SB40: Bill Text

SB40, s. 2796 Section 2796. 139.34 (1) (c) 5. of the statutes is repealed.

SB40, s. 2797 Section 2797. 139.34 (1) (c) 6. of the statutes is repealed.

SB40, s. 2798 Section 2798. 139.34 (1) (c) 7. of the statutes is renumbered 139.34 (1) (c) 5m.

SB40, s. 2799 Section 2799. 139.34 (1) (cm) of the statutes is created to read:

SB40,1313,15 139.34 (1) (cm) The requirements under par. (c) apply to all partners of a partnership, all members of a limited liability company, all agents of a limited liability company or corporation, and all officers of a corporation.

SB40, s. 2800 Section 2800. 139.34 (4) of the statutes is amended to read:

SB40,1313,22 139.34 (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.

SB40, s. 2801 Section 2801. 139.34 (6) of the statutes is amended to read:

SB40,1314,2 139.34 (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 bonded direct marketer.

SB40, s. 2802 Section 2802. 139.34 (8) of the statutes is amended to read:

SB40,1314,9 139.34 (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, bonded direct marketer, or distributor may be delivered only to a person holding a permit as a manufacturer or, distributor, or bonded direct marketer who is authorized by the department to purchase and affix tax stamps.

SB40, s. 2803 Section 2803. 139.345 (1) (a) of the statutes is amended to read:

SB40,1314,17 139.345 (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 submits to has obtained a permit from the department the person's name, trade name, address of the person's principal place of business, phone number, e-mail address, and Web site address 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.

SB40, s. 2804 Section 2804. 139.345 (1) (b) of the statutes is amended to read:

SB40,1315,4 139.345 (1) (b) No person may sell cigarettes as described under this section The department may not issue a permit to a person under par. (a) unless the person certifies to the department, in the manner prescribed by the department, that the person shall acquire stamped cigarettes from a licensed distributor or unstamped cigarettes from the manufacturer 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 acquire 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.

SB40, s. 2805 Section 2805. 139.345 (1) (d) of the statutes is amended to read:

SB40,1315,13 139.345 (1) (d) No person may sell cigarettes as described in this section The department may not issue a permit to a person under par. (a) unless the person certifies to the department, in the manner prescribed by the department, that the person shall register with credit card and debit card companies; that the invoices and all means of solicitation 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.

SB40, s. 2806 Section 2806. 139.345 (3) (intro.) of the statutes is amended to read:

SB40,1315,16 139.345 (3) (intro.) No person may sell cigarettes to consumers a consumer in this state unless the person does all of the following:

SB40, s. 2807 Section 2807. 139.345 (3) (a) (intro.) of the statutes is amended to read:

SB40,1315,19 139.345 (3) (a) (intro.) Verifies the consumer's name identity and address and that the consumer is at least 18 years of age by any of the following methods:

SB40, s. 2808 Section 2808. 139.345 (3) (a) 2. of the statutes is amended to read:

SB40,1315,25 139.345 (3) (a) 2. The person receives from the consumer, at the time of purchase, a copy of a government issued an identification card and verifies that the name specified on the identification card matches the name of the consumer and that the birth date on the identification card indicates that the consumer is at least 18 years of age.

SB40, s. 2809 Section 2809. 139.345 (7) (a) of the statutes is amended to read:

SB40,1316,9 139.345 (7) (a) No person may deliver a package of cigarettes sold by direct marketing to a consumer in this state unless the person making the delivery receives a government issued an identification card from the person receiving the package and verifies that the person receiving the package is at least 18 years of age. If the person receiving the package is not the person to whom the package is addressed, the person delivering the package shall have the person receiving the package sign a statement that affirms that the person to whom the package is addressed is at least 18 years of age.

SB40, s. 2810 Section 2810. 139.345 (8) of the statutes is created to read:

SB40,1316,14 139.345 (8) (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 the cigarettes and stamps are affixed to the cigarette packages or containers as provided under s. 139.32.

SB40,1316,18 (b) No person may sell cigarettes to consumers in this state by direct marketing unless the cigarette brands are approved by the department and listed in the directory of certified tobacco product manufacturers and brands as provided under s. 995.12 (2) (b).

