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A bill to be entitled

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An act relating to the production and shipment of wine;

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creating s. 561.222, F.S.; authorizing the direct shipment

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of wine into and within this state for personal

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consumption only; providing legislative intent; requiring

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licensure of winery shippers by the Division of Alcoholic

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Beverages and Tobacco; providing license requirements;

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requiring recipients of a direct shipment of wine to be 21

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years of age; requiring proof of age and the signature of

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a recipient; providing for the payment of taxes, a monthly

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report, and recordkeeping by winery shippers; providing

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requirements for common carriers that make deliveries of

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wine; providing administrative and criminal penalties for

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violations of the act; authorizing the division and the

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Department of Revenue to adopt rules; amending ss. 561.24,

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561.54, 561.545, and 564.045, F.S.; conforming provisions

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to changes made by the act; amending s. 599.004, F.S.;

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revising requirements for qualifying as a certified

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Florida Farm Winery; providing an effective date.

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Be It Enacted by the Legislature of the State of Florida:

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     Section 1.  Section 561.222, Florida Statutes, is created to

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read:

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     561.222 Winery shipper's license.--

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     (1) LEGISLATIVE INTENT.--The Legislature finds that the

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importation, distribution, and sale of alcoholic beverages

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require strict regulation in order to promote temperance by

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discouraging consumption by underage persons and abusive

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consumption by adults, to ensure orderly markets having

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transparent and accountable sales, and to facilitate the

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collection of excise and sales taxes critical to the fiscal

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health of the state. The Legislature finds that these purposes

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are best achieved through the state's comprehensive system of

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licensing and regulation, including the three-tier system of

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alcohol distribution which has been the law of this state since

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the repeal of Prohibition. The Legislature finds that the

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limitations contained in this section for the uniform regulation

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of direct shipping by small, in-state and out-of-state farm

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wineries are the least discriminatory means of protecting the

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public and state revenues. The Legislature continues to maintain

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its interest in having the state exercise its police power,

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ensure enforcement of the beverage laws, and thereby regulate the

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transportation, importation, distribution, and sale of alcoholic

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beverages to the maximum extent allowed by the state and federal

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constitutions. The Legislature reaffirms its policy prohibiting

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manufacturers from causing the direct shipment of beer and

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spirits to individuals in this state and its intent to uphold and

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preserve against constitutional challenge all of the laws of this

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state relating to alcoholic beverages.

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     (2) LICENSE REQUIREMENTS.--

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     (a) A winery may directly ship wine to a resident of this

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state only under a winery shipper's license. A manufacturer of

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wine within this state or any other state who manufactures no

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more than 250,000 gallons of wine per year may ship wines that

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the winery manufactures to a resident of this state who is at

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least 21 years of age for that person's personal use, and not for

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resale, upon obtaining a winery shipper's license from the

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division. The manufacturer may obtain a winery shipper's license

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by:

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     1. Holding a current wine producer basic permit issued in

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accordance with the Federal Alcohol Administration Act.

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     2. Holding a current wine manufacturer's license from the

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state in which it manufactures wine.

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     3. Holding a current license as a primary American source

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of supply in accordance with s. 564.045 and registering with the

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division all brands shipped.

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     4. Meeting the qualifications for licensure under s.

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561.15.

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     5. Filing an application with the division in accordance

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with s. 561.17. The information required by the division in the

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application must be the same as the information required by the

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division for licensure as a wine manufacturer. The applicant

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shall also include with the application:

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     a. A copy of its current basic permit as a wine producer

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issued in accordance with the Federal Alcohol Administration Act.

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     b. A copy of its current state license to manufacture wine.

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     c. A copy of the appointment of a registered agent in this

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state for the acceptance of service of process. Winery shippers

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must maintain an appointed registered agent and must notify the

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division of a change in appointment.

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     d. A copy of the applicant's sales tax registration number

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issued by the Department of Revenue. An applicant must register

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and maintain a current sales tax registration with the department

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as a collector and remitter of state sales tax.

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     e. An affirmation that the applicant consents to the

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jurisdiction of the courts of this state and its agencies for the

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enforcement of this section and any related laws or rules,

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including actions by third parties for violations of this

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section.

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     6. Filing with the division a surety bond in the sum of

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$5,000 as surety for the payment of all taxes. If the division

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determines that the volume of business done by the manufacturer

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is such that a bond of less than $5,000 is adequate, the division

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may accept a bond in a lesser sum, but not less than $1,000.

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     7. Paying a license fee of $250 to the division. Winery

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shippers must maintain a current license as provided in this

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section which must be renewed annually by August 1 by paying a

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renewal fee of $250 to the division.

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     (b) The division may not issue or renew a license under

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this section if the applicant or licensee:

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     1. Has violated the conditions of licensure, requirements,

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or limitations of this section;

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     2. Produces more than 250,000 gallons of wine annually;

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     3. Has a subsidiary or is otherwise affiliated with a

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winery whose production totals are greater than 250,000 gallons

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per year; or

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     4. Has appointed a distributor in this state, unless the

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applicant provides to the division a copy of a written notice

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sent to the distributor of intent to obtain a winery shipper's

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license 1 year before applying for a winery shipper's license

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under this section.

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     (3) SHIPPING REQUIREMENTS.--

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     (a) Before shipping wine directly to a resident of this

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state, a licensed winery shipper shall:

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     1. Verify the purchaser's age at the point of purchase

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before completing any transaction and refuse sales of wine to

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anyone younger than 21 years of age.

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     2. Conspicuously label the outside of each box of wine

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shipped with the following information:

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     a. The package contains alcohol.

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     b. The recipient must be at least 21 years of age.

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     c. The wine is for personal use only and not for resale.

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     d. The signature of the recipient is required.

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     3. Refuse to ship or cause to be shipped more than four

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cases containing more than nine liters each of its wine per

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calendar year to any one household address in this state.

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Consumers may not purchase, and winery shippers may not sell,

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ship, or cause to be shipped to a single household, more than

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four cases of more than nine liters of wine per calendar year.

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     (b) A licensed winery shipper shall require a common

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carrier contracting with the shipper for the delivery of the

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shipper's wine to obtain, before delivery, the signature of the

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addressee or other recipient who is at least 21 years of age

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after a valid driver's license, an identification card issued by

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this state or another state, a passport, or a United States armed

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services identification card verifying age is presented. The

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signature form must inform the recipient that his or her

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signature is an acknowledgment that such wine is for personal or

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household consumption and not for resale.

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     (c) A licensed winery shipper must obtain from a common

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carrier contracting for the delivery of the shipper's wine the

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common carrier's written policy declaring that the common carrier

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shall, before delivering any wine, adhere to the requirements of

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paragraph (b).

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     (d) A licensed winery shipper must offer to its distributor

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for purchase and sale per calendar year the same brands and

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quantities of wine shipped per calendar year under this section.

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     (4) TAXES.--A licensed winery shipper shall pay monthly to

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the Department of Revenue all sales taxes and to the division all

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state excise taxes due on sales to persons in this state for the

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preceding month. The amount of the taxes shall be calculated as

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if the sale took place in this state.

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     (5) MONTHLY REPORT.--A licensed winery shipper shall report

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to the division, by the 10th day of each month, on forms

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prescribed by the division:

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     (a) Whether any wine was shipped to residents of this state

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during the preceding month.

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     (b) The quantity and brands of wine shipped to residents of

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this state during the preceding month.

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     (c) The total price of wine shipped to residents of this

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state during the preceding month.

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     (d) The amount of excise tax paid to the division for the

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shipments of wine to residents of this state during the preceding

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month.

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     (e) Any other information that the division determines

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necessary to enforce this section.

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     (6) RECORDS.--All licensed winery shippers shall maintain

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the following records, electronically or otherwise, available for

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inspection by the Department of Revenue or the division upon

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request for a period of 3 years after the date of delivery, and

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shall allow the Department of Revenue or the division to perform

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an audit of the records, not to exceed the frequency of audits of

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licensees of the Beverage Law generally, but at least once per

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year. Upon such request, the licensee shall submit any related

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documents to that agency within 30 days.

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     (a) The license issued under this section.

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     (b) A record of all wines ordered, sold, or shipped to

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residents of this state including the name, address, and date of

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birth of the purchaser, the name and address of the person to

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whom the wine is shipped, and the date of shipment, quantity, and

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brands of wine shipped.

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     (c) All contracts with common carriers for the delivery of

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the shipper's wine in this state and the carrier's written wine-

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delivery policy.

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     (7) COMMON CARRIERS.--Each common carrier making deliveries

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of wine under this section shall:

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     (a) Register with the division and acknowledge the

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requirements contained in this section for the direct shipment of

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wine and the carrier's intent to deliver wines in accordance with

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this section.

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     (b) Maintain a written wine-delivery policy stating that

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the common carrier shall, before delivering any wine, obtain the

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signature of the recipient after a valid driver's license, an

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identification card issued by this state or another state, a

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passport, or a United States armed services identification card

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is presented verifying that the recipient is 21 years of age or

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older.

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     (c) Refuse delivery if the recipient appears to be younger

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than 21 years of age; fails or refuses to present a valid

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driver's license, an identification card issued by this state or

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another state, a passport, or a United States armed services

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identification card verifying age; or fails or refuses to sign

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the signature form.

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     (d) Obtain the recipient's name and address and signed

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acknowledgement of personal consumption for each wine delivery as

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required in this section; maintain such records and the shipping

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order, including the name and address of the person to whom the

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wine is shipped, for 3 years; and make the records available for

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inspection upon request by the division.

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     (8) PENALTIES.--In addition to the penalties provided by s.

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561.545, knowingly or intentionally shipping, causing to be

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shipped, or delivering wine to a person younger than 21 years of

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age is a third-degree felony, punishable as provided in s.

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775.082, s. 775.083, or s. 775.084. The division may suspend or

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revoke the license of a winery shipper or impose fines against a

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winery shipper for any violation of this section. If the division

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has reasonable cause to believe that a winery shipper has acted

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in violation of this section, the division may issue a cease and

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desist order requiring the winery to cease shipments. The

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division may impose a civil penalty of up to $50,000 against a

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winery who knowingly violates a cease and desist order issued

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under this section.

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     (9) RULEMAKING.--The Department of Revenue and the division

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may adopt rules to administer and enforce the applicable

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provisions of this section.

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     Section 2.  Subsection (5) of section 561.24, Florida

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Statutes, is amended to read:

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     561.24  Licensing manufacturers as distributors or

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registered exporters prohibited; procedure for issuance and

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renewal of distributors' licenses and exporters' registrations.--

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     (5) Notwithstanding any other provision of this section of

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the provisions of the foregoing subsections, a any corporation

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licensed which holds a license as a distributor on June 3, 1947,

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is shall be entitled to a renewal of such license if the thereof,

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provided such corporation is in compliance complies with all

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applicable of the provisions of the Beverage Law of Florida, as

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amended, and of this section and establishes by satisfactory

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evidence to the division that, during the 6-month period next

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preceding its application for such renewal, of the total volume

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of its sales of spirituous liquors, in either dollars or

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quantity, not more than 40 percent of such spirituous liquors

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sold by it, in either dollars or quantity, were manufactured,

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rectified, or distilled by a any corporation with which the

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applicant is affiliated, directly or indirectly, including a any

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corporation that which owns or controls in any way any stock in

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the applicant corporation or a any corporation that which is a

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subsidiary or affiliate of the corporation so owning stock in the

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applicant corporation. Notwithstanding any other provision of

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this section a Any manufacturer of wine licensed holding a

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license as a distributor on July 1, 2008, is the effective date

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of this act shall be entitled to a renewal of such license

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notwithstanding the provisions of subsections (1)-(5). However, a

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manufacturer who is licensed as a distributor or vendor may not

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also hold a winery shipper's license. This section does not apply

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to any winery qualifying as a certified Florida Farm Winery under

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s. 599.004.

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     Section 3.  Section 561.54, Florida Statutes, is amended to

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read:

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     561.54  Certain deliveries of beverages prohibited.--

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     (1) It is unlawful for Common or permit carriers, operators

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of privately owned cars, trucks, buses, or other conveyances or

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out-of-state manufacturers or suppliers may not to make delivery

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from outside without the state of any alcoholic beverage to any

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person, association of persons, or corporation within the state,

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except to qualified manufacturers, distributors, and exporters of

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such beverages so delivered and to qualified bonded warehouses in

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this state.

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     (2)  Any licensee aggrieved by a violation of this section

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may bring an action in any court of competent jurisdiction to

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recover for the state all moneys obtained by common carriers or

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permit carriers; obtained by operators of privately owned cars,

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trucks, buses, or other conveyances; or obtained by out-of-state

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manufacturers or suppliers as a result of the delivery of

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alcoholic beverages in violation of this section, and may obtain

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a declaratory judgment that an act or practice violates this

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section and enjoin any person from violating this section. In

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addition to such relief, the court may order the confiscation and

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destruction of any alcoholic beverages delivered in violation of

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this section. In assessing damages, the court shall enter

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judgment against a defendant for three times the amount of the

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delivery charges proved or the fair market value of merchandise

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unlawfully brought into the state. Payment or satisfaction of a

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any judgment under this section, other than for costs and

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attorney's fees, shall be made in its entirety to the state. In a

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any successful action under this section, the court shall award

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the plaintiff costs and reasonable attorney's fees.

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     (3) This section does not apply to the direct shipment of

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wine by a licensed winery shipper to a person 21 years of age or

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older for household consumption.

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     Section 4.  Section 561.545, Florida Statutes, is amended to

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read:

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     561.545  Certain shipments of beverages prohibited;

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penalties; exceptions.--The Legislature finds that the direct

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shipment of alcoholic beverages by persons in the business of

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selling alcoholic beverages to residents of this state in

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violation of the Beverage Law poses a serious threat to the

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public health, safety, and welfare; to state revenue collections;

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and to the economy of the state. The Legislature further finds

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that the penalties for illegal direct shipment of alcoholic

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beverages to residents of this state should be made adequate to

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ensure compliance with the Beverage Law and that the measures

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provided for in this section are fully consistent with the powers

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conferred upon the state by the Twenty-first Amendment to the

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United States Constitution.

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     (1) A Any person in the business of selling alcoholic

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beverages who knowingly and intentionally ships, or causes to be

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shipped, any alcoholic beverage from an out-of-state location

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directly to any person in this state who does not hold a valid

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manufacturer's or wholesaler's license or exporter's registration

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issued by the division of Alcoholic Beverages and Tobacco or who

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is not a state-bonded warehouse is in violation of this section.

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     (2) A Any common carrier or permit carrier or any operator

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of a privately owned car, truck, bus, or other conveyance who

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knowingly and intentionally transports any alcoholic beverage

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from an out-of-state location directly to any person in this

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state who does not hold a valid manufacturer's or wholesaler's

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license or exporter's registration or who is not a state-bonded

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warehouse is in violation of this section.

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     (3) A Any person found by the division to be in violation

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of subsection (1) shall be issued a notice, sent by certified

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mail, to show cause why a cease and desist order should not be

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issued. Any person who violates subsection (1) within 2 years

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after receiving a cease and desist order or within 2 years after

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a prior conviction for violating subsection (1) commits a felony

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of the third degree, punishable as provided in s. 775.082, s.

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775.083, or s. 775.084.

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     (4) A Any common carrier or permit carrier, or any operator

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of a privately owned car, truck, bus, or other conveyance found

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by the division to be in violation of subsection (2) as a result

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of a second or subsequent delivery from the same source and

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location, within a 2-year period after the first delivery shall

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be issued a notice, sent by certified mail, to show cause why a

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cease and desist order should not be issued. A Any person who

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violates subsection (2) within 2 years after receiving the cease

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and desist order or within 2 years after a prior conviction for

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violating subsection (2) commits a felony of the third degree,

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punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

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     (5) This section does not apply to the direct shipment of

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wine by a licensed winery shipper to a person 21 years of age or

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older for household consumption, the direct shipment of

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sacramental alcoholic beverages to bona fide religious

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organizations as authorized by the division, or to possession of

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alcoholic beverages in accordance with s. 562.15(2).

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     Section 5.  Subsection (2) of section 564.045, Florida

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Statutes, is amended to read:

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     564.045  Licensure as primary American source of supply.--

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     (2)  TAX CONTROL LICENSURE REQUIRED.--For purposes of tax

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revenue control, a no person, firm, corporation, or other entity

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that which is the primary American source of supply as defined

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herein may not sell, offer for sale, accept orders for the sale

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of, ship, or cause to be shipped into this state any vinous

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beverages to any distributor, or importer, or person for

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household consumption, as provided in s. 561.222, within this the

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state without having first obtained licensure as a primary

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American source of supply on forms provided by, and in such

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manner as prescribed by, the division. Except for applicants for

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a winery shipper's license, applicants for licensure as a primary

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American source of supply are shall be exempt from the

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requirements and qualification standards set forth in ss. 561.15

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and 561.17.

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     Section 6.  Paragraph (a) of subsection (1) of section

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599.004, Florida Statutes, is amended to read:

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     599.004  Florida Farm Winery Program; registration; logo;

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fees.--

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     (1)  The Florida Farm Winery Program is established within

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the Department of Agriculture and Consumer Services. Under this

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program, a winery may qualify as a tourist attraction only if it

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is registered with and certified by the department as a Florida

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Farm Winery. A winery may not claim to be certified unless it has

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received written approval from the department.

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     (a)  To qualify as a certified Florida Farm Winery, a winery

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must shall meet the following standards:

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     1.  Produce or sell less than 250,000 gallons of wine

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annually of which 60 percent of the wine produced is made from

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state agricultural products. The Commissioner of Agriculture may

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waive this requirement in times of hardship.

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     2.  Maintain a minimum of 10 acres of owned or managed

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vineyards in this state Florida.

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     3.  Be open to the public for tours, tastings, and sales at

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least 30 hours each week.

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     4.  Make annual application to the department for

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recognition as a Florida Farm Winery, on forms provided by the

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department.

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     5.  Pay an annual application and registration fee of $100.

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     Section 7.  This act shall take effect July 1, 2008.