Florida Senate - 2009 SB 272
By Senator Dockery
15-00230B-09 2009272__
1 A bill to be entitled
2 An act relating to the Beverage Law; creating s.
3 561.585, F.S.; authorizing certain direct shipments of
4 wine; requiring licensure of winery shippers;
5 providing requirements for licensure; providing
6 prohibitions; requiring that a winery shipper licensee
7 file a surety bond with the Division of Alcoholic
8 Beverages and Tobacco of the Department of Business
9 and Professional Regulation; requiring that each
10 container of wine shipped directly be labeled with a
11 notice; providing signature and identification
12 requirements; limiting the size of wine containers;
13 providing age requirements for those purchasing wine
14 for direct shipment or receiving direct shipments of
15 wine; providing a defense to certain actions;
16 requiring monthly reports by winery shipper licensees;
17 requiring the collection, remittance, and payment of
18 certain taxes by direct shippers; requiring certain
19 proceeds from discretionary sales surtaxes to be
20 deposited into an account in the Discretionary Sales
21 Surtax Clearing Trust Fund; requiring that winery
22 shippers maintain certain records for a certain
23 period; providing for jurisdiction; providing
24 penalties; amending s. 561.14, F.S.; classifying the
25 winery shipper license; amending s. 561.54, F.S.;
26 removing a provision requiring that the licensee be
27 aggrieved by a violation involving prohibited delivery
28 from without the state to have standing to bring an
29 action; exempting from such prohibition shipment of
30 wine by a winery shipper licensee; amending s.
31 561.545, F.S.; exempting applicability of the
32 prohibition against direct shipment of alcoholic
33 beverages to the shipment of wine by a winery shipper
34 licensee; amending s. 561.57, F.S.; requiring that
35 Internet orders be construed as telephone orders;
36 exempting common carriers, licensees, or licensees
37 using common carriers as their agents from certain
38 report filing requirements; requiring common carriers
39 to verify the age of persons receiving shipments;
40 providing a defense to certain actions; providing
41 criteria for the defense; amending s. 599.004, F.S.;
42 revising qualifications for the certification of
43 Florida Farm Wineries; providing for severability;
44 providing for nonimpairment of contracts; providing
45 for rulemaking authority; providing an effective date.
46
47 Be It Enacted by the Legislature of the State of Florida:
48
49 Section 1. Section 561.585, Florida Statutes, is created to
50 read:
51 561.585 Direct shipment of wine for personal consumption.—
52 (1) WINERY SHIPPER LICENSURE REQUIREMENTS.—
53 (a) Wineries may not ship or cause to be shipped any wine
54 to individual consumers in this state unless licensed under this
55 section. Notwithstanding any provision of the Beverage Law or
56 any rule to the contrary, a person, firm, corporation, or other
57 entity licensed as a winery shipper under this section may ship
58 wine directly to any person who is at least 21 years of age for
59 personal use only and not for resale. To obtain or renew a
60 winery shipper's license, an applicant must:
61 1. File an application with the division on forms
62 prescribed by the division.
63 2. Qualify for licensure under ss. 561.15 and 561.17 or
64 provide a true copy of a certification from the alcoholic
65 beverage licensing authority of the Federal Government, or the
66 state in which the winery is located, with license
67 qualifications and procedures for that winery license which
68 include, at a minimum:
69 a. Fingerprinting of applicants.
70 b. Disqualification for applicants under 21 years of age.
71 c. Disqualification for applicants convicted of:
72 (I) Within the past 5 years, any violation of the beverage
73 laws of this state, the United States, or any other state;
74 (II) Within the past 15 years, any felony in this state or
75 any other state; or
76 (III) Any criminal violation of the controlled substance
77 act of this state, the United States, or any other state.
78 3. Obtain and maintain a current license as a primary
79 American source of supply as provided in s. 564.045.
80 4. Provide to the division a true copy of its current wine
81 manufacturer's license issued by this state or another state and
82 a true copy of its current federal basic permit as a wine
83 producer issued in accordance with the Federal Alcohol
84 Administration Act.
85 5. Pay an annual license fee in the amount of $100.
86 6. File with the division a surety bond acceptable to the
87 division in the sum of $1,000 as surety for the payment of all
88 taxes; however, at the discretion of the division, when the
89 amount of business done by the winery shipper licensee is such
90 volume that a bond of less than $1,000 will be adequate, the
91 division may accept a bond in a lesser sum but not less than
92 $500. The surety bond currently on file with the division for a
93 winery pursuant to s. 561.37 is deemed to comply with this
94 requirement. Upon written request of the winery shipper, the
95 division shall review the total tax liability to the state by
96 the winery shipper and reduce the bond to 110 percent of the
97 prior year's total tax liability as a licensee under this
98 section but not less than $500.
