Senate Bill sb2012

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    Florida Senate - 2005                                  SB 2012

    By Senator Dockery





    15-942A-05

  1                      A bill to be entitled

  2         An act relating to the transportation and sale

  3         of cigarettes; amending s. 210.01, F.S.;

  4         revising and providing definitions; creating s.

  5         210.0205, F.S.; providing definitions; imposing

  6         a fee on certain cigarettes; providing payment

  7         requirements; requiring reporting of the number

  8         and denominations of stamps affixed to

  9         individual packages of certain cigarettes by

10         manufacturer and brand family; authorizing

11         rulemaking regarding such reports; requiring

12         registration with the Division of Alcoholic

13         Beverages and Tobacco of the Department of

14         Business and Professional Regulation of

15         nonsettling manufacturers of cigarettes;

16         requiring development, maintenance, and

17         publication by the division of a list of

18         nonsettling manufacturers of cigarettes which

19         have certified their compliance with the act;

20         treating cigarettes of certain manufacturers

21         that have not paid the fee imposed by this act

22         or that have not complied with reporting

23         requirements as cigarettes for which the tax

24         imposed by s. 210.02, F.S., has not been paid;

25         prohibiting the stamping of certain cigarettes

26         for which the fee imposed by the act has not

27         been paid in full or the nonsettling

28         manufacturer of which has not complied with

29         reporting requirements; delaying application of

30         the fee to a subsequent participating

31         manufacturer under certain circumstances;

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 1         amending s. 210.05, F.S.; providing stamp

 2         requirements for cigarettes in transport;

 3         providing stamp exceptions for certain

 4         cigarettes; requiring transporters of certain

 5         cigarettes to submit certain reports; amending

 6         s. 210.06, F.S.; revising requirements for and

 7         limitations on the affixation of stamps;

 8         providing requirements with respect to receipt,

 9         possession, storage, and transport of unstamped

10         cigarette packages; creating s. 210.085, F.S.;

11         requiring manufacturers, importers,

12         distributing agents, dealers, and retail

13         dealers to hold a current, valid permit to

14         sell, distribute, or receive cigarettes;

15         amending s. 210.09, F.S.; providing notice and

16         filing guidelines for certain persons shipping

17         unstamped cigarette packages; authorizing

18         certain law enforcement officials to inspect

19         certain shipping vehicles; amending s. 210.12,

20         F.S.; authorizing the state to claim certain

21         property and materials from certain dealers and

22         retailers who attempt to defraud the state;

23         authorizing the destruction of certain

24         cigarettes; amending s. 210.15, F.S.; providing

25         criteria for a permit application; prohibiting

26         issuance, maintenance, or renewal of certain

27         permits for certain applicants; providing

28         guidelines for denial of a permit application;

29         amending s. 210.18, F.S.; expanding the group

30         of violators subject to criminal liability;

31         prohibiting the sale or possession for sale of

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 1         counterfeit cigarettes; providing penalties;

 2         creating s. 210.181, F.S.; providing civil

 3         penalties for failure to comply with certain

 4         duties or pay certain taxes; reenacting ss.

 5         772.102(1)(a) and 895.02(1)(a), F.S., relating

 6         to crimes constituting a "criminal activity"

 7         and definitions as used in the Florida RICO

 8         Act, to incorporate the amendment to s. 210.18,

 9         F.S., in references thereto; providing an

10         appropriation and authorizing positions;

11         providing an appropriation to the Department of

12         Health; providing purposes; amending s. 17.41,

13         F.S.; providing an additional source of revenue

14         to the Tobacco Settlement Trust Fund; providing

15         an effective date.

16  

17         WHEREAS, it is the intent of the Legislature to prevent

18  nonsettling manufacturers from undermining the state's policy

19  of reducing underage smoking by offering their cigarettes for

20  sale substantially below the price of cigarettes of other

21  manufacturers; to protect the tobacco settlement agreement and

22  funding, which is reduced as a result of the growth of

23  nonsettling-manufacturer cigarette sales, for programs funded

24  in whole or in part by payments to the state under the tobacco

25  settlement agreement and to recoup for the state

26  settlement-payment revenue lost to the state as a result of

27  nonsettling-manufacturer cigarette sales; to fund enforcement

28  and administration of nonsettling-manufacturer legislation and

29  the fee imposed in this act, including reasonable

30  administrative costs incurred by wholesale dealers complying

31  with any additional reporting requirements necessitated by

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 1  this act; and to fund such other purposes as the Legislature

 2  determines, NOW, THEREFORE,

 3  

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

 5  

 6         Section 1.  Subsections (6) and (7) of section 210.01,

 7  Florida Statutes, are amended, and subsections (19) through

 8  (22) are added to that section, to read:

 9         210.01  Definitions.--When used in this part the

10  following words shall have the meaning herein indicated:

11         (6)  "Wholesale dealer" means any person located inside

12  or outside this state who sells cigarettes to retail dealers

13  or other persons for purposes of resale only, or any person

14  who operates more than one cigarette vending machine located

15  in more than one place of business. Such term does not include

16  any cigarette manufacturer, export warehouse proprietor, or

17  importer who holds a valid permit under 26 U.S.C. s. 5712 if

18  such person sells or distributes cigarettes in this state only

19  to dealers who are agents and who hold valid and current

20  permits under s. 210.15 or to any cigarette manufacturer,

21  export warehouse proprietor, or importer who holds a valid and

22  current permit under 26 U.S.C. s. 5712.

23         (7)  "Retail dealer" means any person located inside or

24  outside this state other than a wholesale dealer engaged in

25  the business of selling cigarettes, including persons licensed

26  pursuant to s. 569.003.

27         (19)  "Stamp" or "stamps" means the indicia required to

28  be placed on cigarette packages which evidences payment of the

29  tax on cigarettes under s. 210.02.

30         (20)  "Importer" means any person holding a valid

31  permit under 26 U.S.C. s. 5712 who imports into the United

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 1  States, directly or indirectly, a finished cigarette for sale

 2  or distribution.

