Senate Bill sb0906
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Florida Senate - 2005 SB 906
By Senator Dockery
15-743-05
1 A bill to be entitled
2 An act relating to the Beverage Law; creating
3 s. 561.575, F.S.; providing for the direct
4 shipment of wine from within or outside the
5 state; requiring that a shipper hold a
6 direct-shipper's license; providing
7 requirements for licensure; requiring that each
8 container of wine shipped directly be labeled
9 with a notice; requiring that a direct shipper
10 file a surety bond with the Division of
11 Alcoholic Beverages and Tobacco of the
12 Department of Business and Professional
13 Regulation; providing for attorney's fees and
14 costs in an action to collect unpaid taxes;
15 requiring an out-of-state direct shipper to pay
16 the costs of an audit or examination by the
17 division; authorizing the division to suspend
18 or revoke a direct-shipper's license or impose
19 fines; providing for criminal penalties;
20 authorizing the division to adopt rules;
21 amending ss. 561.54 and 561.545, F.S.;
22 specifying that provisions prohibiting the
23 direct shipment of alcoholic beverages are
24 inapplicable to wine shipped under s. 561.575,
25 F.S.; providing an effective date.
26
27 Be It Enacted by the Legislature of the State of Florida:
28
29 Section 1. Section 561.575, Florida Statutes, is
30 created to read:
31 561.575 Direct shipment of wine.--
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Florida Senate - 2005 SB 906
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1 (1) Notwithstanding any other law or rule to the
2 contrary, if a manufacturer of wine is located within or
3 outside this state, holds a wine producer and blenders basic
4 permit issued in accordance with the Federal Alcohol
5 Administration Act, and obtains a direct-shipper's license as
6 provided in this section, the manufacturer may ship wine
7 directly to a resident of this state who is at least 21 years
8 of age for that resident's personal use and not for resale.
9 (2) Before sending a shipment of wine to a resident of
10 this state, a manufacturer must obtain a direct-shipper's
11 license by:
12 (a) Filing an application with the division;
13 (b) Paying an annual license fee of $100; and
14 (c) Providing to the division a true copy of its
15 current basic permit as a wine producer and blender issued in
16 accordance with the Federal Alcohol Administration Act.
17
18 By obtaining a direct-shipper's license, the licensee shall be
19 deemed to have consented to the jurisdiction of the division,
20 any other state agency, and the courts of this state
21 concerning compliance with the laws of this state.
22 (3) Each licensee holding a direct-shipper's license
23 shall:
24 (a) Obtain and maintain a current license as provided
25 in this section.
26 (b) Pay all applicable excise taxes on wines as
27 required by s. 564.06 and the Beverage Law.
28 (c) Ensure that each container of wine shipped
29 directly to a resident of this state is labeled conspicuously
30 with the words "CONTAINS ALCOHOL: SIGNATURE OF PERSON AGE 21
31 OR OLDER REQUIRED FOR DELIVERY" and require, before delivery,
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1 the signature of a person 21 years of age or older after
2 presentation of a valid driver's license, an identification
3 card issued by this state or another state of the United
4 States, a passport, or a United States armed services
5 identification card.
6 (d) Report to the division, by the 10th day of each
7 month, on forms prescribed by the division:
8 1. Whether any wine product was shipped to a resident
9 of this state during the preceding month;
10 2. The total amount of wine shipped to residents of
11 this state during the preceding month;
12 3. The quantity and types of wine shipped to residents
13 of this state during the preceding month;
14 4. The amount of excise tax paid to the division for
15 the shipments of wine to residents of this state during the
16 preceding month; and
17 5. Any other information that the division determines
18 is necessary to enforce this section.
19 (e) Permit the division to perform an audit of the
20 records of the direct shipper upon request.
21 (f) Keep complete, accurate, and separate records of
22 wine products sold and shipped to this state.
23 (g) Renew on or before August 1 of each year its
24 license with the division by paying a renewal fee of $100.
