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Senate Bill 2676

Senate Bill sb2676

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2004                                  SB 2676

    By Senator Haridopolos





    26-1518-04                                         See HB 1459

  1                      A bill to be entitled

  2         An act relating to transportation and sale of

  3         cigarettes; amending s. 210.01, F.S.; revising

  4         and providing definitions; amending s. 210.05,

  5         F.S.; providing stamp requirements for

  6         cigarettes in transport; providing stamp

  7         exceptions for certain cigarettes; requiring

  8         transporters of certain cigarettes to submit

  9         certain reports; amending s. 210.06, F.S.;

10         revising requirements for and limitations on

11         the affixation of stamps; providing

12         requirements with respect to receipt,

13         possession, storage, and transport of unstamped

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

15         requiring manufacturers, importers,

16         distributing agents, dealers, and retail

17         dealers to hold a current, valid permit to

18         sell, distribute, or receive cigarettes;

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

20         filing guidelines for certain person shipping

21         unstamped cigarette packages; authorizing

22         certain law enforcement officials to inspect

23         certain shipping vehicles; requiring wholesale

24         dealers to submit certain reports; providing

25         criteria for reports; authorizing the Division

26         of Alcoholic Beverages and Tobacco to adopt

27         rules; providing for access to certain records;

28         amending s. 210.12, F.S.; authorizing the state

29         to claim certain property and materials from

30         certain dealers and retailers who attempt to

31         defraud the state; authorizing the destruction

                                  1

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    Florida Senate - 2004                                  SB 2676
    26-1518-04                                         See HB 1459




 1         of certain cigarettes; amending s. 210.15,

 2         F.S.; providing criteria for permit

 3         application; prohibiting issuance, maintenance,

 4         or renewal of certain permits for certain

 5         applicants; providing guidelines for permit

 6         application denial; amending s. 210.18, F.S.;

 7         expanding the group of violators subject to

 8         criminal liability; prohibiting the sale or

 9         possession for sale of counterfeit cigarettes;

10         providing penalties; creating s. 210.181, F.S.;

11         providing civil penalties for failure to comply

12         with certain duties or pay certain taxes;

13         providing an effective date.

14  

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

16  

17         Section 1.  Subsections (6) and (7) of section 210.01,

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

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

20         210.01  Definitions.--When used in this part the

21  following words shall have the meaning herein indicated:

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

23  or outside this state who sells cigarettes to retail dealers

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

25  who operates more than one cigarette vending machine located

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

27  include any cigarette manufacturer, export warehouse

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

29  5712 if such person sells or distributes cigarettes in this

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

31  

                                  2

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    Florida Senate - 2004                                  SB 2676
    26-1518-04                                         See HB 1459




 1  current permits under s. 210.15 or to an export warehouse

 2  proprietor or another manufacturer.

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

 4  outside this state other than a wholesale dealer engaged in

 5  the business of selling cigarettes, including persons licensed

 6  pursuant to s. 569.003.

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

 8  be placed on cigarette packages that evidences payment of the

 9  tax on cigarettes under s. 210.02.

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

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

12  directly or indirectly, a finished cigarette for sale or

13  distribution.

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

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

16  assembles, processes, or labels a finished cigarette.

17         (22)  "Counterfeit cigarettes" means cigarettes that

18  have false manufacturing labels, tobacco product packs without

19  tax stamps or with counterfeit tax stamps, or any combination

20  thereof.

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

22  sold under the same trademark and differentiated from one

23  another by means of additional modifiers or descriptors,

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

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

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

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

28  other indicia of product identification identical or similar

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

30  cigarettes.

31  

                                  3

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    Florida Senate - 2004                                  SB 2676
    26-1518-04                                         See HB 1459




 1         Section 2.  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)  On or before the 10th day of each month, a person

17  who transports or causes to be transported from this state

18  cigarettes for sale in another state shall submit to the

19  division a report identifying the quantity and brand family of

20  each brand of the cigarettes transported or caused to be

21  transported in the preceding calendar quarter and the name and

22  address of each recipient of the cigarettes.

23         (d)  For purposes of this section, the term "person"

24  means an individual, partnership, committee, association,

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

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

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

28  directly or indirectly, by such person.

29         Section 3.  Subsection (1) of section 210.06, Florida

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

31  section, to read:

                                  4

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    Florida Senate - 2004                                  SB 2676
    26-1518-04                                         See HB 1459




 1         210.06  Affixation of stamps; presumption.--

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

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

 4  such cigarettes such, stamps as are required under this

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

 6  outside this state shall affix such stamps before the shipment

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

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

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

10  otherwise disposed of in the state.

