Senate Bill sb0144

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    Florida Senate - 2006        (Corrected Copy)           SB 144

    By Senator Saunders





    37-60-06

  1                      A bill to be entitled

  2         An act relating to the Beverage Law; creating

  3         s. 561.585, F.S.; providing for certain direct

  4         shipments of wine from out of state; requiring

  5         shippers to have certain licenses and pay

  6         excise taxes; providing for administrative and

  7         criminal penalties; requiring a person

  8         receiving a shipment of wine from out of state

  9         to register with the Division of Alcoholic

10         Beverages and Tobacco; exempting charitable

11         organizations from excise and sales and use

12         taxes on sales made from direct shipments of

13         wine from out of state, subject to

14         restrictions; amending ss. 561.54 and 561.545,

15         F.S.; providing that those sections are

16         inapplicable to wine shipped under certain

17         circumstances; providing an effective date.

18  

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

20  

21         Section 1.  Section 561.585, Florida Statutes, is

22  created to read:

23         561.585  Direct shipment of wine.--

24         (1)  LICENSURE REQUIREMENTS.--Notwithstanding any

25  provision of the Beverage Law or any rule to the contrary, a

26  person, firm, corporation, or other entity who is licensed as

27  an out-of-state shipper under this section may ship wine

28  directly to any person registered under this section who is at

29  least 21 years of age for personal use only and not for

30  resale. To obtain an out-of-state shipper's license, an

31  applicant must:

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    Florida Senate - 2006        (Corrected Copy)           SB 144
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 1         (a)  Obtain and maintain a current license as a primary

 2  American source of supply as provided in s. 564.045;

 3         (b)  Provide to the division a true copy of its current

 4  alcoholic beverage license issued by another state; and

 5         (c)  Pay a registration fee in the amount of $100.

 6  

 7  A shipper may annually renew its out-of-state shipper's

 8  license with the division by paying a renewal fee in the

 9  amount of $100 and providing to the division a true copy of

10  its current alcoholic beverage license issued by another

11  state.

12         (2)  SIGNATURE.--Each out-of-state shipper shall ensure

13  that the outside shipping label of each package containing

14  wine shipped under this section conspicuously states

15  "SIGNATURE OF ADDRESSEE AGE 21 OR OLDER REQUIRED FOR DELIVERY"

16  and that, prior to delivery, the signature of the addressee is

17  obtained after presentation of a valid driver's license, an

18  identification card issued by this state or another state of

19  an adult 21 years of age or older is obtained.

20         (3)  MONTHLY REPORT.--Each out-of-state shipper shall

21  report monthly to the division the total amount of wine by

22  type shipped into the state during the preceding month.

23         (4)  TAXES.--Each out-of-state shipper shall pay

24  monthly to the Department of Revenue all sales taxes and to

25  the division all excise taxes due on sales to persons in this

26  state for the preceding month. The amount of taxes shall be

27  calculated as if the sale took place at the location where the

28  delivery occurred in this state. Each out-of-state shipper

29  shall maintain records of its direct shipments to this state,

30  including the names, addresses, amounts, and dates of all

31  shipments to persons in this state, and shall allow the

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    Florida Senate - 2006        (Corrected Copy)           SB 144
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 1  Department of Revenue or the division, upon its request, to

 2  perform an audit of such records.

 3         (5)  JURISDICTION.--Each out-of-state shipper is deemed

 4  to have consented to the jurisdiction of the division or any

 5  other state agency and the courts of this state concerning

 6  enforcement of this section and any related laws or rules.

 7         (6)  REGISTRATION.--Before receiving any shipment under

 8  this section, a person must register with the division on a

 9  form prescribed by the division by filing a sworn statement

10  and providing:

11         (a)  The purposes:

12         1.  Full name;

13         2.  Address of legal residence, and mailing address, if

14  different from street address;

15         3.  Telephone number;

16         (b)  Proof that the person is at least 21 years of age;

17         (c)  A statement that wine obtained under this section

18  is for personal use only and not for resale;

19         (d)  A statement that the person will obtain a maximum

20  of 4 cases of wine per calendar year from all out-of-state

21  shippers combined; and

22         (e)  Any other information the division by rule deems

23  necessary to adequately carry out the provisions of this

24  section.

