| 1 | A bill to be entitled |
| 2 | An act relating to the production and shipment of wine; |
| 3 | creating s. 561.222, F.S.; authorizing the direct shipment |
| 4 | of wine into and within this state for personal |
| 5 | consumption only; providing legislative intent; requiring |
| 6 | licensure of winery shippers by the Division of Alcoholic |
| 7 | Beverages and Tobacco; providing license requirements; |
| 8 | requiring recipients of a direct shipment of wine to be 21 |
| 9 | years of age; requiring proof of age and the signature of |
| 10 | a recipient; providing for the payment of taxes, a monthly |
| 11 | report, and recordkeeping by winery shippers; providing |
| 12 | requirements for common carriers that make deliveries of |
| 13 | wine; providing administrative and criminal penalties for |
| 14 | violations of the act; authorizing the division and the |
| 15 | Department of Revenue to adopt rules; amending s. 561.24, |
| 16 | F.S.; revising an effective date; authorizing certain |
| 17 | manufacturers of wine holding a distributor's license to |
| 18 | renew such license; removing exemption of Florida Farm |
| 19 | Wineries from prohibition against manufacturer being |
| 20 | licensed as distributor or registered as exporter; |
| 21 | amending ss. 561.54, 561.545, and 564.045, F.S.; |
| 22 | conforming provisions to changes made by the act; amending |
| 23 | s. 599.004, F.S.; revising requirements for qualifying as |
| 24 | a certified Florida Farm Winery; providing an effective |
| 25 | date. |
| 26 |
|
| 27 | Be It Enacted by the Legislature of the State of Florida: |
| 28 |
|
| 29 | Section 1. Section 561.222, Florida Statutes, is created |
| 30 | to read: |
| 31 | 561.222 Winery shipper's license.-- |
| 32 | (1) LEGISLATIVE INTENT.--The Legislature finds that the |
| 33 | importation, distribution, and sale of alcoholic beverages |
| 34 | require strict regulation in order to promote temperance by |
| 35 | discouraging consumption by underage persons and abusive |
| 36 | consumption by adults, to ensure orderly markets having |
| 37 | transparent and accountable sales, and to facilitate the |
| 38 | collection of excise and sales taxes critical to the fiscal |
| 39 | health of the state. The Legislature finds that these purposes |
| 40 | are best achieved through the state's comprehensive system of |
| 41 | licensing and regulation, including the three-tier system of |
| 42 | alcohol distribution which has been the law of this state since |
| 43 | the repeal of Prohibition. The Legislature finds that the |
| 44 | limitations contained in this section for the uniform regulation |
| 45 | of direct shipping by small, in-state and out-of-state farm |
| 46 | wineries are the least discriminatory means of protecting the |
| 47 | public and state revenues. The Legislature continues to maintain |
| 48 | its interest in having the state exercise its police power, |
| 49 | ensure enforcement of the beverage laws, and thereby regulate |
| 50 | the transportation, importation, distribution, and sale of |
| 51 | alcoholic beverages to the maximum extent allowed by the state |
| 52 | and federal constitutions. The Legislature reaffirms its policy |
| 53 | prohibiting manufacturers from causing the direct shipment of |
| 54 | beer and spirits to individuals in this state and its intent to |
| 55 | uphold and preserve against constitutional challenge all of the |
| 56 | laws of this state relating to alcoholic beverages. |
| 57 | (2) LICENSE REQUIREMENTS.-- |
| 58 | (a) A winery may directly ship wine to a resident of this |
| 59 | state only under a winery shipper's license. A manufacturer of |
| 60 | wine within this state or any other state who manufactures no |
| 61 | more than 250,000 gallons of wine per year may ship wines that |
| 62 | the winery manufactures to a resident of this state who is at |
| 63 | least 21 years of age for that person's personal use, and not |
| 64 | for resale, upon obtaining a winery shipper's license from the |
| 65 | division. The manufacturer may obtain a winery shipper's license |
| 66 | by: |
| 67 | 1. Holding a current wine producer basic permit issued in |
| 68 | accordance with the Federal Alcohol Administration Act. |
| 69 | 2. Holding a current wine manufacturer's license from the |
| 70 | state in which it manufactures wine. |
| 71 | 3. Holding a current license as a primary American source |
| 72 | of supply in accordance with s. 564.045 and registering with the |
| 73 | division all brands shipped. |
| 74 | 4. Meeting the qualifications for licensure under s. |
| 75 | 561.15. |
| 76 | 5. Filing an application with the division in accordance |
| 77 | with s. 561.17. The information required by the division in the |
| 78 | application must be the same as the information required by the |
| 79 | division for licensure as a wine manufacturer. The applicant |
