December 07, 2019
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Senate Bill 2112

Senate Bill sb2112e1

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    SB 2112                                        First Engrossed



  1                      A bill to be entitled

  2         An act relating to nonsettling-manufacturer

  3         cigarettes; creating s. 210.0205, F.S.;

  4         providing definitions; imposing a fee on

  5         certain cigarettes; providing payment

  6         requirements; requiring reporting of the number

  7         and denominations of stamps affixed to

  8         individual packages of certain cigarettes by

  9         manufacturer and brand family; authorizing

10         rulemaking regarding such reports; requiring

11         registration with the Division of Alcoholic

12         Beverages and Tobacco of the Department of

13         Business and Professional Regulation of

14         nonsettling manufacturers of cigarettes;

15         requiring development, maintenance, and

16         publication by the division of a list of

17         nonsettling manufacturers of cigarettes which

18         have certified their compliance with this act;

19         treating cigarettes of certain manufacturers

20         that have not paid the fee imposed by this act

21         or that have not complied with reporting

22         requirements as cigarettes for which the tax

23         imposed by s. 210.02, F.S., has not been paid;

24         prohibiting the stamping of certain cigarettes

25         for which the fee imposed by this act has not

26         been paid in full or the nonsettling

27         manufacturer of which has not complied with

28         reporting requirements; amending s. 210.01,

29         F.S.; revising and providing definitions;

30         amending s. 210.05, F.S.; providing stamp

31         requirements for cigarettes in transport;


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    SB 2112                                        First Engrossed



 1         providing stamp exceptions for certain

 2         cigarettes; requiring transporters of certain

 3         cigarettes to submit certain reports; amending

 4         s. 210.06, F.S.; revising requirements for and

 5         limitations on the affixation of stamps;

 6         providing requirements with respect to receipt,

 7         possession, storage, and transport of unstamped

 8         cigarette packages; creating s. 210.085, F.S.;

 9         requiring manufacturers, importers,

10         distributing agents, dealers, and retail

11         dealers to hold a current, valid permit to

12         sell, distribute, or receive cigarettes;

13         amending s. 210.09, F.S.; providing notice and

14         filing guidelines for certain person shipping

15         unstamped cigarette packages; authorizing

16         certain law enforcement officials to inspect

17         certain shipping vehicles; amending s. 210.12,

18         F.S.; authorizing the state to claim certain

19         property and materials from certain dealers and

20         retailers who attempt to defraud the state;

21         authorizing the destruction of certain

22         cigarettes; amending s. 210.15, F.S.; providing

23         criteria for permit application; prohibiting

24         issuance, maintenance, or renewal of certain

25         permits for certain applicants; providing

26         guidelines for permit application denial;

27         amending s. 210.18, F.S.; expanding the group

28         of violators subject to criminal liability;

29         prohibiting the sale or possession for sale of

30         counterfeit cigarettes; providing penalties;

31         creating s. 210.181, F.S.; providing civil


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    SB 2112                                        First Engrossed



 1         penalties for failure to comply with certain

 2         duties or pay certain taxes; reenacting ss.

 3         772.102(1)(a) and 895.02(1)(a), F.S., relating

 4         to crimes constituting a "criminal activity"

 5         and definitions as used in the Florida RICO

 6         Act, to incorporate the amendment to s. 210.18,

 7         F.S., in references thereto; providing an

 8         appropriation and authorizing positions;

 9         providing an appropriation to the Department of

10         Health; providing purposes; providing an

11         effective date.

12  

13         WHEREAS, it is the intent of the Legislature to prevent

14  nonsettling manufacturers from undermining the state's policy

15  of reducing underage smoking by offering their cigarettes for

16  sale substantially below the price of cigarettes of other

17  manufacturers; to protect the tobacco settlement agreement and

18  funding, which is reduced as a result of the growth of

19  nonsettling-manufacturer cigarette sales, for programs funded

20  in whole or in part by payments to the state under the tobacco

21  settlement agreement and to recoup for the state

22  settlement-payment revenue lost to the state as a result of

23  nonsettling-manufacturer cigarette sales; to fund enforcement

24  and administration of nonsettling-manufacturer legislation and

25  the fee imposed in this act, including reasonable

26  administrative costs incurred by wholesale dealers complying

27  with any additional reporting requirements necessitated by

28  this act; and to fund such other purposes as the Legislature

29  determines, NOW, THEREFORE,

30  

31  Be It Enacted by the Legislature of the State of Florida:


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    SB 2112                                        First Engrossed



 1         Section 1.  Section 210.0205, Florida Statutes, is

 2  created to read:

 3         210.0205  Nonsettling-manufacturer fee.--

 4         (1)  As used in this section, the term:

 5         (a)  "Brand family" means all styles of cigarettes sold

 6  under the same trademark and differentiated from one another

 7  by means of additional modifiers or descriptors, including,

 8  but not limited to, "menthol," "lights," "kings," and "100s."

 9  The term includes any brand name, alone or in conjunction with

10  any other word; trademark; logo; symbol; motto; selling

11  message; recognizable pattern of colors; or other indicia of

12  product identification identical or similar to, or

13  identifiable with, a previously known brand of cigarettes.

14         (b)  "Consumer Price Index" means the Consumer Price

15  Index for All Urban Consumers as published by the Bureau of

16  Labor Statistics of the United States Department of Labor.

17         (c)  "Manufacturer" means a person or entity who

18  manufactures, fabricates, or assembles cigarettes. The term

19  includes an entity that is the first importer into the United

20  States of cigarettes manufactured abroad.

21         (d)  "Nonsettling manufacturer" means any tobacco

22  product manufacturer that has not entered into the tobacco

23  settlement agreement defined in s. 215.56005(1)(f), or the

24  Attorney's General Settlement Agreement dated March 15,1996 in

25  the State of Florida, et al. v. American Tobacco Company, et

26  al., Fifteenth Judicial Circuit, Case No. 95-1466.

