| 2 | The Committee on Business Regulation recommends the following: |
| 3 |
|
| 4 | Committee Substitute |
| 5 | Remove the entire bill and insert: |
| 6 | A bill to be entitled |
| 7 | An act relating to transportation and sale of cigarettes; |
| 8 | amending s. 210.01, F.S.; revising and providing |
| 9 | definitions; amending s. 210.05, F.S.; providing stamp |
| 10 | requirements for cigarettes in transport; providing stamp |
| 11 | exceptions for certain cigarettes; providing |
| 12 | nonapplicability of stamp requirements for certain |
| 13 | cigarettes; requiring transporters of certain cigarettes |
| 14 | to submit certain reports; requiring such transporters to |
| 15 | make certain certifications under oath and subject to |
| 16 | penalties for perjury; providing a definition; providing |
| 17 | applicability; amending s. 210.06, F.S.; revising |
| 18 | requirements for and limitations on the affixation of |
| 19 | stamps; providing requirements with respect to receipt, |
| 20 | possession, storage, and transport of unstamped cigarette |
| 21 | packages; creating s. 210.085, F.S.; requiring |
| 22 | manufacturers, importers, distributing agents, dealers, |
| 23 | and retail dealers to hold a current, valid permit to |
| 24 | sell, distribute, or receive cigarettes; amending s. |
| 25 | 210.09, F.S.; providing notice and filing guidelines for |
| 26 | certain persons shipping unstamped cigarette packages; |
| 27 | authorizing certain law enforcement officials to inspect |
| 28 | certain shipping vehicles; amending s. 210.12, F.S.; |
| 29 | authorizing the state to claim certain property and |
| 30 | materials from certain dealers and retailers who attempt |
| 31 | to defraud the state; authorizing the destruction of |
| 32 | certain cigarettes; amending s. 210.15, F.S.; providing |
| 33 | criteria for permit application; prohibiting issuance, |
| 34 | maintenance, or renewal of certain permits for certain |
| 35 | applicants; providing guidelines for permit application |
| 36 | denial; amending s. 210.18, F.S.; expanding the group of |
| 37 | violators subject to criminal liability; prohibiting the |
| 38 | sale or possession for sale of counterfeit cigarettes; |
| 39 | providing penalties; creating s. 210.181, F.S.; providing |
| 40 | civil penalties for failure to comply with certain duties |
| 41 | or pay certain taxes; providing an effective date. |
| 42 |
|
| 43 | Be It Enacted by the Legislature of the State of Florida: |
| 44 |
|
| 45 | Section 1. Subsections (6) and (7) of section 210.01, |
| 46 | Florida Statutes, are amended, and subsections (19) through (23) |
| 47 | are added to said section, to read: |
| 48 | 210.01 Definitions.--When used in this part the following |
| 49 | words shall have the meaning herein indicated: |
| 50 | (6) "Wholesale dealer" means any person located inside or |
| 51 | outside this state who sells cigarettes to retail dealers or |
| 52 | other persons for purposes of resale only, or any person who |
| 53 | operates more than one cigarette vending machine located in more |
| 54 | than one place of business. Such term shall not include any |
| 55 | cigarette manufacturer, export warehouse proprietor, or importer |
| 56 | with a valid permit under 26 U.S.C. s. 5712 if such person sells |
| 57 | or distributes cigarettes in this state only to dealers who are |
| 58 | agents and who hold valid and current permits under s. 210.15 or |
| 59 | to an export warehouse proprietor or another manufacturer. |
| 60 | (7) "Retail dealer" means any person located inside or |
| 61 | outside this state other than a wholesale dealer engaged in the |
| 62 | business of selling cigarettes, including persons licensed |
| 63 | pursuant to s. 569.003. |
| 64 | (19) "Stamp" or "stamps" means the indicia required to be |
| 65 | placed on cigarette packages that evidences payment of the tax |
| 66 | on cigarettes under s. 210.02. |
| 67 | (20) "Importer" means any person with a valid permit under |
| 68 | 26 U.S.C. s. 5712 who imports into the United States, directly |
| 69 | or indirectly, a finished cigarette for sale or distribution. |
| 70 | (21) "Manufacturer" means any person with a valid permit |
| 71 | under 26 U.S.C. s. 5712 who manufactures, fabricates, assembles, |
| 72 | processes, or labels a finished cigarette. |
| 73 | (22) "Counterfeit cigarettes" means cigarettes that have |
| 74 | false manufacturing labels, tobacco product packs without tax |
| 75 | stamps or with counterfeit tax stamps, or any combination |
| 76 | thereof. |
| 77 | (23) "Brand family" means all styles of cigarettes sold |
