1 | A bill to be entitled |
2 | An act relating to the Beverage Law; creating s. 561.585, |
3 | F.S.; authorizing certain direct shipments of wine; |
4 | requiring licensure of winery shippers; providing |
5 | requirements for licensure; providing prohibitions; |
6 | requiring that a winery shipper licensee file a surety |
7 | bond with the Division of Alcoholic Beverages and Tobacco |
8 | of the Department of Business and Professional Regulation; |
9 | requiring that each container of wine shipped directly be |
10 | labeled with a notice; providing signature and |
11 | identification requirements; providing limitations on the |
12 | amount of wine a winery shipper may ship or cause to be |
13 | shipped; limiting the size of wine containers; limiting |
14 | the amount of wine a purchaser can purchase or cause to be |
15 | shipped; providing age requirements for those purchasing |
16 | wine for direct shipment or receiving direct shipments of |
17 | wine; providing a defense to certain actions; requiring |
18 | monthly reports by winery shipper licensees; requiring the |
19 | collection, remittance, and payment of certain taxes by |
20 | direct shippers; requiring certain proceeds from |
21 | discretionary sales surtaxes to be deposited into an |
22 | account in the Discretionary Sales Surtax Clearing Trust |
23 | Fund; requiring that winery shippers maintain certain |
24 | records for a certain time period; providing for |
25 | jurisdiction; providing penalties; amending s. 561.14, |
26 | F.S.; classifying the winery shipper license; amending s. |
27 | 561.54, F.S.; removing a provision requiring that the |
28 | licensee be aggrieved by a violation involving prohibited |
29 | delivery from without the state to have standing to bring |
30 | an action; exempting from such prohibition shipment of |
31 | wine by a winery shipper licensee; amending s. 561.545, |
32 | F.S.; exempting applicability of the prohibition against |
33 | direct shipment of alcoholic beverages to the shipment of |
34 | wine by a winery shipper licensee; amending s. 561.57, |
35 | F.S.; providing that Internet orders shall be construed as |
36 | telephone orders; exempting common carriers, licensees, or |
37 | licensees utilizing common carriers as their agents from |
38 | certain report filing requirements; requiring common |
39 | carriers to verify the age of persons receiving shipments; |
40 | providing a defense to certain actions; providing criteria |
41 | for the defense; amending s. 599.004, F.S.; revising |
42 | qualifications for the certification of Florida Farm |
43 | Wineries; amending s. 561.24, F.S.; revising an effective |
44 | date; authorizing certain manufacturers of wine holding a |
45 | distributor's license to renew such license; removing |
46 | exemption of Florida Farm Wineries from prohibition |
47 | against manufacturer being licensed as distributor or |
48 | registered as exporter; providing for severability; |
49 | providing for nonimpairment of contracts; providing for |
50 | rulemaking authority; authorizing additional positions; |
51 | providing appropriations; providing an effective date. |
52 |
|
53 | Be It Enacted by the Legislature of the State of Florida: |
54 |
|
55 | Section 1. Section 561.585, Florida Statutes, is created |
56 | to read: |
57 | 561.585 Direct shipment of wine for personal |
58 | consumption.-- |
59 | (1) WINERY SHIPPER LICENSURE REQUIREMENTS.-- |
60 | (a) Wineries may not ship or cause to be shipped any wine |
61 | to individual consumers in this state unless licensed under this |
62 | section. Notwithstanding any provision of the Beverage Law or |
63 | any rule to the contrary, a person, firm, corporation, or other |
64 | entity that is licensed as a winery shipper under this section |
65 | may ship wine directly to any person who is at least 21 years of |
66 | age for personal use only and not for resale. To obtain or renew |
67 | a winery shipper's license, an applicant must: |
68 | 1. File an application with the division on forms |
69 | prescribed by the division. |
70 | 2. Qualify for licensure under ss. 561.15 and 561.17 or |
71 | provide a true copy of a certification from the alcoholic |
72 | beverage licensing authority of the Federal Government, or the |
73 | state in which the winery is located, with license |
74 | qualifications and procedures for that winery license that |
75 | include, 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 |
79 | following: |
80 | (I) Within the past 5 years, any violation of the beverage |
81 | laws of this state, the United States, or any other state; |