| 80 | shall also include with the application: |
| 81 | a. A copy of its current basic permit as a wine producer |
| 82 | issued in accordance with the Federal Alcohol Administration |
| 83 | Act. |
| 84 | b. A copy of its current state license to manufacture |
| 85 | wine. |
| 86 | c. A copy of the appointment of a registered agent in this |
| 87 | state for the acceptance of service of process. Winery shippers |
| 88 | must maintain an appointed registered agent and must notify the |
| 89 | division of a change in appointment. |
| 90 | d. A copy of the applicant's sales tax registration number |
| 91 | issued by the Department of Revenue. An applicant must register |
| 92 | and maintain a current sales tax registration with the |
| 93 | department as a collector and remitter of state sales tax. |
| 94 | e. An affirmation that the applicant consents to the |
| 95 | jurisdiction of the courts of this state and its agencies for |
| 96 | the enforcement of this section and any related laws or rules, |
| 97 | including actions by third parties for violations of this |
| 98 | section. |
| 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 |
| 101 | determines that the volume of business done by the manufacturer |
| 102 | is such that a bond of less than $5,000 is adequate, the |
| 103 | division 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 |
| 106 | shippers must maintain a current license as provided in this |
| 107 | section which must be renewed annually by August 1 by paying a |
| 108 | renewal fee of $250 to the division. |
| 109 | (b) The division may not issue or renew a license under |
| 110 | this section if the applicant or licensee: |
| 111 | 1. Has violated the conditions of licensure, requirements, |
| 112 | or 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 |
| 115 | winery whose production totals are greater than 250,000 gallons |
| 116 | per year; or |
| 117 | 4. Has appointed a distributor in this state, unless the |
| 118 | applicant provides to the division a copy of a written notice |
| 119 | sent to the distributor of intent to obtain a winery shipper's |
| 120 | license 1 year before applying for a winery shipper's license |
| 121 | under this section. |
| 122 | (3) SHIPPING REQUIREMENTS.-- |
| 123 | (a) Before shipping wine directly to a resident of this |
| 124 | state, a licensed winery shipper shall: |
| 125 | 1. Verify the purchaser's age at the point of purchase |
| 126 | before completing any transaction and refuse sales of wine to |
| 127 | anyone younger than 21 years of age. |
| 128 | 2. Conspicuously label the outside of each box of wine |
| 129 | shipped 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 |
| 135 | cases containing more than nine liters each of its wine per |
| 136 | calendar year to any one household address in this state. |
| 137 | Consumers may not purchase, and winery shippers may not sell, |
| 138 | ship, or cause to be shipped to a single household, more than |
| 139 | four cases of more than nine liters of wine per calendar year. |
| 140 | (b) A licensed winery shipper shall require a common |
| 141 | carrier contracting with the shipper for the delivery of the |
| 142 | shipper's wine to obtain, before delivery, the signature of the |
| 143 | addressee or other recipient who is at least 21 years of age |
| 144 | after a valid driver's license, an identification card issued by |
| 145 | this state or another state, a passport, or a United States |
| 146 | armed services identification card verifying age is presented. |
| 147 | The signature form must inform the recipient that his or her |
| 148 | signature is an acknowledgment that such wine is for personal or |
| 149 | household consumption and not for resale. |
| 150 | (c) A licensed winery shipper must obtain from a common |
| 151 | carrier contracting for the delivery of the shipper's wine the |
| 152 | common carrier's written policy declaring that the common |
| 153 | carrier shall, before delivering any wine, adhere to the |
| 154 | requirements of paragraph (b). |
| 155 | (d) A licensed winery shipper must offer to its |
| 156 | distributor for purchase and sale per calendar year the same |
| 157 | brands and quantities of wine shipped per calendar year under |
| 158 | this section. |
| 159 | (4) TAXES.--A licensed winery shipper shall pay monthly to |
| 160 | the Department of Revenue all sales taxes and to the division |
| 161 | all state excise taxes due on sales to persons in this state for |
| 162 | the preceding month. The amount of the taxes shall be calculated |
| 163 | as if the sale took place in this state. |
| 164 | (5) MONTHLY REPORT.--A licensed winery shipper shall |
| 165 | report to the division, by the 10th day of each month, on forms |
| 166 | prescribed by the division: |
| 167 | (a) Whether any wine was shipped to residents of this |
| 168 | state during the preceding month. |
