Amendment

Bill No. 2676

Amendment No. 409965

CHAMBER ACTION
Senate		House
.
.
.

---

---

1	Representative Bucher offered the following:
2
3	Amendment (with title amendment)
4	On page 23, remove lines 1 and 2, and insert:
5	Section 13.  Section 210.0205, Florida Statutes, is created
6	to read:
7	210.0205  Nonsettling-manufacturer fee.--
8	(1)  As used in this section, the term:
9	(a)  "Brand family" means all styles of cigarettes sold
10	under the same trademark and differentiated from one another by
11	means of additional modifiers or descriptors, including, but not
12	limited to, "menthol," "lights," "kings," and "100s." The term
13	includes any brand name, alone or in conjunction with any other
14	word; trademark; logo; symbol; motto; selling message;
15	recognizable pattern of colors; or other indicia of product
16	identification identical or similar to, or identifiable with, a
17	previously known brand of cigarettes.
18	(b)  "Consumer Price Index" means the Consumer Price Index
19	for All Urban Consumers as published by the Bureau of Labor
20	Statistics of the United States Department of Labor.
21	(c)  "Manufacturer" means a person or entity who
22	manufactures, fabricates, or assembles cigarettes. The term
23	includes an entity that is the first importer into the United
24	States of cigarettes manufactured abroad.
25	(d)  "Nonsettling manufacturer" means any tobacco product
26	manufacturer that has not entered into the tobacco settlement
27	agreement defined in s. 215.56005(1)(f), or the Attorney's
28	General Settlement Agreement dated March 15,1996 in the State of
29	Florida, et al. v. American Tobacco Company, et al., Fifteenth
30	Judicial Circuit, Case No. 95-1466.
31	(e)  "Nonsettling-manufacturer cigarettes" means cigarettes
32	manufactured by a nonsettling manufacturer, except when payments
33	on such cigarettes are due to be made by a settling manufacturer
34	pursuant to a tobacco settlement agreement described in
35	paragraph (d).
36	(2)  A fee, in addition to all other taxes or fees of every
37	kind imposed by law, is imposed upon the sale, receipt,
38	purchase, possession, consumption, handling, distribution, and
39	use in this state of nonsettling-manufactuer cigarettes to the
40	package of which an agent affixes a stamp or stamp insignia as
41	required by law or which are sold or purchased in the state but
42	are not required to bear a stamp or stamp insignia of this
43	state.  The fee is in the amount of 10 mills per cigarette in
44	Fiscal Year 2004-2005, and 20 mills per cigarette in Fiscal Year
45	2005-2006. Beginning January 1, 2007, and on January 1 of each
46	year thereafter, the division shall adjust the tax rate by the
47	greater of 3 percent or the percentage change in the average of
48	the Consumer Price Index issued by the United States Department
49	of Labor for the most recent 12-month period ending September 30
50	compared to the 12-month period ending September 30 of the prior
51	year.
52	(3)  The division shall collect the fee once each month
53	from each nonsettling manufacturer based on information received
54	pursuant to subsection(6). The division shall mail to each
55	nonsettling manufacturer not later than the 15th day of each
56	month a notice of the fee due from that manufacturer for sales
57	of its cigarettes made in the preceding month. Each such
58	nonsettling manufacturer shall ensure that the division has
59	received payment of the fee in full no later than the last day
60	of the month in which the notice was mailed. Except as otherwise
61	provided in this section, proceeds from the fee shall be
62	deposited into the Tobacco Settlement Clearing Trust Fund and
63	the fee shall be imposed, collected, paid, administered, and
64	enforced in the same manner as the tax on cigarettes imposed by
65	s. 210.02.
66	(4)  A nonsettling manufacturer selling cigarettes in this
67	state on the effective date of this act shall provide to the
68	division the information described in subsections (7) and (8)
69	and pay the fee imposed by subsection (2) within 30 days after
70	the effective date of this act. If a nonsettling manufacturer is
71	not selling cigarettes in this state on the effective date of
72	this act, before commencing sales of cigarettes in this state,
73	the nonsettling manufacturer shall prepay the fee imposed by
74	subsection (2). The prepayment amount shall be a sum determined
75	by multiplying by 10 mills in Fiscal Year 2004-2005 and by 20
76	mills in Fiscal Year 2005-2006 the number of cigarettes the
77	division reasonably projects that the nonsettling manufacturer
78	will sell in this state in the first calendar month or $50,000,
79	whichever is more. The division may require a nonsettling
80	manufacturer to provide any information reasonably necessary to
81	determine the amount of the prepayment fee and, in the case of
82	prepayment, shall establish procedures for providing
83	reimbursement to nonsettling manufacturers if actual sales are
84	less than sales projected by the division and for additional
85	payment by nonsettling manufacturers if actual sales are greater
86	than sales projected by the division. As used in this
87	subsection, the term "cigarettes" refers only to nonsettling-
88	manufacturer cigarettes.
89	(5)  The purposes of the fee are to:
90	(a)  Prevent nonsettling manufacturers from undermining the
91	state's policy of reducing underage smoking by offering
92	cigarettes for sale substantially below the price of cigarettes
93	of other manufacturers.
94	(b)1.  Protect the tobacco settlement agreement, as defined
95	in s. 215.56005(1)(f), and funding, which is reduced as a result
96	of the growth of nonsettling-manufacturer cigarette sales, for
97	programs funded in whole or in part by payments to the state
98	under the tobacco settlement agreement; and
99	2.  Recoup for the state settlement-payment revenue lost to
100	the state as a result of nonsettling-manufacturer cigarette
101	sales.
102	(c)  Fund enforcement and administration of nonsettling-
103	manufacturer legislation and the fee imposed by this section,
104	including reasonable administrative costs incurred by wholesale
105	dealers complying with any additional reporting requirements
106	necessitated by this section.
107	(d)  Fund such other purposes as the Legislature
108	determines; however, $16 million of the proceeds received under
109	this act shall be provided annually through quarterly
110	disbursements to the Department of Health, for the purposes of
111	implementing a statewide anti-smoking marketing, educational and
112	advertising campaign to reduce youth tobacco use. The Department
113	of Health shall conduct surveillance and evaluations to measure
114	program performance and improve implementation strategies. The
115	Department of Health may contract for any of the activities
116	specified in this section.
117	(6)  Monthly reports shall be made to the division pursuant
118	to s. 210.09(2) by each agent and wholesaler. Such reports shall
119	state the number and denominations of stamps or stamp insignia
120	affixed to individual packages of nonsettling-manufacturer
121	cigarettes and the number of individual packages of nonsettling-
122	manufacturer cigarettes otherwise sold or purchased in this
123	state or otherwise handled or distributed in this state for sale
124	in another state, commonwealth, or territory of the United
125	States, by manufacturer and brand family, sold for each place of
126	business in the month preceding the month in which the report is
127	made. The division may adopt rules requiring any agent,
128	wholesaler, wholesale dealer, or nonsettling manufacturer to
129	provide in the monthly report any information necessary or
130	appropriate to determing the fee due under subsection (2) or to
131	enforcing this act.
132	(7)  Before commencing sales of cigarettes in this state
133	or, if selling cigarettes in this state on the effective date of
134	this act, within 30 days after the effective date of this act, a
135	nonsettling manufacturer shall provide to the division, on a
136	form prescribed by the division:
137	(a)  The complete name, address, and telephone number of
138	the nonsettling manufacturer.
139	(b)  The date the nonsettling manufacturer began or intends
140	to begin selling cigarettes in this state.
141	(c)  The names of the brand families of the cigarettes the
142	nonsettling manufacturer is selling or will sell in this state.
143	(d)  A statement of the nonsettling manufacturer's
144	intention to comply with the obligations imposed by this
145	section.
146	(e)  The name, address, telephone number, and signature of
147	an officer of the nonsettling manufacturer attesting to all of
148	the information described in this subsection.
149	(8)  Each nonsettling manufacturer subject to the fee
150	imposed by subsection (2) shall certify to the division on the
151	first day of each month that the manufacturer is in compliance
152	with this section and has paid in full the fee imposed by
153	subsection (2). The division shall develop, maintain, and
154	publish on its Internet website a directory listing all
155	nonsettling manufacturers that have provided current, accurate,
156	and complete certifications. The division shall provide a copy
157	of the list to any person upon request.
158	(9)  Cigarettes of a nonsettling manufacturer that has not
159	paid a fee imposed by subsection (2), or that has not complied
160	with the reporting requirements of subsections (4), (6), (7),
161	and (8), shall be treated as cigarettes for which the tax
162	imposed by s. 210.02 has not been paid. A person shall not affix
163	to any package of nonsetttling-manufacturer cigarettes the stamp
164	required under s. 210.06, or otherwise purchase or sell such
165	cigarettes, after such person receives notice from the division
166	that the nonsettling manufacturer of such cigarettes has not
167	paid in full the fee imposed by subsection (2) or if the
168	nonsettling manufacturer is not listed on the division's
169	directory described in subsection (8).
170	Section 14.  Subsections (6) and (7) of section 210.01,
171	Florida Statutes, are amended, and subsections (19) through (23)
172	are added to that section, to read:
173	210.01  Definitions.--When used in this part the following
174	words shall have the meaning herein indicated:
175	(6)  "Wholesale dealer" means any person located inside or
176	outside this state who sells cigarettes to retail dealers or
177	other persons for purposes of resale only, or any person who
178	operates more than one cigarette vending machine located in more
179	than one place of business. Such term shall not include any
180	cigarette manufacturer, export warehouse proprietor, or importer
181	with a valid permit under 26 U.S.C. s. 5712 if such person sells
182	or distributes cigarettes in this state only to dealers who are
183	agents and who hold valid and current permits under s. 210.15 or
184	to any cigarette manufacturer, export warehouse proprietor, or
185	importer who holds a valid and current permit under 26 U.S.C. s.
186	5712.
187	(7)  "Retail dealer" means any person located inside or
188	outside this state other than a wholesale dealer engaged in the
189	business of selling cigarettes, including persons licensed
190	pursuant to s. 569.003.
191	(19)  "Stamp" or "stamps" means the indicia required to be
192	placed on cigarette packages that evidences payment of the tax
193	on cigarettes under s. 210.02.
194	(20)  "Importer" means any person with a valid permit under
195	26 U.S.C. s. 5712 who imports into the United States, directly
196	or indirectly, a finished cigarette for sale or distribution.
197	(21)  "Manufacturer" means any person with a valid permit
198	under 26 U.S.C. s. 5712 who manufactures, fabricates, assembles,
199	processes, or labels a finished cigarette.
200	(22)  "Counterfeit cigarettes" means cigarettes that have
201	false manufacturing labels, tobacco product packs with
202	counterfeit tax stamps, or any combination thereof.
203	(23)  "Brand family" means all styles of cigarettes sold
204	under the same trademark and differentiated from one another by
205	means of additional modifiers or descriptors, including, but not
206	limited to, "menthol," "lights," "kings," and "100s," and
207	includes any brand name used alone or in conjunction with any
208	other word, trademark, logo, symbol, motto, selling message,
209	recognizable pattern of colors, or any other indicia of product
210	identification identical or similar to, or identifiable with, a
211	previously known brand of cigarettes.
