HB 0247CS


1The Finance & Tax Committee recommends the following:
3     Council/Committee Substitute
4     Remove the entire bill and insert:
A bill to be entitled
6An act relating to the Beverage Law; creating s. 561.585,
7F.S.; authorizing certain direct shipments of wine;
8requiring licensure of winery shippers; providing
9requirements for licensure; providing prohibitions;
10requiring that a winery shipper licensee file a surety
11bond with the Division of Alcoholic Beverages and Tobacco
12of the Department of Business and Professional Regulation;
13requiring that each container of wine shipped directly be
14labeled with a notice; requiring monthly reports by winery
15shipper licensees; providing limitations on the amount of
16wine a winery shipper may ship or cause to be shipped;
17providing age requirements for those receiving direct
18shipments of wine; providing a defense to certain actions;
19requiring the collection, remittance, and payment of
20certain taxes by direct shippers; requiring that winery
21shippers maintain certain records for a certain time
22period; providing for jurisdiction; providing penalties;
23amending s. 561.14, F.S.; classifying the winery shipper
24license; amending s. 561.54, F.S.; removing a provision
25requiring that the licensee be aggrieved by a violation
26involving prohibited delivery from without the state to
27have standing to bring an action; exempting from such
28prohibition shipment of wine by a winery shipper licensee;
29amending s. 561.545, F.S.; revising provisions relating to
30prohibition against direct shipment of alcoholic beverages
31to limit applicability to malt or spirituous beverages;
32exempting applicability of such prohibition to the
33shipment of wine by a winery shipper licensee; amending s.
34561.57, F.S.; providing that Internet orders shall be
35construed as telephone orders; exempting common carriers,
36licensees, or other persons utilizing common carriers as
37their agents from certain report filing requirements;
38requiring common carriers to verify the age of persons
39receiving shipments; providing a defense to certain
40actions; amending s. 599.004, F.S.; revising
41qualifications for the certification of Florida Farm
42Wineries; amending s. 561.24, F.S.; revising an effective
43date; authorizing certain manufacturers of wine holding a
44distributor's license to renew such license; removing
45exemption of Florida Farm Wineries from prohibition
46against manufacturer being licensed as distributor or
47registered as exporter; providing for severability;
48providing for non-impairment of contracts; providing for
49rulemaking authority; providing an effective date.
51Be It Enacted by the Legislature of the State of Florida:
53     Section 1.  Section 561.585, Florida Statutes, is created
54to read:
55     561.585  Direct shipment of wine for personal
58     (a)  Notwithstanding any provision of the Beverage Law or
59any rule to the contrary, a person, firm, corporation, or other
60entity that is licensed as a winery shipper under this section
61may ship wine directly to any person who is at least 21 years of
62age for personal use only and not for resale. To obtain or renew
63a winery shipper's license, an applicant must:
64     1.  File an application with the division on forms
65prescribed by the division.
66     2.  Qualify for licensure under ss. 561.15 and 561.17 or
67provide a true copy of a certification from the alcoholic
68beverage licensing authority of the Federal Government or the
69state in which the winery is located that qualifications for the
70winery license include, at a minimum, the following components:
71     a.  Fingerprinting of applicants.
72     b.  Disqualification for applicants under 21 years of age.
73     c.  Disqualification for applicants convicted of the
75     (I)  Within the past 5 years, any violation of the beverage
76laws of this state, the United States, or any other state;
77     (II)  Within the past 15 years, any felony in this state or
78any other state of the United States; or
79     (III)  Any criminal violation of the controlled substance
80act of this state, the United States, or any other state.
81     3.  Obtain and maintain a current license as a primary
82American source of supply as provided in s. 564.045.
83     4.  Provide to the division a true copy of its current wine
84manufacturer's license issued by this state or another state and
85a true copy of its current federal basic permit as a wine
86producer issued in accordance with the Federal Alcohol
87Administration Act.
88     5.  Manufacture no more than 250,000 gallons of wine per
90     6.  Pay an annual license fee in the amount of $250.
91     7.  File with the division a surety bond acceptable to the
92division in the sum of $5,000 as surety for the payment of all
93taxes provided that when, at the discretion of the division, the
94amount of business done by the winery shipper licensee is such
95volume that a bond of less than $5,000 will be adequate, the
96division may accept a bond in a lesser sum but not less than
97$1,000. The surety bond currently on file with the division for
98a winery pursuant to s. 561.37 is deemed to comply with this
99requirement. Any applicant that has a surety bond for another
100license on file with the division that is in excess of $5,000
101shall be deemed to be in compliance with this requirement.
102     (b)  Applicants under this section may obtain a temporary
103initial license as authorized in s. 561.181.
104     (c)  The division may not issue a license under this
105section if the applicant or licensee is owned by a winery that
106manufactures more than 250,000 gallons of wine annually.
