HB 251

1
A bill to be entitled
2An act relating to the Beverage Law; creating s. 561.585,
3F.S.; authorizing certain direct shipments of wine;
4requiring licensure of winery shippers; providing
5requirements for licensure; providing prohibitions;
6requiring that a winery shipper licensee file a surety
7bond with the Division of Alcoholic Beverages and Tobacco
8of the Department of Business and Professional Regulation;
9requiring that each container of wine shipped directly be
10labeled with a notice; providing signature and
11identification requirements; limiting the size of wine
12containers; providing age requirements for those
13purchasing wine for direct shipment or receiving direct
14shipments of wine; providing a defense to certain actions;
15requiring monthly reports by winery shipper licensees;
16requiring the collection, remittance, and payment of
17certain taxes by direct shippers; requiring certain
18proceeds from discretionary sales surtaxes to be deposited
19into an account in the Discretionary Sales Surtax Clearing
20Trust Fund; requiring that winery shippers maintain
21certain records for a certain period; providing for
22jurisdiction; providing penalties; amending s. 561.14,
23F.S.; classifying the winery shipper license; amending s.
24561.54, F.S.; removing a provision requiring that the
25licensee be aggrieved by a violation involving prohibited
26delivery from without the state to have standing to bring
27an action; exempting from such prohibition shipment of
28wine by a winery shipper licensee; amending s. 561.545,
29F.S.; exempting applicability of the prohibition against
30direct shipment of alcoholic beverages to the shipment of
31wine by a winery shipper licensee; amending s. 561.57,
32F.S.; requiring that Internet orders be construed as
33telephone orders; exempting common carriers, licensees, or
34licensees using common carriers as their agents from
35certain report filing requirements; requiring common
36carriers to verify the age of persons receiving shipments;
37providing a defense to certain actions; providing criteria
38for the defense; amending s. 599.004, F.S.; revising
39qualifications for the certification of Florida Farm
40Wineries; providing for severability; providing for
41nonimpairment of contracts; providing for rulemaking
42authority; providing an effective date.
43
44Be It Enacted by the Legislature of the State of Florida:
45
46     Section 1.  Section 561.585, Florida Statutes, is created
47to read:
48     561.585  Direct shipment of wine for personal
49consumption.--
50     (1)  WINERY SHIPPER LICENSURE REQUIREMENTS.--
51     (a)  Wineries may not ship or cause to be shipped any wine
52to individual consumers in this state unless licensed under this
53section. Notwithstanding any provision of the Beverage Law or
54any rule to the contrary, a person, firm, corporation, or other
55entity licensed as a winery shipper under this section may ship
56wine directly to any person who is at least 21 years of age for
57personal use only and not for resale. To obtain or renew a
58winery shipper's license, an applicant must:
59     1.  File an application with the division on forms
60prescribed by the division.
61     2.  Qualify for licensure under ss. 561.15 and 561.17 or
62provide a true copy of a certification from the alcoholic
63beverage licensing authority of the Federal Government, or the
64state in which the winery is located, with license
65qualifications and procedures for that winery license which
66include, at a minimum:
67     a.  Fingerprinting of applicants.
68     b.  Disqualification for applicants under 21 years of age.
69     c.  Disqualification for applicants convicted of:
70     (I)  Within the past 5 years, any violation of the beverage
71laws of this state, the United States, or any other state;
72     (II)  Within the past 15 years, any felony in this state or
73any other state; or
74     (III)  Any criminal violation of the controlled substance
75act of this state, the United States, or any other state.
76     3.  Obtain and maintain a current license as a primary
77American source of supply as provided in s. 564.045.
78     4.  Provide to the division a true copy of its current wine
79manufacturer's license issued by this state or another state and
80a true copy of its current federal basic permit as a wine
81producer issued in accordance with the Federal Alcohol
82Administration Act.
83     5.  Pay an annual license fee in the amount of $100.
84     6.  File with the division a surety bond acceptable to the
85division in the sum of $1,000 as surety for the payment of all
86taxes; however, at the discretion of the division, when the
87amount of business done by the winery shipper licensee is such
88volume that a bond of less than $1,000 will be adequate, the
89division may accept a bond in a lesser sum but not less than
90$500. The surety bond currently on file with the division for a
91winery pursuant to s. 561.37 is deemed to comply with this
92requirement. Upon written request of the winery shipper, the
93division shall review the total tax liability to the state by
94the winery shipper and reduce the bond to 110 percent of the
95prior year's total tax liability as a licensee under this
96section but not less than $500.
