Bill Text: DE HB78 | 2011-2012 | 146th General Assembly | Draft

Delaware House Bill 78 (Prior Session Legislation)

Draft

Bill Title: An Act To Amend Title 4 Of The Delaware Code Relating To Alcoholic Beverage Control Licenses And Taxes, And Direct Purchasing And Shipment Of Wine.

Spectrum: Slight Partisan Bill (Republican 15-5)

Status: (Introduced - Dead) 2011-06-15 - Amendment HA 2 - Introduced and Placed With Bill [HB78 Detail]

Download: Delaware-2011-HB78-Draft.html

SPONSOR:	Rep. Hudson & Sen. Sorenson & Sen. Sokola ;
	Reps. Lavelle, Hocker, Briggs King, Manolakos, Miro, Outten, Peterman, Ramone, Wilson, Longhurst; Sens. Bonini, Booth, Bushweller, Ennis, Henry, Simpson

HOUSE OF REPRESENTATIVES

146th GENERAL ASSEMBLY

HOUSE BILL NO. 78

AN ACT TO AMEND TITLE 4 OF THE DELAWARE CODE RELATING TO ALCOHOLIC BEVERAGE CONTROL LICENSES AND TAXES, AND DIRECT PURCHASING AND SHIPMENT OF WINE.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Section 1.Amend Title 4 of the Delaware Code by deleting �526 in its entirety and replacing said section with the following:

"�526. Direct purchasing and shipment of wine.

(a) Notwithstanding any law, rule or regulation to the contrary, any person currently licensed in this or any other state as a wine producer who obtains a Wine Direct Shipper License, as provide below, may ship up to twelve (12) 9-liter cases of wine annually to a resident of Delaware who is at least 21 years of age for such resident's personal use and not for resale.A resident of this State may receive no more than twelve (12) 9-liter cases by direct shipment in a calendar year and a Wine Direct Shipper shall require the person ordering the wine to affirm that they have not ordered in excess of that limit for the calendar year.

(b) Before sending any shipment to a resident of Delaware the Wine Direct Shipper Licensee must first:

(1) File an application with the Commissioner,

(2) pay a $100.00 application fee,

(3) provide to the Commissioner a true copy of its current license as a wine producer issued in this or any other state, and

(4) obtain from the Commissioner a Wine Direct Shipper License.

(1) not ship wine to any person who is under the age of 21; in any prosecution for an offense under this subsection, it may be an affirmative defense if the Commissioner finds that the licensee has made reasonable efforts to ascertain the age of the purchaser;

(2) not ship more than twelve (12) 9-liter cases of wine annually to any person for their personal use and not for resale.

(3) deliver wine for shipment into Delaware only to a shipper who has a "Carrier Permit" issued by the Commissioner as provided in �701A of this Title.

(4) ensure that all containers of wine shipped directly to a resident in this state are conspicuously labeled with the words "CONTAINS ALCOHOL: SIGNATURE OF PERSON AGE 21 OR OLDER REQUIRED FOR DELIVERY."

(5) if located outside of this state, report to the Commissioner and the Division of Alcohol and Tobacco Enforcement ("DATE") quarterly the total amount of wine shipped into the state the preceding calendar quarter.

(6) if located outside of this state, quarterly pay to the Delaware Department of Revenue all excise taxes due on sales to residents of Delaware in the preceding calendar quarter, the amount of such taxes to be calculated as if the sale were in Delaware at the location where delivery is made.

(7) if located within this state, provide the Delaware Department of Revenue, DATE and the Commissioner any additional information deemed necessary beyond that already required for retail sales from the farm winery to ensure compliance with this section.

(8) permit DATE and/or the Delaware Department of Revenue to perform an audit of the Wine Direct Shipper Licensees records upon request.

(9) be deemed to have consented to the jurisdiction of the Commissioner or any other state agency and the Delaware courts concerning enforcement of this section and any related laws, rules or regulations.

(d) The Wine Direct Shipper Licensee shall pay $100 biennially for its license with the Commissioner and provide the Commissioner a true copy of its current wine producer license issued in this or any other state.

(e) The Commissioner and the Delaware Department of Revenue may promulgate rules and regulations to effectuate the purposes of this law.

(f) The DATE enforcement may enforce the requirements of this section by administrative proceedings before the Commissioner who shall have the authority to fine, suspend and/or revoke a Wine Direct Shipper License.

(g) Shipments of wine direct to consumers in Delaware from persons who do not possess a current Wine Direct Shipper License from the Commissioner are prohibited.Any person who knowingly makes, participates in, transports, imports or receives such a shipment is guilty of a Class B misdemeanor and for a second offense a Class A misdemeanor. Without limitation on any punishment or remedy, criminal or civil, any person who knowingly makes, participates in, transports, imports or receives such a shipment commits an unfair trade practice.".

Section 2.A new section shall be added to Chapter 7 of Title 4 of the Delaware Code as follows:

"� 701A.Carrier Permit

(a) Any person who desires to transport wine from a Wine Direct Shipper to a Delaware resident shall apply to the Commissioner for a "Carrier Permit" and pay an application fee of $100.

(b) The Commissioner shall grant a Carrier Permit to a common carrier operating under a certificate issued by the Interstate Commerce Commission or such other applicant the Commissioner finds consistent with the purposes of this section unless the applicant or persons associated with the applicant has had its Carrier Permit suspended or revoked by the Commissioner, in which case the Commissioner may, in the Commissioner's discretion, refuse to grant a new Carrier Permit.

1. shall biennially renew its license with the Commissioner by paying a $100.00 renewal fee and providing the Commissioner with such information as reasonably required by the Commissioner;

2. shall not pick up wine for delivery to a Delaware resident from any person that is not then licensed as a Wine Direct Shipper;

3. shall quarterly report the names and addresses of the Wine Direct Shippers for whom it made deliveries, the dates the wine were picked up, and the name and address that they were delivered to the Commissioner, DATE and the Division of Revenue;

4. shall deliver the wine to the address as instructed by the Wine Direct Shipper but shall not deliver the wine unless, in the presence of a delivery person, a person 21 years of age or older signs for the shipment.A delivery person who fails to obtain the signature of a person 21 years of age or older prior to delivery of wine shall, in addition to the payment of costs, be fined not less than $250 nor more than $500 and, on failure to pay such fine and costs, shall be imprisoned for 30 days.In any prosecution for an offense under this subsection, it shall be an affirmative defense that the individual who signed for the delivery but had not reached the age of 21, presented to the accused identification, with a photograph of such individual affixed thereon, which identification sets forth information which would lead a reasonable person to believe such individual was 21 years of age or older;

5. agrees to submit to the jurisdiction of the Commissioner and to the Courts of the State of Delaware;

6. who is found to have violated any provision of this section, after a hearing before the Commissioner, shall be responsible for a fine and/or a suspension of its permit, or a revocation of its permit for repeated and continuous violations.Any fine imposed shall not exceed ten percent of the average gross monthly fees from utilizing its Carrier Permit in Delaware or $250, whichever is greater.".

SYNOPSIS

This bill would permit wine producers holding a valid license in this State or another state to obtain a license and ship wine directly to Delaware consumers so long as it is done through a common carrier with a "Carrier Permit".The bill requires the payment of taxes and obtaining the signature of a person 21 years of age or older before delivery of the wine.