Florida Senate - 2009 SB 764
By Senator Pruitt
28-00227F-09 2009764__
1 A bill to be entitled
2 An act relating to the production and shipment of
3 wine; creating s. 561.222, F.S.; authorizing the
4 direct shipment of wine into and within this state for
5 personal consumption only; providing legislative
6 intent; requiring licensure of winery shippers by the
7 Division of Alcoholic Beverages and Tobacco; providing
8 license requirements; requiring recipients of a direct
9 shipment of wine to be 21 years of age; requiring
10 proof of age and the signature of a recipient;
11 providing for the payment of taxes, a monthly report,
12 and recordkeeping by winery shippers; providing
13 requirements for common carriers that make deliveries
14 of wine; providing administrative penalties for
15 violations of the act; authorizing the division and
16 the Department of Revenue to adopt rules; amending ss.
17 561.24, 561.54, 561.545, and 564.045, F.S.; conforming
18 provisions to changes made by the act; amending s.
19 599.004, F.S.; revising requirements for qualifying as
20 a certified Florida Farm Winery; providing for
21 severability; providing an effective date.
22
23 Be It Enacted by the Legislature of the State of Florida:
24
25 Section 1. Section 561.222, Florida Statutes, is created to
26 read:
27 561.222 Winery shipper's license.—
28 (1) LEGISLATIVE INTENT.—The Legislature finds that the
29 importation, distribution, and sale of alcoholic beverages
30 require strict regulation in order to promote temperance by
31 discouraging consumption by underage persons and abusive
32 consumption by adults, to ensure orderly markets having
33 transparent and accountable sales, and to facilitate the
34 collection of excise and sales taxes critical to the fiscal
35 health of the state. The Legislature finds that these purposes
36 are best achieved through the state's comprehensive system of
37 licensing and regulation, including the three-tier system of
38 alcohol distribution which has been the law of this state since
39 the repeal of Prohibition. The Legislature finds that the
40 limitations contained in this section for the uniform regulation
41 of direct shipping by small, in-state and out-of-state farm
42 wineries are the least discriminatory means of protecting the
43 public and state revenues. The Legislature continues to maintain
44 its interest in having the state exercise its police power,
45 ensure enforcement of the beverage laws, and thereby regulate
46 the transportation, importation, distribution, and sale of
47 alcoholic beverages to the maximum extent allowed by the state
48 and federal constitutions. The Legislature reaffirms its policy
49 prohibiting manufacturers from causing the direct shipment of
50 beer and spirits to individuals in this state and its intent to
51 uphold and preserve against constitutional challenge all of the
52 laws of this state relating to alcoholic beverages.
53 (2) LICENSE REQUIREMENTS.—
54 (a) A winery may directly ship wine to a resident of this
55 state only under a winery shipper's license. A manufacturer of
56 wine within this state or any other state which produces or
57 sells less than 250,000 gallons of wine per year may ship wines
58 manufactured by such winery to a resident of this state who is
59 at least 21 years of age for that person's personal use, and not
60 for resale, upon obtaining a winery shipper's license from the
61 division. The manufacturer may obtain a winery shipper's license
62 by:
63 1. Holding a current wine producer basic permit issued in
64 accordance with the Federal Alcohol Administration Act.
65 2. Holding a current wine manufacturer's license from the
66 state in which it manufactures wine.
67 3. Holding a current license as a primary American source
68 of supply in accordance with s. 564.045 and registering with the
69 division all brands shipped.
70 4. Meeting the qualifications for licensure under s.
71 561.15.
72 5. Filing an application with the division in accordance
73 with s. 561.17. The information required by the division in the
74 application must be the same as the information required by the
75 division for licensure as a wine manufacturer. The applicant
76 shall also include with the application:
77 a. A copy of its current basic permit as a wine producer
78 issued in accordance with the Federal Alcohol Administration
79 Act.
80 b. A copy of its current state license to manufacture wine.
81 c. A copy of the appointment of a registered agent in this
82 state for the acceptance of service of process. Winery shippers
83 must maintain an appointed registered agent and must notify the
84 division of a change in appointment.
85 d. A copy of the applicant's sales tax registration number
86 issued by the Department of Revenue. An applicant must register
87 and maintain a current sales tax registration with the
88 department as a collector and remitter of state sales tax.
89 e. An affirmation that the applicant consents to the
90 jurisdiction of the courts of this state and its agencies for
91 the enforcement of this section and any related laws or rules,
92 including actions by third parties for violations of this
93 section.
94 6. Filing with the division a surety bond in the sum of
95 $5,000 as surety for the payment of all taxes. If the division
96 determines that the volume of business done by the manufacturer
97 is such that a bond of less than $5,000 is adequate, the
98 division may accept a bond in a lesser sum, but not less than
99 $1,000. The surety bond currently on file with the division for
100 a winery pursuant to s. 561.37 is deemed to comply with this
101 requirement.
102 7. Paying a license fee of $250 to the division. Winery
103 shippers must maintain a current license as provided in this
104 section which must be renewed annually by August 1 by paying a
105 renewal fee of $250 to the division.
106 (b) The division may issue or renew a license under this
107 section only if the applicant or licensee:
108 1. Has not violated the conditions of licensure or the
109 requirements or limitations of this section;
110 2. Produces or sells less than 250,000 gallons of wine
111 annually;
112 3. Does not have a subsidiary winery and is not otherwise
113 affiliated with another winery, unless such subsidiary winery or
114 affiliated winery produces or sells less than 250,000 gallons of
115 wine annually; and
116 4. Has not appointed a distributor in this state, unless
117 the applicant provides to the division a copy of the applicant's
118 contract with the applicant's appointed distributor containing
119 terms to the contrary or a copy of a written notice sent to the
120 distributor of the applicant's intent to obtain a winery
121 shipper's license 1 year before applying for such license under
122 this section.
123 (3) SHIPPING REQUIREMENTS.—
124 (a) Before shipping wine directly to a resident of this
125 state, a licensed winery shipper shall:
126 1. Verify the purchaser's age at the point of purchase
127 before completing any transaction and refuse sales of wine to
128 anyone younger than 21 years of age.
129 2. Conspicuously label the outside of each box of wine
130 shipped with the following information:
131 a. The package contains alcohol.
132 b. The recipient must be at least 21 years of age.
133 c. The wine is for personal use only and not for resale.
134 d. The signature of the recipient is required.
135 3. Refuse to ship or cause to be shipped more than 12 cases
136 containing no more than nine liters each of its wine per
137 calendar year to any one household address in this state.
138 Consumers may not purchase, and winery shippers may not sell,
139 ship, or cause to be shipped to a single household, more than 12
140 cases of no more than nine liters of wine per calendar year. A
141 licensed winery shipper must make all of its deliveries under
142 this section in vehicles owned or leased by such company or by
143 common carrier. If such deliveries are made by common carrier,
144 the licensed winery shipper shall require a common carrier
145 contracting with the shipper for the delivery of the shipper's
146 wine to obtain, before delivery, the signature of the addressee
147 or other recipient who is at least 21 years of age after a valid
148 driver's license, identification card issued by this state or
149 another state, passport, or United States armed services
150 identification card verifying the recipient's age is presented.
151 The signature form must inform the recipient that his or her
152 signature is an acknowledgement that such wine is for personal
153 or household consumption and not for resale.
154 (b) A licensed winery shipper must obtain from a common
155 carrier contracting for the delivery of the shipper's wine the
156 common carrier's written policy declaring that the common
157 carrier shall, before delivering any wine, adhere to the
158 requirements of paragraph (a).
159 (c) A licensed winery shipper must offer to its distributor
160 for purchase and sale per calendar year the same brands and
161 quantities of wine shipped per calendar year under this section,
162 unless its contract with its appointed distributor contains
163 terms to the contrary.
164 (4) TAXES.—A licensed winery shipper shall pay monthly to
165 the Department of Revenue all sales taxes and to the division
166 all state excise taxes due on sales to persons in this state for
167 the preceding month. The amount of the taxes shall be calculated
168 as if the sale took place in this state.
169 (5) MONTHLY REPORT.—
170 (a) A licensed winery shipper shall report to the division,
171 by the 10th day of each month, on forms prescribed by the
172 division:
173 1. Whether any wine was shipped to residents of this state
174 during the preceding month.
175 2. The quantity and brands of wine shipped to residents of
176 this state during the preceding month.
177 3. The total price of wine shipped to residents of this
178 state during the preceding month.
179 4. The amount of excise tax paid to the division for the
180 shipments of wine to residents of this state during the
181 preceding month.
182 5. Any other information that the division determines
183 necessary to enforce this section.
184 (b) The report required by this subsection is not required
185 from a winery shipper licensee who files a monthly report
186 pursuant to s. 561.55. The division may prescribe the format for
187 submitting this information for the purpose of eliminating
188 duplicate filings.
189 (6) RECORDS.—All licensed winery shippers shall maintain
190 the following records, electronically or otherwise, available
191 for inspection by the Department of Revenue or the division upon
192 request for a period of 3 years after the date of delivery, and
193 shall allow the Department of Revenue or the division to perform
194 an audit of the records, not to exceed the frequency of audits
195 of licensees under the Beverage Law generally, but at least once
196 per year. Upon such request, the licensee shall submit any
197 related documents to that agency within 30 days.
198 (a) The license issued under this section.
199 (b) A record of all wines ordered, sold, and shipped to
200 residents of this state, including the name, address, and date
201 of birth of the purchaser; the name and address of the person to
202 whom the wine is shipped; and the date of shipment, quantity,
203 and brands of wine shipped.
204 (c) All contracts with common carriers for the delivery of
205 the shipper's wine in this state and the carrier's written wine
206 delivery policy.
207 (7) COMMON CARRIERS.—Each common carrier making deliveries
208 of wine under this section shall:
209 (a) Register with the division and acknowledge the
210 requirements contained in this section for the direct shipment
211 of wine and the carrier's intent to deliver wines in accordance
212 with this section.
213 (b) Maintain a written wine-delivery policy stating that
214 the common carrier shall, before delivering any wine, obtain the
215 signature of the recipient after a valid driver's license, an
216 identification card issued by this state or another state, a
217 passport, or a United States armed services identification card
218 is presented verifying that the recipient is 21 years of age or
219 older.
220 (c) Refuse delivery if the recipient appears to be younger
221 than 21 years of age; fails or refuses to present a valid
222 driver's license, an identification card issued by this state or
223 another state, a passport, or a United States armed services
224 identification card verifying age; or fails or refuses to sign
225 the signature form.
226 (d) Obtain the recipient's name and address and signed
227 acknowledgement of personal consumption for each wine delivery
228 as required in this section; maintain such records and the
229 shipping order, including the name and address of the person to
230 whom the wine is shipped, for 3 years; and make the records
231 available for inspection upon request by the division.
232 (8) PENALTIES.—The division may suspend or revoke the
233 license of a winery shipper or impose fines against a winery
234 shipper for any violation of this section. If the division has
235 reasonable cause to believe that a winery shipper has acted in
236 violation of this section, the division may issue a cease and
237 desist order requiring the winery to cease shipments. The
238 division may impose a civil penalty of up to $50,000 against a
239 winery who knowingly violates a cease and desist order issued
240 under this section.
241 (9) RULEMAKING.—The Department of Revenue and the division
242 may adopt rules to administer and enforce the applicable
243 provisions of this section.