SB40, s. 2811 Section 2811. 139.345 (9) of the statutes is created to read:

SB40,1316,24 139.345 (9) Except as provided in sub. (12), 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.

SB40, s. 2812 Section 2812. 139.345 (10) of the statutes is created to read:

SB40,1317,3 139.345 (10) (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.

SB40,1317,8 (b) Except as provided in sub. (12), any person who sells cigarettes in an amount that exceeds the amounts allowed 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 fraction of 200 cigarettes, sold in excess of the amounts allowed under par. (a), whichever is greater.

SB40,1317,13 (c) Except as provided in sub. (12), any person who purchases cigarettes in an amount that exceeds the amounts allowed 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 in excess of the amounts allowed under par. (a).

SB40, s. 2813 Section 2813. 139.345 (11) of the statutes is created to read:

SB40,1317,24 139.345 (11) (a) Any nonresident or foreign direct marketer that has not registered to do business in this state as a foreign corporation or business entity shall, as a condition precedent to obtaining a permit under s. 139.34 (1), appoint and continually engage the services of an agent in this state to act as agent for the service of process on whom all processes, and any action or proceeding against it concerning or arising out of the enforcement of this chapter, may be served in any manner authorized by law. That service shall constitute legal and valid service of process on the direct marketer. The direct marketer shall provide the name, address, phone number, and proof of the appointment and availability of the agent to the department.

SB40,1318,8 (b) A direct marketer described under par. (a) shall provide notice to the department no later than 30 calendar days before termination of the authority of an agent under par. (a) and shall provide proof to the satisfaction of the department of the appointment of a new agent no later than 5 calendar days before the termination of an existing appointment. In the event an agent terminates an appointment, the direct marketer shall notify the department of that termination no later than 5 calendar days after the termination and shall include proof to the satisfaction of the department of the appointment of a new agent.

SB40,1318,12 (c) The secretary of state is the agent in this state for the service of process of any direct marketer who has not appointed and engaged an agent as provided under par. (a), except that the secretary of state acting as the direct marketer's agent for the service of process does not satisfy the requirements imposed by par. (a).

SB40, s. 2814 Section 2814. 139.345 (12) of the statutes is created to read:

SB40,1318,15 139.345 (12) No penalty shall be imposed under subs. (9) and (10) if any of the following apply:

SB40,1318,18 (a) The secretary of revenue determines that imposing a penalty would be inequitable because of inadvertent acts, mistakes, or unusual circumstances related to the violation.

SB40,1318,20 (b) The person who is subject to a penalty under sub. (9) or (10) had good cause to violate sub. (9) or (10), and such violation did not result from the person's neglect.

SB40, s. 2815 Section 2815. 139.37 (1) (a) of the statutes is amended to read:

SB40,1319,16 139.37 (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 the sale of cigarettes or the solicitation of 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 salesperson's permit shall disclose the name and address of the employer or the person for whom the salesperson is selling or soliciting and such permit shall remain effective only while the salesperson represents such named employer or person. 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 The employer of any such salesperson shall notify the department within 10 days after the resignation or dismissal of any such the salesperson holding a permit.

SB40, s. 2816 Section 2816. 139.40 (1) of the statutes is amended to read:

SB40,1319,22 139.40 (1) All cigarettes acquired, owned, imported, possessed, kept, stored, made, sold, distributed or transported in violation of this chapter or s. 134.65, and all personal property used in connection therewith is unlawful property and subject to seizure by the secretary or any peace officer. All cigarettes seized for violating s. 139.31 (4) or (5) shall be destroyed.

SB40, s. 2817 Section 2817. 139.40 (2) of the statutes is amended to read:

SB40,1320,8 139.40 (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. 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.

SB40, s. 2818 Section 2818. 139.44 (1m) of the statutes is amended to read:

SB40,1320,12 139.44 (1m) Any person who falsely or fraudulently tampers with a cigarette meter tax impression machine in order to evade the tax under s. 139.31 is guilty of a Class G felony.

SB40, s. 2819 Section 2819. 139.44 (2) of the statutes is amended to read:

SB40,1320,17 139.44 (2) Any person who makes or signs any false or fraudulent report or who attempts to evade the tax imposed by s. 139.31 or 139.76, or who aids in or abets the evasion or attempted evasion of that tax may be fined not more than $10,000 or imprisoned for not more than 9 months or both, is guilty of a Class H felony.