212	Section 15.  Subsection (6) is added to section 210.05,
213	Florida Statutes, to read:
214	210.05  Preparation and sale of stamps; discount.--
215	(6)(a)  A person may not transport or cause to be
216	transported from this state cigarettes for sale in another state
217	without first affixing to the cigarettes the stamp required by
218	the state in which the cigarettes are to be sold or paying any
219	other excise tax on the cigarettes imposed by the state in which
220	the cigarettes are to be sold.
221	(b)  A person may not affix to cigarettes the stamp
222	required by another state or pay any other excise tax on the
223	cigarettes imposed by another state if the other state prohibits
224	stamps from being affixed to the cigarettes, prohibits the
225	payment of any other excise tax on the cigarettes, or prohibits
226	the sale of the cigarettes.
227	(c)  The requirements of paragraphs (a) and (b) do not
228	apply to cigarettes with respect to which the manufacturer or
229	importer either is a participating manufacturer (as defined in
230	section II(jj) of the master settlement agreement) or is in full
231	compliance with the qualifying statute (as defined in section
232	IX(d)(2)(E) of the master settlement agreement) of the state in
233	which the cigarettes are to be sold. An exemption pursuant to
234	this paragraph may only be asserted with respect to cigarettes
235	that, in the case of a participating manufacturer, are deemed to
236	be its cigarettes for purposes of calculating its payments under
237	the master settlement agreement for the relevant year in the
238	volumes and shares determined pursuant to the master settlement
239	agreement, and, in the case of all other manufacturers and
240	importers, are deemed to be its cigarettes for purposes of the
241	applicable qualifying statute. For purposes of this subsection
242	the term "master settlement agreement" means the settlement
243	agreement (and related documents) entered into in 1998 by 46
244	states and leading United States tobacco manufacturers. A person
245	asserting an exemption pursuant to this paragraph shall submit
246	the reports required by paragraph (d) and shall certify as
247	provided in that paragraph.
248	(d)  On or before the 10th day of each month, a person who
249	transports or causes to be transported from this state
250	cigarettes for sale in another state shall submit to the
251	division a report identifying the quantity and brand family of
252	each brand of the cigarettes transported or caused to be
253	transported in the preceding calendar month and the name and
254	address of each recipient of the cigarettes. Such person shall
255	also certify under oath and subject to the penalties of perjury
256	that:
257	1.  The stamps required by paragraph (a) have been affixed
258	in accordance with that paragraph or that such stamps were not
259	affixed pursuant to paragraph (b); or
260	2.  Such person satisfies the requirements of paragraph
261	(c).
262	(e)  For purposes of this section, the term "person" means
263	an individual, partnership, committee, association, corporation,
264	or any other organization or group of persons. Person does not
265	include any common or contract carrier, or public warehouse that
266	is not owned, in whole or in part, directly or indirectly, by
267	the person transporting the cigarettes or causing the transport
268	to be made.
269	(f)  This subsection shall not be deemed to authorize the
270	possession or transportation of cigarettes by any person not so
271	authorized by another provision of this part.
272	Section 16.  Subsection (1) of section 210.06, Florida
273	Statutes, is amended, and subsection(5) is added to that
274	section, to read:
275	210.06  Affixation of stamps; presumption.--
276	(1)  Every dealer within or without the state shall affix
277	or cause to be affixed to such package or container of such
278	cigarettes such, stamps as are required under this section
279	within 10 days after receipt of such products. Dealers outside
280	this state shall affix such stamps before the shipment of
281	cigarettes into this state, evidencing the payment of the tax
282	imposed by virtue of this part before such cigarettes are
283	offered for sale or use or consumed or before they are otherwise
284	disposed of in the state.
285	(a)  A tax stamp shall be applied to all cigarette packages
286	intended for sale or distribution to consumers subject to the
287	tax imposed under s. 210.02, except as otherwise provided in
288	this act.
289	(b)  No stamp shall be applied to any cigarette package
290	exempt from tax under 26 U.S.C. s. 5704 that is distributed by a
291	manufacturer pursuant to federal regulations.
292	(c)  Dealers may apply stamps only to cigarette packages
293	received directly from a manufacturer or importer of cigarettes
294	who possesses a valid and current permit under 26 U.S.C. s.
295	5712.
296	(5)  Except as provided in s. 210.09(1), no person, other
297	than a dealer that receives unstamped cigarette packages
298	directly from a cigarette manufacturer or importer in accordance
299	with this section and s. 210.085, shall hold or possess an
300	unstamped cigarette package. Dealers shall be permitted to set
301	aside, without application of stamps, only such part of the
302	dealer's stock that is identified for sale or distribution
303	outside this state. If a dealer maintains stocks of unstamped
304	cigarette packages, such unstamped packages shall be stored
305	separately from stamped product packages. No unstamped cigarette
306	packages shall be transferred by a dealer to another facility of
307	the dealer within this state or to another person within this
308	state.
309	Section 17.  Section 210.085, Florida Statutes, is created
310	to read:
311	210.085  Transactions only with permitted manufacturers,
312	importers, distributing agents, dealers, and retail dealers. A
313	manufacturer, importer, or distributing agent may sell or
314	distribute cigarettes to a person located or doing business
315	within this state only if such person is a dealer with a valid,
316	current permit under s. 210.15. A dealer may sell or distribute
317	cigarettes to a person located or doing business within this
318	state only if such person is a dealer or retail dealer with a
319	valid, current permit under s. 569.003. A dealer may obtain
320	cigarettes only from a manufacturer or importer who possesses a
321	valid, current permit under 26 U.S.C. s. 5712 or from a
322	distributing agent or dealer with a valid, current permit under
323	s. 210.15. A retail dealer may obtain cigarettes only from a
324	manufacturer, importer, or dealer with a valid, current permit
325	under s. 210.15.
