Senate Bill sb2756

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    Florida Senate - 2003                                  SB 2756

    By Senator Posey





    24-1248-03

  1                      A bill to be entitled

  2         An act relating to the tax on tobacco products;

  3         amending s. 210.01, F.S.; revising definitions;

  4         amending s. 210.05, F.S.; revising authority of

  5         the Division of Alcoholic Beverages and Tobacco

  6         to prescribe certain stamps to certain persons;

  7         deleting references to wholesalers of

  8         cigarettes; requiring the division to revoke

  9         certain licenses under certain circumstances;

10         creating s. 210.051, F.S.; regulating delivery

11         sales of cigarettes; prohibiting delivery of

12         cigarettes to certain persons under certain

13         circumstances; providing criteria and

14         requirements; requiring notice of certain

15         information; providing required procedures for

16         delivering cigarettes in a delivery sale;

17         requiring certain statements to be filed with

18         the division; requiring collection and

19         remittance of taxes to the division; providing

20         civil penalties for certain violations;

21         authorizing court actions to prevent or

22         restrain violations; amending s. 210.06, F.S.;

23         revising procedures, requirements,

24         restrictions, and limitations for the

25         application of stamps; providing limitations on

26         unstamped cigarette packages; creating s.

27         210.085, F.S.; limiting the sale or

28         distribution of cigarettes to certain permitted

29         entities; providing limitations on obtaining

30         cigarettes by certain persons; amending s.

31         210.09, F.S.; requiring division notice of

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 1         certain shipments; providing an exception;

 2         authorizing the inspection of certain vehicles

 3         for contraband cigarettes; requiring reports;

 4         providing reporting requirements; providing for

 5         public access to certain records; amending s.

 6         210.12, F.S.; revising seizure and forfeiture

 7         provisions; providing for forfeiture of certain

 8         property under certain circumstances; providing

 9         for the destruction of cigarettes under certain

10         circumstances; amending s. 210.15, F.S.;

11         requiring application for certain permits under

12         certain circumstances; providing limitations on

13         issuance of permits to certain persons;

14         requiring the division to refuse to issue or

15         revoke permits under certain circumstances;

16         deleting certain premises or vehicle inspection

17         and search provisions relating to retail

18         cigarette dealers' and manufacturers'

19         representatives; amending s. 210.18, F.S.;

20         revising criminal penalties for tax evasion;

21         deleting a criminal penalty relating to

22         unstamped cigarettes; providing for the seizure

23         of certain property and civil penalties for

24         sale or possession for sale of counterfeit

25         cigarettes; creating s. 210.181, F.S.;

26         providing civil penalties for certain actions;

27         providing an effective date.

28  

29  Be It Enacted by the Legislature of the State of Florida:

30  

31  

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 1         Section 1.  Subsections (6), (7), and (14) of section

 2  210.01, Florida Statutes, are amended and subsections

 3  (19)-(25) are added to that section, to read:

 4         210.01  Definitions.--When used in this part the

 5  following words shall have the meaning herein indicated:

 6         (6)  "Wholesale dealer" means any person in or outside

 7  of this state who sells cigarettes to retail dealers or other

 8  persons for purposes of resale only, or any person who

 9  operates more than one cigarette vending machine located in

10  more than one place of business. The term does not include a

11  manufacturer, export warehouse proprietor, or importer who

12  holds a permit under 26 U.S.C. s. 5712 and sells or

13  distributes cigarettes in this state only to dealers who are

14  agents and hold current permits under s. 210.15 or to an

15  export warehouse proprietor or another manufacturer.

16         (7)  "Retail dealer" means any person in or outside of

17  this state other than a wholesale dealer engaged in the

18  business of selling cigarettes to consumers.

19         (14)  "Distributing agent" means every person, firm or

20  corporation in this state who acts as an agent for any

21  manufacturer or importer person, firm or corporation outside

22  or inside the state by receiving cigarettes in interstate or

23  intrastate commerce and storing such cigarettes subject to

24  distribution or delivery upon order from said principal to

25  wholesale dealers and other distributing agents inside or

26  outside this state.

