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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.

Prorated fees in Honolulu

Most of our readers know that Hawaii started enforcing its direct wine shipment permit law on January 1, 2007 and moved into the “blue” category on the state-by-state direct shipping map. There are 4 counties in Hawaii and each county requires wineries to complete its own permit application and pay a fee. The annual permit fee for the counties of Hawaii, Kauai and Maui are $48. The annual permit fee for the County of Honolulu is $120.00. Now for the good news – The annual permit fee of $120.00 is prorated ($10.00 per month); for example, wineries applying for a permit in March 2007 will only pay $90.00. Thus far, the Honolulu County direct shipper’s permit is the only permit with a prorated fee.

Tips for Completing the Hawaii Tax Applications

As of January 1, 2007 Hawaii is officially operating under the permit law for direct wine shipments. This means that wineries can no longer ship under the reciprocity law and must have an approved direct shipper permit for each county. However, wineries must have a General Excise Tax License (similar to sales tax) and a liquor license from Hawaii’s Department of Taxation. I have outlined some steps that will hopefully simplify the application process and as always the forms are available on the Wine Institute website.

Wineries must complete the form BB-1 02, NOT BB-1 UC-1. The forms are almost identical except that UC-1 is for businesses that have employees in the state of Hawaii. Lynn confirmed that wineries must select General Excise when completing the application. She also thinks wineries should select Liquor on the same application. The General Excise Application fee is $20.00 and the Liquor Application fee is $2.50.

Wineries will be mailed the Combined Monthly Return of Liquor Tax and Report of Wine Gallons and Dollar Volume of Taxable Sales or Uses form (Form M-18) to complete each month and the General Excise Forms once their application for General Excise/Liquor is approved.

Question 6 on the application is the date business began in Hawaii. Wineries can put the date they are completing the application or the date they expect to be legally approved to ship. However, if a winery lists 1/10/06 on the application they will have to include January on their initial tax report. The excise tax reporting forms will be mailed to wineries in booklet form. Wineries can select to pay their excise taxes monthly, quarterly or semi-annually.

2007 Hawaii Permits Available

Hawaii recently made available the new permit forms for shipping directly to consumers. Even though Hawaii passed a new limited-direct model that technically went into effect on July 1st, 2006, most wineries continued to ship under the previous reciprocity rules because Hawaii did not give clear guidance on how to get permits and report under the new rules. Most hoped that the new legislation would mean a uniform, state-wide permit and reporting system, but effective January 1st, 2007, wineries must receive a separate permit from each Hawaii county before they make shipments in 2007. They must also register with the Hawaii Department of Taxation by completing the State of Hawaii Basic Business Application. Permitted wineries can ship up to six nine-liter cases to any household on an annual basis. Below are the permits for each of the four counties.

New laws take effect in four states on July 1st

Hello again, back in the swing of things after a nice two week break. We’ve seen some big developments in the world of wine direct shipping over the last two weeks that we’ll look at in more detail over the next few weeks.

July 1st is a huge day for direct shippers as new laws take effect in Washington, Idaho, and Colorado. We also just learned that HB 1968 was signed by the Governor of Hawaii on Thursday and will also take effect on July 1st. We’ll give you the full breakdown on the new rules and permit requirements in each of the these states this week. It is important to note that all four were previously “reciprocal” states and are now moving to a limited direct model to comply with the Granholm ruling. By my count, that will leave only seven reciprocal states (Illinois, Iowa, Missouri, New Mexico, Oregon, West Virginia, and Wisconsin) after July 1st.

We will also look at other direct shipping developments around the country in the near future, including legislation in Kansas and Pennsylvania, the appeal of the Costco ruling in Washington, and the lawsuits filed in California to allow the direct shipment of wine by retailers.