27         (e)  "Nonsettling-manufacturer cigarettes" means

28  cigarettes manufactured by a nonsettling manufacturer, except

29  when payments on such cigarettes are due to be made by a

30  settling manufacturer pursuant to a tobacco settlement

31  agreement described in paragraph (d).


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    SB 2112                                        First Engrossed



 1         (2)  A fee, in addition to all other taxes or fees of

 2  every kind imposed by law, is imposed upon the sale, receipt,

 3  purchase, possession, consumption, handling, distribution, and

 4  use in this state of nonsettling-manufactuer cigarettes to the

 5  package of which an agent affixes a stamp or stamp insignia as

 6  required by law or which are sold or purchased in the state

 7  but are not required to bear a stamp or stamp insignia of this

 8  state.  The fee is in the amount of 10 mills per cigarette in

 9  Fiscal Year 2004-2005, and 20 mills per cigarette in Fiscal

10  Year 2005-2006 and every year thereafter, to be adjusted

11  upward annually by the division each January 1 by the greater

12  of 3 percent or the Consumer Price Index, applied each year

13  for the previous year, beginning with Fiscal Year 2005-2006.

14         (3)  The division shall collect the fee once each month

15  from each nonsettling manufacturer based on information

16  received pursuant to subsection (6). The division shall mail

17  to each nonsettling manufacturer not later than the 15th day

18  of each month a notice of the fee due from that manufacturer

19  for sales of its cigarettes made in the preceding month. Each

20  such nonsettling manufacturer shall ensure that the division

21  has received payment of the fee in full no later than the last

22  day of the month in which the notice was mailed. Except as

23  otherwise provided in this section, the fee shall be imposed,

24  collected, paid, administered, and enforced in the same manner

25  as the tax on cigarettes imposed by s. 210.02.

26         (4)  A nonsettling manufacturer selling cigarettes in

27  this state on the effective date of this act shall provide to

28  the division the information described in subsections (7) and

29  (8) and pay the fee imposed by subsection (2) within 30 days

30  after the effective date of this act. If a nonsettling

31  manufacturer is not selling cigarettes in this state on the


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    SB 2112                                        First Engrossed



 1  effective date of this act, before commencing sales of

 2  cigarettes in this state, the nonsettling manufacturer shall

 3  prepay the fee imposed by subsection (2). The prepayment

 4  amount shall be a sum determined by multiplying by 10 mills in

 5  Fiscal Year 2004-2005 and by 20 mills in Fiscal Year 2005-2006

 6  the number of cigarettes the division reasonably projects that

 7  the nonsettling manufacturer will sell in this state in the

 8  first calendar month or $50,000, whichever is more. The

 9  division may require a nonsettling manufacturer to provide any

10  information reasonably necessary to determine the amount of

11  the prepayment fee and, in the case of prepayment, shall

12  establish procedures for providing reimbursement to

13  nonsettling manufacturers if actual sales are less than sales

14  projected by the division and for additional payment by

15  nonsettling manufacturers if actual sales are greater than

16  sales projected by the division. As used in this subsection,

17  the term "cigarettes" refers only to nonsettling-manufacturer

18  cigarettes.

19         (5)  The purposes of the fee are to:

20         (a)  Prevent nonsettling manufacturers from undermining

21  the state's policy of reducing underage smoking by offering

22  cigarettes for sale substantially below the price of

23  cigarettes of other manufacturers.

24         (b)1.  Protect the tobacco settlement agreement, as

25  defined in s. 215.56005(1)(f), and funding, which is reduced

26  as a result of the growth of nonsettling-manufacturer

27  cigarette sales, for programs funded in whole or in part by

28  payments to the state under the tobacco settlement agreement;

29  and

30  

31  


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    SB 2112                                        First Engrossed



 1         2.  Recoup for the state settlement-payment revenue

 2  lost to the state as a result of nonsettling-manufacturer

 3  cigarette sales.

 4         (c)  Fund enforcement and administration of

 5  nonsettling-manufacturer legislation and the fee imposed by

 6  this section, including reasonable administrative costs

 7  incurred by wholesale dealers complying with any additional

 8  reporting requirements necessitated by this section.

 9         (d)  Fund such other purposes as the Legislature

10  determines; however, $16 million of the proceeds received

11  under this act shall be provided annually through quarterly

12  disbursements to the Department of Health, for the purposes of

13  implementing a statewide anti-smoking marketing, educational

14  and advertising campaign to reduce youth tobacco use. The

15  Department of Health shall conduct surveillance and

16  evaluations to measure program performance and improve

17  implementation strategies. The Department of Health may

18  contract for any of the activities specified in this section.

19         (6)  Monthly reports shall be made to the division

20  pursuant to s. 210.09(2) by each agent and wholesaler. Such

21  reports shall state the number and denominations of stamps or

22  stamp insignia affixed to individual packages of

23  nonsettling-manufacturer cigarettes and the number of

24  individual packages of nonsettling-manufacturer cigarettes

25  otherwise sold or purchased in this state or otherwise handled

26  or distributed in this state for sale in another state,

27  commonwealth, or territory of the United States, by

28  manufacturer and brand family, sold for each place of business

29  in the month preceding the month in which the report is made.

30  The division may adopt rules requiring any agent, wholesaler,

31  wholesale dealer, or nonsettling manufacturer to provide in


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    SB 2112                                        First Engrossed



 1  the monthly report any information necessary or appropriate to

 2  determing the fee due under subsection (2) or to enforcing

 3  this act.

 4         (7)  Before commencing sales of cigarettes in this

 5  state or, if selling cigarettes in this state on the effective

 6  date of this act, within 30 days after the effective date of

 7  this act, a nonsettling manufacturer shall provide to the

 8  division, on a form prescribed by the division:

 9         (a)  The complete name, address, and telephone number

10  of the nonsettling manufacturer.