107     (d)  Winery shipper licensees may not ship or cause to be
108shipped more than 18 cases of wine per calendar year to one
109adult individual.
110     (2)  LABEL.--Each winery shipper licensee shall ensure that
111the outside shipping label on each package is conspicuous and
112includes the following components:
113     (a)  This package contains alcohol.
114     (b)  An adult signature is required.
115     (c)  The recipient must be at least 21 years of age.
116     (3)  SIGNATURE.--
117     (a)  Each winery shipper licensee and common carrier shall
118require, prior to delivery, that the signature of the addressee
119or other person at least 21 years of age is obtained after
120presentation of a valid driver's license, an identification card
121issued under the provisions of s. 322.051, or, if the person is
122physically handicapped, a comparable identification card issued
123by another state which indicates the person's age, a passport,
124or a United States Uniformed Services identification card.
125     (b)  A winery shipper licensee or common carrier who
126violates this subsection shall have a complete defense to any
127civil action therefor, except for any administrative action by
128the division, if, at the time the alcoholic beverage was sold,
129given, delivered, or transferred, the person falsely evidenced
130that he or she was of legal age to purchase or consume the
131alcoholic beverage and the appearance of the person was such
132that an ordinarily prudent person would believe him or her to be
133of legal age to purchase or consume the alcoholic beverage and
134if the winery shipper licensee or common carrier acted in good
135faith and in reliance upon the representation and appearance of
136the person in the belief that he or she was of legal age to
137purchase or consume the alcoholic beverage and carefully checked
138one of the following forms of identification with respect to the
139person: a valid driver's license, an identification card issued
140under the provisions of s. 322.051, or, if the person is
141physically handicapped, a comparable identification card issued
142by another state which indicates the person's age, a passport,
143or a United States Uniformed Services identification card.
144     (4)  MONTHLY REPORT.--
145     (a)  Each winery shipper licensee shall report monthly to
146the division on forms prescribed by the division:
147     1.  Whether any wine product was shipped into or within
148this state under this section during the preceding month.
149     2.  The total amount of wine shipped into or within this
150state under this section during the preceding month.
151     3.  The quantity and types of wine shipped into or within
152this state under this section during the preceding month.
153     4.  The amount of excise tax paid to the division for
154shipments of wine into or within this state under this section
155during the preceding month.
156     (b)  The report required by this subsection is not required
157from a winery shipper licensee who files a monthly report
158pursuant to s. 561.55 that contains all the information required
159in paragraph (a). The division is authorized to prescribe the
160format for submission of this information in order that
161duplicate filings are eliminated.
162     (5)  TAXES.--
163     (a)  Each winery shipper licensee shall collect and remit
164monthly to the Department of Revenue all sales taxes and pay to
165the division all excise taxes due on sales to persons in this
166state for the preceding month. Notwithstanding s. 212.0596, the
167amount of such taxes shall be calculated as if the sale took
168place at the location where the delivery occurred in this state.
169     (b)  Each winery shipper licensee shall maintain for at
170least 3 years after the date of delivery records of its
171shipments into or within this state pursuant to this section,
172including the names, addresses, amounts, and dates of all
173shipments to persons in this state, and shall allow the
174Department of Revenue or the division, upon request, to perform
175an audit of such records.
176     (c)  The cost of performing an audit under paragraph (b)
177shall be assigned to the agency requesting the audit unless the
178winery shipper licensee is found to be in material violation of
179this subsection, in which case the cost of the audit shall be
180assigned to the licensee.
181     (6)  JURISDICTION.--Each winery shipper licensee is deemed
182to have consented to the jurisdiction of the division or any
183other state agency and the courts of this state concerning
184enforcement of this section and any related laws or rules.
185     (7)  PENALTIES.--
186     (a)  In addition to any other penalty provided in the
187Beverage Law, the division may suspend or revoke a winery
188shipper license or impose fines on the winery shipper licensee
189in an amount not to exceed $2,500 per violation for any
190violation of this section.
191     (b)  A winery shipper licensee that knowingly and
192intentionally ships, or causes to be shipped, wine to any person
193in this state who is under 21 years of age commits a felony of
194the third degree, punishable as provided in s. 775.082, s.
195775.083, or s. 775.084.
196     (c)  Any common carrier, permit carrier, or other
197commercial conveyance that knowingly and intentionally delivers
198wine directly to any person in this state who is under 21 years
199of age commits a felony of the third degree, punishable as
200provided in s. 775.082, s. 775.083, or s. 775.084.
201     (d)  A person who knowingly and intentionally obtains wine
202from a winery shipper licensee in violation of this section
203commits a misdemeanor of the second degree, punishable as
204provided in s. 775.082 or s. 775.083.
