The purpose and effect of the proposed rules are to implement statutory provisions and define terms and rules relating to cigarette and tobacco product permits, taxes, and reports based on Chapter 2005-228, Laws of Florida and Sections 210, 561, and ...

 

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

Division of Alcoholic Beverages and Tobacco

RULE NOS.: RULE TITLES:

61A-10.001 Definitions

61A-10.002 Stamps, Sale of

61A-10.0021 Stamping Agent – Requirements

61A-10.0022 Cigarette Distributing Agent - Requirements

61A-10.005 Excise Tax, Imposition and Exemption

61A-10.006 Stamps, Method of Affixing

61A-10.007 Stamps, Limitation of Use

61A-10.008 Refunds

61A-10.009 Sample Packages of Cigarettes

61A-10.0091 Manufacturer’s and Importer’s Reporting Requirements

61A-10.010 Sales, Passenger Carriers

61A-10.011 Cigarette, Monthly Reports

61A-10.0111 Cigarette Audit

61A-10.0112 Required Documentation for Imported Cigarettes

61A-10.012 Manufacturers’ and Importers’ Representatives, Reports and Responsibilities

61A-10.013 Transactions, Wholesale Dealers, Manufacturers’ and Importers’ Representatives

61A-10.014 Wholesale Dealers, Purchase for Resale Prohibited

61A-10.015 Transfer, Unstamped Cigarettes

61A-10.016 Manufacturer, Importer, Wholesaler Dealer, Cigarette Wholesale Dealer or Exporter, Permit Changes

61A-10.017 Direct Shipments, Prohibition, Exception, and Excise Taxes

61A-10.018 Invoices or Daily Sales Tickets, Cigarette Sales to Retail Dealers

61A-10.0181 Invoices, Other Tobacco Products Sales to Retail Dealers

61A-10.020 Vending Machines, Permits and Restrictions

61A-10.021 Vending Machines, Reports

61A-10.026 Sale of Stamped, Untaxed Cigarettes by Stamping Agents or Wholesale Dealers to Indians for Retail Sale, Reporting

61A-10.027 Interest on Excise Tax; Due Dates

61A-10.031 New Off Premise Storage of Unstamped Cigarettes

61A-10.050 Definitions

61A-10.051 Excise Tax Exemption, Reports

61A-10.052 Monthly Reports, Required

61A-10.053 Records Maintenance

61A-10.054 Invoices, Tobacco Products Sales to Retailers

61A-10.055 Excise Tax Refunds

61A-10.080 Application for Cigarette Permit, Manufacturer or Importer

61A-10.081 Application for Cigarette Permit, Wholesale Dealer, Exporter, or Cigarette Distributing Agent

61A-10.082 Application for a Tobacco Products Wholesale Dealer Permit

61A-10.083 Application for Retail Tobacco Products Dealer Permit

61A-10.084 Permit Changes

61A-10.085 Duplicate License Request

PURPOSE AND EFFECT: The purpose and effect of the proposed rules are to implement statutory provisions and define terms and rules relating to cigarette and tobacco product permits, taxes, and reports based on Chapter 2005-228, Laws of Florida and Sections 210, 561, and 569 of the Florida Statutes, 2005.

SUMMARY: These rules address cigarette and tobacco product permitting, taxing, auditing, and reporting requirements and procedures relating to the sale and distribution of cigarettes and other tobacco products.

SUMMARY OF statement of ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

SPECIFIC AUTHORITY: 210.09 FS., 210.10 FS., 210.11 FS., 210.55 FS., 210.75 FS., 561.08 FS.

LAW IMPLEMENTED: 210.01 FS., 210.02 FS., 210.03 FS., 210.04 FS., 210.05 FS., 210.06 FS., 210.07 FS., 210.08 FS., 210.085 FS., 210.09 FS., 210.11 FS., 210.13 FS., 210.15 FS., 210.185 FS., 210.20 FS., 210.25 FS., 210.30 FS., 210.40 FS., 210.55 FS., 210.60 FS., 210.75 FS., 218.215 FS., 218.23 FS., 218.245 FS., 218.25 FS., 218.26 FS., 569.002 FS., 569.003 FS., 569.007 FS; U.S.C. Const. Art. I § 8, cl. 3; U.S.C. Const. Art. VI cl. 2; 4 U.S.C. § 107; 14 U.S.C. §§ 1, 2; 42 U.S.C. §§ 2451, 2472; 25 U.S.C. §§ 261-264.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW (IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):

DATE AND TIME: Monday, February 13, 2005, 1:00 p.m.

PLACE: Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco Conference Room, 1940 North Monroe Street, Tallahassee, Florida 32399

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULES IS: Christina Norman, Assistant Attorney, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, Office of the General Counsel, 1940 North Monroe Street, Suite 42, Tallahassee, Florida 32399, [phone]

 

THE FULL TEXT OF THE PROPOSED RULES IS:

 

PART I

CIGARETTE TAX DIVISION RULES

61A-10.001 Definitions, Cigarette.

Ccommencing July 1, 1973, the term “cigarette” means any roll for smoking made wholly, or in part, of tobacco regardless of the substance of which the wrapper is made, and excepting there from only those rolls of tobacco in which all of the tobacco therein is fully naturally fermented and/or weighs more than 3 pounds per thousand.

(1) “Cigarette Distributing Agent” also known as “CDA” means a “distributing agent” as defined in Section 210.01(14), Florida Statutes. For tobacco to be fully naturally fermented it must meet the following criteria:

(a) The tobacco must be air-cured as opposed to flue-cured, and

(b) The fermentation of the tobacco must be a separate, distinct and identifiable step in the total process of taking tobacco from its raw, natural state to its final manufactured state. Fermentation must be a separate step in and of itself, not included in and separate from all other steps in the total process, including, for example, such other steps as curing, aging, storing or re-dying in which some fermentation may take place.