326	Section 18.  Subsection (1) of section 210.09, Florida
327	Statutes, is amended to read:
328	210.09  Records to be kept; reports to be made;
329	examination.--
330	(1)(a)  Every person who shall possess or transport any
331	unstamped cigarettes upon the public highways, roads, or streets
332	of the state, shall be required to have in his or her actual
333	possession invoices or delivery tickets for such cigarettes. The
334	absence of such invoices or delivery tickets shall be prima
335	facie evidence that such person is a dealer in cigarettes in
336	this state and subject to the provisions of this part.
337	(b)  Any person who ships unstamped cigarette packages into
338	this state other than to a manufacturer, importer, or dealer
339	holding a valid, current permit pursuant to s. 210.15 shall
340	first file with the division a notice of such shipment. This
341	paragraph shall not apply to any common or contract carrier that
342	is transporting cigarettes through this state to another
343	location outside this state under a proper bill of lading or
344	freight bill that states the quantity, source, and destination
345	of such cigarettes.
346	(c)  In any case in which the division or its duly
347	authorized agent, or any law enforcement officer of this state,
348	has knowledge or reasonable grounds to believe that any vehicle
349	is transporting cigarettes in violation of this part, the
350	division, such agent, or such law enforcement officer is
351	authorized to stop such vehicle and inspect the vehicle for
352	contraband cigarettes.
353	Section 19.  Subsection (1) of section 210.12, Florida
354	Statutes, is amended, subsections(2) through (6) of that section
355	are renumbered as subsections (4) through (8), respectively, and
356	new subsections (2) and (3) are added to that section, to read:
357	210.12  Seizures; forfeiture proceedings.--
358	(1)  The state, acting by and through the division, shall
359	be authorized and empowered to seize, confiscate, and forfeit
360	for the use and benefit of the state, any cigarettes upon which
361	taxes payable hereunder may be unpaid or that are otherwise held
362	in violation of the requirements of this chapter, and also any
363	vending machine or receptacle in which such cigarettes upon
364	which taxes have not been paid are held for sale, or any vending
365	machine that does not have affixed thereto the identification
366	sticker required by the provisions of s. 210.07, or which does
367	not display at all times at least one package of each brand of
368	cigarettes located therein so the same is clearly visible and
369	arranged in such a manner that the cigarette tax stamp or meter
370	impression of the stamp affixed thereto is clearly visible. Such
371	seizure may be made by the division, its duly authorized
372	representative, any sheriff or deputy sheriff, or any police
373	officer.
374	(2)  All fixtures, equipment, and other materials and
375	personal property on the premises of any dealer or retail dealer
376	who, with intent to defraud the state, fails to keep or make any
377	record, return, report, or inventory required by this part;
378	keeps or makes any false or fraudulent record, return, report,
379	or inventory required by this part; refuses to pay any tax
380	imposed by this part; or attempts in any manner to evade or
381	defeat the requirements of this part shall be forfeited to the
382	state.
383	(3)  All cigarettes seized, confiscated, and forfeited to
384	the state under this part shall be destroyed.
385	Section 20.  Subsection (1) of section 210.15, Florida
386	Statutes, is amended to read:
387	210.15  Permits.--
388	(1)(a)  Every person, firm, or corporation desiring to
389	engage in business as a manufacturer, importer, exporter,
390	distributing agent, or wholesale dealer of cigarettes deal in
391	cigarettes as a distributing agent, wholesale dealer, or
392	exporter within this state shall file with the division an
393	application for a cigarette permit for each place of business
394	located within this state or, in the absence of such place of
395	business in this state, for wherever its principal place of
396	business is located with the Division of Alcoholic Beverages and
397	Tobacco. Every application for a cigarette permit shall be made
398	on forms furnished by the division and shall set forth the name
399	under which the applicant transacts or intends to transact
400	business, the location of the applicant's place of business
401	within the state, if any, and such other information as the
402	division may require. If the applicant has or intends to have
403	more than one place of business dealing in cigarettes within
404	this state, the application shall state the location of each
405	place of business. If the applicant is an association, the
406	application shall set forth the names and addresses of the
407	persons constituting the association, and if a corporation, the
408	names and addresses of the principal officers thereof and any
409	other information prescribed by the division for the purpose of
410	identification. The application shall be signed and verified by
411	oath or affirmation by the owner, if a natural person, and in
412	the case of an association or partnership, members or partners
413	thereof, and in the case of a corporation, by an executive
414	officer thereof or by any person specifically authorized by the
415	corporation to sign the application, to which shall be attached
416	the written evidence of this authority. The cigarette permit for
417	a distributing agent shall be issued annually for which an
418	annual fee of $5 shall be charged.
419	(b)  The holder of any duly issued, annual permit for a
420	distributing agent shall be entitled to a renewal of his or her
421	annual permit from year to year as a matter of course, on or
422	before July 1, upon making application to the division and upon
423	payment of this annual permit fee.
424	(c)  Permits The permit for a distributing agent, wholesale
425	dealer, or exporter shall be issued only to persons of good
426	moral character, who are not less than 18 years of age.
427	Distributing agent, wholesale dealer, or exporter Permits to
428	corporations shall be issued only to corporations whose officers
429	are of good moral character and not less than 18 years of age.
430	There shall be no exemptions from the permit fees herein
431	provided to any persons, association of persons, or corporation,
432	any law to the contrary notwithstanding.
