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  • Florida’s direct shipping website is back up

    We previously reported that Florida took down their direct shipping website after warning that the “website will remain as a resource until the last day of Session, May 4, 2007.” Since they took the site down, the DBPR has not given any guidance on a change in policy even though the legislature did not pass any direct shipping legislation prior to the May 4th “deadline”. Well, now the direct shipping website is back up, sans the warning that it used to have:

    IMPORTANT

    This website is provided for informational purposes only and is not legally binding. The Florida Legislature is considering legislation on the wine shipment issue this legislative session and is expected to pass legislation that directly impacts wine shipment into Florida. For your convenience a link to the web pages of the Florida House of Representatives (www.myfloridahouse.gov) and the Florida Senate (www.flsenate.gov) are provided so that you might be aware of pending legislation; you should contact your legislator for additional information. This website will remain as a resource until the last day of Session, May 4, 2007.

    The DBPR confirmed yesterday via phone that there has been no change of policy and that wineries can continue to ship so long as they comply with the State of Florida and Federal laws.

    Update: The site is now down as of Monday morning, 5/29.

    Florida removes direct shipping website

    Florida removed their direct shipping website late Friday night or early Saturday morning. However, the Department of Business and Professional Regulation has given no official notice of any change in policy. Stay tuned for any developments.

    Below is an archive of the direct shipping site that was removed by Florida:

    ————————–

    Department of Business and Professional Regulation
    Division of Alcoholic Beverages and Tobacco
    Wine Shipment into Florida
    Direct Wine Shipment Statistics

    IMPORTANT

    This website is provided for informational purposes only and is not legally binding. The Florida Legislature is considering legislation on the wine shipment issue this legislative session and is expected to pass legislation that directly impacts wine shipment into Florida. For your convenience a link to the web pages of the Florida House of Representatives (www.myfloridahouse.gov) and the Florida Senate (www.flsenate.gov) are provided so that you might be aware of pending legislation; you should contact your legislator for additional information. This website will remain as a resource until the last day of Session, May 4, 2007.

    A federal court ruling on shipment of wine from out of state wineries to Floridians precludes enforcement of the ban on direct wine shipments from non-Florida wineries to Florida consumers. The ruling did not limit the state’s authority to collect taxes on wine or to enforce the prohibition of the sale of alcoholic beverages, including wine, to a person under the age of 21.

    The Department of Business and Professional Regulation remains responsible for the regulation of all alcoholic beverages in Florida.

    To ensure compliance with State of Florida and Federal laws, please review the following important information.

    Dry Counties

    Pursuant to Section 568.02, Florida Statutes, it is unlawful to sell alcoholic beverages containing more than 6.243 percent of alcohol by volume in a county that has voted against the sale of intoxicating liquors, wines, or beers. There are currently five Florida Counties to which this law is applicable: Lafayette, Liberty, Madison, Suwannee and Washington.

    Tax Information

    Sales/Use Tax: Florida law imposes a 6 percent use tax on out-of-state purchases if sales tax was not paid at the time of purchase. The use tax normally applies to items purchased outside Florida which are brought or delivered into this state and would have been taxed if purchased in Florida. Sales and use tax must be paid to the Florida Department of Revenue by consumers for any wine purchased from out of state entities. Consumers will be required to report the sales/use tax on form DR-15MO. Please review important sales/use tax information.

    Excise Tax: Excise tax must be paid to the Florida Department of Business and Professional Regulation by wineries who sell wine directly to consumers in Florida. The report of all sales from wineries and the applicable excise taxes must be submitted to the DBPR Division of Alcoholic Beverages and Tobacco by the 10th of the month for any sales made in the previous month.

    To calculate and report the excise tax applicable to the monthly sales, wineries must complete page 1 of AB&T Form 4000A-100-W, Alcoholic Beverage Distributor’s Monthly Report, for Imported Wine. The tax payments can be made by submitting a check with the monthly report for the applicable excise tax due or by means of electronic funds transfer.

    To report the previous month’s sales, wineries must complete page 2 of AB&T Form 4000A-125, Beverages Shipped To / Within Florida. The total sales for each wine category should be transferred to the tax calculation page.

    Underage Sales Information

    Florida law prohibits the sale of alcoholic beverages, including wine, to a person under the age of 21. View Section 562.11, Florida Statutes

    Additionally, Federal law requires that anyone shipping alcoholic beverages into a state must clearly mark the container for delivery only to a person 21 years of age or older and obtain a signature of the recipient who is 21 years of age or over. View Federal Law

    As a result of the Federal law, many common carriers employ guidelines to ensure compliance with State and Federal law. The following information can be reviewed for further information.

