Florida Senate - 2006                      COMMITTEE AMENDMENT
    Bill No. SB 1988
                        Barcode 133428
                            CHAMBER ACTION
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11  The Committee on Regulated Industries (King) recommended the
12  following amendment:
13  
14         Senate Amendment (with title amendment) 
15         Delete everything after the enacting clause
16  
17  and insert:  
18         Section 1.  Section 210.0205, Florida Statutes, is
19  created to read:
20         210.0205  Florida tobacco marketing equity and fiscal
21  compliance requirements.--
22         (1)  Notwithstanding s. 210.01, as used in ss.
23  210.0205-210.0208, the term:
24         (a)  "Attorney General's Settlement Agreement of 1996"
25  means the agreement executed by the Attorney General of this
26  state on March 15, 1996, settling claims of this state against
27  Liggett Group, Inc., and others, as such agreement was amended
28  prior to January 1, 2006.
29         (b)  "Brand family" means all styles of cigarettes sold
30  under the same trademark and differentiated from one another
31  by means of additional modifiers or descriptors, including,
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Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 1988 Barcode 133428 1 but not limited to, "menthol," "lights," "kings," and "100s," 2 and includes any brand name used alone or in conjunction with 3 any other word, trademark, logo, symbol, motto, selling 4 message, recognizable pattern of colors, or any other indicia 5 of product identification identical or similar to, or 6 identifiable with, a previously known brand of cigarettes. 7 (c) "Cigarette manufacturer" means a person or entity 8 holding a valid permit under 26 U.S.C. s. 5712 which 9 manufactures, fabricates, or assembles cigarettes. The term 10 includes any entity that is the first importer into the United 11 States of cigarettes manufactured abroad. 12 (d) "Governor's Settlement Agreement of 1997" means 13 the agreement executed by the Governor of this state on August 14 25, 1997, settling the claims of this state in the case of 15 Florida v. American Tobacco Company, et al., case no. 95-1466, 16 Fifteenth Judicial Circuit, as such agreement was amended 17 prior to January 1, 2006. 18 (e) "Inflation adjustment" means the greater of 3 19 percent or the percentage increase in the Consumer Price Index 20 applicable each year pursuant to paragraph II.B.3. of the 21 Governor's Settlement Agreement of 1997. 22 (f) "Master Settlement Agreement" means the agreement 23 administered by the National Association of Attorneys General 24 settling tobacco related claims of 46 states, not including 25 Florida, against various cigarette manufacturers and all 26 amendments to such agreement. 27 (g) "Nonsettling manufacturer" means any cigarette 28 manufacturer that is not a 1997 settling manufacturer or a 29 1996 settling manufacturer. 30 (h) "Stamping agent wholesaler" means any wholesale 31 dealer licensed by the division to purchase and affix stamps 2 3:53 PM 04/14/06 s1988d-ri08-t01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 1988 Barcode 133428 1 evidencing payment of the excise tax required by s. 210.02. 2 The term includes an "agent" as defined in s. 210.01(9). 3 (i) "1996 settling manufacturer" means any cigarette 4 manufacturer that is a party to the Attorney General's 5 Settlement Agreement of 1996 and its successors in interest. 6 (j) "1997 settling manufacturer" means any cigarette 7 manufacturer that is a party to the Governor's Settlement 8 Agreement of 1997 and its successors in interest. 9 (2) A fee, in addition to all other taxes or fees of 10 every kind imposed by law, is imposed upon the sale, receipt, 11 purchase, possession, consumption, handling, distribution, and 12 use in this state of cigarettes manufactured by a 1996 13 settling manufacturer or a nonsettling manufacturer, if a 14 stamping agent wholesaler is required by law to affix a stamp 15 or stamp insignia to the package in which such cigarettes are 16 sold or purchased or if such cigarettes may legally be sold or 17 purchased in the state without bearing a stamp or stamp 18 insignia of this state. The rate of the fee is 20.3 mills per 19 cigarette in fiscal year 2006-2007. Beginning January 1, 2008, 20 and on January 1 of each year thereafter, the division shall 21 adjust the rate of the fee by the inflation adjustment. 