433	(d)  No distributing agent, wholesale dealer, or exporter
434	permit shall be issued, maintained, or renewed if the applicant,
435	its officers, or any person or persons owning directly or
436	indirectly, in the aggregate, more than 10 percent of the
437	ownership interests in the applicant:
438	1.  Owes $500 or more in delinquent cigarette taxes;
439	2.  Had a cigarette importer, retail dealer, or dealer
440	permit revoked by the division within the previous 2 years;
441	3.  Has been convicted of selling stolen or counterfeit
442	cigarettes, receiving stolen cigarettes, or being involved in
443	the counterfeiting of cigarettes; or
444	4.  Has to any person who has been convicted within the
445	past 5 years of any offense against the cigarette laws of this
446	state or who has been convicted in this state, any other state,
447	or the United States during the past 5 years of any offense
448	designated as a felony by such state or the United States, or to
449	a corporation, any of whose officers have been so convicted. The
450	term "convicted" "conviction" shall include an adjudication of
451	guilt on a plea of guilty or a plea of nolo contendere, or the
452	forfeiture of a bond when charged with a crime.
453	(e)(d)  The division may refuse to issue a distributing
454	agent, wholesale, or exporter permit to any person, firm, or
455	corporation whose permit under the cigarette law has been
456	revoked or to any corporation, an officer of which has had his
457	or her permit under the cigarette law revoked, or to any person
458	who is or has been an officer of a corporation whose permit has
459	been revoked under the cigarette law. Any permit issued to a
460	firm or corporation prohibited from obtaining such permit under
461	the cigarette law may be revoked by the division.
462	(f)(e)  Prior to an application for a distributing agent,
463	wholesale dealer, or exporter permit being approved, the
464	applicant shall file a set of fingerprints on forms provided by
465	the division. The applicant shall also file a set of
466	fingerprints for any person or persons interested directly or
467	indirectly with the applicant in the business for which the
468	permit is being sought, when so required by the division. If the
469	applicant or any person interested with the applicant, either
470	directly or indirectly, in the business for which the permit is
471	sought shall be such a person as is within the definition of
472	persons to whom a distributing agent, wholesale dealer, or
473	exporter permit shall be denied, then the application may be
474	denied by the division. If the applicant is a partnership, all
475	members of the partnership are required to file said
476	fingerprints, or if a corporation, all principal officers of the
477	corporation are required to file said fingerprints. The
478	cigarette permit for a wholesale dealer or exporter shall be
479	originally issued at a fee of $100, which sum is to cover the
480	cost of the investigation required before issuing such permit.
481	(g)(f)  The cigarette permits issued under this section
482	permit for a wholesale dealer or exporter shall be renewed from
483	year to year as a matter of course, at an annual cost of $100,
484	on or before July 1, upon making application to the division and
485	upon payment of the annual renewal fee.
486	(h)(g)  Permittees, by acceptance of their permits, agree
487	that their places of business or vehicles transporting
488	cigarettes shall always be subject to be inspected and searched
489	without a search warrant for the purpose of ascertaining that
490	all provisions of this part are complied with by authorized
491	employees of the division and also by sheriffs, deputy sheriffs,
492	and police officers during business hours or during any other
493	time such premises are occupied by the permittee or other
494	persons. Retail cigarette dealers and manufacturers'
495	representatives, by dealing in cigarettes, agree that their
496	places of business or vehicles transporting cigarettes shall
497	always be subject to inspection and search without a search
498	warrant for the purpose of ascertaining that all provisions of
499	this part are complied with by authorized employees of the
500	division and also by sheriffs, deputy sheriffs, and police
501	officers during business hours or other times when the premises
502	are occupied by the retail dealer or manufacturers'
503	representatives or other persons.
504	(i)(h)  No retail sales of cigarettes may be made at a
505	location for which a wholesale dealer, distributing agent, or
506	exporter permit has been issued. The excise tax on sales made to
507	any traveling location, such as an itinerant store or industrial
508	caterer, shall be paid into the General Revenue Fund
509	unallocated. Cigarettes may be purchased for retail purposes
510	only from a person holding a wholesale dealer permit. The
511	invoice for the purchase of cigarettes must show the place of
512	business for which the purchase is made and the cigarettes
513	cannot be transferred to any other place of business for the
514	purpose of resale.
515	Section 21.  Subsections (2), (3), and (6) of section
516	210.18, Florida Statutes, are amended, and subsection (9) is
517	added to that section, to read:
518	210.18  Penalties for tax evasion; reports by sheriffs.--
519	(2)  Except as otherwise provided in this section, any
520	person wholesale or retail dealer who fails, neglects, or
521	refuses to comply with, or violates the provisions of, this part
522	or the rules adopted and regulations promulgated by the division
523	under this part commits is guilty of a misdemeanor of the first
524	degree, punishable as provided in s. 775.082 or s. 775.083. Any
525	person wholesale or retail dealer who has been convicted of a
526	violation of any provision of the cigarette tax law and who is
527	thereafter convicted of a further violation of the cigarette tax
528	law is, upon conviction of such further offense, guilty of a
529	felony of the third degree, punishable as provided in s.
530	775.082, s. 775.083, or s. 775.084.
531	(3)  Any person who falsely or fraudulently makes, forges,
532	alters, or counterfeits any stamp or impression die used in
533	meter machines prescribed by the division under the provisions
534	of this part; or, with intent to evade taxes, jams, tampers
535	with, or alters such a machine; or causes or procures to be
536	falsely or fraudulently made, forged, altered, or counterfeited
537	any such stamp or die; or knowingly and willfully utters,
538	purchases, passes or tenders as true any such false, altered, or
539	counterfeited stamp or die impression; or with the intent to
540	defraud the state, fails to comply with any other requirement of
541	this chapter commits is guilty of a felony of the third degree,
542	punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
543	(6)(a)  Every person, firm, or corporation, other than a
544	licensee under the provisions of this part, who possesses,
545	removes, deposits, or conceals, or aids in the possessing,
546	removing, depositing, or concealing of, any unstamped cigarettes
547	not in excess of 50 cartons is guilty of a misdemeanor of the
548	second degree, punishable as provided in s. 775.082 or s.