(2) “Bill of Lading” means a receipt given by a carrier for goods accepted for transportation. The fermentation process referred to above means a vigorous, controlled process involving tobacco containing a relatively high moisture content and marked by large natural temperature increases generated by the fermenting tobacco as distinguished, for example, from the gentle largely uncontrolled aging process. In addition, generally fermentation takes 4 to 8 weeks with the tobacco fermented in bulk reaching a temperature of 120 º F or more in an atmosphere of 60-90% relative humidity. The chemical changes that take place will substantially eliminate the carbohydrates (sugar and starch) and reduce the alkaloid content and evolves carbon dioxide and ammonia. Further, for the fermentation to be natural, there can be no artificial heat or chemical applied either during the fermentation process itself or prior thereto in order to induce fermentation. Fermentation generally continues until there is no longer any significant rise in temperature in the fermenting tobacco itself in order for the tobacco to be fully fermented.

(3) “Stamping Agent” means an “agent” as defined in Section 210.01(9), Florida Statutes.

(4) “Audit” means the process of examining and verifying the records stock and equipment of manufacturers, importers, distributing agents, wholesale dealers, stamping agents, and retail dealers licensed by the Division.

Specific Authority 210.10 561.11 FS. Law Implemented 210.01(1), 210.085, 210.09, 210.15 FS. History–Amended 9-17-73, Repromulgated 12-19-74, Formerly 7A-10.01, 7A-10.001, Amended ________.

 

61A-10.002 Excise Tax Stamps, Definition and Sale of.

(1) “Hand” stamps shall include all excise tax stamps affixed to packages of cigarettes through a water application process. The Division may sell such stamps only to qualified wholesalers in individual units or multiples thereof, including the cost of printing, handling and shipping such stamps.

(1)(2) “Heat transfer” stamps shall include all excise tax stamps affixed to packages of cigarettes through a mechanical heat application process. Such sStamps will be sold only to stamping agents wholesalers who have been given permission by the Division to use such stamps to evidence payment of taxes and the Division may sell such stamps in individual units of 1 roll or multiples thereof including the cost of printing, handling and shipping such stamps.

(2) Any such stamps purchased by a stamping agent may not be transferred or sold to any entity including other stamping agents; however, such stamps may be returned to the Division for credit or refund as specified in Rule 61A-10.008, Florida Administrative Code.

(3) Stamping agents shall requisition stamps using DBPR form AB&T 4000A-006, Requisition and Invoice for Cigarette Tax Stamps incorporated herein by reference and effective (_________). Each stamping agent purchasing tax stamps shall file with the Division DBPR form AB&T 4000A-040, Cigarette Stamp Signature Card, incorporated herein by reference and effective (_________), listing employees authorized to requisition and receive tax stamps. Stamps will not be delivered to unauthorized individuals.

Specific Authority 210.10 FS. Law Implemented 210.05(2) FS. History–New 12-19-74, Amended 10-8-81, 8-29-84, Formerly 7A-10.02, 7A-10.002, Amended ________.

 

61A-10.0021 Stamping Agent – Requirements.

The Division may authorize a wholesale dealer as a stamping agent to affix stamps to packages of cigarettes provided the dealer furnishes the Division with;

(1) An irrevocable letter of credit, certificate of deposit, unconditional guarantee contract, or a surety bond, issued by a solvent surety company within this state, equal to 110% of estimated monthly stamp liability, but not less than $2,000, as required in Sections 210.05 and 210.08, Florida Statutes.

(a) Surety amounts will be reviewed every 6 months to verify compliance with this Rule. The surety amount will be based on the highest month’s total liability.

(b) Liability for stamp purchases shall not exceed the surety amount.

(c) Stamping agents will provide the Division with a continuation certificate of the surety when the stamping agent pays their surety premium.

(d) If a surety instrument is cancelled, the stamping agent must cease operation.

(2) A letter from manufacturers and importers stating that they will ship to the applicant direct.

(3) A letter from the wholesale dealer requesting to be a stamping agent.

(4) If licensed as a stamping agent by another state, authorization from that state to purchase and affix that state’s tax indicia within the State of Florida.

Specific Authority 210.10 FS. Law Implemented 210.01, 210.05, 210.08, 210.15, 210.40 History–New ________.

 

61A-10.0022 Cigarette Distributing Agent – Requirements.

Any entity permitted as a cigarette distributing agent may not own or sell cigarettes. All product movement by the cigarette distributing agent is to be initiated by manufacturer or importer of the cigarettes who shall remain the owner of such cigarettes. A cigarette distributing agent may not be appointed as a stamping agent.

Specific Authority 210.10 FS. Law Implemented 210.01, 210.05, 210.085, 210.15 History–New ________.

 

61A-10.005 Excise Tax, Imposition and Exemption.

The cigarette excise tax is imposed upon the sale, receipt, purchase, possession, handling, consumption, distribution and use of cigarettes in Florida, except as follows:

(1) Cigarettes sold at post exchanges, ship service stores, ship stores, and slop chests when such agencies are operated under regulations of the Armed Forces of the United States or the United States Coast Guard or NASA on Armed Forces Reservations or other Federal Bases and Exchanges in Florida or on ships of the Armed Force Merchant Marines of the United States, may be sold without the payment of the Florida excise tax to members of the Armed Services of the United States only; tax exempt sales may not be made by such agencies to anyone other than members of the Armed Services of the United States and cigarettes sold to other persons must be properly stamped and Florida excise tax due thereon paid.

(2) Cigarettes sold or given by charitable organizations to bona fide patients in regularly established veterans hospitals in Florida or inmates of a federal prison, for personal use or consumption of such patients or inmates, are exempt from the Florida excise tax; cigarettes sold or given to anyone other than a bona fide patient in such hospitals or other personal use of such patients or inmates of a federal prison, must be properly stamped and the Florida excise tax due thereon paid.

(3) Each wholesaler dealer or cigarette distributing agent wholesale dealer handling any such tax-free cigarettes shall attach to their his monthly report a copy of the invoice or sales slip substantiating any such tax-free sale. The invoice or sales slip must be signed by a person authorized to receive such tax-free cigarettes. The name of any person authorized to receive and sign for such tax-free cigarettes must be submitted by the commanding officer of the military installation, hospital, or prison to the Bureau of Auditing office of the Division District Auditor of the District of the Division of Beverage wherein such military installation is situated.

