| 1 | The Finance & Tax Committee recommends the following: |
| 2 |
|
| 3 | Council/Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to the Beverage Law; creating s. 561.585, |
| 7 | F.S.; authorizing certain direct shipments of wine; |
| 8 | requiring licensure of winery shippers; providing |
| 9 | requirements for licensure; providing prohibitions; |
| 10 | requiring that a winery shipper licensee file a surety |
| 11 | bond with the Division of Alcoholic Beverages and Tobacco |
| 12 | of the Department of Business and Professional Regulation; |
| 13 | requiring that each container of wine shipped directly be |
| 14 | labeled with a notice; requiring monthly reports by winery |
| 15 | shipper licensees; providing limitations on the amount of |
| 16 | wine a winery shipper may ship or cause to be shipped; |
| 17 | providing age requirements for those receiving direct |
| 18 | shipments of wine; providing a defense to certain actions; |
| 19 | requiring the collection, remittance, and payment of |
| 20 | certain taxes by direct shippers; requiring that winery |
| 21 | shippers maintain certain records for a certain time |
| 22 | period; providing for jurisdiction; providing penalties; |
| 23 | amending s. 561.14, F.S.; classifying the winery shipper |
| 24 | license; amending s. 561.54, F.S.; removing a provision |
| 25 | requiring that the licensee be aggrieved by a violation |
| 26 | involving prohibited delivery from without the state to |
| 27 | have standing to bring an action; exempting from such |
| 28 | prohibition shipment of wine by a winery shipper licensee; |
| 29 | amending s. 561.545, F.S.; revising provisions relating to |
| 30 | prohibition against direct shipment of alcoholic beverages |
| 31 | to limit applicability to malt or spirituous beverages; |
| 32 | exempting applicability of such prohibition to the |
| 33 | shipment of wine by a winery shipper licensee; amending s. |
| 34 | 561.57, F.S.; providing that Internet orders shall be |
| 35 | construed as telephone orders; exempting common carriers, |
| 36 | licensees, or other persons utilizing common carriers as |
| 37 | their agents from certain report filing requirements; |
| 38 | requiring common carriers to verify the age of persons |
| 39 | receiving shipments; providing a defense to certain |
| 40 | actions; amending s. 599.004, F.S.; revising |
| 41 | qualifications for the certification of Florida Farm |
| 42 | Wineries; amending s. 561.24, F.S.; revising an effective |
| 43 | date; authorizing certain manufacturers of wine holding a |
| 44 | distributor's license to renew such license; removing |
| 45 | exemption of Florida Farm Wineries from prohibition |
| 46 | against manufacturer being licensed as distributor or |
| 47 | registered as exporter; providing for severability; |
| 48 | providing for non-impairment of contracts; providing for |
| 49 | rulemaking authority; providing an effective date. |
| 50 |
|
| 51 | Be It Enacted by the Legislature of the State of Florida: |
| 52 |
|
| 53 | Section 1. Section 561.585, Florida Statutes, is created |
| 54 | to read: |
| 55 | 561.585 Direct shipment of wine for personal |
| 56 | consumption.-- |
| 57 | (1) WINERY SHIPPER LICENSURE REQUIREMENTS.-- |
| 58 | (a) Notwithstanding any provision of the Beverage Law or |
| 59 | any rule to the contrary, a person, firm, corporation, or other |
| 60 | entity that is licensed as a winery shipper under this section |
| 61 | may ship wine directly to any person who is at least 21 years of |
| 62 | age for personal use only and not for resale. To obtain or renew |
| 63 | a winery shipper's license, an applicant must: |
| 64 | 1. File an application with the division on forms |
| 65 | prescribed by the division. |
| 66 | 2. Qualify for licensure under ss. 561.15 and 561.17 or |
| 67 | provide a true copy of a certification from the alcoholic |
| 68 | beverage licensing authority of the Federal Government or the |
| 69 | state in which the winery is located that qualifications for the |
| 70 | winery license include, at a minimum, the following components: |
| 71 | a. Fingerprinting of applicants. |
| 72 | b. Disqualification for applicants under 21 years of age. |
