HB 247

1
A bill to be entitled
2An act relating to the Beverage Law; creating s. 561.585,
3F.S.; authorizing certain direct shipments of wine;
4requiring licensure of winery shippers; providing
5requirements for licensure; providing prohibitions;
6requiring that a winery shipper licensee file a surety
7bond with the Division of Alcoholic Beverages and Tobacco
8of the Department of Business and Professional Regulation;
9requiring that each container of wine shipped directly be
10labeled with a notice; requiring monthly reports by winery
11shipper licensees; providing limitations on the amount of
12wine a winery shipper may ship or cause to be shipped;
13limiting the size of wine containers; limiting the amount
14of wine a purchaser can purchase or cause to be shipped;
15providing age requirements for those receiving direct
16shipments of wine; providing a defense to certain actions;
17requiring the collection, remittance, and payment of
18certain taxes by direct shippers; requiring certain
19proceeds from discretionary sales surtaxes to be deposited
20into an account in the Discretionary Sales Surtax Clearing
21Trust Fund; requiring that winery shippers maintain
22certain records for a certain time period; providing for
23jurisdiction; providing penalties; amending s. 561.14,
24F.S.; classifying the winery shipper license; amending s.
25561.54, F.S.; removing a provision requiring that the
26licensee be aggrieved by a violation involving prohibited
27delivery from without the state to have standing to bring
28an action; exempting from such prohibition shipment of
29wine by a winery shipper licensee; amending s. 561.545,
30F.S.; exempting applicability of the prohibition against
31direct shipment of alcoholic beverages to the shipment of
32wine by a winery shipper licensee; amending s. 561.57,
33F.S.; providing that Internet orders shall be construed as
34telephone orders; exempting common carriers, licensees, or
35other persons utilizing common carriers as their agents
36from certain report filing requirements; requiring common
37carriers to verify the age of persons receiving shipments;
38providing a defense to certain actions; providing criteria
39for the defense; amending s. 599.004, F.S.; revising
40qualifications for the certification of Florida Farm
41Wineries; amending s. 561.24, F.S.; revising an effective
42date; authorizing certain manufacturers of wine holding a
43distributor's license to renew such license; removing
44exemption of Florida Farm Wineries from prohibition
45against manufacturer being licensed as distributor or
46registered as exporter; providing for severability;
47providing for nonimpairment of contracts; providing for
48rulemaking authority; authorizing additional positions;
49providing appropriations; providing an effective date.
50
51Be It Enacted by the Legislature of the State of Florida:
52
53     Section 1.  Section 561.585, Florida Statutes, is created
54to read:
55     561.585  Direct shipment of wine for personal
56consumption.--
57     (1)  WINERY SHIPPER LICENSURE REQUIREMENTS.--
58     (a)  Wineries shall not ship or cause to be shipped any
59wine to individual consumers in this state unless licensed under
60this section. Notwithstanding any provision of the Beverage Law
61or any rule to the contrary, a person, firm, corporation, or
62other entity that is licensed as a winery shipper under this
63section may ship wine directly to any person who is at least 21
64years of age for personal use only and not for resale. To obtain
65or renew a winery shipper's license, an applicant must:
66     1.  File an application with the division on forms
67prescribed by the division.
68     2.  Qualify for licensure under ss. 561.15 and 561.17 or
69provide a true copy of a certification from the alcoholic
70beverage licensing authority of the Federal Government, or the
71state in which the winery is located, with license
72qualifications and procedures for that winery license that
73include, at a minimum, the following components:
74     a.  Fingerprinting of applicants.
75     b.  Disqualification for applicants under 21 years of age.
76     c.  Disqualification for applicants convicted of the
77following:
78     (I)  Within the past 5 years, any violation of the beverage
79laws of this state, the United States, or any other state;
80     (II)  Within the past 15 years, any felony in this state or
81any other state of the United States; or
82     (III)  Any criminal violation of the controlled substance
83act of this state, the United States, or any other state.
84     3.  Obtain and maintain a current license as a primary
85American source of supply as provided in s. 564.045.
86     4.  Provide to the division a true copy of its current wine
87manufacturer's license issued by this state or another state and
88a true copy of its current federal basic permit as a wine
89producer issued in accordance with the Federal Alcohol
90Administration Act.
91     5.  Manufacture no more than 250,000 gallons of wine per
92year.
