Senate Bill sb0816c1
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Florida Senate - 2005 CS for SB 816
By the Committee on Regulated Industries; and Senators
Haridopolos and Dockery
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1 A bill to be entitled
2 An act relating to contraband and counterfeit
3 cigarettes and the collection of existing
4 taxes; providing additional regulatory and
5 enforcement measures; amending s. 210.01, F.S.;
6 revising and providing definitions; amending s.
7 210.021, F.S.; directing the Secretary of
8 Business and Professional Regulation to require
9 certain dealers and agents to remit the tax on
10 cigarettes by certified check or electronic
11 funds transfer; requiring the Division of
12 Alcoholic Beverages and Tobacco of the
13 Department of Business and Professional
14 Regulation to adopt rules governing the payment
15 of taxes by electronic funds transfer; amending
16 s. 210.06, F.S.; revising requirements for and
17 limitations on the affixation of stamps;
18 providing requirements with respect to receipt,
19 possession, storage, and transport of unstamped
20 cigarette packages; amending s. 210.08, F.S.;
21 revising the amount of the surety bond,
22 certificate of deposit, or irrevocable letter
23 of credit required by the division as surety
24 for the payment of cigarette taxes; providing
25 for exceptions; creating s. 210.085, F.S.;
26 requiring manufacturers, importers,
27 distributing agents, dealers, and retail
28 dealers to hold a current, valid permit to
29 sell, distribute, or receive cigarettes;
30 amending s. 210.09, F.S.; providing notice and
31 filing guidelines for certain persons shipping
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1 unstamped cigarette packages; authorizing
2 certain law enforcement officials to inspect
3 certain shipping vehicles; providing for
4 application to and records requirements of
5 manufacturers and importers; amending s.
6 210.12, F.S.; authorizing the state to claim
7 certain property and materials from certain
8 dealers and retailers who attempt to defraud
9 the state; authorizing the destruction of
10 certain cigarettes; amending s. 210.15, F.S.;
11 providing criteria for permit application;
12 prohibiting issuance, maintenance, or renewal
13 of certain permits for certain applicants;
14 providing guidelines for permit application
15 denial; amending s. 210.16, F.S.; revising the
16 authority of the Division of Alcoholic
17 Beverages and Tobacco to revoke or suspend the
18 permits of certain persons under certain
19 circumstances; revising a penalty period for
20 revoked permits; increasing a civil penalty;
21 amending s. 210.18, F.S.; expanding the group
22 of violators subject to criminal liability;
23 prohibiting the sale or possession for sale of
24 counterfeit cigarettes; providing penalties;
25 requiring that the seizure of unstamped
26 cigarettes be reported to the division;
27 requiring the division to keep records
28 concerning seized unstamped cigarettes;
29 creating s. 210.181, F.S.; providing civil
30 penalties for failure to comply with certain
31 duties or pay certain taxes; reenacting ss.
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1 772.102(1)(a) and 895.02(1)(a), F.S., relating
2 to crimes constituting a "criminal activity"
3 and definitions as used in the Florida RICO
4 Act, to incorporate the amendment to s. 210.18,
5 F.S., in references thereto; providing an
6 effective date.
7
8 Be It Enacted by the Legislature of the State of Florida:
9
10 Section 1. Subsections (6) and (7) of section 210.01,
11 Florida Statutes, are amended, and subsections (19) through
12 (22) are added to that section, to read:
13 210.01 Definitions.--When used in this part the
14 following words shall have the meaning herein indicated:
15 (6) "Wholesale dealer" means any person located inside
16 or outside this state who sells cigarettes to retail dealers
17 or other persons for purposes of resale only, or any person
18 who operates more than one cigarette vending machine located
19 in more than one place of business. Such term shall not
20 include any cigarette manufacturer, export warehouse
21 proprietor, or importer with a valid permit under 26 U.S.C. s.
22 5712 if such person sells or distributes cigarettes in this
23 state only to dealers who are agents and who hold valid and
24 current permits under s. 210.15 or to any cigarette
25 manufacturer, export warehouse proprietor, or importer who
26 holds a valid and current permit under 26 U.S.C. s. 5712.
27 (7) "Retail dealer" means any person located inside or
28 outside this state other than a wholesale dealer engaged in
29 the business of selling cigarettes, including persons issued a
30 permit pursuant to s. 569.003.
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1 (19) "Stamp" or "stamps" means the indicia required to
2 be placed on cigarette packages that evidence payment of the
3 tax on cigarettes under s. 210.02.
4 (20) "Importer" means any person with a valid permit
5 under 26 U.S.C. s. 5712 who imports into the United States,
6 directly or indirectly, a finished cigarette for sale or
7 distribution.
8 (21) "Manufacturer" means any domestic person or
9 entity with a valid permit under 26 U.S.C. s. 5712 that
10 manufactures, fabricates, assembles, processes, or labels a
11 finished cigarette.
12 (22) "Counterfeit cigarettes" means cigarettes that
13 have false manufacturing labels, tobacco product packs with
14 counterfeit tax stamps, or any combination thereof.
