HB 1261

1	A bill to be entitled
2	An act relating to nonsettling manufacturer cigarettes;
3	creating s. 210.0205, F.S.; providing definitions;
4	imposing a fee on certain cigarettes; providing payment
5	requirements; requiring reporting of the number and
6	denominations of stamps affixed to individual packages of
7	certain cigarettes by manufacturer and brand family;
8	authorizing rulemaking regarding such reports; requiring
9	registration with the Division of Alcoholic Beverages and
10	Tobacco of the Department of Business and Professional
11	Regulation of nonsettling manufacturers of cigarettes;
12	requiring development, maintenance, and publication by the
13	division of a list of nonsettling manufacturers of
14	cigarettes which have certified their compliance with this
15	act; treating cigarettes of certain manufacturers that
16	have not paid the fee imposed by this act or that have not
17	complied with reporting requirements as cigarettes for
18	which the tax imposed by s. 210.02, F.S., has not been
19	paid; prohibiting the stamping of certain cigarettes for
20	which the fee imposed by this act has not been paid in
21	full or the nonsettling manufacturer of which has not
22	complied with reporting requirements; providing
23	conditional applicability to subsequent participating
24	manufacturers; amending s. 210.01, F.S.; revising and
25	providing definitions; amending s. 210.05, F.S.; providing
26	stamp requirements for cigarettes in transport; providing
27	stamp exceptions for certain cigarettes; requiring
28	transporters of certain cigarettes to submit certain
29	reports; amending s. 210.06, F.S.; revising requirements
30	for and limitations on the affixation of stamps; providing
31	requirements with respect to receipt, possession, storage,
32	and transport of unstamped cigarette packages; creating s.
33	210.085, F.S.; requiring manufacturers, importers,
34	distributing agents, dealers, and retail dealers to hold a
35	current, valid permit to sell, distribute, or receive
36	cigarettes; amending s. 210.09, F.S.; providing notice and
37	filing guidelines for certain person shipping unstamped
38	cigarette packages; authorizing certain law enforcement
39	officials to inspect certain shipping vehicles; amending
40	s. 210.12, F.S.; authorizing the state to claim certain
41	property and materials from certain dealers and retailers
42	who attempt to defraud the state; authorizing the
43	destruction of certain cigarettes; amending s. 210.15,
44	F.S.; providing criteria for permit application;
45	prohibiting issuance, maintenance, or renewal of certain
46	permits for certain applicants; providing guidelines for
47	permit application denial; amending s. 210.18, F.S.;
48	expanding the group of violators subject to criminal
49	liability; prohibiting the sale or possession for sale of
50	counterfeit cigarettes; providing penalties; creating s.
51	210.181, F.S.; providing civil penalties for failure to
52	comply with certain duties or pay certain taxes;
53	reenacting ss. 772.102(1)(a) and 895.02(1)(a), F.S.,
54	relating to crimes constituting a "criminal activity" and
55	definitions as used in the Florida RICO Act, to
56	incorporate the amendment to s. 210.18, F.S., in
57	references thereto; providing an appropriation and
58	authorizing positions; providing an appropriation to the
59	Department of Health; providing purposes; amending s.
60	17.41, F.S.; providing additional source of revenue to the
61	Tobacco Settlement Clearing Trust Fund; providing an
62	effective date.
63
64	WHEREAS, it is the intent of the Legislature to prevent
65	nonsettling manufacturers from undermining the state's policy of
66	reducing underage smoking by offering their cigarettes for sale
67	substantially below the price of cigarettes of other
68	manufacturers; to protect the tobacco settlement agreement and
69	funding, which is reduced as a result of the growth of
70	nonsettling manufacturer cigarette sales, for programs funded in
71	whole or in part by payments to the state under the tobacco
72	settlement agreement and to recoup for the state settlement-
73	payment revenue lost to the state as a result of nonsettling
74	manufacturer cigarette sales; to fund enforcement and
75	administration of nonsettling manufacturer legislation and the
76	fee imposed in this act, including reasonable administrative
77	costs incurred by wholesale dealers complying with any
78	additional reporting requirements necessitated by this act; and
79	to fund such other purposes as the Legislature determines, NOW,
80	THEREFORE,
81
82	Be It Enacted by the Legislature of the State of Florida:
83
84	Section 1.  Section 210.0205, Florida Statutes, is created
85	to read:
86	210.0205  Nonsettling manufacturer fee.--
87	(1)  As used in this section, the term:
88	(a)  "Brand family" means all styles of cigarettes sold
89	under the same trademark and differentiated from one another by
90	means of additional modifiers or descriptors, including, but not
91	limited to, "menthol," "lights," "kings," and "100s." The term
92	includes any brand name, alone or in conjunction with any other
93	word, trademark, logo, symbol, motto, selling message,
94	recognizable pattern of colors, or other indicia of product
95	identification identical or similar to, or identifiable with, a
96	previously known brand of cigarettes.
97	(b)  "Consumer Price Index" means the Consumer Price Index
98	for All Urban Consumers as published by the Bureau of Labor
99	Statistics of the United States Department of Labor.
100	(c)  "Manufacturer" means a person or entity who
101	manufactures, fabricates, or assembles cigarettes. The term
102	includes an entity that is the first importer into the United
103	States of cigarettes manufactured abroad.
104	(d)  "Nonsettling manufacturer" means any tobacco product
105	manufacturer that has not entered into the tobacco settlement
106	agreement defined in s. 215.56005(1)(f), or into the Attorneys
107	General Settlement Agreement with Brooke Group, Ltd., Liggett &
108	Myers, Inc., and Liggett Group, Inc. dated March 15, 1996.
109	(e)  "Nonsettling manufacturer cigarettes" means cigarettes
110	manufactured by a nonsettling manufacturer, except when payments
111	on such cigarettes are due to be made by a settling manufacturer
112	pursuant to a tobacco settlement agreement described in
113	paragraph (d).