99 (b) Applicants under this section may obtain a temporary
100 initial license as authorized in s. 561.181.
101 (c) Licensees shall comply with s. 564.05, which limits the
102 size of wine containers.
103 (d) Each winery shipper licensee must verify the
104 purchaser's age at the point of purchase before completing any
105 transaction and must refuse the sale of wine to any person under
106 21 years of age. Verification methods for purposes of this
107 paragraph may include receiving a copy, electronic or otherwise,
108 of a purchaser's driver's license or other acceptable
109 identification methods approved by the division, or recording
110 all purchasers' names, ages, and dates of birth. Such recordings
111 shall be kept for a minimum of 3 years. Purchasers shall further
112 be advised that purchasers must show to the person making the
113 delivery one of the acceptable identification cards listed in
114 paragraph (3)(a) before delivery.
115 (2) LABEL.—Each winery shipper licensee shall ensure that
116 the outside shipping label on each package is conspicuous and
117 includes the following components:
118 (a) This package contains alcohol.
119 (b) An adult signature is required.
120 (c) The recipient must be at least 21 years of age.
121 (3) SIGNATURE.—
122 (a) Each winery shipper licensee and common carrier shall
123 require, before delivery, that the signature of the addressee or
124 other person at least 21 years of age is obtained after
125 presentation of a valid driver's license, an identification card
126 issued under the provisions of s. 322.051, or, if the person is
127 physically handicapped, a comparable identification card issued
128 by another state which indicates the person's age, a passport,
129 or a United States Uniformed Services identification card.
130 (b) A winery shipper licensee or common carrier who
131 violates this subsection has a complete defense to any civil
132 action therefor, except for any administrative action by the
133 division, if, at the time the alcoholic beverage was sold,
134 given, delivered, or transferred, the person falsely evidenced
135 that he or she was of legal age to purchase or consume the
136 alcoholic beverage and the appearance of the person was such
137 that an ordinarily prudent person would believe him or her to be
138 of legal age to purchase or consume the alcoholic beverage and
139 if the winery shipper licensee or common carrier acted in good
140 faith and in reliance upon the representation and appearance of
141 the person in the belief that he or she was of legal age to
142 purchase or consume the alcoholic beverage and carefully checked
143 one of the following forms of identification with respect to the
144 person: a valid driver's license, an identification card issued
145 under the provisions of s. 322.051, or, if the person is
146 physically handicapped, a comparable identification card issued
147 by another state which indicates the person's age, a passport,
148 or a United States Uniformed Services identification card.
149 (4) MONTHLY REPORT.—
150 (a) Each winery shipper licensee shall report monthly to
151 the division on forms prescribed by the division:
152 1. Whether any wine product was shipped into or within this
153 state under this section during the preceding month.
154 2. The total amount of wine shipped into or within this
155 state under this section during the preceding month.
156 3. The quantity and types of wine shipped into or within
157 this state under this section during the preceding month.
158 4. The amount of excise tax paid to the division for
159 shipments of wine into or within this state under this section
160 during the preceding month.
161 (b) The report required by this subsection is not required
162 from a winery shipper licensee who files a monthly report
163 pursuant to s. 561.55 containing all the information required in
164 paragraph (a). The division may prescribe the format for
165 submission of this information in order that duplicate filings
166 are eliminated.
167 (5) TAXES.—
168 (a) Each winery shipper licensee shall collect and remit
169 monthly to the Department of Revenue all sales taxes and pay to
170 the division all excise taxes due on sales to persons in this
171 state for the preceding month. Notwithstanding s. 212.0596, the
172 amount of such taxes shall be calculated as if the sale took
173 place at the location where the delivery occurred in this state.
174 The proceeds of the discretionary sales surtaxes imposed under
175 s. 212.055 shall be deposited into an account in the
176 Discretionary Sales Surtax Clearing Trust Fund described in s.
177 212.054(4)(c) and distributed as provided therein.
178 (b) Each winery shipper licensee shall maintain for at
179 least 3 years after the date of delivery records of its
180 shipments into or within this state pursuant to this section,
181 including the names, addresses, amounts, and dates of all
182 shipments to persons in this state, and shall allow the
183 Department of Revenue or the division, upon request, to perform
184 an audit of such records.