15 Section 2. Section 210.021, Florida Statutes, is
16 amended to read:
17 210.021 Payment of taxes by certified check or
18 electronic funds transfer.--
19 (1) The Secretary of Business and Professional
20 Regulation may require a dealer who sells cigarettes within
21 the state to remit by certified check or electronic funds
22 transfer any tax imposed under s. 210.02 if the taxpayer is
23 subject to the tax and if the total of such taxes he or she
24 paid in the prior year amounted to $50,000 or more.
25 (2) The Secretary of Business and Professional
26 Regulation shall require for a period not to exceed 12 months
27 that a dealer or agent, during the dealer's or agent's initial
28 period of licensure or appointment, remit by certified check
29 or electronic funds transfer any tax imposed under s. 210.02.
30 (3) The division shall adopt rules pursuant to ss.
31 120.536(1) and 120.54 to administer this section.
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1 Section 3. Subsection (1) of section 210.06, Florida
2 Statutes, is amended, and subsection (5) is added to that
3 section, to read:
4 210.06 Affixation of stamps; presumption.--
5 (1) Every dealer within or without the state shall
6 affix or cause to be affixed to such package or container of
7 such cigarettes such, stamps as are required under this
8 section within 10 days after receipt of such products. Dealers
9 outside this state shall affix such stamps before the shipment
10 of cigarettes into this state, evidencing the payment of the
11 tax imposed by virtue of this part before such cigarettes are
12 offered for sale or use or consumed or before they are
13 otherwise disposed of in the state.
14 (a) A tax stamp shall be applied to all cigarette
15 packages intended for sale or distribution to consumers
16 subject to the tax imposed under s. 210.02, except as
17 otherwise provided in this part.
18 (b) No stamp shall be applied to any cigarette package
19 exempt from tax under 26 U.S.C. s. 5704 that is distributed by
20 a manufacturer pursuant to federal regulations.
21 (c) Dealers may apply stamps only to cigarette
22 packages received directly from a manufacturer or importer of
23 cigarettes, or a distributing agent representing a
24 manufacturer or importer of cigarettes, who possesses a valid
25 and current permit under this part.
26 (5) Except as provided in s. 210.04(9) or s.
27 210.09(1), no person, other than a dealer or distributing
28 agent that receives unstamped cigarette packages directly from
29 a cigarette manufacturer or importer in accordance with this
30 section and s. 210.085, shall hold or possess an unstamped
31 cigarette package. Dealers shall be permitted to set aside,
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1 without application of stamps, only such part of the dealer's
2 stock that is identified for sale or distribution outside this
3 state. If a dealer maintains stocks of unstamped cigarette
4 packages, such unstamped packages shall be stored separately
5 from stamped product packages. No unstamped cigarette packages
6 shall be transferred by a dealer to another facility of the
7 dealer within this state or to another person within this
8 state.
9 Section 4. Section 210.08, Florida Statutes, is
10 amended to read:
11 210.08 Bond for payment of taxes.--Each dealer, agent,
12 or distributing agent shall file with the division a surety
13 bond, certificate of deposit, or irrevocable letter of credit
14 acceptable to the division in an amount of 110 percent of the
15 estimated tax liability for 30 days, but not less than $2,000.
16 the sum of $10,000 as surety for the payment of all taxes;
17 provided, however, that where in the discretion of the
18 division the amount of business done by the dealer, agent, or
19 distributing agent is of such volume that a bond, certificate
20 of deposit, or irrevocable letter of credit of less than
21 $10,000 will be adequate to secure the payment of all taxes
22 assessed as authorized by the cigarette tax law, the division
23 may accept a bond, certificate of deposit, or irrevocable
24 letter of credit in a lesser sum than $10,000, but in no event
25 shall it accept a bond, certificate of deposit, or irrevocable
26 letter of credit of less than $1,000, and it may at any time
27 in its discretion require any bond, certificate of deposit, or
28 irrevocable letter of credit in an amount less than $10,000 to
29 be increased not to exceed $10,000.
30 Section 5. Section 210.085, Florida Statutes, is
31 created to read:
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1 210.085 Transactions only with permitted
2 manufacturers, importers, distributing agents, dealers, and
3 retail dealers.--Except as otherwise provided in s. 210.04(9),
4 a manufacturer or importer, or a distributing agent
5 representing a manufacturer or importer, may sell or
6 distribute cigarettes to a person located or doing business
7 within this state only if such person is a dealer or importer
8 with a valid, current permit under s. 210.15. A distributing
9 agent may accept cigarettes from a manufacturer or importer
10 with a valid, current permit for transfer to a dealer with a
11 valid, current permit but may not own or sell cigarettes. A
12 dealer may sell or distribute cigarettes to a person located
13 or doing business within this state only if such person is a
14 dealer or retail dealer with a valid, current permit under s.
15 569.003. A dealer may obtain cigarettes only from a
16 manufacturer or importer or from a distributing agent or
17 dealer with a valid, current permit under s. 210.15. A retail
18 dealer may obtain cigarettes only from a dealer with a valid,
19 current permit under s. 210.15.
