HB 0247CS

CHAMBER ACTION



1The Business Regulation Committee recommends the following:
2
3     Council/Committee Substitute
4     Remove the entire bill and insert:
5
A bill to be entitled
6An act relating to the Beverage Law; creating s. 561.585,
7F.S.; authorizing certain direct shipments of wine;
8requiring licensure of winery shippers; providing
9requirements for licensure; providing prohibitions;
10requiring that a winery shipper licensee file a surety
11bond with the Division of Alcoholic Beverages and Tobacco
12of the Department of Business and Professional Regulation;
13requiring that each container of wine shipped directly be
14labeled with a notice; requiring monthly reports by winery
15shipper licensees; providing limitations on the amount of
16wine a winery shipper may ship or cause to be shipped;
17providing age requirements for those receiving direct
18shipments of wine; providing a defense to certain actions;
19requiring payment of taxes by direct shippers; requiring
20that winery shippers maintain certain records for a
21certain time period; providing for jurisdiction; providing
22penalties; amending s. 561.54, F.S.; removing a provision
23requiring that the licensee be aggrieved by a violation
24involving prohibited delivery from without the state to
25have standing to bring an action; exempting from such
26prohibition shipment of wine by a winery shipper licensee;
27amending s. 561.545, F.S.; revising provisions relating to
28prohibition against direct shipment of alcoholic beverages
29to limit applicability to malt or spirituous beverages;
30exempting applicability of such prohibition to the
31shipment of wine by a winery shipper licensee; amending s.
32561.57, F.S.; providing that Internet orders shall be
33construed as telephone orders; exempting common carriers,
34licensees, or other persons utilizing common carriers as
35their agents from certain report filing requirements;
36requiring common carriers to verify the age of persons
37receiving shipments; providing a defense to certain
38actions; amending s. 599.004, F.S.; revising
39qualifications for the certification of Florida Farm
40Wineries; amending s. 561.24, F.S.; revising an effective
41date; authorizing certain manufacturers of wine holding a
42distributor's license to renew such license; removing
43exemption of Florida Farm Wineries from prohibition
44against manufacturer being licensed as distributor or
45registered as exporter; providing for severability;
46providing for rulemaking authority; providing an effective
47date.
48
49Be It Enacted by the Legislature of the State of Florida:
50
51     Section 1.  Section 561.585, Florida Statutes, is created
52to read:
53     561.585  Direct shipment of wine for personal
54consumption.--
55     (1)  WINERY SHIPPER LICENSURE REQUIREMENTS.--
56     (a)  Notwithstanding any provision of the Beverage Law or
57any rule to the contrary, a person, firm, corporation, or other
58entity that is licensed as a winery shipper under this section
59may ship wine directly to any person who is at least 21 years of
60age for personal use only and not for resale. To obtain or renew
61a winery shipper's license, an applicant must:
62     1.  Obtain and maintain a current license as a primary
63American source of supply as provided in s. 564.045.
64     2.  Provide to the division a true copy of its current wine
65manufacturer's license issued by this state or another state and
66a true copy of its current federal basic permit as a wine
67producer issued in accordance with the Federal Alcohol
68Administration Act.
69     3.  Manufacture no more than 250,000 gallons of wine per
70year.
71     4.  Pay an annual license fee in the amount of $250.
72     5.  File with the division a surety bond acceptable to the
73division in the sum of $5,000 as surety for the payment of all
74taxes provided that when, at the discretion of the division, the
75amount of business done by the winery shipper licensee is such
76volume that a bond of less than $5,000 will be adequate, the
77division may accept a bond in a lesser sum but not less than
78$1,000. The surety bond currently on file with the division for
79a winery pursuant to s. 561.37 is deemed to comply with this
80requirement. Any applicant that has a surety bond for another
81license on file with the division that is in excess of $5,000
82shall be deemed to be in compliance with this requirement.
83     (b)  The division shall not issue or renew a license under
84this section if the applicant or licensee is owned by a winery
85that manufactures more than 250,000 gallons of wine annually.
86     (c)  Winery shipper licensees shall not ship or cause to be
87shipped more than 42 gallons of wine per calendar year to a
88single address.
89     (d)  Recipients shall not purchase to be shipped more than
9042 gallons of wine per calendar year to a single address.
91     (2)  LABEL.--Each winery shipper licensee shall ensure that
92the outside shipping label on each package is conspicuous and
93includes the following components:
94     (a)  This package contains alcohol.
95     (b)  An adult signature is required.
96     (c)  The recipient must be at least 21 years of age.
97     (3)  SIGNATURE.--
98     (a)  Each winery shipper licensee and common carrier shall
99require, prior to delivery, that the signature of the addressee
100or other person at least 21 years of age is obtained after
101presentation of a valid driver's license, an identification card
102issued under the provisions of s. 322.051, or, if the person is
103physically handicapped, a comparable identification card issued
104by another state which indicates the person's age, a passport,
105or a United States Uniformed Services identification card.
106     (b)  A winery shipper licensee or common carrier who
107violates this subsection shall have a complete defense to any
108civil action therefor, except for any administrative action by
109the division, if, at the time the alcoholic beverage was sold,
110given, delivered, or transferred, the person falsely evidenced
111that he or she was of legal age to purchase or consume the
112alcoholic beverage and the appearance of the person was such
113that an ordinarily prudent person would believe him or her to be
114of legal age to purchase or consume the alcoholic beverage and
115if the winery shipper licensee or common carrier acted in good
116faith and in reliance upon the representation and appearance of
117the person in the belief that he or she was of legal age to
118purchase or consume the alcoholic beverage and carefully checked
119one of the following forms of identification with respect to the
120person: a valid driver's license, an identification card issued
121under the provisions of s. 322.051, or, if the person is
122physically handicapped, a comparable identification card issued
123by another state which indicates the person's age, a passport,
124or a United States Uniformed Services identification card.
125     (4)  MONTHLY REPORT.--
126     (a)  Each winery shipper licensee shall report monthly to
127the division on forms prescribed by the division:
128     1.  Whether any wine product was shipped into or within
129this state under this section during the preceding month.
130     2.  The total amount of wine shipped into or within this
131state under this section during the preceding month.
132     3.  The quantity and types of wine shipped into or within
133this state under this section during the preceding month.
134     4.  The amount of excise tax paid to the division for
135shipments of wine into or within this state under this section
136during the preceding month.
137     (b)  The report required by this subsection is not required
138from a winery shipper licensee who files a monthly report
139pursuant to s. 561.55 that contains all the information required
140in paragraph (a). The division is authorized to prescribe the
141format for submission of this information in order that
142duplicate filings are eliminated.
143     (5)  TAXES.--
144     (a)  Each winery shipper licensee shall pay monthly to the
145Department of Revenue all sales taxes and to the division all
146excise taxes due on sales to persons in this state for the
147preceding month. The amount of such taxes shall be calculated as
148if the sale took place at the location where the delivery
149occurred in this state.
150     (b)  Each winery shipper licensee shall maintain for at
151least 3 years after the date of delivery records of its
152shipments into or within this state pursuant to this section,
153including the names, addresses, amounts, and dates of all
154shipments to persons in this state, and shall allow the
155Department of Revenue or the division, upon request, to perform
156an audit of such records.
157     (c)  The cost of performing an audit under paragraph (b)
158shall be assigned to the agency requesting the audit unless the
159winery shipper licensee is found to be in material violation of
160this subsection, in which case the cost of the audit shall be
161assigned to the licensee.
162     (6)  JURISDICTION.--Each winery shipper licensee is deemed
163to have consented to the jurisdiction of the division or any
164other state agency and the courts of this state concerning
165enforcement of this section and any related laws or rules.
166     (7)  PENALTIES.--
167     (a)  In addition to any other penalty provided in the
168Beverage Law, the division may suspend or revoke a winery
169shipper license or impose fines on the winery shipper licensee
170in an amount not to exceed $2,500 per violation for any
171violation of this section.
172     (b)  A winery shipper licensee that knowingly and
173intentionally ships, or causes to be shipped, wine to any person
174in this state who is under 21 years of age commits a felony of
175the third degree, punishable as provided in s. 775.082, s.
176775.083, or s. 775.084.
177     (c)  Any common carrier, permit carrier, or other
178commercial conveyance that knowingly and intentionally delivers
179wine directly to any person in this state who is under 21 years
180of age commits a felony of the third degree, punishable as
181provided in s. 775.082, s. 775.083, or s. 775.084.
182     (d)  A person who knowingly and intentionally obtains wine
183from a winery shipper licensee in violation of this section
184commits a misdemeanor of the second degree, punishable as
185provided in s. 775.082 or s. 775.083.
