HB 1217

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.  Pay an annual license fee in the amount of $250.
92     6.  File with the division a surety bond acceptable to the
93division in the sum of $5,000 as surety for the payment of all
94taxes provided that when, at the discretion of the division, the
95amount of business done by the winery shipper licensee is such
96volume that a bond of less than $5,000 will be adequate, the
97division may accept a bond in a lesser sum but not less than
98$1,000. The surety bond currently on file with the division for
99a winery pursuant to s. 561.37 is deemed to comply with this
100requirement. Upon written request of the winery shipper, the
101division shall review the total tax liability to the state by
102the winery shipper and reduce the bond to 110 percent of the
103prior year's total tax liability as a licensee under this
104section but not less than $1,000.
105     (b)  Applicants under this section may obtain a temporary
106initial license as authorized in s. 561.181.
107     (c)  Winery shipper licensees may not ship or cause to be
108shipped more than 18 cases of wine per calendar year to one
109adult individual. For purposes of this section, a case is
110defined as a container or containers that contain no more than
1119,000 milliliters of wine.
112     (d)  Licensees shall comply with s. 564.05, which limits
113the size of wine containers.
114     (e)  Purchasers shall not purchase or cause to be shipped
115more than 18 cases of wine per calendar year to any adult
116individual.
117     (2)  LABEL.--Each winery shipper licensee shall ensure that
118the outside shipping label on each package is conspicuous and
119includes the following components:
120     (a)  This package contains alcohol.
121     (b)  An adult signature is required.
122     (c)  The recipient must be at least 21 years of age.
123     (3)  SIGNATURE.--
124     (a)  Each winery shipper licensee and common carrier shall
125require, prior to delivery, that the signature of the addressee
126or other person at least 21 years of age is obtained after
127presentation of a valid driver's license, an identification card
128issued under the provisions of s. 322.051, or, if the person is
129physically handicapped, a comparable identification card issued
130by another state which indicates the person's age, a passport,
131or a United States Uniformed Services identification card.
132     (b)  A winery shipper licensee or common carrier who
133violates this subsection shall have a complete defense to any
134civil action therefor, except for any administrative action by
135the division, if, at the time the alcoholic beverage was sold,
136given, delivered, or transferred, the person falsely evidenced
137that he or she was of legal age to purchase or consume the
138alcoholic beverage and the appearance of the person was such
139that an ordinarily prudent person would believe him or her to be
140of legal age to purchase or consume the alcoholic beverage and
141if the winery shipper licensee or common carrier acted in good
142faith and in reliance upon the representation and appearance of
143the person in the belief that he or she was of legal age to
144purchase or consume the alcoholic beverage and carefully checked
145one of the following forms of identification with respect to the
146person: a valid driver's license, an identification card issued
147under the provisions of s. 322.051, or, if the person is
148physically handicapped, a comparable identification card issued
149by another state which indicates the person's age, a passport,
150or a United States Uniformed Services identification card.
151     (4)  MONTHLY REPORT.--
152     (a)  Each winery shipper licensee shall report monthly to
153the division on forms prescribed by the division:
154     1.  Whether any wine product was shipped into or within
155this state under this section during the preceding month.
156     2.  The total amount of wine shipped into or within this
157state under this section during the preceding month.
158     3.  The quantity and types of wine shipped into or within
159this state under this section during the preceding month.
160     4.  The amount of excise tax paid to the division for
161shipments of wine into or within this state under this section
162during the preceding month.
163     (b)  The report required by this subsection is not required
164from a winery shipper licensee who files a monthly report
165pursuant to s. 561.55 that contains all the information required
166in paragraph (a). The division is authorized to prescribe the
167format for submission of this information in order that
168duplicate filings are eliminated.
169     (5)  TAXES.--
170     (a)  Each winery shipper licensee shall collect and remit
171monthly to the Department of Revenue all sales taxes and pay to
172the division all excise taxes due on sales to persons in this
173state for the preceding month. Notwithstanding s. 212.0596, the
174amount of such taxes shall be calculated as if the sale took
175place at the location where the delivery occurred in this state.
176The proceeds of the discretionary sales surtaxes imposed under
177s. 212.055 shall be deposited into an account in the
178Discretionary Sales Surtax Clearing Trust Fund described in s.