82 | (II) Within the past 15 years, any felony in this state or |
83 | any other state of the United States; or |
84 | (III) Any criminal violation of the controlled substance |
85 | act of this state, the United States, or any other state. |
86 | 3. Obtain and maintain a current license as a primary |
87 | American source of supply as provided in s. 564.045. |
88 | 4. Provide to the division a true copy of its current wine |
89 | manufacturer's license issued by this state or another state and |
90 | a true copy of its current federal basic permit as a wine |
91 | producer issued in accordance with the Federal Alcohol |
92 | Administration 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 |
95 | division in the sum of $5,000 as surety for the payment of all |
96 | taxes, provided that when, at the discretion of the division, |
97 | the amount of business done by the winery shipper licensee is |
98 | such volume that a bond of less than $5,000 will be adequate, |
99 | the 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 |
101 | a winery pursuant to s. 561.37 is deemed to comply with this |
102 | requirement. Upon written request of the winery shipper, the |
103 | division shall review the total tax liability to the state by |
104 | the winery shipper and reduce the bond to 110 percent of the |
105 | prior year's total tax liability as a licensee under this |
106 | section but not less than $1,000. |
107 | 7. Sell no more than 250,000 gallons of wine per licensed |
108 | premises per year. |
109 | (b) Applicants under this section may obtain a temporary |
110 | initial license as authorized in s. 561.181. |
111 | (c) Winery shipper licensees may not ship or cause to be |
112 | shipped more than 18 cases of wine per calendar year per |
113 | household. For purposes of this section, a case is defined as a |
114 | container or containers that contain no more than 9,000 |
115 | milliliters of wine. |
116 | (d) Licensees shall comply with s. 564.05, which limits |
117 | the size of wine containers. |
118 | (e) Purchasers may not purchase or cause to be shipped |
119 | more than 18 cases of wine per calendar year per household. |
120 | (f) Each winery shipper licensee must verify the |
121 | purchaser's age at the point of purchase before completing any |
122 | transaction and must refuse sale of wine to any person under 21 |
123 | years of age. Verification methods for purposes of this |
124 | paragraph must include receiving a copy, electronic or |
125 | otherwise, of a purchaser's driver's license or other acceptable |
126 | identification methods approved by the division. An alternative |
127 | verification method that may be used by the winery shippers |
128 | shall include asking and recording all purchasers' names, ages, |
129 | and dates of birth. Such recordings shall be kept for a minimum |
130 | of 3 years. Purchasers shall further be advised that they must |
131 | show the person making the delivery one of the acceptable |
132 | identification cards in subsection (3) prior to delivery. |
133 | (g) The division may not issue or renew a license under |
134 | this section if the applicant or licensee is owned by a winery |
135 | that sells more than 250,000 gallons of wine annually per |
136 | licensed premises. |
137 | (2) LABEL.--Each winery shipper licensee shall ensure that |
138 | the outside shipping label on each package is conspicuous and |
139 | includes 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 |
145 | require, prior to delivery, that the signature of the addressee |
146 | or other person at least 21 years of age is obtained after |
147 | presentation of a valid driver's license, an identification card |
148 | issued under the provisions of s. 322.051, or, if the person is |
149 | physically handicapped, a comparable identification card issued |
150 | by another state which indicates the person's age, a passport, |
151 | or a United States Uniformed Services identification card. |
152 | (b) A winery shipper licensee or common carrier who |
153 | violates this subsection shall have a complete defense to any |
154 | civil action therefor, except for any administrative action by |
155 | the division, if, at the time the alcoholic beverage was sold, |
156 | given, delivered, or transferred, the person falsely evidenced |
157 | that he or she was of legal age to purchase or consume the |
158 | alcoholic beverage and the appearance of the person was such |
159 | that an ordinarily prudent person would believe him or her to be |
160 | of legal age to purchase or consume the alcoholic beverage and |
161 | if the winery shipper licensee or common carrier acted in good |
