1 | The Commerce Council recommends the following: |
2 |
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3 | Council/Committee Substitute |
4 | Remove the entire bill and insert: |
5 | A bill to be entitled |
6 | An act relating to the Beverage Law; creating s. 561.585, |
7 | F.S.; authorizing certain direct shipments of wine; |
8 | requiring licensure of winery shippers; providing |
9 | requirements for licensure; providing prohibitions; |
10 | requiring that a winery shipper licensee file a surety |
11 | bond with the Division of Alcoholic Beverages and Tobacco |
12 | of the Department of Business and Professional Regulation; |
13 | requiring that each container of wine shipped directly be |
14 | labeled with a notice; requiring monthly reports by winery |
15 | shipper licensees; providing limitations on the amount of |
16 | wine a winery shipper may ship or cause to be shipped; |
17 | limiting the size of wine containers; limiting the amount |
18 | of wine a purchaser can purchase or cause to be shipped; |
19 | providing age requirements for those receiving direct |
20 | shipments of wine; providing a defense to certain actions; |
21 | requiring the collection, remittance, and payment of |
22 | certain taxes by direct shippers; requiring that winery |
23 | shippers maintain certain records for a certain time |
24 | period; providing for jurisdiction; providing penalties; |
25 | amending s. 561.14, F.S.; classifying the winery shipper |
26 | license; amending s. 561.54, F.S.; removing a provision |
27 | requiring that the licensee be aggrieved by a violation |
28 | involving prohibited delivery from without the state to |
29 | have standing to bring an action; exempting from such |
30 | prohibition shipment of wine by a winery shipper licensee; |
31 | amending s. 561.545, F.S.; exempting applicability of the |
32 | prohibition against direct shipment of alcoholic beverages |
33 | to the shipment of wine by a winery shipper licensee; |
34 | amending s. 561.57, F.S.; providing that Internet orders |
35 | shall be construed as telephone orders; exempting common |
36 | carriers, licensees, or other persons utilizing common |
37 | carriers as their agents from certain report filing |
38 | requirements; requiring common carriers to verify the age |
39 | of persons receiving shipments; providing a defense to |
40 | certain actions; providing criteria for the defense; |
41 | amending s. 599.004, F.S.; revising qualifications for the |
42 | certification of Florida Farm Wineries; amending s. |
43 | 561.24, F.S.; revising an effective date; authorizing |
44 | certain manufacturers of wine holding a distributor's |
45 | license to renew such license; removing exemption of |
46 | Florida Farm Wineries from prohibition against |
47 | manufacturer being licensed as distributor or registered |
48 | as exporter; providing for severability; providing for |
49 | nonimpairment of contracts; providing for rulemaking |
50 | authority; authorizing additional positions; providing |
51 | appropriations; providing an effective date. |
52 |
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53 | Be It Enacted by the Legislature of the State of Florida: |
54 |
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55 | Section 1. Section 561.585, Florida Statutes, is created |
56 | to read: |
57 | 561.585 Direct shipment of wine for personal |
58 | consumption.-- |
59 | (1) WINERY SHIPPER LICENSURE REQUIREMENTS.-- |
60 | (a) Wineries shall not ship or cause to be shipped any |
61 | wine to individual consumers in this state unless licensed under |
62 | this section. Notwithstanding any provision of the Beverage Law |
63 | or any rule to the contrary, a person, firm, corporation, or |
64 | other entity that is licensed as a winery shipper under this |
65 | section may ship wine directly to any person who is at least 21 |
66 | years of age for personal use only and not for resale. To obtain |
67 | or renew a winery shipper's license, an applicant must: |
68 | 1. File an application with the division on forms |
69 | prescribed by the division. |
70 | 2. Qualify for licensure under ss. 561.15 and 561.17 or |
71 | provide a true copy of a certification from the alcoholic |
72 | beverage licensing authority of the Federal Government, or the |
73 | state in which the winery is located, with license |
74 | qualifications and procedures for that winery license that |
75 | include, at a minimum, the following components: |
76 | a. Fingerprinting of applicants. |
77 | b. Disqualification for applicants under 21 years of age. |