 3         (21)  "Counterfeit cigarettes" means cigarettes that

 4  have false manufacturing labels, tobacco product packs with

 5  counterfeit tax stamps, or any combination thereof.

 6         (22)  "Brand family" means all styles of cigarettes

 7  sold under the same trademark and differentiated from one

 8  another by means of additional modifiers or descriptors,

 9  including, but not limited to, "menthol," "lights," "kings,"

10  and "100s," and includes any brand name used alone or in

11  conjunction with any other word, trademark, logo, symbol,

12  motto, selling message, recognizable pattern of colors, or any

13  other indicia of product identification identical or similar

14  to, or identifiable with, a previously known brand of

15  cigarettes.

16         Section 2.  Section 210.0205, Florida Statutes, is

17  created to read:

18         210.0205  Nonsettling-manufacturer fee.--

19         (1)  As used in this section, the term:

20         (a)  "Consumer Price Index" means the Consumer Price

21  Index for All Urban Consumers as published by the Bureau of

22  Labor Statistics of the United States Department of Labor.

23         (b)  "Manufacturer" means a person or entity holding a

24  valid permit under 26 U.S.C. s. 5712 that manufactures,

25  fabricates, or assembles cigarettes. The term includes an

26  entity that is the first importer into the United States of

27  cigarettes manufactured abroad.

28         (c)  "Nonsettling manufacturer" means any tobacco

29  product manufacturer that has not entered into the tobacco

30  settlement agreement defined in s. 215.56005(1)(f), or the

31  Attorneys General Settlement Agreement dated March 15, 1996,

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 1  in the State of Florida, et al. v. American Tobacco Company,

 2  et al., Fifteenth Judicial Circuit, Case No. 95-1466.

 3         (d)  "Nonsettling-manufacturer cigarettes" means

 4  cigarettes manufactured by a nonsettling manufacturer, except

 5  when payments on such cigarettes are due to be made by a

 6  settling manufacturer pursuant to a tobacco settlement

 7  agreement described in paragraph (c).

 8         (2)  A fee, in addition to all other taxes or fees of

 9  every kind imposed by law, is imposed upon the sale, receipt,

10  purchase, possession, consumption, handling, distribution, and

11  use in this state of nonsettling-manufactuer cigarettes to the

12  package of which an agent affixes a stamp or stamp insignia as

13  required by law or which are sold or purchased in the state

14  but are not required to bear a stamp or stamp insignia of this

15  state.  The fee is in the amount of 20 mills per cigarette in

16  fiscal year 2005-2006. Beginning January 1, 2007, and on

17  January 1 of each year thereafter, the division shall adjust

18  the tax rate by the greater of 3 percent or the percentage

19  change in the average of the Consumer Price Index issued by

20  the United States Department of Labor for the most recent

21  12-month period ending September 30 compared to the 12-month

22  period ending September 30 of the prior year.

23         (3)  The division shall collect the fee once each month

24  from each nonsettling manufacturer based on information

25  received pursuant to subsection (6). The division shall mail

26  to each nonsettling manufacturer not later than the 15th day

27  of each month a notice of the fee due from that manufacturer

28  for sales of its cigarettes made in the preceding month. Each

29  such nonsettling manufacturer shall ensure that the division

30  has received payment of the fee in full no later than the last

31  day of the month in which the notice was mailed. Except as

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 1  otherwise provided in this section, proceeds from the fee

 2  shall be deposited into the Tobacco Settlement Clearing Trust

 3  Fund and the fee shall be imposed, collected, paid,

 4  administered, and enforced in the same manner as the tax on

 5  cigarettes imposed by s. 210.02.

 6         (4)  A nonsettling manufacturer selling cigarettes in

 7  this state on July 1, 2005, shall provide to the division the

 8  information described in subsections (7) and (8) and pay the

 9  fee imposed by subsection (2), by August 1, 2005. If a

10  nonsettling manufacturer is not selling cigarettes in this

11  state on July 1, 2005, before commencing sales of cigarettes

12  in this state, the nonsettling manufacturer shall prepay the

13  fee imposed by subsection (2). The prepayment amount shall be

14  a sum determined by multiplying by 20 mills in fiscal year

15  2005-2006 the number of cigarettes the division reasonably

16  projects that the nonsettling manufacturer will sell in this

17  state in the first calendar month or $50,000, whichever is

18  more. The division may require a nonsettling manufacturer to

19  provide any information reasonably necessary to determine the

20  amount of the prepayment fee and, in the case of prepayment,

21  shall establish procedures for providing reimbursement to

22  nonsettling manufacturers if actual sales are less than sales

23  projected by the division and for additional payment by

24  nonsettling manufacturers if actual sales are greater than

25  sales projected by the division. As used in this subsection,

26  the term "cigarettes" refers only to nonsettling-manufacturer

27  cigarettes.

28         (5)  The purposes of the fee are to:

29         (a)  Prevent nonsettling manufacturers from undermining

30  the state's policy of reducing underage smoking by offering

31  

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 1  cigarettes for sale substantially below the price of

 2  cigarettes of other manufacturers.

 3         (b)1.  Protect the tobacco settlement agreement, as

 4  defined in s. 215.56005(1)(f), and funding, which is reduced

 5  as a result of the growth of nonsettling-manufacturer

 6  cigarette sales, for programs funded in whole or in part by

 7  payments to the state under the tobacco settlement agreement;

 8  and

 9         2.  Recoup for the state settlement-payment revenue

10  lost to the state as a result of nonsettling-manufacturer

11  cigarette sales.

12         (c)  Fund enforcement and administration of

13  nonsettling-manufacturer legislation and the fee imposed by

14  this section, including reasonable administrative costs

15  incurred by wholesale dealers complying with any additional

16  reporting requirements necessitated by this section.