20 Section 6. Subsections (1), (2), and (3) and paragraph
21 (a) of subsection (4) of section 210.09, Florida Statutes, are
22 amended to read:
23 210.09 Records to be kept; reports to be made;
24 examination.--
25 (1)(a) Every person who shall possess or transport any
26 unstamped cigarettes upon the public highways, roads, or
27 streets of the state, shall be required to have in his or her
28 actual possession invoices or delivery tickets for such
29 cigarettes. The absence of such invoices or delivery tickets
30 shall be prima facie evidence that such person is a dealer in
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1 cigarettes in this state and subject to the provisions of this
2 part.
3 (b) Any person who ships unstamped cigarette packages
4 into this state other than to a manufacturer, an importer, or
5 a distributing agent representing a manufacturer or an
6 importer, or dealer holding a valid, current permit pursuant
7 to s. 210.15 shall first file with the division a notice of
8 such shipment. This paragraph shall not apply to any common or
9 contract carrier that is transporting cigarettes through this
10 state to another location outside this state under a proper
11 bill of lading or freight bill that states the quantity,
12 source, and destination of such cigarettes or to cigarettes
13 shipped or otherwise transported pursuant to s. 210.04(9).
14 (c) In any case in which the division or its duly
15 authorized agent, or any law enforcement officer of this
16 state, has knowledge or reasonable grounds to believe that any
17 vehicle is transporting cigarettes in violation of this part,
18 the division, such agent, or such law enforcement officer is
19 authorized to stop such vehicle and inspect the vehicle for
20 contraband cigarettes.
21 (2) The division is authorized to prescribe and
22 promulgate by rules and regulations, which shall have the
23 force and effect of the law, such records to be kept and
24 reports to be made to the division by any manufacturer,
25 importer, distributing agent, wholesale dealer, retail dealer,
26 common carrier, or any other person handling, transporting or
27 possessing cigarettes for sale or distribution within the
28 state as may be necessary to collect and properly distribute
29 the taxes imposed by s. 210.02. All reports shall be made on
30 or before the 10th day of the month following the month for
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1 which the report is made, unless the division by rule or
2 regulation shall prescribe that reports be made more often.
3 (3) All manufacturers, importers, distributing agents,
4 wholesale dealers, agents, or retail dealers shall maintain
5 and keep for a period of 3 years at the place of business
6 where any transaction takes place, such records of cigarettes
7 received, sold, or delivered within the state as may be
8 required by the division. The division or its duly authorized
9 representative is hereby authorized to examine the books,
10 papers, invoices, and other records, the stock of cigarettes
11 in and upon any premises where the same are placed, stored,
12 and sold, and the equipment of any such manufacturers,
13 importers, distributing agents, wholesale dealers, agents, or
14 retail dealers, pertaining to the sale and delivery of
15 cigarettes taxable under this part. To verify the accuracy of
16 the tax imposed and assessed by this part, each person is
17 hereby directed and required to give to the division or its
18 duly authorized representatives the means, facilities, and
19 opportunity for such examinations as are herein provided for
20 and required.
21 (4)(a) All persons who are either cigarette
22 manufacturers, importers, wholesalers, vending machine
23 operators or distributing agents, and agents and employees of
24 the same, are required to keep daily sales tickets or invoices
25 of cigarette sales and it shall be the duty of said persons to
26 see that each sales ticket and invoice handled by them or on
27 behalf of them show the correct name and address to whom sold
28 and the number of packages or cartons of each brand sold. It
29 shall also be the duty of said persons to see that each sales
30 ticket or invoice correctly shows whether the same is inside
31 or outside of a qualified municipality and if the sale is made
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1 within the limits of a qualified municipality, the correct
2 name of the municipality must be indicated.
3 Section 7. Subsection (1) of section 210.12, Florida
4 Statutes, is amended, subsections (2) through (6) of that
5 section are renumbered as subsections (4) through (8),
6 respectively, and new subsections (2) and (3) are added to
7 that section, to read:
8 210.12 Seizures; forfeiture proceedings.--
9 (1) The state, acting by and through the division,
10 shall be authorized and empowered to seize, confiscate, and
11 forfeit for the use and benefit of the state, any cigarettes
12 upon which taxes payable hereunder may be unpaid or that are
13 otherwise held in violation of the requirements of this
14 chapter, and also any vending machine or receptacle in which
15 such cigarettes upon which taxes have not been paid are held
16 for sale, or any vending machine that does not have affixed
17 thereto the identification sticker required by the provisions
18 of s. 210.07, or which does not display at all times at least
19 one package of each brand of cigarettes located therein so the
20 same is clearly visible and arranged in such a manner that the
21 cigarette tax stamp or meter impression of the stamp affixed
22 thereto is clearly visible. Such seizure may be made by the
23 division, its duly authorized representative, any sheriff or
24 deputy sheriff, or any police officer.