27         (19)  "Delivery sale" means any sale of cigarettes to a

28  consumer in this state if:

29         (a)  The purchaser submits the order by a telephonic or

30  other method of voice transmission, mail or other delivery

31  service, or an on-line service; or

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 1         (b)  The cigarettes are delivered by mail or a delivery

 2  service. A sale of cigarettes is a delivery sale regardless of

 3  whether the seller is located inside or outside this state. A

 4  sale of cigarettes not for personal consumption to a person

 5  who is a wholesale dealer or a retail dealer is not a delivery

 6  sale. As used in this subsection, the term "delivery service"

 7  means a person who is engaged in the commercial delivery of

 8  letters, packages, or other containers.

 9         (20)  "Stamp" means the indicia required to be placed

10  on cigarette packages which evidences payment of the tax on

11  cigarettes under s. 210.02 or the required tax-exempt stamp

12  under s. 210.06(1)(b).

13         (21)  "Importer" means any person who holds a permit

14  under 26 U.S.C. s. 5712 and imports into the United States,

15  directly or indirectly, finished cigarettes for sale or

16  distribution.

17         (22)  "Manufacturer" means any person who holds a

18  permit under 26 U.S.C. s. 5712 and who manufactures,

19  fabricates, assembles, processes, or labels finished

20  cigarettes.

21         (23)  "Mail" means the shipment of cigarettes through

22  the United States Postal Service.

23         (24)  "Shipping container" means a container in which

24  cigarettes are shipped in connection with a delivery sale.

25         (25)  "Shipping documents" means bills of lading,

26  airbills, or other documents that evidence the undertaking by

27  a delivery service to deliver letters, packages, or other

28  containers.

29         Section 2.  Subsections (2), (3), and (4) of section

30  210.05, Florida Statutes, are amended to read:

31         210.05  Preparation and sale of stamps; discount.--

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 1         (2)  The division shall prescribe, prepare, and furnish

 2  stamps of such denominations and quantities as may be

 3  necessary for the payment of the tax imposed by this part, and

 4  may from time to time and as often as it deems advisable

 5  provide for the issuance and exclusive use of stamps of a new

 6  design and forbid the use of stamps of any other design.

 7  However, all stamps prescribed by the division must be

 8  designed and furnished in a fashion that permits

 9  identification of the agent who or wholesale dealer that

10  affixed the stamp to the particular package of cigarettes by

11  means of a serial number or other mark on the stamp. The

12  division shall make provisions for the sale of such stamps at

13  such places and at such time as it may deem necessary.

14         (3)(a)  The division may only appoint dealers in

15  cigarettes, manufacturers of cigarettes, within or without the

16  state as agent to buy or affix stamps to be used in paying the

17  tax herein imposed, but an agent shall at all times have the

18  right to appoint a person in his or her employ who is to affix

19  the stamps to any cigarettes under the agent's control;

20  provided, however, that any wholesale dealer in the state

21  shall have the right to buy and affix such stamps.  Whenever

22  the division shall sell and deliver stamps to any such agent

23  or wholesaler any such stamps, such agent may or wholesaler

24  shall be entitled to receive as compensation for his or her

25  services and expenses as such agent or wholesaler in affixing

26  and accounting for the taxes represented by such stamps and

27  may to retain out of the moneys to be paid by the agent or

28  wholesaler for such stamps a discount of 2 percent of the par

29  value of any amount of stamps purchased during any fiscal year

30  from July 1 through June 30 of the following year. However,

31  provided the discount shall be computed on the basis of 24

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 1  cents per pack.  No such discount shall be allowed to an agent

 2  a dealer, vendor, or distributor who sells or deals in any

 3  form of candy that which resembles drug paraphernalia.

 4  Stamping locations approved by the division shall be

 5  responsible for computing the discount they receive pursuant

 6  to this paragraph, and said computations shall be retained by

 7  the stamping location for a period of 5 years and shall be

 8  available to the division.  All stamps purchased from the

 9  division under this part shall be paid for in cash on

10  delivery, except as hereinafter provided.

11         (b)  Each agent appointed by the division to affix

12  stamps shall be authorized to purchase stamps by furnishing an

13  irrevocable letter of credit or unconditional guaranty

14  contract or by executing bond with a solvent surety company

15  qualified to do business in this state, in an amount of 110

16  percent of the agent's estimated tax liability for 30 days,

17  but not less than $2,000, conditioned upon said agent paying

18  all taxes due the state arising hereunder. This form of

19  payment in lieu of cash on delivery or its equivalent shall

20  not preclude supplemental purchases for cash. Payment for each

21  month's liability shall be due on or before the 10th day of

22  the month following the month in which the stamps were sold.

