Senate Bill 2112

Senate Bill sb2112e2

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




    SB 2112                                       Second 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;


                                  1

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






    SB 2112                                       Second 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


                                  2

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






    SB 2112                                       Second 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; amending s. 17.41,

11         F.S.; providing additional source of revenue to

12         the Tobacco Settlement Trust Fund; providing an

13         effective date.

14  

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

16  nonsettling manufacturers from undermining the state's policy

17  of reducing underage smoking by offering their cigarettes for

18  sale substantially below the price of cigarettes of other

19  manufacturers; to protect the tobacco settlement agreement and

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

21  nonsettling-manufacturer cigarette sales, for programs funded

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

23  settlement agreement and to recoup for the state

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

25  nonsettling-manufacturer cigarette sales; to fund enforcement

26  and administration of nonsettling-manufacturer legislation and

27  the fee imposed in this act, including reasonable

28  administrative costs incurred by wholesale dealers complying

29  with any additional reporting requirements necessitated by

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

31  determines, NOW, THEREFORE,


                                  3

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






    SB 2112                                       Second Engrossed



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

 2  

 3         Section 1.  Section 210.0205, Florida Statutes, is

 4  created to read:

 5         210.0205  Nonsettling-manufacturer fee.--

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

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

 8  under the same trademark and differentiated from one another

 9  by means of additional modifiers or descriptors, including,

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

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

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

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

14  product identification identical or similar to, or

15  identifiable with, a previously known brand of cigarettes.

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

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

18  Labor Statistics of the United States Department of Labor.

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

20  manufactures, fabricates, or assembles cigarettes. The term

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

22  States of cigarettes manufactured abroad.

23         (d)  "Nonsettling manufacturer" means any tobacco

24  product manufacturer that has not entered into the tobacco

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

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

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

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

29         (e)  "Nonsettling-manufacturer cigarettes" means

30  cigarettes manufactured by a nonsettling manufacturer, except

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


                                  4

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






    SB 2112                                       Second Engrossed



 1  settling manufacturer pursuant to a tobacco settlement

 2  agreement described in paragraph (d).

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

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

 5  purchase, possession, consumption, handling, distribution, and

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

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

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

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

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

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

12  Year 2005-2006. Beginning January 1, 2007, and on January 1 of

13  each year thereafter, the division shall adjust the tax rate

14  by the greater of 3 percent or the percentage change in the

15  average of the Consumer Price Index issued by the United

16  States Department of Labor for the most recent 12-month period

17  ending September 30 compared to the 12-month period ending

18  September 30 of the prior year.

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

20  from each nonsettling manufacturer based on information

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

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

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

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

25  such nonsettling manufacturer shall ensure that the division

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

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

28  otherwise provided in this section, proceeds from the fee

29  shall be deposited into the Tobacco Settlement Clearing Trust

30  Fund and the fee shall be imposed, collected, paid,

31  


                                  5

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






    SB 2112                                       Second Engrossed



 1  administered, and enforced in the same manner as the tax on

 2  cigarettes imposed by s. 210.02.

 3         (4)  A nonsettling manufacturer selling cigarettes in

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

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

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

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

 8  manufacturer is not selling cigarettes in this state on the

 9  effective date of this act, before commencing sales of

10  cigarettes in this state, the nonsettling manufacturer shall

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

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

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

14  the number of cigarettes the division reasonably projects that

15  the nonsettling manufacturer will sell in this state in the

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

17  division may require a nonsettling manufacturer to provide any

18  information reasonably necessary to determine the amount of

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

20  establish procedures for providing reimbursement to

21  nonsettling manufacturers if actual sales are less than sales

22  projected by the division and for additional payment by

23  nonsettling manufacturers if actual sales are greater than

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

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

26  cigarettes.

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

28         (a)  Prevent nonsettling manufacturers from undermining

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

30  cigarettes for sale substantially below the price of

31  cigarettes of other manufacturers.


                                  6

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






    SB 2112                                       Second Engrossed



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

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

 3  as a result of the growth of nonsettling-manufacturer

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

 5  payments to the state under the tobacco settlement agreement;

 6  and

 7         2.  Recoup for the state settlement-payment revenue

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

 9  cigarette sales.

