HB 0205

1
A bill to be entitled
2An act relating to contraband and counterfeit cigarettes;
3providing additional regulatory and enforcement measures;
4amending s. 210.01, F.S.; revising and providing
5definitions; amending s. 210.021, F.S.; directing the
6Secretary of Business and Professional Regulation to
7require certain dealers and agents to remit the tax on
8cigarettes by certified check or electronic funds
9transfer; requiring the Division of Alcoholic Beverages
10and Tobacco of the department to adopt rules governing the
11payment of taxes by electronic funds transfer; amending s.
12210.06, F.S.; revising requirements for and limitations on
13the affixation of stamps; providing requirements with
14respect to receipt, possession, storage, and transport of
15unstamped cigarette packages; amending s. 210.08, F.S.;
16revising the amount of the surety bond, certificate of
17deposit, or irrevocable letter of credit required by the
18division as surety for the payment of cigarette taxes;
19creating s. 210.085, F.S.; requiring manufacturers,
20importers, distributing agents, dealers, and retail
21dealers to hold a current, valid permit to sell,
22distribute, or receive cigarettes; amending s. 210.09,
23F.S.; providing notice and filing guidelines for certain
24persons shipping unstamped cigarette packages; authorizing
25certain law enforcement officials to inspect certain
26shipping vehicles; providing for application to and
27records requirements of manufacturers and importers;
28amending s. 210.12, F.S.; authorizing the state to claim
29certain property and materials from certain dealers and
30retailers who attempt to defraud the state; authorizing
31the destruction of certain cigarettes; amending s. 210.15,
32F.S.; providing criteria for permit application;
33prohibiting issuance, maintenance, or renewal of certain
34permits for certain applicants; providing guidelines for
35permit application denial; amending s. 210.16, F.S.;
36revising the authority of the Division of Alcoholic
37Beverages and Tobacco to revoke or suspend the permits of
38certain persons under certain circumstances; revising a
39penalty period for revoked permits; increasing a civil
40penalty; amending s. 210.18, F.S.; expanding the group of
41violators subject to criminal liability; expanding the
42list of persons required to report seizures of unstamped
43cigarettes; requiring the division to keep certain
44records; providing for seizure of counterfeit cigarettes
45and related machinery; making unlawful the selling or
46possessing with intent to sell counterfeit cigarettes;
47providing criminal penalties; providing for destruction of
48counterfeit cigarettes; creating s. 210.181, F.S.;
49providing civil penalties for failure to comply with
50certain duties or pay certain taxes; reenacting ss.
51772.102(1)(a) and 895.02(1)(a), F.S., relating to crimes
52constituting a "criminal activity" and definitions as used
53in the Florida RICO Act, to incorporate the amendment to
54s. 210.18, F.S., in references thereto; providing an
55effective date.
56
57Be It Enacted by the Legislature of the State of Florida:
58
59     Section 1.  Subsections (6) and (7) of section 210.01,
60Florida Statutes, are amended, and subsections (19) through (22)
61are added to said section, to read:
62     210.01  Definitions.--When used in this part the following
63words shall have the meaning herein indicated:
64     (6)  "Wholesale dealer" means any person located inside or
65outside this state who sells cigarettes to retail dealers or
66other persons for purposes of resale only, or any person who
67operates more than one cigarette vending machine located in more
68than one place of business. Such term shall not include any
69cigarette manufacturer, export warehouse proprietor, or importer
70with a valid permit under 26 U.S.C. s. 5712 if such person sells
71or distributes cigarettes in this state only to dealers who are
72agents and who hold valid and current permits under s. 210.15 or
73to any cigarette manufacturer, export warehouse proprietor, or
74importer who holds a valid and current permit under 26 U.S.C. s.
755712.
76     (7)  "Retail dealer" means any person located inside or
77outside this state other than a wholesale dealer engaged in the
78business of selling cigarettes, including persons issued a
79permit pursuant to s. 569.003.
80     (19)  "Stamp" or "stamps" means the indicia required to be
81placed on cigarette packages that evidence payment of the tax on
82cigarettes under s. 210.02.
83     (20)  "Importer" means any person with a valid permit under
8426 U.S.C. s. 5712 who imports into the United States, directly
85or indirectly, a finished cigarette for sale or distribution.
86     (21)  "Manufacturer" means any domestic person or entity
87with a valid permit under 26 U.S.C. s. 5712 that manufactures,
88fabricates, assembles, processes, or labels a finished
89cigarette.
90     (22)  "Counterfeit cigarettes" means cigarettes that have
91false manufacturing labels, tobacco product packs with
92counterfeit tax stamps, or any combination thereof.
