HB 693

1
A bill to be entitled
2An act relating to the Beverage Law; creating s. 561.585,
3F.S.; authorizing certain direct shipments of wine;
4requiring licensure of winery shippers; providing
5requirements for licensure; providing prohibitions;
6requiring that a winery shipper licensee file a surety
7bond with the Division of Alcoholic Beverages and Tobacco
8of the Department of Business and Professional Regulation;
9requiring that each container of wine shipped directly be
10labeled with a notice; providing signature and
11identification requirements; providing limitations on the
12amount of wine a winery shipper may ship or cause to be
13shipped; limiting the size of wine containers; limiting
14the amount of wine a purchaser can purchase or cause to be
15shipped; providing age requirements for those purchasing
16wine for direct shipment or receiving direct shipments of
17wine; providing a defense to certain actions; requiring
18monthly reports by winery shipper licensees; requiring the
19collection, remittance, and payment of certain taxes by
20direct shippers; requiring certain proceeds from
21discretionary sales surtaxes to be deposited into an
22account in the Discretionary Sales Surtax Clearing Trust
23Fund; requiring that winery shippers maintain certain
24records for a certain time period; providing for
25jurisdiction; providing penalties; amending s. 561.14,
26F.S.; classifying the winery shipper license; amending s.
27561.54, F.S.; removing a provision requiring that the
28licensee be aggrieved by a violation involving prohibited
29delivery from without the state to have standing to bring
30an action; exempting from such prohibition shipment of
31wine by a winery shipper licensee; amending s. 561.545,
32F.S.; exempting applicability of the prohibition against
33direct shipment of alcoholic beverages to the shipment of
34wine by a winery shipper licensee; amending s. 561.57,
35F.S.; providing that Internet orders shall be construed as
36telephone orders; exempting common carriers, licensees, or
37licensees utilizing common carriers as their agents from
38certain report filing requirements; requiring common
39carriers to verify the age of persons receiving shipments;
40providing a defense to certain actions; providing criteria
41for the defense; amending s. 599.004, F.S.; revising
42qualifications for the certification of Florida Farm
43Wineries; amending s. 561.24, F.S.; revising an effective
44date; authorizing certain manufacturers of wine holding a
45distributor's license to renew such license; removing
46exemption of Florida Farm Wineries from prohibition
47against manufacturer being licensed as distributor or
48registered as exporter; providing for severability;
49providing for nonimpairment of contracts; providing for
50rulemaking authority; authorizing additional positions;
51providing appropriations; providing an effective date.
52
53Be It Enacted by the Legislature of the State of Florida:
54
55     Section 1.  Section 561.585, Florida Statutes, is created
56to read:
57     561.585  Direct shipment of wine for personal
58consumption.--
59     (1)  WINERY SHIPPER LICENSURE REQUIREMENTS.--
60     (a)  Wineries may not ship or cause to be shipped any wine
61to individual consumers in this state unless licensed under this
62section. Notwithstanding any provision of the Beverage Law or
63any rule to the contrary, a person, firm, corporation, or other
64entity that is licensed as a winery shipper under this section
65may ship wine directly to any person who is at least 21 years of
66age for personal use only and not for resale. To obtain or renew
67a winery shipper's license, an applicant must:
68     1.  File an application with the division on forms
69prescribed by the division.
70     2.  Qualify for licensure under ss. 561.15 and 561.17 or
71provide a true copy of a certification from the alcoholic
72beverage licensing authority of the Federal Government, or the
73state in which the winery is located, with license
74qualifications and procedures for that winery license that
75include, at a minimum, the following components:
76     a.  Fingerprinting of applicants.
77     b.  Disqualification for applicants under 21 years of age.
78     c.  Disqualification for applicants convicted of the
79following:
80     (I)  Within the past 5 years, any violation of the beverage
81laws of this state, the United States, or any other state;
82     (II)  Within the past 15 years, any felony in this state or
83any other state of the United States; or
84     (III)  Any criminal violation of the controlled substance
85act of this state, the United States, or any other state.
86     3.  Obtain and maintain a current license as a primary
87American source of supply as provided in s. 564.045.
88     4.  Provide to the division a true copy of its current wine
89manufacturer's license issued by this state or another state and
90a true copy of its current federal basic permit as a wine
91producer issued in accordance with the Federal Alcohol
92Administration Act.
93     5.  Pay an annual license fee in the amount of $250.
