Bill Text: MI SB1088 | 2015-2016 | 98th Legislature | Introduced
Bill Title: Liquor; distribution; retail sale or delivery of beer or wine by a third party; modify. Amends sec. 203 of 1998 PA 58 (MCL 436.1203).
Spectrum: Bipartisan Bill
Status: (Passed) 2016-12-30 - Assigned Pa 0520'16 [SB1088 Detail]
Download: Michigan-2015-SB1088-Introduced.html
SENATE BILL No. 1088
September 20, 2016, Introduced by Senator MACGREGOR and referred to the Committee on Regulatory Reform.
A bill to amend 1998 PA 58, entitled
"Michigan liquor control code of 1998,"
by amending section 203 (MCL 436.1203), as amended by 2014 PA 50.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 203. (1) Except as provided in this section and section
301, a person shall not sell, deliver, or import alcoholic liquor,
including alcoholic liquor for personal use, in this state unless
the sale, delivery, or importation is made by the commission, the
commission's authorized agent or distributor, an authorized
distribution agent approved by order of the commission, a person
licensed by the commission, or by prior written order of the
commission.
(2) Notwithstanding R 436.1011(7)(b) and R 436.1527 of the
Michigan
administrative code Administrative
Code and except as
provided
in subsection (11), subsections
(3) and (12), a retailer
shall not deliver alcoholic liquor to a consumer in this state at
the home or business of the consumer or at any location away from
the licensed premises of the retailer. The purpose of this
subsection
is to exercise the state of Michigan's this state's
authority under section 2 of amendment XXI of the constitution of
the United States, to maintain the inherent police powers to
regulate the transportation and delivery of alcoholic liquor, and
to promote a transparent system for the transportation and delivery
of alcoholic liquor. The regulation described in this subsection is
considered necessary for both of the following reasons:
(a) To promote the public health, safety, and welfare.
(b) To maintain strong, stable, and effective regulation by
having beer and wine sold by retailers to consumers in this state
by passing through the 3-tier distribution system established under
this act.
(3) For purposes of subsection (1), a retailer that holds a
specially designated merchant license located in this state may use
a common carrier to sell and deliver wine to a consumer in this
state by means of any mail order, internet, telephone, computer,
device, or other electronic means. A retailer that uses a common
carrier to sell and deliver wine to a consumer under this
subsection shall comply with all of the following:
(a) Pay any applicable taxes to the commission and pay any
applicable taxes to the department of treasury as directed by the
department of treasury. On the request of the department of
treasury, a retailer shall furnish an affidavit to verify payment.
(b) Comply with all prohibitions of the laws of this state,
including, but not limited to, sales to minors.
(c) Verify the age of the individual placing the order by
obtaining from him or her an affirmation that he or she is at least
21 years of age. The person receiving and accepting the order on
behalf of the retailer shall record the name, address, date of
birth, and telephone number of the individual placing the order on
the order form or other verifiable record of a type and generated
in a manner approved by the commission and provide a duplicate to
the commission.
(d) On request of the commission, make available to the
commission any document used to verify the age of the individual
ordering or receiving the wine from the retailer.
(e) Stamp, print, or label on the outside of the shipping
container that the package "Contains Alcohol. Must be delivered to
a person 21 years of age or older". The recipient at the time of
the delivery shall provide identification verifying his or her age
and sign for the delivery.
(f) Place a label on the top panel of the shipping container
containing the name and address of the individual placing the order
and the name of the designated recipient if different from the name
of the individual placing the order.
(4) (3)
For purposes of subsection (1), a
direct shipper may
sell,
deliver, or import wine , to
consumers in this state by means
of any mail order, internet, telephone, computer, device, or other
electronic means, or sell directly to a consumer on the winery
premises. A direct shipper that sells, delivers, or imports wine to
a consumer under this subsection shall comply with all of the
following:
(a) Hold a direct shipper license.
(b) Pay any applicable taxes to the commission and pay any
applicable taxes to the department of treasury as directed by the
department
of treasury. Upon On the request of the department of
treasury, a direct shipper shall furnish an affidavit to verify
payment.
(c) Comply with all prohibitions of the laws of this state,
including, but not limited to, sales to minors.
