Senate Bill sb0144c1

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    Florida Senate - 2006                    CS for SB's 144 & 944

    By the Committee on Regulated Industries; and Senators
    Saunders and Geller




    580-2022-06

  1                      A bill to be entitled

  2         An act relating to the Beverage Law; amending

  3         s. 561.14, F.S.; providing for license

  4         classification as a winery shipper; creating s.

  5         561.585, F.S.; authorizing certain direct

  6         shipments of wine; requiring licensure of

  7         winery shippers; providing requirements for

  8         licensure; providing prohibitions; requiring

  9         that a winery shipper licensee file a surety

10         bond with the Division of Alcoholic Beverages

11         and Tobacco of the Department of Business and

12         Professional Regulation; requiring that each

13         container of wine shipped directly be labeled

14         with a notice; requiring monthly reports by

15         winery shipper licensees; providing limitations

16         on the amount of wine a winery shipper may ship

17         or cause to be shipped; providing age

18         requirements for those receiving direct

19         shipments of wine; providing a defense to

20         certain actions; requiring payment of taxes by

21         direct shippers; requiring that winery shippers

22         maintain certain records for a certain time

23         period; providing for jurisdiction; providing

24         penalties; amending s. 561.54, F.S.; removing a

25         provision requiring that the licensee be

26         aggrieved by a violation involving prohibited

27         delivery from without the state to have

28         standing to bring an action; exempting from

29         such prohibition shipment of wine by a winery

30         shipper licensee; amending s. 561.545, F.S.,

31         relating to the prohibition against direct

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    Florida Senate - 2006                    CS for SB's 144 & 944
    580-2022-06




 1         shipment of alcoholic beverages; exempting

 2         applicability of such prohibition to the

 3         shipment of wine by a winery shipper licensee;

 4         amending s. 561.57, F.S.; providing that

 5         Internet orders shall be construed as telephone

 6         orders; exempting common carriers, licensees,

 7         or other persons using common carriers as their

 8         agents from certain report-filing requirements;

 9         requiring common carriers to verify the age of

10         persons receiving shipments; providing a

11         defense to certain actions; amending s.

12         599.004, F.S.; revising qualifications for the

13         certification of Florida Farm Wineries;

14         amending s. 561.24, F.S.; revising an effective

15         date; authorizing certain manufacturers of wine

16         holding a distributor's license to renew such

17         license; removing exemption of Florida Farm

18         Wineries from prohibition against manufacturer

19         being licensed as distributor or registered as

20         exporter; providing for severability; providing

21         that certain contracts are not impaired;

22         providing for rulemaking authority; providing

23         an effective date.

24  

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

26  

27         Section 1.  Subsection (8) is added to section 561.14,

28  Florida Statutes, to read:

29         561.14  License and registration

30  classification.--Licenses and registrations referred to in the

31  Beverage Law shall be classified as follows:

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    Florida Senate - 2006                    CS for SB's 144 & 944
    580-2022-06




 1         (8)  Wineries licensed as winery shippers under s.

 2  561.585.

 3         Section 2.  Section 561.585, Florida Statutes, is

 4  created to read:

 5         561.585  Direct shipment of wine for personal

 6  consumption.--

 7         (1)  WINERY SHIPPER LICENSURE REQUIREMENTS.--

 8         (a)  Notwithstanding any provision of the Beverage Law

 9  or any rule to the contrary, a person, firm, corporation, or

10  other entity that is licensed as a winery shipper under this

11  section may ship wine directly to any person who is at least

12  21 years of age for personal use only and not for resale. To

13  obtain or renew a winery shipper's license, an applicant must:

14         1.  File an application with the division on forms

15  prescribed by the division.

16         2.  Qualify for licensure under ss. 561.15 and 561.17

17  or provide a true copy of a certification from the alcoholic

18  beverage licensing authority of the federal government or the

19  state in which the winery is located that qualifications for

20  that winery license include at a minimum the following

21  components:

22         a.  Fingerprinting of applicants;

23         b.  Disqualification of applicants under 21 years of

24  age;

25         c.  Disqualification of applicants convicted of the

26  following:

27         (I)  Any violation of the beverage laws of this state,

28  the United States, or any other state in the past five years;

29         (II)  Any felony in this state or another state within

30  the past 15 years; and

31  

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    Florida Senate - 2006                    CS for SB's 144 & 944
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 1         (III)  Any criminal violation of the controlled

 2  substance act of this state, the United States, or any other

 3  state.