186     Section 2.  Section 561.54, Florida Statutes, is amended to
187read:
188     561.54  Certain deliveries of beverages prohibited.--
189     (1)  It is unlawful for common or permit carriers,
190operators of privately owned cars, trucks, buses, or other
191conveyances or out-of-state manufacturers or suppliers to make
192delivery from without the state of any alcoholic beverage to any
193person, association of persons, or corporation within the state,
194except to qualified manufacturers, distributors, and exporters
195of such beverages so delivered and to qualified bonded
196warehouses in this state.
197     (2)  Any licensee aggrieved by a violation of this section
198may bring an action in any court of competent jurisdiction to
199recover for the state all moneys obtained by common carriers or
200permit carriers; obtained by operators of privately owned cars,
201trucks, buses, or other conveyances; or obtained by out-of-state
202manufacturers or suppliers as a result of the delivery of
203alcoholic beverages in violation of this section, and may obtain
204a declaratory judgment that an act or practice violates this
205section and enjoin any person from violating this section. In
206addition to such relief, the court may order the confiscation
207and destruction of any alcoholic beverages delivered in
208violation of this section. In assessing damages, the court shall
209enter judgment against a defendant for three times the amount of
210the delivery charges proved or the fair market value of
211merchandise unlawfully brought into the state. Payment or
212satisfaction of any judgment under this section, other than for
213costs and attorney's fees, shall be made in its entirety to the
214state. In any successful action under this section, the court
215shall award the plaintiff costs and reasonable attorney's fees.
216     (3)  This section does not apply to the shipment of wine by
217a winery shipper licensee to a person who is at least 21 years
218of age in accordance with s. 561.585.
219     Section 3.  Section 561.545, Florida Statutes, is amended
220to read:
221     561.545  Certain shipments of beverages prohibited;
222penalties; exceptions.--The Legislature finds that the direct
223shipment of alcoholic beverages by persons in the business of
224selling malt or spirituous alcoholic beverages to residents of
225this state in violation of the Beverage Law poses a serious
226threat to the public health, safety, and welfare; to state
227revenue collections; and to the economy of the state. The
228Legislature further finds that the penalties for illegal direct
229shipment of malt or spirituous alcoholic beverages to residents
230of this state should be made adequate to ensure compliance with
231the Beverage Law and that the measures provided for in this
232section are fully consistent with the powers conferred upon the
233state by the Twenty-first Amendment to the United States
234Constitution.
235     (1)  Any person in the business of selling malt or
236spirituous alcoholic beverages who knowingly and intentionally
237ships, or causes to be shipped, any malt or spirituous alcoholic
238beverage from an out-of-state location directly to any person in
239this state who does not hold a valid manufacturer's or
240wholesaler's license or exporter's registration issued by the
241Division of Alcoholic Beverages and Tobacco or who is not a
242state-bonded warehouse is in violation of this section.
243     (2)  Any common carrier or permit carrier or any operator
244of a privately owned car, truck, bus, or other conveyance who
245knowingly and intentionally transports any malt or spirituous
246beverages alcoholic beverage from an out-of-state location
247directly to any person in this state who does not hold a valid
248manufacturer's or wholesaler's license or exporter's
249registration or who is not a state-bonded warehouse is in
250violation of this section.
251     (3)  Any person found by the division to be in violation of
252subsection (1) shall be issued a notice, by certified mail, to
253show cause why a cease and desist order should not be issued.
254Any person who violates subsection (1) within 2 years after
255receiving a cease and desist order or within 2 years after a
256prior conviction for violating subsection (1) commits a felony
257of the third degree, punishable as provided in s. 775.082, s.
258775.083, or s. 775.084.
259     (4)  Any common carrier or permit carrier, or any operator
260of a privately owned car, truck, bus, or other conveyance found
261by the division to be in violation of subsection (2) as a result
262of a second or subsequent delivery from the same source and
263location, within a 2-year period after the first delivery shall
264be issued a notice, by certified mail, to show cause why a cease
265and desist order should not be issued. Any person who violates
266subsection (2) within 2 years after receiving the cease and
267desist order or within 2 years after a prior conviction for
268violating subsection (2) commits a felony of the third degree,
269punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
270     (5)  This section does not apply to:
271     (a)  The direct shipment of sacramental alcoholic beverages
272to bona fide religious organizations as authorized by the
273division;
274     (b)  The or to possession of alcoholic beverages in
275accordance with s. 562.15(2); or
276     (c)  The shipment of wine in accordance with s. 561.585.