93     Section 2.  Section 210.021, Florida Statutes, is amended
94to read:
95     210.021  Payment of taxes by certified check or electronic
96funds transfer.--
97     (1)  The Secretary of Business and Professional Regulation
98may require a dealer who sells cigarettes within the state to
99remit by certified check or electronic funds transfer any tax
100imposed under s. 210.02 if the taxpayer is subject to the tax
101and if the total of such taxes he or she paid in the prior year
102amounted to $50,000 or more.
103     (2)  The Secretary of Business and Professional Regulation
104shall require for a period not to exceed 12 months that a dealer
105or agent, during the dealer's or agent's initial period of
106licensure or appointment, remit by certified check or electronic
107funds transfer any tax imposed under s. 210.02.
108     (3)  The division shall adopt rules pursuant to ss.
109120.536(1) and 120.54 to administer this section.
110     Section 3.  Subsection (1) of section 210.06, Florida
111Statutes, is amended, and subsection (5) is added to said
112section, to read:
113     210.06  Affixation of stamps; presumption.--
114     (1)  Every dealer within or without the state shall affix
115or cause to be affixed to such package or container of such
116cigarettes such, stamps as are required under this section
117within 10 days after receipt of such products. Dealers outside
118this state shall affix such stamps before the shipment of
119cigarettes into this state, evidencing the payment of the tax
120imposed by virtue of this part before such cigarettes are
121offered for sale or use or consumed or before they are otherwise
122disposed of in the state.
123     (a)  A tax stamp shall be applied to all cigarette packages
124intended for sale or distribution to consumers subject to the
125tax imposed under s. 210.02, except as otherwise provided in
126this part.
127     (b)  No stamp shall be applied to any cigarette package
128exempt from tax under 26 U.S.C. s. 5704 that is distributed by a
129manufacturer pursuant to federal regulations.
130     (c)  Dealers may apply stamps only to cigarette packages
131received directly from a manufacturer or importer of cigarettes,
132or a distributing agent representing a manufacturer or importer
133of cigarettes, who possesses a valid and current permit under
134this part.
135     (5)  Except as provided in s. 210.04(9) or s. 210.09(1), no
136person, other than a dealer or distributing agent that receives
137unstamped cigarette packages directly from a cigarette
138manufacturer or importer in accordance with this section and s.
139210.085, shall hold or possess an unstamped cigarette package.
140Dealers shall be permitted to set aside, without application of
141stamps, only such part of the dealer's stock that is identified
142for sale or distribution outside this state. If a dealer
143maintains stocks of unstamped cigarette packages, such unstamped
144packages shall be stored separately from stamped product
145packages. No unstamped cigarette packages shall be transferred
146by a dealer to another facility of the dealer within this state
147or to another person within this state.
148     Section 4.  Section 210.08, Florida Statutes, is amended to
149read:
150     210.08  Bond for payment of taxes.--Each dealer, agent, or
151distributing agent shall file with the division a surety bond,
152certificate of deposit, or irrevocable letter of credit
153acceptable to the division in an amount equal to 110 percent of
154the estimated tax liability for 30 days, but not less than
155$2,000 the sum of $10,000 as surety for the payment of all
156taxes; provided, however, that where in the discretion of the
157division the amount of business done by the dealer, agent, or
158distributing agent is of such volume that a bond, certificate of
159deposit, or irrevocable letter of credit of less than $10,000
160will be adequate to secure the payment of all taxes assessed as
161authorized by the cigarette tax law, the division may accept a
162bond, certificate of deposit, or irrevocable letter of credit in
163a lesser sum than $10,000, but in no event shall it accept a
164bond, certificate of deposit, or irrevocable letter of credit of
165less than $1,000, and it may at any time in its discretion
166require any bond, certificate of deposit, or irrevocable letter
167of credit in an amount less than $10,000 to be increased not to
168exceed $10,000.
169     Section 5.  Section 210.085, Florida Statutes, is created
170to read:
171     210.085  Transactions only with permitted manufacturers,
172importers, distributing agents, dealers, and retail
173dealers.--Except as otherwise provided in s. 210.04(9), a
174manufacturer or importer, or a distributing agent representing a
175manufacturer or importer, may sell or distribute cigarettes to a
176person located or doing business within this state only if such
177person is a dealer or importer with a valid, current permit
178under s. 210.15. A distributing agent may accept cigarettes from
179a manufacturer or importer with a valid, current permit for
180transfer to a dealer with a valid, current permit but may not
181own or sell cigarettes. A dealer may sell or distribute
182cigarettes to a person located or doing business within this
183state only if such person is a dealer or retail dealer with a
184valid, current permit under s. 569.003. A dealer may obtain
185cigarettes only from a manufacturer or importer or from a
186distributing agent or dealer with a valid, current permit under
187s. 210.15. A retail dealer may obtain cigarettes only from a
188dealer with a valid, current permit under s. 210.15.