185 (c) The cost of performing an audit under paragraph (b)
186 shall be assigned to the agency requesting the audit unless the
187 winery shipper licensee is found to be in material violation of
188 this subsection, in which case the cost of the audit shall be
189 assigned to the licensee.
190 (6) JURISDICTION.—Each winery shipper licensee is deemed to
191 have consented to the jurisdiction of the division or any other
192 state agency or local law enforcement agency and the courts of
193 this state concerning enforcement of this section and any
194 related laws or rules.
195 (7) PENALTIES.—
196 (a) In addition to any other penalty provided in the
197 Beverage Law, the division may suspend or revoke a winery
198 shipper license or impose fines on the winery shipper licensee
199 in an amount not to exceed $1,000 per violation for any
200 violation of this section.
201 (b) A winery shipper licensee that knowingly and
202 intentionally ships, or causes to be shipped, wine to any person
203 in this state who is under 21 years of age commits a misdemeanor
204 of the first degree, punishable as provided in s. 775.082 or s.
205 775.083.
206 (c) Any common carrier, permit carrier, or other commercial
207 conveyance that knowingly and intentionally delivers wine
208 directly to any person in this state who is under 21 years of
209 age commits a misdemeanor of the second degree, punishable as
210 provided in s. 775.082 or s. 775.083.
211 (d) A person who knowingly and intentionally obtains wine
212 from a winery shipper licensee in violation of this section
213 commits a misdemeanor of the second degree, punishable as
214 provided in s. 775.082 or s. 775.083.
215 Section 2. Subsection (8) is added to section 561.14,
216 Florida Statutes, to read:
217 561.14 License and registration classification.—Licenses
218 and registrations referred to in the Beverage Law shall be
219 classified as follows:
220 (8) Wineries licensed as winery shippers under s. 561.585.
221 Section 3. Section 561.54, Florida Statutes, is amended to
222 read:
223 561.54 Certain deliveries of beverages prohibited.—
224 (1) It is unlawful for common or permit carriers, operators
225 of privately owned cars, trucks, buses, or other conveyances or
226 out-of-state manufacturers or suppliers to make delivery from
227 without the state of any alcoholic beverage to any person,
228 association of persons, or corporation within the state, except
229 to qualified manufacturers, distributors, and exporters of such
230 beverages so delivered and to qualified bonded warehouses in
231 this state.
232 (2) Any licensee aggrieved by a violation of this section
233 may bring an action in any court of competent jurisdiction to
234 recover for the state all moneys obtained by common carriers or
235 permit carriers; obtained by operators of privately owned cars,
236 trucks, buses, or other conveyances; or obtained by out-of-state
237 manufacturers or suppliers as a result of the delivery of
238 alcoholic beverages in violation of this section, and may obtain
239 a declaratory judgment that an act or practice violates this
240 section and enjoin any person from violating this section. In
241 addition to such relief, the court may order the confiscation
242 and destruction of any alcoholic beverages delivered in
243 violation of this section. In assessing damages, the court shall
244 enter judgment against a defendant for three times the amount of
245 the delivery charges proved or the fair market value of
246 merchandise unlawfully brought into the state. Payment or
247 satisfaction of any judgment under this section, other than for
248 costs and attorney's fees, shall be made in its entirety to the
249 state. In any successful action under this section, the court
250 shall award the plaintiff costs and reasonable attorney's fees.
251 (3) This section does not apply to the shipment of wine by
252 a winery shipper licensee to a person who is at least 21 years
253 of age in accordance with s. 561.585.
254 Section 4. Subsection (5) of section 561.545, Florida
255 Statutes, is amended to read:
256 561.545 Certain shipments of beverages prohibited;
257 penalties; exceptions.—The Legislature finds that the direct
258 shipment of alcoholic beverages by persons in the business of
259 selling alcoholic beverages to residents of this state in
260 violation of the Beverage Law poses a serious threat to the
261 public health, safety, and welfare; to state revenue
262 collections; and to the economy of the state. The Legislature
263 further finds that the penalties for illegal direct shipment of
264 alcoholic beverages to residents of this state should be made
265 adequate to ensure compliance with the Beverage Law and that the
266 measures provided for in this section are fully consistent with
267 the powers conferred upon the state by the Twenty-first
268 Amendment to the United States Constitution.
269 (5) This section does not apply to:
270 (a) The direct shipment of sacramental alcoholic beverages
271 to bona fide religious organizations as authorized by the
272 division;
273 (b) The or to possession of alcoholic beverages in
274 accordance with s. 562.15(2); or
275 (c) The shipment of wine in accordance with s. 561.585.
