HB 245

1	A bill to be entitled
2	An act relating to the production and shipment of wine;
3	creating s. 561.222, F.S.; authorizing the direct shipment
4	of wine into and within this state for personal
5	consumption only; providing legislative intent; requiring
6	licensure of winery shippers by the Division of Alcoholic
7	Beverages and Tobacco; providing license requirements;
8	requiring recipients of a direct shipment of wine to be at
9	least 21 years of age; requiring proof of age and the
10	signature of a recipient; providing for the payment of
11	taxes, a monthly report, and recordkeeping by winery
12	shippers; requiring licensed winery shippers to make
13	deliveries in company-owned or company-leased vehicles or
14	by common carrier; providing requirements for common
15	carriers that make deliveries of wine; providing
16	administrative and criminal penalties for violations of
17	the act; authorizing the division and the Department of
18	Revenue to adopt rules; amending ss. 561.24, 561.54,
19	561.545, and 564.045, F.S.; conforming provisions to
20	changes made by the act; amending s. 599.004, F.S.;
21	revising requirements for qualifying as a certified
22	Florida Farm Winery; providing for severability; providing
23	an effective date.
24
25	Be It Enacted by the Legislature of the State of Florida:
26
27	Section 1.  Section 561.222, Florida Statutes, is created
28	to read:
29	561.222  Winery shipper's license.--
30	(1)  LEGISLATIVE INTENT.--The Legislature finds that the
31	importation, distribution, and sale of alcoholic beverages
32	require strict regulation in order to promote temperance by
33	discouraging consumption by underage persons and abusive
34	consumption by adults, to ensure orderly markets having
35	transparent and accountable sales, and to facilitate the
36	collection of excise and sales taxes critical to the fiscal
37	health of the state. The Legislature finds that these purposes
38	are best achieved through the state's comprehensive system of
39	licensing and regulation, including the three-tier system of
40	alcohol distribution which has been the law of this state since
41	the repeal of Prohibition. The Legislature finds that the
42	limitations contained in this section for the uniform regulation
43	of direct shipping by small, in-state and out-of-state farm
44	wineries are the least discriminatory means of protecting the
45	public and state revenues. The Legislature continues to maintain
46	its interest in having the state exercise its police power,
47	ensure enforcement of the beverage laws, and thereby regulate
48	the transportation, importation, distribution, and sale of
49	alcoholic beverages to the maximum extent allowed by the state
50	and federal constitutions. The Legislature reaffirms its policy
51	prohibiting manufacturers from causing the direct shipment of
52	beer and spirits to individuals in this state and its intent to
53	uphold and preserve against constitutional challenge all of the
54	laws of this state relating to alcoholic beverages.
55	(2)  LICENSE REQUIREMENTS.--
56	(a)  A winery may directly ship wine to a resident of this
57	state only under a winery shipper's license. A manufacturer of
58	wine within this state or any other state which produces or
59	sells less than 250,000 gallons of wine per year may ship wines
60	manufactured by such winery to a resident of this state who is
61	at least 21 years of age for that person's personal use, and not
62	for resale, upon obtaining a winery shipper's license from the
63	division. The manufacturer may obtain a winery shipper's license
64	by:
65	1.  Holding a current wine producer basic permit issued in
66	accordance with the Federal Alcohol Administration Act.
67	2.  Holding a current wine manufacturer's license from the
68	state in which it manufactures wine.
69	3.  Holding a current license as a primary American source
70	of supply in accordance with s. 564.045 and registering with the
71	division all brands shipped.
72	4.  Meeting the qualifications for licensure under s.
73	561.15.
74	5.  Filing an application with the division in accordance
75	with s. 561.17. The information required by the division in the
76	application must be the same as the information required by the
77	division for licensure as a wine manufacturer. The applicant
78	shall also include with the application:
79	a.  A copy of its current basic permit as a wine producer
80	issued in accordance with the Federal Alcohol Administration
81	Act.
82	b.  A copy of its current state license to manufacture
83	wine.
84	c.  A copy of the appointment of a registered agent in this
85	state for the acceptance of service of process. Winery shippers
86	must maintain an appointed registered agent and must notify the
87	division of a change in appointment.