162 | faith and in reliance upon the representation and appearance of |
163 | the person in the belief that he or she was of legal age to |
164 | purchase or consume the alcoholic beverage and carefully checked |
165 | one of the following forms of identification with respect to the |
166 | person: a valid driver's license, an identification card issued |
167 | under the provisions of s. 322.051, or, if the person is |
168 | physically handicapped, a comparable identification card issued |
169 | by another state which indicates the person's age, a passport, |
170 | or a United States Uniformed Services identification card. |
171 | (4) MONTHLY REPORT.-- |
172 | (a) Each winery shipper licensee shall report monthly to |
173 | the division on forms prescribed by the division: |
174 | 1. Whether any wine product was shipped into or within |
175 | this state under this section during the preceding month. |
176 | 2. The total amount of wine shipped into or within this |
177 | state under this section during the preceding month. |
178 | 3. The quantity and types of wine shipped into or within |
179 | this state under this section during the preceding month. |
180 | 4. The amount of excise tax paid to the division for |
181 | shipments of wine into or within this state under this section |
182 | during the preceding month. |
183 | (b) The report required by this subsection is not required |
184 | from a winery shipper licensee who files a monthly report |
185 | pursuant to s. 561.55 that contains all the information required |
186 | in paragraph (a). The division is authorized to prescribe the |
187 | format for submission of this information in order that |
188 | duplicate filings are eliminated. |
189 | (5) TAXES.-- |
190 | (a) Each winery shipper licensee shall collect and remit |
191 | monthly to the Department of Revenue all sales taxes and pay to |
192 | the division all excise taxes due on sales to persons in this |
193 | state for the preceding month. Notwithstanding s. 212.0596, the |
194 | amount of such taxes shall be calculated as if the sale took |
195 | place at the location where the delivery occurred in this state. |
196 | The proceeds of the discretionary sales surtaxes imposed under |
197 | s. 212.055 shall be deposited into an account in the |
198 | Discretionary Sales Surtax Clearing Trust Fund described in s. |
199 | 212.054(4)(c) and distributed as provided therein. |
200 | (b) Each winery shipper licensee shall maintain for at |
201 | least 3 years after the date of delivery records of its |
202 | shipments into or within this state pursuant to this section, |
203 | including the names, addresses, amounts, and dates of all |
204 | shipments to persons in this state, and shall allow the |
205 | Department of Revenue or the division, upon request, to perform |
206 | an audit of such records. |
207 | (c) The cost of performing an audit under paragraph (b) |
208 | shall be assigned to the agency requesting the audit unless the |
209 | winery shipper licensee is found to be in material violation of |
210 | this subsection, in which case the cost of the audit shall be |
211 | assigned to the licensee. |
212 | (6) JURISDICTION.--Each winery shipper licensee is deemed |
213 | to have consented to the jurisdiction of the division or any |
214 | other state agency or local law enforcement agency and the |
215 | courts of this state concerning enforcement of this section and |
216 | any related laws or rules. |
217 | (7) PENALTIES.-- |
218 | (a) In addition to any other penalty provided in the |
219 | Beverage Law, the division may suspend or revoke a winery |
220 | shipper license or impose fines on the winery shipper licensee |
221 | in an amount not to exceed $1,000 per violation for any |
222 | violation of this section. |
223 | (b) A winery shipper licensee that knowingly and |
224 | intentionally ships, or causes to be shipped, wine to any person |
225 | in this state who is under 21 years of age commits a felony of |
226 | the third degree, punishable as provided in s. 775.082, s. |
227 | 775.083, or s. 775.084. |
228 | (c) Any common carrier, permit carrier, or other |
229 | commercial conveyance that knowingly and intentionally delivers |
230 | wine directly to any person in this state who is under 21 years |
231 | of age commits a misdemeanor of the second degree, punishable as |
232 | provided in s. 775.082 or s. 775.083. |
233 | (d) A person who knowingly and intentionally obtains wine |
234 | from a winery shipper licensee in violation of this section |
235 | commits a misdemeanor of the second degree, punishable as |