| 78 | under the same trademark and differentiated from one another by |
| 79 | means of additional modifiers or descriptors, including, but not |
| 80 | limited to, "menthol," "lights," "kings," and "100s," and |
| 81 | includes any brand name used alone or in conjunction with any |
| 82 | other word, trademark, logo, symbol, motto, selling message, |
| 83 | recognizable pattern of colors, or any other indicia of product |
| 84 | identification identical or similar to, or identifiable with, a |
| 85 | previously known brand of cigarettes. |
| 86 | Section 2. Subsection (6) is added to section 210.05, |
| 87 | Florida Statutes, to read: |
| 88 | 210.05 Preparation and sale of stamps; discount.-- |
| 89 | (6)(a) A person may not transport or cause to be |
| 90 | transported from this state cigarettes for sale in another state |
| 91 | without first affixing to the cigarettes the stamp required by |
| 92 | the state in which the cigarettes are to be sold or paying any |
| 93 | other excise tax on the cigarettes imposed by the state in which |
| 94 | the cigarettes are to be sold. |
| 95 | (b) A person may not affix to cigarettes the stamp |
| 96 | required by another state or pay any other excise tax on the |
| 97 | cigarettes imposed by another state if the other state prohibits |
| 98 | stamps from being affixed to the cigarettes, prohibits the |
| 99 | payment of any other excise tax on the cigarettes, or prohibits |
| 100 | the sale of the cigarettes. |
| 101 | (c) The requirements of paragraphs (a) and (b) do not |
| 102 | apply to cigarettes with respect to which the manufacturer or |
| 103 | importer is either a Participating Manufacturer as defined in |
| 104 | section II(jj) of the Master Settlement Agreement or is in full |
| 105 | compliance with the Qualifying Statute as defined in section |
| 106 | IX(d)(2)(E) of the Master Settlement Agreement of the state in |
| 107 | which the cigarettes are to be sold. An exemption pursuant to |
| 108 | this paragraph may only be asserted with respect to cigarettes |
| 109 | that, in the case of a Participating Manufacturer, are deemed to |
| 110 | be its cigarettes for purposes of calculating its payments under |
| 111 | the Master Settlement Agreement for the relevant year in the |
| 112 | volumes and shares determined pursuant to the Master Settlement |
| 113 | Agreement and, in the case of any other manufacturer or |
| 114 | importer, are deemed to be its cigarettes for purposes of the |
| 115 | applicable Qualifying Statute. For purposes of this paragraph, |
| 116 | the term "Master Settlement Agreement" means the settlement |
| 117 | agreement and related documents entered into in 1998 by 46 |
| 118 | states and leading United States tobacco manufacturers. A person |
| 119 | asserting an exemption pursuant to this paragraph shall submit |
| 120 | the report required by paragraph (d) and shall certify as |
| 121 | provided therein. |
| 122 | (d) On or before the 10th day of each month, a person who |
| 123 | transports or causes to be transported from this state |
| 124 | cigarettes for sale in another state shall submit to the |
| 125 | division a report identifying the quantity and brand family of |
| 126 | each brand of the cigarettes transported or caused to be |
| 127 | transported in the preceding calendar month and the name and |
| 128 | address of each recipient of the cigarettes. Such person shall |
| 129 | also certify under oath and subject to the penalties of perjury |
| 130 | that: |
| 131 | 1. The stamps required by paragraph (a) have been affixed |
| 132 | in accordance with said paragraph or that such stamps were not |
| 133 | affixed per paragraph (b); or |
| 134 | 2. The requirements of paragraph (c) have been satisfied. |
| 135 | (e) For purposes of this subsection, the term "person" |
| 136 | means an individual, partnership, committee, association, |
| 137 | corporation, or any other organization or group of persons. |
| 138 | "Person" does not include any common or contract carrier or any |
| 139 | public warehouse that is not owned, in whole or in part, |
| 140 | directly or indirectly, by the person transporting the |
| 141 | cigarettes or causing the transport to be made. |
| 142 | (f) Nothing in this subsection shall be deemed to |
| 143 | authorize the possession or transportation of cigarettes by any |
| 144 | person not so authorized by another provision of this part. |
| 145 | Section 3. Subsection (1) of section 210.06, Florida |
| 146 | Statutes, is amended, and subsection (5) is added to said |
| 147 | section, to read: |
| 148 | 210.06 Affixation of stamps; presumption.-- |