114	(2)  A fee, in addition to all other taxes or fees of every
115	kind imposed by law, is imposed upon the sale, receipt,
116	purchase, possession, consumption, handling, distribution, and
117	use in this state of nonsettling manufacturer cigarettes to the
118	package of which an agent affixes a stamp or stamp insignia as
119	required by law or which are sold or purchased in the state but
120	are not required to bear a stamp or stamp insignia of this
121	state. The fee is in the amount of 20 mills per cigarette.
122	Beginning January 1, 2007, and on January 1 of each year
123	thereafter, the division shall adjust the tax rate by the
124	greater of 3 percent or the percentage change in the average of
125	the Consumer Price Index issued by the United States Department
126	of Labor for the most recent 12-month period ending September 30
127	compared to the 12-month period ending September 30 of the prior
128	year.
129	(3)  The division shall collect the fee once each month
130	from each nonsettling manufacturer based on information received
131	pursuant to subsection (6). The division shall mail to each
132	nonsettling manufacturer not later than the 15th day of each
133	month a notice of the fee due from that manufacturer for sales
134	of its cigarettes made in the preceding month. Each such
135	nonsettling manufacturer shall ensure that the division has
136	received payment of the fee in full no later than the last day
137	of the month in which the notice was mailed. Except as otherwise
138	provided in this section, proceeds from the fee shall be
139	deposited into the Tobacco Settlement Clearing Trust Fund and
140	the fee shall be imposed, collected, paid, administered, and
141	enforced in the same manner as the tax on cigarettes imposed by
142	s. 210.02.
143	(4)  A nonsettling manufacturer selling cigarettes in this
144	state on the effective date of this act shall provide to the
145	division the information described in subsections (7) and (8)
146	and pay the fee imposed by subsection (2) within 30 days after
147	the effective date of this act. If a nonsettling manufacturer is
148	not selling cigarettes in this state on the effective date of
149	this act, before commencing sales of cigarettes in this state,
150	the nonsettling manufacturer shall prepay the fee imposed by
151	subsection (2). The prepayment amount shall be a sum determined
152	by multiplying by 20 mills the number of cigarettes the division
153	reasonably projects that the nonsettling manufacturer will sell
154	in this state in the first calendar month or $50,000, whichever
155	is more. The division may require a nonsettling manufacturer to
156	provide any information reasonably necessary to determine the
157	amount of the prepayment fee and, in the case of prepayment,
158	shall establish procedures for providing reimbursement to
159	nonsettling manufacturers if actual sales are less than sales
160	projected by the division and for additional payment by
161	nonsettling manufacturers if actual sales are greater than sales
162	projected by the division. As used in this subsection, the term
163	"cigarettes" refers only to nonsettling manufacturer cigarettes.
164	(5)  The purposes of the fee are to:
165	(a)  Prevent nonsettling manufacturers from undermining the
166	state's policy of reducing underage smoking by offering
167	cigarettes for sale substantially below the price of cigarettes
168	of other manufacturers.
169	(b)1.  Protect the tobacco settlement agreement, as defined
170	in s. 215.56005(1)(f), and funding, which is reduced as a result
171	of the growth of nonsettling manufacturer cigarette sales, for
172	programs funded in whole or in part by payments to the state
173	under the tobacco settlement agreement; and
174	2.  Recoup for the state settlement payment revenue lost to
175	the state as a result of nonsettling manufacturer cigarette
176	sales.
177	(c)  Fund enforcement and administration of nonsettling
178	manufacturer legislation and the fee imposed by this section,
179	including reasonable administrative costs incurred by wholesale
180	dealers complying with any additional reporting requirements
181	necessitated by this section.
182	(d)  Fund such other purposes as the Legislature
183	determines; however, $16 million of the proceeds received under
184	this act shall be provided annually through quarterly
185	disbursements to the Department of Health, for the purposes of
186	implementing a statewide anti-smoking marketing, educational,
187	and advertising campaign to reduce youth tobacco use. The
188	Department of Health shall conduct surveillance and evaluations
189	to measure program performance and improve implementation
190	strategies. The Department of Health may contract for any of the
191	activities specified in this section.
192	(6)  Monthly reports shall be made to the division pursuant
193	to s. 210.09(2) by each agent and wholesaler. Such reports shall
194	state the number and denominations of stamps or stamp insignia
195	affixed to individual packages of nonsettling manufacturer
196	cigarettes and the number of individual packages of nonsettling
197	manufacturer cigarettes otherwise sold or purchased in this
198	state or otherwise handled or distributed in this state for sale
199	in another state, commonwealth, or territory of the United
200	States, by manufacturer and brand family, sold for each place of
201	business in the month preceding the month in which the report is
202	made. The division may adopt rules requiring any agent,
203	wholesaler, wholesale dealer, or nonsettling manufacturer to
204	provide in the monthly report any information necessary or
205	appropriate to determining the fee due under subsection (2) or
206	to enforcing this act.
207	(7)  Before commencing sales of cigarettes in this state
208	or, if selling cigarettes in this state on the effective date of
209	this act, within 30 days after the effective date of this act, a
210	nonsettling manufacturer shall provide to the division, on a
211	form prescribed by the division:
212	(a)  The complete name, address, and telephone number of
213	the nonsettling manufacturer.
214	(b)  The date the nonsettling manufacturer began or intends
215	to begin selling cigarettes in this state.
216	(c)  The names of the brand families of the cigarettes the
217	nonsettling manufacturer is selling or will sell in this state.
218	(d)  A statement of the nonsettling manufacturer's
219	intention to comply with the obligations imposed by this
220	section.
221	(e)  The name, address, telephone number, and signature of
222	an officer of the nonsettling manufacturer attesting to all of
223	the information described in this subsection.
