HB 837

1
A bill to be entitled
2An act relating to the production and shipment of wine;
3creating s. 561.222, F.S.; authorizing the direct shipment
4of wine into and within this state for personal
5consumption only; providing legislative intent; requiring
6licensure of winery shippers by the Division of Alcoholic
7Beverages and Tobacco; providing license requirements;
8requiring recipients of a direct shipment of wine to be at
9least 21 years of age; requiring proof of age of a
10recipient; providing for the payment of taxes, a monthly
11report, and recordkeeping by winery shippers; providing
12requirements for common carriers that make deliveries of
13wine; providing administrative and criminal penalties for
14violations of the act; authorizing the division and the
15Department of Revenue to adopt rules; amending ss. 561.24,
16561.54, 561.545, and 564.045, F.S.; conforming provisions
17to changes made by the act; amending s. 599.004, F.S.;
18revising requirements for qualifying as a certified
19Florida Farm Winery; providing for severability; providing
20an effective date.
21
22Be It Enacted by the Legislature of the State of Florida:
23
24     Section 1.  Section 561.222, Florida Statutes, is created
25to read:
26     561.222  Winery shipper's license.-
27     (1)  LEGISLATIVE INTENT.-The Legislature finds that the
28importation, distribution, and sale of alcoholic beverages
29require strict regulation in order to promote temperance by
30discouraging consumption by underage persons and abusive
31consumption by adults, to ensure orderly markets having
32transparent and accountable sales, and to facilitate the
33collection of excise and sales taxes critical to the fiscal
34health of the state. The Legislature finds that these purposes
35are best achieved through the state's comprehensive system of
36licensing and regulation, including the three-tier system of
37alcohol distribution which has been the law of this state since
38the repeal of Prohibition. The Legislature finds that the
39limitations contained in this section for the uniform regulation
40of direct shipping by small, in-state and out-of-state farm
41wineries are the least discriminatory means of protecting the
42public and state revenues. The Legislature continues to maintain
43its interest in having the state exercise its police power,
44ensure enforcement of the beverage laws, and thereby regulate
45the transportation, importation, distribution, and sale of
46alcoholic beverages to the maximum extent allowed by the state
47and federal constitutions. The Legislature reaffirms its policy
48prohibiting manufacturers from causing the direct shipment of
49beer and spirits to individuals in this state and its intent to
50uphold and preserve against constitutional challenge all of the
51laws of this state relating to alcoholic beverages.
52     (2)  LICENSE REQUIREMENTS.-
53     (a)  A winery may directly ship wine to a resident of this
54state only under a winery shipper's license. A manufacturer of
55wine within this state or any other state which produces or
56sells less than 250,000 gallons of wine per year may ship wines
57manufactured by such winery to a resident of this state who is
58at least 21 years of age for that person's personal use, and not
59for resale, upon obtaining a winery shipper's license from the
60division. The manufacturer may obtain a winery shipper's license
61by:
62     1.  Holding a current wine producer basic permit issued in
63accordance with the Federal Alcohol Administration Act.
64     2.  Holding a current wine manufacturer's license from the
65state in which it manufactures wine.
66     3.  Holding a current license as a primary American source
67of supply in accordance with s. 564.045 and registering with the
68division all brands shipped.
69     4.  Meeting the qualifications for licensure under s.
70561.15.
71     5.  Filing an application with the division in accordance
72with s. 561.17. The information required by the division in the
73application must be the same as the information required by the
74division for licensure as a wine manufacturer. The applicant
75must also include with the application:
76     a.  A copy of its current basic permit as a wine producer
77issued in accordance with the Federal Alcohol Administration
78Act.
79     b.  A copy of its current state license to manufacture
80wine.
81     c.  A copy of the appointment of a registered agent in this
82state for the acceptance of service of process. Winery shippers
83must maintain an appointed registered agent and must notify the
84division of a change in appointment.
85     d.  A copy of the applicant's sales tax registration number
86issued by the Department of Revenue. An applicant must register
87and maintain a current sales tax registration with the
88department as a collector and remitter of state sales tax.