23  Default in the aforesaid bonding and payment provisions by any

24  agent may result in the revocation of his or her privilege to

25  purchase stamps except for cash on delivery for a period up to

26  12 months in the discretion of the division.

27         (4)  The division may in its discretion revoke the

28  authority of any agent failing to comply with the requirements

29  of this part or the rules adopted and regulations promulgated

30  hereunder and such agent may in addition be punished in

31  accordance with the provisions of this part.

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 1         Section 3.  Section 210.051, Florida Statutes, is

 2  created to read:

 3         210.051  Delivery sales; collection of taxes and other

 4  verifications.--

 5         (1)  A person may not make a delivery sale of

 6  cigarettes to any individual who is under the legal minimum

 7  purchase age in this state under s. 569.11. In addition to

 8  complying with the applicable requirements of s. 569.11, a

 9  person accepting a purchase order for a delivery sale must

10  comply with all other laws of this state generally applicable

11  to sales of cigarettes that occur entirely within this state,

12  including laws imposing excise taxes, sales taxes, license

13  requirements, and stamping requirements.

14         (2)  A person may not mail, ship, or deliver cigarettes

15  in connection with a delivery sale unless, prior to the first

16  delivery sale to the consumer, such person:

17         (a)  Obtains from the consumer a certification that

18  includes a reliable confirmation that the consumer is at least

19  the legal minimum purchase age and a statement signed by the

20  consumer that certifies the consumer's address and that the

21  consumer is at least 18 years of age. The statement must also

22  state that the consumer understands that signing another

23  person's name to the certification is illegal, that the sale

24  of cigarettes to individuals under the legal minimum purchase

25  age is illegal, that the purchase and possession of cigarettes

26  by individuals under the legal minimum purchase age is illegal

27  and that he or she wants to receive mailings from a tobacco

28  company.

29         (b)  Makes a good-faith effort to verify the

30  information contained in the certification against a

31  commercially available database or obtains a photocopy or

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 1  other image of a valid, government-issued identification

 2  stating the date of birth or age of the individual placing the

 3  order.

 4         (c)  Provides to the consumer, via electronic mail or

 5  other means, a notice that complies with subsection (3).

 6         (d)  In the case of an order placed pursuant to an

 7  Internet advertisement, receives payment for the delivery sale

 8  from the consumer by a credit or debit card that has been

 9  issued in the consumer's name or by check.

10  

11  Persons accepting purchase orders for delivery sales may

12  request that prospective consumers provide their electronic

13  mail addresses.

14         (3)  The notice required under paragraph (2)(c) must

15  include prominent legible statements that:

16         (a)  Cigarette sales to consumers below the legal

17  minimum purchase age are illegal.

18         (b)  Contains of one of the warnings in section 4(a)(1)

19  of the Federal Cigarette Labeling and Advertising Act, 15

20  U.S.C. s. 1333(a)(1), rotated on a quarterly basis.

21         (c)  Sales of cigarettes are restricted to consumers

22  who provide legal and verifiable proof of age.

23         (d)  Cigarette sales are subject to tax under this

24  chapter and an explanation of how such tax is paid.

25         (4)  Each person who mails, ships, or delivers

26  cigarettes in connection with a delivery sale must:

27         (a)  Include as part of the bill of lading or other

28  shipping documents a clear and conspicuous statement as

29  follows: "Cigarettes: Florida Law Prohibits Shipping to

30  Individuals Under 18 and Requires the Payment of all

31  Applicable Taxes."

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 1         (b)  Use a method of mailing, shipping, or delivery

 2  that requires the delivery service to have, the consumer or

 3  another adult of legal minimum purchase age residing at the

 4  consumer's address, sign to accept delivery of the shipping

 5  container and show government-issued photo identification.

 6  However, proof of the legal minimum purchase age is required

 7  only if the individual appears to be under 27 years of age.

 8         (c)  Provide to the delivery service evidence of

 9  compliance with subsection (6).

10  

11  A person who accepts a purchase order for a delivery sale and

12  delivers the cigarettes without a delivery service, must

13  comply with the requirements applicable to a delivery service.

