AB249: Bill Text

AB249,11,12 139.34 (4) A separate permit shall be required of and issued to each class of permittee and the holder of any permit shall perform only the operations thereby authorized. Such permit shall not be transferable from one person to another or from one premises to another. A separate permit shall be required for each place where cigarettes are stamped or where cigarettes are stored for sale at wholesale or, through vending machines or multiple retail outlets, or by direct marketing.

AB249, s. 35 Section 35. 139.34 (6) of the statutes is amended to read:

AB249,11,17 139.34 (6) A vending machine operator or a multiple retailer may acquire unstamped cigarettes from the manufacturers thereof and affix the stamps to packages or other containers only if the vending machine operator or multiple retailer also holds a permit as a distributor or direct marketer.

AB249, s. 36 Section 36. 139.34 (8) of the statutes is amended to read:

AB249,11,23 139.34 (8) The holder of a warehouse permit is entitled to store cigarettes on the premises described in the permit. The warehouse permit shall not authorize the holder to sell cigarettes. Unstamped cigarettes stored in a warehouse for a manufacturer, direct marketer, or distributor may be delivered only to a person holding a permit as a manufacturer, direct marketer, or distributor.

AB249, s. 37 Section 37. 139.345 of the statutes is created to read:

AB249,12,6 139.345 Direct marketing. (1) (a) No person may sell cigarettes to consumers in this state as a direct marketer or solicit sales of cigarettes to consumers in this state by direct marketing unless the person has obtained a permit from the department to make such sales or solicitations. The person shall file an application for a permit under this subsection with the department, in the manner prescribed by the department, and shall submit the following fee with the application:

AB249,12,8 1. If the person sells no more than 30,000 cigarettes annually to consumers in this state by direct marketing, $1,000.

AB249,12,10 2. If the person sells more than 30,000 but less than 600,001 cigarettes annually to consumers in this state by direct marketing, $5,000.

AB249,12,12 3. If the person sells more than 600,000 cigarettes annually to consumers in this state by direct marketing, $10,000.

AB249,12,13 (b) A permit issued under par. (a) expires on December 31 of each year.

AB249,12,23 (c) The department may not issue a permit to a person under par. (a) unless the person certifies to the department that the person shall acquire stamped cigarettes from a licensed wholesaler or distributor or unstamped cigarettes from the manufacturer thereof or from the first importer of record thereof, pay the tax imposed under this subchapter on all unstamped cigarettes and affix stamps to the cigarette packages or containers as provided under s. 139.32 (1), store such packages or containers, and sell only such packages or containers to consumers in this state by direct marketing; or purchase cigarettes from a distributor, to the packages or containers of which stamps have been affixed as provided under s. 139.32 (1), and sell only such packages or containers to consumers in this state by direct marketing.

AB249,13,6 (d) No person may be issued a permit under this subsection unless the person certifies to the department, in the manner prescribed by the department, that all cigarette sales to consumers in this state shall be credit card or personal check transactions; that the invoices for all shipments of cigarette sales from the person shall bear the person's name and address and the permit number of the permit ultimately issued under this subsection; and that the person shall provide the department any information the department considers necessary to administer this section.

AB249,13,9 (2) (a) No person may purchase tax stamps in excess of the number of cigarette sales specified in his or her permit under sub. (1) (a) unless the person pays the permit fee under sub. (1) (a) that is applicable to the excess amount.

AB249,13,15 (b) No person may sell cigarettes in excess of the number of cigarette sales specified in his or her permit under sub. (1) (a) unless the person pays the permit fee under sub. (1) (a) that is applicable to the excess sales. Any person who sells cigarettes in excess of the number of cigarette sales specified in his or her permit shall pay a penalty to the department of $5,000 or an amount that is equal to $50 for every 200 cigarettes, or fraction of 200 cigarettes, whichever is greater.