| 73 | c. Disqualification for applicants convicted of the |
| 74 | following: |
| 75 | (I) Within the past 5 years, any violation of the beverage |
| 76 | laws of this state, the United States, or any other state; |
| 77 | (II) Within the past 15 years, any felony in this state or |
| 78 | any other state of the United States; or |
| 79 | (III) Any criminal violation of the controlled substance |
| 80 | act of this state, the United States, or any other state. |
| 81 | 3. Obtain and maintain a current license as a primary |
| 82 | American source of supply as provided in s. 564.045. |
| 83 | 4. Provide to the division a true copy of its current wine |
| 84 | manufacturer's license issued by this state or another state and |
| 85 | a true copy of its current federal basic permit as a wine |
| 86 | producer issued in accordance with the Federal Alcohol |
| 87 | Administration Act. |
| 88 | 5. Manufacture no more than 250,000 gallons of wine per |
| 89 | year. |
| 90 | 6. Pay an annual license fee in the amount of $250. |
| 91 | 7. File with the division a surety bond acceptable to the |
| 92 | division in the sum of $5,000 as surety for the payment of all |
| 93 | taxes provided that when, at the discretion of the division, the |
| 94 | amount of business done by the winery shipper licensee is such |
| 95 | volume that a bond of less than $5,000 will be adequate, the |
| 96 | division may accept a bond in a lesser sum but not less than |
| 97 | $1,000. The surety bond currently on file with the division for |
| 98 | a winery pursuant to s. 561.37 is deemed to comply with this |
| 99 | requirement. Any applicant that has a surety bond for another |
| 100 | license on file with the division that is in excess of $5,000 |
| 101 | shall be deemed to be in compliance with this requirement. |
| 102 | (b) Applicants under this section may obtain a temporary |
| 103 | initial license as authorized in s. 561.181. |
| 104 | (c) The division may not issue a license under this |
| 105 | section if the applicant or licensee is owned by a winery that |
| 106 | manufactures more than 250,000 gallons of wine annually. |
| 107 | (d) Winery shipper licensees may not ship or cause to be |
| 108 | shipped more than 18 cases of wine per calendar year to one |
| 109 | adult individual. |
| 110 | (2) LABEL.--Each winery shipper licensee shall ensure that |
| 111 | the outside shipping label on each package is conspicuous and |
| 112 | includes the following components: |
| 113 | (a) This package contains alcohol. |
| 114 | (b) An adult signature is required. |
| 115 | (c) The recipient must be at least 21 years of age. |
| 116 | (3) SIGNATURE.-- |
| 117 | (a) Each winery shipper licensee and common carrier shall |
| 118 | require, prior to delivery, that the signature of the addressee |
| 119 | or other person at least 21 years of age is obtained after |
| 120 | presentation of a valid driver's license, an identification card |
| 121 | issued under the provisions of s. 322.051, or, if the person is |
| 122 | physically handicapped, a comparable identification card issued |
| 123 | by another state which indicates the person's age, a passport, |
| 124 | or a United States Uniformed Services identification card. |
| 125 | (b) A winery shipper licensee or common carrier who |
| 126 | violates this subsection shall have a complete defense to any |
| 127 | civil action therefor, except for any administrative action by |
| 128 | the division, if, at the time the alcoholic beverage was sold, |
| 129 | given, delivered, or transferred, the person falsely evidenced |
| 130 | that he or she was of legal age to purchase or consume the |
| 131 | alcoholic beverage and the appearance of the person was such |
| 132 | that an ordinarily prudent person would believe him or her to be |
| 133 | of legal age to purchase or consume the alcoholic beverage and |
| 134 | if the winery shipper licensee or common carrier acted in good |
| 135 | faith and in reliance upon the representation and appearance of |
| 136 | the person in the belief that he or she was of legal age to |
| 137 | purchase or consume the alcoholic beverage and carefully checked |
| 138 | one of the following forms of identification with respect to the |