189     Section 6.  Subsections (1), (2), and (3) and paragraph (a)
190of subsection (4) of section 210.09, Florida Statutes, are
191amended to read:
192     210.09  Records to be kept; reports to be made;
193examination.--
194     (1)(a)  Every person who shall possess or transport any
195unstamped cigarettes upon the public highways, roads, or streets
196of the state, shall be required to have in his or her actual
197possession invoices or delivery tickets for such cigarettes. The
198absence of such invoices or delivery tickets shall be prima
199facie evidence that such person is a dealer in cigarettes in
200this state and subject to the provisions of this part.
201     (b)  Any person who ships unstamped cigarette packages into
202this state other than to a manufacturer, an importer, or a
203distributing agent representing a manufacturer or an importer,
204or dealer holding a valid, current permit pursuant to s. 210.15
205shall first file with the division a notice of such shipment.
206This paragraph shall not apply to any common or contract carrier
207that:
208     1.  Is transporting cigarettes through this state to
209another location outside this state under a proper bill of
210lading or freight bill that states the quantity, source, and
211destination of such cigarettes or to cigarettes shipped or
212otherwise transported pursuant to s. 210.04(9); or
213     2.  Does not issue paper bills of lading or freight bills
214and does not obtain specific information about the contents of
215the shipment that includes a description of the freight carried
216but uses electronic shipping documents as part of its ordinary
217course of business to provide transportation services for
218individually addressed packages weighing less than 150 pounds,
219which electronic shipping documents shall be made available for
220inspection upon request.
221     (c)  In any case in which the division or its duly
222authorized agent, or any law enforcement officer of this state,
223has probable cause to believe that any vehicle is transporting
224cigarettes in violation of this part, the division, such agent,
225or such law enforcement officer is authorized to stop such
226vehicle and inspect the vehicle for contraband cigarettes.
227     (2)  The division is authorized to prescribe and promulgate
228by rules and regulations, which shall have the force and effect
229of the law, such records to be kept and reports to be made to
230the division by any manufacturer, importer, distributing agent,
231wholesale dealer, retail dealer, common carrier, or any other
232person handling, transporting or possessing cigarettes for sale
233or distribution within the state as may be necessary to collect
234and properly distribute the taxes imposed by s. 210.02. All
235reports shall be made on or before the 10th day of the month
236following the month for which the report is made, unless the
237division by rule or regulation shall prescribe that reports be
238made more often.
239     (3)  All manufacturers, importers, distributing agents,
240wholesale dealers, agents, or retail dealers shall maintain and
241keep for a period of 3 years at the place of business where any
242transaction takes place, such records of cigarettes received,
243sold, or delivered within the state as may be required by the
244division. The division or its duly authorized representative is
245hereby authorized to examine the books, papers, invoices, and
246other records, the stock of cigarettes in and upon any premises
247where the same are placed, stored, and sold, and the equipment
248of any such manufacturers, importers, distributing agents,
249wholesale dealers, agents, or retail dealers, pertaining to the
250sale and delivery of cigarettes taxable under this part. To
251verify the accuracy of the tax imposed and assessed by this
252part, each person is hereby directed and required to give to the
253division or its duly authorized representatives the means,
254facilities, and opportunity for such examinations as are herein
255provided for and required.
256     (4)(a)  All persons who are either cigarette manufacturers,
257importers, wholesalers, vending machine operators or
258distributing agents, and agents and employees of the same, are
259required to keep daily sales tickets or invoices of cigarette
260sales and it shall be the duty of said persons to see that each
261sales ticket and invoice handled by them or on behalf of them
262show the correct name and address to whom sold and the number of
263packages or cartons of each brand sold. It shall also be the
264duty of said persons to see that each sales ticket or invoice
265correctly shows whether the same is inside or outside of a
266qualified municipality and if the sale is made within the limits
267of a qualified municipality, the correct name of the
268municipality must be indicated.
269     Section 7.  Subsection (1) of section 210.12, Florida
270Statutes, is amended, subsections (2) through (6) of said
271section are renumbered as subsections (4) through (8),
272respectively, and new subsections (2) and (3) are added to said
273section, to read:
274     210.12  Seizures; forfeiture proceedings.--
275     (1)  The state, acting by and through the division, shall
276be authorized and empowered to seize, confiscate, and forfeit
277for the use and benefit of the state, any cigarettes upon which
278taxes payable hereunder may be unpaid or that are otherwise held
279in violation of the requirements of this chapter, and also any
280vending machine or receptacle in which such cigarettes upon
281which taxes have not been paid are held for sale, or any vending
282machine that does not have affixed thereto the identification
283sticker required by the provisions of s. 210.07, or which does
284not display at all times at least one package of each brand of
285cigarettes located therein so the same is clearly visible and
286arranged in such a manner that the cigarette tax stamp or meter
287impression of the stamp affixed thereto is clearly visible. Such
288seizure may be made by the division, its duly authorized
289representative, any sheriff or deputy sheriff, or any police
290officer.
291     (2)  All fixtures, equipment, and other materials and
292personal property on the premises of any dealer, retail dealer,
293or distributing agent who, with intent to defraud the state,
294fails to keep or make any record, return, report, or inventory
295required by this part; keeps or makes any false or fraudulent
296record, return, report, or inventory required by this part;
297refuses to pay any tax imposed by this part; or attempts in any
298manner to evade or defeat the requirements of this part shall be
299forfeited to the state as provided by the Florida Contraband
300Forfeiture Act.
301     (3)  All cigarettes seized, confiscated, and forfeited to
302the state under this part shall be destroyed.
303     Section 8.  Subsection (1) of section 210.15, Florida
304Statutes, is amended to read:
305     210.15  Permits.--
306     (1)(a)  Every person, firm, or corporation desiring to
307engage in business as a manufacturer, importer, exporter,
308distributing agent, or wholesale dealer of cigarettes deal in
309cigarettes as a distributing agent, wholesale dealer, or
310exporter within this state shall file with the division an
311application for a cigarette permit for each place of business
312located within this state or, in the absence of such place of
313business in this state, for wherever its principal place of
314business is located with the Division of Alcoholic Beverages and
315Tobacco. Every application for a cigarette permit shall be made
316on forms furnished by the division and shall set forth the name
317under which the applicant transacts or intends to transact
318business, the location of the applicant's place of business
319within the state, if any, and such other information as the
320division may require. If the applicant has or intends to have
321more than one place of business dealing in cigarettes within
322this state, the application shall state the location of each
323place of business. If the applicant is an association, the
324application shall set forth the names and addresses of the
325persons constituting the association, and if a corporation, the
326names and addresses of the principal officers thereof and any
327other information prescribed by the division for the purpose of
328identification. The application shall be signed and verified by
329oath or affirmation by the owner, if a natural person, and in
330the case of an association or partnership, members or partners
331thereof, and in the case of a corporation, by an executive
332officer thereof or by any person specifically authorized by the
333corporation to sign the application, to which shall be attached
334the written evidence of this authority. The cigarette permit for
335a distributing agent shall be issued annually for which an
336annual fee of $5 shall be charged.
337     (b)  The holder of any duly issued, annual permit for a
338distributing agent shall be entitled to a renewal of his or her
339annual permit from year to year as a matter of course, on or
340before July 1, upon making application to the division and upon
341payment of this annual permit fee.
342     (b)(c)  Permits The permit for a distributing agent,
343wholesale dealer, or exporter shall be issued only to persons of
344good moral character, who are not less than 18 years of age.
345Distributing agent, wholesale dealer, or exporter Permits to
346corporations shall be issued only to corporations whose officers
347are of good moral character and not less than 18 years of age.
348There shall be no exemptions from the permit fees herein
349provided to any persons, association of persons, or corporation,
350any law to the contrary notwithstanding.
351     (c)  No distributing agent, wholesale dealer, or exporter
352permit under this part or chapter 569 shall be issued,
353maintained, or renewed if the applicant, its officers, or any
354person or persons owning directly or indirectly, in the
355aggregate, more than 10 percent of the ownership interests in
356the applicant:
357     1.  Has been finally adjudicated as owing $500 or more in
358delinquent cigarette taxes;
359     2.  Had a permit revoked by the division within the
360previous 2 years;
361     3.  Has been convicted of selling stolen or counterfeit
362cigarettes, receiving stolen cigarettes, or being involved in
363the counterfeiting of cigarettes;
364     4.  to any person who Has been convicted within the past 5
365years of any offense against the cigarette laws of this state or
366who has been convicted in this state, any other state, or the
367United States during the past 5 years of any offense designated
368as a felony by such state or the United States, or to a
369corporation, any of whose officers have been so convicted. The
370term "convicted conviction" shall include an adjudication of
371guilt on a plea of guilty or a plea of nolo contendere, or the
372forfeiture of a bond when charged with a crime;.