(d) Verify the age of the individual placing the order by
obtaining from him or her a copy of a photo identification issued
by this state, another state, or the federal government or by
utilizing
using an identification verification service. The person
receiving and accepting the order on behalf of the direct shipper
shall record the name, address, date of birth, and telephone number
of the individual placing the order on the order form or other
verifiable record of a type and generated in a manner approved by
the commission and provide a duplicate to the commission.
(e)
Upon On request of the commission, make available to the
commission any document used to verify the age of the individual
ordering or receiving the wine from the direct shipper.
(f) Stamp, print, or label on the outside of the shipping
container that the package "Contains Alcohol. Must be delivered to
a person 21 years of age or older." The recipient at the time of
the delivery shall provide photo identification verifying his or
her
age along with a signature.and
sign for the delivery.
(g) Place a label on the top panel of the shipping container
containing the direct shipper license number, the order number, the
name and address of the individual placing the order, and the name
of the designated recipient if different from the name of the
individual placing the order.
(h) Direct ship not more than 1,500 9-liter cases, or 13,500
liters in total, of wine in a calendar year to consumers in this
state. If a direct shipper, whether located in this state or
outside this state, owns, in whole or in part, or commonly manages
1 or more direct shippers, it shall not in combination ship to
consumers in this state more than 13,500 liters of wine in the
aggregate.
(i) Pay wine taxes quarterly and report to the commission
quarterly the total amount of wine, by type, brand, and price,
shipped to consumers in this state during the preceding calendar
quarter, and the order numbers.
(j) Authorize and allow the commission and the department of
treasury to conduct an audit of the direct shipper's records.
(k) Consent and submit to the jurisdiction of the commission,
the department of treasury, and the courts of this state concerning
enforcement of this section and any related laws, rules, and
regulations.
(5) (4)
Notwithstanding subsection (3), in the case of For a
sale or delivery of alcoholic liquor occurring by any means
described in subsection (3), a person taking the order on behalf of
the retailer shall comply with subsection (3)(b) to (f). For a
sale, delivery, or importation of alcoholic liquor occurring by any
means
described in subsection (3), (4),
a person taking the order
on
behalf of the direct shipper shall comply with subsection (3)(c)
through
(4)(c) to (g).
(6) (5)
A person that delivers the wine for
a direct shipper
under this section shall verify that the individual accepting
delivery is 21 years of age or older and is the individual who
placed the order or the designated recipient, is an individual 21
years of age or older currently occupying or present at the
address, or is an individual otherwise authorized through a rule
promulgated under this act by the commission to receive alcoholic
liquor under this section. If the delivery person, after a diligent
inquiry, determines that the purchaser or designated recipient is
not 21 years of age or older, the delivery person shall return the
wine to the direct shipper. A delivery person who returns wine to
the direct shipper because the purchaser or designated recipient is
not 21 years of age or older is not liable for any damages suffered
by the purchaser or direct shipper.
(7) (6)
All spirits for sale, use, storage,
or distribution in
this
state , shall
originally be purchased by and imported into the
state by the commission, or by prior written authority of the
commission.
(8) (7)
This section does not apply to
alcoholic liquor
brought into this state for personal or household use in an amount
permitted by federal law by an individual 21 years of age or older
at the time of reentry into this state from without the territorial
limits of the United States if the individual has been outside the
territorial limits of the United States for more than 48 hours and
has not brought alcoholic liquor into the United States during the
preceding 30 days.
(9) (8)
An individual 21 years of age or
older may do either
of the following in relation to alcoholic liquor that contains less
than 21% alcohol by volume:
(a) Personally transport from another state, once in a 24-hour
period, not more than 312 ounces of alcoholic liquor for that
individual's personal use, notwithstanding subsection (1).
(b) Ship or import from another state alcoholic liquor for
that individual's personal use if that personal importation is done
in compliance with subsection (1).
(10) (9)
A direct shipper shall not sell,
deliver, or import
wine to a consumer unless it applies for and is granted a direct
shipper license from the commission. This subsection does not
prohibit wine tasting or the selling at retail by a wine maker of
wines he or she produced and bottled or wine manufactured for that
wine maker by another wine maker, if done in compliance with this
act. Only the following persons qualify for the issuance of a
direct shipper license:
(a) A wine maker.