25 (2) All fixtures, equipment, and other materials and
26 personal property on the premises of any dealer, retail
27 dealer, or distributing agent who, with intent to defraud the
28 state, fails to keep or make any record, return, report, or
29 inventory required by this part; keeps or makes any false or
30 fraudulent record, return, report, or inventory required by
31 this part; refuses to pay any tax imposed by this part; or
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1 attempts in any manner to evade or defeat the requirements of
2 this part shall be forfeited to the state.
3 (3) All cigarettes seized, confiscated, and forfeited
4 to the state under this part shall be destroyed.
5 Section 8. Subsection (1) of section 210.15, Florida
6 Statutes, is amended to read:
7 210.15 Permits.--
8 (1)(a) Every person, firm, or corporation desiring to
9 engage in business as a manufacturer, importer, exporter,
10 distributing agent, or wholesale dealer of cigarettes deal in
11 cigarettes as a distributing agent, wholesale dealer, or
12 exporter within this state shall file with the division an
13 application for a cigarette permit for each place of business
14 located within this state or, in the absence of such place of
15 business in this state, for wherever its principal place of
16 business is located with the Division of Alcoholic Beverages
17 and Tobacco. Every application for a cigarette permit shall be
18 made on forms furnished by the division and shall set forth
19 the name under which the applicant transacts or intends to
20 transact business, the location of the applicant's place of
21 business within the state, if any, and such other information
22 as the division may require. If the applicant has or intends
23 to have more than one place of business dealing in cigarettes
24 within this state, the application shall state the location of
25 each place of business. If the applicant is an association,
26 the application shall set forth the names and addresses of the
27 persons constituting the association, and if a corporation,
28 the names and addresses of the principal officers thereof and
29 any other information prescribed by the division for the
30 purpose of identification. The application shall be signed and
31 verified by oath or affirmation by the owner, if a natural
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1 person, and in the case of an association or partnership,
2 members or partners thereof, and in the case of a corporation,
3 by an executive officer thereof or by any person specifically
4 authorized by the corporation to sign the application, to
5 which shall be attached the written evidence of this
6 authority. The cigarette permit for a distributing agent shall
7 be issued annually for which an annual fee of $5 shall be
8 charged.
9 (b) The holder of any duly issued, annual permit for a
10 distributing agent shall be entitled to a renewal of his or
11 her annual permit from year to year as a matter of course, on
12 or before July 1, upon making application to the division and
13 upon payment of this annual permit fee.
14 (b)(c) Permits The permit for a distributing agent,
15 wholesale dealer, or exporter shall be issued only to persons
16 of good moral character, who are not less than 18 years of
17 age. Distributing agent, wholesale dealer, or exporter Permits
18 to corporations shall be issued only to corporations whose
19 officers are of good moral character and not less than 18
20 years of age. There shall be no exemptions from the permit
21 fees herein provided to any persons, association of persons,
22 or corporation, any law to the contrary notwithstanding.
23 (c) No distributing agent, wholesale dealer, or
24 exporter permit under this part or chapter 569 shall be
25 issued, maintained, or renewed if the applicant, its officers,
26 or any person or persons owning directly or indirectly, in the
27 aggregate, more than 10 percent of the ownership interests in
28 the applicant:
29 1. Has been finally adjudicated as owing $500 or more
30 in delinquent cigarette taxes;
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1 2. Had a permit revoked by the division within the
2 previous 2 years;
3 3. Has been convicted of selling stolen or counterfeit
4 cigarettes, receiving stolen cigarettes, or being involved in
5 the counterfeiting of cigarettes;
6 4. to any person who Has been convicted within the
7 past 5 years of any offense against the cigarette laws of this
8 state or who has been convicted in this state, any other
9 state, or the United States during the past 5 years of any
10 offense designated as a felony by such state or the United
11 States, or to a corporation, any of whose officers have been
12 so convicted. The term "convicted conviction" shall include an
13 adjudication of guilt on a plea of guilty or a plea of nolo
14 contendere, or the forfeiture of a bond when charged with a
15 crime;.
16 5. Has imported, or caused to be imported, into the
17 United States any cigarette in violation of 19 U.S.C. s.
18 1681a; or
19 6. Has imported, or caused to be imported into the
20 United States, or manufactured for sale or distribution in the
21 United States, any cigarette that does not fully comply with
22 the Federal Cigarette Labeling and Advertising Act (15 U.S.C.
23 ss. 1331 et seq.).
24 (d) The division may refuse to issue a distributing
25 agent, wholesale, or exporter permit to any person, firm, or
26 corporation whose permit under the cigarette law has been
27 revoked, or to any corporation, an officer of which has had
28 his or her permit under the cigarette law revoked, or to any
29 person who is or has been an officer of a corporation whose
30 permit has been revoked under the cigarette law. Any permit
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1 issued to a firm or corporation prohibited from obtaining such
2 permit under the cigarette law may be revoked by the division.