| 169 | (b) The quantity and brands of wine shipped to residents |
| 170 | of this state during the preceding month. |
| 171 | (c) The total price of wine shipped to residents of this |
| 172 | state during the preceding month. |
| 173 | (d) The amount of excise tax paid to the division for the |
| 174 | shipments of wine to residents of this state during the |
| 175 | preceding month. |
| 176 | (e) Any other information that the division determines |
| 177 | necessary to enforce this section. |
| 178 | (6) RECORDS.--All licensed winery shippers shall maintain |
| 179 | the following records, electronically or otherwise, available |
| 180 | for inspection by the Department of Revenue or the division upon |
| 181 | request for a period of 3 years after the date of delivery, and |
| 182 | shall allow the Department of Revenue or the division to perform |
| 183 | an audit of the records, not to exceed the frequency of audits |
| 184 | of licensees of the Beverage Law generally, but at least once |
| 185 | per year. Upon such request, the licensee shall submit any |
| 186 | related 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 |
| 189 | residents of this state including the name, address, and date of |
| 190 | birth of the purchaser, the name and address of the person to |
| 191 | whom the wine is shipped, and the date of shipment, quantity, |
| 192 | and brands of wine shipped. |
| 193 | (c) All contracts with common carriers for the delivery of |
| 194 | the shipper's wine in this state and the carrier's written wine- |
| 195 | delivery policy. |
| 196 | (7) COMMON CARRIERS.--Each common carrier making |
| 197 | deliveries of wine under this section shall: |
| 198 | (a) Register with the division and acknowledge the |
| 199 | requirements contained in this section for the direct shipment |
| 200 | of wine and the carrier's intent to deliver wines in accordance |
| 201 | with this section. |
| 202 | (b) Maintain a written wine-delivery policy stating that |
| 203 | the common carrier shall, before delivering any wine, obtain the |
| 204 | signature of the recipient after a valid driver's license, an |
| 205 | identification card issued by this state or another state, a |
| 206 | passport, or a United States armed services identification card |
| 207 | is presented verifying that the recipient is 21 years of age or |
| 208 | older. |
| 209 | (c) Refuse delivery if the recipient appears to be younger |
| 210 | than 21 years of age; fails or refuses to present a valid |
| 211 | driver's license, an identification card issued by this state or |
| 212 | another state, a passport, or a United States armed services |
| 213 | identification card verifying age; or fails or refuses to sign |
| 214 | the signature form. |
| 215 | (d) Obtain the recipient's name and address and signed |
| 216 | acknowledgement of personal consumption for each wine delivery |
| 217 | as required in this section; maintain such records and the |
| 218 | shipping order, including the name and address of the person to |
| 219 | whom the wine is shipped, for 3 years; and make the records |
| 220 | available for inspection upon request by the division. |
| 221 | (8) PENALTIES.--In addition to the penalties provided by |
| 222 | s. 561.545, knowingly or intentionally shipping, causing to be |
| 223 | shipped, or delivering wine to a person younger than 21 years of |
| 224 | age is a third-degree felony, punishable as provided in s. |
| 225 | 775.082, s. 775.083, or s. 775.084. The division may suspend or |
| 226 | revoke the license of a winery shipper or impose fines against a |
| 227 | winery shipper for any violation of this section. If the |
| 228 | division has reasonable cause to believe that a winery shipper |
| 229 | has acted in violation of this section, the division may issue a |
| 230 | cease and desist order requiring the winery to cease shipments. |
| 231 | The division may impose a civil penalty of up to $50,000 against |
| 232 | a winery who knowingly violates a cease and desist order issued |
| 233 | under this section. |
| 234 | (9) RULEMAKING.--The Department of Revenue and the |
| 235 | division may adopt rules to administer and enforce the |
| 236 | applicable provisions of this section. |
| 237 | Section 2. Subsection (5) of section 561.24, Florida |
| 238 | Statutes, is amended to read: |
| 239 | 561.24 Licensing manufacturers as distributors or |
| 240 | registered exporters prohibited; procedure for issuance and |
| 241 | renewal of distributors' licenses and exporters' |
| 242 | registrations.-- |
| 243 | (5) Notwithstanding any of the provisions of the foregoing |
| 244 | subsections, any corporation which holds a license as a |
| 245 | distributor on June 3, 1947, shall be entitled to a renewal |
| 246 | thereof, provided such corporation complies with all of the |
| 247 | provisions of the Beverage Law of Florida, as amended, and of |