11         (b)  The date the nonsettling manufacturer began or

12  intends to begin selling cigarettes in this state.

13         (c)  The names of the brand families of the cigarettes

14  the nonsettling manufacturer is selling or will sell in this

15  state.

16         (d)  A statement of the nonsettling manufacturer's

17  intention to comply with the obligations imposed by this

18  section.

19         (e)  The name, address, telephone number, and signature

20  of an officer of the nonsettling manufacturer attesting to all

21  of the information described in this subsection.

22         (8)  Each nonsettling manufacturer subject to the fee

23  imposed by subsection (2) shall certify to the division on the

24  first day of each month that the manufacturer is in compliance

25  with this section and has paid in full the fee imposed by

26  subsection (2). The division shall develop, maintain, and

27  publish on its Internet website a directory listing all

28  nonsettling manufacturers that have provided current,

29  accurate, and complete certifications. The division shall

30  provide a copy of the list to any person upon request.

31  


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    SB 2112                                        First Engrossed



 1         (9)  Cigarettes of a nonsettling manufacturer that has

 2  not paid a fee imposed by subsection (2), or that has not

 3  complied with the reporting requirements of subsections (4),

 4  (6), (7), and (8), shall be treated as cigarettes for which

 5  the tax imposed by s. 210.02 has not been paid. A person shall

 6  not affix to any package of nonsetttling-manufacturer

 7  cigarettes the stamp required under s. 210.06, or otherwise

 8  purchase or sell such cigarettes, after such person receives

 9  notice from the division that the nonsettling manufacturer of

10  such cigarettes has not paid in full the fee imposed by

11  subsection (2) or if the nonsettling manufacturer is not

12  listed on the division's directory described in subsection

13  (8).

14         Section 2.  Subsections (6) and (7) of section 210.01,

15  Florida Statutes, are amended, and subsections (19) through

16  (23) are added to that section, to read:

17         210.01  Definitions.--When used in this part the

18  following words shall have the meaning herein indicated:

19         (6)  "Wholesale dealer" means any person located inside

20  or outside this state who sells cigarettes to retail dealers

21  or other persons for purposes of resale only, or any person

22  who operates more than one cigarette vending machine located

23  in more than one place of business. Such term shall not

24  include any cigarette manufacturer, export warehouse

25  proprietor, or importer with a valid permit under 26 U.S.C. s.

26  5712 if such person sells or distributes cigarettes in this

27  state only to dealers who are agents and who hold valid and

28  current permits under s. 210.15 or to any cigarette

29  manufacturer, export warehouse proprietor, or importer who

30  holds a valid and current permit under 26 U.S.C. s. 5712.

31  


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    SB 2112                                        First Engrossed



 1         (7)  "Retail dealer" means any person located inside or

 2  outside this state other than a wholesale dealer engaged in

 3  the business of selling cigarettes, including persons licensed

 4  pursuant to s. 569.003.

 5         (19)  "Stamp" or "stamps" means the indicia required to

 6  be placed on cigarette packages that evidences payment of the

 7  tax on cigarettes under s. 210.02.

 8         (20)  "Importer" means any person with a valid permit

 9  under 26 U.S.C. s. 5712 who imports into the United States,

10  directly or indirectly, a finished cigarette for sale or

11  distribution.

12         (21)  "Manufacturer" means any person with a valid

13  permit under 26 U.S.C. s. 5712 who manufactures, fabricates,

14  assembles, processes, or labels a finished cigarette.

15         (22)  "Counterfeit cigarettes" means cigarettes that

16  have false manufacturing labels, tobacco product packs with

17  counterfeit tax stamps, or any combination thereof.

18         (23)  "Brand family" means all styles of cigarettes

19  sold under the same trademark and differentiated from one

20  another by means of additional modifiers or descriptors,

21  including, but not limited to, "menthol," "lights," "kings,"

22  and "100s," and includes any brand name used alone or in

23  conjunction with any other word, trademark, logo, symbol,

24  motto, selling message, recognizable pattern of colors, or any

25  other indicia of product identification identical or similar

26  to, or identifiable with, a previously known brand of

27  cigarettes.

28         Section 3.  Subsection (6) is added to section 210.05,

29  Florida Statutes, to read:

30         210.05  Preparation and sale of stamps; discount.--

31  


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    SB 2112                                        First Engrossed



 1         (6)(a)  A person may not transport or cause to be

 2  transported from this state cigarettes for sale in another

 3  state without first affixing to the cigarettes the stamp

 4  required by the state in which the cigarettes are to be sold

 5  or paying any other excise tax on the cigarettes imposed by

 6  the state in which the cigarettes are to be sold.

 7         (b)  A person may not affix to cigarettes the stamp

 8  required by another state or pay any other excise tax on the

 9  cigarettes imposed by another state if the other state

10  prohibits stamps from being affixed to the cigarettes,

11  prohibits the payment of any other excise tax on the

12  cigarettes, or prohibits the sale of the cigarettes.

13         (c)  The requirements of paragraphs (a) and (b) do not

14  apply to cigarettes with respect to which the manufacturer or

15  importer either is a participating manufacturer (as defined in

16  section II(jj) of the master settlement agreement) or is in

17  full compliance with the qualifying statute (as defined in

18  section IX(d)(2)(E) of the master settlement agreement) of the

19  state in which the cigarettes are to be sold. An exemption

20  pursuant to this paragraph may only be asserted with respect

21  to cigarettes that, in the case of a participating

22  manufacturer, are deemed to be its cigarettes for purposes of

23  calculating its payments under the master settlement agreement

24  for the relevant year in the volumes and shares determined

25  pursuant to the master settlement agreement, and, in the case

26  of all other manufacturers and importers, are deemed to be its

27  cigarettes for purposes of the applicable qualifying statute.

