Senate Bill sb0656

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    Florida Senate - 2001                                   SB 656

    By Senator Saunders





    25-422-01

  1                      A bill to be entitled

  2         An act relating to the Beverage Law; creating

  3         s. 561.585, F.S.; providing for certain direct

  4         shipments of wine from out of state; requiring

  5         shippers to have certain licenses; providing

  6         prohibitions; providing for administrative and

  7         criminal penalties; exempting charitable

  8         organizations from excise and sales and use

  9         taxes on sales made from direct shipments of

10         wine from out of state, subject to

11         restrictions; amending ss. 561.54, 561.545,

12         F.S.; providing that those sections are

13         inapplicable to wine shipped under s. 561.585,

14         F.S.; providing an effective date.

15

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

17

18         Section 1.  Section 561.585, Florida Statutes, is

19  created to read:

20         561.585  Direct shipment of wine.--

21         (1)  LICENSURE REQUIREMENTS.--Notwithstanding any

22  provision of the Beverage Law or any rule or regulation to the

23  contrary, a person, firm, corporation, or other entity who is

24  licensed as an out-of-state shipper under this section may

25  ship wine directly to any person registered under this section

26  who is at least 21 years of age for personal use only and not

27  for resale. To obtain an out-of-state shipper's license, an

28  applicant must:

29         (a)  Obtain and maintain a current license as a primary

30  American source of supply as provided in s. 564.045;

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  1         (b)  Provide to the division a true copy of its current

  2  alcoholic beverage license issued by another state; and

  3         (c)  Pay a registration fee in the amount of $100.

  4  A shipper may annually renew its out-of-state shipper's

  5  license with the division by paying a renewal fee in the

  6  amount of $100 and providing to the division a true copy of

  7  its current alcoholic beverage license issued by another

  8  state.

  9         (2)  LIMITATION ON SHIPMENTS.--An out-of-state shipper

10  may ship no more than 4 cases of wine per calendar year to the

11  same person registered under this section. A person registered

12  under this section may obtain no more than a total of 4 cases

13  of wine per calendar year from all out-of-state shippers

14  combined. A single case may contain no more than 9 liters of

15  wine.

16         (3)  SIGNATURE.--Each out-of-state shipper shall ensure

17  that the outside shipping label of each package containing

18  wine shipped under this section conspicuously states

19  "SIGNATURE OF ADDRESSEE AGE 21 OR OLDER REQUIRED FOR DELIVERY"

20  and that, prior to delivery, the signature of the addressee is

21  obtained after presentation of a valid driver's license, an

22  identification card issued by this state or another state of

23  the United States, a passport, or a United States armed

24  services identification card.

25         (4)  MONTHLY REPORT.--Each out-of-state shipper shall

26  report monthly to the division the total amount of wine by

27  type shipped into the state during the preceding month.

28         (5)  TAXES.--Each out-of-state shipper shall pay

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

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

31  state for the preceding month. The amount of such taxes is to

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  1  be calculated as if the sale took place at the location where

  2  the delivery occurred in this state. Each out-of-state shipper

  3  shall maintain records of its direct shipments to this state,

  4  including the names, addresses, amounts, and dates of all

  5  shipments to persons in this state, and shall allow the

  6  Department of Revenue or the division, upon its request, to

  7  perform an audit of such records.

  8         (6)  JURISDICTION.--Each out-of-state shipper is deemed

  9  to have consented to the jurisdiction of the division or any

10  other state agency and the courts of this state concerning

11  enforcement of this section and any related laws, rules, or

12  regulations.

13         (7)  REGISTRATION.--Before receiving any shipment under

14  this section, a person must register with the division on a

15  form prescribed by the division by filing a sworn statement

16  and providing:

17         (a)  Full name;

18         (b)  Address of legal residence, and mailing address,

19  if different from street address;

20         (c)  Telephone number;

21         (d)  Proof that the person is at least 21 years of age;

22         (e)  A statement that wine obtained under this section

23  is for personal use only and not for resale;

24         (f)  A statement that the person will obtain no more

25  than a total of 4 cases of wine per calendar year from all

26  out-of-state shippers combined; and

27         (g)  Any other information the division by rule may

28  deem necessary to adequately carry out the provisions of this

29  section.

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  1  A registration must be updated with the division within 30

  2  days after any change. The registration with the division

  3  under this section is valid for a period of up to 5 years and

  4  expires on December 31 of the 5th year.

  5         (8)  PENALTIES.--

  6         (a)  In addition to the penalties provided by s.

  7  561.545, the division may suspend or revoke an out-of-state

  8  shipper's license, or impose fines on the out-of-state shipper

  9  for any violation of this section.

10         (b)  An out-of-state shipper who knowingly and

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

12  person in this state who is younger than 21 years of age

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

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

15         (c)  Any common carrier or permit carrier or any

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

17  conveyance who knowingly and intentionally transports wine

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

19  state who is younger than 21 years of age commits a felony of

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

21  775.083, or s. 775.084.

