HB 1293

1
A bill to be entitled
2An act relating to the production and shipment of wine;
3creating s. 561.222, F.S.; authorizing the direct shipment
4of wine into and within this state for personal
5consumption only; providing legislative intent; requiring
6licensure of winery shippers by the Division of Alcoholic
7Beverages and Tobacco; providing license requirements;
8requiring recipients of a direct shipment of wine to be 21
9years of age; requiring proof of age and the signature of
10a recipient; providing for the payment of taxes, a monthly
11report, and recordkeeping by winery shippers; providing
12requirements for common carriers that make deliveries of
13wine; providing administrative and criminal penalties for
14violations of the act; authorizing the division and the
15Department of Revenue to adopt rules; amending s. 561.24,
16F.S.; revising an effective date; authorizing certain
17manufacturers of wine holding a distributor's license to
18renew such license; removing exemption of Florida Farm
19Wineries from prohibition against manufacturer being
20licensed as distributor or registered as exporter;
21amending ss. 561.54, 561.545, and 564.045, F.S.;
22conforming provisions to changes made by the act; amending
23s. 599.004, F.S.; revising requirements for qualifying as
24a certified Florida Farm Winery; providing an effective
25date.
26
27Be It Enacted by the Legislature of the State of Florida:
28
29     Section 1.  Section 561.222, Florida Statutes, is created
30to read:
31     561.222  Winery shipper's license.--
32     (1)  LEGISLATIVE INTENT.--The Legislature finds that the
33importation, distribution, and sale of alcoholic beverages
34require strict regulation in order to promote temperance by
35discouraging consumption by underage persons and abusive
36consumption by adults, to ensure orderly markets having
37transparent and accountable sales, and to facilitate the
38collection of excise and sales taxes critical to the fiscal
39health of the state. The Legislature finds that these purposes
40are best achieved through the state's comprehensive system of
41licensing and regulation, including the three-tier system of
42alcohol distribution which has been the law of this state since
43the repeal of Prohibition. The Legislature finds that the
44limitations contained in this section for the uniform regulation
45of direct shipping by small, in-state and out-of-state farm
46wineries are the least discriminatory means of protecting the
47public and state revenues. The Legislature continues to maintain
48its interest in having the state exercise its police power,
49ensure enforcement of the beverage laws, and thereby regulate
50the transportation, importation, distribution, and sale of
51alcoholic beverages to the maximum extent allowed by the state
52and federal constitutions. The Legislature reaffirms its policy
53prohibiting manufacturers from causing the direct shipment of
54beer and spirits to individuals in this state and its intent to
55uphold and preserve against constitutional challenge all of the
56laws of this state relating to alcoholic beverages.
57     (2)  LICENSE REQUIREMENTS.--
58     (a)  A winery may directly ship wine to a resident of this
59state only under a winery shipper's license. A manufacturer of
60wine within this state or any other state who manufactures no
61more than 250,000 gallons of wine per year may ship wines that
62the winery manufactures to a resident of this state who is at
63least 21 years of age for that person's personal use, and not
64for resale, upon obtaining a winery shipper's license from the
65division. The manufacturer may obtain a winery shipper's license
66by:
67     1.  Holding a current wine producer basic permit issued in
68accordance with the Federal Alcohol Administration Act.
69     2.  Holding a current wine manufacturer's license from the
70state in which it manufactures wine.
71     3.  Holding a current license as a primary American source
72of supply in accordance with s. 564.045 and registering with the
73division all brands shipped.
74     4.  Meeting the qualifications for licensure under s.
75561.15.
76     5.  Filing an application with the division in accordance
77with s. 561.17. The information required by the division in the
78application must be the same as the information required by the
79division for licensure as a wine manufacturer. The applicant
80shall also include with the application:
81     a.  A copy of its current basic permit as a wine producer
82issued in accordance with the Federal Alcohol Administration
83Act.
84     b.  A copy of its current state license to manufacture
85wine.
86     c.  A copy of the appointment of a registered agent in this
87state for the acceptance of service of process. Winery shippers
88must maintain an appointed registered agent and must notify the
89division of a change in appointment.
90     d.  A copy of the applicant's sales tax registration number
91issued by the Department of Revenue. An applicant must register
92and maintain a current sales tax registration with the
93department as a collector and remitter of state sales tax.
94     e.  An affirmation that the applicant consents to the
95jurisdiction of the courts of this state and its agencies for
96the enforcement of this section and any related laws or rules,
97including actions by third parties for violations of this
98section.
99     6.  Filing with the division a surety bond in the sum of
100$5,000 as surety for the payment of all taxes. If the division
101determines that the volume of business done by the manufacturer
102is such that a bond of less than $5,000 is adequate, the
103division may accept a bond in a lesser sum, but not less than
104$1,000.