28  For purposes of this subsection the term "master settlement

29  agreement" means the settlement agreement (and related

30  documents) entered into in 1998 by 46 states and leading

31  United States tobacco manufacturers. A person asserting an


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    SB 2112                                        First Engrossed



 1  exemption pursuant to this paragraph shall submit the reports

 2  required by paragraph (d) and shall certify as provided in

 3  that paragraph.

 4         (d)  On or before the 10th day of each month, a person

 5  who transports or causes to be transported from this state

 6  cigarettes for sale in another state shall submit to the

 7  division a report identifying the quantity and brand family of

 8  each brand of the cigarettes transported or caused to be

 9  transported in the preceding calendar month and the name and

10  address of each recipient of the cigarettes. Such person shall

11  also certify under oath and subject to the penalties of

12  perjury that:

13         1.  The stamps required by paragraph (a) have been

14  affixed in accordance with that paragraph or that such stamps

15  were not affixed pursuant to paragraph (b); or

16         2.  Such person satisfies the requirements of paragraph

17  (c).

18         (e)  For purposes of this section, the term "person"

19  means an individual, partnership, committee, association,

20  corporation, or any other organization or group of persons.

21  Person does not include any common or contract carrier, or

22  public warehouse that is not owned, in whole or in part,

23  directly or indirectly, by the person transporting the

24  cigarettes or causing the transport to be made.

25         (f)  This subsection shall not be deemed to authorize

26  the possession or transportation of cigarettes by any person

27  not so authorized by another provision of this part.

28         Section 4.  Subsection (1) of section 210.06, Florida

29  Statutes, is amended, and subsection (5) is added to that

30  section, to read:

31         210.06  Affixation of stamps; presumption.--


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    SB 2112                                        First Engrossed



 1         (1)  Every dealer within or without the state shall

 2  affix or cause to be affixed to such package or container of

 3  such cigarettes such, stamps as are required under this

 4  section within 10 days after receipt of such products. Dealers

 5  outside this state shall affix such stamps before the shipment

 6  of cigarettes into this state, evidencing the payment of the

 7  tax imposed by virtue of this part before such cigarettes are

 8  offered for sale or use or consumed or before they are

 9  otherwise disposed of in the state.

10         (a)  A tax stamp shall be applied to all cigarette

11  packages intended for sale or distribution to consumers

12  subject to the tax imposed under s. 210.02, except as

13  otherwise provided in this act.

14         (b)  No stamp shall be applied to any cigarette package

15  exempt from tax under 26 U.S.C. s. 5704 that is distributed by

16  a manufacturer pursuant to federal regulations.

17         (c)  Dealers may apply stamps only to cigarette

18  packages received directly from a manufacturer or importer of

19  cigarettes who possesses a valid and current permit under 26

20  U.S.C. s. 5712.

21         (5)  Except as provided in s. 210.09(1), no person,

22  other than a dealer that receives unstamped cigarette packages

23  directly from a cigarette manufacturer or importer in

24  accordance with this section and s. 210.085, shall hold or

25  possess an unstamped cigarette package. Dealers shall be

26  permitted to set aside, without application of stamps, only

27  such part of the dealer's stock that is identified for sale or

28  distribution outside this state. If a dealer maintains stocks

29  of unstamped cigarette packages, such unstamped packages shall

30  be stored separately from stamped product packages. No

31  unstamped cigarette packages shall be transferred by a dealer


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    SB 2112                                        First Engrossed



 1  to another facility of the dealer within this state or to

 2  another person within this state.

 3         Section 5.  Section 210.085, Florida Statutes, is

 4  created to read:

 5         210.085  Transactions only with permitted

 6  manufacturers, importers, distributing agents, dealers, and

 7  retail dealers.--A manufacturer, importer, or distributing

 8  agent may sell or distribute cigarettes to a person located or

 9  doing business within this state only if such person is a

10  dealer with a valid, current permit under s. 210.15. A dealer

11  may sell or distribute cigarettes to a person located or doing

12  business within this state only if such person is a dealer or

13  retail dealer with a valid, current permit under s. 569.003. A

14  dealer may obtain cigarettes only from a manufacturer or

15  importer who possesses a valid, current permit under 26 U.S.C.

16  s. 5712 or from a distributing agent or dealer with a valid,

17  current permit under s. 210.15. A retail dealer may obtain

18  cigarettes only from a manufacturer, importer, or dealer with

19  a valid, current permit under s. 210.15.

20         Section 6.  Subsection (1) of section 210.09, Florida

21  Statutes, is amended to read:

22         210.09  Records to be kept; reports to be made;

23  examination.--

24         (1)(a)  Every person who shall possess or transport any

25  unstamped cigarettes upon the public highways, roads, or

26  streets of the state, shall be required to have in his or her

27  actual possession invoices or delivery tickets for such

28  cigarettes. The absence of such invoices or delivery tickets

29  shall be prima facie evidence that such person is a dealer in

30  cigarettes in this state and subject to the provisions of this

31  part.


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    SB 2112                                        First Engrossed



 1         (b)  Any person who ships unstamped cigarette packages

 2  into this state other than to a manufacturer, importer, or

 3  dealer holding a valid, current permit pursuant to s. 210.15

 4  shall first file with the division a notice of such shipment.

 5  This paragraph shall not apply to any common or contract

 6  carrier that is transporting cigarettes through this state to

 7  another location outside this state under a proper bill of

 8  lading or freight bill that states the quantity, source, and

 9  destination of such cigarettes.

10         (c)  In any case in which the division or its duly

11  authorized agent, or any law enforcement officer of this

12  state, has knowledge or reasonable grounds to believe that any

13  vehicle is transporting cigarettes in violation of this part,

14  the division, such agent, or such law enforcement officer is

15  authorized to stop such vehicle and inspect the vehicle for

16  contraband cigarettes.

