Bill Text: FL H0837 | 2011 | Regular Session | Introduced

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Bill Title: Production and Shipment of Wine

Spectrum: Partisan Bill (Republican 2-0)

Status: (Introduced - Dead) 2011-05-07 - Indefinitely postponed and withdrawn from consideration [H0837 Detail]

Download: Florida-2011-H0837-Introduced.html

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HB 837

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 at
9	least 21 years of age; requiring proof of age of a
10	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 ss. 561.24,
16	561.54, 561.545, and 564.045, F.S.; conforming provisions
17	to changes made by the act; amending s. 599.004, F.S.;
18	revising requirements for qualifying as a certified
19	Florida Farm Winery; providing for severability; providing
20	an effective date.
21
22	Be It Enacted by the Legislature of the State of Florida:
23
24	Section 1.  Section 561.222, Florida Statutes, is created
25	to read:
26	561.222  Winery shipper's license.-
27	(1)  LEGISLATIVE INTENT.-The Legislature finds that the
28	importation, distribution, and sale of alcoholic beverages
29	require strict regulation in order to promote temperance by
30	discouraging consumption by underage persons and abusive
31	consumption by adults, to ensure orderly markets having
32	transparent and accountable sales, and to facilitate the
33	collection of excise and sales taxes critical to the fiscal
34	health of the state. The Legislature finds that these purposes
35	are best achieved through the state's comprehensive system of
36	licensing and regulation, including the three-tier system of
37	alcohol distribution which has been the law of this state since
38	the repeal of Prohibition. The Legislature finds that the
39	limitations contained in this section for the uniform regulation
40	of direct shipping by small, in-state and out-of-state farm
41	wineries are the least discriminatory means of protecting the
42	public and state revenues. The Legislature continues to maintain
43	its interest in having the state exercise its police power,
44	ensure enforcement of the beverage laws, and thereby regulate
45	the transportation, importation, distribution, and sale of
46	alcoholic beverages to the maximum extent allowed by the state
47	and federal constitutions. The Legislature reaffirms its policy
48	prohibiting manufacturers from causing the direct shipment of
49	beer and spirits to individuals in this state and its intent to
50	uphold and preserve against constitutional challenge all of the
51	laws of this state relating to alcoholic beverages.
52	(2)  LICENSE REQUIREMENTS.-
53	(a)  A winery may directly ship wine to a resident of this
54	state only under a winery shipper's license. A manufacturer of
55	wine within this state or any other state which produces or
56	sells less than 250,000 gallons of wine per year may ship wines
57	manufactured by such winery to a resident of this state who is
58	at least 21 years of age for that person's personal use, and not
59	for resale, upon obtaining a winery shipper's license from the
60	division. The manufacturer may obtain a winery shipper's license
61	by:
62	1.  Holding a current wine producer basic permit issued in
63	accordance with the Federal Alcohol Administration Act.
64	2.  Holding a current wine manufacturer's license from the
65	state in which it manufactures wine.
66	3.  Holding a current license as a primary American source
67	of supply in accordance with s. 564.045 and registering with the
68	division all brands shipped.
69	4.  Meeting the qualifications for licensure under s.
70	561.15.
71	5.  Filing an application with the division in accordance
72	with s. 561.17. The information required by the division in the
73	application must be the same as the information required by the
74	division for licensure as a wine manufacturer. The applicant
75	must also include with the application:
76	a.  A copy of its current basic permit as a wine producer
77	issued in accordance with the Federal Alcohol Administration
78	Act.
79	b.  A copy of its current state license to manufacture
80	wine.
81	c.  A copy of the appointment of a registered agent in this
82	state for the acceptance of service of process. Winery shippers
83	must maintain an appointed registered agent and must notify the
84	division of a change in appointment.
85	d.  A copy of the applicant's sales tax registration number
86	issued by the Department of Revenue. An applicant must register
87	and maintain a current sales tax registration with the
88	department as a collector and remitter of state sales tax.
89	e.  An affirmation that the applicant consents to the
90	jurisdiction of the courts of this state and its agencies for
91	the enforcement of this section and any related laws or rules,
92	including actions by third parties for violations of this
93	section.