 4         3.  Obtain and maintain a current license as a primary

 5  American source of supply as provided in s. 564.045.

 6         4.  Provide to the division a true copy of its current

 7  wine manufacturer's license issued by this state or another

 8  state and a true copy of its current federal basic permit as a

 9  wine producer issued in accordance with the Federal Alcohol

10  Administration Act.

11         5.  Manufacture no more than 250,000 gallons of wine

12  per year.

13         6.  Pay an annual license fee in the amount of $250.

14         7.  File with the division a surety bond acceptable to

15  the division in the sum of $5,000 as surety for the payment of

16  all taxes provided that when, at the discretion of the

17  division, the amount of business done by the winery shipper

18  licensee is such volume that a bond of less than $5,000 will

19  be adequate, the division may accept a bond in a lesser sum

20  but not less than $1,000. The surety bond currently on file

21  with the division for a winery pursuant to s. 561.37 is deemed

22  to comply with this requirement. Any applicant that has a

23  surety bond for another license on file with the division that

24  is in excess of $5,000 shall be deemed to be in compliance

25  with this requirement.

26         (b)  Applicants under this section may obtain a

27  temporary initial license as provided in s. 561.181.

28         (c)  The division may not issue a license under this

29  section if the applicant or licensee is owned by a winery that

30  manufactures more than 250,000 gallons of wine annually.

31  

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    Florida Senate - 2006                    CS for SB's 144 & 944
    580-2022-06




 1         (d)  Winery shipper licensees may not ship or cause to

 2  be shipped more than 18 cases of wine per calendar year to one

 3  adult individual.

 4         (2)  LABEL.--Each winery shipper licensee shall ensure

 5  that the outside shipping label on each package is conspicuous

 6  and includes the following components:

 7         (a)  This package contains alcohol.

 8         (b)  An adult signature is required.

 9         (c)  The recipient must be at least 21 years of age.

10         (3)  SIGNATURE.--

11         (a)  Each winery shipper licensee and common carrier

12  shall require, prior to delivery, that the signature of the

13  addressee or other person at least 21 years of age is obtained

14  after presentation of a valid driver's license, an

15  identification card issued under the provisions of s. 322.051,

16  or, if the person is physically handicapped, a comparable

17  identification card issued by another state which indicates

18  the person's age, a passport, or a United States Uniformed

19  Services identification card.

20         (b)  A winery shipper licensee or common carrier who

21  violates this subsection shall have a complete defense to any

22  civil action therefor, except for any administrative action by

23  the division, if, at the time the alcoholic beverage was sold,

24  given, delivered, or transferred, the person falsely evidenced

25  that he or she was of legal age to purchase or consume the

26  alcoholic beverage and the appearance of the person was such

27  that an ordinarily prudent person would believe him or her to

28  be of legal age to purchase or consume the alcoholic beverage

29  and if the winery shipper licensee or common carrier acted in

30  good faith and in reliance upon the representation and

31  appearance of the person in the belief that he or she was of

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    Florida Senate - 2006                    CS for SB's 144 & 944
    580-2022-06




 1  legal age to purchase or consume the alcoholic beverage and

 2  carefully checked one of the following forms of identification

 3  with respect to the person: a valid driver's license, an

 4  identification card issued under the provisions of s. 322.051,

 5  or, if the person is physically handicapped, a comparable

 6  identification card issued by another state which indicates

 7  the person's age, a passport, or a United States Uniformed

 8  Services identification card.

 9         (4)  MONTHLY REPORT.--

10         (a)  Each winery shipper licensee shall report monthly

11  to the division on forms prescribed by the division:

12         1.  Whether any wine product was shipped into or within

13  this state under this section during the preceding month.

14         2.  The total amount of wine shipped into or within

15  this state under this section during the preceding month.

16         3.  The quantity and types of wine shipped into or

17  within this state under this section during the preceding

18  month.

19         4.  The amount of excise tax paid to the division for

20  shipments of wine into or within this state under this section

21  during the preceding month.

22         (b)  The report required by this subsection is not

23  required from a winery shipper licensee who files a monthly

24  report pursuant to s. 561.55 that contains all the information

25  required in paragraph (a). The division is authorized to

26  prescribe the format for submission of this information in

27  order that duplicate filings are eliminated.