244 Section 2. Subsection (5) of section 561.24, Florida
245 Statutes, is amended to read:
246 561.24 Licensing manufacturers as distributors or
247 registered exporters prohibited; procedure for issuance and
248 renewal of distributors' licenses and exporters' registrations.—
249 (5) Notwithstanding any of the provisions of the foregoing
250 subsections, any corporation which holds a license as a
251 distributor on June 3, 1947, shall be entitled to a renewal
252 thereof, provided such corporation complies with all of the
253 provisions of the Beverage Law of Florida, as amended, and of
254 this section and establishes by satisfactory evidence to the
255 division that, during the 6-month period next preceding its
256 application for such renewal, of the total volume of its sales
257 of spirituous liquors, in either dollars or quantity, not more
258 than 40 percent of such spirituous liquors sold by it, in either
259 dollars or quantity, were manufactured, rectified, or distilled
260 by any corporation with which the applicant is affiliated,
261 directly or indirectly, including any corporation which owns or
262 controls in any way any stock in the applicant corporation or
263 any corporation which is a subsidiary or affiliate of the
264 corporation so owning stock in the applicant corporation. Any
265 manufacturer of wine holding a license as a distributor on July
266 1, 2009, is the effective date of this act shall be entitled to
267 a renewal of such license notwithstanding the provisions of
268 subsections (1)-(5). This section does not apply to any winery
269 qualifying as a certified Florida Farm Winery under s. 599.004.
270 Section 3. Section 561.54, Florida Statutes, is amended to
271 read:
272 561.54 Certain deliveries of beverages prohibited.—
273 (1) It is unlawful for Common or permit carriers;,
274 operators of privately owned cars, trucks, buses, or other
275 conveyances; or out-of-state manufacturers or suppliers may not
276 to make delivery from outside without the state of any alcoholic
277 beverage to any person, association of persons, or corporation
278 within the state, except to qualified manufacturers,
279 distributors, and exporters of such beverages so delivered and
280 to qualified bonded warehouses in this state.
281 (2) Any licensee aggrieved by a violation of this section
282 may bring an action in any court of competent jurisdiction to
283 recover for the state all moneys obtained by common carriers or
284 permit carriers; obtained by operators of privately owned cars,
285 trucks, buses, or other conveyances; or obtained by out-of-state
286 manufacturers or suppliers as a result of the delivery of
287 alcoholic beverages in violation of this section, and may obtain
288 a declaratory judgment that an act or practice violates this
289 section and enjoin any person from violating this section. In
290 addition to such relief, the court may order the confiscation
291 and destruction of any alcoholic beverages delivered in
292 violation of this section. In assessing damages, the court shall
293 enter judgment against a defendant for three times the amount of
294 the delivery charges proved or the fair market value of
295 merchandise unlawfully brought into the state. Payment or
296 satisfaction of a any judgment under this section, other than
297 for costs and attorney's fees, shall be made in its entirety to
298 the state. In a any successful action under this section, the
299 court shall award the plaintiff costs and reasonable attorney's
300 fees.
301 (3) This section does not apply to the direct shipment of
302 wine by a licensed winery shipper to a person 21 years of age or
303 older for household consumption.
304 Section 4. Section 561.545, Florida Statutes, is amended to
305 read:
306 561.545 Certain shipments of beverages prohibited;
307 penalties; exceptions.—The Legislature finds that the direct
308 shipment of alcoholic beverages by persons in the business of
309 selling alcoholic beverages to residents of this state in
310 violation of the Beverage Law poses a serious threat to the
311 public health, safety, and welfare; to state revenue
312 collections; and to the economy of the state. The Legislature
313 further finds that the penalties for illegal direct shipment of
314 alcoholic beverages to residents of this state should be made
315 adequate to ensure compliance with the Beverage Law and that the
316 measures provided for in this section are fully consistent with
317 the powers conferred upon the state by the Twenty-first
318 Amendment to the United States Constitution.
319 (1) A Any person in the business of selling alcoholic
320 beverages who knowingly and intentionally ships, or causes to be
321 shipped, any alcoholic beverage from an out-of-state location
322 directly to any person in this state who does not hold a valid
323 manufacturer's or wholesaler's license or exporter's
324 registration issued by the division of Alcoholic Beverages and
325 Tobacco or who is not a state-bonded warehouse is in violation
326 of this section.