93     6.  Pay an annual license fee in the amount of $250.
94     7.  File with the division a surety bond acceptable to the
95division in the sum of $5,000 as surety for the payment of all
96taxes provided that when, at the discretion of the division, the
97amount of business done by the winery shipper licensee is such
98volume that a bond of less than $5,000 will be adequate, the
99division may accept a bond in a lesser sum but not less than
100$1,000. The surety bond currently on file with the division for
101a winery pursuant to s. 561.37 is deemed to comply with this
102requirement. Upon written request of the winery shipper, the
103division shall review the total tax liability to the state by
104the winery shipper and reduce the bond to 110 percent of the
105prior year's total tax liability as a licensee under this
106section but not less than $1,000.
107     (b)  Applicants under this section may obtain a temporary
108initial license as authorized in s. 561.181.
109     (c)  The division may not issue an initial license under
110this section if the applicant is owned by a winery that
111manufactures more than 250,000 gallons of wine annually.
112     (d)  Winery shipper licensees may not ship or cause to be
113shipped more than 18 cases of wine per calendar year to one
114adult individual. For purposes of this section, a case is
115defined as a container or containers that contain no more than
1169,000 milliliters of wine.
117     (e)  Licensees shall comply with s. 564.05, which limits
118the size of wine containers.
119     (f)  Purchasers shall not purchase or cause to be shipped
120more than 18 cases of wine per calendar year to any adult
121individual.
122     (2)  LABEL.--Each winery shipper licensee shall ensure that
123the outside shipping label on each package is conspicuous and
124includes the following components:
125     (a)  This package contains alcohol.
126     (b)  An adult signature is required.
127     (c)  The recipient must be at least 21 years of age.
128     (3)  SIGNATURE.--
129     (a)  Each winery shipper licensee and common carrier shall
130require, prior to delivery, that the signature of the addressee
131or other person at least 21 years of age is obtained after
132presentation of a valid driver's license, an identification card
133issued under the provisions of s. 322.051, or, if the person is
134physically handicapped, a comparable identification card issued
135by another state which indicates the person's age, a passport,
136or a United States Uniformed Services identification card.
137     (b)  A winery shipper licensee or common carrier who
138violates this subsection shall have a complete defense to any
139civil action therefor, except for any administrative action by
140the division, if, at the time the alcoholic beverage was sold,
141given, delivered, or transferred, the person falsely evidenced
142that he or she was of legal age to purchase or consume the
143alcoholic beverage and the appearance of the person was such
144that an ordinarily prudent person would believe him or her to be
145of legal age to purchase or consume the alcoholic beverage and
146if the winery shipper licensee or common carrier acted in good
147faith and in reliance upon the representation and appearance of
148the person in the belief that he or she was of legal age to
149purchase or consume the alcoholic beverage and carefully checked
150one of the following forms of identification with respect to the
151person: a valid driver's license, an identification card issued
152under the provisions of s. 322.051, or, if the person is
153physically handicapped, a comparable identification card issued
154by another state which indicates the person's age, a passport,
155or a United States Uniformed Services identification card.
156     (4)  MONTHLY REPORT.--
157     (a)  Each winery shipper licensee shall report monthly to
158the division on forms prescribed by the division:
159     1.  Whether any wine product was shipped into or within
160this state under this section during the preceding month.
161     2.  The total amount of wine shipped into or within this
162state under this section during the preceding month.
163     3.  The quantity and types of wine shipped into or within
164this state under this section during the preceding month.
165     4.  The amount of excise tax paid to the division for
166shipments of wine into or within this state under this section
167during the preceding month.
168     (b)  The report required by this subsection is not required
169from a winery shipper licensee who files a monthly report
170pursuant to s. 561.55 that contains all the information required
171in paragraph (a). The division is authorized to prescribe the
172format for submission of this information in order that
173duplicate filings are eliminated.
174     (5)  TAXES.--
175     (a)  Each winery shipper licensee shall collect and remit
176monthly to the Department of Revenue all sales taxes and pay to
177the division all excise taxes due on sales to persons in this
178state for the preceding month. Notwithstanding s. 212.0596, the
179amount of such taxes shall be calculated as if the sale took
180place at the location where the delivery occurred in this state.