549	775.083. In lieu of the penalties provided in those sections,
550	however, the person, firm, or corporation may pay the tax plus a
551	penalty equal to the amount of the tax authorized under s.
552	210.02 on the unstamped cigarettes.
553	(a)(b)  Every person, firm, or corporation, other than a
554	licensee under the provisions of this part, who possesses,
555	removes, deposits, or conceals, or aids in the possessing,
556	removing, depositing, or concealing of, any unstamped cigarettes
557	in excess of 50 cartons is presumed to have knowledge that they
558	have not been taxed and commits is guilty of a felony of the
559	third degree, punishable as provided in s. 775.082, s. 775.083,
560	or s. 775.084.
561	(b)(c)  This section does not apply to a person possessing
562	not in excess of three cartons of such cigarettes purchased by
563	such possessor outside the state in accordance with the laws of
564	the place where purchased and brought into this state by such
565	possessor. The burden of proof that such cigarettes were
566	purchased outside the state and in accordance with the laws of
567	the place where purchased shall in all cases be upon the
568	possessor of such cigarettes.
569	(9)  Notwithstanding any other provision of law, the sale
570	or possession for sale of counterfeit cigarettes by any person
571	or by a manufacturer, importer, distributing agent, wholesale
572	dealer, or retail dealer shall result in the seizure of the
573	product and related machinery by the division or any law
574	enforcement agency and shall be punishable as follows:
575	(a)1.  A first violation with a total quantity of less than
576	two cartons of cigarettes or the equivalent amount of other
577	cigarettes shall be punishable by a fine not to exceed $1,000 or
578	five times the retail value of the cigarettes involved,
579	whichever is greater, or imprisonment not to exceed 5 years, or
580	both.
581	2.  A subsequent violation with a total quantity of less
582	than two cartons of cigarettes or the equivalent amount of other
583	cigarettes shall be punishable by a fine not to exceed $5,000 or
584	five times the retail value of the cigarettes involved,
585	whichever is greater, or imprisonment not to exceed 5 years, or
586	both, and shall also result in the revocation by the division of
587	the permit of the manufacturer, importer, distributing agent,
588	wholesale dealer, or retail dealer.
589	(b)1.  A first violation with a total quantity of two or
590	more cartons of cigarettes or the equivalent amount of other
591	cigarettes shall be punishable by a fine not to exceed $2,000 or
592	five times the retail value of the cigarettes involved,
593	whichever is greater, or imprisonment not to exceed 5 years, or
594	both.
595	2.  A subsequent violation with a quantity of two cartons
596	of cigarettes or more or the equivalent amount of other
597	cigarettes shall be punishable by a fine not to exceed $50,000
598	or five times the retail value of the cigarettes involved,
599	whichever is greater, or imprisonment not to exceed 5 years, or
600	both, and shall also result in the revocation by the division of
601	the permit of the manufacturer, importer, distributing agent,
602	wholesale dealer, or retail dealer.
603
604	For purposes of this subsection, any counterfeit cigarettes
605	seized by the division shall be destroyed.
606	Section 22.  Section 210.181, Florida Statutes, is created
607	to read:
608	210.181  Civil penalties.--
609	(1)  Whoever knowingly omits, neglects, or refuses to
610	comply with any duty imposed upon him or her by this part, or to
611	do or cause to be done any of the things required by this part,
612	or does anything prohibited by this part shall, in addition to
613	any other penalty provided in this part, be liable for a fine of
614	$1,000 or five times the retail value of the cigarettes
615	involved, whichever is greater.
616	(2)  Whoever fails to pay any tax imposed by this part at
617	the time prescribed by law or rules shall, in addition to any
618	other penalty provided in this part, be liable for a penalty of
619	five times the unpaid tax due.
620	Section 23.  For the purpose of incorporating the amendment
621	made by this act to section 210.18, Florida Statutes, in a
622	reference thereto, paragraph (a) of subsection(1) of section
623	772.102, Florida Statutes, is reenacted to read:
624	772.102  Definitions.--As used in this chapter, the term:
625	(1)  "Criminal activity" means to commit, to attempt to
626	commit, to conspire to commit, or to solicit, coerce, or
627	intimidate another person to commit:
628	(a)  Any crime which is chargeable by indictment or
629	information under the following provisions:
630	1.  Section 210.18, relating to evasion of payment of
631	cigarette taxes.
632	2.  Section 414.39, relating to public assistance fraud.
633	3.  Section 440.105 or s. 440.106, relating to workers'
634	compensation.
635	4.  Part IV of chapter 501, relating to telemarketing.
636	5.  Chapter 517, relating to securities transactions.
637	6.  Section 550.235, s. 550.3551, or s. 550.3605, relating
638	to dogracing and horseracing.
639	7.  Chapter 550, relating to jai alai frontons.
640	8.  Chapter 552, relating to the manufacture, distribution,
641	and use of explosives.
642	9.  Chapter 562, relating to beverage law enforcement.
643	10.  Section 624.401, relating to transacting insurance
644	without a certificate of authority, s. 624.437(4)(c)1., relating
645	to operating an unauthorized multiple-employer welfare
646	arrangement, or s. 626.902(1)(b), relating to representing or
647	aiding an unauthorized insurer.
648	11.  Chapter 687, relating to interest and usurious
649	practices.
650	12.  Section 721.08, s. 721.09, or s. 721.13, relating to
651	real estate timeshare plans.
652	13.  Chapter 782, relating to homicide.
653	14.  Chapter 784, relating to assault and battery.
654	15.  Chapter 787, relating to kidnapping.
655	16.  Chapter 790, relating to weapons and firearms.
656	17.  Section 796.03, s. 796.04, s. 796.05, or s. 796.07,
657	relating to prostitution.