AB249,13,19 (3) (a) No person may sell cigarettes to consumers in this state by direct marketing unless the tax imposed under s. 139.31 (1) is paid on such cigarettes and stamps are affixed to the cigarette packages or containers as provided under s. 139.32.

AB249,13,21 (b) No person may sell cigarettes to consumers in this state by direct marketing unless the tax imposed under s. 77.52 or 77.53 is paid on the sale of such cigarettes.

AB249,13,24 (4) No person may sell cigarettes to a consumer in this state by direct marketing unless the person verifies the consumer's identity and that the consumer is at least 18 years of age by any of the following methods:

AB249,14,2 (a) The person uses a database, approved by the department, that includes information based on public records to verify the consumer's age and identity.

AB249,14,8 (b) The person receives from the consumer, at the time of purchase, a notarized copy of a government issued identification, the name specified on the identification matches the name of the consumer, and the birth date on the identification verifies that the purchaser is at least 18 years of age. In this paragraph, "government issued identification" includes a valid driver's license, state identification card, passport, or military identification.

AB249,14,10 (c) The person uses a mechanism, other than a mechanism under par. (a) or (b), for verifying the age and identity of a consumer that is approved by the department.

AB249,14,15 (5) Any person who, without having a valid permit under sub. (1), sells or solicits sales of cigarettes to consumers in this state by direct marketing shall pay a penalty to the department of $5,000 or an amount that is equal to $50 for every 200 cigarettes, or fraction of 200 cigarettes, sold to consumers in this state by direct marketing, whichever is greater.

AB249,14,18 (6) (a) No sale of cigarettes to a consumer in this state by direct marketing may exceed 10 cartons for each invoice or 20 cartons in a 30 day period for each purchaser or address.

AB249,14,22 (b) Any person who sells cigarettes that exceed the maximum amounts under par. (a) shall pay a penalty to the department of $5,000 or an amount that is equal to $50 for every 200 cigarettes, or major fraction of 200 cigarettes, sold above the maximum amounts, whichever is greater.

AB249,15,2 (c) Any person who purchases cigarettes that exceed the maximum amounts under par. (a) shall apply for a permit under s. 139.34 and shall pay a penalty to the department of $25 for every 200 cigarettes, or fraction of 200 cigarettes, purchased above the maximum amounts.

AB249,15,4 (7) No cigarettes may be shipped to a person who is under 18 years of age and no cigarettes may be shipped to a post-office box.

AB249,15,7 (8) All revenue collected from permits and penalties under this section shall be credited to the appropriation account under s. 20.566 (1) (gc) to enforce and administer this section.

AB249, s. 38 Section 38. 139.35 (1) of the statutes is amended to read:

AB249,15,12 139.35 (1) Transfers. No person may give, sell or lend any stamps to another and no person may accept, purchase or borrow any stamps from another. All sales and transfers of stamps may be made only by the secretary to permit holding manufacturers, direct marketers, and distributors.

AB249, s. 39 Section 39. 139.37 (1) (a) of the statutes is amended to read:

AB249,16,7 139.37 (1) (a) No person shall sell cigarettes or take orders for cigarettes for resale solicit cigarette sales in this state for any manufacturer or permittee without first obtaining a unless the person has filed an application for and obtained a valid certificate under s. 73.03 (50) and a salesperson's permit from the department of revenue. No manufacturer or permittee shall authorize any person to sell cigarettes or take orders for cigarettes solicit cigarette sales in this state without first having such person secure unless the person has filed an application for and obtained a valid certificate under s. 73.03 (50) and a salesperson's permit. No person shall authorize another person to sell cigarettes or solicit cigarette sales in this state unless the person has filed an application for and obtained a valid certificate under s. 73.03 (50) and a valid permit under s. 139.34. The department shall issue the required number of permits to manufacturers and permittees who hold a valid certificate issued under s. 73.03 (50). Each application for a permit shall disclose the name and address of the employer and such permit shall remain effective only while the salesperson represents such named employer. If such salesperson is thereafter employed by another manufacturer or permittee person, the salesperson shall obtain a new salesperson's permit. Each manufacturer and permittee shall notify the department within 10 days after the resignation or dismissal of any such salesperson holding a permit.