14         (5)(a)  Prior to making delivery sales or mailing,

15  shipping, or delivering cigarettes in connection with any such

16  sales, a person must file with the division a statement

17  providing such person's name, trade name, principal place of

18  business address, and any other place of business.

19         (b)  By the 10th day of each month, a person that has

20  made a delivery sale or mailed, shipped, or delivered

21  cigarettes pursuant to such sale during the previous month

22  shall file with the division a memorandum or a copy of the

23  invoice that provides for each delivery sale:

24         1.  The name and address of the purchaser.

25         2.  The quantity and brands of cigarettes that were

26  sold in each delivery sale.

27         (c)  A person who complies with 15 U.S.C. s. 376 is

28  deemed to satisfy the requirements of this subsection.

29         (6)  Each person accepting a purchase order for a

30  delivery sale shall collect and remit to the division all

31  taxes imposed by the state for such delivery sale, except to

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 1  the extent such person has obtained proof, in the form of

 2  applicable tax stamps or otherwise, that the taxes have been

 3  paid.

 4         (7)  This section does not apply to a delivery sale of

 5  two cartons of cigarettes or less ordered from a retail dealer

 6  in this state that is primarily engaged in in-store sales of

 7  products other than cigarettes, the delivery is made to an

 8  address within a 5-mile radius of the retail dealer, and the

 9  price of all cigarettes in the delivery is less than 50

10  percent of the total price of goods in that delivery.

11         (8)(a)  Except as otherwise provided in this section, a

12  first violation of this section is punishable by a fine of

13  $1,000 or five times the retail value of the cigarettes

14  involved, whichever is greater. A second or subsequent

15  violation is punishable by a fine of $5,000 or five times the

16  retail value of the cigarettes involved, whichever is greater.

17         (b)  A person who knowingly violates this section or

18  who knowingly and falsely submits a certification under

19  subsection (2) in another person's name commits a felony of

20  the third degree, punishable as provided in s. 775.082, s.

21  775.083, or s. 775.084, and shall, for each offense, be fined

22  $10,000 or five times the retail value of the cigarettes

23  involved, whichever is greater.

24         (c)  A person who does not collect and remit to the

25  division any tax required in connection with a delivery sale

26  shall be assessed, in addition to any other penalty, a penalty

27  of five times the retail value of the cigarettes involved.

28         (d)  Any cigarettes sold or attempted to be sold in a

29  delivery sale that do not comply with this section shall be

30  forfeited to the state and destroyed. All fixtures, equipment,

31  or other materials and personal property on the premises of a

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 1  person who, with the intent to defraud the state, violates

 2  this section shall be forfeited to the state.

 3         (9)  In addition to or in lieu of the penalties in

 4  subsection (7), the Attorney General, the division, or any

 5  person who holds a valid permit under 26 U.S.C. s. 5712 may

 6  file suit to restrain violations of this section.

 7         Section 4.  Subsection (1) of section 210.06, Florida

 8  Statutes, is amended, and subsection (5) is added to that

 9  section, to read:

10         210.06  Affixation of stamps; presumption.--

11         (1)  Every dealer within or without the state shall,

12  within 10 days after receiving cigarettes, affix or cause to

13  be affixed to such package or container of such cigarettes,

14  stamps required by this section. Dealers outside of this state

15  shall affix such stamps before shipping the cigarettes into

16  this state, evidencing the payment of the tax imposed by

17  virtue of this part before such cigarettes are offered for

18  sale or use or consumed or before they are otherwise disposed

19  of in the state.

20         (a)  A tax stamp shall be applied to all cigarette

21  packages that are intended for sale or distribution to

22  consumers, subject to the tax imposed under s. 210.02, or that

23  are otherwise required to bear stamps pursuant to this part.

24         (b)  A stamp may not be applied to any cigarette

25  package that is exempt from tax under 26 U.S.C. s. 5701 which

26  is distributed by a manufacturer pursuant to federal

27  regulations.

28         (d)  Dealers may apply stamps only to cigarette

29  packages that they have received directly from a manufacturer

30  or importer who possesses a current permit under 26 U.S.C. s.

31  5712.