Specific Authority 210.10(1) FS. Law Implemented U.S.C. Const. Art. VI cl. 2; 4 U.S.C. § 107; 14 U.S.C. §§ 1, 2; 42 U.S.C. §§ 2451, 2472; 210.03, 210.04(4)(a),(b), 210.05, 210.09, 210.11 FS. History–Repromulgated 12-19-74, Amended 3-1-76, Formerly 7A-10.05, 7A-10.005, Amended ________.

 

61A-10.006 Excise Tax Stamps, Method of Affixing.

(1) The excise tax stamps affixed to packages of cigarettes for the purpose of evidencing payment of the excise tax due thereon must be placed on the bottom of the package of such cigarettes in such a manner that the stamps or imprints are clearly visible, legible and complete.

(2) Wholesale dealers within this state must affix or cause to be affixed such stamps within 10 calendar days of receipt of the cigarettes. All stamps affixed to packages containing fifty or more cigarettes must be placed on the packages in a manner so that such stamps will be destroyed when the packages are opened.

(3) Wholesale dealers within this state may not maintain stocks of unstamped cigarettes unless that part is identified for sale or distribution outside this state or intended as tax exempt sales as defined in Section 210.04(4), Florida Statutes. Such unstamped stock must be maintained separately and apart from stamped cigarettes.

(4) Wholesale dealers from outside the state must affix Florida tax stamps prior to shipping cigarettes into this state.

Specific Authority 210.10(1) FS. Law Implemented 210.04, 210.05, 210.06 FS. History–Repromulgated 12-19-74, Amended 3-1-76, Formerly 7A-10.06, Amended 3-15-90, 7-9-91, 1-7-92, Formerly 7A-10.006, Amended ________.

 

61A-10.007 Excise Tax Stamps, Limitation of Use.

Stamping agents Agents and wholesalers are prohibited from affixing excise tax stamps to any packages of cigarettes not actually owned by such stamping agents or wholesalers unless written permission for such action is received from the Division.

Specific Authority 210.10(1) FS. Law Implemented 210.06, 210.05 FS. History–Repromulgated 12-19-74, Formerly 7A-10.07, 7A-10.007, Amended ________.

 

61A-10.008 Refunds.

(1) No refund or credit will be made for excise tax stamps affixed to packages of cigarettes shipped from a wholesaler dealer to a manufacturer or importer unless such wholesale dealer furnishes the Division with an original affidavit issued by the manufacturer or importer acknowledging the receipt of the cigarettes evidentiary proof of such shipment is submitted by the wholesaler to the Division. Such an affidavit must be submitted with a completed DBPR form AB&T 4000A-004, Application for Refund or Credit of Cigarette Stamps, incorporated herein by reference and effective (_________). The cancellation of cigarette tax stamps already affixed to damaged or unsaleable packages of cigarettes will be performed by the dealer or his authorized personnel and witnessed by agents or auditors of the Division of Beverage. An affidavit will be provided by the Division of Beverage agent or auditor for the amount of stamps cancelled and the dealer will apply for refund on forms prescribed by the Division for that purpose. Only upon receipt of a such affidavits properly executed application will the Division make such refunds or credits. Applications for refunds or credits and supporting affidavits must be filed with the Division within nine three months from the dates the shipments of such cigarettes were made as set forth in the affidavit.

(2) Unused stamps will be redeemed by the Division only in full rolls or partial rolls that can be re-sold to another stamping agent. It will be necessary to segregate unsaleable packages of stamped cigarettes according to stamp color since different discount rates will apply.

(3) Stamps misapplied to packages or stamps that become unusable may be destroyed by authorized employees of the Division and a credit or refund issued upon the submission of a completed DBPR form AB&T 4000A-004. Out of state stamping agents with misapplied Florida stamps must submit a sworn affidavit for misapplied or unusable stamps.

Specific Authority 210.10(1) FS. Law Implemented 210.11 FS. History–Amended 8-25-66, Repromulgated 12-19-74, Formerly 7A-10.08,7A-10.008, Amended ________.

 

61A-10.009 Sample Packages of Cigarettes.

The Division may, in its discretion, authorize manufacturers and importers to distribute in the state sample packages of cigarettes containing not less than two (2) nor more than twenty (20) cigarettes without affixing any excise tax stamps; provided, the tax due on such sample cigarettes must be paid to the Division by the manufacturer or importer on or before the tenth (10th) calendar day of each month for all sample cigarettes distributed during the previous month. Reports shall be made on DBPR form AB&T 4000A-245, Manufacturer’s and Importer’s Report for Distribution of Samples, incorporated herein by reference and effective (_______). The manufacturer or importer shall submit to the Division, along with the report and payment of the excise tax, invoices covering all shipments of sample cigarettes for the preceding month. In those cases where the 10th calendar day falls on a Saturday, Sunday, or a legal holiday, reports and remittances shall be accepted as timely filed if postmarked or delivered to the Division on the following business day which is neither a Saturday, Sunday or legal holiday. As used in this rule, legal holiday means those days as designated in Section 110.117, Florida Statutes, and Federal holidays. Reports and payments covering sample cigarettes must be submitted to the Division at the central office in Tallahassee.

(1) The individual package of sample cigarettes must bear the words “COMPLIMENTARY – NOT FOR SALE – ALL APPLICABLE STATE TAXES HAVE BEEN PAID” or a similar statement which would indicate such cigarettes are not to be sold and that the taxes upon such cigarettes have been paid. The printing of such words shall be of contrasting colors and easily read upon the package.

(2) Sample packages of twenties twenty’s (20’s) may be sent directly to individuals, such as stockholders, retired or former employees and as a result of customer’s complaints; provided, the manufacturer is able to produce evidence of the address where such quantities of sample packages of twenties twenty’s (20’s) were delivered. The volume of sample cigarettes to any one residence shall not exceed three (3) cartons or six hundred (600) cigarettes.