22         (d)  A person who obtains wine from an out-of-state

23  shipper in violation of this section commits a misdemeanor of

24  the second degree, punishable as provided in s. 775.082 or s.

25  775.083.

26         (9)  EXEMPTION FOR CHARITABLE ORGANIZATIONS.--Any

27  charitable organization is exempt from the excise and sales

28  and use taxes on any sales of wine obtained from an

29  out-of-state shipper under this section for purposes of

30  fundraising if all proceeds and profits are deposited with the

31  organization. Any bottles of wine that are not sold at the

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  1  fundraising event must be returned to the out-of-state shipper

  2  for purposes of this section. As used in this subsection, the

  3  term "charitable organization" means an organization that

  4  holds a current tax exemption from federal income tax under s.

  5  501(c)(3) of the Internal Revenue Code, as amended and that is

  6  exempt from the sales and use taxes imposed by chapter 212.

  7         Section 2.  Section 561.54, Florida Statutes, is

  8  amended to read:

  9         561.54  Certain deliveries of beverages prohibited.--

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

11  operators of privately owned cars, trucks, buses, or other

12  conveyances or out-of-state manufacturers or suppliers to make

13  delivery from without the state of any alcoholic beverage to

14  any person, association of persons, or corporation within the

15  state, except to qualified manufacturers, distributors, and

16  exporters of such beverages so delivered and to qualified

17  bonded warehouses in this state.

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

19  section may bring an action in any court of competent

20  jurisdiction to recover for the state all moneys obtained by

21  common carriers or permit carriers; obtained by operators of

22  privately owned cars, trucks, buses, or other conveyances; or

23  obtained by out-of-state manufacturers or suppliers as a

24  result of the delivery of alcoholic beverages in violation of

25  this section, and may obtain a declaratory judgment that an

26  act or practice violates this section and enjoin any person

27  from violating this section.  In addition to such relief, the

28  court may order the confiscation and destruction of any

29  alcoholic beverages delivered in violation of this section.

30  In assessing damages, the court shall enter judgment against a

31  defendant for three times the amount of the delivery charges

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  1  proved or the fair market value of merchandise unlawfully

  2  brought into the state.  Payment or satisfaction of any

  3  judgment under this section, other than for costs and

  4  attorney's fees, shall be made in its entirety to the state.

  5  In any successful action under this section, the court shall

  6  award the plaintiff costs and reasonable attorney's fees.

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

  8  wine by a licensed out-of-state shipper to a registered person

  9  21 years of age or older in accordance with s. 561.585.

10         Section 3.  Section 561.545, Florida Statutes, is

11  amended to read:

12         561.545  Certain shipments of beverages prohibited;

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

14  shipment of alcoholic beverages by persons in the business of

15  selling alcoholic beverages to residents of this state in

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

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

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

19  further finds that the penalties for illegal direct shipment

20  of alcoholic beverages to residents of this state should be

21  made adequate to ensure compliance with the Beverage Law and

22  that the measures provided for in this section are fully

23  consistent with the powers conferred upon the state by the

24  Twenty-first Amendment to the United States Constitution.

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

26  beverages who knowingly and intentionally ships, or causes to

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

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

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

30  exporter's registration issued by the Division of Alcoholic

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

  2  is in violation of this section.

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

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

  5  conveyance who knowingly and intentionally transports any

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

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

  8  manufacturer's or wholesaler's license or exporter's

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

10  violation of this section.

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

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

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

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

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

16  within 2 years after a prior conviction for violating

17  subsection (1) commits a felony of the third degree,

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

19  775.084.

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

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

22  conveyance found by the division to be in violation of

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

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

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

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

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

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

29  within 2 years after a prior conviction for violating

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

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

  2  775.084.

  3         (5)  This section does not apply to:

  4         (a)  The direct shipment of sacramental alcoholic

  5  beverages to bona fide religious organizations as authorized

  6  by the division; or to

  7         (b)  The possession of alcoholic beverages in

  8  accordance with s. 562.15(2); or.

  9         (c)  The shipment of wine by a licensed out-of-state

10  shipper to a registered person 21 years of age or older in

11  accordance with s. 561.585.

12         Section 4.  This act shall take effect upon becoming a

13  law.

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15            *****************************************

16                          SENATE SUMMARY

17    Provides for the direct shipping of no more than 4 cases
      of wine per calendar year to any resident of this state
18    who is at least 21 years old. Requires out-of-state
      shippers to be licensed by the Division of Alcoholic
19    Beverages and Tobacco. Provides prohibitions. Provides
      for administrative and criminal penalties. Provides for
20    the payment of taxes. Provides for a tax exemption for
      charitable organizations. Provides that ss. 561.54 and
21    561.545, F.S., do not apply to direct out-of-state
      shipments of wine to persons in this state.
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