89     e.  An affirmation that the applicant consents to the
90jurisdiction of the courts of this state and its agencies for
91the enforcement of this section and any related laws or rules,
92including actions by third parties for violations of this
93section.
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
96determines that the volume of business done by the manufacturer
97is such that a bond of less than $5,000 is adequate, the
98division 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
100a winery pursuant to s. 561.37 is deemed to comply with this
101requirement.
102     7.  Paying a license fee of $250 to the division. Winery
103shippers must maintain a current license as provided in this
104section which must be renewed annually by August 1 by paying a
105fee of $250 to the division.
106     (b)  The division may issue a license under this section
107only if the applicant or licensee:
108     1.  Has not violated the conditions of licensure or the
109requirements or limitations of this section;
110     2.  Produces or sells less than 250,000 gallons of wine
111annually;
112     3.  Does not have a subsidiary winery and is not otherwise
113affiliated with another winery, unless such subsidiary winery or
114affiliated winery produces or sells less than 250,000 gallons of
115wine annually; and
116     4.  Has not appointed a distributor in this state, unless
117the applicant provides to the division a copy of the applicant's
118contract with the applicant's appointed distributor containing
119terms to the contrary or a copy of a written notice sent to the
120distributor of the applicant's intent to obtain a winery
121shipper's license at least 1 year before applying for such
122license under this section.
123     (3)  SHIPPING REQUIREMENTS.-
124     (a)  Before shipping wine directly to a resident of this
125state, a licensed winery shipper must:
126     1.  Verify the purchaser's age at the point of purchase
127before completing any transaction and refuse sales of wine to
128anyone younger than 21 years of age.
129     2.  Conspicuously label the outside of each box of wine
130shipped 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 signature of the recipient is required.
134     3.  Refuse to ship or cause to be shipped more than 12
135cases containing no more than nine liters each of its wine per
136calendar year to any one household address and any household
137member's work address in this state. Consumers may not purchase,
138and winery shippers may not sell, ship, or cause to be shipped
139to a single household, more than 12 cases of no more than nine
140liters of wine per calendar year. A licensed winery shipper must
141make all of its deliveries under this section in vehicles owned
142or leased by such company or by common carrier. If such
143deliveries are made by common carrier, the licensed winery
144shipper shall require a common carrier contracting with the
145shipper for the delivery of the shipper's wine to obtain, before
146delivery, the signature of the addressee or other recipient who
147is at least 21 years of age after a valid driver's license,
148identification card issued by this state or another state,
149passport, or United States armed services identification card
150verifying the recipient's age is presented.
151     (b)  A licensed winery shipper must obtain from a common
152carrier contracting for the delivery of the shipper's wine the
153common carrier's written policy declaring that the common
154carrier, before delivering any wine, will adhere to the
155requirements of paragraph (a).
156     (c)  A licensed winery shipper must offer to its
157distributor for purchase and sale per calendar year the same
158brands and quantities of wine shipped per calendar year under
159this section, unless its contract with its appointed distributor
160contains terms to the contrary.
161     (4)  TAXES.-A licensed winery shipper shall pay monthly to
162the Department of Revenue all sales taxes pursuant to s. 212.15
163and to the division all state excise taxes due for sales to
164persons in this state for the preceding month. Notwithstanding
165s. 212.0596, the amount of such taxes shall be calculated as if
166the sales took place at the location at which the delivery
167occurred in this state. The proceeds of the discretionary sales
168surtax imposed under s. 212.055 shall be deposited into the
169Discretionary Sales Surtax Clearing Trust Fund described in s.
170212.054(4)(c) and distributed as provided therein.
171     (5)  MONTHLY REPORT.-
172     (a)  A licensed winery shipper shall report to the
173division, by the 10th day of each month, on forms prescribed by
174the division:
175     1.  Whether any wine was shipped to residents of this state
176during the preceding month.