236 | provided in s. 775.082 or s. 775.083. |
237 | Section 2. Subsection (8) is added to section 561.14, |
238 | Florida Statutes, to read: |
239 | 561.14 License and registration classification.--Licenses |
240 | and registrations referred to in the Beverage Law shall be |
241 | classified as follows: |
242 | (8) Wineries licensed as winery shippers under s. 561.585. |
243 | Section 3. Section 561.54, Florida Statutes, is amended to |
244 | read: |
245 | 561.54 Certain deliveries of beverages prohibited.-- |
246 | (1) It is unlawful for common or permit carriers, |
247 | operators of privately owned cars, trucks, buses, or other |
248 | conveyances or out-of-state manufacturers or suppliers to make |
249 | delivery from without the state of any alcoholic beverage to any |
250 | person, association of persons, or corporation within the state, |
251 | except to qualified manufacturers, distributors, and exporters |
252 | of such beverages so delivered and to qualified bonded |
253 | warehouses in this state. |
254 | (2) Any licensee aggrieved by a violation of this section |
255 | may bring an action in any court of competent jurisdiction to |
256 | recover for the state all moneys obtained by common carriers or |
257 | permit carriers; obtained by operators of privately owned cars, |
258 | trucks, buses, or other conveyances; or obtained by out-of-state |
259 | manufacturers or suppliers as a result of the delivery of |
260 | alcoholic beverages in violation of this section, and may obtain |
261 | a declaratory judgment that an act or practice violates this |
262 | section and enjoin any person from violating this section. In |
263 | addition to such relief, the court may order the confiscation |
264 | and destruction of any alcoholic beverages delivered in |
265 | violation of this section. In assessing damages, the court shall |
266 | enter judgment against a defendant for three times the amount of |
267 | the delivery charges proved or the fair market value of |
268 | merchandise unlawfully brought into the state. Payment or |
269 | satisfaction of any judgment under this section, other than for |
270 | costs and attorney's fees, shall be made in its entirety to the |
271 | state. In any successful action under this section, the court |
272 | shall award the plaintiff costs and reasonable attorney's fees. |
273 | (3) This section does not apply to the shipment of wine by |
274 | a winery shipper licensee to a person who is at least 21 years |
275 | of age in accordance with s. 561.585. |
276 | Section 4. Section 561.545, Florida Statutes, is amended |
277 | to read: |
278 | 561.545 Certain shipments of beverages prohibited; |
279 | penalties; exceptions.--The Legislature finds that the direct |
280 | shipment of alcoholic beverages by persons in the business of |
281 | selling alcoholic beverages to residents of this state in |
282 | violation of the Beverage Law poses a serious threat to the |
283 | public health, safety, and welfare; to state revenue |
284 | collections; and to the economy of the state. The Legislature |
285 | further finds that the penalties for illegal direct shipment of |
286 | alcoholic beverages to residents of this state should be made |
287 | adequate to ensure compliance with the Beverage Law and that the |
288 | measures provided for in this section are fully consistent with |
289 | the powers conferred upon the state by the Twenty-first |
290 | Amendment to the United States Constitution. |
291 | (1) Any person in the business of selling alcoholic |
292 | beverages who knowingly and intentionally ships, or causes to be |
293 | shipped, any alcoholic beverage from an out-of-state location |
294 | directly to any person in this state who does not hold a valid |
295 | manufacturer's or wholesaler's license or exporter's |
296 | registration issued by the Division of Alcoholic Beverages and |
297 | Tobacco or who is not a state-bonded warehouse is in violation |
298 | of this section. |
299 | (2) Any common carrier or permit carrier or any operator |
300 | of a privately owned car, truck, bus, or other conveyance who |
301 | knowingly and intentionally transports any alcoholic beverage |
302 | from an out-of-state location directly to any person in this |
303 | state who does not hold a valid manufacturer's or wholesaler's |
304 | license or exporter's registration or who is not a state-bonded |
305 | warehouse is in violation of this section. |
306 | (3) Any person found by the division to be in violation of |
307 | subsection (1) shall be issued a notice, by certified mail, to |