373     5.  Has imported, or caused to be imported, into the United
374States any cigarette in violation of 19 U.S.C. s. 1681a; or
375     6.  Has imported, or caused to be imported, into the United
376States, or manufactured for sale or distribution in the United
377States, any cigarette that does not fully comply with the
378Federal Cigarette Labeling and Advertising Act (15 U.S.C. ss.
3791331 et seq.).
380     (d)  The division may refuse to issue a distributing agent,
381wholesale, or exporter permit to any person, firm, or
382corporation whose permit under the cigarette law has been
383revoked, or to any corporation, an officer of which has had his
384or her permit under the cigarette law revoked, or to any person
385who is or has been an officer of a corporation whose permit has
386been revoked under the cigarette law. Any permit issued to a
387firm or corporation prohibited from obtaining such permit under
388the cigarette law may be revoked by the division.
389     (e)  Prior to an application for a distributing agent,
390wholesale dealer, or exporter permit being approved, the
391applicant shall file a set of fingerprints on forms provided by
392the division. The applicant shall also file a set of
393fingerprints for any person or persons interested directly or
394indirectly with the applicant in the business for which the
395permit is being sought, when so required by the division. If the
396applicant or any person interested with the applicant, either
397directly or indirectly, in the business for which the permit is
398sought shall be such a person as is within the definition of
399persons to whom a distributing agent, wholesale dealer, or
400exporter permit shall be denied, then the application may be
401denied by the division. If the applicant is a partnership, all
402members of the partnership are required to file said
403fingerprints, or if a corporation, all principal officers of the
404corporation are required to file said fingerprints. The
405cigarette permit for a manufacturer, importer, distributing
406agent, wholesale dealer, or exporter shall be originally issued
407at a fee of $100, which sum is to cover the cost of the
408investigation required before issuing such permit.
409     (f)  The cigarette permits issued under this section permit
410for a wholesale dealer or exporter shall be renewed from year to
411year as a matter of course, at an annual cost of $100, on or
412before July 1, upon making application to the division and upon
413payment of the annual renewal fee.
414     (g)  Permittees, by acceptance of their permits, agree that
415their places of business or vehicles transporting cigarettes
416shall always be subject to be inspected and searched without a
417search warrant for the purpose of ascertaining that all
418provisions of this part are complied with by authorized
419employees of the division and also by sheriffs, deputy sheriffs,
420and police officers during business hours or during any other
421time such premises are occupied by the permittee or other
422persons. Retail cigarette dealers and manufacturers'
423representatives, by dealing in cigarettes, agree that their
424places of business or vehicles transporting cigarettes shall
425always be subject to inspection and search without a search
426warrant for the purpose of ascertaining that all provisions of
427this part are complied with by authorized employees of the
428division and also by sheriffs, deputy sheriffs, and police
429officers during business hours or other times when the premises
430are occupied by the retail dealer or manufacturers'
431representatives or other persons.
432     (h)  No retail sales of cigarettes may be made at a
433location for which a wholesale dealer, distributing agent, or
434exporter permit has been issued. The excise tax on sales made to
435any traveling location, such as an itinerant store or industrial
436caterer, shall be paid into the General Revenue Fund
437unallocated. Cigarettes may be purchased for retail purposes
438only from a person holding a wholesale dealer permit. The
439invoice for the purchase of cigarettes must show the place of
440business for which the purchase is made and the cigarettes
441cannot be transferred to any other place of business for the
442purpose of resale.
443     Section 9.  Section 210.16, Florida Statutes, is amended to
444read:
445     210.16  Revocation or suspension of permit.--
446     (1)  The Division of Alcoholic Beverages and Tobacco is
447given full power and authority to revoke the permit of any
448person wholesale dealer receiving a permit to engage in business
449under this part or chapter 569 for violation of any of the
450provisions of this part or chapter 569.
451     (2)  The division shall revoke the permit or permits of any
452person who would be ineligible to obtain a new license or renew
453a license by reason of any of the conditions for permitting
454provided in s. 210.15(1)(c)1.-6.
455     (3)(2)  The division may suspend for a reasonable period of
456time or revoke, in its discretion, the permits of wholesale
457dealers issued under the provisions of this part or chapter 569
458to any person who has violated any other provision of this part
459or chapter 569 for the same causes and under the same
460limitations as is authorized hereunder to revoke the permits of
461such wholesale dealers.
462     (4)(3)  No person wholesale dealer whose permit for any
463place of business has been revoked shall engage in business
464under this part or chapter 569 at such place of business after
465such revocation until a new permit is issued. No person
466wholesale dealer whose permit for any place of business has been
467revoked shall be permitted to have said permit renewed, or to
468obtain an additional cigarette permit for any other place of
469business, for a period of 2 years 6 months after the date such
470revocation becomes final.