97     (b)  Applicants under this section may obtain a temporary
98initial license as authorized in s. 561.181.
99     (c)  Licensees shall comply with s. 564.05, which limits
100the size of wine containers.
101     (d)  Each winery shipper licensee must verify the
102purchaser's age at the point of purchase before completing any
103transaction and must refuse the sale of wine to any person under
10421 years of age. Verification methods for purposes of this
105paragraph may include receiving a copy, electronic or otherwise,
106of a purchaser's driver's license or other acceptable
107identification methods approved by the division.
108     (2)  LABEL.--Each winery shipper licensee shall ensure that
109the outside shipping label on each package is conspicuous and
110includes the following components:
111     (a)  This package contains alcohol.
112     (b)  An adult signature is required.
113     (c)  The recipient must be at least 21 years of age.
114     (3)  SIGNATURE.--
115     (a)  Each winery shipper licensee and common carrier shall
116require, before delivery, that the signature of the addressee or
117other person at least 21 years of age is obtained after
118presentation of a valid driver's license, an identification card
119issued under the provisions of s. 322.051, or, if the person is
120physically handicapped, a comparable identification card issued
121by another state which indicates the person's age, a passport,
122or a United States Uniformed Services identification card.
123     (b)  A winery shipper licensee or common carrier who
124violates this subsection has a complete defense to any civil
125action therefor, except for any administrative action by the
126division, if, at the time the alcoholic beverage was sold,
127given, delivered, or transferred, the person falsely evidenced
128that he or she was of legal age to purchase or consume the
129alcoholic beverage and the appearance of the person was such
130that an ordinarily prudent person would believe him or her to be
131of legal age to purchase or consume the alcoholic beverage and
132if the winery shipper licensee or common carrier acted in good
133faith and in reliance upon the representation and appearance of
134the person in the belief that he or she was of legal age to
135purchase or consume the alcoholic beverage and carefully checked
136one of the following forms of identification with respect to the
137person: a valid driver's license, an identification card issued
138under the provisions of s. 322.051, or, if the person is
139physically handicapped, a comparable identification card issued
140by another state which indicates the person's age, a passport,
141or a United States Uniformed Services identification card.
142     (4)  MONTHLY REPORT.--
143     (a)  Each winery shipper licensee shall report monthly to
144the division on forms prescribed by the division:
145     1.  Whether any wine product was shipped into or within
146this state under this section during the preceding month.
147     2.  The total amount of wine shipped into or within this
148state under this section during the preceding month.
149     3.  The quantity and types of wine shipped into or within
150this state under this section during the preceding month.
151     4.  The amount of excise tax paid to the division for
152shipments of wine into or within this state under this section
153during the preceding month.
154     (b)  The report required by this subsection is not required
155from a winery shipper licensee who files a monthly report
156pursuant to s. 561.55 containing all the information required in
157paragraph (a). The division may prescribe the format for
158submission of this information in order that duplicate filings
159are eliminated.
160     (5)  TAXES.--
161     (a)  Each winery shipper licensee shall collect and remit
162monthly to the Department of Revenue all sales taxes and pay to
163the division all excise taxes due on sales to persons in this
164state for the preceding month. Notwithstanding s. 212.0596, the
165amount of such taxes shall be calculated as if the sale took
166place at the location where the delivery occurred in this state.
167The proceeds of the discretionary sales surtaxes imposed under
168s. 212.055 shall be deposited into an account in the
169Discretionary Sales Surtax Clearing Trust Fund described in s.
170212.054(4)(c) and distributed as provided therein.
171     (b)  Each winery shipper licensee shall maintain for at
172least 3 years after the date of delivery records of its
173shipments into or within this state pursuant to this section,
174including the names, addresses, amounts, and dates of all
175shipments to persons in this state, and shall allow the
176Department of Revenue or the division, upon request, to perform
177an audit of such records.