205     Section 2.  Subsection (8) is added to section 561.14,
206Florida Statutes, to read:
207     561.14  License and registration classification.--Licenses
208and registrations referred to in the Beverage Law shall be
209classified as follows:
210     (8)  Wineries licensed as winery shippers under s. 561.585.
211     Section 3.  Section 561.54, Florida Statutes, is amended to
213     561.54  Certain deliveries of beverages prohibited.--
214     (1)  It is unlawful for common or permit carriers,
215operators of privately owned cars, trucks, buses, or other
216conveyances or out-of-state manufacturers or suppliers to make
217delivery from without the state of any alcoholic beverage to any
218person, association of persons, or corporation within the state,
219except to qualified manufacturers, distributors, and exporters
220of such beverages so delivered and to qualified bonded
221warehouses in this state.
222     (2)  Any licensee aggrieved by a violation of this section
223may bring an action in any court of competent jurisdiction to
224recover for the state all moneys obtained by common carriers or
225permit carriers; obtained by operators of privately owned cars,
226trucks, buses, or other conveyances; or obtained by out-of-state
227manufacturers or suppliers as a result of the delivery of
228alcoholic beverages in violation of this section, and may obtain
229a declaratory judgment that an act or practice violates this
230section and enjoin any person from violating this section. In
231addition to such relief, the court may order the confiscation
232and destruction of any alcoholic beverages delivered in
233violation of this section. In assessing damages, the court shall
234enter judgment against a defendant for three times the amount of
235the delivery charges proved or the fair market value of
236merchandise unlawfully brought into the state. Payment or
237satisfaction of any judgment under this section, other than for
238costs and attorney's fees, shall be made in its entirety to the
239state. In any successful action under this section, the court
240shall award the plaintiff costs and reasonable attorney's fees.
241     (3)  This section does not apply to the shipment of wine by
242a winery shipper licensee to a person who is at least 21 years
243of age in accordance with s. 561.585.
244     Section 4.  Section 561.545, Florida Statutes, is amended
245to read:
246     561.545  Certain shipments of beverages prohibited;
247penalties; exceptions.--The Legislature finds that the direct
248shipment of alcoholic beverages by persons in the business of
249selling malt or spirituous alcoholic beverages to residents of
250this state in violation of the Beverage Law poses a serious
251threat to the public health, safety, and welfare; to state
252revenue collections; and to the economy of the state. The
253Legislature further finds that the penalties for illegal direct
254shipment of malt or spirituous alcoholic beverages to residents
255of this state should be made adequate to ensure compliance with
256the Beverage Law and that the measures provided for in this
257section are fully consistent with the powers conferred upon the
258state by the Twenty-first Amendment to the United States
260     (1)  Any person in the business of selling malt or
261spirituous alcoholic beverages who knowingly and intentionally
262ships, or causes to be shipped, any malt or spirituous alcoholic
263beverage from an out-of-state location directly to any person in
264this state who does not hold a valid manufacturer's or
265wholesaler's license or exporter's registration issued by the
266Division of Alcoholic Beverages and Tobacco or who is not a
267state-bonded warehouse is in violation of this section.
268     (2)  Any common carrier or permit carrier or any operator
269of a privately owned car, truck, bus, or other conveyance who
270knowingly and intentionally transports any malt or spirituous
271beverages alcoholic beverage from an out-of-state location
272directly to any person in this state who does not hold a valid
273manufacturer's or wholesaler's license or exporter's
274registration or who is not a state-bonded warehouse is in
275violation of this section.
276     (3)  Any person found by the division to be in violation of
277subsection (1) shall be issued a notice, by certified mail, to
278show cause why a cease and desist order should not be issued.
279Any person who violates subsection (1) within 2 years after
280receiving a cease and desist order or within 2 years after a
281prior conviction for violating subsection (1) commits a felony
282of the third degree, punishable as provided in s. 775.082, s.
283775.083, or s. 775.084.
284     (4)  Any common carrier or permit carrier, or any operator
285of a privately owned car, truck, bus, or other conveyance found
286by the division to be in violation of subsection (2) as a result
287of a second or subsequent delivery from the same source and
288location, within a 2-year period after the first delivery shall
289be issued a notice, by certified mail, to show cause why a cease
290and desist order should not be issued. Any person who violates
291subsection (2) within 2 years after receiving the cease and
292desist order or within 2 years after a prior conviction for
293violating subsection (2) commits a felony of the third degree,
294punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
295     (5)  This section does not apply to:
296     (a)  The direct shipment of sacramental alcoholic beverages
297to bona fide religious organizations as authorized by the
299     (b)  The or to possession of alcoholic beverages in
300accordance with s. 562.15(2); or
301     (c)  The shipment of wine in accordance with s. 561.585.