    View General Information Regarding the Regulation of Alcoholic Beverages in Florida

    View Additional Resources Regarding Federal Regulation

    Florida update: No legislation will pass by the deadline, no word from DBPR

    As an update to our previous post about Florida, no legislation will pass in the current session, which ends today. At this time, there has been no word from the Department of Business and Professional Regulation about whether they will continue to allow shipping under the current rules. It seems that nobody knows exactly what the DBPR means when they say on their “wine shipment into Florida” site that the “website will remain as a resource until the last day of Session, May 4, 2007″.

    Since the last post about this issue in Florida, Senate Bills 126 and 2282, both of which included the 250,000 capacity cap, were combined into one bill (SB 126). SB 126 is stalled in committee and will not pass in this session. After a failed attempt to amend House Bill 1217 (the bill without a cap that is favored by the wineries and consumers) with a capacity cap clause, HB 1217 is also stalled and will not pass in this session.

    We will monitor the Florida website closely and provide updates when developments occur. If the DBPR does not provide official notice of a change in policy, wineries will likely assume that nothing has changed and the current rules apply until they are otherwise notified.

    Florida may revoke wine shipping access on May 5th

    At least three bills that address wine direct shipping are pending in the Florida legislature in the current session. Senate Bill 126 (Saunders) and Senate Bill 2282 (Geller) both include restrictive “capacity caps” that would prohibit any winery that produces more than 250,000 gallons per year from shipping directly to Florida residents. House Bill 1217 (Bogdanoff) does not include any capacity caps and is based on the model direct shipping bill. Wineries and wine consumers are supporting HB 1217 while wine wholesalers are pushing the capacity caps.

    Since February of 2006, wineries have been able to ship to Florida under a determination by the Department of Business & Professional Regulation (DBPR) that helped bring Florida into compliance with Granholm until more permanent legislation was passed. However, the DBPR is now hinting on their wine direct shipping website that if legislation is not passed by May 5th, they may revoke the right to ship wine to Florida until legislation is finalized.

    IMPORTANT

    This website is provided for informational purposes only and is not legally binding. The Florida Legislature is considering legislation on the wine shipment issue this legislative session and is expected to pass legislation that directly impacts wine shipment into Florida. For your convenience a link to the web pages of the Florida House of Representatives (www.myfloridahouse.gov) and the Florida Senate (www.flsenate.gov) are provided so that you might be aware of pending legislation; you should contact your legislator for additional information. This website will remain as a resource until the last day of Session, May 4, 2007.

    A federal court ruling on shipment of wine from out of state wineries to Floridians precludes enforcement of the ban on direct wine shipments from non-Florida wineries to Florida consumers. The ruling did not limit the state’s authority to collect taxes on wine or to enforce the prohibition of the sale of alcoholic beverages, including wine, to a person under the age of 21.

    The Department of Business and Professional Regulation remains responsible for the regulation of all alcoholic beverages in Florida.

    Current ruling:
    MyFlorida.com

    Bill texts:
    Senate Bill 2282 (Geller)
    House Bill 1217 (Bogdanoff)
    Senate Bill 126 (Saunders)

    Related articles:
    Sun Sentinel
    Business Wire (Free the Grapes!)

    Tampa Bay Business Journal
    South Florida Business Journal
    Jacksonville Business Journal

    Free The Grapes! legislative update

    Free the Grapes! recently provided an update on direct to consumer shipping legislation and litigation for 2007. As you can see below, many changes are likely to come this year.

    LEGISLATIVE UPDATE

    Wine Institute provided the following summary of direct shipping legislation around the country.

    Alaska –House Bill 34 (Ledoux) would specifically allow in-state wineries to make DTC shipments to AK consumers, with a 5-gallon per shipment limit. Status: passed House 2/14/07 and moves to Senate Community and Regional Affairs and to Senate Labor and Commerce.

    Arkansas – Senate Bill 592 (Whitaker), a positive bill, creates a DTC shippers permit for wineries. Provisions include: 24 cases annually, $10 permit application fee, sales and excise tax payments annually. Status: Introduced.

    Connecticut — Senate Bill 1204 (Joint Committee on General Law) makes a change to the time period specified in the DTC shipping statute from 60 days to 2 months for the 5 gallon limit. Status: Passed out of General Law on 2/27/07.

    Florida – Shipping into FL is currently legal. Senate Bill 126 (Saunders) and SB 2282 (Geller) would implement a version of the industry’s model direct shipping bill, but both bills include a discriminatory 250,000 gallon capacity cap opposed by consumers and wineries. Alternatively, House Bill 1217 (Bogdanoff) does not include a cap.