94     6.  File with the division a surety bond acceptable to the
95division in the sum of $5,000 as surety for the payment of all
96taxes, provided that when, at the discretion of the division,
97the amount of business done by the winery shipper licensee is
98such volume that a bond of less than $5,000 will be adequate,
99the division may accept a bond in a lesser sum but not less than
100$1,000. The surety bond currently on file with the division for
101a winery pursuant to s. 561.37 is deemed to comply with this
102requirement. Upon written request of the winery shipper, the
103division shall review the total tax liability to the state by
104the winery shipper and reduce the bond to 110 percent of the
105prior year's total tax liability as a licensee under this
106section but not less than $1,000.
107     7.  Sell no more than 250,000 gallons of wine per licensed
108premises per year.
109     (b)  Applicants under this section may obtain a temporary
110initial license as authorized in s. 561.181.
111     (c)  Winery shipper licensees may not ship or cause to be
112shipped more than 18 cases of wine per calendar year per
113household. For purposes of this section, a case is defined as a
114container or containers that contain no more than 9,000
115milliliters of wine.
116     (d)  Licensees shall comply with s. 564.05, which limits
117the size of wine containers.
118     (e)  Purchasers may not purchase or cause to be shipped
119more than 18 cases of wine per calendar year per household.
120     (f)  Each winery shipper licensee must verify the
121purchaser's age at the point of purchase before completing any
122transaction and must refuse sale of wine to any person under 21
123years of age. Verification methods for purposes of this
124paragraph must include receiving a copy, electronic or
125otherwise, of a purchaser's driver's license or other acceptable
126identification methods approved by the division. An alternative
127verification method that may be used by the winery shippers
128shall include asking and recording all purchasers' names, ages,
129and dates of birth. Such recordings shall be kept for a minimum
130of 3 years. Purchasers shall further be advised that they must
131show the person making the delivery one of the acceptable
132identification cards in subsection (3) prior to delivery.
133     (g)  The division may not issue or renew a license under
134this section if the applicant or licensee is owned by a winery
135that sells more than 250,000 gallons of wine annually per
136licensed premises.
137     (2)  LABEL.--Each winery shipper licensee shall ensure that
138the outside shipping label on each package is conspicuous and
139includes the following components:
140     (a)  This package contains alcohol.
141     (b)  An adult signature is required.
142     (c)  The recipient must be at least 21 years of age.
143     (3)  SIGNATURE.--
144     (a)  Each winery shipper licensee and common carrier shall
145require, prior to delivery, that the signature of the addressee
146or other person at least 21 years of age is obtained after
147presentation of a valid driver's license, an identification card
148issued under the provisions of s. 322.051, or, if the person is
149physically handicapped, a comparable identification card issued
150by another state which indicates the person's age, a passport,
151or a United States Uniformed Services identification card.
152     (b)  A winery shipper licensee or common carrier who
153violates this subsection shall have a complete defense to any
154civil action therefor, except for any administrative action by
155the division, if, at the time the alcoholic beverage was sold,
156given, delivered, or transferred, the person falsely evidenced
157that he or she was of legal age to purchase or consume the
158alcoholic beverage and the appearance of the person was such
159that an ordinarily prudent person would believe him or her to be
160of legal age to purchase or consume the alcoholic beverage and
161if the winery shipper licensee or common carrier acted in good
162faith and in reliance upon the representation and appearance of
163the person in the belief that he or she was of legal age to
164purchase or consume the alcoholic beverage and carefully checked
165one of the following forms of identification with respect to the
166person: a valid driver's license, an identification card issued
167under the provisions of s. 322.051, or, if the person is
168physically handicapped, a comparable identification card issued
169by another state which indicates the person's age, a passport,
170or a United States Uniformed Services identification card.
171     (4)  MONTHLY REPORT.--
172     (a)  Each winery shipper licensee shall report monthly to
173the division on forms prescribed by the division:
174     1.  Whether any wine product was shipped into or within
175this state under this section during the preceding month.
176     2.  The total amount of wine shipped into or within this
177state under this section during the preceding month.
178     3.  The quantity and types of wine shipped into or within
179this state under this section during the preceding month.
180     4.  The amount of excise tax paid to the division for
181shipments of wine into or within this state under this section
182during the preceding month.
183     (b)  The report required by this subsection is not required
184from a winery shipper licensee who files a monthly report
185pursuant to s. 561.55 that contains all the information required
186in paragraph (a). The division is authorized to prescribe the
187format for submission of this information in order that
188duplicate filings are eliminated.