3 (e) Prior to an application for a distributing agent,
4 wholesale dealer, or exporter permit being approved, the
5 applicant shall file a set of fingerprints on forms provided
6 by the division. The applicant shall also file a set of
7 fingerprints for any person or persons interested directly or
8 indirectly with the applicant in the business for which the
9 permit is being sought, when so required by the division. If
10 the applicant or any person interested with the applicant,
11 either directly or indirectly, in the business for which the
12 permit is sought shall be such a person as is within the
13 definition of persons to whom a distributing agent, wholesale
14 dealer, or exporter permit shall be denied, then the
15 application may be denied by the division. If the applicant is
16 a partnership, all members of the partnership are required to
17 file said fingerprints, or if a corporation, all principal
18 officers of the corporation are required to file said
19 fingerprints. The cigarette permit for a manufacturer,
20 importer, distributing agent, wholesale dealer, or exporter
21 shall be originally issued at a fee of $100, which sum is to
22 cover the cost of the investigation required before issuing
23 such permit.
24 (f) The cigarette permits issued under this section
25 permit for a wholesale dealer or exporter shall be renewed
26 from year to year as a matter of course, at an annual cost of
27 $100, on or before July 1, upon making application to the
28 division and upon payment of the annual renewal fee.
29 (g) Permittees, by acceptance of their permits, agree
30 that their places of business or vehicles transporting
31 cigarettes shall always be subject to be inspected and
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1 searched without a search warrant for the purpose of
2 ascertaining that all provisions of this part are complied
3 with by authorized employees of the division and also by
4 sheriffs, deputy sheriffs, and police officers during business
5 hours or during any other time such premises are occupied by
6 the permittee or other persons. Retail cigarette dealers and
7 manufacturers' representatives, by dealing in cigarettes,
8 agree that their places of business or vehicles transporting
9 cigarettes shall always be subject to inspection and search
10 without a search warrant for the purpose of ascertaining that
11 all provisions of this part are complied with by authorized
12 employees of the division and also by sheriffs, deputy
13 sheriffs, and police officers during business hours or other
14 times when the premises are occupied by the retail dealer or
15 manufacturers' representatives or other persons.
16 (h) No retail sales of cigarettes may be made at a
17 location for which a wholesale dealer, distributing agent, or
18 exporter permit has been issued. The excise tax on sales made
19 to any traveling location, such as an itinerant store or
20 industrial caterer, shall be paid into the General Revenue
21 Fund unallocated. Cigarettes may be purchased for retail
22 purposes only from a person holding a wholesale dealer permit.
23 The invoice for the purchase of cigarettes must show the place
24 of business for which the purchase is made and the cigarettes
25 cannot be transferred to any other place of business for the
26 purpose of resale.
27 Section 9. Section 210.16, Florida Statutes, is
28 amended to read:
29 210.16 Revocation or suspension of permit.--
30 (1) The Division of Alcoholic Beverages and Tobacco is
31 given full power and authority to revoke the permit of any
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1 person wholesale dealer receiving a permit to engage in
2 business under this part or chapter 569 for violation of any
3 of the provisions of this part or chapter 569.
4 (2) The division shall revoke the permit or permits of
5 any person who would be ineligible to obtain a new license or
6 renew a license by reason of any of the conditions for
7 permitting provided in s. 210.15(1)(c)1.-6.
8 (3)(2) The division may suspend for a reasonable
9 period of time or revoke, in its discretion, the permits of
10 wholesale dealers issued under the provisions of this part or
11 chapter 569 to any person who has violated any other provision
12 of this part or chapter 569 for the same causes and under the
13 same limitations as is authorized hereunder to revoke the
14 permits of such wholesale dealers.
15 (4)(3) No person wholesale dealer whose permit for any
16 place of business has been revoked shall engage in business
17 under this part or chapter 569 at such place of business after
18 such revocation until a new permit is issued. No person
19 wholesale dealer whose permit for any place of business has
20 been revoked shall be permitted to have said permit renewed,
21 or to obtain an additional cigarette permit for any other
22 place of business, for a period of 2 years 6 months after the
23 date such revocation becomes final.
24 (5)(4) In addition to lieu of the suspension or
25 revocation of permits, the division may impose civil penalties
26 against holders of permits for violations of this part or
27 rules and regulations relating thereto. No civil penalty so
28 imposed shall exceed $2,500 $1,000 for each offense, and all
29 amounts collected shall be deposited with the Chief Financial
30 Officer to the credit of the General Revenue Fund. If the
31 holder of the permit fails to pay the civil penalty, his or
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1 her permit shall be suspended for such period of time as the
2 division may specify.
3 Section 10. Subsections (2), (3), and (7) of section
4 210.18, Florida Statutes, are amended, and subsection (9) is
5 added to that section, to read:
6 210.18 Penalties for tax evasion; reports by
7 sheriffs.--
8 (2) Except as otherwise provided in this section, any
9 person wholesale or retail dealer who fails, neglects, or
10 refuses to comply with, or violates the provisions of, this
11 part or the rules adopted and regulations promulgated by the
12 division under this part commits is guilty of a misdemeanor of
13 the first degree, punishable as provided in s. 775.082 or s.