17         (d)  Fund such other purposes as the Legislature

18  determines; however, $16 million of the proceeds received

19  under this section shall be provided annually through

20  quarterly disbursements to the Department of Health, for the

21  purposes of implementing a statewide anti-smoking marketing,

22  educational, and advertising campaign to reduce youth tobacco

23  use. The Department of Health shall conduct surveillance and

24  evaluations to measure program performance and improve

25  implementation strategies. The Department of Health may

26  contract for any of the activities specified in this section.

27         (6)  Monthly reports shall be made to the division

28  pursuant to s. 210.09(2) by each agent and wholesaler. Such

29  reports must state the number and denominations of stamps or

30  stamp insignia affixed to individual packages of

31  nonsettling-manufacturer cigarettes and the number of

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 1  individual packages of nonsettling-manufacturer cigarettes

 2  otherwise sold or purchased in this state or otherwise handled

 3  or distributed in this state for sale in another state,

 4  commonwealth, or territory of the United States, by

 5  manufacturer and brand family, sold for each place of business

 6  in the month preceding the month in which the report is made.

 7  The division may adopt rules requiring any agent, wholesaler,

 8  wholesale dealer, or nonsettling manufacturer to provide in

 9  the monthly report any information necessary or appropriate to

10  determing the fee due under subsection (2) or to enforcing

11  this section.

12         (7)  Before commencing sales of cigarettes in this

13  state or, if selling cigarettes in this state on July 1, 2005,

14  by August 1, 2005, a nonsettling manufacturer shall provide to

15  the division, on a form prescribed by the division:

16         (a)  The complete name, address, and telephone number

17  of the nonsettling manufacturer.

18         (b)  The date the nonsettling manufacturer began or

19  intends to begin selling cigarettes in this state.

20         (c)  The names of the brand families of the cigarettes

21  the nonsettling manufacturer is selling or will sell in this

22  state.

23         (d)  A statement of the nonsettling manufacturer's

24  intention to comply with the obligations imposed by this

25  section.

26         (e)  The name, address, telephone number, and signature

27  of an officer of the nonsettling manufacturer attesting to all

28  of the information described in this subsection.

29         (8)  Each nonsettling manufacturer subject to the fee

30  imposed by subsection (2) shall certify to the division on the

31  first day of each month that the manufacturer is in compliance

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 1  with this section and has paid in full the fee imposed by

 2  subsection (2). The division shall develop, maintain, and

 3  publish on its Internet website a directory listing all

 4  nonsettling manufacturers that have provided current,

 5  accurate, and complete certifications. The division shall

 6  provide a copy of the list to any person upon request.

 7         (9)  Cigarettes of a nonsettling manufacturer that has

 8  not paid a fee imposed by subsection (2), or that has not

 9  complied with the reporting requirements of subsections (4),

10  (6), (7), and (8), shall be treated as cigarettes for which

11  the tax imposed by s. 210.02 has not been paid. A person may

12  not affix to any package of nonsetttling-manufacturer

13  cigarettes the stamp required under s. 210.06, or otherwise

14  purchase or sell such cigarettes, after such person receives

15  notice from the division that the nonsettling manufacturer of

16  such cigarettes has not paid in full the fee imposed by

17  subsection (2) or if the nonsettling manufacturer is not

18  listed on the division's directory described in subsection

19  (8).

20         (10)  The fee imposed by this section does not apply to

21  a subsequent participating manufacturer, as defined in the

22  master settlement agreement, until the effective date of a

23  credit amendment to the master settlement agreement. For

24  purposes of this subsection and s. 210.05(6)(c), the term

25  "master settlement agreement" means the settlement agreement

26  and related documents entered into in 1998 by 46 states and

27  leading United States tobacco manufacturers. An amendment to

28  the master settlement agreement shall be considered a credit

29  amendment if it makes available to each subsequent

30  participating manufacturer, other than any subsequent

31  participating manufacturer that has an agreement as of July 1,

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 1  2005, as described in the final sentence of this subsection,

 2  each year a credit against its payment obligations under the

 3  master settlement agreement which is equal to or greater than

 4  the product of the total number of individual cigarettes sold

 5  by a subsequent participating manufacturer in this state

 6  during the year in question multiplied by at least 73.2

 7  percent of the per-cigarette fee provided for in this section,

 8  and does not condition that credit on such subsequent

 9  participating manufacturer forfeiting in whole or in part any

10  other benefits or credits provided for in the master

11  settlement agreement. This subsection does not apply to any

12  subsequent participating manufacturer that, as of July 1,

13  2005, already had an agreement with the settling states, as

14  defined in the master settlement agreement, pursuant to which

15  agreement the subsequent participating manufacturer has agreed

16  to a different credit against its payment obligations under

17  the master settlement agreement based on its cigarette sales

18  in this state.

19         Section 3.  Subsection (6) is added to section 210.05,

20  Florida Statutes, to read:

21         210.05  Preparation and sale of stamps; discount.--

22         (6)(a)  A person may not transport or cause to be

23  transported from this state cigarettes for sale in another

24  state without first affixing to the cigarettes the stamp

25  required by the state in which the cigarettes are to be sold

26  or paying any other excise tax on the cigarettes imposed by

27  the state in which the cigarettes are to be sold.

28         (b)  A person may not affix to cigarettes the stamp

29  required by another state or pay any other excise tax on the

30  cigarettes imposed by another state if the other state

31  prohibits stamps from being affixed to the cigarettes,

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 1  prohibits the payment of any other excise tax on the

 2  cigarettes, or prohibits the sale of the cigarettes.

 3         (c)  The requirements of paragraphs (a) and (b) do not

 4  apply to cigarettes with respect to which the manufacturer or

 5  importer is either a participating manufacturer, as defined in

 6  section II(jj) of the master settlement agreement, or is in

 7  full compliance with the qualifying statute, as defined in

 8  section IX(d)(2)(E) of the master settlement agreement, of the

 9  state in which the cigarettes are to be sold. An exemption

10  pursuant to this paragraph may only be asserted with respect

11  to cigarettes that, in the case of a participating

12  manufacturer, are deemed to be its cigarettes for purposes of

13  calculating its payments under the master settlement agreement

14  for the relevant year in the volumes and shares determined

15  pursuant to the master settlement agreement, and, in the case

16  of all other manufacturers and importers, are deemed to be its

17  cigarettes for purposes of the applicable qualifying statute.

18  For purposes of this subsection the term "master settlement

19  agreement" means the settlement agreement and related

20  documents entered into in 1998 by 46 states and leading United

21  States tobacco manufacturers. A person asserting an exemption

22  pursuant to this paragraph shall submit the reports required

23  by paragraph (d) and shall certify as provided in that

24  paragraph.

25         (d)  On or before the 10th day of each month, a person

26  who transports or causes to be transported from this state

27  cigarettes for sale in another state shall submit to the

28  division a report identifying the quantity and brand family of

29  each brand of the cigarettes transported or caused to be

30  transported in the preceding calendar month and the name and

31  address of each recipient of the cigarettes. Such person shall

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 1  also certify under oath and subject to the penalties of

 2  perjury that:

 3         1.  The stamps required by paragraph (a) have been

 4  affixed in accordance with that paragraph or that such stamps

 5  were not affixed pursuant to paragraph (b); or

 6         2.  Such person satisfies the requirements of paragraph

 7  (c).

 8         (e)  For purposes of this section, the term "person"

 9  means an individual, partnership, committee, association,

10  corporation, or any other organization or group of persons.

11  Person does not include any common or contract carrier, or

12  public warehouse that is not owned, in whole or in part,

13  directly or indirectly, by the person transporting the

14  cigarettes or causing the transport to be made.

15         (f)  This subsection does not authorize the possession

16  or transportation of cigarettes by any person not so

17  authorized by another provision of this part.

18         Section 4.  Subsection (1) of section 210.06, Florida

19  Statutes, is amended, and subsection (5) is added to that

20  section, to read:

21         210.06  Affixation of stamps; presumption.--

22         (1)  Every dealer within or without the state shall

23  affix or cause to be affixed to such package or container of

24  such cigarettes such, stamps as are required under this

25  section within 10 days after receipt of such products. Dealers

26  outside this state shall affix such stamps before the shipment

27  of cigarettes into this state, evidencing the payment of the

28  tax imposed by virtue of this part before such cigarettes are

29  offered for sale or use or consumed or before they are

30  otherwise disposed of in the state.

31  

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 1         (a)  A tax stamp shall be applied to all cigarette

 2  packages intended for sale or distribution to consumers

 3  subject to the tax imposed under s. 210.02, except as

 4  otherwise provided in this act.

 5         (b)  A stamp may not be applied to any cigarette

 6  package exempt from tax under 26 U.S.C. s. 5704 which is

 7  distributed by a manufacturer pursuant to federal regulations.

 8         (c)  Dealers may apply stamps only to cigarette

 9  packages received directly from a manufacturer or importer of

10  cigarettes who possesses a valid and current permit under 26

11  U.S.C. s. 5712.

12         (5)  Except as provided in s. 210.09(1), a person,

13  other than a dealer that receives unstamped cigarette packages

14  directly from a cigarette manufacturer or importer in

15  accordance with this section and s. 210.085, may not hold or

16  possess an unstamped cigarette package. Dealers may set aside,

17  without application of stamps, only such part of the dealer's

18  stock which is identified for sale or distribution outside

19  this state. If a dealer maintains stocks of unstamped

20  cigarette packages, such unstamped packages shall be stored

21  separately from stamped product packages. Unstamped cigarette

22  packages may not be transferred by a dealer to another

23  facility of the dealer within this state or to another person

24  within this state.

25         Section 5.  Section 210.085, Florida Statutes, is

26  created to read:

27         210.085  Transactions only with permitted

28  manufacturers, importers, distributing agents, dealers, and

29  retail dealers.--A manufacturer, importer, or distributing

30  agent may sell or distribute cigarettes to a person located or

31  doing business within this state only if such person is a

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 1  dealer holding a valid, current permit under s. 210.15. A

 2  dealer may sell or distribute cigarettes to a person located

 3  or doing business within this state only if such person is a

 4  dealer or retail dealer holding a valid, current permit under

 5  s. 569.003. A dealer may obtain cigarettes only from a

 6  manufacturer or importer who possesses a valid, current permit

 7  under 26 U.S.C. s. 5712 or from a distributing agent or dealer

 8  holding a valid, current permit under s. 210.15. A retail

 9  dealer may obtain cigarettes only from a manufacturer,

10  importer, or dealer holding a valid, current permit under s.

11  210.15.

12         Section 6.  Subsection (1) of section 210.09, Florida

13  Statutes, is amended to read:

14         210.09  Records to be kept; reports to be made;

15  examination.--

16         (1)(a)  Every person who shall possess or transport any

17  unstamped cigarettes upon the public highways, roads, or

18  streets of the state, shall be required to have in his or her

19  actual possession invoices or delivery tickets for such

20  cigarettes. The absence of such invoices or delivery tickets

21  shall be prima facie evidence that such person is a dealer in

22  cigarettes in this state and subject to the provisions of this

23  part.

24         (b)  Any person who ships unstamped cigarette packages

25  into this state other than to a manufacturer, importer, or

26  dealer holding a valid, current permit pursuant to s. 210.15

27  shall first file with the division a notice of such shipment.

28  This paragraph does not apply to any common or contract

29  carrier that is transporting cigarettes through this state to

30  another location outside this state under a proper bill of

31  

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 1  lading or freight bill that states the quantity, source, and

 2  destination of such cigarettes.

 3         (c)  In any case in which the division or its duly

 4  authorized agent, or any law enforcement officer of this

 5  state, has knowledge or reasonable grounds to believe that any

 6  vehicle is transporting cigarettes in violation of this part,

 7  the division, such agent, or such law enforcement officer is

 8  authorized to stop such vehicle and inspect the vehicle for

 9  contraband cigarettes.