(3) Where sample packages of twenties twenty’s (20’s) and/or packages of lesser amounts made to resemble packages of twenties twenty’s are distributed at random by representatives of the manufacturer or by any other persons hired by the manufacturer for distributional or promotional purposes, the manufacturer shall notify the Division in writing at a minimum of fifteen (15) calendar days prior to the beginning of the distributional or promotional date of such quantities, brands, and locations to be sampled.

(4) Sample packages containing twenty cigarettes which move through commercial channels to the consumer, such as “Buy one, get one free” or “Buy a carton, get two packs free” promotion, must have a Florida stamp affixed to the free goods by a qualified stamping agent.

Specific Authority 210.10(1) FS. Law Implemented 210.04(9), 210.09 FS. History–Repromulgated 12-19-74, Amended 3-1-76, 7-19-82, Formerly 7A-10.09, 7A-10.009, Amended ________.

 

61A-10.0091 Manufacturer’s and Importer’s Reporting Requirements.

Each manufacturer or importer shipping or causing to be shipped cigarettes into this state shall report such shipments to the Division on or before the 10th calendar day of each month for the previous month’s shipments. Reports shall be made on the following DBPR forms:

(1) AB&T 4000A-250, Instate Cigarette Manufacturer’s Report;

(2) ABT4000A-251, Out of State Cigarette Manufacturer’s Report;

(3) ABT4000A-255, Instate Cigarette Importer’s Receipt Report; and

(4) ABT4000A-256, Out of State Cigarette Importer’s Report.

In those cases where the 10th calendar day falls on a Saturday, Sunday, or a legal holiday, monthly reports shall be accepted as timely filed if postmarked or delivered to the Division on the following business day which is neither a Saturday, Sunday or legal holiday. As used in this rule, legal holiday means those days as designated in Section 110.117, Florida Statutes, and Federal holidays.

Specific Authority 210.10 FS. Law Implemented 210.09 FS. History–New ________.

 

61A-10.010 Sales, Passenger Railroads and Other Carriers.

Railroads, passenger vessels, and airlines and other operators of dining cars, club cars, or pullman cars are permitted to sell unstamped cigarettes to bona fide travelers while in transit; provided, however, such firm must report all such sales for the previous month to the Division at the central office in Tallahassee on or before the tenth calendar day of each month. Such reports must be on DBPR form AB&T 4000A-220, Passenger Carrier Cigarette Report, incorporated herein by reference and effective (_______) forms prescribed by the Division for that purpose and shall show all sales for the previous calendar month. A remittance for the amount of excise tax due the State on such sales must be submitted with the report. In those cases where the 10th calendar day falls on a Saturday, Sunday, or a legal holiday, reports shall be accepted as timely filed if postmarked or delivered to the Division on the following business day which is neither a Saturday, Sunday or legal holiday. As used in this rule, legal holiday means those days as designated in Section 110.117, Florida Statutes, and Federal holidays.

Specific Authority 210.10(1) FS. Law Implemented 210.09(2) FS. History–Repromulgated 12-19-74, Formerly 7A-10.10, 7A-10.010, Amended ________.

 

61A-10.011 Cigarette Wholesale Dealers, Monthly Reports.

(1) Cigarette wholesalers dealers, cigarette distributing agents, and exporters vending machine operators shall maintain complete and accurate records of all purchases and sales of cigarettes within or without the sState. On or before the 10th calendar tenth day of each month, such wholesalers dealers, cigarette distributing agents, and exporters vending machine operators shall report to the Division, on forms prescribed for that purpose, all such purchases and sales of cigarettes for the preceding month. Monthly reports shall be made on the appropriate and applicable forms which are incorporated herein by reference and effective (_______); DBPR form AB&T 4000A-200 Cigarette Distributing Agent’s Report, DBPR form AB&T 4000A-205 Taxable Cigarette Wholesale Dealers Report, DBPR form AB&T 4000A-210 Cigarette Exporters Report, DBPR form AB&T 4000A-225 Tax Paid Cigarette Wholesale Dealers Report, or DBPR form AB&T 4000A-235 Common Carrier Monthly Report. Such reports shall be prepared in triplicate; the original and one copy of the report shall be filed with the District Auditor of the District of the Division of Beverage wherein the wholesaler’s dealer’s, cigarette distributing agent’s, or exporter’s vending machine operator’s place of business is located. The third copy of the report shall be maintained by the wholesaler dealer, cigarette wholesale dealer or exporter vending machine operator and kept as part of their his accounting records for a period of three years.

In those cases where the 10th calendar day falls on a Saturday, Sunday, or a legal holiday, monthly reports shall be accepted as timely filed if postmarked or delivered to the Division on the following business day which is neither a Saturday, Sunday or legal holiday. As used in this rule, legal holiday means those days as designated in Section 110.117, Florida Statutes, and Federal holidays.

(2) If the Division determines that any amount of gross tax is due from the monthly reports, the Division shall notify the permit holder in writing by personal delivery or U.S. Mail, stating that the permit holder has 10 calendar days from the receipt of written notification in which to correct the report and payment amount. If the permit holder does not correct the report and payment within the allotted time, the Division will assess the amount due together with interest and penalties and initiate administrative proceedings.

Specific Authority 210.09, 210.10(1) FS. Law Implemented 210.01, 210.09(2),(3), 210.13 FS. History–Repromulgated 12-19-74, Formerly 7A-10.11, 7A-10.011, Amended ________.

 

61A-10.0111 Cigarette Audit.

(1) The term audit is defined in Rule 61A-10.001, F.A.C.

(2) When the Division performs an audit on the permit holder, it shall determine the amount of tax due for the audited period. If the Division determines that any amount of additional gross tax is due, it shall notify the permit holder in writing by personal delivery or U.S. Mail, stating that the permit holder has 10 calendar days from the receipt of written notification in which to provide additional information to the Division. If the permit holder does not correct the audit finding and make payment within the allotted time, the Division will assess the proper amount due together with interest and penalties and initiate administrative proceedings according to Rule 61A-10.027, F.A.C.