88	d.  A copy of the applicant's sales tax registration number
89	issued by the Department of Revenue. An applicant must register
90	and maintain a current sales tax registration with the
91	department as a collector and remitter of state sales tax.
92	e.  An affirmation that the applicant consents to the
93	jurisdiction of the courts of this state and its agencies for
94	the enforcement of this section and any related laws or rules,
95	including actions by third parties for violations of this
96	section.
97	6.  Filing with the division a surety bond in the sum of
98	$5,000 as surety for the payment of all taxes. If the division
99	determines that the volume of business done by the manufacturer
100	is such that a bond of less than $5,000 is adequate, the
101	division may accept a bond in a lesser sum, but not less than
102	$1,000. The surety bond currently on file with the division for
103	a winery pursuant to s. 561.37 is deemed to comply with this
104	requirement.
105	7.  Paying a license fee of $250 to the division. Winery
106	shippers must maintain a current license as provided in this
107	section which must be renewed annually by August 1 by paying a
108	renewal fee of $250 to the division.
109	(b)  The division may issue or renew a license under this
110	section only if the applicant or licensee:
111	1.  Has not violated the conditions of licensure or the
112	requirements or limitations of this section;
113	2.  Produces or sells less than 250,000 gallons of wine
114	annually;
115	3.  Does not have a subsidiary winery and is not otherwise
116	affiliated with another winery, unless such subsidiary winery or
117	affiliated winery produces or sells less than 250,000 gallons of
118	wine annually; and
119	4.  Has not appointed a distributor in this state, unless
120	the applicant provides to the division a copy of the applicant's
121	contract with the applicant's appointed distributor containing
122	terms to the contrary or a copy of a written notice sent to the
123	distributor of the applicant's intent to obtain a winery
124	shipper's license at least 1 year before applying for such
125	license under this section.
126	(3)  SHIPPING REQUIREMENTS.--
127	(a)  Before shipping wine directly to a resident of this
128	state, a licensed winery shipper shall:
129	1.  Verify the purchaser's age at the point of purchase
130	before completing any transaction and refuse sales of wine to
131	anyone younger than 21 years of age.
132	2.  Conspicuously label the outside of each box of wine
133	shipped with the following information:
134	a.  The package contains alcohol.
135	b.  The recipient must be at least 21 years of age.
136	c.  The wine is for personal use only and not for resale.
137	d.  The signature of the recipient is required.
138	3.  Refuse to ship or cause to be shipped more than 12
139	cases containing no more than nine liters each of its wine per
140	calendar year to any one household address in this state.
141	Consumers may not purchase, and winery shippers may not sell,
142	ship, or cause to be shipped to a single household, more than 12
143	cases of no more than nine liters of wine per calendar year.
144	(b)  A licensed winery shipper shall be required to make
145	all of its deliveries under this section in company-owned or
146	company-leased vehicles or by common carrier. If such deliveries
147	are made by a common carrier, the licensed winery shipper shall
148	require the common carrier contracting with the shipper for the
149	delivery of the shipper's wine to obtain, before delivery, the
150	signature of the addressee or other recipient who is at least 21
151	years of age after a valid driver's license, an identification
152	card issued by this state or another state, a passport, or a
153	United States Armed Services identification card verifying age
154	is presented. The signature form must inform the recipient that
155	his or her signature is an acknowledgment that such wine is for
156	personal or household consumption and not for resale.
157	(c)  A licensed winery shipper must obtain from a common
158	carrier contracting for the delivery of the shipper's wine the
159	common carrier's written policy declaring that the common
160	carrier shall, before delivering any wine, adhere to the
161	requirements of paragraph (b).
162	(d)  A licensed winery shipper must offer to its
163	distributor for purchase and sale per calendar year the same
164	brands and quantities of wine shipped per calendar year under
165	this section, unless its contract with its appointed distributor
166	contains terms to the contrary.
167	(4)  TAXES.--A licensed winery shipper shall pay monthly to
168	the Department of Revenue all sales taxes and to the division
169	all state excise taxes due on sales to persons in this state for
170	the preceding month. The amount of the taxes shall be calculated
171	as if the sale took place in this state.