| 248 | this section and establishes by satisfactory evidence to the |
| 249 | division that, during the 6-month period next preceding its |
| 250 | application for such renewal, of the total volume of its sales |
| 251 | of spirituous liquors, in either dollars or quantity, not more |
| 252 | than 40 percent of such spirituous liquors sold by it, in either |
| 253 | dollars or quantity, were manufactured, rectified, or distilled |
| 254 | by any corporation with which the applicant is affiliated, |
| 255 | directly or indirectly, including any corporation which owns or |
| 256 | controls in any way any stock in the applicant corporation or |
| 257 | any corporation which is a subsidiary or affiliate of the |
| 258 | corporation so owning stock in the applicant corporation. Any |
| 259 | manufacturer of wine holding a license as a distributor on July |
| 260 | 1, 2008, the effective date of this act shall be entitled to a |
| 261 | renewal of such license notwithstanding the provisions of |
| 262 | subsections (1)-(5). This section does not apply to any winery |
| 263 | qualifying as a certified Florida Farm Winery under s. 599.004. |
| 264 | Section 3. Section 561.54, Florida Statutes, is amended to |
| 265 | read: |
| 266 | 561.54 Certain deliveries of beverages prohibited.-- |
| 267 | (1) It is unlawful for Common or permit carriers, |
| 268 | operators of privately owned cars, trucks, buses, or other |
| 269 | conveyances or out-of-state manufacturers or suppliers may not |
| 270 | to make delivery from outside without the state of any alcoholic |
| 271 | beverage to any person, association of persons, or corporation |
| 272 | within the state, except to qualified manufacturers, |
| 273 | distributors, and exporters of such beverages so delivered and |
| 274 | to qualified bonded warehouses in this state. |
| 275 | (2) Any licensee aggrieved by a violation of this section |
| 276 | may bring an action in any court of competent jurisdiction to |
| 277 | recover for the state all moneys obtained by common carriers or |
| 278 | permit carriers; obtained by operators of privately owned cars, |
| 279 | trucks, buses, or other conveyances; or obtained by out-of-state |
| 280 | manufacturers or suppliers as a result of the delivery of |
| 281 | alcoholic beverages in violation of this section, and may obtain |
| 282 | a declaratory judgment that an act or practice violates this |
| 283 | section and enjoin any person from violating this section. In |
| 284 | addition to such relief, the court may order the confiscation |
| 285 | and destruction of any alcoholic beverages delivered in |
| 286 | violation of this section. In assessing damages, the court shall |
| 287 | enter judgment against a defendant for three times the amount of |
| 288 | the delivery charges proved or the fair market value of |
| 289 | merchandise unlawfully brought into the state. Payment or |
| 290 | satisfaction of a any judgment under this section, other than |
| 291 | for costs and attorney's fees, shall be made in its entirety to |
| 292 | the state. In a any successful action under this section, the |
| 293 | court shall award the plaintiff costs and reasonable attorney's |
| 294 | fees. |
| 295 | (3) This section does not apply to the direct shipment of |
| 296 | wine by a licensed winery shipper to a person 21 years of age or |
| 297 | older for household consumption. |
| 298 | Section 4. Section 561.545, Florida Statutes, is amended |
| 299 | to read: |
| 300 | 561.545 Certain shipments of beverages prohibited; |
| 301 | penalties; exceptions.--The Legislature finds that the direct |
| 302 | shipment of alcoholic beverages by persons in the business of |
| 303 | selling alcoholic beverages to residents of this state in |
| 304 | violation of the Beverage Law poses a serious threat to the |
| 305 | public health, safety, and welfare; to state revenue |
| 306 | collections; and to the economy of the state. The Legislature |
| 307 | further finds that the penalties for illegal direct shipment of |
| 308 | alcoholic beverages to residents of this state should be made |
| 309 | adequate to ensure compliance with the Beverage Law and that the |
| 310 | measures provided for in this section are fully consistent with |
| 311 | the powers conferred upon the state by the Twenty-first |
| 312 | Amendment to the United States Constitution. |
| 313 | (1) A Any person in the business of selling alcoholic |
| 314 | beverages who knowingly and intentionally ships, or causes to be |
| 315 | shipped, any alcoholic beverage from an out-of-state location |
| 316 | directly to any person in this state who does not hold a valid |
| 317 | manufacturer's or wholesaler's license or exporter's |
| 318 | registration issued by the division of Alcoholic Beverages and |
| 319 | Tobacco or who is not a state-bonded warehouse is in violation |