78 | c. Disqualification for applicants convicted of the |
79 | following: |
80 | (I) Within the past 5 years, any violation of the beverage |
81 | laws of this state, the United States, or any other state; |
82 | (II) Within the past 15 years, any felony in this state or |
83 | any other state of the United States; or |
84 | (III) Any criminal violation of the controlled substance |
85 | act of this state, the United States, or any other state. |
86 | 3. Obtain and maintain a current license as a primary |
87 | American source of supply as provided in s. 564.045. |
88 | 4. Provide to the division a true copy of its current wine |
89 | manufacturer's license issued by this state or another state and |
90 | a true copy of its current federal basic permit as a wine |
91 | producer issued in accordance with the Federal Alcohol |
92 | Administration Act. |
93 | 5. Manufacture no more than 250,000 gallons of wine per |
94 | year. |
95 | 6. Pay an annual license fee in the amount of $250. |
96 | 7. File with the division a surety bond acceptable to the |
97 | division in the sum of $5,000 as surety for the payment of all |
98 | taxes provided that when, at the discretion of the division, the |
99 | amount of business done by the winery shipper licensee is such |
100 | volume that a bond of less than $5,000 will be adequate, the |
101 | division may accept a bond in a lesser sum but not less than |
102 | $1,000. The surety bond currently on file with the division for |
103 | a winery pursuant to s. 561.37 is deemed to comply with this |
104 | requirement. Upon written request of the winery shipper, the |
105 | division shall review the total tax liability to the state by |
106 | the winery shipper and reduce the bond to 110 percent of the |
107 | prior year's total tax liability as a licensee under this |
108 | section but not less than $1,000. |
109 | (b) Applicants under this section may obtain a temporary |
110 | initial license as authorized in s. 561.181. |
111 | (c) The division may not issue a license under this |
112 | section if the applicant or licensee is owned by a winery that |
113 | manufactures more than 250,000 gallons of wine annually. |
114 | (d) Winery shipper licensees may not ship or cause to be |
115 | shipped more than 18 cases of wine per calendar year to one |
116 | adult individual. For purposes of this section, a case is |
117 | defined as a container or containers that contain no more than |
118 | 9,000 milliliters of wine. |
119 | (e) Licensees shall comply with s. 564.05, which limits |
120 | the size of wine containers. |
121 | (f) Purchasers shall not purchase or cause to be shipped |
122 | more than 18 cases of wine per calendar year to any adult |
123 | individual. |
124 | (2) LABEL.--Each winery shipper licensee shall ensure that |
125 | the outside shipping label on each package is conspicuous and |
126 | includes the following components: |
127 | (a) This package contains alcohol. |
128 | (b) An adult signature is required. |
129 | (c) The recipient must be at least 21 years of age. |
130 | (3) SIGNATURE.-- |
131 | (a) Each winery shipper licensee and common carrier shall |
132 | require, prior to delivery, that the signature of the addressee |
133 | or other person at least 21 years of age is obtained after |
134 | presentation of a valid driver's license, an identification card |
135 | issued under the provisions of s. 322.051, or, if the person is |
136 | physically handicapped, a comparable identification card issued |
137 | by another state which indicates the person's age, a passport, |
138 | or a United States Uniformed Services identification card. |
139 | (b) A winery shipper licensee or common carrier who |
140 | violates this subsection shall have a complete defense to any |
141 | civil action therefor, except for any administrative action by |
142 | the division, if, at the time the alcoholic beverage was sold, |
143 | given, delivered, or transferred, the person falsely evidenced |
144 | that he or she was of legal age to purchase or consume the |
145 | alcoholic beverage and the appearance of the person was such |
146 | that an ordinarily prudent person would believe him or her to be |
147 | of legal age to purchase or consume the alcoholic beverage and |
148 | if the winery shipper licensee or common carrier acted in good |
149 | faith and in reliance upon the representation and appearance of |
150 | the person in the belief that he or she was of legal age to |
151 | purchase or consume the alcoholic beverage and carefully checked |