172	(5)  MONTHLY REPORT.--
173	(a)  A licensed winery shipper shall report to the
174	division, by the 10th day of each month, on forms prescribed by
175	the division:
176	1.  Whether any wine was shipped to residents of this state
177	during the preceding month.
178	2.  The quantity and brands of wine shipped to residents of
179	this state during the preceding month.
180	3.  The total price of wine shipped to residents of this
181	state during the preceding month.
182	4.  The amount of excise tax paid to the division for the
183	shipments of wine to residents of this state during the
184	preceding month.
185	5.  Any other information that the division determines
186	necessary to enforce this section.
187	(b)  The report required by this subsection is not required
188	from a winery shipper licensee who files a monthly report
189	pursuant to s. 561.55. The division may prescribe the format for
190	submitting this information for the purpose of eliminating
191	duplicate filings.
192	(6)  RECORDS.--All licensed winery shippers shall maintain
193	the following records, electronically or otherwise, available
194	for inspection by the Department of Revenue or the division upon
195	request for a period of 3 years after the date of delivery, and
196	shall allow the Department of Revenue or the division to perform
197	an audit of the records, not to exceed the frequency of audits
198	of licensees under the Beverage Law generally, but at least once
199	per year. Upon such request, the licensee shall submit any
200	related documents to that agency within 30 days.
201	(a)  The license issued under this section.
202	(b)  A record of all wines ordered, sold, and shipped to
203	residents of this state, including the name, address, and date
204	of birth of the purchaser; the name and address of the person to
205	whom the wine is shipped; and the date of shipment, quantity,
206	and brands of wine shipped.
207	(c)  All contracts with common carriers for the delivery of
208	the shipper's wine in this state and the carrier's written wine-
209	delivery policy.
210	(7)  COMMON CARRIERS.--Each common carrier making
211	deliveries of wine under this section shall:
212	(a)  Register with the division and acknowledge the
213	requirements contained in this section for the direct shipment
214	of wine and the carrier's intent to deliver wines in accordance
215	with this section.
216	(b)  Maintain a written wine-delivery policy stating that
217	the common carrier shall, before delivering any wine, obtain the
218	signature of the recipient after a valid driver's license, an
219	identification card issued by this state or another state, a
220	passport, or a United States Armed Services identification card
221	is presented verifying that the recipient is 21 years of age or
222	older.
223	(c)  Refuse delivery if the recipient appears to be younger
224	than 21 years of age; fails or refuses to present a valid
225	driver's license, an identification card issued by this state or
226	another state, a passport, or a United States Armed Services
227	identification card verifying age; or fails or refuses to sign
228	the signature form.
229	(d)  Obtain the recipient's name and address and signed
230	acknowledgement of personal consumption for each wine delivery
231	as required in this section; maintain such records and the
232	shipping order, including the name and address of the person to
233	whom the wine is shipped, for 3 years; and make the records
234	available for inspection upon request by the division.
235	(8)  PENALTIES.--In addition to the penalties provided by
236	ss. 561.545 and 562.11, shipping, causing to be shipped, or
237	delivering wine to a person younger than 21 years of age is a
238	misdemeanor of the second degree, punishable as provided in s.
239	775.082 or s. 775.083. The division may suspend or revoke the
240	license of a winery shipper or impose fines against a winery
241	shipper for any violation of this section. If the division has
242	reasonable cause to believe that a winery shipper has acted in
243	violation of this section, the division may issue a cease and
244	desist order requiring the winery to cease shipments. The
245	division may impose a civil penalty of up to $50,000 against a
246	winery who knowingly violates a cease and desist order issued
247	under this section.
248	(9)  RULEMAKING.--The Department of Revenue and the
249	division may adopt rules to administer and enforce the
250	applicable provisions of this section.