277     Section 4.  Subsections (1) and (6) of section 561.57,
278Florida Statutes, are amended to read:
279     561.57  Deliveries by licensees.--
280     (1)  Vendors shall be permitted to make deliveries away
281from their places of business of sales actually made at the
282licensed place of business; provided, telephone or mail orders
283received at vendor's licensed place of business shall be
284construed as a sale actually made at the vendor's licensed place
285of business. For purposes of this section, Internet orders shall
286be construed as telephone orders.
287     (6)  Common carriers are not required to have vehicle
288permits to transport alcoholic beverages. Nothing in this
289section shall prohibit any common carrier or any licensee or
290other person utilizing a common carrier as his or her agent from
291making deliveries of alcoholic beverages within the state.
292Deliveries of alcoholic beverages by common carriers or by
293licensees or other persons utilizing common carriers as their
294agents under this section are exempt from the report filing
295requirements in s. 562.20. All common carriers acting as
296designated agents for delivery under this section shall verify
297that any person receiving alcoholic beverages is at least 21
298years of age upon the delivery of such alcoholic beverages, as
299prescribed in division rules. Compliance with the prescribed age
300verification measures in s. 561.585(3) shall give the common
301carrier and the licensee or other person hiring the common
302carrier a complete defense of selling, giving, delivering, or
303transferring alcoholic beverages to any person under the age of
30421.
305     Section 5.  Subsection (1) of section 599.004, Florida
306Statutes, is amended to read:
307     599.004  Florida Farm Winery Program; registration; logo;
308fees.--
309     (1)  The Florida Farm Winery Program is established within
310the Department of Agriculture and Consumer Services. Under this
311program, a winery may qualify as a tourist attraction only if it
312is registered with and certified by the department as a Florida
313Farm Winery. A winery may not claim to be certified unless it
314has received written approval from the department.
315     (a)  To qualify as a certified Florida Farm Winery, a
316winery shall meet the following standards:
317     1.  Produce or sell less than 250,000 gallons of wine
318annually of which 60 percent of wine produced shall be made from
319this state's agricultural products. The Commissioner of
320Agriculture may waive this requirement in times of hardship.
321     2.  Maintain a minimum of 10 acres of owned or managed
322vineyards in Florida.
323     3.  Be open to the public for tours, tastings, and sales at
324least 30 hours each week.
325     4.  Make annual application to the department for
326recognition as a Florida Farm Winery, on forms provided by the
327department.
328     5.  Pay an annual application and registration fee of $100.
329     (b)  To maintain certification and recognition as a Florida
330Farm Winery, a winery must comply with the qualifications
331provided in this section. The Commissioner of Agriculture is
332authorized to officially recognize a certified Florida Farm
333Winery as a state tourist attraction.
334     Section 6.  Subsection (5) of section 561.24, Florida
335Statutes, is amended to read:
336     561.24  Licensing manufacturers as distributors or
337registered exporters prohibited; procedure for issuance and
338renewal of distributors' licenses and exporters'
339registrations.--
340     (5)  Notwithstanding any of the provisions of the foregoing
341subsections, any corporation which holds a license as a
342distributor on June 3, 1947, shall be entitled to a renewal
343thereof, provided such corporation complies with all of the
344provisions of the Beverage Law of Florida, as amended, and of
345this section and establishes by satisfactory evidence to the
346division that, during the 6-month period next preceding its
347application for such renewal, of the total volume of its sales
348of spirituous liquors, in either dollars or quantity, not more
349than 40 percent of such spirituous liquors sold by it, in either
350dollars or quantity, were manufactured, rectified, or distilled
351by any corporation with which the applicant is affiliated,
352directly or indirectly, including any corporation which owns or
353controls in any way any stock in the applicant corporation or
354any corporation which is a subsidiary or affiliate of the
355corporation so owning stock in the applicant corporation. Any
356manufacturer of wine holding a license as a distributor on July
3571, 2006, the effective date of this act shall be entitled to a
358renewal of such license notwithstanding the provisions of
359subsections (1)-(5). This section does not apply to any winery
360qualifying as a certified Florida Farm Winery under s. 599.004.
361     Section 7.  Should any portion of this act be held
362unconstitutional, it is the intent of the Legislature that the
363courts disturb only as much of the regulatory system of this
364state as is necessary to enforce the United States Constitution.
365     Section 8.  The Division of Alcoholic Beverages and Tobacco
366of the Department of Business and Professional Regulation and
367the Department of Revenue may adopt rules pursuant to ss.
368120.536(1) and 120.54, Florida Statutes, to implement and
369administer this act.
370     Section 9.  This act shall take effect upon becoming a law.


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