10         (c)  Fund enforcement and administration of

11  nonsettling-manufacturer legislation and the fee imposed by

12  this section, including reasonable administrative costs

13  incurred by wholesale dealers complying with any additional

14  reporting requirements necessitated by this section.

15         (d)  Fund such other purposes as the Legislature

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

17  under this act shall be provided annually through quarterly

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

19  implementing a statewide anti-smoking marketing, educational

20  and advertising campaign to reduce youth tobacco use. The

21  Department of Health shall conduct surveillance and

22  evaluations to measure program performance and improve

23  implementation strategies. The Department of Health may

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

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

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

27  reports shall state the number and denominations of stamps or

28  stamp insignia affixed to individual packages of

29  nonsettling-manufacturer cigarettes and the number of

30  individual packages of nonsettling-manufacturer cigarettes

31  otherwise sold or purchased in this state or otherwise handled


                                  7

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






    SB 2112                                       Second Engrossed



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

 2  commonwealth, or territory of the United States, by

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

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

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

 6  wholesale dealer, or nonsettling manufacturer to provide in

 7  the monthly report any information necessary or appropriate to

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

 9  this act.

10         (7)  Before commencing sales of cigarettes in this

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

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

13  this act, a nonsettling manufacturer shall provide to the

14  division, on a form prescribed by the division:

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

16  of the nonsettling manufacturer.

17         (b)  The date the nonsettling manufacturer began or

18  intends to begin selling cigarettes in this state.

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

20  the nonsettling manufacturer is selling or will sell in this

21  state.

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

23  intention to comply with the obligations imposed by this

24  section.

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

26  of an officer of the nonsettling manufacturer attesting to all

27  of the information described in this subsection.

28         (8)  Each nonsettling manufacturer subject to the fee

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

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

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


                                  8

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






    SB 2112                                       Second Engrossed



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

 2  publish on its Internet website a directory listing all

 3  nonsettling manufacturers that have provided current,

 4  accurate, and complete certifications. The division shall

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

 6         (9)  Cigarettes of a nonsettling manufacturer that has

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

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

 9  (6), (7), and (8), shall be treated as cigarettes for which

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

11  not affix to any package of nonsetttling-manufacturer

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

13  purchase or sell such cigarettes, after such person receives

14  notice from the division that the nonsettling manufacturer of

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

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

17  listed on the division's directory described in subsection

18  (8).

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

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

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

22         210.01  Definitions.--When used in this part the

23  following words shall have the meaning herein indicated:

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

25  or outside this state who sells cigarettes to retail dealers

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

27  who operates more than one cigarette vending machine located

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

29  include any cigarette manufacturer, export warehouse

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

31  5712 if such person sells or distributes cigarettes in this


                                  9

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






    SB 2112                                       Second Engrossed



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

 2  current permits under s. 210.15 or to any cigarette

 3  manufacturer, export warehouse proprietor, or importer who

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

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

 6  outside this state other than a wholesale dealer engaged in

 7  the business of selling cigarettes, including persons licensed

 8  pursuant to s. 569.003.

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

10  be placed on cigarette packages that evidences payment of the

11  tax on cigarettes under s. 210.02.

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

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

14  directly or indirectly, a finished cigarette for sale or

15  distribution.

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

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

18  assembles, processes, or labels a finished cigarette.

19         (22)  "Counterfeit cigarettes" means cigarettes that

20  have false manufacturing labels, tobacco product packs with

21  counterfeit tax stamps, or any combination thereof.

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

23  sold under the same trademark and differentiated from one

24  another by means of additional modifiers or descriptors,

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

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

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

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

29  other indicia of product identification identical or similar

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

31  cigarettes.


                                  10

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






    SB 2112                                       Second Engrossed



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

 2  Florida Statutes, to read:

 3         210.05  Preparation and sale of stamps; discount.--

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

 5  transported from this state cigarettes for sale in another

 6  state without first affixing to the cigarettes the stamp

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

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

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

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

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

12  cigarettes imposed by another state if the other state

13  prohibits stamps from being affixed to the cigarettes,

14  prohibits the payment of any other excise tax on the

15  cigarettes, or prohibits the sale of the cigarettes.

