Bill Text: FL S0854 | 2011 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Production and Shipment of Wine

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2011-05-07 - Indefinitely postponed and withdrawn from consideration [S0854 Detail]

Download: Florida-2011-S0854-Introduced.html

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       Florida Senate - 2011                                     SB 854
       
       
       
       By Senator Negron
       
       
       
       
       28-00389B-11                                           2011854__
    1                        A bill to be entitled                      
    2         An act relating to the production and shipment of
    3         wine; creating s. 561.222, F.S.; authorizing the
    4         direct shipment of wine into and within this state for
    5         personal consumption only; providing legislative
    6         intent; requiring licensure of winery shippers by the
    7         Division of Alcoholic Beverages and Tobacco; providing
    8         license requirements; requiring recipients of a direct
    9         shipment of wine to be at least 21 years of age;
   10         requiring proof of age of a recipient; providing for
   11         the payment of taxes, a monthly report, and
   12         recordkeeping by winery shippers; providing
   13         requirements for common carriers that make deliveries
   14         of wine; providing administrative and criminal
   15         penalties for violations of the act; authorizing the
   16         division and the Department of Revenue to adopt rules;
   17         amending ss. 561.24, 561.54, 561.545, and 564.045,
   18         F.S.; conforming provisions to changes made by the
   19         act; amending s. 599.004, F.S.; revising requirements
   20         for qualifying as a certified Florida Farm Winery;
   21         providing for severability; providing an effective
   22         date.
   23  
   24  Be It Enacted by the Legislature of the State of Florida:
   25  
   26         Section 1. Section 561.222, Florida Statutes, is created to
   27  read:
   28         561.222 Winery shipper’s license.—
   29         (1) LEGISLATIVE INTENT.—The Legislature finds that the
   30  importation, distribution, and sale of alcoholic beverages
   31  require strict regulation in order to promote temperance by
   32  discouraging consumption by underage persons and abusive
   33  consumption by adults, to ensure orderly markets having
   34  transparent and accountable sales, and to facilitate the
   35  collection of excise and sales taxes critical to the fiscal
   36  health of the state. The Legislature finds that these purposes
   37  are best achieved through the state’s comprehensive system of
   38  licensing and regulation, including the three-tier system of
   39  alcohol distribution which has been the law of this state since
   40  the repeal of Prohibition. The Legislature finds that the
   41  limitations contained in this section for the uniform regulation
   42  of direct shipping by small, in-state and out-of-state farm
   43  wineries are the least discriminatory means of protecting the
   44  public and state revenues. The Legislature continues to maintain
   45  its interest in having the state exercise its police power,
   46  ensure enforcement of the beverage laws, and thereby regulate
   47  the transportation, importation, distribution, and sale of
   48  alcoholic beverages to the maximum extent allowed by the state
   49  and federal constitutions. The Legislature reaffirms its policy
   50  prohibiting manufacturers from causing the direct shipment of
   51  beer and spirits to individuals in this state and its intent to
   52  uphold and preserve against constitutional challenge all of the
   53  laws of this state relating to alcoholic beverages.
   54         (2) LICENSE REQUIREMENTS.—
   55         (a) A winery may directly ship wine to a resident of this
   56  state only under a winery shipper’s license. A manufacturer of
   57  wine within this state or any other state which produces or
   58  sells less than 250,000 gallons of wine per year may ship wines
   59  manufactured by such winery to a resident of this state who is
   60  at least 21 years of age for that person’s personal use, and not
   61  for resale, upon obtaining a winery shipper’s license from the
   62  division. The manufacturer may obtain a winery shipper’s license
   63  by:
   64         1. Holding a current wine producer basic permit issued in
   65  accordance with the Federal Alcohol Administration Act.
   66         2. Holding a current wine manufacturer’s license from the
   67  state in which it manufactures wine.
   68         3. Holding a current license as a primary American source
   69  of supply in accordance with s. 564.045 and registering with the
   70  division all brands shipped.