302     Section 5.  Subsections (1) and (6) of section 561.57,
303Florida Statutes, are amended to read:
304     561.57  Deliveries by licensees.--
305     (1)  Vendors shall be permitted to make deliveries away
306from their places of business of sales actually made at the
307licensed place of business; provided, telephone or mail orders
308received at vendor's licensed place of business shall be
309construed as a sale actually made at the vendor's licensed place
310of business. For purposes of this section, Internet orders shall
311be construed as telephone orders.
312     (6)  Common carriers are not required to have vehicle
313permits to transport alcoholic beverages. Nothing in this
314section shall prohibit any common carrier or any licensee or
315other person utilizing a common carrier as his or her agent from
316making deliveries of alcoholic beverages within the state.
317Deliveries of alcoholic beverages by common carriers or by
318licensees or other persons utilizing common carriers as their
319agents under this section are exempt from the report filing
320requirements in s. 562.20. All common carriers acting as
321designated agents for delivery under this section shall verify
322that any person receiving alcoholic beverages is at least 21
323years of age upon the delivery of such alcoholic beverages, as
324prescribed in division rules. Compliance with the prescribed age
325verification measures in s. 561.585(3) shall give the common
326carrier and the licensee or other person hiring the common
327carrier a complete defense of selling, giving, delivering, or
328transferring alcoholic beverages to any person under the age of
330     Section 6.  Subsection (1) of section 599.004, Florida
331Statutes, is amended to read:
332     599.004  Florida Farm Winery Program; registration; logo;
334     (1)  The Florida Farm Winery Program is established within
335the Department of Agriculture and Consumer Services. Under this
336program, a winery may qualify as a tourist attraction only if it
337is registered with and certified by the department as a Florida
338Farm Winery. A winery may not claim to be certified unless it
339has received written approval from the department.
340     (a)  To qualify as a certified Florida Farm Winery, a
341winery shall meet the following standards:
342     1.  Produce or sell less than 250,000 gallons of wine
343annually of which 60 percent of wine produced shall be made from
344this state's agricultural products. The Commissioner of
345Agriculture may waive this requirement in times of hardship.
346     2.  Maintain a minimum of 10 acres of owned or managed
347vineyards in Florida.
348     3.  Be open to the public for tours, tastings, and sales at
349least 30 hours each week.
350     4.  Make annual application to the department for
351recognition as a Florida Farm Winery, on forms provided by the
353     5.  Pay an annual application and registration fee of $100.
354     (b)  To maintain certification and recognition as a Florida
355Farm Winery, a winery must comply with the qualifications
356provided in this section. The Commissioner of Agriculture is
357authorized to officially recognize a certified Florida Farm
358Winery as a state tourist attraction.
359     Section 7.  Subsection (5) of section 561.24, Florida
360Statutes, is amended to read:
361     561.24  Licensing manufacturers as distributors or
362registered exporters prohibited; procedure for issuance and
363renewal of distributors' licenses and exporters'
365     (5)  Notwithstanding any of the provisions of the foregoing
366subsections, any corporation which holds a license as a
367distributor on June 3, 1947, shall be entitled to a renewal
368thereof, provided such corporation complies with all of the
369provisions of the Beverage Law of Florida, as amended, and of
370this section and establishes by satisfactory evidence to the
371division that, during the 6-month period next preceding its
372application for such renewal, of the total volume of its sales
373of spirituous liquors, in either dollars or quantity, not more
374than 40 percent of such spirituous liquors sold by it, in either
375dollars or quantity, were manufactured, rectified, or distilled
376by any corporation with which the applicant is affiliated,
377directly or indirectly, including any corporation which owns or
378controls in any way any stock in the applicant corporation or
379any corporation which is a subsidiary or affiliate of the
380corporation so owning stock in the applicant corporation. Any
381manufacturer of wine holding a license as a distributor on July
3821, 2006, the effective date of this act shall be entitled to a
383renewal of such license notwithstanding the provisions of
384subsections (1)-(5). This section does not apply to any winery
385qualifying as a certified Florida Farm Winery under s. 599.004.
386     Section 8.  Should any portion of this act be held
387unconstitutional, it is the intent of the Legislature that the
388courts disturb only as much of the regulatory system of this
389state as is necessary to enforce the United States Constitution.
390     Section 9.  Notwithstanding the provisions of s. 561.585,
391Florida Statutes, contracts not otherwise prohibited by the
392Beverage Law shall not be impaired.
393     Section 10.  The Division of Alcoholic Beverages and
394Tobacco of the Department of Business and Professional
395Regulation and the Department of Revenue may adopt rules
396pursuant to ss. 120.536(1) and 120.54, Florida Statutes, to
397implement and administer this act.
398     Section 11.  This act shall take effect upon becoming a

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