| 139 | person: a valid driver's license, an identification card issued |
| 140 | under the provisions of s. 322.051, or, if the person is |
| 141 | physically handicapped, a comparable identification card issued |
| 142 | by another state which indicates the person's age, a passport, |
| 143 | or a United States Uniformed Services identification card. |
| 144 | (4) MONTHLY REPORT.-- |
| 145 | (a) Each winery shipper licensee shall report monthly to |
| 146 | the division on forms prescribed by the division: |
| 147 | 1. Whether any wine product was shipped into or within |
| 148 | this state under this section during the preceding month. |
| 149 | 2. The total amount of wine shipped into or within this |
| 150 | state under this section during the preceding month. |
| 151 | 3. The quantity and types of wine shipped into or within |
| 152 | this state under this section during the preceding month. |
| 153 | 4. The amount of excise tax paid to the division for |
| 154 | shipments of wine into or within this state under this section |
| 155 | during the preceding month. |
| 156 | (b) The report required by this subsection is not required |
| 157 | from a winery shipper licensee who files a monthly report |
| 158 | pursuant to s. 561.55 that contains all the information required |
| 159 | in paragraph (a). The division is authorized to prescribe the |
| 160 | format for submission of this information in order that |
| 161 | duplicate filings are eliminated. |
| 162 | (5) TAXES.-- |
| 163 | (a) Each winery shipper licensee shall collect and remit |
| 164 | monthly to the Department of Revenue all sales taxes and pay to |
| 165 | the division all excise taxes due on sales to persons in this |
| 166 | state for the preceding month. Notwithstanding s. 212.0596, the |
| 167 | amount of such taxes shall be calculated as if the sale took |
| 168 | place at the location where the delivery occurred in this state. |
| 169 | (b) Each winery shipper licensee shall maintain for at |
| 170 | least 3 years after the date of delivery records of its |
| 171 | shipments into or within this state pursuant to this section, |
| 172 | including the names, addresses, amounts, and dates of all |
| 173 | shipments to persons in this state, and shall allow the |
| 174 | Department of Revenue or the division, upon request, to perform |
| 175 | an audit of such records. |
| 176 | (c) The cost of performing an audit under paragraph (b) |
| 177 | shall be assigned to the agency requesting the audit unless the |
| 178 | winery shipper licensee is found to be in material violation of |
| 179 | this subsection, in which case the cost of the audit shall be |
| 180 | assigned to the licensee. |
| 181 | (6) JURISDICTION.--Each winery shipper licensee is deemed |
| 182 | to have consented to the jurisdiction of the division or any |
| 183 | other state agency and the courts of this state concerning |
| 184 | enforcement of this section and any related laws or rules. |
| 185 | (7) PENALTIES.-- |
| 186 | (a) In addition to any other penalty provided in the |
| 187 | Beverage Law, the division may suspend or revoke a winery |
| 188 | shipper license or impose fines on the winery shipper licensee |
| 189 | in an amount not to exceed $2,500 per violation for any |
| 190 | violation of this section. |
| 191 | (b) A winery shipper licensee that knowingly and |
| 192 | intentionally ships, or causes to be shipped, wine to any person |
| 193 | in this state who is under 21 years of age commits a felony of |
| 194 | the third degree, punishable as provided in s. 775.082, s. |
| 195 | 775.083, or s. 775.084. |
| 196 | (c) Any common carrier, permit carrier, or other |
| 197 | commercial conveyance that knowingly and intentionally delivers |
| 198 | wine directly to any person in this state who is under 21 years |
| 199 | of age commits a felony of the third degree, punishable as |
| 200 | provided in s. 775.082, s. 775.083, or s. 775.084. |
| 201 | (d) A person who knowingly and intentionally obtains wine |
| 202 | from a winery shipper licensee in violation of this section |
| 203 | commits a misdemeanor of the second degree, punishable as |
| 204 | provided in s. 775.082 or s. 775.083. |