224	(8)  Each nonsettling manufacturer subject to the fee
225	imposed by subsection (2) shall certify to the division on the
226	first day of each month that the manufacturer is in compliance
227	with this section and has paid in full the fee imposed by
228	subsection (2). The division shall develop, maintain, and
229	publish on its Internet website a directory listing all
230	nonsettling manufacturers that have provided current, accurate,
231	and complete certifications. The division shall provide a copy
232	of the list to any person upon request.
233	(9)  Cigarettes of a nonsettling manufacturer that has not
234	paid a fee imposed by subsection (2) or that has not complied
235	with the reporting requirements of subsections (4), (6), (7),
236	and (8) shall be treated as cigarettes for which the tax imposed
237	by s. 210.02 has not been paid. A person shall not affix to any
238	package of nonsettling manufacturer cigarettes the stamp
239	required under s. 210.06, or otherwise purchase or sell such
240	cigarettes, after such person receives notice from the division
241	that the nonsettling manufacturer of such cigarettes has not
242	paid in full the fee imposed by subsection (2) or if the
243	nonsettling manufacturer is not listed on the division's
244	directory described in subsection (8).
245	(10)  The fee imposed by this section does not apply to a
246	subsequent participating manufacturer, as defined in the master
247	settlement agreement, until the effective date of a credit
248	amendment to the master settlement agreement. For purposes of
249	this subsection, the term "master settlement agreement" means
250	the settlement agreement and related documents entered into in
251	1998 by 46 states and leading United States tobacco
252	manufacturers. An amendment to the master settlement agreement
253	shall be considered a credit amendment if such amendment makes
254	available to each subsequent participating manufacturer, other
255	than any subsequent participating manufacturer that has an
256	agreement as of the effective date of this act, each year a
257	credit against its payment obligations under the master
258	settlement agreement equal to or greater than the product of the
259	total number of individual cigarettes sold by a subsequent
260	participating manufacturer in this state during the year in
261	question, multiplied by at least 73.2 percent of the per
262	cigarette fee provided for in this section, and does not
263	condition that credit on such subsequent participating
264	manufacturer forfeiting in whole or in part any other benefits
265	or credits provided for in the master settlement agreement. This
266	subsection does not apply to any subsequent participating
267	manufacturer that as of the effective date of this act already
268	had an agreement with the settling states, as defined in the
269	master settlement agreement, pursuant to which agreement the
270	subsequent participating manufacturer has agreed to a different
271	credit against its payment obligations under the master
272	settlement agreement based on its cigarette sales in this state.
273	Section 2.  Subsections (6) and (7) of section 210.01,
274	Florida Statutes, are amended, and subsections (19) through (23)
275	are added to said section, to read:
276	210.01  Definitions.--When used in this part the following
277	words shall have the meaning herein indicated:
278	(6)  "Wholesale dealer" means any person located inside or
279	outside this state who sells cigarettes to retail dealers or
280	other persons for purposes of resale only, or any person who
281	operates more than one cigarette vending machine located in more
282	than one place of business. Such term shall not include any
283	cigarette manufacturer, export warehouse proprietor, or importer
284	with a valid permit under 26 U.S.C. s. 5712 if such person sells
285	or distributes cigarettes in this state only to dealers who are
286	agents and who hold valid and current permits under s. 210.15 or
287	to any cigarette manufacturer, export warehouse proprietor, or
288	importer who holds a valid and current permit under 26 U.S.C. s.
289	5712.
290	(7)  "Retail dealer" means any person located inside or
291	outside this state other than a wholesale dealer engaged in the
292	business of selling cigarettes, including persons licensed
293	pursuant to s. 569.003.
294	(19)  "Stamp" or "stamps" means the indicia required to be
295	placed on cigarette packages that evidences payment of the tax
296	on cigarettes under s. 210.02.
297	(20)  "Importer" means any person with a valid permit under
298	26 U.S.C. s. 5712 who imports into the United States, directly
299	or indirectly, a finished cigarette for sale or distribution.
300	(21)  "Manufacturer" means any person with a valid permit
301	under 26 U.S.C. s. 5712 who manufactures, fabricates, assembles,
302	processes, or labels a finished cigarette.
303	(22)  "Counterfeit cigarettes" means cigarettes that have
304	false manufacturing labels, tobacco product packs with
305	counterfeit tax stamps, or any combination thereof.
306	(23)  "Brand family" means all styles of cigarettes sold
307	under the same trademark and differentiated from one another by
308	means of additional modifiers or descriptors, including, but not
309	limited to, "menthol," "lights," "kings," and "100s," and
310	includes any brand name used alone or in conjunction with any
311	other word, trademark, logo, symbol, motto, selling message,
312	recognizable pattern of colors, or any other indicia of product
313	identification identical or similar to, or identifiable with, a
314	previously known brand of cigarettes.
315	Section 3.  Subsection (6) is added to section 210.05,
316	Florida Statutes, to read:
317	210.05  Preparation and sale of stamps; discount.--
318	(6)(a)  A person may not transport or cause to be
319	transported from this state cigarettes for sale in another state
320	without first affixing to the cigarettes the stamp required by
321	the state in which the cigarettes are to be sold or paying any
322	other excise tax on the cigarettes imposed by the state in which
323	the cigarettes are to be sold.
324	(b)  A person may not affix to cigarettes the stamp
325	required by another state or pay any other excise tax on the
326	cigarettes imposed by another state if the other state prohibits
327	stamps from being affixed to the cigarettes, prohibits the
328	payment of any other excise tax on the cigarettes, or prohibits
329	the sale of the cigarettes.
330	(c)  The requirements of paragraphs (a) and (b) do not
331	apply to cigarettes with respect to which the manufacturer or
332	importer either is a participating manufacturer (as defined in
333	section II(jj) of the master settlement agreement) or is in full
334	compliance with the qualifying statute (as defined in section
335	IX(d)(2)(E) of the master settlement agreement) of the state in
336	which the cigarettes are to be sold. An exemption pursuant to
337	this paragraph may only be asserted with respect to cigarettes
338	that, in the case of a participating manufacturer, are deemed to
339	be its cigarettes for purposes of calculating its payments under
340	the master settlement agreement for the relevant year in the
341	volumes and shares determined pursuant to the master settlement
342	agreement and, in the case of all other manufacturers and
343	importers, are deemed to be its cigarettes for purposes of the
344	applicable qualifying statute. For purposes of this subsection,
345	the term "master settlement agreement" means the settlement
346	agreement and related documents entered into in 1998 by 46
347	states and leading United States tobacco manufacturers. A person
348	asserting an exemption pursuant to this paragraph shall submit
349	the reports required by paragraph (d) and shall certify as
350	provided in that paragraph.
351	(d)  On or before the 10th day of each month, a person who
352	transports or causes to be transported from this state
353	cigarettes for sale in another state shall submit to the
354	division a report identifying the quantity and brand family of
355	each brand of the cigarettes transported or caused to be
356	transported in the preceding calendar month and the name and
357	address of each recipient of the cigarettes. Such person shall
358	also certify under oath and subject to the penalties of perjury
359	that:
360	1.  The stamps required by paragraph (a) have been affixed
361	in accordance with that paragraph or that such stamps were not
362	affixed pursuant to paragraph (b); or
363	2.  Such person satisfies the requirements of paragraph
364	(c).
365	(e)  For purposes of this section, the term "person" means
366	an individual, partnership, committee, association, corporation,
367	or any other organization or group of persons. "Person" does not
368	include any common or contract carrier or public warehouse that
369	is not owned, in whole or in part, directly or indirectly, by
370	the person transporting the cigarettes or causing the transport
371	to be made.
372
373	This subsection shall not be deemed to authorize the possession
374	or transportation of cigarettes by any person not so authorized
375	by another provision of this part.
376	Section 4.  Subsection (1) of section 210.06, Florida
377	Statutes, is amended, and subsection (5) is added to said
378	section, to read:
379	210.06  Affixation of stamps; presumption.--
380	(1)  Every dealer within or without the state shall affix
381	or cause to be affixed to such package or container of such
382	cigarettes such, stamps as are required under this section
383	within 10 days after receipt of such products. Dealers outside
384	this state shall affix such stamps before the shipment of
385	cigarettes into this state, evidencing the payment of the tax
386	imposed by virtue of this part before such cigarettes are
387	offered for sale or use or consumed or before they are otherwise
388	disposed of in the state.
389	(a)  A tax stamp shall be applied to all cigarette packages
390	intended for sale or distribution to consumers subject to the
391	tax imposed under s. 210.02, except as otherwise provided in
392	this section.
393	(b)  No stamp shall be applied to any cigarette package
394	exempt from tax under 26 U.S.C. s. 5704 that is distributed by a
395	manufacturer pursuant to federal regulations.
396	(c)  Dealers may apply stamps only to cigarette packages
397	received directly from a manufacturer or importer of cigarettes
398	who possesses a valid and current permit under 26 U.S.C. s.
399	5712.
400	(5)  Except as provided in s. 210.09(1), no person, other
401	than a dealer that receives unstamped cigarette packages
402	directly from a cigarette manufacturer or importer in accordance
403	with this section and s. 210.085, shall hold or possess an
404	unstamped cigarette package. Dealers shall be permitted to set
405	aside, without application of stamps, only such part of the
406	dealer's stock that is identified for sale or distribution
407	outside this state. If a dealer maintains stocks of unstamped
408	cigarette packages, such unstamped packages shall be stored
409	separately from stamped product packages. No unstamped cigarette
410	packages shall be transferred by a dealer to another facility of
411	the dealer within this state or to another person within this
412	state.
413	Section 5.  Section 210.085, Florida Statutes, is created
414	to read:
415	210.085  Transactions only with permitted manufacturers,
416	importers, distributing agents, dealers, and retail dealers.--A
417	manufacturer, importer, or distributing agent may sell or
418	distribute cigarettes to a person located or doing business
419	within this state only if such person is a dealer with a valid,
420	current permit under s. 210.15. A dealer may sell or distribute
421	cigarettes to a person located or doing business within this
422	state only if such person is a dealer or retail dealer with a
423	valid, current permit under s. 569.003. A dealer may obtain
424	cigarettes only from a manufacturer or importer who possesses a
425	valid, current permit under 26 U.S.C. s. 5712 or from a
426	distributing agent or dealer with a valid, current permit under
427	s. 210.15. A retail dealer may obtain cigarettes only from a
428	manufacturer, importer, or dealer with a valid, current permit
429	under s. 210.15.
430	Section 6.  Subsection (1) of section 210.09, Florida
431	Statutes, is amended to read:
432	210.09  Records to be kept; reports to be made;
433	examination.--
434	(1)(a)  Every person who shall possess or transport any
435	unstamped cigarettes upon the public highways, roads, or streets
436	of the state, shall be required to have in his or her actual
437	possession invoices or delivery tickets for such cigarettes. The
438	absence of such invoices or delivery tickets shall be prima
439	facie evidence that such person is a dealer in cigarettes in
440	this state and subject to the provisions of this part.
441	(b)  Any person who ships unstamped cigarette packages into
442	this state other than to a manufacturer, importer, or dealer
443	holding a valid, current permit pursuant to s. 210.15 shall
444	first file with the division a notice of such shipment. This
445	paragraph shall not apply to any common or contract carrier that
446	is transporting cigarettes through this state to another
447	location outside this state under a proper bill of lading or
448	freight bill that states the quantity, source, and destination
449	of such cigarettes.