189     (5)  TAXES.--
190     (a)  Each winery shipper licensee shall collect and remit
191monthly to the Department of Revenue all sales taxes and pay to
192the division all excise taxes due on sales to persons in this
193state for the preceding month. Notwithstanding s. 212.0596, the
194amount of such taxes shall be calculated as if the sale took
195place at the location where the delivery occurred in this state.
196The proceeds of the discretionary sales surtaxes imposed under
197s. 212.055 shall be deposited into an account in the
198Discretionary Sales Surtax Clearing Trust Fund described in s.
199212.054(4)(c) and distributed as provided therein.
200     (b)  Each winery shipper licensee shall maintain for at
201least 3 years after the date of delivery records of its
202shipments into or within this state pursuant to this section,
203including the names, addresses, amounts, and dates of all
204shipments to persons in this state, and shall allow the
205Department of Revenue or the division, upon request, to perform
206an audit of such records.
207     (c)  The cost of performing an audit under paragraph (b)
208shall be assigned to the agency requesting the audit unless the
209winery shipper licensee is found to be in material violation of
210this subsection, in which case the cost of the audit shall be
211assigned to the licensee.
212     (6)  JURISDICTION.--Each winery shipper licensee is deemed
213to have consented to the jurisdiction of the division or any
214other state agency or local law enforcement agency and the
215courts of this state concerning enforcement of this section and
216any related laws or rules.
217     (7)  PENALTIES.--
218     (a)  In addition to any other penalty provided in the
219Beverage Law, the division may suspend or revoke a winery
220shipper license or impose fines on the winery shipper licensee
221in an amount not to exceed $1,000 per violation for any
222violation of this section.
223     (b)  A winery shipper licensee that knowingly and
224intentionally ships, or causes to be shipped, wine to any person
225in this state who is under 21 years of age commits a felony of
226the third degree, punishable as provided in s. 775.082, s.
227775.083, or s. 775.084.
228     (c)  Any common carrier, permit carrier, or other
229commercial conveyance that knowingly and intentionally delivers
230wine directly to any person in this state who is under 21 years
231of age commits a misdemeanor of the second degree, punishable as
232provided in s. 775.082 or s. 775.083.
233     (d)  A person who knowingly and intentionally obtains wine
234from a winery shipper licensee in violation of this section
235commits a misdemeanor of the second degree, punishable as
236provided in s. 775.082 or s. 775.083.
237     Section 2.  Subsection (8) is added to section 561.14,
238Florida Statutes, to read:
239     561.14  License and registration classification.--Licenses
240and registrations referred to in the Beverage Law shall be
241classified as follows:
242     (8)  Wineries licensed as winery shippers under s. 561.585.
243     Section 3.  Section 561.54, Florida Statutes, is amended to
244read:
245     561.54  Certain deliveries of beverages prohibited.--
246     (1)  It is unlawful for common or permit carriers,
247operators of privately owned cars, trucks, buses, or other
248conveyances or out-of-state manufacturers or suppliers to make
249delivery from without the state of any alcoholic beverage to any
250person, association of persons, or corporation within the state,
251except to qualified manufacturers, distributors, and exporters
252of such beverages so delivered and to qualified bonded
253warehouses in this state.
254     (2)  Any licensee aggrieved by a violation of this section
255may bring an action in any court of competent jurisdiction to
256recover for the state all moneys obtained by common carriers or
257permit carriers; obtained by operators of privately owned cars,
258trucks, buses, or other conveyances; or obtained by out-of-state
259manufacturers or suppliers as a result of the delivery of
260alcoholic beverages in violation of this section, and may obtain
261a declaratory judgment that an act or practice violates this
262section and enjoin any person from violating this section. In
263addition to such relief, the court may order the confiscation
264and destruction of any alcoholic beverages delivered in
265violation of this section. In assessing damages, the court shall
266enter judgment against a defendant for three times the amount of
267the delivery charges proved or the fair market value of
268merchandise unlawfully brought into the state. Payment or
269satisfaction of any judgment under this section, other than for
270costs and attorney's fees, shall be made in its entirety to the
271state. In any successful action under this section, the court
272shall award the plaintiff costs and reasonable attorney's fees.
273     (3)  This section does not apply to the shipment of wine by
274a winery shipper licensee to a person who is at least 21 years
275of age in accordance with s. 561.585.
