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A bill to be entitled

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An act relating to the Beverage Law; creating s. 561.222,

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F.S.; authorizing the direct shipment of wine into this

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state for personal consumption; requiring licensure of

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winery shippers; providing eligibility requirements for

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licensure; requiring that recipients be at least 21 years

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of age; requiring proof of age and signature of recipient;

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requiring monthly reports by winery shippers; requiring

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payment of taxes by winery shippers; providing for

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jurisdiction; providing administrative and criminal

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penalties; amending ss. 561.24, 561.54, 561.545, 564.045,

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and 599.004, F.S., to conform to the provisions of s.

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561.222, F.S.; 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 shipments for personal consumption.--

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     (1) LEGISLATIVE INTENT.--It is the intent of the

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Legislature that this section apply only to the sale and

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distribution of wine produced by wineries that manufacture no

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more than 250,000 gallons of wine per year. The Legislature finds

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a rational basis for the limitations contained herein as the

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least discriminatory means of protecting the public and state

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revenues through equivalent regulation of farm wineries. It is

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the intent of the Legislature that the state continue to maintain

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and enforce laws regulating the importation, distribution, and

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sale of alcoholic beverages. The Legislature finds that the

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importation, distribution, and sale of alcoholic beverages

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require strict regulation of orderly markets with transparent and

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accountable distribution and sale to promote temperance by

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discouraging consumption by underage persons and abusive

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consumption by adults and by the collection of excise and sales

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taxes critical to the fiscal health of the state. The Legislature

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finds that this is best achieved by a comprehensive system of

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licensed and regulated importation into and distribution and sale

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within the state, including the three-tier system. The

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Legislature continues to maintain its interest in the state

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exercising its proper police power, ensuring enforcement of the

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Beverage Law, and regulating the transportation, importation,

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distribution, and sale of alcoholic beverages to the maximum

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extent allowed by the State and United States Constitutions. The

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Legislature reaffirms its intent that the direct shipment of beer

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and spirits to residents of this state remains prohibited and

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reaffirms its intent to uphold and preserve the laws of this

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state relating to alcoholic beverages against constitutional

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challenges.

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     (2) LICENSURE REQUIREMENTS.--

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     (a) Notwithstanding any provision of law to the contrary, a

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wine manufacturer in any state who holds a wine producer basic

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permit issued pursuant to the Federal Alcohol Administration Act

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and a current wine manufacturer's license from the state in which

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it is domiciled and who manufactures no more than 250,000 gallons

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of wine per year may ship those wines to a resident of this state

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who is at least 21 years of age for that resident's personal use

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and not for resale, upon obtaining a winery shipper license from

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the division. To obtain a winery shipper license, an applicant

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must file the following with the division:

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     1. An application on forms prescribed by the division

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pursuant to s. 561.17, providing information that is identical to

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the information required for licensure as a wine manufacturer in

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this state, a copy of its current basic permit as a wine producer

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issued under the Federal Alcohol Administration Act, and a copy

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of a current license to manufacture wine from the state in which

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it is domiciled;

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     2. Evidence that it qualifies for licensure under s.

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561.15;

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     3. An affirmation that it consents to the jurisdiction of

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the courts and agencies of this state for enforcement of the

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Beverage Law, including actions by third parties for violations

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of this section;

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     4. A copy of its appointment of a registered agent in this

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state for acceptance of service of process. It must also notify

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the division upon a change in registered agents;

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     5. Evidence that it has registered all brands shipped and

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has obtained licensure as a primary American source of supply

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pursuant to s. 564.045;

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     6. Evidence of a $5,000 surety bond acceptable to the

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division as surety for the payment of all taxes. However, if the

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division determines a smaller bond is adequate, based on the

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volume of business done by the applicant, it may accept a bond in

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a lesser amount, but not less than $1,000;

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     7. A copy of its registration number from the Department of

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Revenue as a collector and remitter of state sales tax and

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evidence that its registration is current; and

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     8. A license fee of $250. The license must be renewed

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before August 1 of each year by paying a renewal fee of $250.

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

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applicant or licensee who:

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     1. Has violated the provisions of this section;

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

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     3. Has subsidiary or affiliated wineries whose individual

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production totals are greater than 250,000 gallons 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 written notice to

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that distributor of its application as a winery shipper at least

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1 year before applying for a license.

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     (3) SHIPPING REQUIREMENTS AND LIMITATIONS.--

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     (a) Before shipping wine to a resident of this state, a

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winery shipper must:

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     1. Require the person to state that he or she is 21 years

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of age or older;

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     2. Conspicuously post a label on the outside of each wine

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box disclosing that the package contains alcohol, that the

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recipient must be at least 21 years of age, and that the

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signature of a person at least 21 years of age is required for

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delivery; and

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     3. Ship no more than 15 cases or 9 liters each of wine per

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calendar year to any household address in this state.

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     (b) Each winery shipper and common carrier must require,

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prior to delivery, that the signature of the addressee or another

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person at least 21 years of age is obtained after presentation of

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a valid driver's license, state-issued identification card,

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passport, or United States armed services identification card.

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     (c) Each common carrier shall provide, before delivering

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wine, a written policy to that winery that the common carrier

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will obtain the information required by paragraph (b). The

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signature form must inform the recipient that his or her

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signature acknowledges that the wine is for personal or household

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use and is not for resale.

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     (d) Each winery shipper shall also offer the brands of wine

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shipped under this section to licensed distributors in the same

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quantities per calendar year as are direct shipped.