327 (2) A Any common carrier or permit carrier or any operator
328 of a privately owned car, truck, bus, or other conveyance who
329 knowingly and intentionally transports any alcoholic beverage
330 from an out-of-state location directly to any person in this
331 state who does not hold a valid manufacturer's or wholesaler's
332 license or exporter's registration or who is not a state-bonded
333 warehouse is in violation of this section.
334 (3) A Any person found by the division to be in violation
335 of subsection (1) shall be issued a notice, sent by certified
336 mail, to show cause why a cease and desist order should not be
337 issued. Any person who violates subsection (1) within 2 years
338 after receiving a cease and desist order or within 2 years after
339 a prior conviction for violating subsection (1) commits a felony
340 of the third degree, punishable as provided in s. 775.082, s.
341 775.083, or s. 775.084.
342 (4) A Any common carrier or permit carrier, or any operator
343 of a privately owned car, truck, bus, or other conveyance, found
344 by the division to be in violation of subsection (2) as a result
345 of a second or subsequent delivery from the same source and
346 location, within a 2-year period after the first delivery shall
347 be issued a notice, sent by certified mail, to show cause why a
348 cease and desist order should not be issued. A Any person who
349 violates subsection (2) within 2 years after receiving the cease
350 and desist order or within 2 years after a prior conviction for
351 violating subsection (2) commits a felony of the third degree,
352 punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
353 (5) This section does not apply to the direct shipment of
354 wine by a licensed winery shipper to a person 21 years of age or
355 older for household consumption, to the direct shipment of
356 sacramental alcoholic beverages to bona fide religious
357 organizations as authorized by the division, or to possession of
358 alcoholic beverages in accordance with s. 562.15(2).
359 Section 5. Subsection (2) of section 564.045, Florida
360 Statutes, is amended to read:
361 564.045 Licensure as primary American source of supply.—
362 (2) TAX CONTROL LICENSURE REQUIRED.—For purposes of tax
363 revenue control, a no person, firm, corporation, or other entity
364 that which is the primary American source of supply as defined
365 herein may not sell, offer for sale, accept orders for the sale
366 of, ship, or cause to be shipped into this state any vinous
367 beverages to any distributor, or importer, or person for
368 household consumption, as provided in s. 561.222, within this
369 the state without having first obtained licensure as a primary
370 American source of supply on forms provided by, and in such
371 manner as prescribed by, the division. Except for applicants for
372 a winery shipper's license, applicants for licensure as a
373 primary American source of supply are shall be exempt from the
374 requirements and qualification standards set forth in ss. 561.15
375 and 561.17.
376 Section 6. Paragraph (a) of subsection (1) of section
377 599.004, Florida Statutes, is amended to read:
378 599.004 Florida Farm Winery Program; registration; logo;
379 fees.—
380 (1) The Florida Farm Winery Program is established within
381 the Department of Agriculture and Consumer Services. Under this
382 program, a winery may qualify as a tourist attraction only if it
383 is registered with and certified by the department as a Florida
384 Farm Winery. A winery may not claim to be certified unless it
385 has received written approval from the department.
386 (a) To qualify as a certified Florida Farm Winery, a winery
387 must shall meet the following standards:
388 1. Produce or sell less than 250,000 gallons of wine
389 annually of which 60 percent of the wine produced is made from
390 state agricultural products. The Commissioner of Agriculture may
391 waive this requirement in times of hardship.
392 2. Maintain a minimum of 10 acres of owned or managed
393 vineyards in this state Florida.
394 3. Be open to the public for tours, tastings, and sales at
395 least 30 hours each week.
396 4. Make annual application to the department for
397 recognition as a Florida Farm Winery, on forms provided by the
398 department.
399 5. Pay an annual application and registration fee of $100.
400 Section 7. If any provision of this act or its application
401 to any person or circumstance is held invalid, the invalidity
402 does not affect other provisions or applications of the act
403 which can be given effect without the invalid provision or
404 application, and to this end the provisions of this act are
405 severable.
406 Section 8. This act shall take effect July 1, 2009.