152 | one of the following forms of identification with respect to the |
153 | person: a valid driver's license, an identification card issued |
154 | under the provisions of s. 322.051, or, if the person is |
155 | physically handicapped, a comparable identification card issued |
156 | by another state which indicates the person's age, a passport, |
157 | or a United States Uniformed Services identification card. |
158 | (4) MONTHLY REPORT.-- |
159 | (a) Each winery shipper licensee shall report monthly to |
160 | the division on forms prescribed by the division: |
161 | 1. Whether any wine product was shipped into or within |
162 | this state under this section during the preceding month. |
163 | 2. The total amount of wine shipped into or within this |
164 | state under this section during the preceding month. |
165 | 3. The quantity and types of wine shipped into or within |
166 | this state under this section during the preceding month. |
167 | 4. The amount of excise tax paid to the division for |
168 | shipments of wine into or within this state under this section |
169 | during the preceding month. |
170 | (b) The report required by this subsection is not required |
171 | from a winery shipper licensee who files a monthly report |
172 | pursuant to s. 561.55 that contains all the information required |
173 | in paragraph (a). The division is authorized to prescribe the |
174 | format for submission of this information in order that |
175 | duplicate filings are eliminated. |
176 | (5) TAXES.-- |
177 | (a) Each winery shipper licensee shall collect and remit |
178 | monthly to the Department of Revenue all sales taxes and pay to |
179 | the division all excise taxes due on sales to persons in this |
180 | state for the preceding month. Notwithstanding s. 212.0596, the |
181 | amount of such taxes shall be calculated as if the sale took |
182 | place at the location where the delivery occurred in this state. |
183 | (b) Each winery shipper licensee shall maintain for at |
184 | least 3 years after the date of delivery records of its |
185 | shipments into or within this state pursuant to this section, |
186 | including the names, addresses, amounts, and dates of all |
187 | shipments to persons in this state, and shall allow the |
188 | Department of Revenue or the division, upon request, to perform |
189 | an audit of such records. |
190 | (c) The cost of performing an audit under paragraph (b) |
191 | shall be assigned to the agency requesting the audit unless the |
192 | winery shipper licensee is found to be in material violation of |
193 | this subsection, in which case the cost of the audit shall be |
194 | assigned to the licensee. |
195 | (6) JURISDICTION.--Each winery shipper licensee is deemed |
196 | to have consented to the jurisdiction of the division or any |
197 | other state agency or local law enforcement agency and the |
198 | courts of this state concerning enforcement of this section and |
199 | any related laws or rules. |
200 | (7) PENALTIES.-- |
201 | (a) In addition to any other penalty provided in the |
202 | Beverage Law, the division may suspend or revoke a winery |
203 | shipper license or impose fines on the winery shipper licensee |
204 | in an amount not to exceed $1,000 per violation for any |
205 | violation of this section. |
206 | (b) A winery shipper licensee that knowingly and |
207 | intentionally ships, or causes to be shipped, wine to any person |
208 | in this state who is under 21 years of age commits a felony of |
209 | the third degree, punishable as provided in s. 775.082, s. |
210 | 775.083, or s. 775.084. |
211 | (c) Any common carrier, permit carrier, or other |
212 | commercial conveyance that knowingly and intentionally delivers |
213 | wine directly to any person in this state who is under 21 years |
214 | of age commits a misdemeanor of the second degree, punishable as |
215 | provided in s. 775.082 or s. 775.083. |
216 | (d) A person who knowingly and intentionally obtains wine |
217 | from a winery shipper licensee in violation of this section |
218 | commits a misdemeanor of the second degree, punishable as |
219 | provided in s. 775.082 or s. 775.083. |
220 | Section 2. Subsection (8) is added to section 561.14, |
221 | Florida Statutes, to read: |
222 | 561.14 License and registration classification.--Licenses |
223 | and registrations referred to in the Beverage Law shall be |
224 | classified as follows: |
225 | (8) Wineries licensed as winery shippers under s. 561.585. |