179212.054(4)(c) and distributed as provided therein.
180     (b)  Each winery shipper licensee shall maintain for at
181least 3 years after the date of delivery records of its
182shipments into or within this state pursuant to this section,
183including the names, addresses, amounts, and dates of all
184shipments to persons in this state, and shall allow the
185Department of Revenue or the division, upon request, to perform
186an audit of such records.
187     (c)  The cost of performing an audit under paragraph (b)
188shall be assigned to the agency requesting the audit unless the
189winery shipper licensee is found to be in material violation of
190this subsection, in which case the cost of the audit shall be
191assigned to the licensee.
192     (6)  JURISDICTION.--Each winery shipper licensee is deemed
193to have consented to the jurisdiction of the division or any
194other state agency or local law enforcement agency and the
195courts of this state concerning enforcement of this section and
196any related laws or rules.
197     (7)  PENALTIES.--
198     (a)  In addition to any other penalty provided in the
199Beverage Law, the division may suspend or revoke a winery
200shipper license or impose fines on the winery shipper licensee
201in an amount not to exceed $1,000 per violation for any
202violation of this section.
203     (b)  A winery shipper licensee that knowingly and
204intentionally ships, or causes to be shipped, wine to any person
205in this state who is under 21 years of age commits a felony of
206the third degree, punishable as provided in s. 775.082, s.
207775.083, or s. 775.084.
208     (c)  Any common carrier, permit carrier, or other
209commercial conveyance that knowingly and intentionally delivers
210wine directly to any person in this state who is under 21 years
211of age commits a misdemeanor of the second degree, punishable as
212provided in s. 775.082 or s. 775.083.
213     (d)  A person who knowingly and intentionally obtains wine
214from a winery shipper licensee in violation of this section
215commits a misdemeanor of the second degree, punishable as
216provided in s. 775.082 or s. 775.083.
217     Section 2.  Subsection (8) is added to section 561.14,
218Florida Statutes, to read:
219     561.14  License and registration classification.--Licenses
220and registrations referred to in the Beverage Law shall be
221classified as follows:
222     (8)  Wineries licensed as winery shippers under s. 561.585.
223     Section 3.  Section 561.54, Florida Statutes, is amended to
224read:
225     561.54  Certain deliveries of beverages prohibited.--
226     (1)  It is unlawful for common or permit carriers,
227operators of privately owned cars, trucks, buses, or other
228conveyances or out-of-state manufacturers or suppliers to make
229delivery from without the state of any alcoholic beverage to any
230person, association of persons, or corporation within the state,
231except to qualified manufacturers, distributors, and exporters
232of such beverages so delivered and to qualified bonded
233warehouses in this state.
234     (2)  Any licensee aggrieved by a violation of this section
235may bring an action in any court of competent jurisdiction to
236recover for the state all moneys obtained by common carriers or
237permit carriers; obtained by operators of privately owned cars,
238trucks, buses, or other conveyances; or obtained by out-of-state
239manufacturers or suppliers as a result of the delivery of
240alcoholic beverages in violation of this section, and may obtain
241a declaratory judgment that an act or practice violates this
242section and enjoin any person from violating this section. In
243addition to such relief, the court may order the confiscation
244and destruction of any alcoholic beverages delivered in
245violation of this section. In assessing damages, the court shall
246enter judgment against a defendant for three times the amount of
247the delivery charges proved or the fair market value of
248merchandise unlawfully brought into the state. Payment or
249satisfaction of any judgment under this section, other than for
250costs and attorney's fees, shall be made in its entirety to the
251state. In any successful action under this section, the court
252shall award the plaintiff costs and reasonable attorney's fees.
253     (3)  This section does not apply to the shipment of wine by
254a winery shipper licensee to a person who is at least 21 years
255of age in accordance with s. 561.585.
256     Section 4.  Section 561.545, Florida Statutes, is amended
257to read:
258     561.545  Certain shipments of beverages prohibited;
259penalties; exceptions.--The Legislature finds that the direct
260shipment of alcoholic beverages by persons in the business of
261selling alcoholic beverages to residents of this state in
262violation of the Beverage Law poses a serious threat to the
263public health, safety, and welfare; to state revenue
264collections; and to the economy of the state. The Legislature
265further finds that the penalties for illegal direct shipment of
266alcoholic beverages to residents of this state should be made
267adequate to ensure compliance with the Beverage Law and that the
268measures provided for in this section are fully consistent with
269the powers conferred upon the state by the Twenty-first
270Amendment to the United States Constitution.