181The proceeds of the discretionary sales surtaxes imposed under
182s. 212.055 shall be deposited into an account in the
183Discretionary Sales Surtax Clearing Trust Fund described in s.
184212.054(4)(c) and distributed as provided therein.
185     (b)  Each winery shipper licensee shall maintain for at
186least 3 years after the date of delivery records of its
187shipments into or within this state pursuant to this section,
188including the names, addresses, amounts, and dates of all
189shipments to persons in this state, and shall allow the
190Department of Revenue or the division, upon request, to perform
191an audit of such records.
192     (c)  The cost of performing an audit under paragraph (b)
193shall be assigned to the agency requesting the audit unless the
194winery shipper licensee is found to be in material violation of
195this subsection, in which case the cost of the audit shall be
196assigned to the licensee.
197     (6)  JURISDICTION.--Each winery shipper licensee is deemed
198to have consented to the jurisdiction of the division or any
199other state agency or local law enforcement agency and the
200courts of this state concerning enforcement of this section and
201any related laws or rules.
202     (7)  PENALTIES.--
203     (a)  In addition to any other penalty provided in the
204Beverage Law, the division may suspend or revoke a winery
205shipper license or impose fines on the winery shipper licensee
206in an amount not to exceed $1,000 per violation for any
207violation of this section.
208     (b)  A winery shipper licensee that knowingly and
209intentionally ships, or causes to be shipped, wine to any person
210in this state who is under 21 years of age commits a felony of
211the third degree, punishable as provided in s. 775.082, s.
212775.083, or s. 775.084.
213     (c)  Any common carrier, permit carrier, or other
214commercial conveyance that knowingly and intentionally delivers
215wine directly to any person in this state who is under 21 years
216of age commits a misdemeanor of the second degree, punishable as
217provided in s. 775.082 or s. 775.083.
218     (d)  A person who knowingly and intentionally obtains wine
219from a winery shipper licensee in violation of this section
220commits a misdemeanor of the second degree, punishable as
221provided in s. 775.082 or s. 775.083.
222     Section 2.  Subsection (8) is added to section 561.14,
223Florida Statutes, to read:
224     561.14  License and registration classification.--Licenses
225and registrations referred to in the Beverage Law shall be
226classified as follows:
227     (8)  Wineries licensed as winery shippers under s. 561.585.
228     Section 3.  Section 561.54, Florida Statutes, is amended to
229read:
230     561.54  Certain deliveries of beverages prohibited.--
231     (1)  It is unlawful for common or permit carriers,
232operators of privately owned cars, trucks, buses, or other
233conveyances or out-of-state manufacturers or suppliers to make
234delivery from without the state of any alcoholic beverage to any
235person, association of persons, or corporation within the state,
236except to qualified manufacturers, distributors, and exporters
237of such beverages so delivered and to qualified bonded
238warehouses in this state.
239     (2)  Any licensee aggrieved by a violation of this section
240may bring an action in any court of competent jurisdiction to
241recover for the state all moneys obtained by common carriers or
242permit carriers; obtained by operators of privately owned cars,
243trucks, buses, or other conveyances; or obtained by out-of-state
244manufacturers or suppliers as a result of the delivery of
245alcoholic beverages in violation of this section, and may obtain
246a declaratory judgment that an act or practice violates this
247section and enjoin any person from violating this section. In
248addition to such relief, the court may order the confiscation
249and destruction of any alcoholic beverages delivered in
250violation of this section. In assessing damages, the court shall
251enter judgment against a defendant for three times the amount of
252the delivery charges proved or the fair market value of
253merchandise unlawfully brought into the state. Payment or
254satisfaction of any judgment under this section, other than for
255costs and attorney's fees, shall be made in its entirety to the
256state. In any successful action under this section, the court
257shall award the plaintiff costs and reasonable attorney's fees.
258     (3)  This section does not apply to the shipment of wine by
259a winery shipper licensee to a person who is at least 21 years
260of age in accordance with s. 561.585.
261     Section 4.  Section 561.545, Florida Statutes, is amended
262to read:
263     561.545  Certain shipments of beverages prohibited;
264penalties; exceptions.--The Legislature finds that the direct
265shipment of alcoholic beverages by persons in the business of
266selling alcoholic beverages to residents of this state in
267violation of the Beverage Law poses a serious threat to the
268public health, safety, and welfare; to state revenue
269collections; and to the economy of the state. The Legislature
270further finds that the penalties for illegal direct shipment of
271alcoholic beverages to residents of this state should be made
272adequate to ensure compliance with the Beverage Law and that the
273measures provided for in this section are fully consistent with
274the powers conferred upon the state by the Twenty-first
275Amendment to the United States Constitution.