(b) A wine producer and bottler located inside this country
but outside of this state holding both a federal basic permit
issued
by the alcohol and tobacco tax and trade bureau Alcohol and
Tobacco Tax and Trade Bureau of the United States Department of
Treasury and a license to manufacture wine in its state of
domicile.
(11) (10)
An applicant for a direct shipper
license shall
submit an application to the commission in a written or electronic
format provided by the commission and accompanied by an application
and
initial license fee of $100.00. The application shall must be
accompanied by a copy or other evidence of the existing federal
basic permit or license, or both, held by the applicant. The direct
shipper may renew its license annually by submission of a license
renewal fee of $100.00 and a completed renewal application. The
commission shall use the fees collected under this section to
conduct investigations and audits of direct shippers. The failure
to renew, or the revocation or suspension of, the applicant's
existing Michigan license, federal basic permit, or license to
manufacture wine in its state of domicile is grounds for revocation
or denial of the direct shipper license. If a direct shipper is
found guilty of violating this act or a rule promulgated by the
commission, the commission shall notify both the alcoholic liquor
control agency in the direct shipper's state of domicile and the
alcohol
and tobacco tax and trade bureau Alcohol
and Tobacco Tax
and
Trade Bureau of the United States department
of treasury
Department of Treasury of the violation.
(12) (11)
Except as otherwise provided under
subsection (12),
(13) or (14), a retailer that holds a specially designated merchant
license, in
this state; an out-of-state retailer that holds its
state's
substantial equivalent license; or a
brewpub, a micro
brewer, or an out-of-state entity that is the substantial
equivalent of a brewpub or micro brewer may deliver beer and wine
to the home or other designated location of a consumer in this
state if all of the following conditions are met:
(a) The beer or wine, or both, is delivered by the retailer's,
brewpub's, or micro brewer's employee and not by an agent or by a
third party delivery service.
(b) The retailer, brewpub, or micro brewer or its employee who
delivers the beer or wine, or both, verifies that the individual
accepting delivery is at least 21 years of age.
(c) If the retailer, brewpub, or micro brewer or its employee
intends to provide service to consumers, the retailer, brewpub, or
micro brewer or its employee providing the service has received
alcohol server training through a server training program approved
by the commission.
(13) (12)
A retailer that holds a specially
designated
merchant
license in this state or an out-of-state retailer that
holds
its state's substantial equivalent license may utilize use a
third party that provides delivery service to municipalities in
this state that are surrounded by water and inaccessible by motor
vehicle to deliver beer and wine to the home or other designated
location of that consumer if the delivery service is approved by
the commission and agrees to verify that the individual accepting
delivery of the beer and wine is at least 21 years of age.
(14) A retailer that holds a specially designated merchant
license may use a third party delivery service by means of the
internet or a mobile application to facilitate the sale of or to
deliver, or both, beer or wine to the home or designated location
of a consumer if all of the following conditions are met:
(a) The third party delivery service verifies that the
individual accepting delivery of the beer or wine is at least 21
years of age.
(b) A manufacturer, warehouser, wholesaler, outstate seller of
beer, or outstate seller of wine does not have a direct or indirect
interest in the third party delivery service.
(c) A manufacturer, warehouser, wholesaler, outstate seller of
beer, or outstate seller of wine does not aid or assist a third
party delivery service by gift, loan of money, property, or any
description, or other valuable thing as defined in section 609, and
a third party delivery service does not accept the same.
(d) The retailer or consumer pays the fees associated with
deliveries provided for under this subsection.
(e) The third party delivery service offers services for all
brands.
(f) The third party delivery service makes its services
reasonably available to any retailer in the third party delivery
service's area.
(15) A third party delivery service shall not deliver beer or
wine to a consumer as provided in subsection (14) unless it applies
for and is granted a third party delivery service license by the
commission. The commission may charge a reasonable application fee,
initial license fee, and annual license renewal fee.
(16) (13)
For purposes of subsection (1), a
qualified micro
brewer or an out-of-state entity that is the substantial equivalent
of a qualified micro brewer may sell and deliver beer to a retailer
in this state if all of the following conditions are met:
(a) The retailer is not located in a sales territory for which
the qualified micro brewer has granted exclusive sales rights to a
wholesaler
pursuant to under sections 401 and 403 for the sale of
any brand or brands of beer produced by that micro brewer.