   71         4. Meeting the qualifications for licensure under s.
   72  561.15.
   73         5. Filing an application with the division in accordance
   74  with s. 561.17. The information required by the division in the
   75  application must be the same as the information required by the
   76  division for licensure as a wine manufacturer. The applicant
   77  must also include with the application:
   78         a. A copy of its current basic permit as a wine producer
   79  issued in accordance with the Federal Alcohol Administration
   80  Act.
   81         b. A copy of its current state license to manufacture wine.
   82         c. A copy of the appointment of a registered agent in this
   83  state for the acceptance of service of process. Winery shippers
   84  must maintain an appointed registered agent and must notify the
   85  division of a change in appointment.
   86         d. A copy of the applicant’s sales tax registration number
   87  issued by the Department of Revenue. An applicant must register
   88  and maintain a current sales tax registration with the
   89  department as a collector and remitter of state sales tax.
   90         e. An affirmation that the applicant consents to the
   91  jurisdiction of the courts of this state and its agencies for
   92  the enforcement of this section and any related laws or rules,
   93  including actions by third parties for violations of this
   94  section.
   95         6. Filing with the division a surety bond in the sum of
   96  $5,000 as surety for the payment of all taxes. If the division
   97  determines that the volume of business done by the manufacturer
   98  is such that a bond of less than $5,000 is adequate, the
   99  division may accept a bond in a lesser sum, but not less than
  100  $1,000. The surety bond currently on file with the division for
  101  a winery pursuant to s. 561.37 is deemed to comply with this
  102  requirement.
  103         7. Paying a license fee of $250 to the division. Winery
  104  shippers must maintain a current license as provided in this
  105  section which must be renewed annually by August 1 by paying a
  106  fee of $250 to the division.
  107         (b) The division may issue a license under this section
  108  only if the applicant or licensee:
  109         1. Has not violated the conditions of licensure or the
  110  requirements or limitations of this section;
  111         2. Produces or sells less than 250,000 gallons of wine
  112  annually;
  113         3. Does not have a subsidiary winery and is not otherwise
  114  affiliated with another winery, unless such subsidiary winery or
  115  affiliated winery produces or sells less than 250,000 gallons of
  116  wine annually; and
  117         4. Has not appointed a distributor in this state, unless
  118  the applicant provides to the division a copy of the applicant’s
  119  contract with the applicant’s appointed distributor containing
  120  terms to the contrary or a copy of a written notice sent to the
  121  distributor of the applicant’s intent to obtain a winery
  122  shipper’s license at least 1 year before applying for such
  123  license under this section.
  124         (3) SHIPPING REQUIREMENTS.—
  125         (a) Before shipping wine directly to a resident of this
  126  state, a licensed winery shipper must:
  127         1. Verify the purchaser’s age at the point of purchase
  128  before completing any transaction and refuse sales of wine to
  129  anyone younger than 21 years of age.
  130         2. Conspicuously label the outside of each box of wine
  131  shipped with the following information:
  132         a. The package contains alcohol.
  133         b. The recipient must be at least 21 years of age.
  134         c. The signature of the recipient is required.
  135         3. Refuse to ship or cause to be shipped more than 12 cases
  136  containing no more than nine liters each of its wine per
  137  calendar year to any one household address and any household
  138  member’s work address in this state. Consumers may not purchase,
  139  and winery shippers may not sell, ship, or cause to be shipped
  140  to a single household, more than 12 cases of no more than nine
  141  liters of wine per calendar year. A licensed winery shipper must
  142  make all of its deliveries under this section in vehicles owned
  143  or leased by such company or by common carrier. If such
  144  deliveries are made by common carrier, the licensed winery
  145  shipper shall require a common carrier contracting with the
  146  shipper for the delivery of the shipper’s wine to obtain, before
  147  delivery, the signature of the addressee or other recipient who
  148  is at least 21 years of age after a valid driver’s license,
  149  identification card issued by this state or another state,
  150  passport, or United States armed services identification card
  151  verifying the recipient’s age is presented.