25  

26  A registration must be updated with the division within 30

27  days after any change. The registration is valid for a period

28  of up to 5 years and expires on December 31 of the 5th year.

29         (7)  PENALTIES.--

30         (a)  In addition to the penalties provided by s.

31  561.545, the division may suspend or revoke an out-of-state

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    Florida Senate - 2006        (Corrected Copy)           SB 144
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 1  shipper's license or impose fines on the out-of-state shipper

 2  for any violation of this section.

 3         (b)  An out-of-state shipper who knowingly and

 4  intentionally ships, or causes to be shipped, wine to any

 5  person in this state who is younger than 21 years of age

 6  commits a felony of the third degree, punishable as provided

 7  in s. 775.082, s. 775.083, or s. 775.084.

 8         (c)  Any common carrier, permit carrier, or operator of

 9  a privately owned car, truck, bus, or other conveyance who

10  knowingly and willfully transports wine from an out-of-state

11  location directly to any person in this state who is younger

12  than 21 years of age commits a felony of the third degree,

13  punishable as provided in s. 775.082, s. 775.083, or s.

14  775.084.

15         (d)  A person who obtains wine from an out-of-state

16  shipper in violation of this section commits a misdemeanor of

17  the second degree, punishable as provided in s. 775.082 or s.

18  775.083.

19         (8)  EXEMPTION FOR CHARITABLE ORGANIZATIONS.--A

20  charitable organization is exempt from the excise and sales

21  and use taxes on any sales of wine obtained from an

22  out-of-state shipper under this section for purposes of

23  fundraising if all proceeds and profits are deposited with the

24  organization. Any bottles of wine that are not sold at the

25  fundraising event must be returned to the out-of-state

26  shipper. As used in this subsection, the term "charitable

27  organization" means an organization that holds a current tax

28  exemption from federal income tax under s. 501(c)(3) of the

29  Internal Revenue Code, as amended, and that is exempt from the

30  sales and use taxes imposed by chapter 212.

31  

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    Florida Senate - 2006        (Corrected Copy)           SB 144
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 1         Section 2.  Section 561.54, Florida Statutes, is

 2  amended to read:

 3         561.54  Certain deliveries of beverages prohibited.--

 4         (1)  It is unlawful for common or permit carriers,

 5  operators of privately owned cars, trucks, buses, or other

 6  conveyances or out-of-state manufacturers or suppliers to make

 7  delivery from without the state of any alcoholic beverage to

 8  any person, association of persons, or corporation within the

 9  state, except to qualified manufacturers, distributors, and

10  exporters of such beverages so delivered and to qualified

11  bonded warehouses in this state.

12         (2)  Any licensee aggrieved by a violation of this

13  section may bring an action in any court of competent

14  jurisdiction to recover for the state all moneys obtained by

15  common carriers or permit carriers; obtained by operators of

16  privately owned cars, trucks, buses, or other conveyances; or

17  obtained by out-of-state manufacturers or suppliers as a

18  result of the delivery of alcoholic beverages in violation of

19  this section, and may obtain a declaratory judgment that an

20  act or practice violates this section and enjoin any person

21  from violating this section.  In addition to such relief, the

22  court may order the confiscation and destruction of any

23  alcoholic beverages delivered in violation of this section.

24  In assessing damages, the court shall enter judgment against a

25  defendant for three times the amount of the delivery charges

26  proved or the fair market value of merchandise unlawfully

27  brought into the state.  Payment or satisfaction of any

28  judgment under this section, other than for costs and

29  attorney's fees, shall be made in its entirety to the state.

30  In any successful action under this section, the court shall

31  award the plaintiff costs and reasonable attorney's fees.

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    Florida Senate - 2006        (Corrected Copy)           SB 144
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 1         (3)  This section does not apply to the shipment of

 2  wine by a licensed out-of-state shipper to a registered person

 3  21 years of age or older in accordance with s. 561.585 or to

 4  the delivery of wine from an out-of-state shipper by common

 5  carrier or operators of privately owned cars, trucks, buses,

 6  or other conveyances, if, prior to delivery, the signature of

 7  an adult 21 years of age or older is obtained.