471     (5)(4)  In addition to lieu of the suspension or revocation
472of permits, the division may impose civil penalties against
473holders of permits for violations of this part or rules and
474regulations relating thereto. No civil penalty so imposed shall
475exceed $2,500 $1,000 for each offense, and all amounts collected
476shall be deposited with the Chief Financial Officer to the
477credit of the General Revenue Fund. If the holder of the permit
478fails to pay the civil penalty, his or her permit shall be
479suspended for such period of time as the division may specify.
480     Section 10.  Subsections (2), (3), and (7) of section
481210.18, Florida Statutes, are amended, and subsections (9) and
482(10) are added to said section, to read:
483     210.18  Penalties for tax evasion; reports by sheriffs.--
484     (2)  Except as otherwise provided in this section, any
485person wholesale or retail dealer who fails, neglects, or
486refuses to comply with, or violates the provisions of, this part
487or the rules adopted and regulations promulgated by the division
488under this part commits is guilty of a misdemeanor of the first
489degree, punishable as provided in s. 775.082 or s. 775.083. Any
490person wholesale or retail dealer who has been convicted of a
491violation of any provision of the cigarette tax law and who is
492thereafter convicted of a further violation of the cigarette tax
493law is, upon conviction of such further offense, guilty of a
494felony of the third degree, punishable as provided in s.
495775.082, s. 775.083, or s. 775.084.
496     (3)  Any person who falsely or fraudulently makes, forges,
497alters, or counterfeits any stamp or impression die used in
498meter machines prescribed by the division under the provisions
499of this part; or, with intent to evade taxes, jams, tampers
500with, or alters such a machine; or causes or procures to be
501falsely or fraudulently made, forged, altered, or counterfeited
502any such stamp or die; or knowingly and willfully utters,
503purchases, passes or tenders as true any such false, altered, or
504counterfeited stamp or die impression; or, with the intent to
505defraud the state, fails to comply with any other requirement of
506this part commits is guilty of a felony of the third degree,
507punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
508     (7)  Any sheriff, deputy sheriff, or police officer, or
509state law enforcement officer, upon the seizure of any unstamped
510cigarettes under this section, shall promptly report such
511seizure to the division or its representative, together with a
512description of all such unstamped cigarettes seized, so that the
513state may be kept informed as to the size and magnitude of the
514illicit cigarette business. The division shall keep records
515showing the number of seizures and seized cigarettes reported
516to, or seized by, the division.
517     (9)  Notwithstanding any other provision of law, the sale
518or possession for sale of counterfeit cigarettes by any person
519or by a manufacturer, importer, distributing agent, wholesale
520dealer, or retail dealer shall result in the seizure of the
521product and related machinery by the division or any law
522enforcement agency.
523     (10)  It is unlawful to sell or possess with the intent to
524sell counterfeit cigarettes, as defined in s. 210.01(22).
525     (a)  A person who does not hold a permit or holds a retail
526permit under the provisions of this chapter and who violates
527this subsection commits a felony of the third degree, punishable
528as provided in s. 775.082, s. 775.083, or s. 775.084, and is
529subject to the imposition of fines and additional penalties as
530follows:
531     1.  If the quantity of counterfeit cigarettes sold or
532possessed with the intent to sell is less than two cartons or
533the equivalent, the fine for a first violation shall not exceed
534$1,000 or five times the retai1 value of the counterfeit
535cigarettes, whichever is greater. A subsequent violation may
536result in the imposition of a fine not to exceed $5,000 or five
537times the retail value of the counterfeit cigarettes, whichever
538is greater, and shall result in revocation of the retail permit
539by the division.
540     2.  If the quantity of counterfeit cigarettes sold or
541possessed with the intent to sell is two cartons or more or the
542equivalent, the fine for a first violation shall not exceed
543$2,000 or five times the retail value of the counterfeit
544cigarettes, whichever is greater. A subsequent violation may
545result in the imposition of a fine not to exceed $50,000 or five
546times the retail value of the counterfeit cigarettes, whichever
547is greater, and shall result in revocation of the retail permit
548by the division.
549     (b)  A person who holds a permit, other than a retail
550permit, under the provisions of this chapter and who violates
551this subsection commits a felony of the third degree, punishable
552as provided in s. 775.082, s. 775.083, or s. 775.084, and is
553subject to the imposition of fines and additional penalties as
554follows:
555     1.  If the quantity of counterfeit cigarettes sold or
556possessed with the intent to sell is less than 10 cartons or the
557equivalent, the fine for a first violation shall not exceed
558$1,000 or five times the retail value of the counterfeit
559cigarettes, whichever is greater. A subsequent violation may
560result in the imposition of a fine not to exceed $5,000 or five
561times the retail value of the counterfeit cigarettes, whichever
562is greater, and shall result in revocation of the permit by the
563division.