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

17  apply to cigarettes with respect to which the manufacturer or

18  importer either is a participating manufacturer (as defined in

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

20  full compliance with the qualifying statute (as defined in

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

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

23  pursuant to this paragraph may only be asserted with respect

24  to cigarettes that, in the case of a participating

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

26  calculating its payments under the master settlement agreement

27  for the relevant year in the volumes and shares determined

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

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

30  cigarettes for purposes of the applicable qualifying statute.

31  For purposes of this subsection the term "master settlement


                                  11

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






    SB 2112                                       Second Engrossed



 1  agreement" means the settlement agreement (and related

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

 3  United States tobacco manufacturers. A person asserting an

 4  exemption pursuant to this paragraph shall submit the reports

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

 6  that paragraph.

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

 8  who transports or causes to be transported from this state

 9  cigarettes for sale in another state shall submit to the

10  division a report identifying the quantity and brand family of

11  each brand of the cigarettes transported or caused to be

12  transported in the preceding calendar month and the name and

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

14  also certify under oath and subject to the penalties of

15  perjury that:

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

17  affixed in accordance with that paragraph or that such stamps

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

19         2.  Such person satisfies the requirements of paragraph

20  (c).

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

22  means an individual, partnership, committee, association,

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

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

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

26  directly or indirectly, by the person transporting the

27  cigarettes or causing the transport to be made.

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

29  the possession or transportation of cigarettes by any person

30  not so authorized by another provision of this part.

31  


                                  12

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






    SB 2112                                       Second Engrossed



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

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

 3  section, to read:

 4         210.06  Affixation of stamps; presumption.--

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

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

 7  such cigarettes such, stamps as are required under this

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

 9  outside this state shall affix such stamps before the shipment

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

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

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

13  otherwise disposed of in the state.

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

15  packages intended for sale or distribution to consumers

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

17  otherwise provided in this act.

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

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

20  a manufacturer pursuant to federal regulations.

21         (c)  Dealers may apply stamps only to cigarette

22  packages received directly from a manufacturer or importer of

23  cigarettes who possesses a valid and current permit under 26

24  U.S.C. s. 5712.

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

26  other than a dealer that receives unstamped cigarette packages

27  directly from a cigarette manufacturer or importer in

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

29  possess an unstamped cigarette package. Dealers shall be

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

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


                                  13

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






    SB 2112                                       Second Engrossed



 1  distribution outside this state. If a dealer maintains stocks

 2  of unstamped cigarette packages, such unstamped packages shall

 3  be stored separately from stamped product packages. No

 4  unstamped cigarette packages shall be transferred by a dealer

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

 6  another person within this state.

 7         Section 5.  Section 210.085, Florida Statutes, is

 8  created to read:

 9         210.085  Transactions only with permitted

10  manufacturers, importers, distributing agents, dealers, and

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

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

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

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

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

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

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

18  dealer may obtain cigarettes only from a manufacturer or

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

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

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

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

23  a valid, current permit under s. 210.15.

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

25  Statutes, is amended to read:

26         210.09  Records to be kept; reports to be made;

27  examination.--

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

29  unstamped cigarettes upon the public highways, roads, or

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

31  actual possession invoices or delivery tickets for such


                                  14

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






    SB 2112                                       Second Engrossed



 1  cigarettes. The absence of such invoices or delivery tickets

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

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

 4  part.

 5         (b)  Any person who ships unstamped cigarette packages

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

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

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

 9  This paragraph shall not apply to any common or contract

10  carrier that is transporting cigarettes through this state to

11  another location outside this state under a proper bill of

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

13  destination of such cigarettes.

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

15  authorized agent, or any law enforcement officer of this

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

17  vehicle is transporting cigarettes in violation of this part,

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

19  authorized to stop such vehicle and inspect the vehicle for

20  contraband cigarettes.

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

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

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

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

25  that section, to read:

26         210.12  Seizures; forfeiture proceedings.--

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

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

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

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

31  otherwise held in violation of the requirements of this


                                  15

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






    SB 2112                                       Second Engrossed



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

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

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

 4  thereto the identification sticker required by the provisions

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

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

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

 8  cigarette tax stamp or meter impression of the stamp affixed

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

10  division, its duly authorized representative, any sheriff or

11  deputy sheriff, or any police officer.