(3) To determine whether the accounting records of the permit holder are reasonably accurate, the Division may use the formula of beginning inventory plus purchases for the period, less tax exempt sales, less ending inventory, to ascertain taxable sales for the period. Adjustments made to this formula will be based on factual and substantiated evidence. The results of the formula will represent sales transactions as defined in Section 210.01(3), Florida Statutes, for the period under review.

Specific Authority 210.09, 210.10 FS. Law Implemented 210.01, 210.09, 210.13 FS. History–New ________.

 

61A-10.0112 Required Documentation for Imported Cigarettes.

Importers must maintain the following documentation and provide it to the Division upon request:

(1) A copy of the importers permit issued by the Internal Revenue Service;

(2) A copy of the U.S. Customs form for the cigarettes showing tax information required by the federal taxing authorities; and

(3) A certified document demonstrating compliance with federal labeling regulations and ingredient reporting.

Specific Authority 210.10 FS. Law Implemented 210.09, 210.185 FS. History–New________.

 

61A-10.012 Manufacturers’ and Importers’ Representatives, Reports and Responsibilities.

Manufacturers’ and importers’ representatives are considered an extension of their respective manufacturer or importer.

(1) Manufacturers’ and importers’ representatives may only sell or distribute cigarettes to a wholesale dealer or importer; however, the Division has the discretion to authorize manufacturers’ and importers’ representatives to distribute free sample packages of cigarettes consistent with Rule 61A-10.009, F.A.C. Manufacturers’ representatives are required to submit the same monthly report as are cigarette wholesalers. Manufacturers’ representatives are responsible for all activities of their subordinate personnel insofar as these activities concern the sale, purchase, distribution and handling of cigarettes. A violation of any of the Florida laws concerning cigarettes by a manufacturer’s representative or any of his subordinate personnel shall be sufficient grounds for the division to prohibit such person from acting in the capacity of a manufacturer’s representative.

(2) Manufacturers and Importers shall report their respective representatives’ activities as part of their required reports as specified in Rule 61A-10.0091, F.A.C. Exceptions to this rule and to Rule 61A-10.013, Florida Administrative Code, shall be granted upon written request to the division. Upon approval of an exception, the manufacturers’ representatives will not be required to personally submit monthly reports to the division. The wholesale dealer who records and reports the manufacturers’ representatives’ retail sales is responsible as the agent for the manufacturers’ representatives for the accurate reporting of all cigarettes to retailers by county sales to the division. Exceptions will not be granted absent a written commitment from each wholesaler providing cigarettes to manufacturers’ representatives to the effect that reporting which would otherwise be required of the manufacturer’s representative will be made by the wholesaler. The permittee must notify the division of revocation of any agreement regarding monthly reporting of sales by manufacturers’ representatives, at least 30 days prior to the effective date of the revocation.

Specific Authority 210.10(1) FS. Law Implemented 210.01(16), 210.085, 210.09 FS. History–Repromulgated 12-19-74, Formerly 7A-10.12, Amended 1-24-91, 8-28-91, Formerly 7A-10.012, Amended ________.

 

61A-10.013 Transactions, Wholesalers Dealers, and Manufacturers’ and Importers’ Representatives.

(1) Cigarette transactions between manufacturers’ and/or importers’ representatives and qualified wholesalers dealer are to be reported individually. It will be the responsibility of each wholesaler and manufacturer’s and importer’s representative to issue individual sales slips for all such transactions.

(2) Any wholesaler dealer making sales to or purchases from a manufacturer’s or importer’s representative must list on the his monthly report the name and permit number of the manufacturer’s or importer’s representative making the purchase or sale, permit number and the name of the manufacturer or importer on whose behalf the manufacturer’s representative is acting. Each such sale or purchase is to be reported separately.

Specific Authority 210.10(1) FS. Law Implemented 210.09(2), 210.01(16) FS. History–Repromulgated 12-19-74, Amended 2-1-76, Formerly 7A-10.13, 7A-10.013, Amended ________.

 

61A-10.014 Wholesalers Dealers, Purchase for Resale Prohibited.

Cigarette wholesalers dealers and vending machine operators are prohibited from purchasing cigarettes from retail cigarette dealers for the purpose of resale; provided, however, that cigarettes may be returned to a wholesaler’s dealer’s inventory by retailers dealers if such returns are reported on the wholesaler’s dealer’s monthly report.

Specific Authority 210.10(1) FS. Law Implemented 210.15(1)(h) FS. History– Repromulgated 12-19-74, Formerly 7A-10.14, 7A-10.014, Amended ________.

 

61A-10.015 Transfer, Unstamped Cigarettes.

Specific Authority 210.10(1) FS. Law Implemented 210.06(1) FS. History–Repromulgated 12-19-74, Amended 3-1-76, Formerly 7A-10.15, Amended 3-15-90, Formerly 7A-10.015, Repealed ________.

 

61A-10.016 Manufacturer, Importer, Wholesaler Dealer, Cigarette Wholesale Dealer or Exporter, Permit Changes.

Specific Authority 210.10(1) FS. Law Implemented 210.15(7) FS. History–Repromulgated 12-19-74, Amended 3-1-76, Formerly 7A-10.16, 7A-10.016, Repealed ________.

 

61A-10.017 Direct Drop Shipments, Prohibition, Exception, and Excise Taxes.

(1) No manufacturer or importer may ship cigarettes directly to any retail dealer in the State of Florida; and no wholesaler dealer may place orders with a manufacturer or importer for a direct drop shipment of cigarettes to a retail dealer.

(2) Whenever cigarettes are shipped by a vendor from outside the state directly to individual consumers in Florida, the out-of-state vendor has a responsibility to provide information to the Division as required by the Jenkins Act, Title 15, Chapter 10A, Section 376, United States Code. Any person selling or transferring cigarettes for profit in interstate commerce to other than a wholesale dealer must first report to the Division their intent to sell into Florida by providing their name and trade name, and the address of their places of business. By the 10th calendar day of each month the person must report to the Division all sales or transfers of cigarettes shipped into Florida by providing a memorandum or copy of the invoice covering each and every shipment made during the previous calendar month, and including the name and address of the person to whom the shipment was made, the brand, and the quantity thereof.