| 149 | (1) Every dealer within or without the state shall affix |
| 150 | or cause to be affixed to such package or container of such |
| 151 | cigarettes such, stamps as are required under this section |
| 152 | within 10 days after receipt of such products. Dealers outside |
| 153 | this state shall affix such stamps before the shipment of |
| 154 | cigarettes into this state, evidencing the payment of the tax |
| 155 | imposed by virtue of this part before such cigarettes are |
| 156 | offered for sale or use or consumed or before they are otherwise |
| 157 | disposed of in the state. |
| 158 | (a) A tax stamp shall be applied to all cigarette packages |
| 159 | intended for sale or distribution to consumers subject to the |
| 160 | tax imposed under s. 210.02, except as otherwise provided in |
| 161 | this part. |
| 162 | (b) No stamp shall be applied to any cigarette package |
| 163 | exempt from tax under 26 U.S.C. s. 5704 that is distributed by a |
| 164 | manufacturer pursuant to federal regulations. |
| 165 | (c) Dealers may apply stamps only to cigarette packages |
| 166 | received directly from a manufacturer or importer of cigarettes |
| 167 | who possesses a valid and current permit under 26 U.S.C. s. |
| 168 | 5712. |
| 169 | (5) Except as provided in s. 210.09(1), no person, other |
| 170 | than a dealer that receives unstamped cigarette packages |
| 171 | directly from a cigarette manufacturer or importer in accordance |
| 172 | with this section and s. 210.085, shall hold or possess an |
| 173 | unstamped cigarette package. Dealers shall be permitted to set |
| 174 | aside, without application of stamps, only such part of the |
| 175 | dealer's stock that is identified for sale or distribution |
| 176 | outside this state. If a dealer maintains stocks of unstamped |
| 177 | cigarette packages, such unstamped packages shall be stored |
| 178 | separately from stamped product packages. No unstamped cigarette |
| 179 | packages shall be transferred by a dealer to another facility of |
| 180 | the dealer within this state or to another person within this |
| 181 | state. |
| 182 | Section 4. Section 210.085, Florida Statutes, is created |
| 183 | to read: |
| 184 | 210.085 Transactions only with permitted manufacturers, |
| 185 | importers, distributing agents, dealers, and retail dealers.--A |
| 186 | manufacturer, importer, or distributing agent may sell or |
| 187 | distribute cigarettes to a person located or doing business |
| 188 | within this state, including on any tribal lands located within |
| 189 | the borders of this state, only if such person is a dealer with |
| 190 | a valid, current permit under s. 210.15. A dealer may sell or |
| 191 | distribute cigarettes to a person located or doing business |
| 192 | within this state, including on any tribal lands located within |
| 193 | the borders of this state, only if such person is a dealer or |
| 194 | retail dealer with a valid, current permit under s. 569.003. A |
| 195 | dealer may obtain cigarettes only from a manufacturer or |
| 196 | importer who possesses a valid, current permit under 26 U.S.C. |
| 197 | s. 5712 or from a distributing agent or dealer with a valid, |
| 198 | current permit under s. 210.15. A retail dealer may obtain |
| 199 | cigarettes only from a manufacturer or dealer with a valid, |
| 200 | current permit under s. 210.15. |
| 201 | Section 5. Subsection (1) of section 210.09, Florida |
| 202 | Statutes, is amended to read: |
| 203 | 210.09 Records to be kept; reports to be made; |
| 204 | examination.-- |
| 205 | (1)(a) Every person who shall possess or transport any |
| 206 | unstamped cigarettes upon the public highways, roads, or streets |
| 207 | of the state, shall be required to have in his or her actual |
| 208 | possession invoices or delivery tickets for such cigarettes. The |
| 209 | absence of such invoices or delivery tickets shall be prima |
| 210 | facie evidence that such person is a dealer in cigarettes in |
| 211 | this state and subject to the provisions of this part. |
| 212 | (b) Any person who ships unstamped cigarette packages into |
| 213 | this state other than to a dealer holding a valid, current |
| 214 | permit pursuant to s. 210.15 shall first file with the division |
| 215 | a notice of such shipment. This paragraph shall not apply to any |
| 216 | common or contract carrier that is transporting cigarettes |
| 217 | through this state to another location outside this state under |
| 218 | a proper bill of lading or freight bill that states the |
| 219 | quantity, source, and destination of such cigarettes. |