10         Section 7.  Subsection (1) of section 210.12, Florida

11  Statutes, is amended, subsections (2) through (6) of that

12  section are renumbered as subsections (4) through (8),

13  respectively, and new subsections (2) and (3) are added to

14  that section, to read:

15         210.12  Seizures; forfeiture proceedings.--

16         (1)  The state, acting by and through the division,

17  shall be authorized and empowered to seize, confiscate, and

18  forfeit for the use and benefit of the state, any cigarettes

19  upon which taxes payable hereunder may be unpaid or which are

20  otherwise held in violation of the requirements of this

21  chapter, and also any vending machine or receptacle in which

22  such cigarettes upon which taxes have not been paid are held

23  for sale, or any vending machine that does not have affixed

24  thereto the identification sticker required by the provisions

25  of s. 210.07, or which does not display at all times at least

26  one package of each brand of cigarettes located therein so the

27  same is clearly visible and arranged in such a manner that the

28  cigarette tax stamp or meter impression of the stamp affixed

29  thereto is clearly visible. Such seizure may be made by the

30  division, its duly authorized representative, any sheriff or

31  deputy sheriff, or any police officer.

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 1         (2)  All fixtures, equipment, and other materials and

 2  personal property on the premises of any dealer or retail

 3  dealer who, with intent to defraud the state, fails to keep or

 4  make any record, return, report, or inventory required by this

 5  part; keeps or makes any false or fraudulent record, return,

 6  report, or inventory required by this part; refuses to pay any

 7  tax imposed by this part; or attempts in any manner to evade

 8  or defeat the requirements of this part shall be forfeited to

 9  the state.

10         (3)  All cigarettes seized, confiscated, and forfeited

11  to the state under this part shall be destroyed.

12         Section 8.  Subsection (1) of section 210.15, Florida

13  Statutes, is amended to read:

14         210.15  Permits.--

15         (1)(a)  Every person, firm, or corporation desiring to

16  engage in business as a manufacturer, importer, exporter,

17  distributing agent, or wholesale dealer of cigarettes deal in

18  cigarettes as a distributing agent, wholesale dealer, or

19  exporter within this state shall file with the division an

20  application for a cigarette permit for each place of business

21  located within this state or, in the absence of such place of

22  business in this state, for wherever its principal place of

23  business is located with the Division of Alcoholic Beverages

24  and Tobacco. Every application for a cigarette permit shall be

25  made on forms furnished by the division and shall set forth

26  the name under which the applicant transacts or intends to

27  transact business, the location of the applicant's place of

28  business within the state, if any, and such other information

29  as the division may require. If the applicant has or intends

30  to have more than one place of business dealing in cigarettes

31  within this state, the application shall state the location of

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 1  each place of business. If the applicant is an association,

 2  the application shall set forth the names and addresses of the

 3  persons constituting the association, and if a corporation,

 4  the names and addresses of the principal officers thereof and

 5  any other information prescribed by the division for the

 6  purpose of identification. The application shall be signed and

 7  verified by oath or affirmation by the owner, if a natural

 8  person, and in the case of an association or partnership,

 9  members or partners thereof, and in the case of a corporation,

10  by an executive officer thereof or by any person specifically

11  authorized by the corporation to sign the application, to

12  which shall be attached the written evidence of this

13  authority. The cigarette permit for a distributing agent shall

14  be issued annually for which an annual fee of $5 shall be

15  charged.

16         (b)  The holder of any duly issued, annual permit for a

17  distributing agent shall be entitled to a renewal of his or

18  her annual permit from year to year as a matter of course, on

19  or before July 1, upon making application to the division and

20  upon payment of this annual permit fee.

21         (c)  Permits The permit for a distributing agent,

22  wholesale dealer, or exporter shall be issued only to persons

23  of good moral character, who are not less than 18 years of

24  age. Distributing agent, wholesale dealer, or exporter Permits

25  to corporations shall be issued only to corporations whose

26  officers are of good moral character and not less than 18

27  years of age. There shall be no exemptions from the permit

28  fees herein provided to any persons, association of persons,

29  or corporation, any law to the contrary notwithstanding.

30         (d)  No distributing agent, wholesale dealer, or

31  exporter permit shall be issued, maintained, or renewed if the

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 1  applicant, its officers, or any person or persons owning

 2  directly or indirectly, in the aggregate, more than 10 percent

 3  of the ownership interests in the applicant:

 4         1.  Owes $500 or more in delinquent cigarette taxes;

 5         2.  Had a cigarette importer, retail dealer, or dealer

 6  permit revoked by the division within the previous 2 years;

 7         3.  Has been convicted of selling stolen or counterfeit

 8  cigarettes, receiving stolen cigarettes, or being involved in

 9  the counterfeiting of cigarettes; or

10         4.  Has to any person who has been convicted within the

11  past 5 years of any offense against the cigarette laws of this

12  state or who has been convicted in this state, any other

13  state, or the United States during the past 5 years of any

14  offense designated as a felony by such state or the United

15  States, or to a corporation, any of whose officers have been

16  so convicted. The term "convicted" "conviction" shall include

17  an adjudication of guilt on a plea of guilty or a plea of nolo

18  contendere, or the forfeiture of a bond when charged with a

19  crime.

20         (e)(d)  The division may refuse to issue a distributing

21  agent, wholesale, or exporter permit to any person, firm, or

22  corporation whose permit under the cigarette law has been

23  revoked or to any corporation, an officer of which has had his

24  or her permit under the cigarette law revoked, or to any

25  person who is or has been an officer of a corporation whose

26  permit has been revoked under the cigarette law. Any permit

27  issued to a firm or corporation prohibited from obtaining such

28  permit under the cigarette law may be revoked by the division.