658	18.  Chapter 806, relating to arson.
659	19.  Section 810.02(2)(c), relating to specified burglary
660	of a dwelling or structure.
661	20.  Chapter 812, relating to theft, robbery, and related
662	crimes.
663	21.  Chapter 815, relating to computer-related crimes.
664	22.  Chapter 817, relating to fraudulent practices, false
665	pretenses, fraud generally, and credit card crimes.
666	23.  Section 827.071, relating to commercial sexual
667	exploitation of children.
668	24.  Chapter 831, relating to forgery and counterfeiting.
669	25.  Chapter 832, relating to issuance of worthless checks
670	and drafts.
671	26.  Section 836.05, relating to extortion.
672	27.  Chapter 837, relating to perjury.
673	28.  Chapter 838, relating to bribery and misuse of public
674	office.
675	29.  Chapter 843, relating to obstruction of justice.
676	30.  Section 847.011, s. 847.012, s. 847.013, s. 847.06, or
677	s. 847.07, relating to obscene literature and profanity.
678	31.  Section 849.09, s. 849.14, s. 849.15, s. 849.23, or s.
679	849.25, relating to gambling.
680	32.  Chapter 893, relating to drug abuse prevention and
681	control.
682	33.  Section 914.22 or s. 914.23, relating to witnesses,
683	victims, or informants.
684	34.  Section 918.12 or s. 918.13, relating to tampering
685	with jurors and evidence.
686	Section 24.  For the purpose of incorporating the amendment
687	made by this act to section 210.18, Florida Statutes, in a
688	reference thereto, paragraph (a) of subsection(1) of section
689	895.02, Florida Statutes, is reenacted to read:
690	895.02  Definitions.--As used in ss. 895.01-895.08, the
691	term:
692	(1)  "Racketeering activity" means to commit, to attempt to
693	commit, to conspire to commit, or to solicit, coerce, or
694	intimidate another person to commit:
695	(a)  Any crime which is chargeable by indictment or
696	information under the following provisions of the Florida
697	Statutes:
698	1.  Section 210.18, relating to evasion of payment of
699	cigarette taxes.
700	2.  Section 403.727(3)(b), relating to environmental
701	control.
702	3.  Section 414.39, relating to public assistance fraud.
703	4.  Section 409.920, relating to Medicaid provider fraud.
704	5.  Section 440.105 or s. 440.106, relating to workers'
705	compensation.
706	6.  Sections 499.0051, 499.0052, 499.0053, 499.0054, and
707	499.0691, relating to crimes involving contraband and
708	adulterated drugs.
709	7.  Part IV of chapter 501, relating to telemarketing.
710	8.  Chapter 517, relating to sale of securities and
711	investor protection.
712	9.  Section 550.235, s. 550.3551, or s. 550.3605, relating
713	to dogracing and horseracing.
714	10.  Chapter 550, relating to jai alai frontons.
715	11.  Chapter 552, relating to the manufacture,
716	distribution, and use of explosives.
717	12.  Chapter 560, relating to money transmitters, if the
718	violation is punishable as a felony.
719	13.  Chapter 562, relating to beverage law enforcement.
720	14.  Section 624.401, relating to transacting insurance
721	without a certificate of authority, s. 624.437(4)(c)1., relating
722	to operating an unauthorized multiple-employer welfare
723	arrangement, or s. 626.902(1)(b), relating to representing or
724	aiding an unauthorized insurer.
725	15.  Section 655.50, relating to reports of currency
726	transactions, when such violation is punishable as a felony.
727	16.  Chapter 687, relating to interest and usurious
728	practices.
729	17.  Section 721.08, s. 721.09, or s. 721.13, relating to
730	real estate timeshare plans.
731	18.  Chapter 782, relating to homicide.
732	19.  Chapter 784, relating to assault and battery.
733	20.  Chapter 787, relating to kidnapping.
734	21.  Chapter 790, relating to weapons and firearms.
735	22.  Section 796.03, s. 796.04, s.  796.05, or s. 796.07,
736	relating to prostitution.
737	23.  Chapter 806, relating to arson.
738	24.  Section 810.02(2)(c), relating to specified burglary
739	of a dwelling or structure.
740	25.  Chapter 812, relating to theft, robbery, and related
741	crimes.
742	26.  Chapter 815, relating to computer-related crimes.
743	27.  Chapter 817, relating to fraudulent practices, false
744	pretenses, fraud generally, and credit card crimes.
745	28.  Chapter 825, relating to abuse, neglect, or
746	exploitation of an elderly person or disabled adult.
747	29.  Section 827.071, relating to commercial sexual
748	exploitation of children.
749	30.  Chapter 831, relating to forgery and counterfeiting.
750	31.  Chapter 832, relating to issuance of worthless checks
751	and drafts.
752	32.  Section 836.05, relating to extortion.
753	33.  Chapter 837, relating to perjury.
754	34.  Chapter 838, relating to bribery and misuse of public
755	office.
756	35.  Chapter 843, relating to obstruction of justice.
757	36.  Section 847.011, s. 847.012, s. 847.013, s. 847.06, or
758	s. 847.07, relating to obscene literature and profanity.
759	37.  Section 849.09, s. 849.14, s. 849.15, s. 849.23, or s.
760	849.25, relating to gambling.
761	38.  Chapter 874, relating to criminal street gangs.
762	39.  Chapter 893, relating to drug abuse prevention and
763	control.
764	40.  Chapter 896, relating to offenses related to financial
765	transactions.
766	41.  Sections 914.22 and 914.23, relating to tampering with
767	a witness, victim, or informant, and retaliation against a
768	witness, victim, or informant.
769	42.  Sections 918.12 and 918.13, relating to tampering with
770	jurors and evidence.