276     (1)  Any person in the business of selling alcoholic
277beverages who knowingly and intentionally ships, or causes to be
278shipped, any alcoholic beverage from an out-of-state location
279directly to any person in this state who does not hold a valid
280manufacturer's or wholesaler's license or exporter's
281registration issued by the Division of Alcoholic Beverages and
282Tobacco or who is not a state-bonded warehouse is in violation
283of this section.
284     (2)  Any common carrier or permit carrier or any operator
285of a privately owned car, truck, bus, or other conveyance who
286knowingly and intentionally transports any alcoholic beverage
287from an out-of-state location directly to any person in this
288state who does not hold a valid manufacturer's or wholesaler's
289license or exporter's registration or who is not a state-bonded
290warehouse is in violation of this section.
291     (3)  Any person found by the division to be in violation of
292subsection (1) shall be issued a notice, by certified mail, to
293show cause why a cease and desist order should not be issued.
294Any person who violates subsection (1) within 2 years after
295receiving a cease and desist order or within 2 years after a
296prior conviction for violating subsection (1) commits a felony
297of the third degree, punishable as provided in s. 775.082, s.
298775.083, or s. 775.084.
299     (4)  Any common carrier or permit carrier, or any operator
300of a privately owned car, truck, bus, or other conveyance found
301by the division to be in violation of subsection (2) as a result
302of a second or subsequent delivery from the same source and
303location, within a 2-year period after the first delivery shall
304be issued a notice, by certified mail, to show cause why a cease
305and desist order should not be issued. Any person who violates
306subsection (2) within 2 years after receiving the cease and
307desist order or within 2 years after a prior conviction for
308violating subsection (2) commits a felony of the third degree,
309punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
310     (5)  This section does not apply to:
311     (a)  The direct shipment of sacramental alcoholic beverages
312to bona fide religious organizations as authorized by the
313division;
314     (b)  The or to possession of alcoholic beverages in
315accordance with s. 562.15(2); or
316     (c)  The shipment of wine in accordance with s. 561.585.
317     Section 5.  Subsections (1) and (6) of section 561.57,
318Florida Statutes, are amended to read:
319     561.57  Deliveries by licensees.--
320     (1)  Vendors shall be permitted to make deliveries away
321from their places of business of sales actually made at the
322licensed place of business; provided, telephone or mail orders
323received at vendor's licensed place of business shall be
324construed as a sale actually made at the vendor's licensed place
325of business. For purposes of this section, Internet orders shall
326be construed as telephone orders.
327     (6)  Common carriers are not required to have vehicle
328permits to transport alcoholic beverages. Nothing in this
329section shall prohibit any licensee from utilizing a common
330carrier as his or her agent to make deliveries of alcoholic
331beverages within the state. Deliveries of alcoholic beverages by
332licensees or common carriers utilized by licensees under this
333section are exempt from the report filing requirements in s.
334562.20. All common carriers making deliveries under this section
335shall verify that any person receiving alcoholic beverages is at
336least 21 years of age upon the delivery of such alcoholic
337beverages, as prescribed in division rules. Compliance with the
338prescribed age verification measures in s. 561.585(3) shall give
339the common carrier and the licensee a complete defense to any
340civil action thereof, except for any administrative action by
341the division, if, at the time the alcoholic beverage was sold,
342given, delivered, or transferred, the person falsely evidenced
343that he or she was of legal age to purchase or consume the
344alcoholic beverage and the appearance of the person was such
345that an ordinarily prudent person would believe him or her to be
346of legal age to purchase or consume the alcoholic beverage and
347if the licensee or common carrier acted in good faith and in
348reliance upon the representation and appearance of the person in
349the belief that he or she was of legal age to purchase or
350consume the alcoholic beverage and carefully checked one of the
351following forms of identification with respect to the person: a
352valid driver's license, an identification card issued under the
353provisions of s. 322.051, or, if the person is physically
354handicapped, a comparable identification card issued by another
355state which indicates the person's age, a passport, or a United
356States Uniformed Services identification card.