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

12  packages intended for sale or distribution to consumers

13  subject to the tax imposed under s. 210.02, including

14  cigarettes subject to reduced state tax under s. 210.04(4)(b).

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

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

17  a manufacturer pursuant to federal regulations.

18         (c)  Dealers may apply stamps only to cigarette

19  packages received directly from a manufacturer or importer of

20  cigarettes who possesses a valid and current permit under 26

21  U.S.C. s. 5712.

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

23  other than a dealer that receives unstamped cigarette packages

24  directly from a cigarette manufacturer or importer in

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

26  possess an unstamped cigarette package. Dealers shall be

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

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

29  distribution outside this state. If a dealer maintains stocks

30  of unstamped cigarette packages, such unstamped packages shall

31  be stored separately from stamped product packages. No

                                  5

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    Florida Senate - 2004                                  SB 2676
    26-1518-04                                         See HB 1459




 1  unstamped cigarette packages shall be transferred by a dealer

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

 3  another person within this state.

 4         Section 4.  Section 210.085, Florida Statutes, is

 5  created to read:

 6         210.085  Transactions only with permitted

 7  manufacturers, importers, distributing agents, dealers, and

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

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

10  doing business within this state, including on any tribal

11  lands located within the borders of this state, only if such

12  person is a dealer with a valid, current permit under s.

13  210.15. A dealer may sell or distribute cigarettes to a person

14  located or doing business within this state, including on any

15  tribal lands located within the borders of this state, only if

16  such person is a dealer or retail dealer with a valid, current

17  permit under s. 569.003. A dealer may obtain cigarettes only

18  from a manufacturer or importer who possesses a valid, current

19  permit under 26 U.S.C. s. 5712 or from a distributing agent or

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

21  dealer may obtain cigarettes only from a manufacturer or

22  dealer with a valid, current permit under s. 210.15.

23         Section 5.  Subsections (1) and (2) of section 210.09,

24  Florida Statutes, are amended, and subsection (6) is added to

25  that section, 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

                                  6

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    Florida Senate - 2004                                  SB 2676
    26-1518-04                                         See HB 1459




 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 dealer holding a valid,

 7  current permit pursuant to s. 210.15 shall first file with the

 8  division a notice of such shipment. This paragraph shall not

 9  apply to any common or contract carrier that is transporting

10  cigarettes through this state to another location outside this

11  state under a proper bill of lading or freight bill that

12  states the quantity, source, and destination of such

13  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         (2)(a)  Except as otherwise provided in this

22  subsection, the division is authorized to prescribe and

23  promulgate by rules and regulations, which shall have the

24  force and effect of the law, such records to be kept and

25  reports to be made to the division by any distributing agent,

26  wholesale dealer, retail dealer, common carrier, or any other

27  person handling, transporting or possessing cigarettes for

28  sale or distribution within the state as may be necessary to

29  collect and properly distribute the taxes imposed by s.

30  210.02. All reports shall be made on or before the 10th day of

31  the month following the month for which the report is made,

                                  7

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    Florida Senate - 2004                                  SB 2676
    26-1518-04                                         See HB 1459




 1  unless the division by rule or regulation shall prescribe that

 2  reports be made more often.

 3         (b)  Each wholesale dealer shall submit to the division

 4  monthly reports setting forth the following information,

 5  itemized or submitted separately for each place of business of

 6  such dealer:

 7         1.  The quantities of cigarettes, by brand family, on

 8  hand both at the beginning and end of the reporting period.

 9         2.  The quantities of cigarettes, by brand family and

10  transaction, that were received during the reporting period

11  and the name and address of each person from whom those

12  products were received.

13         3.  The quantities of cigarettes, by brand family and

14  transaction, distributed or shipped during the reporting

15  period, other than sales directly to consumers, and the name

16  and address of each person to whom those products were

17  distributed or shipped.

18         (c)  Manufacturers and importers shipping cigarettes

19  into or within this state shall file a monthly report with the

20  division containing the information regarding such cigarettes

21  set forth in paragraph (b).