178     (c)  The cost of performing an audit under paragraph (b)
179shall be assigned to the agency requesting the audit unless the
180winery shipper licensee is found to be in material violation of
181this subsection, in which case the cost of the audit shall be
182assigned to the licensee.
183     (6)  JURISDICTION.--Each winery shipper licensee is deemed
184to have consented to the jurisdiction of the division or any
185other state agency or local law enforcement agency and the
186courts of this state concerning enforcement of this section and
187any related laws or rules.
188     (7)  PENALTIES.--
189     (a)  In addition to any other penalty provided in the
190Beverage Law, the division may suspend or revoke a winery
191shipper license or impose fines on the winery shipper licensee
192in an amount not to exceed $1,000 per violation for any
193violation of this section.
194     (b)  A winery shipper licensee that knowingly and
195intentionally ships, or causes to be shipped, wine to any person
196in this state who is under 21 years of age commits a misdemeanor
197of the first degree, punishable as provided in s. 775.082 or s.
198775.083.
199     (c)  Any common carrier, permit carrier, or other
200commercial conveyance that knowingly and intentionally delivers
201wine directly to any person in this state who is under 21 years
202of age commits a misdemeanor of the second degree, punishable as
203provided in s. 775.082 or s. 775.083.
204     (d)  A person who knowingly and intentionally obtains wine
205from a winery shipper licensee in violation of this section
206commits a misdemeanor of the second degree, punishable as
207provided in s. 775.082 or s. 775.083.
208     Section 2.  Subsection (8) is added to section 561.14,
209Florida Statutes, to read:
210     561.14  License and registration classification.--Licenses
211and registrations referred to in the Beverage Law shall be
212classified as follows:
213     (8)  Wineries licensed as winery shippers under s. 561.585.
214     Section 3.  Section 561.54, Florida Statutes, is amended to
215read:
216     561.54  Certain deliveries of beverages prohibited.--
217     (1)  It is unlawful for common or permit carriers,
218operators of privately owned cars, trucks, buses, or other
219conveyances or out-of-state manufacturers or suppliers to make
220delivery from without the state of any alcoholic beverage to any
221person, association of persons, or corporation within the state,
222except to qualified manufacturers, distributors, and exporters
223of such beverages so delivered and to qualified bonded
224warehouses in this state.
225     (2)  Any licensee aggrieved by a violation of this section
226may bring an action in any court of competent jurisdiction to
227recover for the state all moneys obtained by common carriers or
228permit carriers; obtained by operators of privately owned cars,
229trucks, buses, or other conveyances; or obtained by out-of-state
230manufacturers or suppliers as a result of the delivery of
231alcoholic beverages in violation of this section, and may obtain
232a declaratory judgment that an act or practice violates this
233section and enjoin any person from violating this section. In
234addition to such relief, the court may order the confiscation
235and destruction of any alcoholic beverages delivered in
236violation of this section. In assessing damages, the court shall
237enter judgment against a defendant for three times the amount of
238the delivery charges proved or the fair market value of
239merchandise unlawfully brought into the state. Payment or
240satisfaction of any judgment under this section, other than for
241costs and attorney's fees, shall be made in its entirety to the
242state. In any successful action under this section, the court
243shall award the plaintiff costs and reasonable attorney's fees.
244     (3)  This section does not apply to the shipment of wine by
245a winery shipper licensee to a person who is at least 21 years
246of age in accordance with s. 561.585.
247     Section 4.  Subsection (5) of section 561.545, Florida
248Statutes, is amended to read:
249     561.545  Certain shipments of beverages prohibited;
250penalties; exceptions.--The Legislature finds that the direct
251shipment of alcoholic beverages by persons in the business of
252selling alcoholic beverages to residents of this state in
253violation of the Beverage Law poses a serious threat to the
254public health, safety, and welfare; to state revenue
255collections; and to the economy of the state. The Legislature
256further finds that the penalties for illegal direct shipment of
257alcoholic beverages to residents of this state should be made
258adequate to ensure compliance with the Beverage Law and that the
259measures provided for in this section are fully consistent with
260the powers conferred upon the state by the Twenty-first
261Amendment to the United States Constitution.