SB40, s. 2820 Section 2820. 139.44 (3) of the statutes is amended to read:

SB40,1320,23 139.44 (3) Any permittee or licensee 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 a 2nd or subsequent offense.

SB40, s. 2821 Section 2821. 139.44 (4) of the statutes is amended to read:

SB40,1321,4 139.44 (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 or license by the secretary.

SB40, s. 2822 Section 2822. 139.44 (5) of the statutes is amended to read:

SB40,1321,9 139.44 (5) Any person who violates any of the provisions of ss. 139.30 to 139.41 or 139.75 to 139.83 for which no other penalty is prescribed shall be fined not less than $100 nor more than $1,000 $10,000 or imprisoned not less than 10 days nor more than 90 days 9 months or both.

SB40, s. 2823 Section 2823. 139.44 (6) of the statutes is amended to read:

SB40,1321,13 139.44 (6) Any person who violates any of the rules of the department shall be fined not less than $100 $500 nor more than $500 $1,000 or be imprisoned not more than 6 9 months or both.

SB40, s. 2824 Section 2824. 139.44 (6m) of the statutes is created to read:

SB40,1321,17 139.44 (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.

SB40, s. 2825 Section 2825. 139.44 (7) of the statutes is amended to read:

SB40,1321,23 139.44 (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 the person shall not be granted another permit for a period of 2 5 years following such revocation.

SB40, s. 2826 Section 2826. 139.44 (13) of the statutes is created to read:

SB40,1322,2 139.44 (13) Notwithstanding subs. (1) to (8), no penalty shall be imposed under subs. (1) to (8) if any of the following apply:

SB40,1322,5 1. The secretary of revenue determines that imposing a penalty would be inequitable because of inadvertent acts, mistakes, or unusual circumstances related to the violation.

SB40,1322,8 2. The person who is subject to a penalty under subs. (1) to (8) had good cause to commit the violation to which the penalty applies, and such violation did not result from the person's neglect.

SB40, s. 2827 Section 2827. 139.455 of the statutes is created to read:

SB40,1322,16 139.455 Revenue distribution. From the taxes collected under this subchapter, in fiscal year 2007-08, the department shall deposit no more than $304,000,000 into the general fund and the remainder into the health care quality fund. From the taxes collected under this subchapter, in fiscal year 2008-09, and in each subsequent fiscal year thereafter, the department shall deposit no more than $305,000,000 into the general fund and the remainder into the health care quality fund.

SB40, s. 2828 Section 2828. 139.75 (2) of the statutes is amended to read:

SB40,1322,21 139.75 (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.

SB40, s. 2829 Section 2829. 139.75 (3g) of the statutes is created to read:

SB40,1322,24 139.75 (3g) "Direct marketer" means any person who solicits sales of or sells tobacco products to consumers in this state by direct marketing.

SB40, s. 2830 Section 2830. 139.75 (3r) of the statutes is created to read:

SB40,1323,4 139.75 (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 on a premise that sells tobacco products.

SB40, s. 2831 Section 2831. 139.75 (4) (a) of the statutes is amended to read:

SB40,1323,8 139.75 (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;

SB40, s. 2832 Section 2832. 139.75 (4) (c) of the statutes is amended to read:

SB40,1323,12 139.75 (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.

SB40, s. 2833 Section 2833. 139.75 (4) (cm) of the statutes is created to read:

SB40,1323,15 139.75 (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.

SB40, s. 2834 Section 2834. 139.75 (4n) of the statutes is created to read:

SB40,1323,17 139.75 (4n) "Identification card" has the meaning given in s. 134.66 (1) (c).

SB40, s. 2835 Section 2835. 139.75 (5s) of the statutes is created to read:

SB40,1323,21 139.75 (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.

SB40, s. 2836 Section 2836. 139.75 (7) of the statutes is amended to read:

SB40,1323,24 139.75 (7) "Retail outlet" means each place of business from which tobacco products are sold to consumers by a retailer.

SB40, s. 2837 Section 2837. 139.75 (8) of the statutes is amended to read: