Florida Senate - 2008 CS for SB 1096

By the Committee on Finance and Tax; and Senators Margolis, Lynn, Haridopolos and Bennett

593-05941-08 20081096c1

A bill to be entitled

An act relating to the production and shipment of wine;

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

of wine into and within this state for personal

consumption only; providing legislative intent; requiring

licensure of winery shippers by the Division of Alcoholic

Beverages and Tobacco; providing license requirements;

requiring recipients of a direct shipment of wine to be 21

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

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

report, and recordkeeping by winery shippers; providing

requirements for common carriers that make deliveries of

wine; providing administrative and criminal penalties for

violations of the act; authorizing the division and the

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

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

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

revising requirements for qualifying as a certified

Florida Farm Winery; providing for severability; providing

an effective date.

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

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

read:

561.222 Winery shipper's license.--

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

importation, distribution, and sale of alcoholic beverages

require strict regulation in order to promote temperance by

discouraging consumption by underage persons and abusive

consumption by adults, to ensure orderly markets having

transparent and accountable sales, and to facilitate the

collection of excise and sales taxes critical to the fiscal

health of the state. The Legislature finds that these purposes

are best achieved through the state's comprehensive system of

licensing and regulation, including the three-tier system of

alcohol distribution which has been the law of this state since

the repeal of Prohibition. The Legislature finds that the

limitations contained in this section for the uniform regulation

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

wineries are the least discriminatory means of protecting the

public and state revenues. The Legislature continues to maintain

its interest in having the state exercise its police power,

ensure enforcement of the beverage laws, and thereby regulate the

transportation, importation, distribution, and sale of alcoholic

beverages to the maximum extent allowed by the state and federal

constitutions. The Legislature reaffirms its policy prohibiting

manufacturers from causing the direct shipment of beer and

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

preserve against constitutional challenge all of the laws of this

state relating to alcoholic beverages.

(2) LICENSE REQUIREMENTS.--

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

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

wine within this state or any other state who manufactures no

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

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

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

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

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

by:

1. Holding a current wine producer basic permit issued in

accordance with the Federal Alcohol Administration Act.

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

state in which it manufactures wine.

3. Holding a current license as a primary American source

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

division all brands shipped.

4. Meeting the qualifications for licensure under s.

561.15.

5. Filing an application with the division in accordance

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

application must be the same as the information required by the

division for licensure as a wine manufacturer. The applicant

shall also include with the application:

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

issued in accordance with the Federal Alcohol Administration Act.

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

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

state for the acceptance of service of process. Winery shippers

must maintain an appointed registered agent and must notify the

division of a change in appointment.

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

issued by the Department of Revenue. An applicant must register

and maintain a current sales tax registration with the department

as a collector and remitter of state sales tax.

e. An affirmation that the applicant consents to the

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

enforcement of this section and any related laws or rules,

including actions by third parties for violations of this

section.

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

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

determines that the volume of business done by the manufacturer

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

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

surety bond currently on file with the division for a winery

pursuant to s. 561.37 is deemed to comply with this requirement.

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 the applicant's

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contract with the applicant's appointed distributor showing terms

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to the contrary or a copy of a written notice sent to the

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distributor of the applicant's intent to obtain a winery

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shipper's license 1 year before applying for such license under

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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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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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unless its contract with its appointed distributor contains terms

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to the contrary.

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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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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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(f) The report required by this subsection is not required

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from a winery shipper licensee who files a monthly report

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pursuant to s. 561.55 containing all information required in

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paragraph (a). The division is authorized to prescribe the format

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for submission of this information for the purpose of eliminating

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duplicate filings.

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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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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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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 of the provisions of the foregoing

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subsections, any corporation which holds a license as a

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distributor on June 3, 1947, shall be entitled to a renewal

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thereof, provided such corporation complies with all of the

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provisions of the Beverage Law of Florida, as amended, and of

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this section and establishes by satisfactory evidence to the

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division that, during the 6-month period next preceding its

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application for such renewal, of the total volume of its sales of

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spirituous liquors, in either dollars or quantity, not more than

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40 percent of such spirituous liquors sold by it, in either

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dollars or quantity, were manufactured, rectified, or distilled

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by any corporation with which the applicant is affiliated,

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directly or indirectly, including any corporation which owns or

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controls in any way any stock in the applicant corporation or any

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corporation which is a subsidiary or affiliate of the corporation

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so owning stock in the applicant corporation. Any manufacturer of

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wine holding a license as a distributor on July 1, 2008, the

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effective date of this act shall be entitled to a renewal of such

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license notwithstanding the provisions of subsections (1)-(5).

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This section does not apply to any winery qualifying as a

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certified Florida Farm Winery under 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

354

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. If any provision of this act or its application

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to any person or circumstance is held invalid, the invalidity

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does not affect other provisions or applications of the act which

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can be given effect without the invalid provision or application,

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and to this end the provisions of this act are severable.

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Section 8. This act shall take effect July 1, 2008.

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