  152         (b) A licensed winery shipper must obtain from a common
  153  carrier contracting for the delivery of the shipper’s wine the
  154  common carrier’s written policy declaring that the common
  155  carrier, before delivering any wine, will adhere to the
  156  requirements of paragraph (a).
  157         (c) A licensed winery shipper must offer to its distributor
  158  for purchase and sale per calendar year the same brands and
  159  quantities of wine shipped per calendar year under this section,
  160  unless its contract with its appointed distributor contains
  161  terms to the contrary.
  162         (4) TAXES.—A licensed winery shipper shall pay monthly to
  163  the Department of Revenue all sales taxes pursuant to s. 212.15
  164  and to the division all state excise taxes due for sales to
  165  persons in this state for the preceding month. Notwithstanding
  166  s. 212.0596, the amount of such taxes shall be calculated as if
  167  the sales took place at the location at which the delivery
  168  occurred in this state. The proceeds of the discretionary sales
  169  surtax imposed under s. 212.055 shall be deposited into the
  170  Discretionary Sales Surtax Clearing Trust Fund described in s.
  171  212.054(4)(c) and distributed as provided therein.
  172         (5) MONTHLY REPORT.—
  173         (a) A licensed winery shipper shall report to the division,
  174  by the 10th day of each month, on forms prescribed by the
  175  division:
  176         1. Whether any wine was shipped to residents of this state
  177  during the preceding month.
  178         2. The quantity and brands of wine shipped to residents of
  179  this state during the preceding month.
  180         3. The total price of wine shipped to residents of this
  181  state during the preceding month.
  182         4. The amount of excise tax paid to the division for the
  183  shipments of wine to residents of this state during the
  184  preceding month.
  185         5. Any other information that the division determines
  186  necessary to enforce this section.
  187         (b) The report required by this subsection is not required
  188  from a winery shipper licensee who files a monthly report
  189  pursuant to s. 561.55. The division may prescribe the format for
  190  submitting this information for the purpose of eliminating
  191  duplicate filings.
  192         (6) RECORDS.—All licensed winery shippers shall maintain
  193  the following records, electronically or otherwise, available
  194  for inspection by the Department of Revenue or the division upon
  195  request for a period of 3 years after the date of delivery, and
  196  shall allow the Department of Revenue or the division to perform
  197  an audit of the records, not to exceed the frequency of audits
  198  of licensees under the Beverage Law generally, but at least once
  199  per year. Upon such request, the licensee shall submit any
  200  related documents to that agency within 30 days.
  201         (a) The license issued under this section.
  202         (b) A record of all wines ordered, sold, and shipped to
  203  residents of this state, including the name, address, and date
  204  of birth of the purchaser; the name and address of the person to
  205  whom the wine is shipped; and the date of shipment, quantity,
  206  and brands of wine shipped.
  207         (c) All contracts with common carriers for the delivery of
  208  the shipper’s wine in this state and the carrier’s written wine
  209  delivery policy.
  210         (7) COMMON CARRIERS.—Each common carrier making deliveries
  211  of wine under this section shall:
  212         (a) Register with the division and acknowledge the
  213  requirements contained in this section for the direct shipment
  214  of wine and the carrier’s intent to deliver wines in accordance
  215  with this section.
  216         (b) Maintain a written wine-delivery policy stating that
  217  the common carrier shall, before delivering any wine, obtain the
  218  signature of the recipient after a valid driver’s license, an
  219  identification card issued by this state or another state, a
  220  passport, or a United States armed services identification card
  221  is presented verifying that the recipient is 21 years of age or
  222  older.