14 775.083. Any person wholesale or retail dealer who has been
15 convicted of a violation of any provision of the cigarette tax
16 law and who is thereafter convicted of a further violation of
17 the cigarette tax law commits is, upon conviction of such
18 further offense, guilty of a felony of the third degree,
19 punishable as provided in s. 775.082, s. 775.083, or s.
20 775.084.
21 (3) Any person who falsely or fraudulently makes,
22 forges, alters, or counterfeits any stamp or impression die
23 used in meter machines prescribed by the division under the
24 provisions of this part; or, with intent to evade taxes, jams,
25 tampers with, or alters such a machine; or causes or procures
26 to be falsely or fraudulently made, forged, altered, or
27 counterfeited any such stamp or die; or knowingly and
28 willfully utters, purchases, passes or tenders as true any
29 such false, altered, or counterfeited stamp or die impression;
30 or, with the intent to defraud the state, fails to comply with
31 any other requirement of this chapter commits is guilty of a
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1 felony of the third degree, punishable as provided in s.
2 775.082, s. 775.083, or s. 775.084.
3 (7) Any sheriff, deputy sheriff, or police officer, or
4 state law enforcement officer, upon the seizure of any
5 unstamped cigarettes under this section, shall promptly report
6 such seizure to the division or its representative, together
7 with a description of all such unstamped cigarettes seized, so
8 that the state may be kept informed as to the size and
9 magnitude of the illicit cigarette business. The division
10 shall keep records showing the number of seizures and seized
11 cigarettes reported to, or seized by, the division.
12 (9) Notwithstanding any other provision of law, the
13 sale or possession for sale of counterfeit cigarettes by any
14 person or by a manufacturer, importer, distributing agent,
15 wholesale dealer, or retail dealer shall result in the seizure
16 of the product and related machinery by the division or any
17 law enforcement agency and may be punishable as follows:
18 (a)1. A first violation with a total quantity of fewer
19 than two cartons of cigarettes or the equivalent amount of
20 other cigarettes, by a person who does not hold a permit or
21 who holds a retail permit pursuant to this part and 10 cartons
22 or the equivalent amount of other cigarettes by the holder of
23 any other type of permit, may be punishable by a fine not to
24 exceed $1,000 or five times the retail value of the cigarettes
25 involved, whichever is greater, or imprisonment not to exceed
26 5 years, or both.
27 2. A subsequent violation with a total quantity of
28 fewer than two cartons of cigarettes or the equivalent amount
29 of other cigarettes by a person who does not hold a permit or
30 who holds a retail permit pursuant to this part and 10 cartons
31 or the equivalent amount of other cigarettes by the holder of
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1 any other type of permit may be punishable by a fine not to
2 exceed $5,000 or five times the retail value of the cigarettes
3 involved, whichever is greater, or imprisonment not to exceed
4 5 years, or both, and shall also result in the revocation by
5 the division of the permit of the manufacturer, importer,
6 distributing agent, wholesale dealer, or retail dealer.
7 (b)1. A first violation with a total quantity of two
8 or more cartons of cigarettes or the equivalent amount of
9 other cigarettes by a person who does not hold a permit or who
10 holds a retail permit pursuant to this part and 10 cartons or
11 the equivalent amount of other cigarettes by the holder of any
12 other type of permit may be punishable by a fine not to exceed
13 $2,000 or five times the retail value of the cigarettes
14 involved, whichever is greater, or imprisonment not to exceed
15 5 years, or both.
16 2. A subsequent violation with a quantity of two
17 cartons of cigarettes or more or the equivalent amount of
18 other cigarettes by a person who does not hold a permit or who
19 holds a retail permit pursuant to this part and 10 cartons or
20 the equivalent amount of other cigarettes by the holder of any
21 other type of permit may be punishable by a fine not to exceed
22 $50,000 or five times the retail value of the cigarettes
23 involved, whichever is greater, or imprisonment not to exceed
24 5 years, or both, and shall also result in the revocation by
25 the division of the permit of the manufacturer, importer,
26 distributing agent, wholesale dealer, or retail dealer.
27
28 For purposes of this subsection, any counterfeit cigarettes
29 seized by the division shall be destroyed.
30 Section 11. Section 210.181, Florida Statutes, is
31 created to read:
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1 210.181 Civil penalties.--
2 (1) Except as provided in s. 210.16(5), whoever
3 knowingly omits, neglects, or refuses to comply with any duty
4 imposed upon him or her by this part, or to do or cause to be
5 done any of the things required by this part, or does anything
6 prohibited by this part shall, in addition to any other
7 penalty provided in this part, be liable for a fine of $1,000
8 or five times the retail value of the cigarettes involved,
9 whichever is greater.
10 (2) Whoever fails to pay any tax imposed by this part
11 at the time prescribed by law or rules shall, in addition to
12 any other penalty provided in this part, be liable for a
13 penalty of five times the unpaid tax due.