251	Section 2.  Subsection (5) of section 561.24, Florida
252	Statutes, is amended to read:
253	561.24  Licensing manufacturers as distributors or
254	registered exporters prohibited; procedure for issuance and
255	renewal of distributors' licenses and exporters'
256	registrations.--
257	(5)  Notwithstanding any of the provisions of the foregoing
258	subsections, any corporation which holds a license as a
259	distributor on June 3, 1947, shall be entitled to a renewal
260	thereof, provided such corporation complies with all of the
261	provisions of the Beverage Law of Florida, as amended, and of
262	this section and establishes by satisfactory evidence to the
263	division that, during the 6-month period next preceding its
264	application for such renewal, of the total volume of its sales
265	of spirituous liquors, in either dollars or quantity, not more
266	than 40 percent of such spirituous liquors sold by it, in either
267	dollars or quantity, were manufactured, rectified, or distilled
268	by any corporation with which the applicant is affiliated,
269	directly or indirectly, including any corporation which owns or
270	controls in any way any stock in the applicant corporation or
271	any corporation which is a subsidiary or affiliate of the
272	corporation so owning stock in the applicant corporation. Any
273	manufacturer of wine holding a license as a distributor on July
274	1, 2009, is the effective date of this act shall be entitled to
275	a renewal of such license notwithstanding the provisions of
276	subsections (1)-(5). This section does not apply to any winery
277	qualifying as a certified Florida Farm Winery under s. 599.004.
278	Section 3.  Section 561.54, Florida Statutes, is amended to
279	read:
280	561.54  Certain deliveries of beverages prohibited.--
281	(1)  It is unlawful for Common or permit carriers;,
282	operators of privately owned cars, trucks, buses, or other
283	conveyances; or out-of-state manufacturers or suppliers may not
284	to make delivery from outside without the state of any alcoholic
285	beverage to any person, association of persons, or corporation
286	within the state, except to qualified manufacturers,
287	distributors, and exporters of such beverages so delivered and
288	to qualified bonded warehouses in this state.
289	(2)  Any licensee aggrieved by a violation of this section
290	may bring an action in any court of competent jurisdiction to
291	recover for the state all moneys obtained by common carriers or
292	permit carriers; obtained by operators of privately owned cars,
293	trucks, buses, or other conveyances; or obtained by out-of-state
294	manufacturers or suppliers as a result of the delivery of
295	alcoholic beverages in violation of this section, and may obtain
296	a declaratory judgment that an act or practice violates this
297	section and enjoin any person from violating this section. In
298	addition to such relief, the court may order the confiscation
299	and destruction of any alcoholic beverages delivered in
300	violation of this section. In assessing damages, the court shall
301	enter judgment against a defendant for three times the amount of
302	the delivery charges proved or the fair market value of
303	merchandise unlawfully brought into the state. Payment or
304	satisfaction of a any judgment under this section, other than
305	for costs and attorney's fees, shall be made in its entirety to
306	the state. In a any successful action under this section, the
307	court shall award the plaintiff costs and reasonable attorney's
308	fees.
309	(3)  This section does not apply to the direct shipment of
310	wine by a licensed winery shipper to a person 21 years of age or
311	older for household consumption.
312	Section 4.  Section 561.545, Florida Statutes, is amended
313	to read:
314	561.545  Certain shipments of beverages prohibited;
315	penalties; exceptions.--The Legislature finds that the direct
316	shipment of alcoholic beverages by persons in the business of
317	selling alcoholic beverages to residents of this state in
318	violation of the Beverage Law poses a serious threat to the
319	public health, safety, and welfare; to state revenue
320	collections; and to the economy of the state. The Legislature
321	further finds that the penalties for illegal direct shipment of
322	alcoholic beverages to residents of this state should be made
323	adequate to ensure compliance with the Beverage Law and that the
324	measures provided for in this section are fully consistent with
325	the powers conferred upon the state by the Twenty-first
326	Amendment to the United States Constitution.
327	(1)  A Any person in the business of selling alcoholic
328	beverages who knowingly and intentionally ships, or causes to be
329	shipped, any alcoholic beverage from an out-of-state location
330	directly to any person in this state who does not hold a valid
331	manufacturer's or wholesaler's license or exporter's
332	registration issued by the division of Alcoholic Beverages and
333	Tobacco or who is not a state-bonded warehouse is in violation
334	of this section.