22 (3) The division shall collect the fee once each month 23 from each manufacturer upon which a fee is imposed under 24 subsection (2), based on information received pursuant to 25 subsection (5). The division shall mail to each such 26 manufacturer not later than the 15th day of each month a 27 notice of any credits available and the fee imposed upon such 28 manufacturer for sales of its cigarettes made in the preceding 29 month. Each such manufacturer shall ensure that the division 30 has received payment of any fee due after application of 31 available credits no later than the last day of the month in 3 3:53 PM 04/14/06 s1988d-ri08-t01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 1988 Barcode 133428 1 which the notice was mailed. Except as otherwise provided in 2 this section, proceeds from the fee shall be deposited into 3 the Tobacco Settlement Clearing Trust Fund and the fee shall 4 be imposed, collected, paid, administered, and enforced in the 5 same manner as the tax on cigarettes imposed by s. 210.02. 6 (4) Each nonsettling manufacturer and each 1996 7 settling manufacturer selling cigarettes in this state on July 8 1, 2006, shall provide to the division the information 9 described in subsections (6) and (7) and, except as otherwise 10 provided by s. 210.0207, pay the fee imposed by subsection 11 (2). If a nonsettling manufacturer is not selling cigarettes 12 in this state on July 1, 2006, before commencing sales of 13 cigarettes in this state, the nonsettling manufacturer shall 14 prepay the fee imposed by subsection (2). The prepayment 15 amount shall be the greater of $50,000 or the product 16 determined by multiplying the number of cigarettes the 17 division reasonably projects that such nonsettling 18 manufacturer will sell in this state in the first calendar 19 month by the rate of the fee for the current year. The 20 division may require a nonsettling manufacturer to provide any 21 information reasonably necessary to determine the amount of 22 the prepayment fee and, in the case of prepayment, shall 23 establish procedures for providing reimbursement to 24 nonsettling manufacturers if actual sales are less than sales 25 projected by the division and for additional payment by such 26 nonsettling manufacturer if actual sales are greater than 27 sales projected by the division. As used in this subsection, 28 the term "cigarettes" refers only to cigarettes manufactured 29 by nonsettling manufacturers. 30 (5) The monthly report of a stamping agent wholesaler 31 required by s. 210.09(2) must state, by manufacturer and brand 4 3:53 PM 04/14/06 s1988d-ri08-t01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 1988 Barcode 133428 1 family, the number and denominations of stamps or stamp 2 insignia affixed to individual packages of cigarettes 3 manufactured by nonsettling manufacturers and 1996 settling 4 manufacturers. Each report required by s. 210.09(2) must 5 state, by manufacturer and brand family for each place of 6 business, the number of individual packages of cigarettes 7 manufactured by nonsettling manufacturers and 1996 settling 8 manufacturers and otherwise sold or purchased in this state or 9 otherwise handled or distributed in this state for sale in 10 another state, commonwealth, or territory of the United States 11 in the month preceding the month in which the report is made. 12 The division may adopt rules requiring any distributing agent, 13 wholesaler, wholesale dealer, importer, common carrier, 1996 14 settling manufacturer, and nonsettling manufacturer to provide 15 in the monthly report the information specified in this 16 subsection and any other information necessary to determine 17 the fee due under subsection (2) or to enforce ss. 18 210.0205-210.0208. 19 (6) Before commencing sales of cigarettes in this 20 state or, if selling cigarettes in this state on July 1, 2006, 21 by August 1, 2006, each nonsettling manufacturer and 1996 22 settling manufacturer shall provide to the division, in a form 23 prescribed by the division: 24 (a) The complete name, address, and telephone number 25 of the manufacturer. 26 (b) The date the manufacturer began or intends to 27 begin selling cigarettes in this state. 28 (c) The names of the brand families of the cigarettes 29 the manufacturer is selling or will sell in this state. 30 (d) A statement of the nonsettling manufacturer's 31 intention to comply with the obligations imposed by ss. 5 3:53 PM 04/14/06 s1988d-ri08-t01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 1988 Barcode 133428 1 210.0205-210.0207. 2 (e) The name, address, telephone number, and signature 3 of an officer of the manufacturer attesting to all of the 4 information described in this subsection. 5 (7) Each manufacturer subject to the fee imposed under 6 subsection (2) shall certify to the division on the first day 7 of each month that the manufacturer is in compliance with this 8 section and has paid in full the fee imposed under subsection 9 (2). The division shall develop, maintain, and publish on its 10 Internet website a directory listing all manufacturers that 11 have provided current, accurate, and complete certifications. 12 The division shall provide a copy of the list to any person 13 upon request. 14 (8) Cigarettes of a manufacturer that is subject to 15 but has not paid a fee imposed by subsection (2), or that has 16 not complied with the reporting requirements of subsections 17 (4), (6), (7), and (8), shall be treated as cigarettes for 18 which the tax imposed by s. 210.02 has not been paid. A 19 stamping agent wholesaler may not affix to any package of 20 cigarettes the stamp required under s. 210.06, or otherwise 21 purchase or sell such cigarettes, after such wholesaler 22 receives notice from the division that the manufacturer of 23 such cigarettes has not paid in full the fee imposed under 24 subsection (2) or if the nonsettling or the 1996 settling 25 manufacturer is not listed on the division's directory 26 described in subsection (7). 27 Section 2. Section 210.0206, Florida Statutes, is 28 created to read: 29 210.0206 Credits relating to tobacco litigation 30 settlement obligations; exemptions for certain 31 manufacturers.-- 6 3:53 PM 04/14/06 s1988d-ri08-t01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 1988 Barcode 133428 1 (1) On July 1, 2006, each 1996 settling manufacturer 2 is granted, a credit against any monetary obligations 3 presently unpaid or subsequently owed to this state under the 4 Attorney General's Settlement Agreement of 1996. Such credit 5 is equal to the total fees paid by the 1996 settling 6 manufacturer under s. 210.0205, regardless of the year in 7 which the fees are paid or the year with respect to which the 8 monetary obligation is claimed by the state. An additional 9 credit is granted for any unused market exemption credits 10 allowed in subsection (2) which a 1996 settling manufacturer 11 chooses to assign to the state for such purpose. The Attorney 12 General and the division shall determine what evidence must be 13 provided for the purpose of such assignment of market 14 exemption credit. Such additional credit may not exceed 100 15 percent of all monetary obligations under the Attorney 16 General's Settlement Agreement of 1996 which are unpaid on 17 July 1, 2006, or subsequently owed to this state under such 18 agreement. 19 (2) Each 1996 settling manufacturer and each 20 nonsettling manufacturer selling cigarettes in this state on 21 January 1, 2006, is entitled to receive an annual credit 22 against the fee imposed by s. 210.0205(2). Such annual credit 23 is the rate of the fee set, pursuant to s. 210.0205(2), for 24 the current year multiplied by the manufacturer's exempt 25 share, multiplied by the number of cigarettes sold in this 26 state in the previous year. The "manufacturer's exempt share" 27 is the greater of the percentage of any market share exemption 28 used by the manufacturer under the master settlement agreement 29 on or before January 2006, or one-half of the manufacturer's 30 highest percentage share of total cigarette sales in this 31 state in any of the years 2001, 2002, 2003, 2004, or 2005. The 7 3:53 PM 04/14/06 s1988d-ri08-t01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 1988 Barcode 133428 1 provision of credits under this subsection must conform to the 2 following procedures: 3 (a) A manufacturer seeking the annual credit shall 4 apply with the division on or before July 1, 2006, and shall 5 include with such application an affidavit of the 6 manufacturer's chief executive officer which accurately states 7 such percentage of any market share exemption used by the 8 manufacturer under the master settlement agreement on or 9 before January 2006 and the manufacturer's best estimate of 10 the number of the manufacturer's cigarettes sold in this state 11 in the years 2001, 2002, 2003, 2004, and 2005. 12 (b) On or before July 1, 2006, the division shall 13 determine the total cigarette sales in this state in the years 14 2001, 2002, 2003, 2004, and 2005. 15 (c) The division may determine the reasonable accuracy 16 of the information provided in each application and make any 17 adjustments necessary to correct any inaccuracies. Based upon 18 such corrections, the division shall make an initial 19 determination of the percentage to be used to determine the 20 applicant's annual credit. Such determination must be made by 21 October 1, 2006, or as soon as reasonably practicable 22 thereafter. 