AB249, s. 40 Section 40. 139.38 (1) of the statutes is amended to read:

AB249,16,22 139.38 (1) Every manufacturer located out of the state shall keep records of all sales of cigarettes shipped into this state. Every manufacturer located in the state shall keep records of production, sales and withdrawals of cigarettes. Every distributor and direct marketer shall keep records of purchases and sales of cigarettes. Every manufacturer, direct marketer, and distributor holding a permit from the secretary with the right to purchase and apply stamps shall also keep records of purchases and disposition of stamps. Every jobber, multiple retailer, and vending machine operator shall keep records of all purchases and disposition of cigarettes. Every warehouse operator shall keep records of receipts and withdrawals of cigarettes. All such records shall be accurate and complete and be kept in a manner prescribed by the secretary. These records shall be preserved on the premises described in the permit or license in such a manner as to ensure permanency and accessibility for inspection at reasonable hours by authorized personnel of the department.

AB249, s. 41 Section 41. 139.38 (1m) of the statutes is created to read:

AB249,17,6 139.38 (1m) Records of purchases and sales of cigarettes under sub. (1) that are kept by direct marketers shall indicate, for each shipment of cigarettes into this state in the month preceding the report under sub. (2), the invoice date and number; the quantity of cigarettes shipped; the brand name of the cigarettes shipped; the manufacturer of the cigarettes shipped and the manufacturer's origin; the purchaser's name, address, and birth date; the name of the person to whom the cigarettes were shipped; the address to which the cigarettes were shipped; and any other information the department requires.

AB249, s. 42 Section 42. 139.38 (2) of the statutes is amended to read:

AB249,17,12 139.38 (2) (a) Except as provided in par. (b), every permittee manufacturer, distributor, jobber, and direct marketer shall render a true and correct invoice of every sale of cigarettes at wholesale and every permittee shall on or before the 15th day of each calendar month file a verified report of all cigarettes purchased, sold, received, warehoused or withdrawn during the preceding calendar month.

AB249,17,18 (b) The department may allow any jobber, multiple retailer, direct marketer, or vending machine operator permittee who does not sell cigarettes, except for those on which the tax under this chapter is paid, to file a quarterly report. The quarterly report shall be filed on or before the 15th day of the next month following the close of each calendar quarter. The report shall specify the number of cigarettes purchased and sold during the preceding calendar quarter.

AB249, s. 43 Section 43. 139.395 of the statutes is amended to read:

AB249,18,2 139.395 Theft of tax moneys. All cigarette tax moneys received by a distributor, direct marketer, or manufacturer for the sale of cigarettes on which the tax under this subchapter has become due and has not been paid are trust funds in the hands of the distributor, direct marketer, or manufacturer and are the property of this state. Any distributor, direct marketer, or manufacturer who fraudulently withholds, appropriates or otherwise uses cigarette tax moneys that are the property of this state is guilty of theft under s. 943.20 (1), whether or not the distributor, direct marketer, or manufacturer has or claims to have an interest in those moneys.

AB249, s. 44 Section 44. 139.40 (2) of the statutes is amended to read:

AB249,18,15 139.40 (2) If cigarettes which do not bear the proper tax stamps or on which the tax has not been paid Cigarettes that are so seized they as provided under sub. (1) may be given to law enforcement officers to use in criminal investigations or sold to qualified buyers by the secretary, without notice. If the cigarettes are sold, after deducting the costs of the sale and the keeping of storing the property, the proceeds of the sale shall be paid into the state treasury, except that proceeds from the sale of cigarettes seized from a direct marketer and obtained through the administration of this subsection shall be credited to the appropriation account under s. 20.566 (1) (gc). If the secretary finds that such cigarettes may deteriorate or become unfit for use in criminal investigations or for sale or that those uses would otherwise be impractical, the secretary may order them destroyed or give them to a charitable or penal institution for free distribution to patients or inmates.