177     2.  The quantity and brands of wine shipped to residents of
178this state during the preceding month.
179     3.  The total price of wine shipped to residents of this
180state during the preceding month.
181     4.  The amount of excise tax paid to the division for the
182shipments of wine to residents of this state during the
183preceding month.
184     5.  Any other information that the division determines
185necessary to enforce this section.
186     (b)  The report required by this subsection is not required
187from a winery shipper licensee who files a monthly report
188pursuant to s. 561.55. The division may prescribe the format for
189submitting this information for the purpose of eliminating
190duplicate filings.
191     (6)  RECORDS.-All licensed winery shippers shall maintain
192the following records, electronically or otherwise, available
193for inspection by the Department of Revenue or the division upon
194request for a period of 3 years after the date of delivery, and
195shall allow the Department of Revenue or the division to perform
196an audit of the records, not to exceed the frequency of audits
197of licensees under the Beverage Law generally, but at least once
198per year. Upon such request, the licensee shall submit any
199related documents to that agency within 30 days.
200     (a)  The license issued under this section.
201     (b)  A record of all wines ordered, sold, and shipped to
202residents of this state, including the name, address, and date
203of birth of the purchaser; the name and address of the person to
204whom the wine is shipped; and the date of shipment, quantity,
205and brands of wine shipped.
206     (c)  All contracts with common carriers for the delivery of
207the shipper's wine in this state and the carrier's written wine-
208delivery policy.
209     (7)  COMMON CARRIERS.-Each common carrier making deliveries
210of wine under this section shall:
211     (a)  Register with the division and acknowledge the
212requirements contained in this section for the direct shipment
213of wine and the carrier's intent to deliver wines in accordance
214with this section.
215     (b)  Maintain a written wine-delivery policy stating that
216the common carrier shall, before delivering any wine, obtain the
217signature of the recipient after a valid driver's license, an
218identification card issued by this state or another state, a
219passport, or a United States armed services identification card
220is presented verifying that the recipient is 21 years of age or
221older.
222     (c)  Refuse delivery if the recipient appears to be younger
223than 21 years of age; fails or refuses to present a valid
224driver's license, an identification card issued by this state or
225another state, a passport, or a United States armed services
226identification card verifying age; or fails or refuses to sign
227the signature form.
228     (d)  Obtain the recipient's name; maintain such records and
229the shipping order, including the name and address of the person
230to whom the wine is shipped, for 3 years; and make the records
231available for inspection upon request by the division.
232     (8)  PENALTIES.-In addition to any other penalty provided
233in the Beverage Law, the division may suspend or revoke a winery
234shipper license or impose fines on the winery shipper licensee
235for any violation of this section under its authority in s.
236561.29, as well as any other cause authorized in that section.
237     (a)  A winery shipper licensee that ships, or causes to be
238shipped, wine to any person in this state who is younger than 21
239years of age commits a misdemeanor of the second degree,
240punishable as provided in s. 775.082 or s. 775.083.
241     (b)  Any common carrier, permit carrier, or other
242commercial conveyance that delivers wine directly to any person
243in this state who is younger than 21 years of age commits a
244misdemeanor of the second degree, punishable as provided in s.
245775.082 or s. 775.083.
246     (c)  A person who obtains wine from a winery shipper
247licensee in violation of this section commits a misdemeanor of
248the second degree, punishable as provided in s. 775.082 or s.
249775.083.
250     (d)  A person who provides a winery shipper with a false
251date of birth commits a misdemeanor of the second degree,
252punishable as provided in s. 775.082 or s. 775.083.
253     (9)  RULEMAKING.-The Department of Revenue and the division
254may adopt rules to administer and enforce the applicable
255provisions of this section.