28         (5)  TAXES.--

29         (a)  Each winery shipper licensee shall collect and

30  remit monthly to the Department of Revenue all sales taxes and

31  pay to the division all excise taxes due on sales to persons

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    Florida Senate - 2006                    CS for SB's 144 & 944
    580-2022-06




 1  in this state for the preceding month. Notwithstanding s.

 2  212.0596, the amount of such taxes shall be calculated as if

 3  the sale took place at the location where the delivery

 4  occurred in this state.

 5         (b)  Each winery shipper licensee shall maintain for at

 6  least 3 years after the date of delivery records of its

 7  shipments into or within this state pursuant to this section,

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

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

10  Department of Revenue or the division, upon request, to

11  perform an audit of such records.

12         (c)  The cost of performing an audit under paragraph

13  (b) shall be assigned to the agency requesting the audit

14  unless the winery shipper licensee is found to be in material

15  violation of this subsection, in which case the cost of the

16  audit shall be assigned to the licensee.

17         (6)  JURISDICTION.--Each winery shipper licensee is

18  deemed to have consented to the jurisdiction of the division

19  or any other state agency and the courts of this state

20  concerning enforcement of this section and any related laws or

21  rules.

22         (7)  PENALTIES.--

23         (a)  In addition to any other penalty provided in the

24  Beverage Law, the division may suspend or revoke a winery

25  shipper license or impose fines on the winery shipper licensee

26  in an amount not to exceed $2,500 per violation for any

27  violation of this section.

28         (b)  A winery shipper licensee that knowingly and

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

30  person in this state who is under 21 years of age commits a

31  

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    Florida Senate - 2006                    CS for SB's 144 & 944
    580-2022-06




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

 2  775.082, s. 775.083 or s. 775.084.

 3         (c)  Any common carrier, permit carrier, or other

 4  commercial conveyance that knowingly and intentionally

 5  delivers wine directly to any person in this state who is

 6  under 21 years of age commits a misdemeanor of the second

 7  degree, punishable as provided in s. 775.082 or s. 775.083.

 8         (d)  A person who knowingly and intentionally obtains

 9  wine from a winery shipper licensee in violation of this

10  section commits a misdemeanor of the second degree, punishable

11  as provided in s. 775.082 or s. 775.083.

12         Section 3.  Section 561.54, Florida Statutes, is

13  amended to read:

14         561.54  Certain deliveries of beverages prohibited.--

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

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

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

18  delivery from without the state of any alcoholic beverage to

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

20  state, except to qualified manufacturers, distributors, and

21  exporters of such beverages so delivered and to qualified

22  bonded warehouses in this state.

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

24  section may bring an action in any court of competent

25  jurisdiction to recover for the state all moneys obtained by

26  common carriers or permit carriers; obtained by operators of

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

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

29  result of the delivery of alcoholic beverages in violation of

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

31  act or practice violates this section and enjoin any person

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    Florida Senate - 2006                    CS for SB's 144 & 944
    580-2022-06




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

 2  court may order the confiscation and destruction of any

 3  alcoholic beverages delivered in violation of this section. In

 4  assessing damages, the court shall enter judgment against a

 5  defendant for three times the amount of the delivery charges

 6  proved or the fair market value of merchandise unlawfully

 7  brought into the state. Payment or satisfaction of any

 8  judgment under this section, other than for costs and

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

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

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

12         (3)  This section does not apply to the shipment of

13  wine by a winery shipper licensee to a person who is at least

14  21 years of age in accordance with s. 561.585.

15         Section 4.  Section 561.545, Florida Statutes, is

16  amended to read:

17         561.545  Certain shipments of beverages prohibited;

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

19  shipment of alcoholic beverages by persons in the business of

20  selling alcoholic beverages to residents of this state in

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

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

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

24  further finds that the penalties for illegal direct shipment

25  of alcoholic beverages to residents of this state should be

26  made adequate to ensure compliance with the Beverage Law and

27  that the measures provided for in this section are fully

28  consistent with the powers conferred upon the state by the

29  Twenty-first Amendment to the United States Constitution.

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

31  beverages who knowingly and intentionally ships, or causes to

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    Florida Senate - 2006                    CS for SB's 144 & 944
    580-2022-06




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

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

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

 4  exporter's registration issued by the Division of Alcoholic

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

 6  is in violation of this section.

 7         (2)  Any common carrier or permit carrier or any

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

 9  conveyance who knowingly and intentionally transports any

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

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

12  manufacturer's or wholesaler's license or exporter's

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

14  violation of this section.