564     2.  If the quantity of counterfeit cigarettes sold or
565possessed with the intent to sell is 10 cartons or more or the
566equivalent, the fine for a first violation shall not exceed
567$2,000 or five times the retail value of the counterfeit
568cigarettes, whichever is greater. A subsequent violation may
569result in the imposition of a fine not to exceed $50,000 or five
570times the retail value of the counterfeit cigarettes, whichever
571is greater, and shall result in revocation of the permit by the
572division.
573
574For purposes of this subsection, any counterfeit cigarettes
575seized by the division shall be destroyed.
576     Section 11.  Section 210.181, Florida Statutes, is created
577to read:
578     210.181  Civil penalties.--
579     (1)  Except as provided in s. 210.16(5), whoever knowingly
580omits, neglects, or refuses to comply with any duty imposed upon
581him or her by this part, or to do or cause to be done any of the
582things required by this part, or does anything prohibited by
583this part shall, in addition to any other penalty provided in
584this part, be liable for a fine of $1,000 or five times the
585retail value of the cigarettes involved, whichever is greater.
586     (2)  Whoever fails to pay any tax imposed by this part at
587the time prescribed by law or rules shall, in addition to any
588other penalty provided in this part, be liable for a penalty of
589five times the unpaid tax due.
590     Section 12.  For the purpose of incorporating the amendment
591to section 210.18, Florida Statutes, in a reference thereto,
592paragraph (a) of subsection (1) of section 772.102, Florida
593Statutes, is reenacted to read:
594     772.102  Definitions.--As used in this chapter, the term:
595     (1)  "Criminal activity" means to commit, to attempt to
596commit, to conspire to commit, or to solicit, coerce, or
597intimidate another person to commit:
598     (a)  Any crime which is chargeable by indictment or
599information under the following provisions:
600     1.  Section 210.18, relating to evasion of payment of
601cigarette taxes.
602     2.  Section 414.39, relating to public assistance fraud.
603     3.  Section 440.105 or s. 440.106, relating to workers'
604compensation.
605     4.  Part IV of chapter 501, relating to telemarketing.
606     5.  Chapter 517, relating to securities transactions.
607     6.  Section 550.235, s. 550.3551, or s. 550.3605, relating
608to dogracing and horseracing.
609     7.  Chapter 550, relating to jai alai frontons.
610     8.  Chapter 552, relating to the manufacture, distribution,
611and use of explosives.
612     9.  Chapter 562, relating to beverage law enforcement.
613     10.  Section 624.401, relating to transacting insurance
614without a certificate of authority, s. 624.437(4)(c)1., relating
615to operating an unauthorized multiple-employer welfare
616arrangement, or s. 626.902(1)(b), relating to representing or
617aiding an unauthorized insurer.
618     11.  Chapter 687, relating to interest and usurious
619practices.
620     12.  Section 721.08, s. 721.09, or s. 721.13, relating to
621real estate timeshare plans.
622     13.  Chapter 782, relating to homicide.
623     14.  Chapter 784, relating to assault and battery.
624     15.  Chapter 787, relating to kidnapping.
625     16.  Chapter 790, relating to weapons and firearms.
626     17.  Section 796.03, s. 796.04, s. 796.05, or s. 796.07,
627relating to prostitution.
628     18.  Chapter 806, relating to arson.
629     19.  Section 810.02(2)(c), relating to specified burglary
630of a dwelling or structure.
631     20.  Chapter 812, relating to theft, robbery, and related
632crimes.
633     21.  Chapter 815, relating to computer-related crimes.
634     22.  Chapter 817, relating to fraudulent practices, false
635pretenses, fraud generally, and credit card crimes.
636     23.  Section 827.071, relating to commercial sexual
637exploitation of children.
638     24.  Chapter 831, relating to forgery and counterfeiting.
639     25.  Chapter 832, relating to issuance of worthless checks
640and drafts.
641     26.  Section 836.05, relating to extortion.
642     27.  Chapter 837, relating to perjury.
643     28.  Chapter 838, relating to bribery and misuse of public
644office.
645     29.  Chapter 843, relating to obstruction of justice.
646     30.  Section 847.011, s. 847.012, s. 847.013, s. 847.06, or
647s. 847.07, relating to obscene literature and profanity.
648     31.  Section 849.09, s. 849.14, s. 849.15, s. 849.23, or s.
649849.25, relating to gambling.
650     32.  Chapter 893, relating to drug abuse prevention and
651control.