256     Section 2.  Subsection (5) of section 561.24, Florida
257Statutes, is amended to read:
258     561.24  Licensing manufacturers as distributors or
259registered exporters prohibited; procedure for issuance and
260renewal of distributors' licenses and exporters' registrations.-
261     (5)  Notwithstanding any of the provisions of the foregoing
262subsections, any corporation that which holds a license as a
263distributor on June 3, 1947, is shall be entitled to a renewal
264thereof, provided such corporation complies with all of the
265provisions of the Beverage Law of Florida, as amended, and of
266this section and establishes by satisfactory evidence to the
267division that, during the 6-month period next preceding its
268application for such renewal, of the total volume of its sales
269of spirituous liquors, in either dollars or quantity, not more
270than 40 percent of such spirituous liquors sold by it, in either
271dollars or quantity, were manufactured, rectified, or distilled
272by any corporation with which the applicant is affiliated,
273directly or indirectly, including any corporation that which
274owns or controls in any way any stock in the applicant
275corporation or any corporation that which is a subsidiary or
276affiliate of the corporation so owning stock in the applicant
277corporation. Any manufacturer of wine holding a license as a
278distributor on July 1, 2011, is the effective date of this act
279shall be entitled to a renewal of such license notwithstanding
280the provisions of subsections (1)-(5). This section does not
281apply to any winery qualifying as a certified Florida Farm
282Winery under s. 599.004.
283     Section 3.  Section 561.54, Florida Statutes, is amended to
284read:
285     561.54  Certain deliveries of beverages prohibited.-
286     (1)  It is unlawful for Common or permit carriers;,
287operators of privately owned cars, trucks, buses, or other
288conveyances; or out-of-state manufacturers or suppliers may not
289to make delivery from outside without the state of any alcoholic
290beverage to any person, association of persons, or corporation
291within the state, except to qualified manufacturers,
292distributors, and exporters of such beverages so delivered and
293to qualified bonded warehouses in this state.
294     (2)  Any licensee aggrieved by a violation of this section
295may bring an action in any court of competent jurisdiction to
296recover for the state all moneys obtained by common carriers or
297permit carriers; obtained by operators of privately owned cars,
298trucks, buses, or other conveyances; or obtained by out-of-state
299manufacturers or suppliers as a result of the delivery of
300alcoholic beverages in violation of this section, and may obtain
301a declaratory judgment that an act or practice violates this
302section and enjoin any person from violating this section. In
303addition to such relief, the court may order the confiscation
304and destruction of any alcoholic beverages delivered in
305violation of this section. In assessing damages, the court shall
306enter judgment against a defendant for three times the amount of
307the delivery charges proved or the fair market value of
308merchandise unlawfully brought into the state. Payment or
309satisfaction of a any judgment under this section, other than
310for costs and attorney's fees, shall be made in its entirety to
311the state. In a any successful action under this section, the
312court shall award the plaintiff costs and reasonable attorney's
313fees.
314     (3)  This section does not apply to the direct shipment of
315wine by a licensed winery shipper to a person 21 years of age or
316older for household consumption.
317     Section 4.  Section 561.545, Florida Statutes, is amended
318to read:
319     561.545  Certain shipments of beverages prohibited;
320penalties; exceptions.-The Legislature finds that the direct
321shipment of alcoholic beverages by persons in the business of
322selling alcoholic beverages to residents of this state in
323violation of the Beverage Law poses a serious threat to the
324public health, safety, and welfare; to state revenue
325collections; and to the economy of the state. The Legislature
326further finds that the penalties for illegal direct shipment of
327alcoholic beverages to residents of this state should be made
328adequate to ensure compliance with the Beverage Law and that the
329measures provided for in this section are fully consistent with
330the powers conferred upon the state by the Twenty-first
331Amendment to the United States Constitution.
332     (1)  A Any person in the business of selling alcoholic
333beverages who knowingly and intentionally ships, or causes to be
334shipped, any alcoholic beverage from an out-of-state location
335directly to any person in this state who does not hold a valid
336manufacturer's or wholesaler's license or exporter's
337registration issued by the division of Alcoholic Beverages and
338Tobacco or who is not a state-bonded warehouse is in violation
339of this section.