276 Section 5. Subsections (1) and (6) of section 561.57,
277 Florida Statutes, are amended to read:
278 561.57 Deliveries by licensees.—
279 (1) Vendors shall be permitted to make deliveries away from
280 their places of business of sales actually made at the licensed
281 place of business; provided, telephone or mail orders received
282 at vendor's licensed place of business shall be construed as a
283 sale actually made at the vendor's licensed place of business.
284 For purposes of this section, Internet orders shall be construed
285 as telephone orders.
286 (6) Common carriers are not required to have vehicle
287 permits to transport alcoholic beverages. This section does not
288 prohibit any licensee from using a common carrier as his or her
289 agent to make deliveries of alcoholic beverages within the
290 state. Deliveries of alcoholic beverages by licensees or common
291 carriers used by licensees under this section are exempt from
292 the report filing requirements in s. 562.20. All common carriers
293 making deliveries under this section shall verify that any
294 person receiving alcoholic beverages is at least 21 years of age
295 upon the delivery of such alcoholic beverages, as prescribed in
296 division rules. Compliance with the prescribed age verification
297 measures in s. 561.585(3) gives the common carrier and the
298 licensee a complete defense to any civil action thereof, except
299 for any administrative action by the division, if, at the time
300 the alcoholic beverage was sold, given, delivered, or
301 transferred, the person falsely evidenced that he or she was of
302 legal age to purchase or consume the alcoholic beverage and the
303 appearance of the person was such that an ordinarily prudent
304 person would believe him or her to be of legal age to purchase
305 or consume the alcoholic beverage and if the licensee or common
306 carrier acted in good faith and in reliance upon the
307 representation and appearance of the person in the belief that
308 he or she was of legal age to purchase or consume the alcoholic
309 beverage and carefully checked one of the following forms of
310 identification with respect to the person: a valid driver's
311 license, an identification card issued under the provisions of
312 s. 322.051, or, if the person is physically handicapped, a
313 comparable identification card issued by another state which
314 indicates the person's age, a passport, or a United States
315 Uniformed Services identification card.
316 Section 6. Subsection (1) of section 599.004, Florida
317 Statutes, is amended to read:
318 599.004 Florida Farm Winery Program; registration; logo;
319 fees.—
320 (1) The Florida Farm Winery Program is established within
321 the Department of Agriculture and Consumer Services. Under this
322 program, a winery may qualify as a tourist attraction only if it
323 is registered with and certified by the department as a Florida
324 Farm Winery. A winery may not claim to be certified unless it
325 has received written approval from the department.
326 (a) To qualify as a certified Florida Farm Winery, a winery
327 shall meet the following standards:
328 1. Produce or Sell less than 250,000 gallons of wine
329 annually of which at least 60 percent must be made from
330 agricultural products produced in this state. The Commissioner
331 of Agriculture may waive this requirement in times of hardship.
332 2. Maintain a minimum of 10 acres of owned or managed
333 vineyards in Florida.
334 3. Be open to the public for tours, tastings, and sales at
335 least 30 hours each week.
336 4. Make annual application to the department for
337 recognition as a Florida Farm Winery, on forms provided by the
338 department.
339 5. Pay an annual application and registration fee of $100.
340 (b) To maintain certification and recognition as a Florida
341 Farm Winery, a winery must comply with the qualifications
342 provided in this section. The Commissioner of Agriculture is
343 authorized to officially recognize a certified Florida Farm
344 Winery as a state tourist attraction.
345 Section 7. If any portion of this act is held
346 unconstitutional, it is the intent of the Legislature that the
347 courts disturb only as much of the regulatory system of this
348 state as is necessary to enforce the United States Constitution.
349 Section 8. Notwithstanding the provisions of s. 561.585,
350 Florida Statutes, contracts not otherwise prohibited by the
351 Beverage Law shall not be impaired.
352 Section 9. The Division of Alcoholic Beverages and Tobacco
353 of the Department of Business and Professional Regulation and
354 the Department of Revenue may adopt rules pursuant to ss.
355 120.536(1) and 120.54, Florida Statutes, to implement and
356 administer this act.
357 Section 10. This act shall take effect upon becoming a law.