94	6.  Filing with the division a surety bond in the sum of
95	$5,000 as surety for the payment of all taxes. If the division
96	determines that the volume of business done by the manufacturer
97	is such that a bond of less than $5,000 is adequate, the
98	division may accept a bond in a lesser sum, but not less than
99	$1,000. The surety bond currently on file with the division for
100	a winery pursuant to s. 561.37 is deemed to comply with this
101	requirement.
102	7.  Paying a license fee of $250 to the division. Winery
103	shippers must maintain a current license as provided in this
104	section which must be renewed annually by August 1 by paying a
105	fee of $250 to the division.
106	(b)  The division may issue a license under this section
107	only if the applicant or licensee:
108	1.  Has not violated the conditions of licensure or the
109	requirements or limitations of this section;
110	2.  Produces or sells less than 250,000 gallons of wine
111	annually;
112	3.  Does not have a subsidiary winery and is not otherwise
113	affiliated with another winery, unless such subsidiary winery or
114	affiliated winery produces or sells less than 250,000 gallons of
115	wine annually; and
116	4.  Has not appointed a distributor in this state, unless
117	the applicant provides to the division a copy of the applicant's
118	contract with the applicant's appointed distributor containing
119	terms to the contrary or a copy of a written notice sent to the
120	distributor of the applicant's intent to obtain a winery
121	shipper's license at least 1 year before applying for such
122	license under this section.
123	(3)  SHIPPING REQUIREMENTS.-
124	(a)  Before shipping wine directly to a resident of this
125	state, a licensed winery shipper must:
126	1.  Verify the purchaser's age at the point of purchase
127	before completing any transaction and refuse sales of wine to
128	anyone younger than 21 years of age.
129	2.  Conspicuously label the outside of each box of wine
130	shipped with the following information:
131	a.  The package contains alcohol.
132	b.  The recipient must be at least 21 years of age.
133	c.  The signature of the recipient is required.
134	3.  Refuse to ship or cause to be shipped more than 12
135	cases containing no more than nine liters each of its wine per
136	calendar year to any one household address and any household
137	member's work address in this state. Consumers may not purchase,
138	and winery shippers may not sell, ship, or cause to be shipped
139	to a single household, more than 12 cases of no more than nine
140	liters of wine per calendar year. A licensed winery shipper must
141	make all of its deliveries under this section in vehicles owned
142	or leased by such company or by common carrier. If such
143	deliveries are made by common carrier, the licensed winery
144	shipper shall require a common carrier contracting with the
145	shipper for the delivery of the shipper's wine to obtain, before
146	delivery, the signature of the addressee or other recipient who
147	is at least 21 years of age after a valid driver's license,
148	identification card issued by this state or another state,
149	passport, or United States armed services identification card
150	verifying the recipient's age is presented.
151	(b)  A licensed winery shipper must obtain from a common
152	carrier contracting for the delivery of the shipper's wine the
153	common carrier's written policy declaring that the common
154	carrier, before delivering any wine, will adhere to the
155	requirements of paragraph (a).
156	(c)  A licensed winery shipper must offer to its
157	distributor for purchase and sale per calendar year the same
158	brands and quantities of wine shipped per calendar year under
159	this section, unless its contract with its appointed distributor
160	contains terms to the contrary.
161	(4)  TAXES.-A licensed winery shipper shall pay monthly to
162	the Department of Revenue all sales taxes pursuant to s. 212.15
163	and to the division all state excise taxes due for sales to
164	persons in this state for the preceding month. Notwithstanding
165	s. 212.0596, the amount of such taxes shall be calculated as if
166	the sales took place at the location at which the delivery
167	occurred in this state. The proceeds of the discretionary sales
168	surtax imposed under s. 212.055 shall be deposited into the
169	Discretionary Sales Surtax Clearing Trust Fund described in s.
170	212.054(4)(c) and distributed as provided therein.
171	(5)  MONTHLY REPORT.-
172	(a)  A licensed winery shipper shall report to the
173	division, by the 10th day of each month, on forms prescribed by
174	the division:
175	1.  Whether any wine was shipped to residents of this state
176	during the preceding month.