In those cases where the 10th calendar day falls on a Saturday, Sunday, or a legal holiday, reports shall be accepted as timely filed if postmarked or delivered to the Division on the following business day which is neither a Saturday, Sunday or legal holiday. As used in this rule, legal holiday means those days as designated in Section 110.117, Florida Statutes, and Federal holidays.

(3) Any person in possession of any cigarettes upon which a tax is imposed and upon which that tax has not been paid is personally liable for the amount of tax imposed. Whenever cigarettes are shipped from an out-of-state vendor to an individual consumer in Florida, the person receiving the cigarettes is responsible for the tax on the cigarettes and the payment of the tax to the state. DBPR Form AB&T 4000A-215, Individual Cigarette And/Or Tobacco Product Excise Tax Report, incorporated herein by reference and effective (_______) is used to report such cigarettes and for payment of the applicable excise taxes due to the Division.

Specific Authority 210.10(1) FS. Law Implemented 210.02(6), 210.085 FS. History–Repromulgated 12-19-74, Formerly 7A-10.17, 7A-10.017, Amended ________.

 

61A-10.018 Invoices or Daily Sales Tickets, Cigarette Sales to Retail Dealers.

(1) Cigarette wholesalers dealers and vending machine operators are required to keep sales tickets or invoices covering all sales of cigarettes to retail dealers.

(2) Cigarettes placed into a vending machine owned by a vending machine operator holding a cigarette wholesale dealer permit shall not be subject to the provisions of this section.

(2)(3) Invoices of cigarette sales by wholesale dealers to retail tobacco products dealers must include:

(a) Seller’s business name, address, and cigarette wholesale dealer’s state wholesale dealer’s permit number;

(b) Invoice number;

(c)(b) Purchaser’s business name;

(d)(c) Purchaser’s name (individual, partnership, or corporation);

(e)(d) Business address of purchaser, including county name or numeric code as found in the retail tobacco products dealer state permit number, and required under Sections 218.215, 218.23, 218.245, 218.25, and 218.26, Florida Statutes;

(f)(e) Retail tobacco products dealer state permit number;

(g)(f) Date of delivery;

(h)(g) Number of packages or cartons of each brand sold or delivered; and

(i)(h) If products other than cigarettes are located on an invoice to the retailer dealer, cigarettes shall be listed following one another in uninterrupted order.

(3)(4) Invoices which include both cigarettes and other tobacco products must meet the minimum requirements set forth in this rule and Rule 61A-10.053 61A-10.0181, F.A.C.

Specific Authority 210.10(1) FS. Law Implemented 210.09(4)(a), 210.20 210.60, 218.215, 218.23, 218.245, 218.25, 218.26, 569.007 FS. History–Repromulgated 12-19-74, Amended 3-1-76, Formerly 7A-10.18, 7A-10.018, Amended 12-20-94, ________.

 

61A-10.0181 Invoices, Other Tobacco Products Sales to Retail Dealers.

Specific Authority 210.10(1) FS. Law Implemented 210.09(4)(a), 210.60, 218.215, 218.23, 218.245, 218.25, 218.26, 569.007 FS. History–Repromulgated 12-19-74, Amended 3-1-76, Formerly 7A-10.18, 7A-10.018, Amended 12-20-94, Repealed_________.

 

61A-10.020 Vending Machines, Permits and Restrictions.

(1) Vending machines may only be operated by retail dealers. Each machine dispensing or vending cigarettes must display at all times at least one package in each column of cigarettes therein which shall be arranged so that the cigarette excise tax stamps or meter imprints thereon are clearly and directly visible from the outside of the machine.

(2) Vending machine operators must possess a Florida retail dealer permit issued by the Division.

This permit shall cover the vending machine operator’s primary business location as well as registered vending machines owned or operated by the vending machine operator. The premises on which a vending machine is located or placed must also possess a Florida retail dealer permit issued by the Division.

(3) Each vending machine dispensing cigarettes must be registered with the Division and have affixed thereto an identification sticker, DBPR form AB&T 4000A-008, Cigarette Vending Machine Identification, incorporated herein by reference and effective (______), furnished by the Division.

(4)(2) No vending machines dispensing cigarettes may sell or offer for sale other products which are labeled or packaged in such a manner to resemble, represent or have a tendency to misrepresent cigarette products being sold or offered for sale unless notice is clearly provided that the product being dispensed is not a cigarette product. Notice is sufficient if displayed on or adjacent to the individual lever depressed or extended by the consumer to receive the product.

Specific Authority 210.10(1), 569.009 FS. Law Implemented 210.01, 210.07(4), 210.085, 569.003 FS. History–Amended 10-20-72, Repromulgated 12-19-74, Amended 3-1-76, Formerly 7A-10.20, Amended 1-16-89, Formerly 7A-10.020, Amended ________.

 

61A-10.021 Vending Machines, Reports Sales and Returns.

Vending machine operators are required to furnish the Division, DBPR form AB&T 4000A-240 Monthly Changes of Vending Machine Locations, incorporated herein by reference and effective (_______) and DBPR form AB&T 4000A-241 Annual Schedule of Vending Machine Locations, incorporated herein by reference and effective (_______), on July 1st of each year. All wholesalers who operate cigarette vending machines are required to report all cigarettes placed in vending machines, including those placed in the machine during the initial installation of the machine, as cigarettes sold, if any cigarettes are removed from a vending machine, the packages of cigarettes removed shall be returned to the wholesaler’s regular inventory and must be reported on Page 12, Line 4 of the wholesaler’s monthly report as cigarettes previously sold. On Page 12, Schedule C, of the report the wholesaler must report the number of packages of cigarettes so returned indicating county area, and the name of each county area from which such returns were made must be listed on Schedule C, reflecting the number of packages of cigarettes returned from each.

Specific Authority 210.10(1) FS. Law Implemented 210.09(2),(4)(a) FS. History–Repromulgated 12-19-74, Amended 3-1-76, Formerly 7A-10.21, 7A-10.021, Amended ________.