| 205 | Section 2. Subsection (8) is added to section 561.14, |
| 206 | Florida Statutes, to read: |
| 207 | 561.14 License and registration classification.--Licenses |
| 208 | and registrations referred to in the Beverage Law shall be |
| 209 | classified as follows: |
| 210 | (8) Wineries licensed as winery shippers under s. 561.585. |
| 211 | Section 3. Section 561.54, Florida Statutes, is amended to |
| 212 | read: |
| 213 | 561.54 Certain deliveries of beverages prohibited.-- |
| 214 | (1) It is unlawful for common or permit carriers, |
| 215 | operators of privately owned cars, trucks, buses, or other |
| 216 | conveyances or out-of-state manufacturers or suppliers to make |
| 217 | delivery from without the state of any alcoholic beverage to any |
| 218 | person, association of persons, or corporation within the state, |
| 219 | except to qualified manufacturers, distributors, and exporters |
| 220 | of such beverages so delivered and to qualified bonded |
| 221 | warehouses in this state. |
| 222 | (2) Any licensee aggrieved by a violation of this section |
| 223 | may bring an action in any court of competent jurisdiction to |
| 224 | recover for the state all moneys obtained by common carriers or |
| 225 | permit carriers; obtained by operators of privately owned cars, |
| 226 | trucks, buses, or other conveyances; or obtained by out-of-state |
| 227 | manufacturers or suppliers as a result of the delivery of |
| 228 | alcoholic beverages in violation of this section, and may obtain |
| 229 | a declaratory judgment that an act or practice violates this |
| 230 | section and enjoin any person from violating this section. In |
| 231 | addition to such relief, the court may order the confiscation |
| 232 | and destruction of any alcoholic beverages delivered in |
| 233 | violation of this section. In assessing damages, the court shall |
| 234 | enter judgment against a defendant for three times the amount of |
| 235 | the delivery charges proved or the fair market value of |
| 236 | merchandise unlawfully brought into the state. Payment or |
| 237 | satisfaction of any judgment under this section, other than for |
| 238 | costs and attorney's fees, shall be made in its entirety to the |
| 239 | state. In any successful action under this section, the court |
| 240 | shall award the plaintiff costs and reasonable attorney's fees. |
| 241 | (3) This section does not apply to the shipment of wine by |
| 242 | a winery shipper licensee to a person who is at least 21 years |
| 243 | of age in accordance with s. 561.585. |
| 244 | Section 4. Section 561.545, Florida Statutes, is amended |
| 245 | to read: |
| 246 | 561.545 Certain shipments of beverages prohibited; |
| 247 | penalties; exceptions.--The Legislature finds that the direct |
| 248 | shipment of alcoholic beverages by persons in the business of |
| 249 | selling malt or spirituous alcoholic beverages to residents of |
| 250 | this state in violation of the Beverage Law poses a serious |
| 251 | threat to the public health, safety, and welfare; to state |
| 252 | revenue collections; and to the economy of the state. The |
| 253 | Legislature further finds that the penalties for illegal direct |
| 254 | shipment of malt or spirituous alcoholic beverages to residents |
| 255 | of this state should be made adequate to ensure compliance with |
| 256 | the Beverage Law and that the measures provided for in this |
| 257 | section are fully consistent with the powers conferred upon the |
| 258 | state by the Twenty-first Amendment to the United States |
| 259 | Constitution. |
| 260 | (1) Any person in the business of selling malt or |
| 261 | spirituous alcoholic beverages who knowingly and intentionally |
| 262 | ships, or causes to be shipped, any malt or spirituous alcoholic |
| 263 | beverage from an out-of-state location directly to any person in |
| 264 | this state who does not hold a valid manufacturer's or |
| 265 | wholesaler's license or exporter's registration issued by the |
| 266 | Division of Alcoholic Beverages and Tobacco or who is not a |
| 267 | state-bonded warehouse is in violation of this section. |
| 268 | (2) Any common carrier or permit carrier or any operator |