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 1         (5)  Except as provided in s. 210.09(1), a person,

 2  other than a dealer that receives unstamped cigarette packages

 3  directly from a cigarette manufacturer or importer pursuant to

 4  this section and s. 210.085, may not possess an unstamped

 5  cigarette package. Dealers may set aside, without application

 6  of stamps, only stock that is identified for sale or

 7  distribution outside this state. Unstamped packages must be

 8  stored separately from stamped product packages and may not be

 9  transferred to another facility of the dealer within this

10  state or to another person within this state.

11         Section 5.  Section 210.085, Florida Statutes, is

12  created to read:

13         210.085  Transactions only with permitted

14  manufacturers, importers, dealers, and retail dealers.--A

15  manufacturer, importer, or distributing agent may sell or

16  distribute cigarettes to a person located or doing business

17  within this state, including on tribal lands in this state,

18  only if such person is a dealer holding a current permit under

19  s. 210.15. A dealer may sell or distribute cigarettes to a

20  person located or doing business in this state, including on

21  tribal lands in this state, only if such person is a dealer or

22  retail dealer with a current permit under s. 210.15. A dealer

23  may obtain cigarettes only from a manufacturer or importer who

24  possesses a current permit under 26 U.S.C. s. 5712 or from a

25  distributing agent or dealer with a valid, current permit

26  under s. 210.15. A retail dealer may obtain cigarettes only

27  from a dealer with a valid, current permit under s. 210.15.

28         Section 6.  Subsection (1) of section 210.09, Florida

29  Statutes, is amended to read:

30         210.09  Records to be kept; reports to be made;

31  examination.--

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 1         (1)(a)  Every person who shall possess or transport any

 2  unstamped cigarettes upon the public highways, roads, or

 3  streets of the state, must shall be required to have in his or

 4  her actual possession invoices or delivery tickets for such

 5  cigarettes. The absence of such invoices or delivery tickets

 6  is shall be prima facie evidence that such person is a dealer

 7  in cigarettes in this state and subject to the provisions of

 8  this part.

 9         (b)  Before shipping unstamped cigarette packages into

10  this state to a person other than a dealer holding a current

11  permit pursuant to s. 210.15, a person must file with the

12  division a notice of such shipment. This paragraph does not

13  apply to a common or contract carrier that is transporting

14  cigarettes through this state to a location outside this state

15  under a bill of lading or freight bill, which states the

16  quantity, source, and destination of such cigarettes.

17         (c)  A division agent or employee or a state law

18  enforcement officer who has knowledge or reasonable grounds to

19  believe that a vehicle is transporting cigarettes in violation

20  of this part, may stop such vehicle and inspect it for

21  contraband cigarettes.

22         Section 7.  Section 210.12, Florida Statutes, is

23  amended to read:

24         210.12  Seizures; forfeiture proceedings.--

25         (1)  The state, acting by and through the division, may

26  shall be authorized and empowered to seize, confiscate, and

27  forfeit for the use and benefit of the state, any cigarettes

28  upon which taxes payable hereunder may be unpaid or which are

29  held in violation of this chapter, and also any vending

30  machine or receptacle in which such cigarettes upon which

31  taxes due under this section are unpaid are held for sale, or

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 1  any vending machine that does not have affixed thereto the

 2  identification sticker required by the provisions of s.

 3  210.07, or which does not display at all times at least one

 4  package of each brand of cigarettes located therein so the

 5  same is clearly visible and arranged so in such a manner that

 6  the cigarette tax stamp or meter impression of the stamp

 7  affixed thereto is clearly visible.  Such seizure may be made

 8  by the division, its duly authorized representative, any

 9  sheriff or deputy sheriff, or any police officer.

10         (2)  All fixtures, equipment, and other materials and

11  personal property on the premises of a dealer or retail dealer

12  who, with intent to defraud the state, does not maintain any

13  record, return, report, or inventory, or keeps or makes any

14  false or fraudulent record, return, report, or inventory,

15  required by this part, refuses to pay any tax imposed by this

16  part, or attempts to evade this part shall be forfeited to the

17  state and destroyed.

18         (3)(2)  Subject to subsection (2), the procedure for

19  seizure, the listing, appraisal, advertisement and sale of the

20  property seized, the bond of any claimant, the court

21  proceedings, if any, including the parties, personal service

22  of citation, and other personal services, the services by

23  publication, judicial sale, and all other proceedings for the

24  confiscation and forfeiture of the property for the nonpayment

25  of the taxes shall be regulated, conducted, governed and

26  controlled in the manner provided by chapter 562, relating to

27  the seizure, confiscation and forfeiture of property under the

28  Beverage Law which is incorporated herein by reference except

29  to the extent that such sections may conflict or be

30  inconsistent herewith.