25 (h) File with the division a surety bond acceptable to
26 the division in the sum of $5,000 as surety for the payment of
27 all taxes required under this chapter. However, the division
28 may authorize a bond of a lesser amount if the amount of
29 business done by the direct shipper is of such volume that a
30 bond of less than $5,000 will be adequate to secure the
31 payment of all taxes assessed or authorized under the Beverage
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1 Law. The division may not accept a bond of less than $1,000
2 and may, at any time, require a bond of less than $5,000 to be
3 increased to an amount not to exceed $5,000.
4 (4) A direct shipper is subject to and must comply
5 with the requirements of s. 564.05 limiting the size of wine
6 containers.
7 (5) A direct shipper shall pay all attorney's fees and
8 costs in any action to collect unpaid taxes.
9 (6) Each out-of-state direct shipper that is subject
10 to an audit or examination by the division shall pay to the
11 division the expenses incurred in conducting the audit or
12 examination at rates adopted by the division. Expenses include
13 actual travel expenses, a reasonable per diem allowance, and
14 necessary attendant administrative costs of the division which
15 are directly related to the out-of-state audit or examination.
16 The direct shipper shall pay travel expenses and the per diem
17 allowance necessarily incurred on account of the out-of-state
18 audit or examination together with administrative costs upon
19 presentation by the division.
20 (7) Any person in the business of selling alcoholic
21 beverages who knowingly and intentionally ships, or causes to
22 be shipped, any alcoholic beverage from an out-of-state or
23 in-state location directly to any person in this state who
24 does not hold a valid manufacturer's license, wholesaler's
25 license, or exporter's registration issued by the Division of
26 Alcoholic Beverages and Tobacco; who is not a state-bonded
27 warehouse; or who does not hold a valid direct-shipper's
28 license is in violation of this section.
29 (8) The division shall enforce the requirements of
30 this section pursuant to chapter 120 and may suspend or revoke
31 a direct-shipper's license or impose a fine that may not
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1 exceed $5,000 if the licensee fails to comply with the
2 requirements of this section and the Beverage Law.
3 (9) If the division finds any person to be in
4 violation of this section, the division shall issue a notice,
5 by certified mail, requiring such person to show cause why a
6 cease and desist order should not be issued. Any person who
7 violates this section within 2 years after receiving a cease
8 and desist order or within 2 years following a conviction for
9 violating this section commits a felony of the third degree,
10 punishable as provided in s. 775.082, s. 775.083, or s.
11 775.084.
12 (10) The division may adopt rules to administer this
13 section.
14 Section 2. Section 561.54, Florida Statutes, is
15 amended to read:
16 561.54 Certain deliveries of beverages prohibited.--
17 (1) It is unlawful for common or permit carriers,
18 operators of privately owned cars, trucks, buses, or other
19 conveyances or out-of-state manufacturers or suppliers to make
20 delivery from without the state of any alcoholic beverage to
21 any person, association of persons, or corporation within the
22 state, except to qualified manufacturers, distributors, and
23 exporters of such beverages so delivered and to qualified
24 bonded warehouses in this state.
25 (2) Any licensee aggrieved by a violation of this
26 section may bring an action in any court of competent
27 jurisdiction to recover for the state all moneys obtained by
28 common carriers or permit carriers; obtained by operators of
29 privately owned cars, trucks, buses, or other conveyances; or
30 obtained by out-of-state manufacturers or suppliers as a
31 result of the delivery of alcoholic beverages in violation of
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1 this section, and may obtain a declaratory judgment that an
2 act or practice violates this section and enjoin any person
3 from violating this section. In addition to such relief, the
4 court may order the confiscation and destruction of any
5 alcoholic beverages delivered in violation of this section.
6 In assessing damages, the court shall enter judgment against a
7 defendant for three times the amount of the delivery charges
8 proved or the fair market value of merchandise unlawfully
9 brought into the state. Payment or satisfaction of any
10 judgment under this section, other than for costs and
11 attorney's fees, shall be made in its entirety to the state.