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

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

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

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

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

20  within 2 years after a prior conviction for violating

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

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

23  775.084.

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

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

26  conveyance found by the division to be in violation of

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

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

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

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

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

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    Florida Senate - 2006                    CS for SB's 144 & 944
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 1  within 2 years after receiving the cease and desist order or

 2  within 2 years after a prior conviction for violating

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

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

 5  775.084.

 6         (5)  This section does not apply to:

 7         (a)  The direct shipment of sacramental alcoholic

 8  beverages to bona fide religious organizations as authorized

 9  by the division;

10         (b)  The or to possession of alcoholic beverages in

11  accordance with s. 562.15(2); or

12         (c)  The shipment of wine in accordance with s.

13  561.585.

14         Section 5.  Subsections (1) and (6) of section 561.57,

15  Florida Statutes, are amended to read:

16         561.57  Deliveries by licensees.--

17         (1)  Vendors shall be permitted to make deliveries away

18  from their places of business of sales actually made at the

19  licensed place of business; provided, telephone or mail orders

20  received at vendor's licensed place of business shall be

21  construed as a sale actually made at the vendor's licensed

22  place of business. For purposes of this section, Internet

23  orders shall be construed as telephone orders.

24         (6)  Common carriers are not required to have vehicle

25  permits to transport alcoholic beverages. Nothing in this

26  section prohibits any common carrier or any licensee or other

27  person using a common carrier as his or her agent from making

28  deliveries of alcoholic beverages within the state. Deliveries

29  of alcoholic beverages by common carriers or by licensees or

30  other persons utilizing common carriers as their agents under

31  this section are exempt from the report-filing requirements in

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    Florida Senate - 2006                    CS for SB's 144 & 944
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 1  s. 562.20. All common carriers acting as designated agents for

 2  delivery under this section shall verify that any person

 3  receiving alcoholic beverages is at least 21 years of age upon

 4  the delivery of such alcoholic beverages, as prescribed in

 5  division rules. Compliance with the prescribed age

 6  verification measures in s. 561.585(3) shall give the common

 7  carrier and the licensee or other person hiring the common

 8  carrier a complete defense of selling, giving, delivering, or

 9  transferring alcoholic beverages to any person under the age

10  of 21.

11         Section 6.  Subsection (1) of section 599.004, Florida

12  Statutes, is amended to read:

13         599.004  Florida Farm Winery Program; registration;

14  logo; fees.--

15         (1)  The Florida Farm Winery Program is established

16  within the Department of Agriculture and Consumer Services.

17  Under this program, a winery may qualify as a tourist

18  attraction only if it is registered with and certified by the

19  department as a Florida Farm Winery. A winery may not claim to

20  be certified unless it has received written approval from the

21  department.

22         (a)  To qualify as a certified Florida Farm Winery, a

23  winery shall meet the following standards:

24         1.  Produce or sell less than 250,000 gallons of wine

25  annually of which 60 percent of wine produced shall be made

26  from this state's agricultural products. The Commissioner of

27  Agriculture may waive this requirement in times of hardship.

28         2.  Maintain a minimum of 10 acres of owned or managed

29  vineyards in Florida.

30         3.  Be open to the public for tours, tastings, and

31  sales at least 30 hours each week.

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    Florida Senate - 2006                    CS for SB's 144 & 944
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 1         4.  Make annual application to the department for

 2  recognition as a Florida Farm Winery, on forms provided by the

 3  department.

 4         5.  Pay an annual application and registration fee of

 5  $100.

 6         (b)  To maintain certification and recognition as a

 7  Florida Farm Winery, a winery must comply with the

 8  qualifications provided in this section. The Commissioner of

 9  Agriculture is authorized to officially recognize a certified

10  Florida Farm Winery as a state tourist attraction.

11         Section 7.  Subsection (5) of section 561.24, Florida

12  Statutes, is amended to read:

13         561.24  Licensing manufacturers as distributors or

14  registered exporters prohibited; procedure for issuance and

15  renewal of distributors' licenses and exporters'