    Georgia – House Bill 159 (Willard) and its companion Senate Bill 56 (Untermann) create a DTC shipping license for all wineries (and retailers in SB56), repealing existing law which prohibits wineries with a wholesaler from obtaining a license. Other provisions: $100 permit fee, 24-case annual limit, sales and excise taxes to be collected. This bill is getting industry support.

    The wholesaler’s House Bill 393 (Stephens) includes a discriminatory 100,000 gallon capacity cap, creates a new “domestic farm winery” using at least 50% GA grapes, and a national “farm winery” definition of a winery under 100,000 gallons that uses at least 40% grapes from its state of domicile. Such wineries can obtain a DTC shipping permit to ship up to 20 cases of wine per consumer annually. Status: Favorably reported out of House Regulated Industries Committee on 2/21/07.

    Hawaii – Two bills, House Bill 1093 (Say) and Senate bill 1019 (Taniguchi), appear to be dead in committee. They would have reduced consumer choice by limiting shipments under the existing DTC shipping permit to 6 cases annually per household from an aggregate of wineries (current system is 6 cases per winery).

    Idaho – House Bill 11 would modify the permit legislation passed in 2006 to allow wholesalers and retailers in Idaho and other states to ship wine directly to consumers. Status: Referred to House Revenue and Taxation on 1/22/07.

    Illinois – House Bill 429 (Acevedo) is similar to last year’s transition bill that creates a winery-only DTC shipping permit to replace the existing reciprocity law. Provisions include a tiered permit fee based on size of the winery from $150 to $1,000, 12 cases annually, with sales and excise tax collection. Free the Grapes! is encouraging inclusion of retailers in the bill. Status: Passed from House Consumer Protection Committee on 2/20/07 by vote of 11-0. There is also a similar bill in the Senate (SB123, Silverstein).

    Iowa – ABC hearings were held on 2/24/07. The ABC recommended to legislators that the reciprocity statute be replaced with a DTC shipping permit system. Other proposals addressed at the hearing include changing the local winery preferential tax rate, changes in Iowa wine labeling rules for IA wineries, and changes to existing designation of 5% of wine tax revenues to Iowa Wine Development Board. Status: Awaiting action by legislature.

    Maine – Senate Bill 54 (Bromley) creates DTC shippers permit for wine & beer. Winery or retailer obtains a COA and nonresident shipper’s license ($100 fee). Annual sales and excise tax payments required. Status: Introduced.

    Missouri – House Bill 944 (Cooper) creates a DTC permit for wineries to ship 2 cases per month, and requires permit and tax collection. Carriers must obtain permit. Amendment to add retailers drafted on 2/26/07. Status: Introduced.

    Montana – Senate Bill 524 (Wanzenried) proposes changes such as adding “purposely, knowingly or negligently” language to the connoisseur’s license, which does not currently work for consumers or wineries. Status: Reported “Do Pass” from Senate Business, Labor and Economic Affairs on 2/21/07.

    New Mexico – House Bill 1018 (Silva) creates DTC shipping permit for wineries and retailers to replace reciprocity. Provisions: $50 fee, pay excise and Gross Receipts Tax, 24 cases annually. Status: Passed favorably on 9-1 vote from House Business & Industries Committee on 2/25/07. Companion bill is Senate Bill 1047 (Taylor).

    New York – Interestingly, Assembly Bill 4345 (Destito) replicates the wine DTC shipping program for beer manufacturers and beer wholesalers. Free the Grapes! has no activities or campaigns concerning this bill because it deals with beer and not wine. Status: Introduced.

    North Dakota – Senate Bill 2135 (Senate Finance and Taxation Committee) makes changes to existing DTC shipping statute. Provisions: increases amount of shipments to 3 cases per month (currently 1 case per month), removes “reciprocal” provision passed in 2005 but never implemented. Removed vague language that could have been interpreted to allow an in-state winery to also hold a wholesalers license – clarifies no self-distribution, which was believed to be the case by in-state industry at this time anyway. Status: Passed Senate 1/23/07 and now to House Finance and Taxation.

    Oklahoma – Several bills in the House and Senate have been introduced, several of which request a voter referendum to allow OK consumers to receive DTC shipments from out-of-state wineries, but a permit system has not been outlined.

    Oregon – House Bill 2171 (Minnis) transitions OR from a reciprocal DTC to a permit system. Would cover wineries only. Status: Introduced. This is the OLCC bill. House Bill 2488 (House Business and Labor Committee) is similar, allowing wineries, retailers and “associations” to obtain permits. $50 fee. Excise taxes to be paid. Unlimited shipments. Status: Introduced.