177	2.  The quantity and brands of wine shipped to residents of
178	this state during the preceding month.
179	3.  The total price of wine shipped to residents of this
180	state during the preceding month.
181	4.  The amount of excise tax paid to the division for the
182	shipments of wine to residents of this state during the
183	preceding month.
184	5.  Any other information that the division determines
185	necessary to enforce this section.
186	(b)  The report required by this subsection is not required
187	from a winery shipper licensee who files a monthly report
188	pursuant to s. 561.55. The division may prescribe the format for
189	submitting this information for the purpose of eliminating
190	duplicate filings.
191	(6)  RECORDS.-All licensed winery shippers shall maintain
192	the following records, electronically or otherwise, available
193	for inspection by the Department of Revenue or the division upon
194	request for a period of 3 years after the date of delivery, and
195	shall allow the Department of Revenue or the division to perform
196	an audit of the records, not to exceed the frequency of audits
197	of licensees under the Beverage Law generally, but at least once
198	per year. Upon such request, the licensee shall submit any
199	related documents to that agency within 30 days.
200	(a)  The license issued under this section.
201	(b)  A record of all wines ordered, sold, and shipped to
202	residents of this state, including the name, address, and date
203	of birth of the purchaser; the name and address of the person to
204	whom the wine is shipped; and the date of shipment, quantity,
205	and brands of wine shipped.
206	(c)  All contracts with common carriers for the delivery of
207	the shipper's wine in this state and the carrier's written wine-
208	delivery policy.
209	(7)  COMMON CARRIERS.-Each common carrier making deliveries
210	of wine under this section shall:
211	(a)  Register with the division and acknowledge the
212	requirements contained in this section for the direct shipment
213	of wine and the carrier's intent to deliver wines in accordance
214	with this section.
215	(b)  Maintain a written wine-delivery policy stating that
216	the common carrier shall, before delivering any wine, obtain the
217	signature of the recipient after a valid driver's license, an
218	identification card issued by this state or another state, a
219	passport, or a United States armed services identification card
220	is presented verifying that the recipient is 21 years of age or
221	older.
222	(c)  Refuse delivery if the recipient appears to be younger
223	than 21 years of age; fails or refuses to present a valid
224	driver's license, an identification card issued by this state or
225	another state, a passport, or a United States armed services
226	identification card verifying age; or fails or refuses to sign
227	the signature form.
228	(d)  Obtain the recipient's name; maintain such records and
229	the shipping order, including the name and address of the person
230	to whom the wine is shipped, for 3 years; and make the records
231	available for inspection upon request by the division.
232	(8)  PENALTIES.-In addition to any other penalty provided
233	in the Beverage Law, the division may suspend or revoke a winery
234	shipper license or impose fines on the winery shipper licensee
235	for any violation of this section under its authority in s.
236	561.29, as well as any other cause authorized in that section.
237	(a)  A winery shipper licensee that ships, or causes to be
238	shipped, wine to any person in this state who is younger than 21
239	years of age commits a misdemeanor of the second degree,
240	punishable as provided in s. 775.082 or s. 775.083.
241	(b)  Any common carrier, permit carrier, or other
242	commercial conveyance that delivers wine directly to any person
243	in this state who is younger than 21 years of age commits a
244	misdemeanor of the second degree, punishable as provided in s.
245	775.082 or s. 775.083.
246	(c)  A person who obtains wine from a winery shipper
247	licensee in violation of this section commits a misdemeanor of
248	the second degree, punishable as provided in s. 775.082 or s.
249	775.083.
250	(d)  A person who provides a winery shipper with a false
251	date of birth commits a misdemeanor of the second degree,
252	punishable as provided in s. 775.082 or s. 775.083.
253	(9)  RULEMAKING.-The Department of Revenue and the division
254	may adopt rules to administer and enforce the applicable
255	provisions of this section.