22         (d)  The reports submitted pursuant to paragraphs (a),

23  (b), and (c) shall be further itemized to disclose the

24  quantity of reported cigarettes bearing tax stamps of this

25  state, stamps of another state, and unstamped cigarettes,

26  itemized to show, if known, the portion of the unstamped

27  cigarettes that are intended for sale or distribution in this

28  state. Dealer reports shall include, if applicable, the

29  quantity of tax stamps of this state that were not affixed to

30  cigarettes and that were on hand at the beginning and end of

31  the reporting period, the quantity of each type of stamp of

                                  8

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    Florida Senate - 2004                                  SB 2676
    26-1518-04                                         See HB 1459




 1  this state received during the reporting period, and the

 2  quantity of each type of stamp of this state applied during

 3  the reporting period.

 4         (e)  The division may adopt rules requiring such

 5  additional information in the monthly reports as is necessary

 6  or appropriate for purposes of enforcing the provisions of

 7  this part.

 8         (6)  The United States Secretary of the Treasury or his

 9  or her designee shall have access to records and reports

10  required by this section. The division may share such records

11  and reports with law enforcement officials of this state, the

12  Federal Government, or other states.

13         Section 6.  Subsection (1) of section 210.12, Florida

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

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

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

17  that section, to read:

18         210.12  Seizures; forfeiture proceedings.--

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

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

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

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

23  otherwise held in violation of the requirements of this

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

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

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

27  thereto the identification sticker required by the provisions

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

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

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

31  cigarette tax stamp or meter impression of the stamp affixed

                                  9

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    Florida Senate - 2004                                  SB 2676
    26-1518-04                                         See HB 1459




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

 2  division, its duly authorized representative, any sheriff or

 3  deputy sheriff, or any police officer.

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

 5  personal property on the premises of any dealer or retail

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

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

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

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

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

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

12  the state.

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

14  to the state under this part shall be destroyed.

15         Section 7.  Subsection (1) of section 210.15, Florida

16  Statutes, is amended to read:

17         210.15  Permits.--

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

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

20  distributing agent, or wholesale dealer of cigarettes deal in

21  cigarettes as a distributing agent, wholesale dealer, or

22  exporter within this state shall file with the division an

23  application for a cigarette permit for each place of business

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

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

26  business is located with the Division of Alcoholic Beverages

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

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

29  the name under which the applicant transacts or intends to

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

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

                                  10

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    Florida Senate - 2004                                  SB 2676
    26-1518-04                                         See HB 1459




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

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

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

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

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

 6  persons constituting the association, and if a corporation,

 7  the names and addresses of the principal officers thereof and

 8  any other information prescribed by the division for the

 9  purpose of identification. The application shall be signed and

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

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

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

13  by an executive officer thereof or by any person specifically

14  authorized by the corporation to sign the application, to

15  which shall be attached the written evidence of this

16  authority. The cigarette permit for a distributing agent shall

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

18  charged.

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

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

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

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

23  upon payment of this annual permit fee.

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

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

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

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

28  to corporations shall be issued only to corporations whose

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

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

31  

                                  11

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    Florida Senate - 2004                                  SB 2676
    26-1518-04                                         See HB 1459




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

 2  or corporation, any law to the contrary notwithstanding.

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

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

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

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

 7  of the ownership interests in the applicant:

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

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

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

11         3.  Has been convicted of selling stolen or counterfeit

12  cigarettes, receiving stolen cigarettes, or being involved in

13  the counterfeiting of cigarettes; or

14         4.  Has been convicted in this state, any other state,

15  or the United States of any offense designated as a felony by

16  such state or the United States within 15 years prior to

17  applying for a permit to any person who has been convicted

18  within the past 5 years of any offense against the cigarette

19  laws of this state or who has been convicted in this state,

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

21  of any offense designated as a felony by such state or the

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

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

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

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

26  with a crime.

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

28  distributing agent, wholesale, or exporter permit to any

29  person, firm, or corporation whose permit under the cigarette

30  law has been revoked or to any corporation, an officer of

31  which has had his or her permit under the cigarette law

                                  12

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    Florida Senate - 2004                                  SB 2676
    26-1518-04                                         See HB 1459




 1  revoked, or to any person who is or has been an officer of a

 2  corporation whose permit has been revoked under the cigarette

 3  law. Any permit issued to a firm or corporation prohibited

 4  from obtaining such permit under the cigarette law shall may

 5  be revoked by the division.

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

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

 8  the applicant shall file a set of fingerprints on forms

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

10  of fingerprints for any person or persons interested directly

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

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

13  the applicant or any person interested with the applicant,

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

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

16  definition of persons to whom a distributing agent, wholesale

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

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

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

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

21  officers of the corporation are required to file said

22  fingerprints. The cigarette permit for a wholesale dealer or

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

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

25  issuing such permit.

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

27  permit for a wholesale dealer or exporter shall be renewed

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

29  $100, on or before July 1, upon making application to the

30  division and upon payment of the annual renewal fee.

31  

                                  13

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    Florida Senate - 2004                                  SB 2676
    26-1518-04                                         See HB 1459




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

 2  agree that their places of business or vehicles transporting

 3  cigarettes shall always be subject to be inspected and

 4  searched without a search warrant for the purpose of

 5  ascertaining that all provisions of this part are complied

 6  with by authorized employees of the division and also by

 7  sheriffs, deputy sheriffs, and police officers during business

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

 9  the permittee or other persons. Retail cigarette dealers and

10  manufacturers' representatives, by dealing in cigarettes,

11  agree that their places of business or vehicles transporting

12  cigarettes shall always be subject to inspection and search

13  without a search warrant for the purpose of ascertaining that

14  all provisions of this part are complied with by authorized

15  employees of the division and also by sheriffs, deputy

16  sheriffs, and police officers during business hours or other

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

18  manufacturers' representatives or other persons.

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

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

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

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

23  industrial caterer, shall be paid into the General Revenue

24  Fund unallocated. Cigarettes may be purchased for retail

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

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

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

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

29  purpose of resale.

30  

31  

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    Florida Senate - 2004                                  SB 2676
    26-1518-04                                         See HB 1459




 1         Section 8.  Subsections (2), (3), and (6) of section

 2  210.18, Florida Statutes, are amended, and subsection (9) is

 3  added to that section, to read:

 4         210.18  Penalties for tax evasion; reports by

 5  sheriffs.--

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

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

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

 9  part or the rules adopted and regulations promulgated by the

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

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

12  775.083. Any person wholesale or retail dealer who has been

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

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

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

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

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

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

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

20  used in meter machines prescribed by the division under the

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

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

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

24  counterfeited any such stamp or die; or knowingly and

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

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

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

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

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

30  775.082, s. 775.083, or s. 775.084.

31  

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    Florida Senate - 2004                                  SB 2676
    26-1518-04                                         See HB 1459




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

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

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

 4  removing, depositing, or concealing of, any unstamped

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

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

 7  775.082 or s. 775.083. In lieu of the penalties provided in

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

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

10  authorized under s. 210.02 on the unstamped cigarettes.

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

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

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

14  removing, depositing, or concealing of, any unstamped

15  cigarettes in excess of 50 cartons is presumed to have

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

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

18  775.082, s. 775.083, or s. 775.084.

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

20  possessing not in excess of three cartons of such cigarettes

21  purchased by such possessor outside the state in accordance

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

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

24  cigarettes were purchased outside the state and in accordance

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

26  be upon the possessor of such cigarettes.

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

28  sale or possession for sale of counterfeit cigarettes by any

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

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

31  

                                  16

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






    Florida Senate - 2004                                  SB 2676
    26-1518-04                                         See HB 1459




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

 2  law enforcement agency and shall be punishable as follows:

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

 4  than two cartons of cigarettes or the equivalent amount of

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

 6  $1,000 or five times the retail value of the cigarettes

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

 8  5 years, or both.

 9         2.  A subsequent violation with a total quantity of

10  less than two cartons of cigarettes or the equivalent amount

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

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

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

14  5 years, or both, and shall also result in the revocation by

15  the division of the permit of the manufacturer, importer,

16  distributing agent, wholesale dealer, or retail dealer.

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

18  or more cartons of cigarettes or the equivalent amount of

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

20  $2,000 or five times the retail value of the cigarettes

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

22  5 years, or both.

23         2.  A subsequent violation with a quantity of two

24  cartons of cigarettes or more or the equivalent amount of

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

26  $50,000 or five times the retail value of the cigarettes

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

28  5 years, or both, and shall also result in the revocation by

29  the division of the permit of the manufacturer, importer,

30  distributing agent, wholesale dealer, or retail dealer.

31  

                                  17

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






    Florida Senate - 2004                                  SB 2676
    26-1518-04                                         See HB 1459




 1  For purposes of this subsection, any counterfeit cigarettes

 2  seized by the division shall be destroyed. 

 3         Section 9.  Section 210.181, Florida Statutes, is

 4  created to read:

 5         210.181  Civil penalties.--

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

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

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

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

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

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

12  cigarettes involved, whichever is greater.

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

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

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

16  penalty of five times the unpaid tax due.

17         Section 10.  This act shall take effect upon becoming a

18  law.

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  18

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

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