    Pennsylvania – House Bill 255 (Godshall) is a positive DTC shipping permit bill with a $100 registration fee, 2 cases per month to any individual. Taxes collected. Status: Introduced.

    Tennessee – House Bill 1850 (Todd) creates a DTC shipping permit for 2 cases annually. Provisions: $100 fee, annual reports, annual excise and sales tax payments. Status: Introduced. Companion bill in Senate (1977, Stanley).

    Virginia – Senate Bill 984 (Edwards) creates an “internet wine retailer license” to allow sales by a retailer having no physical premise. Status: Passed both House and Senate and sent to Governor on 2/22/07.

    West Virginia – Senate Bill 712 (Kessler) is an omnibus liquor bill, that among many provisions, includes creation of a DTC shipping permit for wineries, wholesalers and retailers. Provisions include: $150 permit fee, 2 cases per month, sales and excise tax payments. Removes self distribution privilege for instate wineries. Original 50% tax increase has been removed. Creates a “wine spa” license, a wine B&B license, and a “mini” winery license to replace farm winery permits.

    LITIGATION UPDATE

    Texas — The Specialty Wine Retailers Association (SWRA, www.specialtywineretailers.org) litigation in Texas to address that state’s discriminatory stance between in-state and out-of-state retailers is in its discovery phase. Until the case is decided, out-of-state retailers may continue to ship to Texas consumers.

    Massachusetts — The Family Winemakers of California reports that its lawsuit against the State of Massachusetts seeking to overturn the 30,000 gallon production cap in the DTC law is still in the discovery phase. Once discovery is complete both sides will be preparing motions for summary judgment for later in the year.

    HB 247 passes Florida House

    As you recall, Florida is currently open for wine direct shipping under the honor system. In the meantime, the Florida House and Senate are busy hashing out the details of what will become the permanent legislation in the Sunshine State.

    HB 247 passed the Florida House Wednesday and now awaits the Senate. This bill would establish a cap where wineries that produce more than 250,000 gallons would not be eligible for a direct shipping license in Florida. According to the South Florida Sun-Sentinel, the cap was inserted as a result of a “Big-money lobbying campaign” led by non other than Miami-based Southern Wine and Spirits, who “has given $70,000 to the Republican Party of Florida so far this election cycle”.

    A separate bill (SB 282) that does not include a production cap is ready for floor consideration in the Senate. The Federal Trade Commission recently weighed in on SB 282 with their Comment on Proposed Direct Shipment Legislation . This letter is worth reading in its entirety. Here is their conclusion (emphasis added):

    Based on our review, FTC staff believes that, if enacted, SB 282 would enhance consumer welfare and allow Florida to meet its other public policy goals. By allowing interstate direct shipping, SB 282 likely would allow Florida residents to purchase both a greater variety of wines and many wines at lower prices. In addition, by requiring manufacturers to comply with certain regulatory requirements, SB 282 would allow Florida to prevent shipments to minors and to collect taxes on direct shipments. However, if SB 282 is amended to prohibit direct shipping by wineries producing more than 250,000 gallons of wine annually, as you suggest is being considered, such limitation likely would significantly reduce the benefits to competition and consumers that SB 282 otherwise would provide. We urge the Florida Legislature to take into account these likely effects on consumers when considering SB 282.

    This letter makes a number of good points and also cites some great references. I was particularly interested in their argument that the 250,000 gallon (just over 100,000 case) cap would “significantly reduce the benefits to competition and consumers”. They mention that the cap would exclude in excess of 150 wineries in California alone

    Although we take no position regarding the constitutionality of such a prohibition in light of the Granholm decision, we believe that such a prohibition likely would significantly reduce the benefits to competition and consumers that SB 282 otherwise would provide. In particular, limiting direct shipping in such a manner would reduce the variety of wines that SB 282 would allow Florida consumers to access directly. As discussed in more detail above, direct shipping allows consumers to purchase wines that may not be available in nearby bricks-and-mortar retail stores due to, among other things, limited shelf space at such stores. Although FTC staff has not undertaken a rigorous empirical analysis of the effect of a production-based limitation, information readily available to staff demonstrates the impact on variety that such a limitation would have. For example, a review of the survey of most popular wines of 2005 compiled by Wine & Spirits magazine � the same survey utilized in the 2002 and 2004 McLean Studies discussed above � indicates that 25 of the 50 most popular wines are produced by wineries with production in excess of 250,000 gallons per year. Thus, the production limitation being considered would prevent Florida consumers from direct access to half of the most popular wines identified in this prominent survey.

    Although the FTC won’t comment on the constitutionality of the 250,000 gallon proposed cap – many other states have also introduced “small-farm” production caps – many opponents of such caps have argued that they will not hold up if challenged in court.