256	Section 2.  Subsection (5) of section 561.24, Florida
257	Statutes, is amended to read:
258	561.24  Licensing manufacturers as distributors or
259	registered exporters prohibited; procedure for issuance and
260	renewal of distributors' licenses and exporters' registrations.-
261	(5)  Notwithstanding any of the provisions of the foregoing
262	subsections, any corporation that which holds a license as a
263	distributor on June 3, 1947, is shall be entitled to a renewal
264	thereof, provided such corporation complies with all of the
265	provisions of the Beverage Law of Florida, as amended, and of
266	this section and establishes by satisfactory evidence to the
267	division that, during the 6-month period next preceding its
268	application for such renewal, of the total volume of its sales
269	of spirituous liquors, in either dollars or quantity, not more
270	than 40 percent of such spirituous liquors sold by it, in either
271	dollars or quantity, were manufactured, rectified, or distilled
272	by any corporation with which the applicant is affiliated,
273	directly or indirectly, including any corporation that which
274	owns or controls in any way any stock in the applicant
275	corporation or any corporation that which is a subsidiary or
276	affiliate of the corporation so owning stock in the applicant
277	corporation. Any manufacturer of wine holding a license as a
278	distributor on July 1, 2011, is the effective date of this act
279	shall be entitled to a renewal of such license notwithstanding
280	the provisions of subsections (1)-(5). This section does not
281	apply to any winery qualifying as a certified Florida Farm
282	Winery under s. 599.004.
283	Section 3.  Section 561.54, Florida Statutes, is amended to
284	read:
285	561.54  Certain deliveries of beverages prohibited.-
286	(1)  It is unlawful for Common or permit carriers;,
287	operators of privately owned cars, trucks, buses, or other
288	conveyances; or out-of-state manufacturers or suppliers may not
289	to make delivery from outside without the state of any alcoholic
290	beverage to any person, association of persons, or corporation
291	within the state, except to qualified manufacturers,
292	distributors, and exporters of such beverages so delivered and
293	to qualified bonded warehouses in this state.
294	(2)  Any licensee aggrieved by a violation of this section
295	may bring an action in any court of competent jurisdiction to
296	recover for the state all moneys obtained by common carriers or
297	permit carriers; obtained by operators of privately owned cars,
298	trucks, buses, or other conveyances; or obtained by out-of-state
299	manufacturers or suppliers as a result of the delivery of
300	alcoholic beverages in violation of this section, and may obtain
301	a declaratory judgment that an act or practice violates this
302	section and enjoin any person from violating this section. In
303	addition to such relief, the court may order the confiscation
304	and destruction of any alcoholic beverages delivered in
305	violation of this section. In assessing damages, the court shall
306	enter judgment against a defendant for three times the amount of
307	the delivery charges proved or the fair market value of
308	merchandise unlawfully brought into the state. Payment or
309	satisfaction of a any judgment under this section, other than
310	for costs and attorney's fees, shall be made in its entirety to
311	the state. In a any successful action under this section, the
312	court shall award the plaintiff costs and reasonable attorney's
313	fees.
314	(3)  This section does not apply to the direct shipment of
315	wine by a licensed winery shipper to a person 21 years of age or
316	older for household consumption.
317	Section 4.  Section 561.545, Florida Statutes, is amended
318	to read:
319	561.545  Certain shipments of beverages prohibited;
320	penalties; exceptions.-The Legislature finds that the direct
321	shipment of alcoholic beverages by persons in the business of
322	selling alcoholic beverages to residents of this state in
323	violation of the Beverage Law poses a serious threat to the
324	public health, safety, and welfare; to state revenue
325	collections; and to the economy of the state. The Legislature
326	further finds that the penalties for illegal direct shipment of
327	alcoholic beverages to residents of this state should be made
328	adequate to ensure compliance with the Beverage Law and that the
329	measures provided for in this section are fully consistent with
330	the powers conferred upon the state by the Twenty-first
331	Amendment to the United States Constitution.
332	(1)  A Any person in the business of selling alcoholic
333	beverages who knowingly and intentionally ships, or causes to be
334	shipped, any alcoholic beverage from an out-of-state location
335	directly to any person in this state who does not hold a valid
336	manufacturer's or wholesaler's license or exporter's
337	registration issued by the division of Alcoholic Beverages and
338	Tobacco or who is not a state-bonded warehouse is in violation
339	of this section.