16  registrations.--

17         (5)  Notwithstanding any of the provisions of the

18  foregoing subsections, any corporation which holds a license

19  as a distributor on June 3, 1947, shall be entitled to a

20  renewal thereof, provided such corporation complies with all

21  of the provisions of the Beverage Law of Florida, as amended,

22  and of this section and establishes by satisfactory evidence

23  to the division that, during the 6-month period next preceding

24  its application for such renewal, of the total volume of its

25  sales of spirituous liquors, in either dollars or quantity,

26  not more than 40 percent of such spirituous liquors sold by

27  it, in either dollars or quantity, were manufactured,

28  rectified, or distilled by any corporation with which the

29  applicant is affiliated, directly or indirectly, including any

30  corporation which owns or controls in any way any stock in the

31  applicant corporation or any corporation which is a subsidiary

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    Florida Senate - 2006                    CS for SB's 144 & 944
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 1  or affiliate of the corporation so owning stock in the

 2  applicant corporation. Any manufacturer of wine holding a

 3  license as a distributor on July 1, 2006, the effective date

 4  of this act shall be entitled to a renewal of such license

 5  notwithstanding the provisions of subsections (1)-(5). This

 6  section does not apply to any winery qualifying as a certified

 7  Florida Farm Winery under s. 599.004.

 8         Section 8.  Should any portion of this act be held

 9  unconstitutional, it is the intent of the Legislature that the

10  courts disturb only as much of the regulatory system of this

11  state as is necessary to enforce the United States

12  Constitution.

13         Section 9.  Notwithstanding the provisions of s.

14  561.585, Florida Statutes, contracts not otherwise prohibited

15  by the Beverage Law shall not be impaired.

16         Section 10.  The Division of Alcoholic Beverages and

17  Tobacco of the Department of Business and Professional

18  Regulation and the Department of Revenue may adopt rules

19  pursuant to ss. 120.536(1) and 120.54, Florida Statutes, to

20  implement and administer this act.

21         Section 11.  This act shall take effect upon becoming a

22  law.

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    Florida Senate - 2006                    CS for SB's 144 & 944
    580-2022-06




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                    Senate Bill's 144 and 944

 3                                 

 4  The CS creates a winery shipper alcoholic beverage license
    classification for direct shippers.  It uses the term "winery
 5  shipper" in place of the term "out-of-state shipper."

 6  The CS requires a license application on forms approved by the
    division and requires that the applicant qualify for licensure
 7  ss. 561.17 and 561.18, F.S., or provide a true and correct
    copy of a certification from the alcoholic beverage licensing
 8  authority of a state or the federal government that meet the
    minimum components set forth in the CS.  It provides for a
 9  temporary license.

10  The CS prohibits winery shippers from shipping more than 18
    cases of wine per calendar year to one single adult.
11  
    The CS lists the information that must be contained on a
12  shipping label for each package of wine shipped from a direct
    shipper.  It deletes the specific wording requirement from the
13  label.

14  The CS increases the fee from $100 to $250.  It requires a
    surety bond.
15  
    The CS requires that licensed winery shippers produce less
16  than 250,000 gallons per year.

17  The CS specifies additional acceptable forms of identification
    for persons who receive the wine shipment.  The CS provides a
18  good faith defense to any civil action, except for an
    administrative action by the division, to direct shipper
19  licensees and common carriers who sell alcoholic beverages to
    a minor under specified conditions.
20  
    The CS requires the reporting to the division of brands
21  shipped in place of the types of wines shipped.  It provides
    additional reporting requirements. It also requires the
22  reporting to the division the amount of excise taxes.

23  The CS does not require that Florida Consumer's register with
    the division to receive direct shipments.  It also does not
24  provide an exemption from excise and sales taxes for a
    charitable organizations.
25  
    The CS decreases the criminal penalty for a common carrier who
26  delivers wine to a minor from a third degree felony to a
    second degree misdemeanor.  It adds knowingly and
27  intentionally to the penalty for obtaining wine in violation
    of the act.
28  
    The CS assigns the cost of the audit to a direct shipper if a
29  material violation.  The CS provides a $2,500 fine.

30  The CS requires that 60 percent of wine produced by a
    certified Florida Farm Winery shall be made from Florida's
31  agricultural products, and to authorize the Commissioner of
    Agriculture to waive this requirements in times of hardship.
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    Florida Senate - 2006                    CS for SB's 144 & 944
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 1  The CS limits wineries being licensed as distributors.

 2  The CS provides that it is the intent of the Legislature that
    the courts disturb only as much of the regulatory system of
 3  this state as is necessary to enforce the United States
    Constitution if any portion of this act is declared
 4  unconstitutional.

 5  The bill provides that notwithstanding the provisions of s.
    561.585, F.S., contracts not otherwise prohibited by the
 6  Beverage Law shall not be impaired.

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