105     7.  Paying a license fee of $250 to the division. Winery
106shippers must maintain a current license as provided in this
107section which must be renewed annually by August 1 by paying a
108renewal fee of $250 to the division.
109     (b)  The division may not issue or renew a license under
110this section if the applicant or licensee:
111     1.  Has violated the conditions of licensure, requirements,
112or limitations of this section;
113     2.  Produces more than 250,000 gallons of wine annually;
114     3.  Has a subsidiary or is otherwise affiliated with a
115winery whose production totals are greater than 250,000 gallons
116per year; or
117     4.  Has appointed a distributor in this state, unless the
118applicant provides to the division a copy of a written notice
119sent to the distributor of intent to obtain a winery shipper's
120license 1 year before applying for a winery shipper's license
121under this section.
122     (3)  SHIPPING REQUIREMENTS.--
123     (a)  Before shipping wine directly to a resident of this
124state, a licensed winery shipper shall:
125     1.  Verify the purchaser's age at the point of purchase
126before completing any transaction and refuse sales of wine to
127anyone younger than 21 years of age.
128     2.  Conspicuously label the outside of each box of wine
129shipped with the following information:
130     a.  The package contains alcohol.
131     b.  The recipient must be at least 21 years of age.
132     c.  The wine is for personal use only and not for resale.
133     d.  The signature of the recipient is required.
134     3.  Refuse to ship or cause to be shipped more than four
135cases containing more than nine liters each of its wine per
136calendar year to any one household address in this state.
137Consumers may not purchase, and winery shippers may not sell,
138ship, or cause to be shipped to a single household, more than
139four cases of more than nine liters of wine per calendar year.
140     (b)  A licensed winery shipper shall require a common
141carrier contracting with the shipper for the delivery of the
142shipper's wine to obtain, before delivery, the signature of the
143addressee or other recipient who is at least 21 years of age
144after a valid driver's license, an identification card issued by
145this state or another state, a passport, or a United States
146armed services identification card verifying age is presented.
147The signature form must inform the recipient that his or her
148signature is an acknowledgment that such wine is for personal or
149household consumption and not for resale.
150     (c)  A licensed winery shipper must obtain from a common
151carrier contracting for the delivery of the shipper's wine the
152common carrier's written policy declaring that the common
153carrier shall, before delivering any wine, adhere to the
154requirements of paragraph (b).
155     (d)  A licensed winery shipper must offer to its
156distributor for purchase and sale per calendar year the same
157brands and quantities of wine shipped per calendar year under
158this section.
159     (4)  TAXES.--A licensed winery shipper shall pay monthly to
160the Department of Revenue all sales taxes and to the division
161all state excise taxes due on sales to persons in this state for
162the preceding month. The amount of the taxes shall be calculated
163as if the sale took place in this state.
164     (5)  MONTHLY REPORT.--A licensed winery shipper shall
165report to the division, by the 10th day of each month, on forms
166prescribed by the division:
167     (a)  Whether any wine was shipped to residents of this
168state during the preceding month.
169     (b)  The quantity and brands of wine shipped to residents
170of this state during the preceding month.
171     (c)  The total price of wine shipped to residents of this
172state during the preceding month.
173     (d)  The amount of excise tax paid to the division for the
174shipments of wine to residents of this state during the
175preceding month.
176     (e)  Any other information that the division determines
177necessary to enforce this section.
178     (6)  RECORDS.--All licensed winery shippers shall maintain
179the following records, electronically or otherwise, available
180for inspection by the Department of Revenue or the division upon
181request for a period of 3 years after the date of delivery, and
182shall allow the Department of Revenue or the division to perform
183an audit of the records, not to exceed the frequency of audits
184of licensees of the Beverage Law generally, but at least once
185per year. Upon such request, the licensee shall submit any
186related documents to that agency within 30 days.
187     (a)  The license issued under this section.
188     (b)  A record of all wines ordered, sold, or shipped to
189residents of this state including the name, address, and date of
190birth of the purchaser, the name and address of the person to
191whom the wine is shipped, and the date of shipment, quantity,
192and brands of wine shipped.
193     (c)  All contracts with common carriers for the delivery of
194the shipper's wine in this state and the carrier's written wine-
195delivery policy.
196     (7)  COMMON CARRIERS.--Each common carrier making
197deliveries of wine under this section shall:
198     (a)  Register with the division and acknowledge the
199requirements contained in this section for the direct shipment
200of wine and the carrier's intent to deliver wines in accordance
201with this section.
202     (b)  Maintain a written wine-delivery policy stating that
203the common carrier shall, before delivering any wine, obtain the
204signature of the recipient after a valid driver's license, an
205identification card issued by this state or another state, a
206passport, or a United States armed services identification card
207is presented verifying that the recipient is 21 years of age or
208older.