340	(2)  A Any common carrier or permit carrier or any operator
341	of a privately owned car, truck, bus, or other conveyance who
342	knowingly and intentionally transports any alcoholic beverage
343	from an out-of-state location directly to any person in this
344	state who does not hold a valid manufacturer's or wholesaler's
345	license or exporter's registration or who is not a state-bonded
346	warehouse is in violation of this section.
347	(3)  A Any person found by the division to be in violation
348	of subsection (1) shall be issued a notice, sent by certified
349	mail, to show cause why a cease and desist order should not be
350	issued. Any person who violates subsection (1) within 2 years
351	after receiving a cease and desist order or within 2 years after
352	a prior conviction for violating subsection (1) commits a felony
353	of the third degree, punishable as provided in s. 775.082, s.
354	775.083, or s. 775.084.
355	(4)  A Any common carrier or permit carrier, or any
356	operator of a privately owned car, truck, bus, or other
357	conveyance, found by the division to be in violation of
358	subsection (2) as a result of a second or subsequent delivery
359	from the same source and location, within a 2-year period after
360	the first delivery shall be issued a notice, sent by certified
361	mail, to show cause why a cease and desist order should not be
362	issued. A Any person who violates subsection (2) within 2 years
363	after receiving the cease and desist order or within 2 years
364	after a prior conviction for violating subsection (2) commits a
365	felony of the third degree, punishable as provided in s.
366	775.082, s. 775.083, or s. 775.084.
367	(5)  This section does not apply to the direct shipment of
368	wine by a licensed winery shipper to a person 21 years of age or
369	older for household consumption, to the direct shipment of
370	sacramental alcoholic beverages to bona fide religious
371	organizations as authorized by the division, or to possession of
372	alcoholic beverages in accordance with s. 562.15(2).
373	Section 5.  Subsection (2) of section 564.045, Florida
374	Statutes, is amended to read:
375	564.045  Licensure as primary American source of supply.-
376	(2)  TAX CONTROL LICENSURE REQUIRED.-For purposes of tax
377	revenue control, a no person, firm, corporation, or other entity
378	that which is the primary American source of supply as defined
379	herein may not sell, offer for sale, accept orders for the sale
380	of, ship, or cause to be shipped into this state any vinous
381	beverages to any distributor, or importer, or person for
382	household consumption, as provided in s. 561.222, within this
383	the state without having first obtained licensure as a primary
384	American source of supply on forms provided by, and in such
385	manner as prescribed by, the division. Except for applicants for
386	a winery shipper's license, applicants for licensure as a
387	primary American source of supply are shall be exempt from the
388	requirements and qualification standards set forth in ss. 561.15
389	and 561.17.
390	Section 6.  Paragraph (a) of subsection (1) of section
391	599.004, Florida Statutes, is amended to read:
392	599.004  Florida Farm Winery Program; registration; logo;
393	fees.-
394	(1)  The Florida Farm Winery Program is established within
395	the Department of Agriculture and Consumer Services. Under this
396	program, a winery may qualify as a tourist attraction only if it
397	is registered with and certified by the department as a Florida
398	Farm Winery. A winery may not claim to be certified unless it
399	has received written approval from the department.
400	(a)  To qualify as a certified Florida Farm Winery, a
401	winery must shall meet the following standards:
402	1.  Produce or sell less than 250,000 gallons of wine
403	annually of which 60 percent of the wine produced is made from
404	state agricultural products. The Commissioner of Agriculture may
405	waive this requirement in times of hardship.
406	2.  Maintain a minimum of 10 acres of owned or managed land
407	vineyards in Florida which produces commodities used in the
408	production of wine.
409	3.  Be open to the public for tours, tastings, and sales at
410	least 30 hours each week.
411	4.  Make annual application to the department for
412	recognition as a Florida Farm Winery, on forms provided by the
413	department.
414	5.  Pay an annual application and registration fee of $100.
415	Section 7.  If any provision of this act or its application
416	to any person or circumstance is held invalid, the invalidity
417	does not affect other provisions or applications of the act
418	which can be given effect without the invalid provision or
419	application, and to this end the provisions of this act are
420	severable.
421	Section 8.  This act shall take effect July 1, 2011.

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