| 320 | of this section. |
| 321 | (2) A Any common carrier or permit carrier or any operator |
| 322 | of a privately owned car, truck, bus, or other conveyance who |
| 323 | knowingly and intentionally transports any alcoholic beverage |
| 324 | from an out-of-state location directly to any person in this |
| 325 | state who does not hold a valid manufacturer's or wholesaler's |
| 326 | license or exporter's registration or who is not a state-bonded |
| 327 | warehouse is in violation of this section. |
| 328 | (3) A Any person found by the division to be in violation |
| 329 | of subsection (1) shall be issued a notice, sent by certified |
| 330 | mail, to show cause why a cease and desist order should not be |
| 331 | issued. Any person who violates subsection (1) within 2 years |
| 332 | after receiving a cease and desist order or within 2 years after |
| 333 | a prior conviction for violating subsection (1) commits a felony |
| 334 | of the third degree, punishable as provided in s. 775.082, s. |
| 335 | 775.083, or s. 775.084. |
| 336 | (4) A Any common carrier or permit carrier, or any |
| 337 | operator of a privately owned car, truck, bus, or other |
| 338 | conveyance found by the division to be in violation of |
| 339 | subsection (2) as a result of a second or subsequent delivery |
| 340 | from the same source and location, within a 2-year period after |
| 341 | the first delivery shall be issued a notice, sent by certified |
| 342 | mail, to show cause why a cease and desist order should not be |
| 343 | issued. A Any person who violates subsection (2) within 2 years |
| 344 | after receiving the cease and desist order or within 2 years |
| 345 | after a prior conviction for violating subsection (2) commits a |
| 346 | felony of the third degree, punishable as provided in s. |
| 347 | 775.082, s. 775.083, or s. 775.084. |
| 348 | (5) This section does not apply to the direct shipment of |
| 349 | wine by a licensed winery shipper to a person 21 years of age or |
| 350 | older for household consumption, the direct shipment of |
| 351 | sacramental alcoholic beverages to bona fide religious |
| 352 | organizations as authorized by the division, or to possession of |
| 353 | alcoholic beverages in accordance with s. 562.15(2). |
| 354 | Section 5. Subsection (2) of section 564.045, Florida |
| 355 | Statutes, is amended to read: |
| 356 | 564.045 Licensure as primary American source of supply.-- |
| 357 | (2) TAX CONTROL LICENSURE REQUIRED.--For purposes of tax |
| 358 | revenue control, a no person, firm, corporation, or other entity |
| 359 | that which is the primary American source of supply as defined |
| 360 | herein may not sell, offer for sale, accept orders for the sale |
| 361 | of, ship, or cause to be shipped into this state any vinous |
| 362 | beverages to any distributor, or importer, or person for |
| 363 | household consumption, as provided in s. 561.222, within this |
| 364 | the state without having first obtained licensure as a primary |
| 365 | American source of supply on forms provided by, and in such |
| 366 | manner as prescribed by, the division. Except for applicants for |
| 367 | a winery shipper's license, applicants for licensure as a |
| 368 | primary American source of supply are shall be exempt from the |
| 369 | requirements and qualification standards set forth in ss. 561.15 |
| 370 | and 561.17. |
| 371 | Section 6. Paragraph (a) of subsection (1) of section |
| 372 | 599.004, Florida Statutes, is amended to read: |
| 373 | 599.004 Florida Farm Winery Program; registration; logo; |
| 374 | fees.-- |
| 375 | (1) The Florida Farm Winery Program is established within |
| 376 | the Department of Agriculture and Consumer Services. Under this |
| 377 | program, a winery may qualify as a tourist attraction only if it |
| 378 | is registered with and certified by the department as a Florida |
| 379 | Farm Winery. A winery may not claim to be certified unless it |
| 380 | has received written approval from the department. |
| 381 | (a) To qualify as a certified Florida Farm Winery, a |
| 382 | winery must shall meet the following standards: |
| 383 | 1. Produce or sell less than 250,000 gallons of wine |
| 384 | annually of which 60 percent of the wine produced is made from |
| 385 | state agricultural products. The Commissioner of Agriculture may |
| 386 | waive this requirement in times of hardship. |
| 387 | 2. Maintain a minimum of 10 acres of owned or managed |
| 388 | vineyards in this state Florida. |
| 389 | 3. Be open to the public for tours, tastings, and sales at |
| 390 | least 30 hours each week. |
| 391 | 4. Make annual application to the department for |
| 392 | recognition as a Florida Farm Winery, on forms provided by the |
| 393 | department. |
| 394 | 5. Pay an annual application and registration fee of $100. |
| 395 | Section 7. This act shall take effect July 1, 2008. |