12 In any successful action under this section, the court shall
13 award the plaintiff costs and reasonable attorney's fees.
14 (3) This section does not apply to the shipment of
15 wine by a licensed out-of-state shipper to a registered person
16 21 years of age or older in accordance with s. 561.575.
17 Section 3. Section 561.545, Florida Statutes, is
18 amended to read:
19 561.545 Certain shipments of beverages prohibited;
20 penalties; exceptions.--The Legislature finds that the direct
21 shipment of alcoholic beverages by persons in the business of
22 selling alcoholic beverages to residents of this state in
23 violation of the Beverage Law poses a serious threat to the
24 public health, safety, and welfare; to state revenue
25 collections; and to the economy of the state. The Legislature
26 further finds that the penalties for illegal direct shipment
27 of alcoholic beverages to residents of this state should be
28 made adequate to ensure compliance with the Beverage Law and
29 that the measures provided for in this section are fully
30 consistent with the powers conferred upon the state by the
31 Twenty-first Amendment to the United States Constitution.
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1 (1) Any person in the business of selling alcoholic
2 beverages who knowingly and intentionally ships, or causes to
3 be shipped, any alcoholic beverage from an out-of-state
4 location directly to any person in this state who does not
5 hold a valid manufacturer's or wholesaler's license or
6 exporter's registration issued by the Division of Alcoholic
7 Beverages and Tobacco or who is not a state-bonded warehouse
8 is in violation of this section.
9 (2) Any common carrier or permit carrier or any
10 operator of a privately owned car, truck, bus, or other
11 conveyance who knowingly and intentionally transports any
12 alcoholic beverage from an out-of-state location directly to
13 any person in this state who does not hold a valid
14 manufacturer's or wholesaler's license or exporter's
15 registration or who is not a state-bonded warehouse is in
16 violation of this section.
17 (3) Any person found by the division to be in
18 violation of subsection (1) shall be issued a notice, by
19 certified mail, to show cause why a cease and desist order
20 should not be issued. Any person who violates subsection (1)
21 within 2 years after receiving a cease and desist order or
22 within 2 years after a prior conviction for violating
23 subsection (1) commits a felony of the third degree,
24 punishable as provided in s. 775.082, s. 775.083, or s.
25 775.084.
26 (4) Any common carrier or permit carrier, or any
27 operator of a privately owned car, truck, bus, or other
28 conveyance found by the division to be in violation of
29 subsection (2) as a result of a second or subsequent delivery
30 from the same source and location, within a 2-year period
31 after the first delivery shall be issued a notice, by
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1 certified mail, to show cause why a cease and desist order
2 should not be issued. Any person who violates subsection (2)
3 within 2 years after receiving the cease and desist order or
4 within 2 years after a prior conviction for violating
5 subsection (2) commits a felony of the third degree,
6 punishable as provided in s. 775.082, s. 775.083, or s.
7 775.084.
8 (5) This section does not apply to:
9 (a) The direct shipment of sacramental alcoholic
10 beverages to bona fide religious organizations as authorized
11 by the division; or to
12 (b) The possession of alcoholic beverages in
13 accordance with s. 562.15(2); or.
14 (c) The shipment of wine by a licensed out-of-state
15 shipper to a registered person 21 years of age or older in
16 accordance with s. 561.575.
17 Section 4. This act shall take effect upon becoming a
18 law.
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21 SENATE SUMMARY
22 Authorizes the direct shipment of wine by a manufacturer
to any resident of this state who is at least 21 years
23 old for the resident's own use and not for resale.
Requires direct shippers to be licensed by the Division
24 of Alcoholic Beverages and Tobacco. Provides for the
payment of taxes. Provides for criminal penalties.
25 Provides that ss. 561.54 and 561.545, F.S., do not apply
to direct shipments of wine to persons in this state.
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