31  

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 1         (4)(3)  From the proceeds of any sale hereunder the

 2  division shall collect the tax on the property, together with

 3  a penalty of 50 percent thereof and the costs incurred in such

 4  proceedings; the balance, if any, shall be payable by the

 5  division to the person in whose possession the said property

 6  was found or as the court may direct.

 7         (5)(4)  The distribution by the division of the

 8  proceeds of the sale from any cigarettes or other property

 9  that may be forfeited and confiscated hereunder shall, after

10  the payment of expenses of such forfeiture, be governed by the

11  provisions of this part.

12         (6)(5)  No sale shall be made hereunder to any person

13  except a licensed wholesale or retail dealer authorized to

14  engage in the sale of cigarettes under the laws of Florida.

15  All sales shall be made to the highest and best bidder for

16  cash. The division shall provide for the payment of any taxes

17  payable upon any cigarettes sold hereunder before the same are

18  delivered to any purchaser.

19         (7)(6)  The state attorney for the judicial circuit in

20  which such property was seized shall act as the attorney for

21  the division in such confiscation and forfeiture proceedings.

22         Section 8.  Subsection (1) of section 210.15, Florida

23  Statutes, is amended to read:

24         210.15  Permits.--

25         (1)(a)  Every person, firm, or corporation desiring to

26  engage in business deal in cigarettes as a distributing agent,

27  wholesale dealer, or exporter within this state shall file an

28  application for a cigarette permit for each place of business

29  in this state, or for its principal place of business if it

30  has no place of business in this state, with the Division of

31  Alcoholic Beverages and Tobacco.  Every application for a

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 1  cigarette permit shall be made on forms furnished by the

 2  division and shall set forth the name under which the

 3  applicant transacts or intends to transact business, the

 4  location of the applicant's place of business within the

 5  state, and such other information as the division may require.

 6  If the applicant has or intends to have more than one place of

 7  business dealing in cigarettes within this state, the

 8  application shall state the location of each place of

 9  business.  If the applicant is an association, the application

10  shall set forth the names and addresses of the persons

11  constituting the association, and if a corporation, the names

12  and addresses of the principal officers thereof and any other

13  information prescribed by the division for the purpose of

14  identification.  The application shall be signed and verified

15  by oath or affirmation by the owner, if a natural person, and

16  in the case of an association or partnership, members or

17  partners thereof, and in the case of a corporation, by an

18  executive officer thereof or by any person specifically

19  authorized by the corporation to sign the application, to

20  which shall be attached the written evidence of this

21  authority.  The cigarette permit for a distributing agent

22  shall be issued annually for which an annual fee of $5 shall

23  be charged.

24         (b)  The holder of any duly issued, annual permit for a

25  distributing agent shall be entitled to a renewal of his or

26  her annual permit from year to year as a matter of course, on

27  or before July 1, upon making application to the division and

28  upon payment of this annual permit fee.

29         (c)  Permits The permit for a distributing agent,

30  wholesale dealer, or exporter shall be issued only to persons

31  of good moral character, who are not less than 18 years of

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 1  age.  Distributing agent, wholesale dealer, or exporter

 2  Permits to corporations shall be issued only to corporations

 3  whose officers are of good moral character and not less than

 4  18 years of age.  There are shall be no exemptions from the

 5  permit fees herein provided to any persons, association of

 6  persons or corporation, any law to the contrary

 7  notwithstanding.