29         (f)(e)  Prior to an application for a distributing

30  agent, wholesale dealer, or exporter permit being approved,

31  the applicant shall file a set of fingerprints on forms

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 1  provided by the division. The applicant shall also file a set

 2  of fingerprints for any person or persons interested directly

 3  or indirectly with the applicant in the business for which the

 4  permit is being sought, when so required by the division. If

 5  the applicant or any person interested with the applicant,

 6  either directly or indirectly, in the business for which the

 7  permit is sought shall be such a person as is within the

 8  definition of persons to whom a distributing agent, wholesale

 9  dealer, or exporter permit shall be denied, then the

10  application may be denied by the division. If the applicant is

11  a partnership, all members of the partnership are required to

12  file said fingerprints, or if a corporation, all principal

13  officers of the corporation are required to file said

14  fingerprints. The cigarette permit for a wholesale dealer or

15  exporter shall be originally issued at a fee of $100, which

16  sum is to cover the cost of the investigation required before

17  issuing such permit.

18         (g)(f)  The cigarette permits issued under this section

19  permit for a wholesale dealer or exporter shall be renewed

20  from year to year as a matter of course, at an annual cost of

21  $100, on or before July 1, upon making application to the

22  division and upon payment of the annual renewal fee.

23         (h)(g)  Permittees, by acceptance of their permits,

24  agree that their places of business or vehicles transporting

25  cigarettes shall always be subject to be inspected and

26  searched without a search warrant for the purpose of

27  ascertaining that all provisions of this part are complied

28  with by authorized employees of the division and also by

29  sheriffs, deputy sheriffs, and police officers during business

30  hours or during any other time such premises are occupied by

31  the permittee or other persons. Retail cigarette dealers and

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 1  manufacturers' representatives, by dealing in cigarettes,

 2  agree that their places of business or vehicles transporting

 3  cigarettes shall always be subject to inspection and search

 4  without a search warrant for the purpose of ascertaining that

 5  all provisions of this part are complied with by authorized

 6  employees of the division and also by sheriffs, deputy

 7  sheriffs, and police officers during business hours or other

 8  times when the premises are occupied by the retail dealer or

 9  manufacturers' representatives or other persons.

10         (i)(h)  No retail sales of cigarettes may be made at a

11  location for which a wholesale dealer, distributing agent, or

12  exporter permit has been issued. The excise tax on sales made

13  to any traveling location, such as an itinerant store or

14  industrial caterer, shall be paid into the General Revenue

15  Fund unallocated. Cigarettes may be purchased for retail

16  purposes only from a person holding a wholesale dealer permit.

17  The invoice for the purchase of cigarettes must show the place

18  of business for which the purchase is made and the cigarettes

19  cannot be transferred to any other place of business for the

20  purpose of resale.

21         Section 9.  Subsections (2), (3), and (6) of section

22  210.18, Florida Statutes, are amended, and subsection (9) is

23  added to that section, to read:

24         210.18  Penalties for tax evasion; reports by

25  sheriffs.--

26         (2)  Except as otherwise provided in this section, any

27  person wholesale or retail dealer who fails, neglects, or

28  refuses to comply with, or violates the provisions of, this

29  part or the rules adopted and regulations promulgated by the

30  division under this part commits is guilty of a misdemeanor of

31  the first degree, punishable as provided in s. 775.082 or s.

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 1  775.083. Any person wholesale or retail dealer who has been

 2  convicted of a violation of any provision of the cigarette tax

 3  law and who is thereafter convicted of a further violation of

 4  the cigarette tax law is, upon conviction of such further

 5  offense, guilty of a felony of the third degree, punishable as

 6  provided in s. 775.082, s. 775.083, or s. 775.084.

 7         (3)  Any person who falsely or fraudulently makes,

 8  forges, alters, or counterfeits any stamp or impression die

 9  used in meter machines prescribed by the division under the

10  provisions of this part; or, with intent to evade taxes, jams,

11  tampers with, or alters such a machine; or causes or procures

12  to be falsely or fraudulently made, forged, altered, or

13  counterfeited any such stamp or die; or knowingly and

14  willfully utters, purchases, passes or tenders as true any

15  such false, altered, or counterfeited stamp or die impression;

16  or with the intent to defraud the state, fails to comply with

17  any other requirement of this chapter commits is guilty of a

18  felony of the third degree, punishable as provided in s.

19  775.082, s. 775.083, or s. 775.084.

20         (6)(a)  Every person, firm, or corporation, other than

21  a licensee under the provisions of this part, who possesses,

22  removes, deposits, or conceals, or aids in the possessing,

23  removing, depositing, or concealing of, any unstamped

24  cigarettes not in excess of 50 cartons is guilty of a

25  misdemeanor of the second degree, punishable as provided in s.

26  775.082 or s. 775.083. In lieu of the penalties provided in

27  those sections, however, the person, firm, or corporation may

28  pay the tax plus a penalty equal to the amount of the tax

29  authorized under s. 210.02 on the unstamped cigarettes.

30         (a)(b)  Every person, firm, or corporation, other than

31  a licensee under the provisions of this part, who possesses,

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 1  removes, deposits, or conceals, or aids in the possessing,

 2  removing, depositing, or concealing of, any unstamped

 3  cigarettes in excess of 50 cartons is presumed to have

 4  knowledge that they have not been taxed and commits is guilty

 5  of a felony of the third degree, punishable as provided in s.

 6  775.082, s. 775.083, or s. 775.084.

 7         (b)(c)  This section does not apply to a person

 8  possessing not in excess of three cartons of such cigarettes

 9  purchased by such possessor outside the state in accordance

10  with the laws of the place where purchased and brought into

11  this state by such possessor. The burden of proof that such

12  cigarettes were purchased outside the state and in accordance

13  with the laws of the place where purchased shall in all cases

14  be upon the possessor of such cigarettes.

15         (9)  Notwithstanding any other provision of law, the

16  sale or possession for sale of counterfeit cigarettes by any

17  person or by a manufacturer, importer, distributing agent,

18  wholesale dealer, or retail dealer shall result in the seizure

19  of the product and related machinery by the division or any

20  law enforcement agency and shall be punishable as follows:

21         (a)1.  A first violation with a total quantity of less

22  than two cartons of cigarettes or the equivalent amount of

23  other cigarettes shall be punishable by a fine not to exceed

24  $1,000 or five times the retail value of the cigarettes

25  involved, whichever is greater, or imprisonment not to exceed

26  5 years, or both.