17         Section 7.  Subsection (1) of section 210.12, Florida

18  Statutes, is amended, subsections (2) through (6) of that

19  section are renumbered as subsections (4) through (8),

20  respectively, and new subsections (2) and (3) are added to

21  that section, to read:

22         210.12  Seizures; forfeiture proceedings.--

23         (1)  The state, acting by and through the division,

24  shall be authorized and empowered to seize, confiscate, and

25  forfeit for the use and benefit of the state, any cigarettes

26  upon which taxes payable hereunder may be unpaid or that are

27  otherwise held in violation of the requirements of this

28  chapter, and also any vending machine or receptacle in which

29  such cigarettes upon which taxes have not been paid are held

30  for sale, or any vending machine that does not have affixed

31  thereto the identification sticker required by the provisions


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    SB 2112                                        First Engrossed



 1  of s. 210.07, or which does not display at all times at least

 2  one package of each brand of cigarettes located therein so the

 3  same is clearly visible and arranged in such a manner that the

 4  cigarette tax stamp or meter impression of the stamp affixed

 5  thereto is clearly visible. Such seizure may be made by the

 6  division, its duly authorized representative, any sheriff or

 7  deputy sheriff, or any police officer.

 8         (2)  All fixtures, equipment, and other materials and

 9  personal property on the premises of any dealer or retail

10  dealer who, with intent to defraud the state, fails to keep or

11  make any record, return, report, or inventory required by this

12  part; keeps or makes any false or fraudulent record, return,

13  report, or inventory required by this part; refuses to pay any

14  tax imposed by this part; or attempts in any manner to evade

15  or defeat the requirements of this part shall be forfeited to

16  the state.

17         (3)  All cigarettes seized, confiscated, and forfeited

18  to the state under this part shall be destroyed.

19         Section 8.  Subsection (1) of section 210.15, Florida

20  Statutes, is amended to read:

21         210.15  Permits.--

22         (1)(a)  Every person, firm, or corporation desiring to

23  engage in business as a manufacturer, importer, exporter,

24  distributing agent, or wholesale dealer of cigarettes deal in

25  cigarettes as a distributing agent, wholesale dealer, or

26  exporter within this state shall file with the division an

27  application for a cigarette permit for each place of business

28  located within this state or, in the absence of such place of

29  business in this state, for wherever its principal place of

30  business is located with the Division of Alcoholic Beverages

31  and Tobacco. Every application for a cigarette permit shall be


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    SB 2112                                        First Engrossed



 1  made on forms furnished by the division and shall set forth

 2  the name under which the applicant transacts or intends to

 3  transact business, the location of the applicant's place of

 4  business within the state, if any, and such other information

 5  as the division may require. If the applicant has or intends

 6  to have more than one place of business dealing in cigarettes

 7  within this state, the application shall state the location of

 8  each place of business. If the applicant is an association,

 9  the application shall set forth the names and addresses of the

10  persons constituting the association, and if a corporation,

11  the names and addresses of the principal officers thereof and

12  any other information prescribed by the division for the

13  purpose of identification. The application shall be signed and

14  verified by oath or affirmation by the owner, if a natural

15  person, and in the case of an association or partnership,

16  members or partners thereof, and in the case of a corporation,

17  by an executive officer thereof or by any person specifically

18  authorized by the corporation to sign the application, to

19  which shall be attached the written evidence of this

20  authority. The cigarette permit for a distributing agent shall

21  be issued annually for which an annual fee of $5 shall be

22  charged.

23         (b)  The holder of any duly issued, annual permit for a

24  distributing agent shall be entitled to a renewal of his or

25  her annual permit from year to year as a matter of course, on

26  or before July 1, upon making application to the division and

27  upon payment of this annual permit fee.

28         (c)  Permits The permit for a distributing agent,

29  wholesale dealer, or exporter shall be issued only to persons

30  of good moral character, who are not less than 18 years of

31  age. Distributing agent, wholesale dealer, or exporter Permits


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    SB 2112                                        First Engrossed



 1  to corporations shall be issued only to corporations whose

 2  officers are of good moral character and not less than 18

 3  years of age. There shall be no exemptions from the permit

 4  fees herein provided to any persons, association of persons,

 5  or corporation, any law to the contrary notwithstanding.

 6         (d)  No distributing agent, wholesale dealer, or

 7  exporter permit shall be issued, maintained, or renewed if the

 8  applicant, its officers, or any person or persons owning

 9  directly or indirectly, in the aggregate, more than 10 percent

10  of the ownership interests in the applicant:

11         1.  Owes $500 or more in delinquent cigarette taxes;

12         2.  Had a cigarette importer, retail dealer, or dealer

13  permit revoked by the division within the previous 2 years;

14         3.  Has been convicted of selling stolen or counterfeit

15  cigarettes, receiving stolen cigarettes, or being involved in

16  the counterfeiting of cigarettes; or

17         4.  Has to any person who has been convicted within the

18  past 5 years of any offense against the cigarette laws of this

19  state or who has been convicted in this state, any other

20  state, or the United States during the past 5 years of any

21  offense designated as a felony by such state or the United

22  States, or to a corporation, any of whose officers have been

23  so convicted. The term "convicted" "conviction" shall include

24  an adjudication of guilt on a plea of guilty or a plea of nolo

25  contendere, or the forfeiture of a bond when charged with a

26  crime.

27         (e)(d)  The division may refuse to issue a distributing

28  agent, wholesale, or exporter permit to any person, firm, or

29  corporation whose permit under the cigarette law has been

30  revoked or to any corporation, an officer of which has had his

31  or her permit under the cigarette law revoked, or to any


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    SB 2112                                        First Engrossed



 1  person who is or has been an officer of a corporation whose

 2  permit has been revoked under the cigarette law. Any permit

 3  issued to a firm or corporation prohibited from obtaining such

 4  permit under the cigarette law may be revoked by the division.