| 220 | (c) In any case in which the division or its duly |
| 221 | authorized agent, or any law enforcement officer of this state, |
| 222 | has knowledge or reasonable grounds to believe that any vehicle |
| 223 | is transporting cigarettes in violation of this part, the |
| 224 | division, such agent, or such law enforcement officer is |
| 225 | authorized to stop such vehicle and inspect the vehicle for |
| 226 | contraband cigarettes. |
| 227 | Section 6. Subsection (1) of section 210.12, Florida |
| 228 | Statutes, is amended, subsections (2) through (6) of said |
| 229 | section are renumbered as subsections (4) through (8), |
| 230 | respectively, and new subsections (2) and (3) are added to said |
| 231 | section, to read: |
| 232 | 210.12 Seizures; forfeiture proceedings.-- |
| 233 | (1) The state, acting by and through the division, shall |
| 234 | be authorized and empowered to seize, confiscate, and forfeit |
| 235 | for the use and benefit of the state, any cigarettes upon which |
| 236 | taxes payable hereunder may be unpaid or that are otherwise held |
| 237 | in violation of the requirements of this chapter, and also any |
| 238 | vending machine or receptacle in which such cigarettes upon |
| 239 | which taxes have not been paid are held for sale, or any vending |
| 240 | machine that does not have affixed thereto the identification |
| 241 | sticker required by the provisions of s. 210.07, or which does |
| 242 | not display at all times at least one package of each brand of |
| 243 | cigarettes located therein so the same is clearly visible and |
| 244 | arranged in such a manner that the cigarette tax stamp or meter |
| 245 | impression of the stamp affixed thereto is clearly visible. Such |
| 246 | seizure may be made by the division, its duly authorized |
| 247 | representative, any sheriff or deputy sheriff, or any police |
| 248 | officer. |
| 249 | (2) All fixtures, equipment, and other materials and |
| 250 | personal property on the premises of any dealer or retail dealer |
| 251 | who, with intent to defraud the state, fails to keep or make any |
| 252 | record, return, report, or inventory required by this part; |
| 253 | keeps or makes any false or fraudulent record, return, report, |
| 254 | or inventory required by this part; refuses to pay any tax |
| 255 | imposed by this part; or attempts in any manner to evade or |
| 256 | defeat the requirements of this part shall be forfeited to the |
| 257 | state. |
| 258 | (3) All cigarettes seized, confiscated, and forfeited to |
| 259 | the state under this part shall be destroyed. |
| 260 | Section 7. Subsection (1) of section 210.15, Florida |
| 261 | Statutes, is amended to read: |
| 262 | 210.15 Permits.-- |
| 263 | (1)(a) Every person, firm, or corporation desiring to |
| 264 | engage in business as a manufacturer, importer, exporter, |
| 265 | distributing agent, or wholesale dealer of cigarettes deal in |
| 266 | cigarettes as a distributing agent, wholesale dealer, or |
| 267 | exporter within this state shall file with the division an |
| 268 | application for a cigarette permit for each place of business |
| 269 | located within this state or, in the absence of such place of |
| 270 | business in this state, for wherever its principal place of |
| 271 | business is located with the Division of Alcoholic Beverages and |
| 272 | Tobacco. Every application for a cigarette permit shall be made |
| 273 | on forms furnished by the division and shall set forth the name |
| 274 | under which the applicant transacts or intends to transact |
| 275 | business, the location of the applicant's place of business |
| 276 | within the state, if any, and such other information as the |
| 277 | division may require. If the applicant has or intends to have |
| 278 | more than one place of business dealing in cigarettes within |
| 279 | this state, the application shall state the location of each |
| 280 | place of business. If the applicant is an association, the |
| 281 | application shall set forth the names and addresses of the |
| 282 | persons constituting the association, and if a corporation, the |
| 283 | names and addresses of the principal officers thereof and any |
| 284 | other information prescribed by the division for the purpose of |
| 285 | identification. The application shall be signed and verified by |
| 286 | oath or affirmation by the owner, if a natural person, and in |
| 287 | the case of an association or partnership, members or partners |
| 288 | thereof, and in the case of a corporation, by an executive |
| 289 | officer thereof or by any person specifically authorized by the |
| 290 | corporation to sign the application, to which shall be attached |
| 291 | the written evidence of this authority. The cigarette permit for |
| 292 | a distributing agent shall be issued annually for which an |
| 293 | annual fee of $5 shall be charged. |
| 294 | (b) The holder of any duly issued, annual permit for a |
| 295 | distributing agent shall be entitled to a renewal of his or her |
| 296 | annual permit from year to year as a matter of course, on or |
| 297 | before July 1, upon making application to the division and upon |
| 298 | payment of this annual permit fee. |
| 299 | (c) Permits The permit for a distributing agent, wholesale |
| 300 | dealer, or exporter shall be issued only to persons of good |
| 301 | moral character, who are not less than 18 years of age. |
| 302 | Distributing agent, wholesale dealer, or exporter Permits to |
| 303 | corporations shall be issued only to corporations whose officers |
| 304 | are of good moral character and not less than 18 years of age. |
| 305 | There shall be no exemptions from the permit fees herein |
| 306 | provided to any persons, association of persons, or corporation, |
| 307 | any law to the contrary notwithstanding. |
| 308 | (d) No distributing agent, wholesale dealer, or exporter |
| 309 | permit shall be issued, maintained, or renewed if the applicant, |
| 310 | its officers, or any person or persons owning directly or |
| 311 | indirectly, in the aggregate, more than 10 percent of the |
| 312 | ownership interests in the applicant: |
| 313 | 1. Owes $500 or more in delinquent cigarette taxes; |
| 314 | 2. Had a cigarette importer, retail dealer, or dealer |
| 315 | permit revoked by the division within the previous 2 years; |
| 316 | 3. Has been convicted of selling stolen or counterfeit |
| 317 | cigarettes, receiving stolen cigarettes, or being involved in |
| 318 | the counterfeiting of cigarettes; or |
| 319 | 4. to any person who Has been convicted within the past 5 |
| 320 | years of any offense against the cigarette laws of this state or |
| 321 | who has been convicted in this state, any other state, or the |
| 322 | United States during the past 5 years of any offense designated |
| 323 | as a felony by such state or the United States, or to a |
| 324 | corporation, any of whose officers have been so convicted. The |
| 325 | term "convicted" "conviction" shall include an adjudication of |
| 326 | guilt on a plea of guilty or a plea of nolo contendere, or the |
| 327 | forfeiture of a bond when charged with a crime. |
| 328 | (e)(d) The division may refuse to issue a distributing |
| 329 | agent, wholesale, or exporter permit to any person, firm, or |
| 330 | corporation whose permit under the cigarette law has been |
| 331 | revoked or to any corporation, an officer of which has had his |
| 332 | or her permit under the cigarette law revoked, or to any person |
| 333 | who is or has been an officer of a corporation whose permit has |
| 334 | been revoked under the cigarette law. Any permit issued to a |
| 335 | firm or corporation prohibited from obtaining such permit under |
| 336 | the cigarette law may be revoked by the division. |
| 337 | (f)(e) Prior to an application for a distributing agent, |
| 338 | wholesale dealer, or exporter permit being approved, the |
| 339 | applicant shall file a set of fingerprints on forms provided by |
| 340 | the division. The applicant shall also file a set of |
| 341 | fingerprints for any person or persons interested directly or |
| 342 | indirectly with the applicant in the business for which the |
| 343 | permit is being sought, when so required by the division. If the |
| 344 | applicant or any person interested with the applicant, either |
| 345 | directly or indirectly, in the business for which the permit is |
| 346 | sought shall be such a person as is within the definition of |
| 347 | persons to whom a distributing agent, wholesale dealer, or |
| 348 | exporter permit shall be denied, then the application may be |
| 349 | denied by the division. If the applicant is a partnership, all |
| 350 | members of the partnership are required to file said |
| 351 | fingerprints, or if a corporation, all principal officers of the |
| 352 | corporation are required to file said fingerprints. The |
| 353 | cigarette permit for a wholesale dealer or exporter shall be |
| 354 | originally issued at a fee of $100, which sum is to cover the |
| 355 | cost of the investigation required before issuing such permit. |
| 356 | (g)(f) The cigarette permits issued under this section |