450	(c)  In any case in which the division or its duly
451	authorized agent, or any law enforcement officer of this state,
452	has knowledge or reasonable grounds to believe that any vehicle
453	is transporting cigarettes in violation of this part, the
454	division, such agent, or such law enforcement officer is
455	authorized to stop such vehicle and inspect the vehicle for
456	contraband cigarettes.
457	Section 7.  Subsection (1) of section 210.12, Florida
458	Statutes, is amended, subsections (2) through (6) of said
459	section are renumbered as subsections (4) through (8),
460	respectively, and new subsections (2) and (3) are added to said
461	section, to read:
462	210.12  Seizures; forfeiture proceedings.--
463	(1)  The state, acting by and through the division, shall
464	be authorized and empowered to seize, confiscate, and forfeit
465	for the use and benefit of the state, any cigarettes upon which
466	taxes payable hereunder may be unpaid or that are otherwise held
467	in violation of the requirements of this chapter, and also any
468	vending machine or receptacle in which such cigarettes upon
469	which taxes have not been paid are held for sale, or any vending
470	machine that does not have affixed thereto the identification
471	sticker required by the provisions of s. 210.07, or which does
472	not display at all times at least one package of each brand of
473	cigarettes located therein so the same is clearly visible and
474	arranged in such a manner that the cigarette tax stamp or meter
475	impression of the stamp affixed thereto is clearly visible. Such
476	seizure may be made by the division, its duly authorized
477	representative, any sheriff or deputy sheriff, or any police
478	officer.
479	(2)  All fixtures, equipment, and other materials and
480	personal property on the premises of any dealer or retail dealer
481	who, with intent to defraud the state, fails to keep or make any
482	record, return, report, or inventory required by this part;
483	keeps or makes any false or fraudulent record, return, report,
484	or inventory required by this part; refuses to pay any tax
485	imposed by this part; or attempts in any manner to evade or
486	defeat the requirements of this part shall be forfeited to the
487	state.
488	(3)  All cigarettes seized, confiscated, and forfeited to
489	the state under this part shall be destroyed.
490	Section 8.  Subsection (1) of section 210.15, Florida
491	Statutes, is amended to read:
492	210.15  Permits.--
493	(1)(a)  Every person, firm, or corporation desiring to
494	engage in business as a manufacturer, importer, exporter,
495	distributing agent, or wholesale dealer of cigarettes deal in
496	cigarettes as a distributing agent, wholesale dealer, or
497	exporter within this state shall file with the division an
498	application for a cigarette permit for each place of business
499	located within this state or, in the absence of such place of
500	business in this state, for wherever its principal place of
501	business is located with the Division of Alcoholic Beverages and
502	Tobacco. Every application for a cigarette permit shall be made
503	on forms furnished by the division and shall set forth the name
504	under which the applicant transacts or intends to transact
505	business, the location of the applicant's place of business
506	within the state, if any, and such other information as the
507	division may require. If the applicant has or intends to have
508	more than one place of business dealing in cigarettes within
509	this state, the application shall state the location of each
510	place of business. If the applicant is an association, the
511	application shall set forth the names and addresses of the
512	persons constituting the association, and if a corporation, the
513	names and addresses of the principal officers thereof and any
514	other information prescribed by the division for the purpose of
515	identification. The application shall be signed and verified by
516	oath or affirmation by the owner, if a natural person, and in
517	the case of an association or partnership, members or partners
518	thereof, and in the case of a corporation, by an executive
519	officer thereof or by any person specifically authorized by the
520	corporation to sign the application, to which shall be attached
521	the written evidence of this authority. The cigarette permit for
522	a distributing agent shall be issued annually for which an
523	annual fee of $5 shall be charged.
524	(b)  The holder of any duly issued, annual permit for a
525	distributing agent shall be entitled to a renewal of his or her
526	annual permit from year to year as a matter of course, on or
527	before July 1, upon making application to the division and upon
528	payment of this annual permit fee.
529	(c)  Permits The permit for a distributing agent, wholesale
530	dealer, or exporter shall be issued only to persons of good
531	moral character, who are not less than 18 years of age.
532	Distributing agent, wholesale dealer, or exporter Permits to
533	corporations shall be issued only to corporations whose officers
534	are of good moral character and not less than 18 years of age.
535	There shall be no exemptions from the permit fees herein
536	provided to any persons, association of persons, or corporation,
537	any law to the contrary notwithstanding.
538	(d)  No distributing agent, wholesale dealer, or exporter
539	permit shall be issued, maintained, or renewed if the applicant,
540	its officers, or any person or persons owning directly or
541	indirectly, in the aggregate, more than 10 percent of the
542	ownership interests in the applicant:
543	1.  Owes $500 or more in delinquent cigarette taxes;
544	2.  Had a cigarette importer, retail dealer, or dealer
545	permit revoked by the division within the previous 2 years;
546	3.  Has been convicted of selling stolen or counterfeit
547	cigarettes, receiving stolen cigarettes, or being involved in
548	the counterfeiting of cigarettes; or
549	4.  Has to any person who has been convicted within the
550	past 5 years of any offense against the cigarette laws of this
551	state or who has been convicted in this state, any other state,
552	or the United States during the past 5 years of any offense
553	designated as a felony by such state or the United States, or to
554	a corporation, any of whose officers have been so convicted. The
555	term "convicted" "conviction" shall include an adjudication of
556	guilt on a plea of guilty or a plea of nolo contendere, or the
557	forfeiture of a bond when charged with a crime.
558	(e)(d)  The division may refuse to issue a distributing
559	agent, wholesale, or exporter permit to any person, firm, or
560	corporation whose permit under the cigarette law has been
561	revoked or to any corporation, an officer of which has had his
562	or her permit under the cigarette law revoked, or to any person
563	who is or has been an officer of a corporation whose permit has
564	been revoked under the cigarette law. Any permit issued to a
565	firm or corporation prohibited from obtaining such permit under
566	the cigarette law may be revoked by the division.