308 | show cause why a cease and desist order should not be issued. |
309 | Any person who violates subsection (1) within 2 years after |
310 | receiving a cease and desist order or within 2 years after a |
311 | prior conviction for violating subsection (1) commits a felony |
312 | of the third degree, punishable as provided in s. 775.082, s. |
313 | 775.083, or s. 775.084. |
314 | (4) Any common carrier or permit carrier, or any operator |
315 | of a privately owned car, truck, bus, or other conveyance found |
316 | by the division to be in violation of subsection (2) as a result |
317 | of a second or subsequent delivery from the same source and |
318 | location, within a 2-year period after the first delivery shall |
319 | be issued a notice, by certified mail, to show cause why a cease |
320 | and desist order should not be issued. Any person who violates |
321 | subsection (2) within 2 years after receiving the cease and |
322 | desist order or within 2 years after a prior conviction for |
323 | violating subsection (2) commits a felony of the third degree, |
324 | punishable 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 |
327 | to bona fide religious organizations as authorized by the |
328 | division; |
329 | (b) The or to possession of alcoholic beverages in |
330 | accordance 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, |
333 | Florida Statutes, are amended to read: |
334 | 561.57 Deliveries by licensees.-- |
335 | (1) Vendors shall be permitted to make deliveries away |
336 | from their places of business of sales actually made at the |
337 | licensed place of business; provided, telephone or mail orders |
338 | received at vendor's licensed place of business shall be |
339 | construed as a sale actually made at the vendor's licensed place |
340 | of business. For purposes of this section, Internet orders shall |
341 | be construed as telephone orders. |
342 | (6) Common carriers are not required to have vehicle |
343 | permits to transport alcoholic beverages. Nothing in this |
344 | section shall prohibit any licensee from utilizing a common |
345 | carrier as his or her agent to make deliveries of alcoholic |
346 | beverages within the state. Deliveries of alcoholic beverages by |
347 | licensees or common carriers utilized by licensees under this |
348 | section are exempt from the report filing requirements in s. |
349 | 562.20. All common carriers making deliveries under this section |
350 | shall verify that any person receiving alcoholic beverages is at |
351 | least 21 years of age upon the delivery of such alcoholic |
352 | beverages, as prescribed in division rules. Compliance with the |
353 | prescribed age verification measures in s. 561.585(3) shall give |
354 | the common carrier and the licensee a complete defense to any |
355 | civil action thereof, except for any administrative action by |
356 | the division, if, at the time the alcoholic beverage was sold, |
357 | given, delivered, or transferred, the person falsely evidenced |
358 | that he or she was of legal age to purchase or consume the |
359 | alcoholic beverage and the appearance of the person was such |
360 | that an ordinarily prudent person would believe him or her to be |
361 | of legal age to purchase or consume the alcoholic beverage and |
362 | if the licensee or common carrier acted in good faith and in |
363 | reliance upon the representation and appearance of the person in |
364 | the belief that he or she was of legal age to purchase or |
365 | consume the alcoholic beverage and carefully checked one of the |
366 | following forms of identification with respect to the person: a |
367 | valid driver's license, an identification card issued under the |
368 | provisions of s. 322.051, or, if the person is physically |
369 | handicapped, a comparable identification card issued by another |
370 | state which indicates the person's age, a passport, or a United |
371 | States Uniformed Services identification card. |
372 | Section 6. Subsection (1) of section 599.004, Florida |
373 | Statutes, is amended to read: |
374 | 599.004 Florida Farm Winery Program; registration; logo; |
375 | fees.-- |
376 | (1) The Florida Farm Winery Program is established within |
377 | the Department of Agriculture and Consumer Services. Under this |
378 | program, a winery may qualify as a tourist attraction only if it |
379 | is registered with and certified by the department as a Florida |
380 | Farm Winery. A winery may not claim to be certified unless it |
381 | has received written approval from the department. |
382 | (a) To qualify as a certified Florida Farm Winery, a |
