual, and a single

22  case may not contain more than 9 liters of wine.

23         Section 2.  Section 562.15, Florida Statutes, is

24  amended to read:

25         562.15  Unlawful possession; unpaid taxes.--It is

26  unlawful for any person to own or possess within this state

27  any alcoholic beverage, unless full compliance has been had

28  with the pertinent provisions of the Beverage Law as to

29  payment of excise taxes on beverages of like alcohol content.

30  However, this section does shall not apply to:

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    Florida Senate - 1998                                  SB 2120
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  1         (1)  To Manufacturers or distributors licensed under

  2  the Beverage Law, to state bonded warehouses, or to common

  3  carriers.; or

  4         (2)  To Persons possessing not in excess of 1 gallon of

  5  such beverages if the beverage is shall have been purchased by

  6  the said possessor outside of the state in accordance with the

  7  laws of the place where purchased and shall have been brought

  8  into this state by the said possessor.  The burden of proof

  9  that such beverages were purchased outside the state and in

10  accordance with the laws of the place where purchased shall in

11  all cases be upon the possessor of such beverages.

12         (3)  A person 21 years of age or older who possesses

13  wine shipped directly to him or her from outside the state for

14  personal use and not for resale. A person may not receive by

15  direct shipment more than four cases of wine per year, except

16  that a person may receive up to four cases of wine per week if

17  such person ships the wine directly to himself or herself from

18  a location outside the state. For purposes of this subsection

19  a single case may not contain more than 9 liters of wine.

20         Section 3.  Section 562.16, Florida Statutes, is

21  amended to read:

22         562.16  Possession of beverages upon which tax is

23  unpaid.--Any person or corporation who shall own or have in

24  her or his or its possession any beverage upon which a tax is

25  imposed by the Beverage Law, or which would be imposed if such

26  beverage were manufactured in or brought into this state in

27  accordance with the regulatory provisions of the Beverage Law,

28  and upon which such tax has not been paid shall, in addition

29  to the fines and penalties otherwise provided in the Beverage

30  Law, be personally liable for the amount of the tax imposed on

31  such beverage, and the division may collect such tax from such

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    Florida Senate - 1998                                  SB 2120
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  1  person by suit or otherwise. However,; provided, that this

  2  section does shall not apply to:

  3         (1)  Manufacturers or distributors licensed under the

  4  Beverage Law, to state bonded warehouses, or to common

  5  carriers.; provided, further, this section shall not apply to

  6         (2)  Persons possessing not in excess of 1 gallon of

  7  such beverages if; provided, the beverage is shall have been

  8  purchased by the said possessor outside of the state in

  9  accordance with the laws of the place where purchased and

10  shall have been brought into this state by the said possessor.

11  The burden of proof that such beverages were purchased outside

12  the state and in accordance with the laws of the place where

13  purchased in all cases shall be upon the possessor of such

14  beverages.

15         (3)  A person 21 years of age or older who possesses

16  wine shipped directly to him or her from outside the state for

17  personal use and not for resale. A person may not receive by

18  direct shipment more than four cases of wine per year, except

19  that a person may receive up to four cases of wine per week if

20  such person ships the wine directly to himself or herself from

21  a location outside the state. For purposes of this subsection

22  a single case may not contain more than 9 liters of wine.

23         Section 4.  Section 564.06, Florida Statutes, is

24  amended to read:

25         564.06  Excise taxes on wines and beverages.--

26         (1)  As to beverages including wines, except natural

27  sparkling wines, cider and malt beverages, containing 0.5

28  percent or more alcohol by volume and less than 17.259 percent

29  alcohol by volume, there shall be paid by all manufacturers

30  and distributors a tax at the rate of $2.25 per gallon.

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    Florida Senate - 1998                                  SB 2120
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  1         (2)  As to all wines, except natural sparkling wines,

  2  containing 17.259 percent or more alcohol by volume, there

  3  shall be paid by manufacturers and distributors a tax at the

  4  rate of $3.00 per gallon.

  5         (3)  As to natural sparkling wines, there shall be paid

  6  by all manufacturers and distributors a tax at the rate of

  7  $3.50 per gallon.