 

61A-10.026 Sale of Stamped, Untaxed Cigarettes by Stamping Agents or Wholesale Dealers to Indians for Retail Sale, Reporting.

(1) Stamping agents or wholesale dealers may sell stamped but untaxed cigarettes only to Federally recognized the Seminole Indian Tribes or to an enrolled member thereof exclusively for retail sale on Federally recognized Seminole Indian Reservations or trust lands when such cigarettes have Division approved stamps affixed are stamped with meter imprint and ink or water applied stamp designated and approved by the Division. Federal recognized Indian Tribes are those Indian tribes published in the Federal Register of the Department of the Interior, Bureau of Indian Affairs. For purposes of this section, stamped but untaxed cigarettes will be referred to as “Indian cigarettes.”

(2) Indian cigarettes Such cigarettes stamped but untaxed cigarettes may be sold only to a retail business exclusively owned and operated by a Federally recognized the Seminole Indian Tribe or an enrolled member thereof for retail sale exclusively by such Tribe or member on Seminole Reservation or trust lands.

(3) Each designated stamping agent or wholesaler selling any such stamped but untaxed cigarettes to a Federally recognized the Seminole Indian Tribe or to an enrolled member thereof shall obtain and provide to the Division the following report and records:

(a) The invoice or sales slip substantiating any such tax-free sale which invoice or sales slip shall be attached to the monthly report. The invoice or sales slip must be signed by a person authorized to receive such stamped but untaxed cigarettes.

(b) The name of any person authorized to receive and sign for such tax-free cigarettes shall be submitted by the designated stamping agent or wholesaler to the Division. District Auditor of the District of the Division of Alcoholic Beverages and Tobacco wherein the Seminole Indian Reservation or trust lands involved are located prior to any sale;

(c) A written statement which sets forth all persons or entities holding a direct or indirect interest in the retail business, located on Indian Reservations or trust lands, purchasing Indian cigarettes such cigarettes and all persons or entities entitled to share in any profits or income of the retail business purchasing such cigarettes. This statement shall be obtained prior to any sales of stamped but untaxed cigarettes to any retail business located on Indian Seminole Reservations or trust lands and shall be amended by similar Indian interest or entitlement to share in profits or income. Any changes in interest or entitlement to share of profits or income shall be reported to the Division. Such Sstatements shall be kept on file for a period of three years and shall be available for inspection and review by the Division.

(4) All inventories of cigarettes bearing stamps meter imprints which are to be sold to a Federally recognized Indian Tribe or an enrolled member thereof for sale on Seminole Indian Reservations or trust lands must be kept segregated in a separate and secure bonded area of the wholesaler’s dealer’s warehouse so as not to allow the commingling of taxed cigarettes bearing stamps meter imprints with untaxed cigarettes bearing stamps meter imprints. Also, A a log of all receipts and withdrawals must be maintained for the secured area by the stamping agent.

(5) No stamping agent or wholesaler shall be authorized to receive from any retailer, wholesaler, Indian outlet, or manufacturer’s representative any Indian cigarettes which have been spoiled, damaged, or become stale for any reason unless such stamping agent wholesaler has originally applied the stamp metering imprints to the Indian cigarettes.

(6) All stamping agents or wholesalers who apply stamps to cigarettes must separate taxable cigarettes from meter imprints to taxable cigarettes and nontaxable Indian cigarettes must separate each of said classification of cigarettes prior to any witnessing by a Division of Alcoholic Beverages and Tobacco representative of such cigarettes for cancellation of cigarettes tax stamps by the Division, meter impressions or stamp indicia. Since there is no tax paid there can be no refund of tax for spoiled, damaged, or stale Indian cigarettes.

(7) Any stamping agent or wholesaler purchasing cigarettes for resale to the Seminole Indian Tribe or an enrolled member thereof on Seminole Indian Reservation or trust lands from other than a manufacturer of cigarettes licensed by the federal government must submit with their monthly cigarette report, a certified copy of the monthly report prepared by the shipper of such cigarettes into the State of Florida, which is required to be submitted to the taxing authority in the state in which the shipper is located.

(7)(8) Any sales of stamped but untaxed cigarettes by a stamping agent or wholesaler not in strict conformity with the provisions of this rule shall be deemed a taxable sale and such stamping agent or wholesaler shall be liable for payment of such taxes.

Specific Authority 210.09, 210.10(1), 210.11 FS. Law Implemented U.S.C. Const. Art. I § 8, cl. 3, U.S.C. Const. Art. VI cl. 2, 25 U.S.C. §§ 261-264; 210.05(5), 210.09(2) FS. History–New 10-14-79, Formerly 7A-10.26, Amended 12-31-85, Formerly 7A-10.026, Amended ________.

 

61A-10.027 Interest on Excise Tax; Due Dates.

(1) Excise taxes on cigarettes assessed pursuant to the accounting records and returns of the stamping agent seller or dealer are due not later than the 10th calendar day of the month following the calendar month in which the taxes were incurred. Interest on taxes assessed shall accrue from that date.

(2) Excise taxes on cigarettes owed by a stamping agent seller or dealer which are assessed as a result of a Ddivision audit shall become due not later than the 10th calendar day of the month following the calendar month in which the Ddivision determines the taxes were incurred. Interest on taxes assessed shall accrue from that date.

(3) Excise taxes on cigarettes owed by a stamping agent seller or dealer which are assessed as a result of a Ddivision audit under circumstances where the Ddivision is unable to allocate the taxes to any particular month shall be due not later than the 10th calendar day of the month following the calendar month which the Ddivision makes its assessment. Interest on taxes owed shall accrue from that date.

(4) In those cases where the 10th calendar day falls on a Saturday, Sunday, or a legal holiday, remittances shall be accepted as timely filed if postmarked or delivered to the Division on the following business day which is neither a Saturday, Sunday or legal holiday. As used in this rule, legal holiday means those days as designated in Section 110.117, Florida Statutes, and Federal holidays.