  223         (c) Refuse delivery if the recipient appears to be younger
  224  than 21 years of age; fails or refuses to present a valid
  225  driver’s license, an identification card issued by this state or
  226  another state, a passport, or a United States armed services
  227  identification card verifying age; or fails or refuses to sign
  228  the signature form.
  229         (d) Obtain the recipient’s name; maintain such records and
  230  the shipping order, including the name and address of the person
  231  to whom the wine is shipped, for 3 years; and make the records
  232  available for inspection upon request by the division.
  233         (8) PENALTIES.—In addition to any other penalty provided in
  234  the Beverage Law, the division may suspend or revoke a winery
  235  shipper license or impose fines on the winery shipper licensee
  236  for any violation of this section under its authority in s.
  237  561.29, as well as any other cause authorized in that section.
  238         (a) A winery shipper licensee that ships, or causes to be
  239  shipped, wine to any person in this state who is younger than 21
  240  years of age commits a misdemeanor of the second degree,
  241  punishable as provided in s. 775.082 or s. 775.083.
  242         (b) Any common carrier, permit carrier, or other commercial
  243  conveyance that delivers wine directly to any person in this
  244  state who is younger than 21 years of age commits a misdemeanor
  245  of the second degree, punishable as provided in s. 775.082 or s.
  246  775.083.
  247         (c) A person who obtains wine from a winery shipper
  248  licensee in violation of this section commits a misdemeanor of
  249  the second degree, punishable as provided in s. 775.082 or s.
  250  775.083.
  251         (d) A person who provides a winery shipper with a false
  252  date of birth commits a misdemeanor of the second degree,
  253  punishable as provided in s. 775.082 or s. 775.083.
  254         (9) RULEMAKING.—The Department of Revenue and the division
  255  may adopt rules to administer and enforce the applicable
  256  provisions of this section.
  257         Section 2. Subsection (5) of section 561.24, Florida
  258  Statutes, is amended to read:
  259         561.24 Licensing manufacturers as distributors or
  260  registered exporters prohibited; procedure for issuance and
  261  renewal of distributors’ licenses and exporters’ registrations.—
  262         (5) Notwithstanding any of the provisions of the foregoing
  263  subsections, any corporation that which holds a license as a
  264  distributor on June 3, 1947, is shall be entitled to a renewal
  265  thereof, provided such corporation complies with all of the
  266  provisions of the Beverage Law of Florida, as amended, and of
  267  this section and establishes by satisfactory evidence to the
  268  division that, during the 6-month period next preceding its
  269  application for such renewal, of the total volume of its sales
  270  of spirituous liquors, in either dollars or quantity, not more
  271  than 40 percent of such spirituous liquors sold by it, in either
  272  dollars or quantity, were manufactured, rectified, or distilled
  273  by any corporation with which the applicant is affiliated,
  274  directly or indirectly, including any corporation that which
  275  owns or controls in any way any stock in the applicant
  276  corporation or any corporation that which is a subsidiary or
  277  affiliate of the corporation so owning stock in the applicant
  278  corporation. Any manufacturer of wine holding a license as a
  279  distributor on July 1, 2011, is the effective date of this act
  280  shall be entitled to a renewal of such license notwithstanding
  281  the provisions of subsections (1)-(5). This section does not
  282  apply to any winery qualifying as a certified Florida Farm
  283  Winery under s. 599.004.
  284         Section 3. Section 561.54, Florida Statutes, is amended to
  285  read:
  286         561.54 Certain deliveries of beverages prohibited.—
  287         (1) It is unlawful for Common or permit carriers;,
  288  operators of privately owned cars, trucks, buses, or other
  289  conveyances; or out-of-state manufacturers or suppliers may not
  290  to make delivery from outside without the state of any alcoholic
  291  beverage to any person, association of persons, or corporation
  292  within the state, except to qualified manufacturers,
  293  distributors, and exporters of such beverages so delivered and
  294  to qualified bonded warehouses in this state.