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     (4) TAXES.--

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     (a) Each winery shipper shall monthly pay all sales taxes

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to the Department of Revenue, and to the division all state

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

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preceding month. The taxes shall be calculated as if the sales

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took place in this state.

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     (b) Each winery shipper shall maintain records of its

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direct shipments to this state, including the names, addresses,

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amounts, and dates of shipments for at least 3 years after the

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date of delivery, and shall allow the Department of Revenue or

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the division, upon request, to audit such records, not to exceed

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the frequency of audits of licensees of the Beverage Law

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generally, but no less than once per year. The winery shipper

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shall furnish any documents within 30 days after a request is

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made.

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     (5) MONTHLY REPORT.--All winery shippers shall report to

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the division, by the 10th of each month, on division forms:

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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 total price of any wine shipped;

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     (c) The quantity and brands of wine shipped;

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

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shipments; and

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     (e) Any other information that the division requires.

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     (6) RECORDKEEPING.--All winery shippers must maintain the

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following records, electronic 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:

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     (a) A license issued under this section;

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

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residents of this state and the names, addresses, and date of

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birth of the buyers, as well as the quantities and brands of wine

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shipped and the name of the common carrier for each shipment; and

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     (c) Any contracts with common carriers and the adult

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signature delivery policy of such common carriers.

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     (7) COMMON CARRIERS.--Common carriers making deliveries

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under this section shall:

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     (a) Register with the division and acknowledge their intent

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to deliver wines and acknowledge the requirements for delivery of

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such shipments;

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     (b) Refuse to deliver a shipment if the recipient appears

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to be under 21 years of age and does not present valid

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identification required by this section; and

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     (c) Obtain the recipient's address, signature, and

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acknowledgement of personal consumption for each delivery,

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maintain such records for 3 years, and have them available for

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inspection upon request by the division.

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     (8) PENALTIES.--The Department of Revenue shall enforce the

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collection of sales tax under this section. The division shall

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enforce the other requirements of this section. In addition to

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the penalties provided by s. 561.545, knowingly or intentionally

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shipping or delivering wine to a person under 21 years of age is

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a third-degree felony, punishable as provided in s. 775.082, s.

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775.083, or s. 775.084. The division may suspend or revoke the

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license of or impose a fine against a winery shipper for any

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violation of this section. If the division has reasonable cause

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to believe that a winery shipper has violated this section, the

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division may issue a cease and desist order requiring the winery

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shipper to cease shipments. The division may impose a civil

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penalty of not more than $50,000 against a winery shipper who

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knowingly violates a cease and desist order.

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

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may adopt rules to administer 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 the effective date of

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this act shall be entitled to a renewal of such license

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

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division may not issue a winery shipper license to a manufacturer

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who is licensed as a distributor or vendor in any state. This

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section does not apply to any winery qualifying as a certified

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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 to make delivery from

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without the state of any alcoholic beverage to any person,

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association of persons, or corporation within the state, except

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to qualified manufacturers, distributors, and exporters of such

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beverages so delivered and to qualified bonded warehouses in this

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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

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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

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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 shipment of wine by

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a licensed winery shipper to a person 21 years of age or older or

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a vendor licensed to sell alcoholic beverages for resale in

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accordance with s. 561.222.

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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 malt or spirituous alcoholic beverages by persons in

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the business of selling malt or spirituous alcoholic beverages to

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residents of this state in violation of the Beverage Law poses a

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serious threat to the public health, safety, and welfare; to

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state revenue collections; and to the economy of the state. The

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Legislature further finds that the penalties for illegal direct

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shipment of malt or spirituous alcoholic beverages to residents

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of this state should be made adequate to ensure compliance with

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the Beverage Law and that the measures provided for in this

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section are fully consistent with the powers conferred upon the

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state by the Twenty-first Amendment to the United States

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Constitution.

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     (1) Any person in the business of selling malt or

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spirituous alcoholic beverages who knowingly and intentionally

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ships, or causes to be shipped, any malt or spirituous alcoholic

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

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

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wholesaler's license or exporter's registration issued by the

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Division of Alcoholic Beverages and Tobacco or who is not a

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state-bonded warehouse is in violation of this section.

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

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

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knowingly and intentionally transports any malt or spirituous

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alcoholic beverage from an out-of-state location directly to any

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person in this state who does not hold a valid manufacturer's or

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wholesaler's license or exporter's registration or who is not a

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state-bonded warehouse is in violation of this section.

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

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subsection (1) shall be issued a notice, by certified mail, to

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show cause why a cease and desist order should not be issued. Any

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person who violates subsection (1) within 2 years after receiving

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

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conviction for violating subsection (1) commits a felony of the

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third degree, punishable as provided in s. 775.082, s. 775.083,

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or s. 775.084.

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     (4)  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, by certified mail, to show cause why a cease

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and desist order should not be issued. Any person who violates

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

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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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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 sale,

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

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to any distributor, or importer, or resident for household

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consumption under s. 561.222 within the state without having

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first obtained licensure as a primary American source of supply

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on forms provided by, and in such manner as prescribed by, the

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division. Applicants for licensure as a primary American source

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of supply are shall be exempt from the requirements and

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qualification standards set forth in ss. 561.15 and 561.17,

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except applicants for winery shipper licenses under s. 561.222.

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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

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has 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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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 must be made

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from agricultural products produced in this state. The

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Commissioner of Agriculture may waive this requirement in times

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of hardship.

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

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vineyards in 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.