652     33.  Section 914.22 or s. 914.23, relating to witnesses,
653victims, or informants.
654     34.  Section 918.12 or s. 918.13, relating to tampering
655with jurors and evidence.
656     Section 13.  For the purpose of incorporating the amendment
657to section 210.18, Florida Statutes, in a reference thereto,
658paragraph (a) of subsection (1) of section 895.02, Florida
659Statutes, is reenacted to read:
660     895.02  Definitions.--As used in ss. 895.01-895.08, the
661term:
662     (1)  "Racketeering activity" means to commit, to attempt to
663commit, to conspire to commit, or to solicit, coerce, or
664intimidate another person to commit:
665     (a)  Any crime which is chargeable by indictment or
666information under the following provisions of the Florida
667Statutes:
668     1.  Section 210.18, relating to evasion of payment of
669cigarette taxes.
670     2.  Section 403.727(3)(b), relating to environmental
671control.
672     3.  Section 409.920 or s. 409.9201, relating to Medicaid
673fraud.
674     4.  Section 414.39, relating to public assistance fraud.
675     5.  Section 440.105 or s. 440.106, relating to workers'
676compensation.
677     6.  Section 465.0161, relating to distribution of medicinal
678drugs without a permit as an Internet pharmacy.
679     7.  Sections 499.0051, 499.0052, 499.00535, 499.00545, and
680499.0691, relating to crimes involving contraband and
681adulterated drugs.
682     8.  Part IV of chapter 501, relating to telemarketing.
683     9.  Chapter 517, relating to sale of securities and
684investor protection.
685     10.  Section 550.235, s. 550.3551, or s. 550.3605, relating
686to dogracing and horseracing.
687     11.  Chapter 550, relating to jai alai frontons.
688     12.  Chapter 552, relating to the manufacture,
689distribution, and use of explosives.
690     13.  Chapter 560, relating to money transmitters, if the
691violation is punishable as a felony.
692     14.  Chapter 562, relating to beverage law enforcement.
693     15.  Section 624.401, relating to transacting insurance
694without a certificate of authority, s. 624.437(4)(c)1., relating
695to operating an unauthorized multiple-employer welfare
696arrangement, or s. 626.902(1)(b), relating to representing or
697aiding an unauthorized insurer.
698     16.  Section 655.50, relating to reports of currency
699transactions, when such violation is punishable as a felony.
700     17.  Chapter 687, relating to interest and usurious
701practices.
702     18.  Section 721.08, s. 721.09, or s. 721.13, relating to
703real estate timeshare plans.
704     19.  Chapter 782, relating to homicide.
705     20.  Chapter 784, relating to assault and battery.
706     21.  Chapter 787, relating to kidnapping.
707     22.  Chapter 790, relating to weapons and firearms.
708     23.  Section 796.03, s. 796.035, s. 796.04, s. 796.045, s.
709796.05, or s. 796.07, relating to prostitution and sex
710trafficking.
711     24.  Chapter 806, relating to arson.
712     25.  Section 810.02(2)(c), relating to specified burglary
713of a dwelling or structure.
714     26.  Chapter 812, relating to theft, robbery, and related
715crimes.
716     27.  Chapter 815, relating to computer-related crimes.
717     28.  Chapter 817, relating to fraudulent practices, false
718pretenses, fraud generally, and credit card crimes.
719     29.  Chapter 825, relating to abuse, neglect, or
720exploitation of an elderly person or disabled adult.
721     30.  Section 827.071, relating to commercial sexual
722exploitation of children.
723     31.  Chapter 831, relating to forgery and counterfeiting.
724     32.  Chapter 832, relating to issuance of worthless checks
725and drafts.
726     33.  Section 836.05, relating to extortion.
727     34.  Chapter 837, relating to perjury.
728     35.  Chapter 838, relating to bribery and misuse of public
729office.
730     36.  Chapter 843, relating to obstruction of justice.
731     37.  Section 847.011, s. 847.012, s. 847.013, s. 847.06, or
732s. 847.07, relating to obscene literature and profanity.
733     38.  Section 849.09, s. 849.14, s. 849.15, s. 849.23, or s.
734849.25, relating to gambling.
735     39.  Chapter 874, relating to criminal street gangs.
736     40.  Chapter 893, relating to drug abuse prevention and
737control.
738     41.  Chapter 896, relating to offenses related to financial
739transactions.
740     42.  Sections 914.22 and 914.23, relating to tampering with
741a witness, victim, or informant, and retaliation against a
742witness, victim, or informant.
743     43.  Sections 918.12 and 918.13, relating to tampering with
744jurors and evidence.
745     Section 14.  This act shall take effect October 1, 2005.


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