27         2.  A subsequent violation with a total quantity of

28  less than two cartons of cigarettes or the equivalent amount

29  of other cigarettes shall be punishable by a fine not to

30  exceed $5,000 or five times the retail value of the cigarettes

31  involved, whichever is greater, or imprisonment not to exceed

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 1  5 years, or both, and shall also result in the revocation by

 2  the division of the permit of the manufacturer, importer,

 3  distributing agent, wholesale dealer, or retail dealer.

 4         (b)1.  A first violation with a total quantity of two

 5  or more cartons of cigarettes or the equivalent amount of

 6  other cigarettes shall be punishable by a fine not to exceed

 7  $2,000 or five times the retail value of the cigarettes

 8  involved, whichever is greater, or imprisonment not to exceed

 9  5 years, or both.

10         2.  A subsequent violation with a quantity of two

11  cartons of cigarettes or more or the equivalent amount of

12  other cigarettes shall be punishable by a fine not to exceed

13  $50,000 or five times the retail value of the cigarettes

14  involved, whichever is greater, or imprisonment not to exceed

15  5 years, or both, and shall also result in the revocation by

16  the division of the permit of the manufacturer, importer,

17  distributing agent, wholesale dealer, or retail dealer.

18  

19  For purposes of this subsection, any counterfeit cigarettes

20  seized by the division shall be destroyed.

21         Section 10.  Section 210.181, Florida Statutes, is

22  created to read:

23         210.181  Civil penalties.--

24         (1)  Whoever knowingly omits, neglects, or refuses to

25  comply with any duty imposed upon him or her by this part, or

26  to do or cause to be done any of the things required by this

27  part, or does anything prohibited by this part shall, in

28  addition to any other penalty provided in this part, be liable

29  for a fine of $1,000 or five times the retail value of the

30  cigarettes involved, whichever is greater.

31  

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 1         (2)  Whoever fails to pay any tax imposed by this part

 2  at the time prescribed by law or rules shall, in addition to

 3  any other penalty provided in this part, be liable for a

 4  penalty of five times the unpaid tax due.

 5         Section 11.  For the purpose of incorporating the

 6  amendment made by this act to section 210.18, Florida

 7  Statutes, in a reference thereto, paragraph (a) of subsection

 8  (1) of section 772.102, Florida Statutes, is reenacted to

 9  read:

10         772.102  Definitions.--As used in this chapter, the

11  term:

12         (1)  "Criminal activity" means to commit, to attempt to

13  commit, to conspire to commit, or to solicit, coerce, or

14  intimidate another person to commit:

15         (a)  Any crime which is chargeable by indictment or

16  information under the following provisions:

17         1.  Section 210.18, relating to evasion of payment of

18  cigarette taxes.

19         2.  Section 414.39, relating to public assistance

20  fraud.

21         3.  Section 440.105 or s. 440.106, relating to workers'

22  compensation.

23         4.  Part IV of chapter 501, relating to telemarketing.

24         5.  Chapter 517, relating to securities transactions.

25         6.  Section 550.235, s. 550.3551, or s. 550.3605,

26  relating to dogracing and horseracing.

27         7.  Chapter 550, relating to jai alai frontons.

28         8.  Chapter 552, relating to the manufacture,

29  distribution, and use of explosives.

30         9.  Chapter 562, relating to beverage law enforcement.

31  

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 1         10.  Section 624.401, relating to transacting insurance

 2  without a certificate of authority, s. 624.437(4)(c)1.,

 3  relating to operating an unauthorized multiple-employer

 4  welfare arrangement, or s. 626.902(1)(b), relating to

 5  representing or aiding an unauthorized insurer.

 6         11.  Chapter 687, relating to interest and usurious

 7  practices.

 8         12.  Section 721.08, s. 721.09, or s. 721.13, relating

 9  to real estate timeshare plans.

10         13.  Chapter 782, relating to homicide.

11         14.  Chapter 784, relating to assault and battery.

12         15.  Chapter 787, relating to kidnapping.

13         16.  Chapter 790, relating to weapons and firearms.

14         17.  Section 796.03, s. 796.04, s. 796.05, or s.

15  796.07, relating to prostitution.

16         18.  Chapter 806, relating to arson.

17         19.  Section 810.02(2)(c), relating to specified

18  burglary of a dwelling or structure.

19         20.  Chapter 812, relating to theft, robbery, and

20  related crimes.

21         21.  Chapter 815, relating to computer-related crimes.

22         22.  Chapter 817, relating to fraudulent practices,

23  false pretenses, fraud generally, and credit card crimes.

24         23.  Section 827.071, relating to commercial sexual

25  exploitation of children.

26         24.  Chapter 831, relating to forgery and

27  counterfeiting.

28         25.  Chapter 832, relating to issuance of worthless

29  checks and drafts.

30         26.  Section 836.05, relating to extortion.

31         27.  Chapter 837, relating to perjury.

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 1         28.  Chapter 838, relating to bribery and misuse of

 2  public office.

 3         29.  Chapter 843, relating to obstruction of justice.

 4         30.  Section 847.011, s. 847.012, s. 847.013, s.

 5  847.06, or s. 847.07, relating to obscene literature and

 6  profanity.

 7         31.  Section 849.09, s. 849.14, s. 849.15, s. 849.23,

 8  or s. 849.25, relating to gambling.

 9         32.  Chapter 893, relating to drug abuse prevention and

10  control.

11         33.  Section 914.22 or s. 914.23, relating to

12  witnesses, victims, or informants.

13         34.  Section 918.12 or s. 918.13, relating to tampering

14  with jurors and evidence.