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

13  personal property on the premises of any dealer or retail

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

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

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

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

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

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

20  the state.

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

22  to the state under this part shall be destroyed.

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

24  Statutes, is amended to read:

25         210.15  Permits.--

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

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

28  distributing agent, or wholesale dealer of cigarettes deal in

29  cigarettes as a distributing agent, wholesale dealer, or

30  exporter within this state shall file with the division an

31  application for a cigarette permit for each place of business


                                  16

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






    SB 2112                                       Second Engrossed



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

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

 3  business is located with the Division of Alcoholic Beverages

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

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

 6  the name under which the applicant transacts or intends to

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

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

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

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

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

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

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

14  persons constituting the association, and if a corporation,

15  the names and addresses of the principal officers thereof and

16  any other information prescribed by the division for the

17  purpose of identification. The application shall be signed and

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

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

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

21  by an executive officer thereof or by any person specifically

22  authorized by the corporation to sign the application, to

23  which shall be attached the written evidence of this

24  authority. The cigarette permit for a distributing agent shall

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

26  charged.

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

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

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

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

31  upon payment of this annual permit fee.


                                  17

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






    SB 2112                                       Second Engrossed



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

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

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

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

 5  to corporations shall be issued only to corporations whose

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

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

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

 9  or corporation, any law to the contrary notwithstanding.

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

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

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

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

14  of the ownership interests in the applicant:

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

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

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

18         3.  Has been convicted of selling stolen or counterfeit

19  cigarettes, receiving stolen cigarettes, or being involved in

20  the counterfeiting of cigarettes; or

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

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

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

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

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

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

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

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

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

30  crime.

31  


                                  18

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






    SB 2112                                       Second Engrossed



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

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

 3  corporation whose permit under the cigarette law has been

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

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

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

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

 8  issued to a firm or corporation prohibited from obtaining such

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

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

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

12  the applicant shall file a set of fingerprints on forms

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

14  of fingerprints for any person or persons interested directly

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

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

17  the applicant or any person interested with the applicant,

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

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

20  definition of persons to whom a distributing agent, wholesale

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

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

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

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

25  officers of the corporation are required to file said

26  fingerprints. The cigarette permit for a wholesale dealer or

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

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

29  issuing such permit.

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

31  permit for a wholesale dealer or exporter shall be renewed


                                  19

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






    SB 2112                                       Second Engrossed



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

 2  $100, on or before July 1, upon making application to the

 3  division and upon payment of the annual renewal fee.

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

 5  agree that their places of business or vehicles transporting

 6  cigarettes shall always be subject to be inspected and

 7  searched without a search warrant for the purpose of

 8  ascertaining that all provisions of this part are complied

 9  with by authorized employees of the division and also by

10  sheriffs, deputy sheriffs, and police officers during business

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

12  the permittee or other persons. Retail cigarette dealers and

13  manufacturers' representatives, by dealing in cigarettes,

14  agree that their places of business or vehicles transporting

15  cigarettes shall always be subject to inspection and search

16  without a search warrant for the purpose of ascertaining that

17  all provisions of this part are complied with by authorized

18  employees of the division and also by sheriffs, deputy

19  sheriffs, and police officers during business hours or other

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

21  manufacturers' representatives or other persons.

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

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

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

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

26  industrial caterer, shall be paid into the General Revenue

27  Fund unallocated. Cigarettes may be purchased for retail

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

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

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

31  


                                  20

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






    SB 2112                                       Second Engrossed



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

 2  purpose of resale.

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

 4  210.18, Florida Statutes, are amended, and subsection (9) is

 5  added to that section, to read:

 6         210.18  Penalties for tax evasion; reports by

 7  sheriffs.--

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

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

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

11  part or the rules adopted and regulations promulgated by the

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

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

14  775.083. Any person wholesale or retail dealer who has been

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

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

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

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

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

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

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

22  used in meter machines prescribed by the division under the

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

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

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

26  counterfeited any such stamp or die; or knowingly and

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

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

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

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

31  


                                  21

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






    SB 2112                                       Second Engrossed



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

 2  775.082, s. 775.083, or s. 775.084.