262     (5)  This section does not apply to:
263     (a)  The direct shipment of sacramental alcoholic beverages
264to bona fide religious organizations as authorized by the
265division;
266     (b)  The or to possession of alcoholic beverages in
267accordance with s. 562.15(2); or
268     (c)  The shipment of wine in accordance with s. 561.585.
269     Section 5.  Subsections (1) and (6) of section 561.57,
270Florida Statutes, are amended to read:
271     561.57  Deliveries by licensees.--
272     (1)  Vendors shall be permitted to make deliveries away
273from their places of business of sales actually made at the
274licensed place of business; provided, telephone or mail orders
275received at vendor's licensed place of business shall be
276construed as a sale actually made at the vendor's licensed place
277of business. For purposes of this section, Internet orders shall
278be construed as telephone orders.
279     (6)  Common carriers are not required to have vehicle
280permits to transport alcoholic beverages. This section does not
281prohibit any licensee from using a common carrier as his or her
282agent to make deliveries of alcoholic beverages within the
283state. Deliveries of alcoholic beverages by licensees or common
284carriers used by licensees under this section are exempt from
285the report filing requirements in s. 562.20. All common carriers
286making deliveries under this section shall verify that any
287person receiving alcoholic beverages is at least 21 years of age
288upon the delivery of such alcoholic beverages, as prescribed in
289division rules. Compliance with the prescribed age verification
290measures in s. 561.585(3) gives the common carrier and the
291licensee a complete defense to any civil action thereof, except
292for any administrative action by the division, if, at the time
293the alcoholic beverage was sold, given, delivered, or
294transferred, the person falsely evidenced that he or she was of
295legal age to purchase or consume the alcoholic beverage and the
296appearance of the person was such that an ordinarily prudent
297person would believe him or her to be of legal age to purchase
298or consume the alcoholic beverage and if the licensee or common
299carrier acted in good faith and in reliance upon the
300representation and appearance of the person in the belief that
301he or she was of legal age to purchase or consume the alcoholic
302beverage and carefully checked one of the following forms of
303identification with respect to the person: a valid driver's
304license, an identification card issued under the provisions of
305s. 322.051, or, if the person is physically handicapped, a
306comparable identification card issued by another state which
307indicates the person's age, a passport, or a United States
308Uniformed Services identification card.
309     Section 6.  Subsection (1) of section 599.004, Florida
310Statutes, is amended to read:
311     599.004  Florida Farm Winery Program; registration; logo;
312fees.--
313     (1)  The Florida Farm Winery Program is established within
314the Department of Agriculture and Consumer Services. Under this
315program, a winery may qualify as a tourist attraction only if it
316is registered with and certified by the department as a Florida
317Farm Winery. A winery may not claim to be certified unless it
318has received written approval from the department.
319     (a)  To qualify as a certified Florida Farm Winery, a
320winery shall meet the following standards:
321     1.  Produce or Sell less than 250,000 gallons of wine
322annually of which at least 60 percent must be made from
323agricultural products produced in this state. The Commissioner
324of Agriculture may waive this requirement in times of hardship.
325     2.  Maintain a minimum of 10 acres of owned or managed
326vineyards in Florida.
327     3.  Be open to the public for tours, tastings, and sales at
328least 30 hours each week.
329     4.  Make annual application to the department for
330recognition as a Florida Farm Winery, on forms provided by the
331department.
332     5.  Pay an annual application and registration fee of $100.
333     (b)  To maintain certification and recognition as a Florida
334Farm Winery, a winery must comply with the qualifications
335provided in this section. The Commissioner of Agriculture is
336authorized to officially recognize a certified Florida Farm
337Winery as a state tourist attraction.
338     Section 7.  If any portion of this act is held
339unconstitutional, it is the intent of the Legislature that the
340courts disturb only as much of the regulatory system of this
341state as is necessary to enforce the United States Constitution.
342     Section 8.  Notwithstanding the provisions of s. 561.585,
343Florida Statutes, contracts not otherwise prohibited by the
344Beverage Law shall not be impaired.
345     Section 9.  The Division of Alcoholic Beverages and Tobacco
346of the Department of Business and Professional Regulation and
347the Department of Revenue may adopt rules pursuant to ss.
348120.536(1) and 120.54, Florida Statutes, to implement and
349administer this act.
350     Section 10.  This act shall take effect upon becoming a
351law.


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