| 357 | permit for a wholesale dealer or exporter shall be renewed from |
| 358 | year to year as a matter of course, at an annual cost of $100, |
| 359 | on or before July 1, upon making application to the division and |
| 360 | upon payment of the annual renewal fee. |
| 361 | (h)(g) Permittees, by acceptance of their permits, agree |
| 362 | that their places of business or vehicles transporting |
| 363 | cigarettes shall always be subject to be inspected and searched |
| 364 | without a search warrant for the purpose of ascertaining that |
| 365 | all provisions of this part are complied with by authorized |
| 366 | employees of the division and also by sheriffs, deputy sheriffs, |
| 367 | and police officers during business hours or during any other |
| 368 | time such premises are occupied by the permittee or other |
| 369 | persons. Retail cigarette dealers and manufacturers' |
| 370 | representatives, by dealing in cigarettes, agree that their |
| 371 | places of business or vehicles transporting cigarettes shall |
| 372 | always be subject to inspection and search without a search |
| 373 | warrant for the purpose of ascertaining that all provisions of |
| 374 | this part are complied with by authorized employees of the |
| 375 | division and also by sheriffs, deputy sheriffs, and police |
| 376 | officers during business hours or other times when the premises |
| 377 | are occupied by the retail dealer or manufacturers' |
| 378 | representatives or other persons. |
| 379 | (i)(h) No retail sales of cigarettes may be made at a |
| 380 | location for which a wholesale dealer, distributing agent, or |
| 381 | exporter permit has been issued. The excise tax on sales made to |
| 382 | any traveling location, such as an itinerant store or industrial |
| 383 | caterer, shall be paid into the General Revenue Fund |
| 384 | unallocated. Cigarettes may be purchased for retail purposes |
| 385 | only from a person holding a wholesale dealer permit. The |
| 386 | invoice for the purchase of cigarettes must show the place of |
| 387 | business for which the purchase is made and the cigarettes |
| 388 | cannot be transferred to any other place of business for the |
| 389 | purpose of resale. |
| 390 | Section 8. Subsections (2), (3), and (6) of section |
| 391 | 210.18, Florida Statutes, are amended, and subsection (9) is |
| 392 | added to said section, to read: |
| 393 | 210.18 Penalties for tax evasion; reports by sheriffs.-- |
| 394 | (2) Except as otherwise provided in this section, any |
| 395 | person wholesale or retail dealer who fails, neglects, or |
| 396 | refuses to comply with, or violates the provisions of, this part |
| 397 | or the rules adopted and regulations promulgated by the division |
| 398 | under this part commits is guilty of a misdemeanor of the first |
| 399 | degree, punishable as provided in s. 775.082 or s. 775.083. Any |
| 400 | person wholesale or retail dealer who has been convicted of a |
| 401 | violation of any provision of the cigarette tax law and who is |
| 402 | thereafter convicted of a further violation of the cigarette tax |
| 403 | law is, upon conviction of such further offense, guilty of a |
| 404 | felony of the third degree, punishable as provided in s. |
| 405 | 775.082, s. 775.083, or s. 775.084. |
| 406 | (3) Any person who falsely or fraudulently makes, forges, |
| 407 | alters, or counterfeits any stamp or impression die used in |
| 408 | meter machines prescribed by the division under the provisions |
| 409 | of this part; or, with intent to evade taxes, jams, tampers |
| 410 | with, or alters such a machine; or causes or procures to be |
| 411 | falsely or fraudulently made, forged, altered, or counterfeited |
| 412 | any such stamp or die; or knowingly and willfully utters, |
| 413 | purchases, passes or tenders as true any such false, altered, or |
| 414 | counterfeited stamp or die impression; or, with the intent to |
| 415 | defraud the state, fails to comply with any other requirement of |
| 416 | this chapter commits is guilty of a felony of the third degree, |
| 417 | punishable as provided in s. 775.082, s. 775.083, or s. 775.084. |
| 418 | (6)(a) Every person, firm, or corporation, other than a |
| 419 | licensee under the provisions of this part, who possesses, |
| 420 | removes, deposits, or conceals, or aids in the possessing, |
| 421 | removing, depositing, or concealing of, any unstamped cigarettes |
| 422 | not in excess of 50 cartons is guilty of a misdemeanor of the |
| 423 | second degree, punishable as provided in s. 775.082 or s. |
| 424 | 775.083. In lieu of the penalties provided in those sections, |