| 269 | of a privately owned car, truck, bus, or other conveyance who |
| 270 | knowingly and intentionally transports any malt or spirituous |
| 271 | beverages alcoholic beverage from an out-of-state location |
| 272 | directly to any person in this state who does not hold a valid |
| 273 | manufacturer's or wholesaler's license or exporter's |
| 274 | registration or who is not a state-bonded warehouse is in |
| 275 | violation of this section. |
| 276 | (3) Any person found by the division to be in violation of |
| 277 | subsection (1) shall be issued a notice, by certified mail, to |
| 278 | show cause why a cease and desist order should not be issued. |
| 279 | Any person who violates subsection (1) within 2 years after |
| 280 | receiving a cease and desist order or within 2 years after a |
| 281 | prior conviction for violating subsection (1) commits a felony |
| 282 | of the third degree, punishable as provided in s. 775.082, s. |
| 283 | 775.083, or s. 775.084. |
| 284 | (4) Any common carrier or permit carrier, or any operator |
| 285 | of a privately owned car, truck, bus, or other conveyance found |
| 286 | by the division to be in violation of subsection (2) as a result |
| 287 | of a second or subsequent delivery from the same source and |
| 288 | location, within a 2-year period after the first delivery shall |
| 289 | be issued a notice, by certified mail, to show cause why a cease |
| 290 | and desist order should not be issued. Any person who violates |
| 291 | subsection (2) within 2 years after receiving the cease and |
| 292 | desist order or within 2 years after a prior conviction for |
| 293 | violating subsection (2) commits a felony of the third degree, |
| 294 | punishable as provided in s. 775.082, s. 775.083, or s. 775.084. |
| 295 | (5) This section does not apply to: |
| 296 | (a) The direct shipment of sacramental alcoholic beverages |
| 297 | to bona fide religious organizations as authorized by the |
| 298 | division; |
| 299 | (b) The or to possession of alcoholic beverages in |
| 300 | accordance with s. 562.15(2); or |
| 301 | (c) The shipment of wine in accordance with s. 561.585. |
| 302 | Section 5. Subsections (1) and (6) of section 561.57, |
| 303 | Florida Statutes, are amended to read: |
| 304 | 561.57 Deliveries by licensees.-- |
| 305 | (1) Vendors shall be permitted to make deliveries away |
| 306 | from their places of business of sales actually made at the |
| 307 | licensed place of business; provided, telephone or mail orders |
| 308 | received at vendor's licensed place of business shall be |
| 309 | construed as a sale actually made at the vendor's licensed place |
| 310 | of business. For purposes of this section, Internet orders shall |
| 311 | be construed as telephone orders. |
| 312 | (6) Common carriers are not required to have vehicle |
| 313 | permits to transport alcoholic beverages. Nothing in this |
| 314 | section shall prohibit any common carrier or any licensee or |
| 315 | other person utilizing a common carrier as his or her agent from |
| 316 | making deliveries of alcoholic beverages within the state. |
| 317 | Deliveries of alcoholic beverages by common carriers or by |
| 318 | licensees or other persons utilizing common carriers as their |
| 319 | agents under this section are exempt from the report filing |
| 320 | requirements in s. 562.20. All common carriers acting as |
| 321 | designated agents for delivery under this section shall verify |
| 322 | that any person receiving alcoholic beverages is at least 21 |
| 323 | years of age upon the delivery of such alcoholic beverages, as |
| 324 | prescribed in division rules. Compliance with the prescribed age |
| 325 | verification measures in s. 561.585(3) shall give the common |
| 326 | carrier and the licensee or other person hiring the common |
| 327 | carrier a complete defense of selling, giving, delivering, or |
| 328 | transferring alcoholic beverages to any person under the age of |
| 329 | 21. |
| 330 | Section 6. Subsection (1) of section 599.004, Florida |
| 331 | Statutes, is amended to read: |
| 332 | 599.004 Florida Farm Winery Program; registration; logo; |
| 333 | fees.-- |