 5         (f)(e)  Prior to an application for a distributing

 6  agent, wholesale dealer, or exporter permit being approved,

 7  the applicant shall file a set of fingerprints on forms

 8  provided by the division. The applicant shall also file a set

 9  of fingerprints for any person or persons interested directly

10  or indirectly with the applicant in the business for which the

11  permit is being sought, when so required by the division. If

12  the applicant or any person interested with the applicant,

13  either directly or indirectly, in the business for which the

14  permit is sought shall be such a person as is within the

15  definition of persons to whom a distributing agent, wholesale

16  dealer, or exporter permit shall be denied, then the

17  application may be denied by the division. If the applicant is

18  a partnership, all members of the partnership are required to

19  file said fingerprints, or if a corporation, all principal

20  officers of the corporation are required to file said

21  fingerprints. The cigarette permit for a wholesale dealer or

22  exporter shall be originally issued at a fee of $100, which

23  sum is to cover the cost of the investigation required before

24  issuing such permit.

25         (g)(f)  The cigarette permits issued under this section

26  permit for a wholesale dealer or exporter shall be renewed

27  from year to year as a matter of course, at an annual cost of

28  $100, on or before July 1, upon making application to the

29  division and upon payment of the annual renewal fee.

30         (h)(g)  Permittees, by acceptance of their permits,

31  agree that their places of business or vehicles transporting


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    SB 2112                                        First Engrossed



 1  cigarettes shall always be subject to be inspected and

 2  searched without a search warrant for the purpose of

 3  ascertaining that all provisions of this part are complied

 4  with by authorized employees of the division and also by

 5  sheriffs, deputy sheriffs, and police officers during business

 6  hours or during any other time such premises are occupied by

 7  the permittee or other persons. Retail cigarette dealers and

 8  manufacturers' representatives, by dealing in cigarettes,

 9  agree that their places of business or vehicles transporting

10  cigarettes shall always be subject to inspection and search

11  without a search warrant for the purpose of ascertaining that

12  all provisions of this part are complied with by authorized

13  employees of the division and also by sheriffs, deputy

14  sheriffs, and police officers during business hours or other

15  times when the premises are occupied by the retail dealer or

16  manufacturers' representatives or other persons.

17         (i)(h)  No retail sales of cigarettes may be made at a

18  location for which a wholesale dealer, distributing agent, or

19  exporter permit has been issued. The excise tax on sales made

20  to any traveling location, such as an itinerant store or

21  industrial caterer, shall be paid into the General Revenue

22  Fund unallocated. Cigarettes may be purchased for retail

23  purposes only from a person holding a wholesale dealer permit.

24  The invoice for the purchase of cigarettes must show the place

25  of business for which the purchase is made and the cigarettes

26  cannot be transferred to any other place of business for the

27  purpose of resale.

28         Section 9.  Subsections (2), (3), and (6) of section

29  210.18, Florida Statutes, are amended, and subsection (9) is

30  added to that section, to read:

31  


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    SB 2112                                        First Engrossed



 1         210.18  Penalties for tax evasion; reports by

 2  sheriffs.--

 3         (2)  Except as otherwise provided in this section, any

 4  person wholesale or retail dealer who fails, neglects, or

 5  refuses to comply with, or violates the provisions of, this

 6  part or the rules adopted and regulations promulgated by the

 7  division under this part commits is guilty of a misdemeanor of

 8  the first degree, punishable as provided in s. 775.082 or s.

 9  775.083. Any person wholesale or retail dealer who has been

10  convicted of a violation of any provision of the cigarette tax

11  law and who is thereafter convicted of a further violation of

12  the cigarette tax law is, upon conviction of such further

13  offense, guilty of a felony of the third degree, punishable as

14  provided in s. 775.082, s. 775.083, or s. 775.084.

15         (3)  Any person who falsely or fraudulently makes,

16  forges, alters, or counterfeits any stamp or impression die

17  used in meter machines prescribed by the division under the

18  provisions of this part; or, with intent to evade taxes, jams,

19  tampers with, or alters such a machine; or causes or procures

20  to be falsely or fraudulently made, forged, altered, or

21  counterfeited any such stamp or die; or knowingly and

22  willfully utters, purchases, passes or tenders as true any

23  such false, altered, or counterfeited stamp or die impression;

24  or with the intent to defraud the state, fails to comply with

25  any other requirement of this chapter commits is guilty of a

26  felony of the third degree, punishable as provided in s.

27  775.082, s. 775.083, or s. 775.084.

28         (6)(a)  Every person, firm, or corporation, other than

29  a licensee under the provisions of this part, who possesses,

30  removes, deposits, or conceals, or aids in the possessing,

31  removing, depositing, or concealing of, any unstamped


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    SB 2112                                        First Engrossed



 1  cigarettes not in excess of 50 cartons is guilty of a

 2  misdemeanor of the second degree, punishable as provided in s.

 3  775.082 or s. 775.083. In lieu of the penalties provided in

 4  those sections, however, the person, firm, or corporation may

 5  pay the tax plus a penalty equal to the amount of the tax

 6  authorized under s. 210.02 on the unstamped cigarettes.

 7         (a)(b)  Every person, firm, or corporation, other than

 8  a licensee under the provisions of this part, who possesses,

 9  removes, deposits, or conceals, or aids in the possessing,

10  removing, depositing, or concealing of, any unstamped

11  cigarettes in excess of 50 cartons is presumed to have

12  knowledge that they have not been taxed and commits is guilty

13  of a felony of the third degree, punishable as provided in s.

14  775.082, s. 775.083, or s. 775.084.

15         (b)(c)  This section does not apply to a person

16  possessing not in excess of three cartons of such cigarettes

17  purchased by such possessor outside the state in accordance

18  with the laws of the place where purchased and brought into

19  this state by such possessor. The burden of proof that such

20  cigarettes were purchased outside the state and in accordance

21  with the laws of the place where purchased shall in all cases

22  be upon the possessor of such cigarettes.