209     (c)  Refuse delivery if the recipient appears to be younger
210than 21 years of age; fails or refuses to present a valid
211driver's license, an identification card issued by this state or
212another state, a passport, or a United States armed services
213identification card verifying age; or fails or refuses to sign
214the signature form.
215     (d)  Obtain the recipient's name and address and signed
216acknowledgement of personal consumption for each wine delivery
217as required in this section; maintain such records and the
218shipping order, including the name and address of the person to
219whom the wine is shipped, for 3 years; and make the records
220available for inspection upon request by the division.
221     (8)  PENALTIES.--In addition to the penalties provided by
222s. 561.545, knowingly or intentionally shipping, causing to be
223shipped, or delivering wine to a person younger than 21 years of
224age is a third-degree felony, punishable as provided in s.
225775.082, s. 775.083, or s. 775.084. The division may suspend or
226revoke the license of a winery shipper or impose fines against a
227winery shipper for any violation of this section. If the
228division has reasonable cause to believe that a winery shipper
229has acted in violation of this section, the division may issue a
230cease and desist order requiring the winery to cease shipments.
231The division may impose a civil penalty of up to $50,000 against
232a winery who knowingly violates a cease and desist order issued
233under this section.
234     (9)  RULEMAKING.--The Department of Revenue and the
235division may adopt rules to administer and enforce the
236applicable provisions of this section.
237     Section 2.  Subsection (5) of section 561.24, Florida
238Statutes, is amended to read:
239     561.24  Licensing manufacturers as distributors or
240registered exporters prohibited; procedure for issuance and
241renewal of distributors' licenses and exporters'
242registrations.--
243     (5)  Notwithstanding any of the provisions of the foregoing
244subsections, any corporation which holds a license as a
245distributor on June 3, 1947, shall be entitled to a renewal
246thereof, provided such corporation complies with all of the
247provisions of the Beverage Law of Florida, as amended, and of
248this section and establishes by satisfactory evidence to the
249division that, during the 6-month period next preceding its
250application for such renewal, of the total volume of its sales
251of spirituous liquors, in either dollars or quantity, not more
252than 40 percent of such spirituous liquors sold by it, in either
253dollars or quantity, were manufactured, rectified, or distilled
254by any corporation with which the applicant is affiliated,
255directly or indirectly, including any corporation which owns or
256controls in any way any stock in the applicant corporation or
257any corporation which is a subsidiary or affiliate of the
258corporation so owning stock in the applicant corporation. Any
259manufacturer of wine holding a license as a distributor on July
2601, 2008, the effective date of this act shall be entitled to a
261renewal of such license notwithstanding the provisions of
262subsections (1)-(5). This section does not apply to any winery
263qualifying as a certified Florida Farm Winery under s. 599.004.
264     Section 3.  Section 561.54, Florida Statutes, is amended to
265read:
266     561.54  Certain deliveries of beverages prohibited.--
267     (1)  It is unlawful for Common or permit carriers,
268operators of privately owned cars, trucks, buses, or other
269conveyances or out-of-state manufacturers or suppliers may not
270to make delivery from outside without the state of any alcoholic
271beverage to any person, association of persons, or corporation
272within the state, except to qualified manufacturers,
273distributors, and exporters of such beverages so delivered and
274to qualified bonded warehouses in this state.
275     (2)  Any licensee aggrieved by a violation of this section
276may bring an action in any court of competent jurisdiction to
277recover for the state all moneys obtained by common carriers or
278permit carriers; obtained by operators of privately owned cars,
279trucks, buses, or other conveyances; or obtained by out-of-state
280manufacturers or suppliers as a result of the delivery of
281alcoholic beverages in violation of this section, and may obtain
282a declaratory judgment that an act or practice violates this
283section and enjoin any person from violating this section. In
284addition to such relief, the court may order the confiscation
285and destruction of any alcoholic beverages delivered in
286violation of this section. In assessing damages, the court shall
287enter judgment against a defendant for three times the amount of
288the delivery charges proved or the fair market value of
289merchandise unlawfully brought into the state. Payment or
290satisfaction of a any judgment under this section, other than
291for costs and attorney's fees, shall be made in its entirety to
292the state. In a any successful action under this section, the
293court shall award the plaintiff costs and reasonable attorney's
294fees.
295     (3)  This section does not apply to the direct shipment of
296wine by a licensed winery shipper to a person 21 years of age or
297older for household consumption.