AB249, s. 45 Section 45. 139.44 (3) of the statutes is amended to read:

AB249,18,21 139.44 (3) Any permittee who fails to keep the records required by ss. 139.30 to 139.42 or 139.77 to 139.82 shall be fined not less than $100 $500 nor more than $500 $1,000 for the first offense and shall be fined not less than $1,000 nor more than $5,000 or imprisoned not more than 6 months 180 days or both for the 2nd or subsequent offense.

AB249, s. 46 Section 46. 139.44 (4) of the statutes is amended to read:

AB249,19,2 139.44 (4) Any person who refuses to permit the examination or inspection authorized in s. 139.39 (2) or 139.83 may be fined not more less than $500 nor more than $1,000 or imprisoned not more than 90 180 days or both. Such refusal shall be cause for immediate suspension or revocation of permit by the secretary.

AB249, s. 47 Section 47. 139.44 (6m) of the statutes is created to read:

AB249,19,6 139.44 (6m) Any person who manufactures or sells cigarettes in this state without holding the proper permit issued under this subchapter is guilty of a Class I felony.

AB249, s. 48 Section 48. 139.44 (7) of the statutes is amended to read:

AB249,19,14 139.44 (7) In addition to the penalties imposed for violation of ss. 139.30 to 139.41 or 139.75 to 139.83 or any of the rules of the department, the permit of any person convicted of a 2nd or subsequent offense shall be automatically revoked and, he or she shall not be granted another permit for a period of 2 5 years following such revocation, and, for the 5-year period following revocation, he or she shall not act as the employee or agent of a permittee under this subchapter to perform acts authorized by any permit issued to the permittee under this subchapter.

AB249, s. 49 Section 49. 139.44 (8) (a) and (b) of the statutes are amended to read:

AB249,19,18 139.44 (8) (a) If the number of cigarettes does not exceed 6,000, a fine of not more than $200 $1,000 or imprisonment for not more than 6 months one year in the county jail or both.

AB249,19,21 (b) If the number of cigarettes exceeds 6,000 but does not exceed 36,000, a fine of not more than $1,000 or imprisonment for not more than one year in the county jail or both the person is guilty of a Class H felony.

AB249, s. 50 Section 50. 139.45 of the statutes is amended to read:

AB249,19,25 139.45 Prosecutions by attorney general. Upon request by the secretary of revenue, the attorney general may represent this state or assist a district attorney in prosecuting any case arising under this subchapter or under ss. 134.65 and 134.66.

AB249, s. 51 Section 51. 139.75 (2) of the statutes is amended to read:

AB249,20,5 139.75 (2) "Consumer" means any individual who receives tobacco products for his or her personal use or consumption or any person individual who has title to or possession of tobacco products in storage for use or other consumption in this state any purpose other than for sale or resale.

AB249, s. 52 Section 52. 139.75 (3g) of the statutes is created to read:

AB249,20,8 139.75 (3g) "Direct marketer" means any person who solicits or sells tobacco products to consumers in this state by direct marketing.

AB249, s. 53 Section 53. 139.75 (3r) of the statutes is created to read:

AB249,20,13 139.75 (3r) "Direct marketing" means publishing or making accessible an offer for the sale of tobacco products to consumers in this state, or selling tobacco products to consumers in this state, using any means by which the consumer is not physically present at the time of sale on a premise that sells tobacco products.

AB249, s. 54 Section 54. 139.75 (4) (a) of the statutes is amended to read:

AB249,20,17 139.75 (4) (a) Any person in this state engaged in the business of selling tobacco products in this state who brings, or causes to be brought, into this state from outside the state any tobacco products for sale;

AB249, s. 55 Section 55. 139.75 (4) (c) of the statutes is amended to read:

AB249,20,21 139.75 (4) (c) Any person outside this state engaged in the business of selling tobacco products outside this state who ships or transports tobacco products to retailers in this state to be sold by those retailers.

AB249, s. 56 Section 56. 139.75 (4) (cm) of the statutes is created to read:

AB249,20,24 139.75 (4) (cm) Any person outside this state engaged in the business of selling tobacco products who ships or transports tobacco products to consumers in this state.

AB249, s. 57 Section 57. 139.75 (5s) of the statutes is created to read:

AB249,21,3 139.75 (5s) "Person" means any individual, sole proprietorship, partnership, limited liability company, corporation, or association, or any owner of a single-owner entity that is disregarded as a separate entity under ch. 71.

AB249, s. 58 Section 58. 139.75 (7) of the statutes is amended to read:

AB249,21,6 139.75 (7) "Retail outlet" means each place of business from which tobacco products are sold to consumers by a retailer.

AB249, s. 59 Section 59. 139.75 (8) of the statutes is amended to read:

AB249,21,11 139.75 (8) "Retailer" means any person engaged in the business of selling tobacco products who sells, exposes for sale, or possesses with intent to sell, to ultimate consumers any tobacco products by any means in which the consumer is physically present at the time of sale on a premises that sells tobacco products.

AB249, s. 60 Section 60. 139.76 (3) of the statutes is created to read:

AB249,21,15 139.76 (3) Except as provided in sub. (2), no person may possess tobacco products in this state unless the tax imposed under sub. (1) is paid on such tobacco products.

AB249, s. 61 Section 61. 139.78 (1m) of the statutes is created to read:

AB249,21,19 139.78 (1m) Except as provided in s. 139.76 (2), no person other than a distributor with a valid permit under s. 139.79 may import into this state tobacco products for which the tax imposed under s. 139.76 (1) has not been paid.

AB249, s. 62 Section 62. 139.79 (title) of the statutes is amended to read:

AB249,21,21 139.79 (title) Permits; distributor; direct marketer; subjobber.

AB249, s. 63 Section 63. 139.79 (1) of the statutes is amended to read:

AB249,22,2 139.79 (1) No person may engage in the business of a distributor, direct marketer, or subjobber of tobacco products at any place of business unless that person has filed an application for and obtained a permit from the department to engage in that business at such place.

AB249, s. 64 Section 64. 139.79 (2) of the statutes is amended to read:

AB249,22,5 139.79 (2) Section 139.34 (1) (b) (c) to (f), (4) and (9) applies to the permits under this section.

AB249, s. 65 Section 65. 139.795 of the statutes is created to read:

AB249,22,13 139.795 Direct marketing. (1) (a) No person may sell tobacco products by direct marketing to consumers in this state as a direct marketer or solicit sales of tobacco products to consumers in this state by direct marketing unless the person has obtained a permit from the department to make such sales or solicitations. The person shall file an application for a permit under this subsection with the department, in the manner prescribed by the department, and shall submit a $500 fee with the application.

AB249,22,17 (b) No person may be issued a permit under this subsection unless the person holds a valid distributor's permit under s. 139.79. Section 139.34 (1) (c) to (f), (4), and (9), as it applies to permits issued under s. 139.34, applies to permits issued under this subsection.

AB249,22,18 (c) A permit issued under this subsection expires on December 31 of each year.

AB249,23,2 (d) No person may be issued a permit under this subsection unless the person certifies to the department, in the manner prescribed by the department, that all tobacco product sales to consumers in this state shall be credit card or personal check transactions; that the invoice for all shipments of tobacco product sales from the person shall bear the person's name and address and the permit number of the permit ultimately issued under this subsection; and that the person shall provide the department any information the department considers necessary to administer this section.

AB249,23,5 (2) No person may sell tobacco products to consumers in this state by direct marketing unless the tax imposed under s. 139.76, and under s. 77.52 or 77.53, has been paid with regard to such products.