| 334 | (1) The Florida Farm Winery Program is established within |
| 335 | the Department of Agriculture and Consumer Services. Under this |
| 336 | program, a winery may qualify as a tourist attraction only if it |
| 337 | is registered with and certified by the department as a Florida |
| 338 | Farm Winery. A winery may not claim to be certified unless it |
| 339 | has received written approval from the department. |
| 340 | (a) To qualify as a certified Florida Farm Winery, a |
| 341 | winery shall meet the following standards: |
| 342 | 1. Produce or sell less than 250,000 gallons of wine |
| 343 | annually of which 60 percent of wine produced shall be made from |
| 344 | this state's agricultural products. The Commissioner of |
| 345 | Agriculture may waive this requirement in times of hardship. |
| 346 | 2. Maintain a minimum of 10 acres of owned or managed |
| 347 | vineyards in Florida. |
| 348 | 3. Be open to the public for tours, tastings, and sales at |
| 349 | least 30 hours each week. |
| 350 | 4. Make annual application to the department for |
| 351 | recognition as a Florida Farm Winery, on forms provided by the |
| 352 | department. |
| 353 | 5. Pay an annual application and registration fee of $100. |
| 354 | (b) To maintain certification and recognition as a Florida |
| 355 | Farm Winery, a winery must comply with the qualifications |
| 356 | provided in this section. The Commissioner of Agriculture is |
| 357 | authorized to officially recognize a certified Florida Farm |
| 358 | Winery as a state tourist attraction. |
| 359 | Section 7. Subsection (5) of section 561.24, Florida |
| 360 | Statutes, is amended to read: |
| 361 | 561.24 Licensing manufacturers as distributors or |
| 362 | registered exporters prohibited; procedure for issuance and |
| 363 | renewal of distributors' licenses and exporters' |
| 364 | registrations.-- |
| 365 | (5) Notwithstanding any of the provisions of the foregoing |
| 366 | subsections, any corporation which holds a license as a |
| 367 | distributor on June 3, 1947, shall be entitled to a renewal |
| 368 | thereof, provided such corporation complies with all of the |
| 369 | provisions of the Beverage Law of Florida, as amended, and of |
| 370 | this section and establishes by satisfactory evidence to the |
| 371 | division that, during the 6-month period next preceding its |
| 372 | application for such renewal, of the total volume of its sales |
| 373 | of spirituous liquors, in either dollars or quantity, not more |
| 374 | than 40 percent of such spirituous liquors sold by it, in either |
| 375 | dollars or quantity, were manufactured, rectified, or distilled |
| 376 | by any corporation with which the applicant is affiliated, |
| 377 | directly or indirectly, including any corporation which owns or |
| 378 | controls in any way any stock in the applicant corporation or |
| 379 | any corporation which is a subsidiary or affiliate of the |
| 380 | corporation so owning stock in the applicant corporation. Any |
| 381 | manufacturer of wine holding a license as a distributor on July |
| 382 | 1, 2006, the effective date of this act shall be entitled to a |
| 383 | renewal of such license notwithstanding the provisions of |
| 384 | subsections (1)-(5). This section does not apply to any winery |
| 385 | qualifying as a certified Florida Farm Winery under s. 599.004. |
| 386 | Section 8. Should any portion of this act be held |
| 387 | unconstitutional, it is the intent of the Legislature that the |
| 388 | courts disturb only as much of the regulatory system of this |
| 389 | state as is necessary to enforce the United States Constitution. |
| 390 | Section 9. Notwithstanding the provisions of s. 561.585, |
| 391 | Florida Statutes, contracts not otherwise prohibited by the |
| 392 | Beverage Law shall not be impaired. |
| 393 | Section 10. The Division of Alcoholic Beverages and |
| 394 | Tobacco of the Department of Business and Professional |
| 395 | Regulation and the Department of Revenue may adopt rules |
| 396 | pursuant to ss. 120.536(1) and 120.54, Florida Statutes, to |
| 397 | implement and administer this act. |
| 398 | Section 11. This act shall take effect upon becoming a |
| 399 | law. |