567	(f)(e)  Prior to an application for a distributing agent,
568	wholesale dealer, or exporter permit being approved, the
569	applicant shall file a set of fingerprints on forms provided by
570	the division. The applicant shall also file a set of
571	fingerprints for any person or persons interested directly or
572	indirectly with the applicant in the business for which the
573	permit is being sought, when so required by the division. If the
574	applicant or any person interested with the applicant, either
575	directly or indirectly, in the business for which the permit is
576	sought shall be such a person as is within the definition of
577	persons to whom a distributing agent, wholesale dealer, or
578	exporter permit shall be denied, then the application may be
579	denied by the division. If the applicant is a partnership, all
580	members of the partnership are required to file said
581	fingerprints, or if a corporation, all principal officers of the
582	corporation are required to file said fingerprints. The
583	cigarette permit for a wholesale dealer or exporter shall be
584	originally issued at a fee of $100, which sum is to cover the
585	cost of the investigation required before issuing such permit.
586	(g)(f)  The cigarette permits issued under this section
587	permit for a wholesale dealer or exporter shall be renewed from
588	year to year as a matter of course, at an annual cost of $100,
589	on or before July 1, upon making application to the division and
590	upon payment of the annual renewal fee.
591	(h)(g)  Permittees, by acceptance of their permits, agree
592	that their places of business or vehicles transporting
593	cigarettes shall always be subject to be inspected and searched
594	without a search warrant for the purpose of ascertaining that
595	all provisions of this part are complied with by authorized
596	employees of the division and also by sheriffs, deputy sheriffs,
597	and police officers during business hours or during any other
598	time such premises are occupied by the permittee or other
599	persons. Retail cigarette dealers and manufacturers'
600	representatives, by dealing in cigarettes, agree that their
601	places of business or vehicles transporting cigarettes shall
602	always be subject to inspection and search without a search
603	warrant for the purpose of ascertaining that all provisions of
604	this part are complied with by authorized employees of the
605	division and also by sheriffs, deputy sheriffs, and police
606	officers during business hours or other times when the premises
607	are occupied by the retail dealer or manufacturers'
608	representatives or other persons.
609	(i)(h)  No retail sales of cigarettes may be made at a
610	location for which a wholesale dealer, distributing agent, or
611	exporter permit has been issued. The excise tax on sales made to
612	any traveling location, such as an itinerant store or industrial
613	caterer, shall be paid into the General Revenue Fund
614	unallocated. Cigarettes may be purchased for retail purposes
615	only from a person holding a wholesale dealer permit. The
616	invoice for the purchase of cigarettes must show the place of
617	business for which the purchase is made and the cigarettes
618	cannot be transferred to any other place of business for the
619	purpose of resale.
620	Section 9.  Subsections (2), (3), and (6) of section
621	210.18, Florida Statutes, are amended, and subsection (9) is
622	added to said section, to read:
623	210.18  Penalties for tax evasion; reports by sheriffs.--
624	(2)  Except as otherwise provided in this section, any
625	person wholesale or retail dealer who fails, neglects, or
626	refuses to comply with, or violates the provisions of, this part
627	or the rules adopted and regulations promulgated by the division
628	under this part commits is guilty of a misdemeanor of the first
629	degree, punishable as provided in s. 775.082 or s. 775.083. Any
630	person wholesale or retail dealer who has been convicted of a
631	violation of any provision of the cigarette tax law and who is
632	thereafter convicted of a further violation of the cigarette tax
633	law is, upon conviction of such further offense, guilty of a
634	felony of the third degree, punishable as provided in s.
635	775.082, s. 775.083, or s. 775.084.
636	(3)  Any person who falsely or fraudulently makes, forges,
637	alters, or counterfeits any stamp or impression die used in
638	meter machines prescribed by the division under the provisions
639	of this part; or, with intent to evade taxes, jams, tampers
640	with, or alters such a machine; or causes or procures to be
641	falsely or fraudulently made, forged, altered, or counterfeited
642	any such stamp or die; or knowingly and willfully utters,
643	purchases, passes, or tenders as true any such false, altered,
644	or counterfeited stamp or die impression; or, with the intent to
645	defraud the state, fails to comply with any other requirement of
646	this chapter commits is guilty of a felony of the third degree,
647	punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
648	(6)(a)  Every person, firm, or corporation, other than a
649	licensee under the provisions of this part, who possesses,
650	removes, deposits, or conceals, or aids in the possessing,
651	removing, depositing, or concealing of, any unstamped cigarettes
652	not in excess of 50 cartons is guilty of a misdemeanor of the
653	second degree, punishable as provided in s. 775.082 or s.
654	775.083. In lieu of the penalties provided in those sections,
655	however, the person, firm, or corporation may pay the tax plus a
656	penalty equal to the amount of the tax authorized under s.
657	210.02 on the unstamped cigarettes.
658	(a)(b)  Every person, firm, or corporation, other than a
659	licensee under the provisions of this part, who possesses,
660	removes, deposits, or conceals, or aids in the possessing,
661	removing, depositing, or concealing of, any unstamped cigarettes
662	in excess of 50 cartons is presumed to have knowledge that they
663	have not been taxed and commits is guilty of a felony of the
664	third degree, punishable as provided in s. 775.082, s. 775.083,
665	or s. 775.084.
666	(b)(c)  This section does not apply to a person possessing
667	not in excess of three cartons of such cigarettes purchased by
668	such possessor outside the state in accordance with the laws of
669	the place where purchased and brought into this state by such
670	possessor. The burden of proof that such cigarettes were
671	purchased outside the state and in accordance with the laws of
672	the place where purchased shall in all cases be upon the
673	possessor of such cigarettes.