271     (1)  Any person in the business of selling alcoholic
272beverages who knowingly and intentionally ships, or causes to be
273shipped, any alcoholic beverage from an out-of-state location
274directly to any person in this state who does not hold a valid
275manufacturer's or wholesaler's license or exporter's
276registration issued by the Division of Alcoholic Beverages and
277Tobacco or who is not a state-bonded warehouse is in violation
278of this section.
279     (2)  Any common carrier or permit carrier or any operator
280of a privately owned car, truck, bus, or other conveyance who
281knowingly and intentionally transports any alcoholic beverage
282from an out-of-state location directly to any person in this
283state who does not hold a valid manufacturer's or wholesaler's
284license or exporter's registration or who is not a state-bonded
285warehouse is in violation of this section.
286     (3)  Any person found by the division to be in violation of
287subsection (1) shall be issued a notice, by certified mail, to
288show cause why a cease and desist order should not be issued.
289Any person who violates subsection (1) within 2 years after
290receiving a cease and desist order or within 2 years after a
291prior conviction for violating subsection (1) commits a felony
292of the third degree, punishable as provided in s. 775.082, s.
293775.083, or s. 775.084.
294     (4)  Any common carrier or permit carrier, or any operator
295of a privately owned car, truck, bus, or other conveyance found
296by the division to be in violation of subsection (2) as a result
297of a second or subsequent delivery from the same source and
298location, within a 2-year period after the first delivery shall
299be issued a notice, by certified mail, to show cause why a cease
300and desist order should not be issued. Any person who violates
301subsection (2) within 2 years after receiving the cease and
302desist order or within 2 years after a prior conviction for
303violating subsection (2) commits a felony of the third degree,
304punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
305     (5)  This section does not apply to:
306     (a)  The direct shipment of sacramental alcoholic beverages
307to bona fide religious organizations as authorized by the
308division;
309     (b)  The or to possession of alcoholic beverages in
310accordance with s. 562.15(2); or
311     (c)  The shipment of wine in accordance with s. 561.585.
312     Section 5.  Subsections (1) and (6) of section 561.57,
313Florida Statutes, are amended to read:
314     561.57  Deliveries by licensees.--
315     (1)  Vendors shall be permitted to make deliveries away
316from their places of business of sales actually made at the
317licensed place of business; provided, telephone or mail orders
318received at vendor's licensed place of business shall be
319construed as a sale actually made at the vendor's licensed place
320of business. For purposes of this section, Internet orders shall
321be construed as telephone orders.
322     (6)  Common carriers are not required to have vehicle
323permits to transport alcoholic beverages. Nothing in this
324section shall prohibit any licensee from utilizing a common
325carrier as his or her agent to make deliveries of alcoholic
326beverages within the state. Deliveries of alcoholic beverages by
327licensees or common carriers utilized by licensees under this
328section are exempt from the report filing requirements in s.
329562.20. All common carriers making deliveries under this section
330shall verify that any person receiving alcoholic beverages is at
331least 21 years of age upon the delivery of such alcoholic
332beverages, as prescribed in division rules. Compliance with the
333prescribed age verification measures in s. 561.585(3) shall give
334the common carrier and the licensee a complete defense to any
335civil action thereof, except for any administrative action by
336the division, if, at the time the alcoholic beverage was sold,
337given, delivered, or transferred, the person falsely evidenced
338that he or she was of legal age to purchase or consume the
339alcoholic beverage and the appearance of the person was such
340that an ordinarily prudent person would believe him or her to be
341of legal age to purchase or consume the alcoholic beverage and
342if the licensee or common carrier acted in good faith and in
343reliance upon the representation and appearance of the person in
344the belief that he or she was of legal age to purchase or
345consume the alcoholic beverage and carefully checked one of the
346following forms of identification with respect to the person: a
347valid driver's license, an identification card issued under the
348provisions of s. 322.051, or, if the person is physically
349handicapped, a comparable identification card issued by another
350state which indicates the person's age, a passport, or a United
351States Uniformed Services identification card.