(b) The beer is sold and delivered by an employee of the
qualified micro brewer, not an agent, and is transported and
delivered
utilizing using a vehicle owned by the qualified micro
brewer, not by a third party delivery service.
(c) The qualified micro brewer is in compliance with
applicable state and federal law and applicable regulatory
provisions of this act and rules adopted by the commission under
this act including, but not limited to, those requirements related
to each of the following:
(i) Employees that sell and deliver beer to retailers.
(ii) Vehicles used to deliver beer to retailers.
(iii) Price schedules and temporary price reductions.
(17) A common carrier that carries or transports alcoholic
liquor into this state to a person in this state shall submit
quarterly reports to the commission. A report required under this
subsection must include all of the following about each delivery to
a consumer in this state during the preceding calendar quarter:
(a) The name and business address of the person that ships
alcoholic liquor.
(b) The name and address of the recipient of alcoholic liquor.
(c) The quantity of alcoholic liquor delivered to a consignee.
(d) The date of the delivery.
(18) A common carrier described in subsection (17) shall
maintain the books, records, and documents supporting a report
submitted under subsection (17) for 3 years unless the commission
notifies the common carrier in writing that the books, records, and
supporting documents may be destroyed. Within 30 days after the
commission's request, the common carrier shall make the books,
records, and documents available for inspection during normal
business hours. Within 30 days after a local law enforcement
agency's or local governmental unit's request, the common carrier
shall also make the books, records, and documents available for
inspection to a local law enforcement agency or local governmental
unit where the carrier resides or does business.
(19) A report submitted under subsection (17) is subject to
disclosure under the freedom of information act, 1976 PA 442, MCL
15.231 to 15.246.
(20) (14)
As used in this section:
(a) "Common carrier" means a person that transports
individuals or property for a fee.
(b) (a)
"Computer" means any
connected, directly interoperable
or interactive device, equipment, or facility that uses a computer
program or other instructions to perform specific operations
including logical, arithmetic, or memory functions with or on
computer data or a computer program and that can store, retrieve,
alter, or communicate the results of the operations to a person,
computer program, computer, computer system, or computer network.
(c) (b)
"Computer network" means
the interconnection of
hardwire or wireless communication lines with a computer through
remote terminals, or a complex consisting of 2 or more
interconnected computers.
(d) (c)
"Computer program" means
a series of internal or
external instructions communicated in a form acceptable to a
computer that directs the functioning of a computer, computer
system, or computer network in a manner designed to provide or
produce products or results from the computer, computer system, or
computer network.
(e) (d)
"Computer system" means a
set of related, connected or
unconnected, computer equipment, devices, software, or hardware.
(f) (e)
"Consumer" means an
individual who purchases beer or
wine for personal consumption and not for resale.
(g) (f)
"Device" includes, but is
not limited to, an
electronic, magnetic, electrochemical, biochemical, hydraulic,
optical, or organic object that performs input, output, or storage
functions by the manipulation of electronic, magnetic, or other
impulses.
(h) (g)
"Diligent inquiry" means
a diligent good faith effort
to determine the age of an individual, that includes at least an
examination of an official Michigan operator's or chauffeur's
license, an official Michigan personal identification card, or any
other bona fide picture identification that establishes the
identity and age of the individual.
(i) (h)
"Direct shipper" means a
person who sells, delivers,
or imports wine, to consumers in this state, that he or she
produces and bottles or wine that is manufactured by a wine maker
for another wine maker and that is transacted or caused to be
transacted through the use of any mail order, internet, telephone,
computer, device, or other electronic means, or sells directly to
consumers on the winery premises.
(j) (i)
"Identification verification
service" means any an
internet-based service approved by the commission specializing in
age and identity verification.
(k) "Mobile application" means a specialized software program
downloaded onto a wireless communication device.
(l) (j)
"Qualified micro brewer"
means a micro brewer that
produces in total less than 1,000 barrels of beer per year. In
determining the 1,000-barrel threshold, all brands and labels of a
micro brewer, whether brewed in this state or outside this state,
shall
must be combined.
(m) "Third party delivery service" means a person licensed by
the commission that facilitates the sale of or delivers, or both,
beer or wine to a consumer as provided in subsection (14). A third
party delivery service does not include a common carrier or a third
party that provides delivery service described in subsection (13).