276     Section 4.  Section 561.545, Florida Statutes, is amended
277to read:
278     561.545  Certain shipments of beverages prohibited;
279penalties; exceptions.--The Legislature finds that the direct
280shipment of alcoholic beverages by persons in the business of
281selling alcoholic beverages to residents of this state in
282violation of the Beverage Law poses a serious threat to the
283public health, safety, and welfare; to state revenue
284collections; and to the economy of the state. The Legislature
285further finds that the penalties for illegal direct shipment of
286alcoholic beverages to residents of this state should be made
287adequate to ensure compliance with the Beverage Law and that the
288measures provided for in this section are fully consistent with
289the powers conferred upon the state by the Twenty-first
290Amendment to the United States Constitution.
291     (1)  Any person in the business of selling alcoholic
292beverages who knowingly and intentionally ships, or causes to be
293shipped, any alcoholic beverage from an out-of-state location
294directly to any person in this state who does not hold a valid
295manufacturer's or wholesaler's license or exporter's
296registration issued by the Division of Alcoholic Beverages and
297Tobacco or who is not a state-bonded warehouse is in violation
298of this section.
299     (2)  Any common carrier or permit carrier or any operator
300of a privately owned car, truck, bus, or other conveyance who
301knowingly and intentionally transports any alcoholic beverage
302from an out-of-state location directly to any person in this
303state who does not hold a valid manufacturer's or wholesaler's
304license or exporter's registration or who is not a state-bonded
305warehouse is in violation of this section.
306     (3)  Any person found by the division to be in violation of
307subsection (1) shall be issued a notice, by certified mail, to
308show cause why a cease and desist order should not be issued.
309Any person who violates subsection (1) within 2 years after
310receiving a cease and desist order or within 2 years after a
311prior conviction for violating subsection (1) commits a felony
312of the third degree, punishable as provided in s. 775.082, s.
313775.083, or s. 775.084.
314     (4)  Any common carrier or permit carrier, or any operator
315of a privately owned car, truck, bus, or other conveyance found
316by the division to be in violation of subsection (2) as a result
317of a second or subsequent delivery from the same source and
318location, within a 2-year period after the first delivery shall
319be issued a notice, by certified mail, to show cause why a cease
320and desist order should not be issued. Any person who violates
321subsection (2) within 2 years after receiving the cease and
322desist order or within 2 years after a prior conviction for
323violating subsection (2) commits a felony of the third degree,
324punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
325     (5)  This section does not apply to:
326     (a)  The direct shipment of sacramental alcoholic beverages
327to bona fide religious organizations as authorized by the
328division;
329     (b)  The or to possession of alcoholic beverages in
330accordance with s. 562.15(2); or
331     (c)  The shipment of wine in accordance with s. 561.585.
332     Section 5.  Subsections (1) and (6) of section 561.57,
333Florida Statutes, are amended to read:
334     561.57  Deliveries by licensees.--
335     (1)  Vendors shall be permitted to make deliveries away
336from their places of business of sales actually made at the
337licensed place of business; provided, telephone or mail orders
338received at vendor's licensed place of business shall be
339construed as a sale actually made at the vendor's licensed place
340of business. For purposes of this section, Internet orders shall
341be construed as telephone orders.
342     (6)  Common carriers are not required to have vehicle
343permits to transport alcoholic beverages. Nothing in this
344section shall prohibit any licensee from utilizing a common
345carrier as his or her agent to make deliveries of alcoholic
346beverages within the state. Deliveries of alcoholic beverages by
347licensees or common carriers utilized by licensees under this
348section are exempt from the report filing requirements in s.
349562.20. All common carriers making deliveries under this section
350shall verify that any person receiving alcoholic beverages is at
351least 21 years of age upon the delivery of such alcoholic
352beverages, as prescribed in division rules. Compliance with the
353prescribed age verification measures in s. 561.585(3) shall give
354the common carrier and the licensee a complete defense to any
355civil action thereof, except for any administrative action by
356the division, if, at the time the alcoholic beverage was sold,
357given, delivered, or transferred, the person falsely evidenced
358that he or she was of legal age to purchase or consume the
359alcoholic beverage and the appearance of the person was such
360that an ordinarily prudent person would believe him or her to be
361of legal age to purchase or consume the alcoholic beverage and
362if the licensee or common carrier acted in good faith and in
363reliance upon the representation and appearance of the person in
364the belief that he or she was of legal age to purchase or
365consume the alcoholic beverage and carefully checked one of the
366following forms of identification with respect to the person: a
367valid driver's license, an identification card issued under the
368provisions of s. 322.051, or, if the person is physically
369handicapped, a comparable identification card issued by another
370state which indicates the person's age, a passport, or a United
371States Uniformed Services identification card.