 8         Section 3.  Section 561.545, Florida Statutes, is

 9  amended to read:

10         561.545  Certain shipments of beverages prohibited;

11  penalties; exceptions.--The Legislature finds that the direct

12  shipment of alcoholic beverages by persons in the business of

13  selling alcoholic beverages to residents of this state in

14  violation of the Beverage Law poses a serious threat to the

15  public health, safety, and welfare; to state revenue

16  collections; and to the economy of the state.  The Legislature

17  further finds that the penalties for illegal direct shipment

18  of alcoholic beverages to residents of this state should be

19  made adequate to ensure compliance with the Beverage Law and

20  that the measures provided for in this section are fully

21  consistent with the powers conferred upon the state by the

22  Twenty-first Amendment to the United States Constitution.

23         (1)  Any person in the business of selling alcoholic

24  beverages who knowingly and intentionally ships, or causes to

25  be shipped, any alcoholic beverage from an out-of-state

26  location directly to any person in this state who does not

27  hold a valid manufacturer's or wholesaler's license or

28  exporter's registration issued by the Division of Alcoholic

29  Beverages and Tobacco or who is not a state-bonded warehouse

30  is in violation of this section.

31  

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    Florida Senate - 2006        (Corrected Copy)           SB 144
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 1         (2)  Any common carrier or permit carrier or any

 2  operator of a privately owned car, truck, bus, or other

 3  conveyance who knowingly and intentionally transports any

 4  alcoholic beverage from an out-of-state location directly to

 5  any person in this state who does not hold a valid

 6  manufacturer's or wholesaler's license or exporter's

 7  registration or who is not a state-bonded warehouse is in

 8  violation of this section.

 9         (3)  Any person found by the division to be in

10  violation of subsection (1) shall be issued a notice, by

11  certified mail, to show cause why a cease and desist order

12  should not be issued. Any person who violates subsection (1)

13  within 2 years after receiving a cease and desist order or

14  within 2 years after a prior conviction for violating

15  subsection (1) commits a felony of the third degree,

16  punishable as provided in s. 775.082, s. 775.083, or s.

17  775.084.

18         (4)  Any common carrier or permit carrier, or any

19  operator of a privately owned car, truck, bus, or other

20  conveyance found by the division to be in violation of

21  subsection (2) as a result of a second or subsequent delivery

22  from the same source and location, within a 2-year period

23  after the first delivery shall be issued a notice, by

24  certified mail, to show cause why a cease and desist order

25  should not be issued. Any person who violates subsection (2)

26  within 2 years after receiving the cease and desist order or

27  within 2 years after a prior conviction for violating

28  subsection (2) commits a felony of the third degree,

29  punishable as provided in s. 775.082, s. 775.083, or s.

30  775.084.

31         (5)  This section does not apply to:

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    Florida Senate - 2006        (Corrected Copy)           SB 144
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 1         (a)  The direct shipment of sacramental alcoholic

 2  beverages to bona fide religious organizations as authorized

 3  by the division; or to

 4         (b)  The possession of alcoholic beverages in

 5  accordance with s. 562.15(2); or.

 6         (c)  The shipment of wine by a licensed out-of-state

 7  shipper to a registered person 21 years of age or older in

 8  accordance with s. 561.585 or the delivery of wine from an

 9  out-of-state shipper by common carrier, permit carriers,

10  operators of privately owned cars, trucks, buses, or other

11  conveyances, if, prior to delivery, the signature of an adult

12  21 years of age or older is obtained.

13         Section 4.  This act shall take effect upon becoming a

14  law.

15  

16            *****************************************

17                          SENATE SUMMARY

18    Authorizes the direct shipment of wine from out of state
      to persons at least 21 years of age. Provides requirement
19    for obtaining an out-of-state shipper's license from the
      Division of Alcoholic Beverages and Tobacco. Requires
20    reports and the payment of taxes to the Department of
      Revenue. Requires that persons receiving out-of-state
21    shipments register with the division. Provides an
      exemption for charitable organizations. (See bill for
22    details.)

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