| 425 | however, the person, firm, or corporation may pay the tax plus a |
| 426 | penalty equal to the amount of the tax authorized under s. |
| 427 | 210.02 on the unstamped cigarettes. |
| 428 | (a)(b) Every person, firm, or corporation, other than a |
| 429 | licensee under the provisions of this part, who possesses, |
| 430 | removes, deposits, or conceals, or aids in the possessing, |
| 431 | removing, depositing, or concealing of, any unstamped cigarettes |
| 432 | in excess of 50 cartons is presumed to have knowledge that they |
| 433 | have not been taxed and commits is guilty of a felony of the |
| 434 | third degree, punishable as provided in s. 775.082, s. 775.083, |
| 435 | or s. 775.084. |
| 436 | (b)(c) This section does not apply to a person possessing |
| 437 | not in excess of three cartons of such cigarettes purchased by |
| 438 | such possessor outside the state in accordance with the laws of |
| 439 | the place where purchased and brought into this state by such |
| 440 | possessor. The burden of proof that such cigarettes were |
| 441 | purchased outside the state and in accordance with the laws of |
| 442 | the place where purchased shall in all cases be upon the |
| 443 | possessor of such cigarettes. |
| 444 | (9) Notwithstanding any other provision of law, the sale |
| 445 | or possession for sale of counterfeit cigarettes by any person |
| 446 | or by a manufacturer, importer, distributing agent, wholesale |
| 447 | dealer, or retail dealer shall result in the seizure of the |
| 448 | product and related machinery by the division or any law |
| 449 | enforcement agency and shall be punishable as follows: |
| 450 | (a)1. A first violation with a total quantity of less than |
| 451 | two cartons of cigarettes or the equivalent amount of other |
| 452 | cigarettes shall be punishable by a fine not to exceed $1,000 or |
| 453 | five times the retail value of the cigarettes involved, |
| 454 | whichever is greater, or imprisonment not to exceed 5 years, or |
| 455 | both. |
| 456 | 2. A subsequent violation with a total quantity of less |
| 457 | than two cartons of cigarettes or the equivalent amount of other |
| 458 | cigarettes shall be punishable by a fine not to exceed $5,000 or |
| 459 | five times the retail value of the cigarettes involved, |
| 460 | whichever is greater, or imprisonment not to exceed 5 years, or |
| 461 | both, and shall also result in the revocation by the division of |
| 462 | the permit of the manufacturer, importer, distributing agent, |
| 463 | wholesale dealer, or retail dealer. |
| 464 | (b)1. A first violation with a total quantity of two or |
| 465 | more cartons of cigarettes or the equivalent amount of other |
| 466 | cigarettes shall be punishable by a fine not to exceed $2,000 or |
| 467 | five times the retail value of the cigarettes involved, |
| 468 | whichever is greater, or imprisonment not to exceed 5 years, or |
| 469 | both. |
| 470 | 2. A subsequent violation with a quantity of two cartons |
| 471 | of cigarettes or more or the equivalent amount of other |
| 472 | cigarettes shall be punishable by a fine not to exceed $50,000 |
| 473 | or five times the retail value of the cigarettes involved, |
| 474 | whichever is greater, or imprisonment not to exceed 5 years, or |
| 475 | both, and shall also result in the revocation by the division of |
| 476 | the permit of the manufacturer, importer, distributing agent, |
| 477 | wholesale dealer, or retail dealer. |
| 478 |
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| 479 | For purposes of this subsection, any counterfeit cigarettes |
| 480 | seized by the division shall be destroyed. |
| 481 | Section 9. Section 210.181, Florida Statutes, is created |
| 482 | to read: |
| 483 | 210.181 Civil penalties.-- |
| 484 | (1) Whoever knowingly omits, neglects, or refuses to |
| 485 | comply with any duty imposed upon him or her by this part, or to |
| 486 | do or cause to be done any of the things required by this part, |
| 487 | or does anything prohibited by this part shall, in addition to |
| 488 | any other penalty provided in this part, be liable for a fine of |
| 489 | $1,000 or five times the retail value of the cigarettes |
| 490 | involved, whichever is greater. |
| 491 | (2) Whoever fails to pay any tax imposed by this part at |
| 492 | the time prescribed by law or rules shall, in addition to any |
| 493 | other penalty provided in this part, be liable for a penalty of |
| 494 | five times the unpaid tax due. |
| 495 | Section 10. This act shall take effect upon becoming a |
| 496 | law. |