23         (9)  Notwithstanding any other provision of law, the

24  sale or possession for sale of counterfeit cigarettes by any

25  person or by a manufacturer, importer, distributing agent,

26  wholesale dealer, or retail dealer shall result in the seizure

27  of the product and related machinery by the division or any

28  law enforcement agency and shall be punishable as follows:

29         (a)1.  A first violation with a total quantity of less

30  than two cartons of cigarettes or the equivalent amount of

31  other cigarettes shall be punishable by a fine not to exceed


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    SB 2112                                        First Engrossed



 1  $1,000 or five times the retail value of the cigarettes

 2  involved, whichever is greater, or imprisonment not to exceed

 3  5 years, or both.

 4         2.  A subsequent violation with a total quantity of

 5  less than two cartons of cigarettes or the equivalent amount

 6  of other cigarettes shall be punishable by a fine not to

 7  exceed $5,000 or five times the retail value of the cigarettes

 8  involved, whichever is greater, or imprisonment not to exceed

 9  5 years, or both, and shall also result in the revocation by

10  the division of the permit of the manufacturer, importer,

11  distributing agent, wholesale dealer, or retail dealer.

12         (b)1.  A first violation with a total quantity of two

13  or more cartons of cigarettes or the equivalent amount of

14  other cigarettes shall be punishable by a fine not to exceed

15  $2,000 or five times the retail value of the cigarettes

16  involved, whichever is greater, or imprisonment not to exceed

17  5 years, or both.

18         2.  A subsequent violation with a quantity of two

19  cartons of cigarettes or more or the equivalent amount of

20  other cigarettes shall be punishable by a fine not to exceed

21  $50,000 or five times the retail value of the cigarettes

22  involved, whichever is greater, or imprisonment not to exceed

23  5 years, or both, and shall also result in the revocation by

24  the division of the permit of the manufacturer, importer,

25  distributing agent, wholesale dealer, or retail dealer.

26  

27  For purposes of this subsection, any counterfeit cigarettes

28  seized by the division shall be destroyed.

29         Section 10.  Section 210.181, Florida Statutes, is

30  created to read:

31         210.181  Civil penalties.--


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    SB 2112                                        First Engrossed



 1         (1)  Whoever knowingly omits, neglects, or refuses to

 2  comply with any duty imposed upon him or her by this part, or

 3  to do or cause to be done any of the things required by this

 4  part, or does anything prohibited by this part shall, in

 5  addition to any other penalty provided in this part, be liable

 6  for a fine of $1,000 or five times the retail value of the

 7  cigarettes involved, whichever is greater.

 8         (2)  Whoever fails to pay any tax imposed by this part

 9  at the time prescribed by law or rules shall, in addition to

10  any other penalty provided in this part, be liable for a

11  penalty of five times the unpaid tax due.

12         Section 11.  For the purpose of incorporating the

13  amendment made by this act to section 210.18, Florida

14  Statutes, in a reference thereto, paragraph (a) of subsection

15  (1) of section 772.102, Florida Statutes, is reenacted to

16  read:

17         772.102  Definitions.--As used in this chapter, the

18  term:

19         (1)  "Criminal activity" means to commit, to attempt to

20  commit, to conspire to commit, or to solicit, coerce, or

21  intimidate another person to commit:

22         (a)  Any crime which is chargeable by indictment or

23  information under the following provisions:

24         1.  Section 210.18, relating to evasion of payment of

25  cigarette taxes.

26         2.  Section 414.39, relating to public assistance

27  fraud.

28         3.  Section 440.105 or s. 440.106, relating to workers'

29  compensation.

30         4.  Part IV of chapter 501, relating to telemarketing.

31         5.  Chapter 517, relating to securities transactions.


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    SB 2112                                        First Engrossed



 1         6.  Section 550.235, s. 550.3551, or s. 550.3605,

 2  relating to dogracing and horseracing.

 3         7.  Chapter 550, relating to jai alai frontons.

 4         8.  Chapter 552, relating to the manufacture,

 5  distribution, and use of explosives.

 6         9.  Chapter 562, relating to beverage law enforcement.

 7         10.  Section 624.401, relating to transacting insurance

 8  without a certificate of authority, s. 624.437(4)(c)1.,

 9  relating to operating an unauthorized multiple-employer

10  welfare arrangement, or s. 626.902(1)(b), relating to

11  representing or aiding an unauthorized insurer.

12         11.  Chapter 687, relating to interest and usurious

13  practices.

14         12.  Section 721.08, s. 721.09, or s. 721.13, relating

15  to real estate timeshare plans.

16         13.  Chapter 782, relating to homicide.

17         14.  Chapter 784, relating to assault and battery.

18         15.  Chapter 787, relating to kidnapping.

19         16.  Chapter 790, relating to weapons and firearms.

20         17.  Section 796.03, s. 796.04, s. 796.05, or s.

21  796.07, relating to prostitution.

22         18.  Chapter 806, relating to arson.

23         19.  Section 810.02(2)(c), relating to specified

24  burglary of a dwelling or structure.

25         20.  Chapter 812, relating to theft, robbery, and

26  related crimes.

27         21.  Chapter 815, relating to computer-related crimes.

28         22.  Chapter 817, relating to fraudulent practices,

29  false pretenses, fraud generally, and credit card crimes.

30         23.  Section 827.071, relating to commercial sexual

31  exploitation of children.


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    SB 2112                                        First Engrossed



 1         24.  Chapter 831, relating to forgery and

 2  counterfeiting.

 3         25.  Chapter 832, relating to issuance of worthless

 4  checks and drafts.

 5         26.  Section 836.05, relating to extortion.

 6         27.  Chapter 837, relating to perjury.