357     Section 6.  Subsection (1) of section 599.004, Florida
358Statutes, is amended to read:
359     599.004  Florida Farm Winery Program; registration; logo;
360fees.--
361     (1)  The Florida Farm Winery Program is established within
362the Department of Agriculture and Consumer Services. Under this
363program, a winery may qualify as a tourist attraction only if it
364is registered with and certified by the department as a Florida
365Farm Winery. A winery may not claim to be certified unless it
366has received written approval from the department.
367     (a)  To qualify as a certified Florida Farm Winery, a
368winery shall meet the following standards:
369     1.  Produce or sell less than 250,000 gallons of wine
370annually of which 60 percent of wine produced shall be made from
371this state's agricultural products. The Commissioner of
372Agriculture may waive this requirement in times of hardship.
373     2.  Maintain a minimum of 10 acres of owned or managed
374vineyards in Florida.
375     3.  Be open to the public for tours, tastings, and sales at
376least 30 hours each week.
377     4.  Make annual application to the department for
378recognition as a Florida Farm Winery, on forms provided by the
379department.
380     5.  Pay an annual application and registration fee of $100.
381     (b)  To maintain certification and recognition as a Florida
382Farm Winery, a winery must comply with the qualifications
383provided in this section. The Commissioner of Agriculture is
384authorized to officially recognize a certified Florida Farm
385Winery as a state tourist attraction.
386     Section 7.  Subsection (5) of section 561.24, Florida
387Statutes, is amended to read:
388     561.24  Licensing manufacturers as distributors or
389registered exporters prohibited; procedure for issuance and
390renewal of distributors' licenses and exporters'
391registrations.--
392     (5)  Notwithstanding any of the provisions of the foregoing
393subsections, any corporation which holds a license as a
394distributor on June 3, 1947, shall be entitled to a renewal
395thereof, provided such corporation complies with all of the
396provisions of the Beverage Law of Florida, as amended, and of
397this section and establishes by satisfactory evidence to the
398division that, during the 6-month period next preceding its
399application for such renewal, of the total volume of its sales
400of spirituous liquors, in either dollars or quantity, not more
401than 40 percent of such spirituous liquors sold by it, in either
402dollars or quantity, were manufactured, rectified, or distilled
403by any corporation with which the applicant is affiliated,
404directly or indirectly, including any corporation which owns or
405controls in any way any stock in the applicant corporation or
406any corporation which is a subsidiary or affiliate of the
407corporation so owning stock in the applicant corporation. Any
408manufacturer of wine holding a license as a distributor on July
4091, 2006, the effective date of this act shall be entitled to a
410renewal of such license notwithstanding the provisions of
411subsections (1)-(5). This section does not apply to any winery
412qualifying as a certified Florida Farm Winery under s. 599.004.
413     Section 8.  Should any portion of this act be held
414unconstitutional, it is the intent of the Legislature that the
415courts disturb only as much of the regulatory system of this
416state as is necessary to enforce the United States Constitution.
417     Section 9.  Notwithstanding the provisions of s. 561.585,
418Florida Statutes, contracts not otherwise prohibited by the
419Beverage Law shall not be impaired.
420     Section 10.  The Division of Alcoholic Beverages and
421Tobacco of the Department of Business and Professional
422Regulation and the Department of Revenue may adopt rules
423pursuant to ss. 120.536(1) and 120.54, Florida Statutes, to
424implement and administer this act.
425     Section 11.  For fiscal year 2006-2007, six full-time
426equivalent positions are authorized, and the sums of $484,096 in
427recurring funds and $41,944 in nonrecurring funds from the
428Alcoholic Beverage and Tobacco Trust Fund of the Department of
429Business and Professional Regulation are hereby appropriated
430within a qualified expenditure category for the purpose of
431carrying out regulatory activities provided in this act. In
432addition, for fiscal year 2006-2007, two full-time equivalent
433positions, with associated salary rate of 76,129, are
434authorized, and the sums of $127,340 in recurring funds and
435$10,486 in nonrecurring funds from the Administrative Trust Fund
436of the Department of Business and Professional Regulation are
437hereby appropriated for the purpose of carrying out central-
438service administrative support functions related to the
439regulatory activities provided in this act.
440     Section 12.  This act shall take effect upon becoming a
441law.


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