771	Section 25.  For the 2004-2005 fiscal year, the sum of
772	$480,028 is appropriated from the Alcoholic Beverage and Tobacco
773	Trust Fund and four full-time equivalent positions are
774	authorized to be established by the Department of Business and
775	Professional Regulation for the purpose of conducting regulatory
776	activities related to the transportation and sale of cigarettes.
777	Section 26.  From the funds generated by this act, the sum
778	of $2 million is appropriated to the Department of Health to
779	address health care disparities in the minority community.
780	Section 27.  Subsection (2) of section 17.41, Florida
781	Statutes, is amended to read:
782	17.41  Department of Financial Services Tobacco Settlement
783	Clearing Trust Fund.--
784	(2)  Funds to be credited to the Tobacco Settlement
785	Clearing Trust Fund shall consist of payments received by the
786	state from settlement of State of Florida v. American Tobacco
787	Co., No. 95-1466AH (Fla. 15th Cir. Ct. 1996) and fees from the
788	nonsettling-manufacturer fee collected pursuant to s. 210.0205.
789	Moneys received from the settlement and fees and deposited into
790	the trust fund are exempt from the service charges imposed under
791	s. 215.20.
792
793	Proceeds shall be distributed for restoring services, to
794	individuals receiving residential habilitation and adult day
795	training services under the Developmental Disabilities Home and
796	Community Based Services Waiver whose services were reduced on
797	November 1, 2004.
798	Section 28.  This act shall take effect upon becoming a
799	law.
800
801	================= T I T L E  A M E N D M E N T =================
802	On page 2, remove line 15, and insert:
803	creating s. 210.0205, F.S.; providing definitions;
804	imposing a fee on certain cigarettes; providing payment
805	requirements; requiring reporting of the number and
806	denominations of stamps affixed to individual packages of
807	certain cigarettes by manufacturer and brand family;
808	authorizing rulemaking regarding such reports; requiring
809	registration with the Division of Alcoholic Beverages and
810	Tobacco of the Department of Business and Professional
811	Regulation of nonsettling manufacturers of cigarettes;
812	requiring development, maintenance, and publication by the
813	division of a list of nonsettling manufacturers of
814	cigarettes which have certified their compliance with this
815	act; treating cigarettes of certain manufacturers that
816	have not paid the fee imposed by this act or that have not
817	complied with reporting requirements as cigarettes for
818	which the tax imposed by s. 210.02, F.S., has not been
819	paid; prohibiting the stamping of certain cigarettes for
820	which the fee imposed by this act has not been paid in
821	full or the nonsettling manufacturer of which has not
822	complied with reporting requirements; amending s. 210.01,
823	F.S.; revising and providing definitions; amending s.
824	210.05, F.S.; providing stamp requirements for cigarettes
825	in transport; providing stamp exceptions for certain
826	cigarettes; requiring transporters of certain cigarettes
827	to submit certain reports; amending s. 210.06, F.S.;
828	revising requirements for and limitations on the
829	affixation of stamps; providing requirements with respect
830	to receipt, possession, storage, and transport of
831	unstamped cigarette packages; creating s. 210.085, F.S.;
832	requiring manufacturers, importers, distributing agents,
833	dealers, and retail dealers to hold a current, valid
834	permit to sell, distribute, or receive cigarettes;
835	amending s. 210.09, F.S.; providing notice and filing
836	guidelines for certain person shipping unstamped cigarette
837	packages; authorizing certain law enforcement officials to
838	inspect certain shipping vehicles; amending s. 210.12,
839	F.S.; authorizing the state to claim certain property and
840	materials from certain dealers and retailers who attempt
841	to defraud the state; authorizing the destruction of
842	certain cigarettes; amending s. 210.15, F.S.; providing
843	criteria for permit application; prohibiting issuance,
844	maintenance, or renewal of certain permits for certain
845	applicants; providing guidelines for permit application
846	denial; amending s. 210.18, F.S.; expanding the group of
847	violators subject to criminal liability; prohibiting the
848	sale or possession for sale of counterfeit cigarettes;
849	providing penalties; creating s. 210.181, F.S.; providing
850	civil penalties for failure to comply with certain duties
851	or pay certain taxes; reenacting ss. 772.102(1)(a) and
852	895.02(1)(a), F.S., relating to crimes constituting a
853	"criminal activity" and definitions as used in the Florida
854	RICO Act, to incorporate the amendment to s. 210.18, F.S.,
855	in references thereto; providing an appropriation and
856	authorizing positions; providing an appropriation to the
857	Department of Health; providing purposes; amending s.
858	17.41, F.S.; providing additional source of revenue to the
859	Tobacco Settlement Trust Fund; requiring proceeds to be
860	distributed to certain individuals for restoration
861	services; providing an effective date.
862
863	WHEREAS, it is the intent of the Legislature to prevent
864	nonsettling manufacturers from undermining the state's policy of
865	reducing underage smoking by offering their cigarettes for sale
866	substantially below the price of cigarettes of other
867	manufacturers; to protect the tobacco settlement agreement and
868	funding, which is reduced as a result of the growth of
869	nonsettling-manufacturer cigarette sales, for programs funded in
870	whole or in part by payments to the state under the tobacco
871	settlement agreement and to recoup for the state settlement-
872	payment revenue lost to the state as a result of nonsettling-
873	manufacturer cigarette sales; to fund enforcement and
874	administration of nonsettling-manufacturer legislation and the
875	fee imposed in this act, including reasonable administrative
876	costs incurred by wholesale dealers complying with any
877	additional reporting requirements necessitated by this act; and
878	to fund such other purposes as the Legislature determines, NOW,
879	THEREFORE,

CODING: Words stricken are deletions; words underlined are additions.