335	(2)  A Any common carrier or permit carrier or any operator
336	of a privately owned car, truck, bus, or other conveyance who
337	knowingly and intentionally transports any alcoholic beverage
338	from an out-of-state location directly to any person in this
339	state who does not hold a valid manufacturer's or wholesaler's
340	license or exporter's registration or who is not a state-bonded
341	warehouse is in violation of this section.
342	(3)  A Any person found by the division to be in violation
343	of subsection (1) shall be issued a notice, sent by certified
344	mail, to show cause why a cease and desist order should not be
345	issued. A Any person who violates subsection (1) within 2 years
346	after receiving a cease and desist order or within 2 years after
347	a prior conviction for violating subsection (1) commits a felony
348	of the third degree, punishable as provided in s. 775.082, s.
349	775.083, or s. 775.084.
350	(4)  A Any common carrier or permit carrier, or any
351	operator of a privately owned car, truck, bus, or other
352	conveyance, found by the division to be in violation of
353	subsection (2) as a result of a second or subsequent delivery
354	from the same source and location, within a 2-year period after
355	the first delivery shall be issued a notice, sent by certified
356	mail, to show cause why a cease and desist order should not be
357	issued. A Any person who violates subsection (2) within 2 years
358	after receiving the cease and desist order or within 2 years
359	after a prior conviction for violating subsection (2) commits a
360	felony of the third degree, punishable as provided in s.
361	775.082, s. 775.083, or s. 775.084.
362	(5)  This section does not apply to the direct shipment of
363	wine by a licensed winery shipper to a person 21 years of age or
364	older for household consumption, to the direct shipment of
365	sacramental alcoholic beverages to bona fide religious
366	organizations as authorized by the division, or to possession of
367	alcoholic beverages in accordance with s. 562.15(2).
368	Section 5.  Subsection (2) of section 564.045, Florida
369	Statutes, is amended to read:
370	564.045  Licensure as primary American source of supply.--
371	(2)  TAX CONTROL LICENSURE REQUIRED.--For purposes of tax
372	revenue control, a no person, firm, corporation, or other entity
373	that which is the primary American source of supply as defined
374	herein may not sell, offer for sale, accept orders for the sale
375	of, ship, or cause to be shipped into this state any vinous
376	beverages to any distributor, or importer, or person for
377	household consumption, as provided in s. 561.222, within this
378	the state without having first obtained licensure as a primary
379	American source of supply on forms provided by, and in such
380	manner as prescribed by, the division. Except for applicants for
381	a winery shipper's license, applicants for licensure as a
382	primary American source of supply are shall be exempt from the
383	requirements and qualification standards set forth in ss. 561.15
384	and 561.17.
385	Section 6.  Paragraph (a) of subsection (1) of section
386	599.004, Florida Statutes, is amended to read:
387	599.004  Florida Farm Winery Program; registration; logo;
388	fees.--
389	(1)  The Florida Farm Winery Program is established within
390	the Department of Agriculture and Consumer Services. Under this
391	program, a winery may qualify as a tourist attraction only if it
392	is registered with and certified by the department as a Florida
393	Farm Winery. A winery may not claim to be certified unless it
394	has received written approval from the department.
395	(a)  To qualify as a certified Florida Farm Winery, a
396	winery must shall meet the following standards:
397	1.  Produce or sell less than 250,000 gallons of wine
398	annually of which 60 percent of the wine produced is made from
399	state agricultural products. The Commissioner of Agriculture may
400	waive this requirement in times of hardship.
401	2.  Maintain a minimum of 10 acres of owned or managed
402	vineyards in this state Florida.
403	3.  Be open to the public for tours, tastings, and sales at
404	least 30 hours each week.
405	4.  Make annual application to the department for
406	recognition as a Florida Farm Winery, on forms provided by the
407	department.
408	5.  Pay an annual application and registration fee of $100.
409	Section 7.  If any provision of this act or its application
410	to any person or circumstance is held invalid, the invalidity
411	does not affect other provisions or applications of the act
412	which can be given effect without the invalid provision or
413	application, and to this end the provisions of this act are
414	severable.
415	Section 8.  This act shall take effect July 1, 2009.

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