  295         (2) Any licensee aggrieved by a violation of this section
  296  may bring an action in any court of competent jurisdiction to
  297  recover for the state all moneys obtained by common carriers or
  298  permit carriers; obtained by operators of privately owned cars,
  299  trucks, buses, or other conveyances; or obtained by out-of-state
  300  manufacturers or suppliers as a result of the delivery of
  301  alcoholic beverages in violation of this section, and may obtain
  302  a declaratory judgment that an act or practice violates this
  303  section and enjoin any person from violating this section. In
  304  addition to such relief, the court may order the confiscation
  305  and destruction of any alcoholic beverages delivered in
  306  violation of this section. In assessing damages, the court shall
  307  enter judgment against a defendant for three times the amount of
  308  the delivery charges proved or the fair market value of
  309  merchandise unlawfully brought into the state. Payment or
  310  satisfaction of a any judgment under this section, other than
  311  for costs and attorney’s fees, shall be made in its entirety to
  312  the state. In a any successful action under this section, the
  313  court shall award the plaintiff costs and reasonable attorney’s
  314  fees.
  315         (3) This section does not apply to the direct shipment of
  316  wine by a licensed winery shipper to a person 21 years of age or
  317  older for household consumption.
  318         Section 4. Section 561.545, Florida Statutes, is amended to
  319  read:
  320         561.545 Certain shipments of beverages prohibited;
  321  penalties; exceptions.—The Legislature finds that the direct
  322  shipment of alcoholic beverages by persons in the business of
  323  selling alcoholic beverages to residents of this state in
  324  violation of the Beverage Law poses a serious threat to the
  325  public health, safety, and welfare; to state revenue
  326  collections; and to the economy of the state. The Legislature
  327  further finds that the penalties for illegal direct shipment of
  328  alcoholic beverages to residents of this state should be made
  329  adequate to ensure compliance with the Beverage Law and that the
  330  measures provided for in this section are fully consistent with
  331  the powers conferred upon the state by the Twenty-first
  332  Amendment to the United States Constitution.
  333         (1) A Any person in the business of selling alcoholic
  334  beverages who knowingly and intentionally ships, or causes to be
  335  shipped, any alcoholic beverage from an out-of-state location
  336  directly to any person in this state who does not hold a valid
  337  manufacturer’s or wholesaler’s license or exporter’s
  338  registration issued by the division of Alcoholic Beverages and
  339  Tobacco or who is not a state-bonded warehouse is in violation
  340  of this section.
  341         (2) A Any common carrier or permit carrier or any operator
  342  of a privately owned car, truck, bus, or other conveyance who
  343  knowingly and intentionally transports any alcoholic beverage
  344  from an out-of-state location directly to any person in this
  345  state who does not hold a valid manufacturer’s or wholesaler’s
  346  license or exporter’s registration or who is not a state-bonded
  347  warehouse is in violation of this section.
  348         (3) A Any person found by the division to be in violation
  349  of subsection (1) shall be issued a notice, sent by certified
  350  mail, to show cause why a cease and desist order should not be
  351  issued. Any person who violates subsection (1) within 2 years
  352  after receiving a cease and desist order or within 2 years after
  353  a prior conviction for violating subsection (1) commits a felony
  354  of the third degree, punishable as provided in s. 775.082, s.
  355  775.083, or s. 775.084.
  356         (4) A Any common carrier or permit carrier, or any operator
  357  of a privately owned car, truck, bus, or other conveyance, found
  358  by the division to be in violation of subsection (2) as a result
  359  of a second or subsequent delivery from the same source and
  360  location, within a 2-year period after the first delivery shall
  361  be issued a notice, sent by certified mail, to show cause why a
  362  cease and desist order should not be issued. A Any person who
  363  violates subsection (2) within 2 years after receiving the cease
  364  and desist order or within 2 years after a prior conviction for
  365  violating subsection (2) commits a felony of the third degree,
  366  punishable as provided in s. 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 winery
  401  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.