226 | Section 3. Section 561.54, Florida Statutes, is amended to |
227 | read: |
228 | 561.54 Certain deliveries of beverages prohibited.-- |
229 | (1) It is unlawful for common or permit carriers, |
230 | operators of privately owned cars, trucks, buses, or other |
231 | conveyances or out-of-state manufacturers or suppliers to make |
232 | delivery from without the state of any alcoholic beverage to any |
233 | person, association of persons, or corporation within the state, |
234 | except to qualified manufacturers, distributors, and exporters |
235 | of such beverages so delivered and to qualified bonded |
236 | warehouses in this state. |
237 | (2) Any licensee aggrieved by a violation of this section |
238 | may bring an action in any court of competent jurisdiction to |
239 | recover for the state all moneys obtained by common carriers or |
240 | permit carriers; obtained by operators of privately owned cars, |
241 | trucks, buses, or other conveyances; or obtained by out-of-state |
242 | manufacturers or suppliers as a result of the delivery of |
243 | alcoholic beverages in violation of this section, and may obtain |
244 | a declaratory judgment that an act or practice violates this |
245 | section and enjoin any person from violating this section. In |
246 | addition to such relief, the court may order the confiscation |
247 | and destruction of any alcoholic beverages delivered in |
248 | violation of this section. In assessing damages, the court shall |
249 | enter judgment against a defendant for three times the amount of |
250 | the delivery charges proved or the fair market value of |
251 | merchandise unlawfully brought into the state. Payment or |
252 | satisfaction of any judgment under this section, other than for |
253 | costs and attorney's fees, shall be made in its entirety to the |
254 | state. In any successful action under this section, the court |
255 | shall award the plaintiff costs and reasonable attorney's fees. |
256 | (3) This section does not apply to the shipment of wine by |
257 | a winery shipper licensee to a person who is at least 21 years |
258 | of age in accordance with s. 561.585. |
259 | Section 4. Section 561.545, Florida Statutes, is amended |
260 | to read: |
261 | 561.545 Certain shipments of beverages prohibited; |
262 | penalties; exceptions.--The Legislature finds that the direct |
263 | shipment of alcoholic beverages by persons in the business of |
264 | selling alcoholic beverages to residents of this state in |
265 | violation of the Beverage Law poses a serious threat to the |
266 | public health, safety, and welfare; to state revenue |
267 | collections; and to the economy of the state. The Legislature |
268 | further finds that the penalties for illegal direct shipment of |
269 | alcoholic beverages to residents of this state should be made |
270 | adequate to ensure compliance with the Beverage Law and that the |
271 | measures provided for in this section are fully consistent with |
272 | the powers conferred upon the state by the Twenty-first |
273 | Amendment to the United States Constitution. |
274 | (1) Any person in the business of selling alcoholic |
275 | beverages who knowingly and intentionally ships, or causes to be |
276 | shipped, any alcoholic beverage from an out-of-state location |
277 | directly to any person in this state who does not hold a valid |
278 | manufacturer's or wholesaler's license or exporter's |
279 | registration issued by the Division of Alcoholic Beverages and |
280 | Tobacco or who is not a state-bonded warehouse is in violation |
281 | of this section. |
282 | (2) Any common carrier or permit carrier or any operator |
283 | of a privately owned car, truck, bus, or other conveyance who |
284 | knowingly and intentionally transports any alcoholic beverage |
285 | from an out-of-state location directly to any person in this |
286 | state who does not hold a valid manufacturer's or wholesaler's |
287 | license or exporter's registration or who is not a state-bonded |
288 | warehouse is in violation of this section. |
289 | (3) Any person found by the division to be in violation of |
290 | subsection (1) shall be issued a notice, by certified mail, to |
291 | show cause why a cease and desist order should not be issued. |
292 | Any person who violates subsection (1) within 2 years after |
293 | receiving a cease and desist order or within 2 years after a |
294 | prior conviction for violating subsection (1) commits a felony |
295 | of the third degree, punishable as provided in s. 775.082, s. |
296 | 775.083, or s. 775.084. |