383 | winery shall meet the following standards: |
384 | 1. Produce or Sell less than 250,000 gallons of wine |
385 | annually of which at least 60 percent must be made from |
386 | agricultural products produced in this state. The Commissioner |
387 | of Agriculture may waive this requirement in times of hardship. |
388 | 2. Maintain a minimum of 10 acres of owned or managed |
389 | vineyards in Florida. |
390 | 3. Be open to the public for tours, tastings, and sales at |
391 | least 30 hours each week. |
392 | 4. Make annual application to the department for |
393 | recognition as a Florida Farm Winery, on forms provided by the |
394 | department. |
395 | 5. Pay an annual application and registration fee of $100. |
396 | (b) To maintain certification and recognition as a Florida |
397 | Farm Winery, a winery must comply with the qualifications |
398 | provided in this section. The Commissioner of Agriculture is |
399 | authorized to officially recognize a certified Florida Farm |
400 | Winery as a state tourist attraction. |
401 | Section 7. Subsection (5) of section 561.24, Florida |
402 | Statutes, is amended to read: |
403 | 561.24 Licensing manufacturers as distributors or |
404 | registered exporters prohibited; procedure for issuance and |
405 | renewal of distributors' licenses and exporters' |
406 | registrations.-- |
407 | (5) Notwithstanding any of the provisions of the foregoing |
408 | subsections, any corporation which holds a license as a |
409 | distributor on June 3, 1947, shall be entitled to a renewal |
410 | thereof, provided such corporation complies with all of the |
411 | provisions of the Beverage Law of Florida, as amended, and of |
412 | this section and establishes by satisfactory evidence to the |
413 | division that, during the 6-month period next preceding its |
414 | application for such renewal, of the total volume of its sales |
415 | of spirituous liquors, in either dollars or quantity, not more |
416 | than 40 percent of such spirituous liquors sold by it, in either |
417 | dollars or quantity, were manufactured, rectified, or distilled |
418 | by any corporation with which the applicant is affiliated, |
419 | directly or indirectly, including any corporation which owns or |
420 | controls in any way any stock in the applicant corporation or |
421 | any corporation which is a subsidiary or affiliate of the |
422 | corporation so owning stock in the applicant corporation. Any |
423 | manufacturer of wine holding a license as a distributor on July |
424 | 1, 2008, the effective date of this act shall be entitled to a |
425 | renewal of such license notwithstanding the provisions of |
426 | subsections (1)-(5). This section does not apply to any winery |
427 | qualifying as a certified Florida Farm Winery under s. 599.004. |
428 | Section 8. Should any portion of this act be held |
429 | unconstitutional, it is the intent of the Legislature that the |
430 | courts disturb only as much of the regulatory system of this |
431 | state as is necessary to enforce the United States Constitution. |
432 | Section 9. Notwithstanding the provisions of s. 561.585, |
433 | Florida Statutes, contracts not otherwise prohibited by the |
434 | Beverage Law shall not be impaired. |
435 | Section 10. The Division of Alcoholic Beverages and |
436 | Tobacco of the Department of Business and Professional |
437 | Regulation and the Department of Revenue may adopt rules |
438 | pursuant to ss. 120.536(1) and 120.54, Florida Statutes, to |
439 | implement and administer this act. |
440 | Section 11. For fiscal year 2008-2009, six full-time |
441 | equivalent positions and $164,577 in associated salary rate are |
442 | authorized, and the sums of $332,422 in recurring funds and |
443 | $59,664 in nonrecurring funds from the Alcoholic Beverage and |
444 | Tobacco Trust Fund of the Department of Business and |
445 | Professional Regulation are hereby appropriated for the purpose |
446 | of carrying out the regulatory activities provided in this act. |
447 | In addition, for fiscal year 2008-2009, two full-time equivalent |
448 | positions, with associated salary rate of $106,106, are |
449 | authorized, and the sums of $212,165 in recurring funds and |
450 | $11,901 in nonrecurring funds from the Administrative Trust Fund |
451 | of the Department of Business and Professional Regulation are |
452 | hereby appropriated for the purpose of carrying out the central- |
453 | service administrative support functions related to the |
454 | regulatory activities provided in this act. |
455 | Section 12. This act shall take effect upon becoming a |
456 | law. |