 7         28.  Chapter 838, relating to bribery and misuse of

 8  public office.

 9         29.  Chapter 843, relating to obstruction of justice.

10         30.  Section 847.011, s. 847.012, s. 847.013, s.

11  847.06, or s. 847.07, relating to obscene literature and

12  profanity.

13         31.  Section 849.09, s. 849.14, s. 849.15, s. 849.23,

14  or s. 849.25, relating to gambling.

15         32.  Chapter 893, relating to drug abuse prevention and

16  control.

17         33.  Section 914.22 or s. 914.23, relating to

18  witnesses, victims, or informants.

19         34.  Section 918.12 or s. 918.13, relating to tampering

20  with jurors and evidence.

21         Section 12.  For the purpose of incorporating the

22  amendment made by this act to section 210.18, Florida

23  Statutes, in a reference thereto, paragraph (a) of subsection

24  (1) of section 895.02, Florida Statutes, is reenacted to read:

25         895.02  Definitions.--As used in ss. 895.01-895.08, the

26  term:

27         (1)  "Racketeering activity" means to commit, to

28  attempt to commit, to conspire to commit, or to solicit,

29  coerce, or intimidate another person to commit:

30  

31  


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    SB 2112                                        First Engrossed



 1         (a)  Any crime which is chargeable by indictment or

 2  information under the following provisions of the Florida

 3  Statutes:

 4         1.  Section 210.18, relating to evasion of payment of

 5  cigarette taxes.

 6         2.  Section 403.727(3)(b), relating to environmental

 7  control.

 8         3.  Section 414.39, relating to public assistance

 9  fraud.

10         4.  Section 409.920, relating to Medicaid provider

11  fraud.

12         5.  Section 440.105 or s. 440.106, relating to workers'

13  compensation.

14         6.  Sections 499.0051, 499.0052, 499.0053, 499.0054,

15  and 499.0691, relating to crimes involving contraband and

16  adulterated drugs.

17         7.  Part IV of chapter 501, relating to telemarketing.

18         8.  Chapter 517, relating to sale of securities and

19  investor protection.

20         9.  Section 550.235, s. 550.3551, or s. 550.3605,

21  relating to dogracing and horseracing.

22         10.  Chapter 550, relating to jai alai frontons.

23         11.  Chapter 552, relating to the manufacture,

24  distribution, and use of explosives.

25         12.  Chapter 560, relating to money transmitters, if

26  the violation is punishable as a felony.

27         13.  Chapter 562, relating to beverage law enforcement.

28         14.  Section 624.401, relating to transacting insurance

29  without a certificate of authority, s. 624.437(4)(c)1.,

30  relating to operating an unauthorized multiple-employer

31  


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    SB 2112                                        First Engrossed



 1  welfare arrangement, or s. 626.902(1)(b), relating to

 2  representing or aiding an unauthorized insurer.

 3         15.  Section 655.50, relating to reports of currency

 4  transactions, when such violation is punishable as a felony.

 5         16.  Chapter 687, relating to interest and usurious

 6  practices.

 7         17.  Section 721.08, s. 721.09, or s. 721.13, relating

 8  to real estate timeshare plans.

 9         18.  Chapter 782, relating to homicide.

10         19.  Chapter 784, relating to assault and battery.

11         20.  Chapter 787, relating to kidnapping.

12         21.  Chapter 790, relating to weapons and firearms.

13         22.  Section 796.03, s. 796.04, s.  796.05, or s.

14  796.07, relating to prostitution.

15         23.  Chapter 806, relating to arson.

16         24.  Section 810.02(2)(c), relating to specified

17  burglary of a dwelling or structure.

18         25.  Chapter 812, relating to theft, robbery, and

19  related crimes.

20         26.  Chapter 815, relating to computer-related crimes.

21         27.  Chapter 817, relating to fraudulent practices,

22  false pretenses, fraud generally, and credit card crimes.

23         28.  Chapter 825, relating to abuse, neglect, or

24  exploitation of an elderly person or disabled adult.

25         29.  Section 827.071, relating to commercial sexual

26  exploitation of children.

27         30.  Chapter 831, relating to forgery and

28  counterfeiting.

29         31.  Chapter 832, relating to issuance of worthless

30  checks and drafts.

31         32.  Section 836.05, relating to extortion.


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    SB 2112                                        First Engrossed



 1         33.  Chapter 837, relating to perjury.

 2         34.  Chapter 838, relating to bribery and misuse of

 3  public office.

 4         35.  Chapter 843, relating to obstruction of justice.

 5         36.  Section 847.011, s. 847.012, s. 847.013, s.

 6  847.06, or s. 847.07, relating to obscene literature and

 7  profanity.

 8         37.  Section 849.09, s. 849.14, s. 849.15, s. 849.23,

 9  or s. 849.25, relating to gambling.

10         38.  Chapter 874, relating to criminal street gangs.

11         39.  Chapter 893, relating to drug abuse prevention and

12  control.

13         40.  Chapter 896, relating to offenses related to

14  financial transactions.

15         41.  Sections 914.22 and 914.23, relating to tampering

16  with a witness, victim, or informant, and retaliation against

17  a witness, victim, or informant.

18         42.  Sections 918.12 and 918.13, relating to tampering

19  with jurors and evidence.

20         Section 13.  For the 2004-2005 fiscal year, the sum of

21  $480,028 is appropriated from the Alcoholic Beverage and

22  Tobacco Trust Fund and four full-time equivalent positions are

23  authorized to be established by the Department of Business and

24  Professional Regulation for the purpose of conducting

25  regulatory activities related to the transportation and sale

26  of cigarettes.

27         Section 14.  From the funds generated by this act, the

28  sum of $2 million is appropriated to the Department of Health

29  to address health care disparities in the minority community.

30         Section 15.  This act shall take effect on July 1,

31  2004.


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