14 Section 12. For the purpose of incorporating the
15 amendment to section 210.18, Florida Statutes, in a reference
16 thereto, paragraph (a) of subsection (1) of section 772.102,
17 Florida Statutes, is reenacted to read:
18 772.102 Definitions.--As used in this chapter, the
19 term:
20 (1) "Criminal activity" means to commit, to attempt to
21 commit, to conspire to commit, or to solicit, coerce, or
22 intimidate another person to commit:
23 (a) Any crime which is chargeable by indictment or
24 information under the following provisions:
25 1. Section 210.18, relating to evasion of payment of
26 cigarette taxes.
27 2. Section 414.39, relating to public assistance
28 fraud.
29 3. Section 440.105 or s. 440.106, relating to workers'
30 compensation.
31 4. Part IV of chapter 501, relating to telemarketing.
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1 5. Chapter 517, relating to securities transactions.
2 6. Section 550.235, s. 550.3551, or s. 550.3605,
3 relating to dogracing and horseracing.
4 7. Chapter 550, relating to jai alai frontons.
5 8. Chapter 552, relating to the manufacture,
6 distribution, and use of explosives.
7 9. Chapter 562, relating to beverage law enforcement.
8 10. Section 624.401, relating to transacting insurance
9 without a certificate of authority, s. 624.437(4)(c)1.,
10 relating to operating an unauthorized multiple-employer
11 welfare arrangement, or s. 626.902(1)(b), relating to
12 representing or aiding an unauthorized insurer.
13 11. Chapter 687, relating to interest and usurious
14 practices.
15 12. Section 721.08, s. 721.09, or s. 721.13, relating
16 to real estate timeshare plans.
17 13. Chapter 782, relating to homicide.
18 14. Chapter 784, relating to assault and battery.
19 15. Chapter 787, relating to kidnapping.
20 16. Chapter 790, relating to weapons and firearms.
21 17. Section 796.03, s. 796.04, s. 796.05, or s.
22 796.07, relating to prostitution.
23 18. Chapter 806, relating to arson.
24 19. Section 810.02(2)(c), relating to specified
25 burglary of a dwelling or structure.
26 20. Chapter 812, relating to theft, robbery, and
27 related crimes.
28 21. Chapter 815, relating to computer-related crimes.
29 22. Chapter 817, relating to fraudulent practices,
30 false pretenses, fraud generally, and credit card crimes.
31
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1 23. Section 827.071, relating to commercial sexual
2 exploitation of children.
3 24. Chapter 831, relating to forgery and
4 counterfeiting.
5 25. Chapter 832, relating to issuance of worthless
6 checks and drafts.
7 26. Section 836.05, relating to extortion.
8 27. Chapter 837, relating to perjury.
9 28. Chapter 838, relating to bribery and misuse of
10 public office.
11 29. Chapter 843, relating to obstruction of justice.
12 30. Section 847.011, s. 847.012, s. 847.013, s.
13 847.06, or s. 847.07, relating to obscene literature and
14 profanity.
15 31. Section 849.09, s. 849.14, s. 849.15, s. 849.23,
16 or s. 849.25, relating to gambling.
17 32. Chapter 893, relating to drug abuse prevention and
18 control.
19 33. Section 914.22 or s. 914.23, relating to
20 witnesses, victims, or informants.
21 34. Section 918.12 or s. 918.13, relating to tampering
22 with jurors and evidence.
23 Section 13. For the purpose of incorporating the
24 amendment to section 210.18, Florida Statutes, in a reference
25 thereto, paragraph (a) of subsection (1) of section 895.02,
26 Florida Statutes, is reenacted to read:
27 895.02 Definitions.--As used in ss. 895.01-895.08, the
28 term:
29 (1) "Racketeering activity" means to commit, to
30 attempt to commit, to conspire to commit, or to solicit,
31 coerce, or intimidate another person to commit:
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1 (a) Any crime which is chargeable by indictment or
2 information under the following provisions of the Florida
3 Statutes:
4 1. Section 210.18, relating to evasion of payment of
5 cigarette taxes.
6 2. Section 403.727(3)(b), relating to environmental
7 control.
8 3. Section 409.920 or s. 409.9201, relating to
9 Medicaid fraud.
10 4. Section 414.39, relating to public assistance
11 fraud.
12 5. Section 440.105 or s. 440.106, relating to workers'
13 compensation.
14 6. Section 465.0161, relating to distribution of
15 medicinal drugs without a permit as an Internet pharmacy.
16 7. Sections 499.0051, 499.0052, 499.00535, 499.00545,
17 and 499.0691, relating to crimes involving contraband and
18 adulterated drugs.
19 8. Part IV of chapter 501, relating to telemarketing.
20 9. Chapter 517, relating to sale of securities and
21 investor protection.
22 10. Section 550.235, s. 550.3551, or s. 550.3605,
23 relating to dogracing and horseracing.
24 11. Chapter 550, relating to jai alai frontons.
25 12. Chapter 552, relating to the manufacture,
26 distribution, and use of explosives.
27 13. Chapter 560, relating to money transmitters, if
28 the violation is punishable as a felony.
29 14. Chapter 562, relating to beverage law enforcement.