23 (d) Unless a hearing is requested within the time 24 allowed in subsection (4), an initial determination is binding 25 on the manufacturer. 26 (3) A manufacturer seeking a hearing pursuant to 27 chapter 120 to challenge the division's initial determination 28 must submit a written request for such a hearing to the 29 division within 10 days after such determination. The division 30 shall grant or deny the request within 5 days after receipt 31 and, immediately after granting any such request, shall notify 8 3:53 PM 04/14/06 s1988d-ri08-t01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 1988 Barcode 133428 1 the Division of Administrative Hearings within the Department 2 of Management Services. Within 5 days after receiving such 3 notice, the Division of Administrative Hearings shall assign 4 an administrative law judge, who shall conduct a hearing 5 within 14 days, unless the request for hearing is withdrawn. A 6 credit may not be granted to the manufacturer until the 7 determination of the division is final and not subject to 8 appeal. If litigation delays the granting of a credit beyond 9 the onset of the payment of fees by a manufacturer pursuant to 10 s. 210.0205, any credit that is determined valid in the final 11 resolution of that litigation must be awarded for the year of 12 such onset and for each year thereafter. 13 (4) Credits provided under this section may be used at 14 any time and may be transferred to other manufacturers of 15 cigarettes against which the fee is imposed under s. 210.0205. 16 The division may adopt rules governing the manner of 17 evidencing any such transfer and may prohibit the use of any 18 transferred credit until after the division records and 19 acknowledges the transfer. 20 Section 3. Section 210.0207, Florida Statutes, is 21 created to read: 22 210.0207 Suspension of fees.-- 23 (1) As used in this section, the term "subsequent 24 participating manufacturer" means a manufacturer that is a 25 subsequent participating manufacturer as defined by the master 26 settlement agreement. 27 (2) The fees imposed by s. 210.0205 are suspended and 28 waived until the January 1 after the termination of the 29 suspension pursuant to subsection (3). 30 (3) The suspension in subsection (2) terminates when 31 the division determines that all subsequent participating 9 3:53 PM 04/14/06 s1988d-ri08-t01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 1988 Barcode 133428 1 manufacturers that provide the information required under s. 2 210.0205(4) have provided a written acknowledgement that each 3 such manufacturer is entitled to a credit under the master 4 settlement agreement which satisfies the requirements of 5 subsection (4) or have not provided such acknowledgement but 6 are otherwise entitled to a credit under the master settlement 7 agreement which satisfies the requirements of subsection (4). 8 Such determination may be made upon the certification of an 9 authorized representative of the parties to the master 10 settlement agreement or upon any other information available 11 to the division. 12 (4) A credit that reduces a monetary obligation of a 13 subsequent participating manufacturer under the master 14 settlement agreement satisfies this subsection if it is equal 15 to the lesser of: 16 (a) All sums payable by such manufacturer under the 17 master settlement agreement as a result of the manufacturer's 18 sales of cigarettes in this state in the absence of such 19 credit; or 20 (b) The net fees payable by such manufacturer under s. 21 210.0205. 22 (5) The division shall publish notice of its 23 termination of a suspension pursuant to subsection (3) within 24 a reasonable time in the same manner as the division publishes 25 proposed rules under chapter 120. An action to challenge such 26 a termination is barred unless initiated within 180 days after 27 such publication. 28 Section 4. Section 210.0208, Florida Statutes, is 29 created to read: 30 210.0208 Legislative intent.--The intent of this act 31 is to: 10 3:53 PM 04/14/06 s1988d-ri08-t01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 1988 Barcode 133428 1 (1) Reduce market inequities created by the 2 imposition, by this state and other states, of certain 3 monetary obligations on some cigarette manufacturers through 4 settlement agreements while not imposing similar obligations 5 on other cigarette manufacturers. 