674	(9)  Notwithstanding any other provision of law, the sale
675	or possession for sale of counterfeit cigarettes by any person
676	or by a manufacturer, importer, distributing agent, wholesale
677	dealer, or retail dealer shall result in the seizure of the
678	product and related machinery by the division or any law
679	enforcement agency and shall be punishable as follows:
680	(a)1.  A first violation with a total quantity of less than
681	two cartons of cigarettes or the equivalent amount of other
682	cigarettes shall be punishable by a fine not to exceed $1,000 or
683	five times the retail value of the cigarettes involved,
684	whichever is greater, or imprisonment not to exceed 5 years, or
685	both.
686	2.  A subsequent violation with a total quantity of less
687	than two cartons of cigarettes or the equivalent amount of other
688	cigarettes shall be punishable by a fine not to exceed $5,000 or
689	five times the retail value of the cigarettes involved,
690	whichever is greater, or imprisonment not to exceed 5 years, or
691	both, and shall also result in the revocation by the division of
692	the permit of the manufacturer, importer, distributing agent,
693	wholesale dealer, or retail dealer.
694	(b)1.  A first violation with a total quantity of two or
695	more cartons of cigarettes or the equivalent amount of other
696	cigarettes shall be punishable by a fine not to exceed $2,000 or
697	five times the retail value of the cigarettes involved,
698	whichever is greater, or imprisonment not to exceed 5 years, or
699	both.
700	2.  A subsequent violation with a quantity of two cartons
701	of cigarettes or more or the equivalent amount of other
702	cigarettes shall be punishable by a fine not to exceed $50,000
703	or five times the retail value of the cigarettes involved,
704	whichever is greater, or imprisonment not to exceed 5 years, or
705	both, and shall also result in the revocation by the division of
706	the permit of the manufacturer, importer, distributing agent,
707	wholesale dealer, or retail dealer.
708
709	For purposes of this subsection, any counterfeit cigarettes
710	seized by the division shall be destroyed.
711	Section 10.  Section 210.181, Florida Statutes, is created
712	to read:
713	210.181  Civil penalties.--
714	(1)  Whoever knowingly omits, neglects, or refuses to
715	comply with any duty imposed upon him or her by this part, or to
716	do or cause to be done any of the things required by this part,
717	or does anything prohibited by this part shall, in addition to
718	any other penalty provided in this part, be liable for a fine of
719	$1,000 or five times the retail value of the cigarettes
720	involved, whichever is greater.
721	(2)  Whoever fails to pay any tax imposed by this part at
722	the time prescribed by law or rules shall, in addition to any
723	other penalty provided in this part, be liable for a penalty of
724	five times the unpaid tax due.
725	Section 11.  For the purpose of incorporating the amendment
726	made by this act to section 210.18, Florida Statutes, in a
727	reference thereto, paragraph (a) of subsection (1) of section
728	772.102, Florida Statutes, is reenacted to read:
729	772.102  Definitions.--As used in this chapter, the term:
730	(1)  "Criminal activity" means to commit, to attempt to
731	commit, to conspire to commit, or to solicit, coerce, or
732	intimidate another person to commit:
733	(a)  Any crime which is chargeable by indictment or
734	information under the following provisions:
735	1.  Section 210.18, relating to evasion of payment of
736	cigarette taxes.
737	2.  Section 414.39, relating to public assistance fraud.
738	3.  Section 440.105 or s. 440.106, relating to workers'
739	compensation.
740	4.  Part IV of chapter 501, relating to telemarketing.
741	5.  Chapter 517, relating to securities transactions.
742	6.  Section 550.235, s. 550.3551, or s. 550.3605, relating
743	to dogracing and horseracing.
744	7.  Chapter 550, relating to jai alai frontons.
745	8.  Chapter 552, relating to the manufacture, distribution,
746	and use of explosives.
747	9.  Chapter 562, relating to beverage law enforcement.
748	10.  Section 624.401, relating to transacting insurance
749	without a certificate of authority, s. 624.437(4)(c)1., relating
750	to operating an unauthorized multiple-employer welfare
751	arrangement, or s. 626.902(1)(b), relating to representing or
752	aiding an unauthorized insurer.
753	11.  Chapter 687, relating to interest and usurious
754	practices.
755	12.  Section 721.08, s. 721.09, or s. 721.13, relating to
756	real estate timeshare plans.
757	13.  Chapter 782, relating to homicide.
758	14.  Chapter 784, relating to assault and battery.
759	15.  Chapter 787, relating to kidnapping.
760	16.  Chapter 790, relating to weapons and firearms.
761	17.  Section 796.03, s. 796.04, s. 796.05, or s. 796.07,
762	relating to prostitution.
763	18.  Chapter 806, relating to arson.
764	19.  Section 810.02(2)(c), relating to specified burglary
765	of a dwelling or structure.
766	20.  Chapter 812, relating to theft, robbery, and related
767	crimes.
768	21.  Chapter 815, relating to computer-related crimes.
769	22.  Chapter 817, relating to fraudulent practices, false
770	pretenses, fraud generally, and credit card crimes.
771	23.  Section 827.071, relating to commercial sexual
772	exploitation of children.
773	24.  Chapter 831, relating to forgery and counterfeiting.
774	25.  Chapter 832, relating to issuance of worthless checks
775	and drafts.
776	26.  Section 836.05, relating to extortion.
777	27.  Chapter 837, relating to perjury.
778	28.  Chapter 838, relating to bribery and misuse of public
779	office.
780	29.  Chapter 843, relating to obstruction of justice.
781	30.  Section 847.011, s. 847.012, s. 847.013, s. 847.06, or
782	s. 847.07, relating to obscene literature and profanity.
783	31.  Section 849.09, s. 849.14, s. 849.15, s. 849.23, or s.
784	849.25, relating to gambling.
785	32.  Chapter 893, relating to drug abuse prevention and
786	control.
787	33.  Section 914.22 or s. 914.23, relating to witnesses,
788	victims, or informants.