297 | (4) Any common carrier or permit carrier, or any operator |
298 | of a privately owned car, truck, bus, or other conveyance found |
299 | by the division to be in violation of subsection (2) as a result |
300 | of a second or subsequent delivery from the same source and |
301 | location, within a 2-year period after the first delivery shall |
302 | be issued a notice, by certified mail, to show cause why a cease |
303 | and desist order should not be issued. Any person who violates |
304 | subsection (2) within 2 years after receiving the cease and |
305 | desist order or within 2 years after a prior conviction for |
306 | violating subsection (2) commits a felony of the third degree, |
307 | punishable as provided in s. 775.082, s. 775.083, or s. 775.084. |
308 | (5) This section does not apply to: |
309 | (a) The direct shipment of sacramental alcoholic beverages |
310 | to bona fide religious organizations as authorized by the |
311 | division; |
312 | (b) The or to possession of alcoholic beverages in |
313 | accordance with s. 562.15(2); or |
314 | (c) The shipment of wine in accordance with s. 561.585. |
315 | Section 5. Subsections (1) and (6) of section 561.57, |
316 | Florida Statutes, are amended to read: |
317 | 561.57 Deliveries by licensees.-- |
318 | (1) Vendors shall be permitted to make deliveries away |
319 | from their places of business of sales actually made at the |
320 | licensed place of business; provided, telephone or mail orders |
321 | received at vendor's licensed place of business shall be |
322 | construed as a sale actually made at the vendor's licensed place |
323 | of business. For purposes of this section, Internet orders shall |
324 | be construed as telephone orders. |
325 | (6) Common carriers are not required to have vehicle |
326 | permits to transport alcoholic beverages. Nothing in this |
327 | section shall prohibit any licensee from utilizing a common |
328 | carrier as his or her agent to make deliveries of alcoholic |
329 | beverages within the state. Deliveries of alcoholic beverages by |
330 | licensees or common carriers utilized by licensees under this |
331 | section are exempt from the report filing requirements in s. |
332 | 562.20. All common carriers making deliveries under this section |
333 | shall verify that any person receiving alcoholic beverages is at |
334 | least 21 years of age upon the delivery of such alcoholic |
335 | beverages, as prescribed in division rules. Compliance with the |
336 | prescribed age verification measures in s. 561.585(3) shall give |
337 | the common carrier and the licensee a complete defense to any |
338 | civil action thereof, except for any administrative action by |
339 | the division, if, at the time the alcoholic beverage was sold, |
340 | given, delivered, or transferred, the person falsely evidenced |
341 | that he or she was of legal age to purchase or consume the |
342 | alcoholic beverage and the appearance of the person was such |
343 | that an ordinarily prudent person would believe him or her to be |
344 | of legal age to purchase or consume the alcoholic beverage and |
345 | if the licensee or common carrier acted in good faith and in |
346 | reliance upon the representation and appearance of the person in |
347 | the belief that he or she was of legal age to purchase or |
348 | consume the alcoholic beverage and carefully checked one of the |
349 | following forms of identification with respect to the person: a |
350 | valid driver's license, an identification card issued under the |
351 | provisions of s. 322.051, or, if the person is physically |
352 | handicapped, a comparable identification card issued by another |
353 | state which indicates the person's age, a passport, or a United |
354 | States Uniformed Services identification card. |
355 | Section 6. Subsection (1) of section 599.004, Florida |
356 | Statutes, is amended to read: |
357 | 599.004 Florida Farm Winery Program; registration; logo; |
358 | fees.-- |
359 | (1) The Florida Farm Winery Program is established within |
360 | the Department of Agriculture and Consumer Services. Under this |
361 | program, a winery may qualify as a tourist attraction only if it |
362 | is registered with and certified by the department as a Florida |
363 | Farm Winery. A winery may not claim to be certified unless it |
364 | has received written approval from the department. |
365 | (a) To qualify as a certified Florida Farm Winery, a |
366 | winery shall meet the following standards: |