340     (2)  A Any common carrier or permit carrier or any operator
341of a privately owned car, truck, bus, or other conveyance who
342knowingly and intentionally transports any alcoholic beverage
343from an out-of-state location directly to any person in this
344state who does not hold a valid manufacturer's or wholesaler's
345license or exporter's registration or who is not a state-bonded
346warehouse is in violation of this section.
347     (3)  A Any person found by the division to be in violation
348of subsection (1) shall be issued a notice, sent by certified
349mail, to show cause why a cease and desist order should not be
350issued. Any person who violates subsection (1) within 2 years
351after receiving a cease and desist order or within 2 years after
352a prior conviction for violating subsection (1) commits a felony
353of the third degree, punishable as provided in s. 775.082, s.
354775.083, or s. 775.084.
355     (4)  A Any common carrier or permit carrier, or any
356operator of a privately owned car, truck, bus, or other
357conveyance, found by the division to be in violation of
358subsection (2) as a result of a second or subsequent delivery
359from the same source and location, within a 2-year period after
360the first delivery shall be issued a notice, sent by certified
361mail, to show cause why a cease and desist order should not be
362issued. A Any person who violates subsection (2) within 2 years
363after receiving the cease and desist order or within 2 years
364after a prior conviction for violating subsection (2) commits a
365felony of the third degree, punishable as provided in s.
366775.082, s. 775.083, or s. 775.084.
367     (5)  This section does not apply to the direct shipment of
368wine by a licensed winery shipper to a person 21 years of age or
369older for household consumption, to the direct shipment of
370sacramental alcoholic beverages to bona fide religious
371organizations as authorized by the division, or to possession of
372alcoholic beverages in accordance with s. 562.15(2).
373     Section 5.  Subsection (2) of section 564.045, Florida
374Statutes, is amended to read:
375     564.045  Licensure as primary American source of supply.-
376     (2)  TAX CONTROL LICENSURE REQUIRED.-For purposes of tax
377revenue control, a no person, firm, corporation, or other entity
378that which is the primary American source of supply as defined
379herein may not sell, offer for sale, accept orders for the sale
380of, ship, or cause to be shipped into this state any vinous
381beverages to any distributor, or importer, or person for
382household consumption, as provided in s. 561.222, within this
383the state without having first obtained licensure as a primary
384American source of supply on forms provided by, and in such
385manner as prescribed by, the division. Except for applicants for
386a winery shipper's license, applicants for licensure as a
387primary American source of supply are shall be exempt from the
388requirements and qualification standards set forth in ss. 561.15
389and 561.17.
390     Section 6.  Paragraph (a) of subsection (1) of section
391599.004, Florida Statutes, is amended to read:
392     599.004  Florida Farm Winery Program; registration; logo;
393fees.-
394     (1)  The Florida Farm Winery Program is established within
395the Department of Agriculture and Consumer Services. Under this
396program, a winery may qualify as a tourist attraction only if it
397is registered with and certified by the department as a Florida
398Farm Winery. A winery may not claim to be certified unless it
399has received written approval from the department.
400     (a)  To qualify as a certified Florida Farm Winery, a
401winery must shall meet the following standards:
402     1.  Produce or sell less than 250,000 gallons of wine
403annually of which 60 percent of the wine produced is made from
404state agricultural products. The Commissioner of Agriculture may
405waive this requirement in times of hardship.
406     2.  Maintain a minimum of 10 acres of owned or managed land
407vineyards in Florida which produces commodities used in the
408production of wine.
409     3.  Be open to the public for tours, tastings, and sales at
410least 30 hours each week.
411     4.  Make annual application to the department for
412recognition as a Florida Farm Winery, on forms provided by the
413department.
414     5.  Pay an annual application and registration fee of $100.
415     Section 7.  If any provision of this act or its application
416to any person or circumstance is held invalid, the invalidity
417does not affect other provisions or applications of the act
418which can be given effect without the invalid provision or
419application, and to this end the provisions of this act are
420severable.
421     Section 8.  This act shall take effect July 1, 2011.


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