789	34.  Section 918.12 or s. 918.13, relating to tampering
790	with jurors and evidence.
791	Section 12.  For the purpose of incorporating the amendment
792	made by this act to section 210.18, Florida Statutes, in a
793	reference thereto, paragraph (a) of subsection (1) of section
794	895.02, Florida Statutes, is reenacted to read:
795	895.02  Definitions.--As used in ss. 895.01-895.08, the
796	term:
797	(1)  "Racketeering activity" means to commit, to attempt to
798	commit, to conspire to commit, or to solicit, coerce, or
799	intimidate another person to commit:
800	(a)  Any crime which is chargeable by indictment or
801	information under the following provisions of the Florida
802	Statutes:
803	1.  Section 210.18, relating to evasion of payment of
804	cigarette taxes.
805	2.  Section 403.727(3)(b), relating to environmental
806	control.
807	3.  Section 409.920 or s. 409.9201, relating to Medicaid
808	fraud.
809	4.  Section 414.39, relating to public assistance fraud.
810	5.  Section 440.105 or s. 440.106, relating to workers'
811	compensation.
812	6.  Section 465.0161, relating to distribution of medicinal
813	drugs without a permit as an Internet pharmacy.
814	7.  Sections 499.0051, 499.0052, 499.00535, 499.00545, and
815	499.0691, relating to crimes involving contraband and
816	adulterated drugs.
817	8.  Part IV of chapter 501, relating to telemarketing.
818	9.  Chapter 517, relating to sale of securities and
819	investor protection.
820	10.  Section 550.235, s. 550.3551, or s. 550.3605, relating
821	to dogracing and horseracing.
822	11.  Chapter 550, relating to jai alai frontons.
823	12.  Chapter 552, relating to the manufacture,
824	distribution, and use of explosives.
825	13.  Chapter 560, relating to money transmitters, if the
826	violation is punishable as a felony.
827	14.  Chapter 562, relating to beverage law enforcement.
828	15.  Section 624.401, relating to transacting insurance
829	without a certificate of authority, s. 624.437(4)(c)1., relating
830	to operating an unauthorized multiple-employer welfare
831	arrangement, or s. 626.902(1)(b), relating to representing or
832	aiding an unauthorized insurer.
833	16.  Section 655.50, relating to reports of currency
834	transactions, when such violation is punishable as a felony.
835	17.  Chapter 687, relating to interest and usurious
836	practices.
837	18.  Section 721.08, s. 721.09, or s. 721.13, relating to
838	real estate timeshare plans.
839	19.  Chapter 782, relating to homicide.
840	20.  Chapter 784, relating to assault and battery.
841	21.  Chapter 787, relating to kidnapping.
842	22.  Chapter 790, relating to weapons and firearms.
843	23.  Section 796.03, s. 796.035, s. 796.04, s. 796.045, s.
844	796.05, or s. 796.07, relating to prostitution and sex
845	trafficking.
846	24.  Chapter 806, relating to arson.
847	25.  Section 810.02(2)(c), relating to specified burglary
848	of a dwelling or structure.
849	26.  Chapter 812, relating to theft, robbery, and related
850	crimes.
851	27.  Chapter 815, relating to computer-related crimes.
852	28.  Chapter 817, relating to fraudulent practices, false
853	pretenses, fraud generally, and credit card crimes.
854	29.  Chapter 825, relating to abuse, neglect, or
855	exploitation of an elderly person or disabled adult.
856	30.  Section 827.071, relating to commercial sexual
857	exploitation of children.
858	31.  Chapter 831, relating to forgery and counterfeiting.
859	32.  Chapter 832, relating to issuance of worthless checks
860	and drafts.
861	33.  Section 836.05, relating to extortion.
862	34.  Chapter 837, relating to perjury.
863	35.  Chapter 838, relating to bribery and misuse of public
864	office.
865	36.  Chapter 843, relating to obstruction of justice.
866	37.  Section 847.011, s. 847.012, s. 847.013, s. 847.06, or
867	s. 847.07, relating to obscene literature and profanity.
868	38.  Section 849.09, s. 849.14, s. 849.15, s. 849.23, or s.
869	849.25, relating to gambling.
870	39.  Chapter 874, relating to criminal street gangs.
871	40.  Chapter 893, relating to drug abuse prevention and
872	control.
873	41.  Chapter 896, relating to offenses related to financial
874	transactions.
875	42.  Sections 914.22 and 914.23, relating to tampering with
876	a witness, victim, or informant, and retaliation against a
877	witness, victim, or informant.
878	43.  Sections 918.12 and 918.13, relating to tampering with
879	jurors and evidence.
880	Section 13.  For the 2005-2006 fiscal year, the sum of
881	$480,028 is appropriated from the Alcoholic Beverage and Tobacco
882	Trust Fund and four full-time equivalent positions are
883	authorized to be established by the Department of Business and
884	Professional Regulation for the purpose of conducting regulatory
885	activities related to the transportation and sale of cigarettes.
886	Section 14.  From the funds generated by this act, the sum
887	of $2 million is appropriated to the Department of Health to
888	address health care disparities in the minority community.
889	Section 15.  Subsection (2) of section 17.41, Florida
890	Statutes, is amended to read:
891	17.41  Department of Financial Services Tobacco Settlement
892	Clearing Trust Fund.--
893	(2)  Funds to be credited to the Tobacco Settlement
894	Clearing Trust Fund shall consist of payments received by the
895	state from settlement of State of Florida v. American Tobacco
896	Co., No. 95-1466AH (Fla. 15th Cir. Ct. 1996) and fees from the
897	nonsettling manufacturer fee collected pursuant to s. 210.0205.
898	Moneys received from the settlement and fees and deposited into
899	the trust fund are exempt from the service charges imposed under
900	s. 215.20.
901	Section 16.  This act shall take effect on July 1, 2005.

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