 8         (d)  A permit may not No distributing agent, wholesale

 9  dealer, or exporter permit shall be issued, maintained, or

10  renewed if the applicant or its officers or any person having,

11  directly or indirectly, in the aggregate, more than a

12  10-percent ownership interest in the applicant:

13         1.  Owes $500 or more in delinquent cigarette taxes;

14         2.  Has had a cigarette importer, retail dealer, or

15  dealer permit revoked by the division within the last 2 years;

16         3.  Has been convicted of any violation of the

17  cigarette laws of any state, including, but not limited to,

18  selling stolen or counterfeit cigarettes, receiving stolen

19  cigarettes, or involvement in smuggling or counterfeiting

20  cigarettes; or

21         4.  Has been convicted in any state or federal court of

22  any offense designated as a felony in such state court. to any

23  person who has been convicted within the past 5 years of any

24  offense against the cigarette laws of this state or who has

25  been convicted in this state, any other state, or the United

26  States during the past 5 years of any offense designated as a

27  felony by such state or the United States, or to a

28  corporation, any of whose officers have been so convicted. The

29  term "conviction", for purposes of this subsection, includes

30  shall include an adjudication of guilt on a plea of guilty or

31  

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 1  a plea of nolo contendere, or the forfeiture of a bond when

 2  charged with a crime.

 3         (e)(d)  The division shall may refuse to issue a

 4  distributing agent, wholesale, or exporter permit to any

 5  person, firm, or corporation whose permit under the cigarette

 6  law has been revoked or to any corporation, an officer of

 7  which has had his or her permit under the cigarette law

 8  revoked, or to any person who is or has been an officer of a

 9  corporation whose permit has been revoked under the cigarette

10  law.  Any permit issued to a firm or corporation prohibited

11  from obtaining such permit under the cigarette law shall may

12  be revoked by the division.

13         (f)(e)  Prior to an application for a distributing

14  agent, wholesale dealer, or exporter permit being approved,

15  the applicant shall file a set of fingerprints on forms

16  provided by the division. The applicant shall also file a set

17  of fingerprints for any person or persons interested directly

18  or indirectly with the applicant in the business for which the

19  permit is being sought, when so required by the division.  If

20  the applicant or any person interested with the applicant,

21  either directly or indirectly, in the business for which the

22  permit is sought shall be such a person as is within the

23  definition of persons to whom a distributing agent, wholesale

24  dealer, or exporter permit must shall be denied, then the

25  application may be denied by the division.  If the applicant

26  is a partnership, all members of the partnership are required

27  to file said  fingerprints, or if a corporation, all principal

28  officers of the corporation are required to file said

29  fingerprints.  The cigarette permit for a wholesale dealer or

30  exporter shall be originally issued at a fee of $100, which

31  

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 1  sum is to cover the cost of the investigation required before

 2  issuing such permit.

 3         (g)(f)  The permits issued under this section cigarette

 4  permit for a wholesale dealer or exporter shall be renewed

 5  from year to year as a matter of course, at an annual cost of

 6  $100, on or before July 1, upon making application to the

 7  division and upon payment of the annual renewal fee.

 8         (h)(g)  Permittees, by acceptance of their permits,

 9  agree that their places of business or vehicles transporting

10  cigarettes shall always be subject to be inspected and

11  searched without a search warrant for the purpose of

12  ascertaining that all provisions of this part are complied

13  with by authorized employees of the division and also by

14  sheriffs, deputy sheriffs, and police officers during business

15  hours or during any other time such premises are occupied by

16  the permittee or other persons.  Retail cigarette dealers and

17  manufacturers' representatives, by dealing in cigarettes,

18  agree that their places of business or vehicles transporting

19  cigarettes shall always be subject to inspection and search

20  without a search warrant for the purpose of ascertaining that

21  all provisions of this part are complied with by authorized

22  employees of the division and also by sheriffs, deputy

23  sheriffs, and police officers during business hours or other

24  times when the premises are occupied by the retail dealer or

25  manufacturers' representatives or other persons.

26         (i)(h)  No Retail sales of cigarettes may not be made

27  at a location for which a wholesale dealer, distributing

28  agent, or exporter permit has been issued. The excise tax on

29  sales made to any traveling location, such as an itinerant

30  store or industrial caterer, shall be paid into the General

31  Revenue Fund unallocated. Cigarettes may be purchased for

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 1  retail purposes only from a person holding a wholesale dealer

 2  permit.  The invoice for the purchase of cigarettes must show

 3  the place of business for which the purchase is made and the

 4  cigarettes cannot be transferred to any other place of

 5  business for the purpose of resale.

 6         Section 9.  Subsections (2) and (3) of section 210.18,

 7  Florida Statutes, are amended and subsection (9) is added to

 8  that section, to read:

 9         210.18  Penalties for tax evasion; reports by

10  sheriffs.--

11         (2)  Any person wholesale or retail dealer who does not

12  fails, neglects, or refuses to comply with, or violates the

13  provisions of, this part or the rules adopted and regulations

14  promulgated by the division under this part is guilty of a

15  misdemeanor of the first degree, punishable as provided in s.