367 | 1. Produce or sell less than 250,000 gallons of wine |
368 | annually of which 60 percent of wine produced shall be made from |
369 | this state's agricultural products. The Commissioner of |
370 | Agriculture may waive this requirement in times of hardship. |
371 | 2. Maintain a minimum of 10 acres of owned or managed |
372 | vineyards in Florida. |
373 | 3. Be open to the public for tours, tastings, and sales at |
374 | least 30 hours each week. |
375 | 4. Make annual application to the department for |
376 | recognition as a Florida Farm Winery, on forms provided by the |
377 | department. |
378 | 5. Pay an annual application and registration fee of $100. |
379 | (b) To maintain certification and recognition as a Florida |
380 | Farm Winery, a winery must comply with the qualifications |
381 | provided in this section. The Commissioner of Agriculture is |
382 | authorized to officially recognize a certified Florida Farm |
383 | Winery as a state tourist attraction. |
384 | Section 7. Subsection (5) of section 561.24, Florida |
385 | Statutes, is amended to read: |
386 | 561.24 Licensing manufacturers as distributors or |
387 | registered exporters prohibited; procedure for issuance and |
388 | renewal of distributors' licenses and exporters' |
389 | registrations.-- |
390 | (5) Notwithstanding any of the provisions of the foregoing |
391 | subsections, any corporation which holds a license as a |
392 | distributor on June 3, 1947, shall be entitled to a renewal |
393 | thereof, provided such corporation complies with all of the |
394 | provisions of the Beverage Law of Florida, as amended, and of |
395 | this section and establishes by satisfactory evidence to the |
396 | division that, during the 6-month period next preceding its |
397 | application for such renewal, of the total volume of its sales |
398 | of spirituous liquors, in either dollars or quantity, not more |
399 | than 40 percent of such spirituous liquors sold by it, in either |
400 | dollars or quantity, were manufactured, rectified, or distilled |
401 | by any corporation with which the applicant is affiliated, |
402 | directly or indirectly, including any corporation which owns or |
403 | controls in any way any stock in the applicant corporation or |
404 | any corporation which is a subsidiary or affiliate of the |
405 | corporation so owning stock in the applicant corporation. Any |
406 | manufacturer of wine holding a license as a distributor on July |
407 | 1, 2006, the effective date of this act shall be entitled to a |
408 | renewal of such license notwithstanding the provisions of |
409 | subsections (1)-(5). This section does not apply to any winery |
410 | qualifying as a certified Florida Farm Winery under s. 599.004. |
411 | Section 8. Should any portion of this act be held |
412 | unconstitutional, it is the intent of the Legislature that the |
413 | courts disturb only as much of the regulatory system of this |
414 | state as is necessary to enforce the United States Constitution. |
415 | Section 9. Notwithstanding the provisions of s. 561.585, |
416 | Florida Statutes, contracts not otherwise prohibited by the |
417 | Beverage Law shall not be impaired. |
418 | Section 10. The Division of Alcoholic Beverages and |
419 | Tobacco of the Department of Business and Professional |
420 | Regulation and the Department of Revenue may adopt rules |
421 | pursuant to ss. 120.536(1) and 120.54, Florida Statutes, to |
422 | implement and administer this act. |
423 | Section 11. For fiscal year 2006-2007, six full-time |
424 | equivalent positions are authorized, and the sums of $484,096 in |
425 | recurring funds and $41,944 in nonrecurring funds from the |
426 | Alcoholic Beverage and Tobacco Trust Fund of the Department of |
427 | Business and Professional Regulation are hereby appropriated |
428 | within a qualified expenditure category for the purpose of |
429 | carrying out regulatory activities provided in this act. In |
430 | addition, for fiscal year 2006-2007, two full-time equivalent |
431 | positions, with associated salary rate of 76,129, are |
432 | authorized, and the sums of $127,340 in recurring funds and |
433 | $10,486 in nonrecurring funds from the Administrative Trust Fund |
434 | of the Department of Business and Professional Regulation are |
435 | hereby appropriated for the purpose of carrying out central- |
436 | service administrative support functions related to the |
437 | regulatory activities provided in this act. |
438 | Section 12. This act shall take effect upon becoming a |
439 | law. |