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

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

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

 6  removing, depositing, or concealing of, any unstamped

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

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

 9  775.082 or s. 775.083. In lieu of the penalties provided in

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

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

12  authorized under s. 210.02 on the unstamped cigarettes.

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

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

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

16  removing, depositing, or concealing of, any unstamped

17  cigarettes in excess of 50 cartons is presumed to have

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

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

20  775.082, s. 775.083, or s. 775.084.

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

22  possessing not in excess of three cartons of such cigarettes

23  purchased by such possessor outside the state in accordance

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

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

26  cigarettes were purchased outside the state and in accordance

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

28  be upon the possessor of such cigarettes.

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

30  sale or possession for sale of counterfeit cigarettes by any

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


                                  22

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






    SB 2112                                       Second Engrossed



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

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

 3  law enforcement agency and shall be punishable as follows:

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

 5  than two cartons of cigarettes or the equivalent amount of

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

 7  $1,000 or five times the retail value of the cigarettes

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

 9  5 years, or both.

10         2.  A subsequent violation with a total quantity of

11  less than two cartons of cigarettes or the equivalent amount

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

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

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

15  5 years, or both, and shall also result in the revocation by

16  the division of the permit of the manufacturer, importer,

17  distributing agent, wholesale dealer, or retail dealer.

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

19  or more cartons of cigarettes or the equivalent amount of

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

21  $2,000 or five times the retail value of the cigarettes

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

23  5 years, or both.

24         2.  A subsequent violation with a quantity of two

25  cartons of cigarettes or more or the equivalent amount of

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

27  $50,000 or five times the retail value of the cigarettes

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

29  5 years, or both, and shall also result in the revocation by

30  the division of the permit of the manufacturer, importer,

31  distributing agent, wholesale dealer, or retail dealer.


                                  23

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






    SB 2112                                       Second Engrossed



 1  

 2  For purposes of this subsection, any counterfeit cigarettes

 3  seized by the division shall be destroyed.

 4         Section 10.  Section 210.181, Florida Statutes, is

 5  created to read:

 6         210.181  Civil penalties.--

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

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

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

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

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

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

13  cigarettes involved, whichever is greater.

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

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

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

17  penalty of five times the unpaid tax due.

18         Section 11.  For the purpose of incorporating the

19  amendment made by this act to section 210.18, Florida

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

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

22  read:

23         772.102  Definitions.--As used in this chapter, the

24  term:

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

26  commit, to conspire to commit, or to solicit, coerce, or

27  intimidate another person to commit:

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

29  information under the following provisions:

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

31  cigarette taxes.


                                  24

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






    SB 2112                                       Second Engrossed



 1         2.  Section 414.39, relating to public assistance

 2  fraud.

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

 4  compensation.

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

 6         5.  Chapter 517, relating to securities transactions.

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

 8  relating to dogracing and horseracing.

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

10         8.  Chapter 552, relating to the manufacture,

11  distribution, and use of explosives.

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

13         10.  Section 624.401, relating to transacting insurance

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

15  relating to operating an unauthorized multiple-employer

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

17  representing or aiding an unauthorized insurer.

18         11.  Chapter 687, relating to interest and usurious

19  practices.

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

21  to real estate timeshare plans.

22         13.  Chapter 782, relating to homicide.

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

24         15.  Chapter 787, relating to kidnapping.

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

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

27  796.07, relating to prostitution.

28         18.  Chapter 806, relating to arson.

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

30  burglary of a dwelling or structure.

31  


                                  25

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






    SB 2112                                       Second Engrossed



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

 2  related crimes.

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

 4         22.  Chapter 817, relating to fraudulent practices,

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

 6         23.  Section 827.071, relating to commercial sexual

 7  exploitation of children.

 8         24.  Chapter 831, relating to forgery and

 9  counterfeiting.

10         25.  Chapter 832, relating to issuance of worthless

11  checks and drafts.

12         26.  Section 836.05, relating to extortion.