372     Section 6.  Subsection (1) of section 599.004, Florida
373Statutes, is amended to read:
374     599.004  Florida Farm Winery Program; registration; logo;
375fees.--
376     (1)  The Florida Farm Winery Program is established within
377the Department of Agriculture and Consumer Services. Under this
378program, a winery may qualify as a tourist attraction only if it
379is registered with and certified by the department as a Florida
380Farm Winery. A winery may not claim to be certified unless it
381has received written approval from the department.
382     (a)  To qualify as a certified Florida Farm Winery, a
383winery shall meet the following standards:
384     1.  Produce or Sell less than 250,000 gallons of wine
385annually of which at least 60 percent must be made from
386agricultural products produced in this state. The Commissioner
387of Agriculture may waive this requirement in times of hardship.
388     2.  Maintain a minimum of 10 acres of owned or managed
389vineyards in Florida.
390     3.  Be open to the public for tours, tastings, and sales at
391least 30 hours each week.
392     4.  Make annual application to the department for
393recognition as a Florida Farm Winery, on forms provided by the
394department.
395     5.  Pay an annual application and registration fee of $100.
396     (b)  To maintain certification and recognition as a Florida
397Farm Winery, a winery must comply with the qualifications
398provided in this section. The Commissioner of Agriculture is
399authorized to officially recognize a certified Florida Farm
400Winery as a state tourist attraction.
401     Section 7.  Subsection (5) of section 561.24, Florida
402Statutes, is amended to read:
403     561.24  Licensing manufacturers as distributors or
404registered exporters prohibited; procedure for issuance and
405renewal of distributors' licenses and exporters'
406registrations.--
407     (5)  Notwithstanding any of the provisions of the foregoing
408subsections, any corporation which holds a license as a
409distributor on June 3, 1947, shall be entitled to a renewal
410thereof, provided such corporation complies with all of the
411provisions of the Beverage Law of Florida, as amended, and of
412this section and establishes by satisfactory evidence to the
413division that, during the 6-month period next preceding its
414application for such renewal, of the total volume of its sales
415of spirituous liquors, in either dollars or quantity, not more
416than 40 percent of such spirituous liquors sold by it, in either
417dollars or quantity, were manufactured, rectified, or distilled
418by any corporation with which the applicant is affiliated,
419directly or indirectly, including any corporation which owns or
420controls in any way any stock in the applicant corporation or
421any corporation which is a subsidiary or affiliate of the
422corporation so owning stock in the applicant corporation. Any
423manufacturer of wine holding a license as a distributor on July
4241, 2008, the effective date of this act shall be entitled to a
425renewal of such license notwithstanding the provisions of
426subsections (1)-(5). This section does not apply to any winery
427qualifying as a certified Florida Farm Winery under s. 599.004.
428     Section 8.  Should any portion of this act be held
429unconstitutional, it is the intent of the Legislature that the
430courts disturb only as much of the regulatory system of this
431state as is necessary to enforce the United States Constitution.
432     Section 9.  Notwithstanding the provisions of s. 561.585,
433Florida Statutes, contracts not otherwise prohibited by the
434Beverage Law shall not be impaired.
435     Section 10.  The Division of Alcoholic Beverages and
436Tobacco of the Department of Business and Professional
437Regulation and the Department of Revenue may adopt rules
438pursuant to ss. 120.536(1) and 120.54, Florida Statutes, to
439implement and administer this act.
440     Section 11.  For fiscal year 2008-2009, six full-time
441equivalent positions and $164,577 in associated salary rate are
442authorized, and the sums of $332,422 in recurring funds and
443$59,664 in nonrecurring funds from the Alcoholic Beverage and
444Tobacco Trust Fund of the Department of Business and
445Professional Regulation are hereby appropriated for the purpose
446of carrying out the regulatory activities provided in this act.
447In addition, for fiscal year 2008-2009, two full-time equivalent
448positions, with associated salary rate of $106,106, are
449authorized, and the sums of $212,165 in recurring funds and
450$11,901 in nonrecurring funds from the Administrative Trust Fund
451of the Department of Business and Professional Regulation are
452hereby appropriated for the purpose of carrying out the central-
453service administrative support functions related to the
454regulatory activities provided in this act.
455     Section 12.  This act shall take effect upon becoming a
456law.


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