15         Section 12.  For the purpose of incorporating the

16  amendment made by this act to section 210.18, Florida

17  Statutes, in a reference thereto, paragraph (a) of subsection

18  (1) of section 895.02, Florida Statutes, is reenacted to read:

19         895.02  Definitions.--As used in ss. 895.01-895.08, the

20  term:

21         (1)  "Racketeering activity" means to commit, to

22  attempt to commit, to conspire to commit, or to solicit,

23  coerce, or intimidate another person to commit:

24         (a)  Any crime which is chargeable by indictment or

25  information under the following provisions of the Florida

26  Statutes:

27         1.  Section 210.18, relating to evasion of payment of

28  cigarette taxes.

29         2.  Section 403.727(3)(b), relating to environmental

30  control.

31  

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 1         3.  Section 409.920 or s. 409.9201, relating to

 2  Medicaid fraud.

 3         4.  Section 414.39, relating to public assistance

 4  fraud.

 5         5.  Section 440.105 or s. 440.106, relating to workers'

 6  compensation.

 7         6.  Section 465.0161, relating to distribution of

 8  medicinal drugs without a permit as an Internet pharmacy.

 9         7.  Sections 499.0051, 499.0052, 499.00535, 499.00545,

10  and 499.0691, relating to crimes involving contraband and

11  adulterated drugs.

12         8.  Part IV of chapter 501, relating to telemarketing.

13         9.  Chapter 517, relating to sale of securities and

14  investor protection.

15         10.  Section 550.235, s. 550.3551, or s. 550.3605,

16  relating to dogracing and horseracing.

17         11.  Chapter 550, relating to jai alai frontons.

18         12.  Chapter 552, relating to the manufacture,

19  distribution, and use of explosives.

20         13.  Chapter 560, relating to money transmitters, if

21  the violation is punishable as a felony.

22         14.  Chapter 562, relating to beverage law enforcement.

23         15.  Section 624.401, relating to transacting insurance

24  without a certificate of authority, s. 624.437(4)(c)1.,

25  relating to operating an unauthorized multiple-employer

26  welfare arrangement, or s. 626.902(1)(b), relating to

27  representing or aiding an unauthorized insurer.

28         16.  Section 655.50, relating to reports of currency

29  transactions, when such violation is punishable as a felony.

30         17.  Chapter 687, relating to interest and usurious

31  practices.

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 1         18.  Section 721.08, s. 721.09, or s. 721.13, relating

 2  to real estate timeshare plans.

 3         19.  Chapter 782, relating to homicide.

 4         20.  Chapter 784, relating to assault and battery.

 5         21.  Chapter 787, relating to kidnapping.

 6         22.  Chapter 790, relating to weapons and firearms.

 7         23.  Section 796.03, s. 796.035, s. 796.04, s. 796.045,

 8  s. 796.05, or s. 796.07, relating to prostitution and sex

 9  trafficking.

10         24.  Chapter 806, relating to arson.

11         25.  Section 810.02(2)(c), relating to specified

12  burglary of a dwelling or structure.

13         26.  Chapter 812, relating to theft, robbery, and

14  related crimes.

15         27.  Chapter 815, relating to computer-related crimes.

16         28.  Chapter 817, relating to fraudulent practices,

17  false pretenses, fraud generally, and credit card crimes.

18         29.  Chapter 825, relating to abuse, neglect, or

19  exploitation of an elderly person or disabled adult.

20         30.  Section 827.071, relating to commercial sexual

21  exploitation of children.

22         31.  Chapter 831, relating to forgery and

23  counterfeiting.

24         32.  Chapter 832, relating to issuance of worthless

25  checks and drafts.

26         33.  Section 836.05, relating to extortion.

27         34.  Chapter 837, relating to perjury.

28         35.  Chapter 838, relating to bribery and misuse of

29  public office.

30         36.  Chapter 843, relating to obstruction of justice.

31  

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 1         37.  Section 847.011, s. 847.012, s. 847.013, s.

 2  847.06, or s. 847.07, relating to obscene literature and

 3  profanity.

 4         38.  Section 849.09, s. 849.14, s. 849.15, s. 849.23,

 5  or s. 849.25, relating to gambling.

 6         39.  Chapter 874, relating to criminal street gangs.

 7         40.  Chapter 893, relating to drug abuse prevention and

 8  control.

 9         41.  Chapter 896, relating to offenses related to

10  financial transactions.

11         42.  Sections 914.22 and 914.23, relating to tampering

12  with a witness, victim, or informant, and retaliation against

13  a witness, victim, or informant.

14         43.  Sections 918.12 and 918.13, relating to tampering

15  with jurors and evidence.

16         Section 13.  For the 2005-2006 fiscal year, the sum of

17  $480,028 is appropriated from the Alcoholic Beverage and

18  Tobacco Trust Fund and four full-time equivalent positions are

19  authorized to be established by the Department of Business and

20  Professional Regulation for the purpose of conducting

21  regulatory activities related to the transportation and sale

22  of cigarettes.

23         Section 14.  From the funds generated by this act, the

24  sum of $2 million is appropriated to the Department of Health

25  to address health care disparities in the minority community.

26         Section 15.  Subsection (2) of section 17.41, Florida

27  Statutes, is amended to read:

28         17.41  Department of Financial Services Tobacco

29  Settlement Clearing Trust Fund.--

30         (2)  Funds to be credited to the Tobacco Settlement

31  Clearing Trust Fund shall consist of payments received by the

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 1  state from settlement of State of Florida v. American Tobacco

 2  Co., No. 95-1466AH (Fla. 15th Cir. Ct. 1996) and fees from the

 3  nonsettling-manufacturer fee collected pursuant to s.

 4  210.0205. Moneys received from the settlement and fees that

 5  are deposited into the trust fund are exempt from the service

 6  charges imposed under s. 215.20.

 7         Section 16.  This act shall take effect July 1, 2005.

 8  

 9            *****************************************

10                          SENATE SUMMARY

11    Imposes fees on the sale, handling, etc. in this state of
      cigarettes of manufacturers not party to a described
12    tobacco settlement agreement and provides procedures for
      implementing the collection of fees and for conducting
13    related procedural activities. (See bill for details.)

14  

15  

16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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