352     Section 6.  Subsection (1) of section 599.004, Florida
353Statutes, is amended to read:
354     599.004  Florida Farm Winery Program; registration; logo;
355fees.--
356     (1)  The Florida Farm Winery Program is established within
357the Department of Agriculture and Consumer Services. Under this
358program, a winery may qualify as a tourist attraction only if it
359is registered with and certified by the department as a Florida
360Farm Winery. A winery may not claim to be certified unless it
361has received written approval from the department.
362     (a)  To qualify as a certified Florida Farm Winery, a
363winery shall meet the following standards:
364     1.  Produce or sell less than 250,000 gallons of wine
365annually of which 60 percent of wine produced shall be made from
366this state's agricultural products. The Commissioner of
367Agriculture may waive this requirement in times of hardship.
368     2.  Maintain a minimum of 10 acres of owned or managed
369vineyards in Florida.
370     3.  Be open to the public for tours, tastings, and sales at
371least 30 hours each week.
372     4.  Make annual application to the department for
373recognition as a Florida Farm Winery, on forms provided by the
374department.
375     5.  Pay an annual application and registration fee of $100.
376     (b)  To maintain certification and recognition as a Florida
377Farm Winery, a winery must comply with the qualifications
378provided in this section. The Commissioner of Agriculture is
379authorized to officially recognize a certified Florida Farm
380Winery as a state tourist attraction.
381     Section 7.  Subsection (5) of section 561.24, Florida
382Statutes, is amended to read:
383     561.24  Licensing manufacturers as distributors or
384registered exporters prohibited; procedure for issuance and
385renewal of distributors' licenses and exporters'
386registrations.--
387     (5)  Notwithstanding any of the provisions of the foregoing
388subsections, any corporation which holds a license as a
389distributor on June 3, 1947, shall be entitled to a renewal
390thereof, provided such corporation complies with all of the
391provisions of the Beverage Law of Florida, as amended, and of
392this section and establishes by satisfactory evidence to the
393division that, during the 6-month period next preceding its
394application for such renewal, of the total volume of its sales
395of spirituous liquors, in either dollars or quantity, not more
396than 40 percent of such spirituous liquors sold by it, in either
397dollars or quantity, were manufactured, rectified, or distilled
398by any corporation with which the applicant is affiliated,
399directly or indirectly, including any corporation which owns or
400controls in any way any stock in the applicant corporation or
401any corporation which is a subsidiary or affiliate of the
402corporation so owning stock in the applicant corporation. Any
403manufacturer of wine holding a license as a distributor on July
4041, 2007, the effective date of this act shall be entitled to a
405renewal of such license notwithstanding the provisions of
406subsections (1)-(5). This section does not apply to any winery
407qualifying as a certified Florida Farm Winery under s. 599.004.
408     Section 8.  Should any portion of this act be held
409unconstitutional, it is the intent of the Legislature that the
410courts disturb only as much of the regulatory system of this
411state as is necessary to enforce the United States Constitution.
412     Section 9.  Notwithstanding the provisions of s. 561.585,
413Florida Statutes, contracts not otherwise prohibited by the
414Beverage Law shall not be impaired.
415     Section 10.  The Division of Alcoholic Beverages and
416Tobacco of the Department of Business and Professional
417Regulation and the Department of Revenue may adopt rules
418pursuant to ss. 120.536(1) and 120.54, Florida Statutes, to
419implement and administer this act.
420     Section 11.  For fiscal year 2007-2008, six full-time
421equivalent positions are authorized, and the sums of $484,096 in
422recurring funds and $41,944 in nonrecurring funds from the
423Alcoholic Beverage and Tobacco Trust Fund of the Department of
424Business and Professional Regulation are hereby appropriated
425within a qualified expenditure category for the purpose of
426carrying out regulatory activities provided in this act. In
427addition, for fiscal year 2007-2008, two full-time equivalent
428positions, with associated salary rate of 76,129, are
429authorized, and the sums of $127,340 in recurring funds and
430$10,486 in nonrecurring funds from the Administrative Trust Fund
431of the Department of Business and Professional Regulation are
432hereby appropriated for the purpose of carrying out central-
433service administrative support functions related to the
434regulatory activities provided in this act.
435     Section 12.  This act shall take effect upon becoming a
436law.


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