  8         (4)  As to cider, which is made from the normal

  9  alcoholic fermentation of the juice of sound, ripe apples,

10  including but not limited to flavored, sparkling, or

11  carbonated cider and cider made from condensed apple must,

12  that contain not less than one-half of 1 percent of alcohol by

13  volume and not more than 7 percent of alcohol by volume, there

14  shall be paid by all manufacturers and distributors a tax at

15  the rate of $.89 per gallon.  With the sole exception of the

16  excise tax rate, cider shall be considered wine and shall be

17  subject to the provisions of this chapter.

18         (5)(a)  As to wine coolers, which are a combination of

19  wines containing 0.5 percent or more alcohol by volume,

20  carbonated water, and flavors or fruit juices and

21  preservatives and which contain 1 to 6 percent alcohol content

22  by volume, there shall be paid by all manufacturers and

23  distributors a tax at the rate of $2.25 per gallon.

24         (b)  All products however derived, distilled, mixed, or

25  fermented and which contain less than 6 percent alcohol by

26  volume which are taxed under this chapter shall be available

27  for purchase and sale as provided in ss. 563.02, 564.02, and

28  564.04 by any licensee holding a valid license to sell

29  alcoholic beverages for consumption either on or off premises,

30  and nothing contained in chapter 562, chapter 563, chapter

31  565, or this chapter shall be construed to prevent such sales.

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    Florida Senate - 1998                                  SB 2120
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  1         (6)  Wine used by any established church as sacramental

  2  wine or in connection with religious services is hereby

  3  expressly exempted from the provisions of this section.

  4         (7)  Every distributor selling wine within the state

  5  shall pay the tax to the division monthly on or before the

  6  10th day of the following month, less 1.9 percent of the tax

  7  due, which shall be withheld by the distributor for keeping

  8  prescribed records, furnishing bond, and properly accounting

  9  for and remitting taxes due to the state.  However, no

10  allowance shall be granted or permitted when the tax is

11  delinquent at the time of payment.

12         (8)  The excise taxes required to be paid by this

13  section are not required to be paid upon:

14         (a)  Any alcoholic beverage sold to a post exchange,

15  ship service store, or base exchange located in a military,

16  naval, or air force reservation within this state.

17         (b)  Wine for personal use and not for resale which is

18  shipped from outside the state directly to a person in this

19  state who is 21 years of age or older. A person may not

20  receive more than four cases of wine per year shipped from

21  outside the state, except that a person may receive up to four

22  cases of wine per week if such person ships the wine directly

23  to himself or herself from a location outside the state. For

24  purposes of this paragraph, a single case may not contain more

25  than 9 liters of wine. The delivery of wine shipped as

26  provided in this paragraph does not constitute a sale for

27  purposes of the Beverage Law.

28         (9)  The department may is authorized to adopt rules to

29  effectuate the provisions of this section.

30         (10)  Fifty percent of all revenues collected from the

31  excise taxes imposed by this section on wine produced by

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  1  manufacturers in this state from products grown in the state

  2  must be deposited into the Viticulture Trust Fund established

  3  pursuant to s. 599.012.

  4         Section 5.  This act shall take effect July 1, 1998.

  5

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  7                          SENATE SUMMARY

  8    Provides that the penalty imposed for the offense of
      shipping or transporting any alcoholic beverage from an
  9    out-of-state location directly to a person in this state
      is a first-degree misdemeanor rather than a third-degree
10    felony. Provides for the penalty for such offense to
      remain a third-degree felony if the person who receives
11    the alcoholic beverage is less than 21 years of age.

12    Allows a person who is at least 21 years of age to
      receive up to four cases of wine per month which is
13    shipped directly to that person from outside the state
      and allows a person to ship up to four cases of wine per
14    week to himself or herself if the wine is shipped from
      outside the state. Provides that a single case may not
15    contain more than 9 liters of wine. Provides that the
      delivery of wine shipped from outside the state as
16    provided for in the act does not constitute a sale for
      purposes of the Beverage Law.
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