16  775.082 or s. 775.083.  Any person wholesale or retail dealer

17  who has been convicted of a violation of any provision of the

18  cigarette tax law and who is thereafter convicted of a further

19  violation of the cigarette tax law is, upon conviction of such

20  further offense, guilty of a felony of the third degree,

21  punishable as provided in s. 775.082, s. 775.083, or s.

22  775.084.

23         (3)  Any person who falsely or fraudulently makes,

24  forges, alters, or counterfeits any stamp or impression die

25  used in meter machines prescribed by the division under the

26  provisions of this part; or, with intent to evade taxes, jams,

27  tampers with, or alters such a machine; or causes or procures

28  to be falsely or fraudulently made, forged, altered, or

29  counterfeited any such stamp or die; or knowingly and

30  willfully utters, purchases, passes or tenders as true any

31  such false, altered, or counterfeited stamp or die impression;

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 1  or with the intent to defraud the state, does not comply with

 2  a requirement of this chapter, commits is guilty of a felony

 3  of the third degree, punishable as provided in s. 775.082, s.

 4  775.083, or s. 775.084.

 5         (9)  Notwithstanding any other provision of law, the

 6  sale or possession for sale of counterfeit cigarettes by any

 7  person shall result in the seizure of the product and related

 8  machinery by the division or any law enforcement agency and is

 9  punishable as follows:

10         (a)1.  A first violation with a total quantity of less

11  than two cartons of cigarettes, or the equivalent amount of

12  other cigarettes, is punishable by a fine not to exceed $1,000

13  or five times the retail value of the cigarettes, whichever is

14  greater, or imprisonment for a term not to exceed 5 years, or

15  both.

16         2.  A subsequent violation with a total quantity of

17  less than two cartons of cigarettes, or the equivalent amount

18  of other cigarettes, is punishable by a fine not to exceed

19  $5,000 or five times the retail value of the cigarettes,

20  whichever is greater, or imprisonment for a term not to exceed

21  5 years, or both, and shall also result in the revocation by

22  the division of the permit of the permittee.

23         (b)1.  A first violation with a total quantity of two

24  or more cartons of cigarettes, or the equivalent amount of

25  other cigarettes, is punishable by a fine not to exceed $2,000

26  or five times the retail value of the cigarettes, whichever is

27  greater, or imprisonment for a term not to exceed 5 years, or

28  both.

29         2.  A subsequent violation with a quantity of two

30  cartons of cigarettes or more, or the equivalent amount of

31  other cigarettes, is punishable by a fine not to exceed

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 1  $50,000 or five times the retail value of the cigarettes,

 2  whichever is greater, or imprisonment not to exceed a term of

 3  5 years, or both, and shall also result in the revocation by

 4  the division of the permit of the permittee.

 5  

 6  As used in this subsection, the term "counterfeit cigarettes"

 7  includes cigarettes that have false manufacturing labels,

 8  cigarette packs without tax stamps or with counterfeit tax

 9  stamps or a combination thereof. Counterfeit cigarettes seized

10  by the division shall be destroyed.

11         Section 10.  Section 210.181, Florida Statutes, is

12  created to read:

13         210.181  Civil penalties.--

14         (1)  A person who knowingly omits, neglects, or refuses

15  to comply with any duty imposed upon him or her by this part,

16  or to do, or cause to be done, any of the things required by

17  this part, or does anything prohibited by this part shall, in

18  addition to any other penalty, be liable for a fine of $1,000

19  or five times the retail value of the cigarettes involved,

20  whichever is greater.

21         (2)  A person who does not pay a tax imposed by this

22  part at the time prescribed by law or rule is, in addition to

23  any other penalty, liable for a penalty of five times the

24  unpaid tax due.

25         Section 11.  This act shall take effect upon becoming a

26  law.

27  

28            *****************************************

29                          SENATE SUMMARY

30    Revises provisions relating to cigarette taxes. Regulates
      delivery sales of cigarettes and establishes procedures
31    for such deliveries. Revises provisions relative to tax
      stamps. (See bill for details.)
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