6 (2) Deter sellers of tobacco products in this state 7 from paying fees to other states based upon sales of 8 cigarettes in this state. 9 (3) Resolve disputes over monetary obligations under 10 the Attorney General's Settlement Agreement of 1996. 11 Section 5. This act shall take effect upon becoming a 12 law. 13 14 15 ================ T I T L E A M E N D M E N T =============== 16 And the title is amended as follows: 17 Delete everything before the enacting clause 18 19 and insert: 20 A bill to be entitled 21 An act relating to tobacco marketing; creating 22 s. 210.0205, F.S.; providing definitions; 23 imposing a fee on certain cigarettes by certain 24 manufacturers; providing for adjustment and 25 collection of the fee by the Division of 26 Alcoholic Beverages and Tobacco of the 27 Department of Business and Professional 28 Regulation; providing for deposit of certain 29 proceeds of the fee into the Tobacco Settlement 30 Clearing Trust Fund; providing payment 31 requirements; authorizing the division to 11 3:53 PM 04/14/06 s1988d-ri08-t01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 1988 Barcode 133428 1 require certain cigarette manufacturers to 2 provide information concerning prepayment; 3 requiring the division to establish procedures 4 to reimburse manufacturers if the prepaid fee 5 exceeds the actual fee; requiring that certain 6 reports of a stamping agent wholesaler include 7 certain information concerning packages of 8 cigarettes by manufacturer and brand family; 9 authorizing rulemaking by the division; 10 requiring certain cigarette manufacturers to 11 provide certain information to the division 12 before making sales of cigarettes in this 13 state; requiring the cigarette manufacturers 14 subject to the fee to provide the division with 15 monthly certifications of payment of the fee 16 and compliance with s. 210.0205, F.S.; 17 requiring the division to make a directory 18 listing such certifications available on its 19 Internet website and upon request; requiring 20 that cigarettes of manufacturers that have not 21 paid the fee or complied with s. 210.0205, 22 F.S., be treated as cigarettes for which the 23 tax imposed by s. 210.02, F.S., has not been 24 paid; prohibiting, under certain circumstances, 25 a stamping agent wholesaler from stamping, 26 purchasing, or selling certain cigarettes of 27 manufacturers that have not paid the fee or are 28 not included in the division's directory 29 listing; creating s. 210.0206, F.S.; granting 30 certain cigarette manufacturers credits against 31 monetary obligations to this state under a 12 3:53 PM 04/14/06 s1988d-ri08-t01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 1988 Barcode 133428 1 settlement agreement with this state; 2 specifying the amount of the credits; providing 3 for the assignment to the state of certain 4 unused market exemption credits of certain 5 manufacturers; providing that certain 6 manufacturers are entitled to an annual credit 7 against the fee imposed by s. 210.0205(2), 8 F.S.; specifying the amount of the annual 9 credit; specifying procedures governing the 10 provision of such credits; requiring 11 application for such credit on or before July 12 1, 2006; authorizing the division to correct 13 inaccuracies in the application; requiring that 14 the division make an initial determination 15 regarding the application within a specified 16 time; providing that the division's initial 17 determination is binding if a hearing is not 18 requested; providing procedures governing a 19 request for a hearing and the conduct of a 20 hearing; prohibiting the granting of a credit 21 pending a final determination by the division 22 following the hearing and any appeals; 23 providing for application of the final credit 24 in years prior to such final determination; 25 creating s. 210.0207, F.S.; providing a 26 definition; suspending and waiving the fees 27 imposed on certain manufacturers under s. 28 210.0205, F.S.; providing for termination of 29 the suspension by the division upon a 30 determination concerning the entitlement of 31 certain manufacturers to a credit meeting 13 3:53 PM 04/14/06 s1988d-ri08-t01
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. SB 1988 Barcode 133428 1 certain requirements; specifying the 2 requirements such a credit must meet; requiring 3 the division to publish notice of the 4 termination; barring a challenge to the 5 termination after a certain time; creating s. 6 210.0208, F.S.; providing legislative intent; 7 providing an effective date. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 14 3:53 PM 04/14/06 s1988d-ri08-t01