13         27.  Chapter 837, relating to perjury.

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

15  public office.

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

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

18  847.06, or s. 847.07, relating to obscene literature and

19  profanity.

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

21  or s. 849.25, relating to gambling.

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

23  control.

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

25  witnesses, victims, or informants.

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

27  with jurors and evidence.

28         Section 12.  For the purpose of incorporating the

29  amendment made by this act to section 210.18, Florida

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

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


                                  26

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






    SB 2112                                       Second Engrossed



 1         895.02  Definitions.--As used in ss. 895.01-895.08, the

 2  term:

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

 4  attempt to commit, to conspire to commit, or to solicit,

 5  coerce, or intimidate another person to commit:

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

 7  information under the following provisions of the Florida

 8  Statutes:

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

10  cigarette taxes.

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

12  control.

13         3.  Section 414.39, relating to public assistance

14  fraud.

15         4.  Section 409.920, relating to Medicaid provider

16  fraud.

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

18  compensation.

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

20  and 499.0691, relating to crimes involving contraband and

21  adulterated drugs.

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

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

24  investor protection.

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

26  relating to dogracing and horseracing.

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

28         11.  Chapter 552, relating to the manufacture,

29  distribution, and use of explosives.

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

31  the violation is punishable as a felony.


                                  27

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






    SB 2112                                       Second Engrossed



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

 2         14.  Section 624.401, relating to transacting insurance

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

 4  relating to operating an unauthorized multiple-employer

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

 6  representing or aiding an unauthorized insurer.

 7         15.  Section 655.50, relating to reports of currency

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

 9         16.  Chapter 687, relating to interest and usurious

10  practices.

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

12  to real estate timeshare plans.

13         18.  Chapter 782, relating to homicide.

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

15         20.  Chapter 787, relating to kidnapping.

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

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

18  796.07, relating to prostitution.

19         23.  Chapter 806, relating to arson.

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

21  burglary of a dwelling or structure.

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

23  related crimes.

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

25         27.  Chapter 817, relating to fraudulent practices,

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

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

28  exploitation of an elderly person or disabled adult.

29         29.  Section 827.071, relating to commercial sexual

30  exploitation of children.

31  


                                  28

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






    SB 2112                                       Second Engrossed



 1         30.  Chapter 831, relating to forgery and

 2  counterfeiting.

 3         31.  Chapter 832, relating to issuance of worthless

 4  checks and drafts.

 5         32.  Section 836.05, relating to extortion.

 6         33.  Chapter 837, relating to perjury.

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

 8  public office.

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

10         36.  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         37.  Section 849.09, s. 849.14, s. 849.15, s. 849.23,

14  or s. 849.25, relating to gambling.

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

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

17  control.

18         40.  Chapter 896, relating to offenses related to

19  financial transactions.

20         41.  Sections 914.22 and 914.23, relating to tampering

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

22  a witness, victim, or informant.

23         42.  Sections 918.12 and 918.13, relating to tampering

24  with jurors and evidence.

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

26  $480,028 is appropriated from the Alcoholic Beverage and

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

28  authorized to be established by the Department of Business and

29  Professional Regulation for the purpose of conducting

30  regulatory activities related to the transportation and sale

31  of cigarettes.


                                  29

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






    SB 2112                                       Second Engrossed



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

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

 3  to address health care disparities in the minority community.

 4         Section 15.  Subsection (2) of section 17.41, Florida

 5  Statutes, is amended to read:

 6         17.41  Department of Financial Services Tobacco

 7  Settlement Clearing Trust Fund.--

 8         (2)  Funds to be credited to the Tobacco Settlement

 9  Clearing Trust Fund shall consist of payments received by the

10  state from settlement of State of Florida v. American Tobacco

11  Co., No. 95-1466AH (Fla. 15th Cir. Ct. 1996) and fees from the

12  nonsettling-manufacturer fee collected pursuant to s.

13  210.0205. Moneys received from the settlement and fees and

14  deposited into the trust fund are exempt from the service

15  charges imposed under s. 215.20.

16         Section 16.  This act shall take effect on July 1,

17  2004.

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  


                                  30

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


Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright © 2000-2019 State of Florida.