298     Section 4.  Section 561.545, Florida Statutes, is amended
299to read:
300     561.545  Certain shipments of beverages prohibited;
301penalties; exceptions.--The Legislature finds that the direct
302shipment of alcoholic beverages by persons in the business of
303selling alcoholic beverages to residents of this state in
304violation of the Beverage Law poses a serious threat to the
305public health, safety, and welfare; to state revenue
306collections; and to the economy of the state. The Legislature
307further finds that the penalties for illegal direct shipment of
308alcoholic beverages to residents of this state should be made
309adequate to ensure compliance with the Beverage Law and that the
310measures provided for in this section are fully consistent with
311the powers conferred upon the state by the Twenty-first
312Amendment to the United States Constitution.
313     (1)  A Any person in the business of selling alcoholic
314beverages who knowingly and intentionally ships, or causes to be
315shipped, any alcoholic beverage from an out-of-state location
316directly to any person in this state who does not hold a valid
317manufacturer's or wholesaler's license or exporter's
318registration issued by the division of Alcoholic Beverages and
319Tobacco or who is not a state-bonded warehouse is in violation
320of this section.
321     (2)  A Any common carrier or permit carrier or any operator
322of a privately owned car, truck, bus, or other conveyance who
323knowingly and intentionally transports any alcoholic beverage
324from an out-of-state location directly to any person in this
325state who does not hold a valid manufacturer's or wholesaler's
326license or exporter's registration or who is not a state-bonded
327warehouse is in violation of this section.
328     (3)  A Any person found by the division to be in violation
329of subsection (1) shall be issued a notice, sent by certified
330mail, to show cause why a cease and desist order should not be
331issued. Any person who violates subsection (1) within 2 years
332after receiving a cease and desist order or within 2 years after
333a prior conviction for violating subsection (1) commits a felony
334of the third degree, punishable as provided in s. 775.082, s.
335775.083, or s. 775.084.
336     (4)  A Any common carrier or permit carrier, or any
337operator of a privately owned car, truck, bus, or other
338conveyance found by the division to be in violation of
339subsection (2) as a result of a second or subsequent delivery
340from the same source and location, within a 2-year period after
341the first delivery shall be issued a notice, sent by certified
342mail, to show cause why a cease and desist order should not be
343issued. A Any person who violates subsection (2) within 2 years
344after receiving the cease and desist order or within 2 years
345after a prior conviction for violating subsection (2) commits a
346felony of the third degree, punishable as provided in s.
347775.082, s. 775.083, or s. 775.084.
348     (5)  This section does not apply to the direct shipment of
349wine by a licensed winery shipper to a person 21 years of age or
350older for household consumption, the direct shipment of
351sacramental alcoholic beverages to bona fide religious
352organizations as authorized by the division, or to possession of
353alcoholic beverages in accordance with s. 562.15(2).
354     Section 5.  Subsection (2) of section 564.045, Florida
355Statutes, is amended to read:
356     564.045  Licensure as primary American source of supply.--
357     (2)  TAX CONTROL LICENSURE REQUIRED.--For purposes of tax
358revenue control, a no person, firm, corporation, or other entity
359that which is the primary American source of supply as defined
360herein may not sell, offer for sale, accept orders for the sale
361of, ship, or cause to be shipped into this state any vinous
362beverages to any distributor, or importer, or person for
363household consumption, as provided in s. 561.222, within this
364the state without having first obtained licensure as a primary
365American source of supply on forms provided by, and in such
366manner as prescribed by, the division. Except for applicants for
367a winery shipper's license, applicants for licensure as a
368primary American source of supply are shall be exempt from the
369requirements and qualification standards set forth in ss. 561.15
370and 561.17.
371     Section 6.  Paragraph (a) of subsection (1) of section
372599.004, Florida Statutes, is amended to read:
373     599.004  Florida Farm Winery Program; registration; logo;
374fees.--
375     (1)  The Florida Farm Winery Program is established within
376the Department of Agriculture and Consumer Services. Under this
377program, a winery may qualify as a tourist attraction only if it
378is registered with and certified by the department as a Florida
379Farm Winery. A winery may not claim to be certified unless it
380has received written approval from the department.
381     (a)  To qualify as a certified Florida Farm Winery, a
382winery must shall meet the following standards:
383     1.  Produce or sell less than 250,000 gallons of wine
384annually of which 60 percent of the wine produced is made from
385state agricultural products. The Commissioner of Agriculture may
386waive this requirement in times of hardship.
387     2.  Maintain a minimum of 10 acres of owned or managed
388vineyards in this state Florida.
389     3.  Be open to the public for tours, tastings, and sales at
390least 30 hours each week.
391     4.  Make annual application to the department for
392recognition as a Florida Farm Winery, on forms provided by the
393department.
394     5.  Pay an annual application and registration fee of $100.
395     Section 7.  This act shall take effect July 1, 2008.


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