30 15. Section 624.401, relating to transacting insurance
31 without a certificate of authority, s. 624.437(4)(c)1.,
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1 relating to operating an unauthorized multiple-employer
2 welfare arrangement, or s. 626.902(1)(b), relating to
3 representing or aiding an unauthorized insurer.
4 16. Section 655.50, relating to reports of currency
5 transactions, when such violation is punishable as a felony.
6 17. Chapter 687, relating to interest and usurious
7 practices.
8 18. Section 721.08, s. 721.09, or s. 721.13, relating
9 to real estate timeshare plans.
10 19. Chapter 782, relating to homicide.
11 20. Chapter 784, relating to assault and battery.
12 21. Chapter 787, relating to kidnapping.
13 22. Chapter 790, relating to weapons and firearms.
14 23. Section 796.03, s. 796.035, s. 796.04, s. 796.045,
15 s. 796.05, or s. 796.07, relating to prostitution and sex
16 trafficking.
17 24. Chapter 806, relating to arson.
18 25. Section 810.02(2)(c), relating to specified
19 burglary of a dwelling or structure.
20 26. Chapter 812, relating to theft, robbery, and
21 related crimes.
22 27. Chapter 815, relating to computer-related crimes.
23 28. Chapter 817, relating to fraudulent practices,
24 false pretenses, fraud generally, and credit card crimes.
25 29. Chapter 825, relating to abuse, neglect, or
26 exploitation of an elderly person or disabled adult.
27 30. Section 827.071, relating to commercial sexual
28 exploitation of children.
29 31. Chapter 831, relating to forgery and
30 counterfeiting.
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1 32. Chapter 832, relating to issuance of worthless
2 checks and drafts.
3 33. Section 836.05, relating to extortion.
4 34. Chapter 837, relating to perjury.
5 35. Chapter 838, relating to bribery and misuse of
6 public office.
7 36. Chapter 843, relating to obstruction of justice.
8 37. Section 847.011, s. 847.012, s. 847.013, s.
9 847.06, or s. 847.07, relating to obscene literature and
10 profanity.
11 38. Section 849.09, s. 849.14, s. 849.15, s. 849.23,
12 or s. 849.25, relating to gambling.
13 39. Chapter 874, relating to criminal street gangs.
14 40. Chapter 893, relating to drug abuse prevention and
15 control.
16 41. Chapter 896, relating to offenses related to
17 financial transactions.
18 42. Sections 914.22 and 914.23, relating to tampering
19 with a witness, victim, or informant, and retaliation against
20 a witness, victim, or informant.
21 43. Sections 918.12 and 918.13, relating to tampering
22 with jurors and evidence.
23 Section 14. This act shall take effect October 1,
24 2005.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 SB 816
3
4 The committee substitute amends the definition of
"manufacturer" in 210.01, F.S., to limit the term to domestic
5 persons. The committee substitute amends s. 210.021, F.S., to
require that a dealer or agent must remit the cigarette
6 excise taxes by certified check or electronic funds transfer
during the dealer or agent's initial period of licensure or
7 appointment, but not to exceed 12 months. It amends s.210.08,
F.S., to set the amount for the surety bond, certificate of
8 deposit, or revocable letter of credit that must be filed with
the Division of Alcoholic Beverages and Tobacco (DABT) for
9 payment of taxes at 110 percent of the estimated tax liability
for 30 days, but not less than $2000.
10
The committee substitute amends s. 210.085, F.S., to delete
11 the requirement that an importer may only obtain cigarettes
from a licensed manufacturer, and that a dealer must obtain
12 cigarettes from a manufacturer or importer with a valid,
current permit under 26 U.S.C. 5712. It exempts transactions
13 under S. 210.04(9), F.S. It permits a distributing agent to
accept cigarettes from a manufacturer or importer with a valid
14 current permit for transfer to a dealer with a valid current
permit. It also prohibits a distributing agent from owning
15 or selling cigarettes.
16 The committee substitute amends s. 210.09(2), F.S., to
authorize the division to require the keeping of records and
17 monthly reporting of the sale and distribution of cigarettes
by manufacturers and importers.
18
The committee substitute amends s. 210.15(1)(e),F.S., to set
19 the cigarettes permit fee for a manufacturer, importer, and
distributing agent at $100. The committee substitute deletes
20 the $5 annual permit fee for distributing agents and the
automatic annual renewal of the permit upon payment of the
21 annual fee. It amends s. 210.15, F.S., to clarify when a
permit may not be issued, maintained, or renewed, and
22 establishes an initial $100 permit fee for manufacturers,
importers, and distributing agents.
23
The committee substitute restores the misdemeanor penalty for
24 possession of less than 50 cartons of unstamped cigarettes in
s. 210.18, F.S. It also requires state law enforcement
25 officers to report the seizure of unstamped cigarettes to the
DABT, and requires that the division maintain records of the
26 number of seizures and number of seized cigarettes. The
committee substitute clarifies which penalties apply to
27 persons who do not hold a permit or hold a retail permit, and
which penalties apply to persons holding other types of
28 permits.
29 The committee substitute amends s. 210.181, F.S., to exclude
licensee subject to penalties under s. 210.16(5), F.S.
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