Specific Authority 210.10 FS. Law Implemented 210.02(6) FS. History–New 10-31-89, Formerly 7A-10.027, Amended ________.

 

61A-10.031 New Off Premise Storage of Unstamped Cigarettes.

Specific Authority 210.10(1) FS. Law Implemented 210.09 FS. History–New 3-15-90, Formerly 7A-10.031, Repealed ________.

 

PART II

Tobacco Products Division Rules

61A-10.050 Definitions.

“Tobacco Products Wholesale Dealer” also known as “TWD” means a “distributor” as defined in Section 210.25(4), Florida Statutes.

Specific Authority 210.75 FS. Law Implemented 210.01, 210.25 FS. History–New________.

 

61A-10.051 Excise Tax Exemption, Reports.

Excise taxes imposed by Section 210.30, Florida Statutes, shall not apply to the following:

(1) Tobacco products sold at post exchanges, ship service stores, ship stores, slop chests, or other outlets to members of the armed services of the United States when such establishments are operated under the regulations of the Army, Navy, or Air Force of the United States, or the United States Coast Guard or NASA on such reservations in this state; however, it is unlawful for anyone, including members of the armed services of the United States, to purchase such tax-exempt tobacco products for resale within the State of Florida.

(2) Tobacco products shipped directly from the manufacturer or importer to facilities operated by the Federal Bureau of Prisons, located on lands solely owned by the United States government, for consumption by such inmates. Manufacturers or importers shipping such tobacco must notify the Division each month of the facility name and the quantity of tobacco products shipped.

(3) Each tobacco products wholesale dealer selling such tax-free tobacco products shall attach to the monthly report a copy of the invoice substantiating such tax-free sale. The invoice must be signed by a person authorized to receive such tax-free tobacco products. The name of any person authorized to receive and sign for such tax-free tobacco products must be submitted by the commanding officer of the military installation to the auditor supervisor for the district of the Division where the military installation is located.

Specific Authority 210.55, 210.75 FS. Law Implemented U.S.C. Const. Art. VI cl. 2; 4 U.S.C. § 107; 14 U.S.C. §§ 1, 2; 42 U.S.C. §§ 2451, 2472; 210.30 FS. History–New________.

 

61A-10.052 Monthly Reports, Required.

(1) Licensed tobacco products wholesale dealers and manufacturers, both inside and outside this state shall keep complete and accurate records and make full and complete reports reflecting the detail of all transactions on the appropriate and applicable forms furnished by the Division, incorporated herein by reference and effective (_______); DBPR form AB&T 4000A-300 In-State Tobacco Products Wholesale Dealer’s Report, DBPR form AB&T 4000A-305 Out-Of-State Tobacco Products Wholesale Dealer’s Report, and DBPR form AB&T 4000A-310 Tobacco Products Manufacturer’s and Importer’s Report.

(2) Such required reports and remittances shall be deemed to be filed in a timely manner and qualify the tobacco products wholesale dealer for collection allowances under Section 210.55, Florida Statutes, when the report and remittance are received by the Division on or before the 10th calendar day of the month following the month being reported. In those cases where the 10th calendar day falls on a Saturday, Sunday, or a legal holiday, monthly reports and remittances shall be accepted as timely filed if postmarked or delivered to the Division on the following business day which is neither a Saturday, Sunday or legal holiday. As used in this rule, legal holiday means those days as designated in Section 110.117, Florida Statutes, and Federal holidays.

(3) Mail containing the monthly report or the excise tax remittance must bear a date mark stamp affixed by the U.S. Postal Service, or other established businesses engaged in the delivery of mail, to authenticate the mailing date. Postage meters owned, leased or operated by the tobacco products wholesale dealer or manufacturer shall not serve as proof of mailing date without supporting affidavits, letters or records by the tobacco products wholesale dealer or manufacturer that the reports were placed in the U.S. Mail, or other established businesses engaged in the delivery of mail, on or before the 10th calendar day of the month.

(4) Failure of the tobacco products wholesale dealer to report and remit excise taxes as required shall cause the tobacco products wholesale dealer to be deemed delinquent and to forfeit all rights and privileges of collection allowances authorized by Chapter 210, Florida Statutes.

(5) If reports are physically delivered to the Division after the 10th calendar day of the month for reasons beyond the tobacco products wholesale dealer’s control, the Division may consider affidavits and other supporting documentation in determining whether or not an exception should be made to approve the collection allowance.

(6) Tobacco products wholesale dealers receiving tobacco products from manufacturers shall be required to furnish the Division with a list of shipments received each month on forms provided by the Division. Manufacturers shipping tobacco products to Florida tobacco products wholesale dealers shall be required to furnish the Division with a list of shipments made each month on forms provided by the Division.

(7) The Division may authorize manufacturers to distribute sample packages of tobacco products within the state and provide tobacco products to employees and stockholders; provided, such samples and gifts are reported on DBPR form AB&T 4000A-245, Manufacturer’s and Importer’s Report for Distribution of Samples, incorporated herein by reference and effective ( ), furnished by the Division. The report shall be remitted to the Division along with any applicable excise tax payment on or before the 10th calendar day of each month for samples or gifts distributed during the previous month.

(8) If the Division determines that any amount of gross tax is due from the taxpayer, the Division shall notify the taxpayer in writing by personal delivery or U.S. Mail, stating that the taxpayer has 10 calendar days from the receipt of written notification in which to correct the report. If the taxpayer does not correct the report within the allotted time then the Division will notify the taxpayer in writing by personal delivery or U.S. Mail, that it intends to assess the amount due together with interest, penalties, disallowance of discount, and initiate administrative proceedings.

(9) When the Division performs an audit on the taxpayer, it shall determine the tax due. If the Division determines that any amount of gross tax is due from the taxpayer, it shall notify the taxpayer in writing, stating that the taxpayer has 10 calendar days from the receipt of written notification in which to provide the Division with additional information. After 10 calendar days, the Division will notify the taxpayer in writing, that it intends to assess the proper amount due together with interest, penalties, disallowance of discount, and initiate administrative proceedings.

Specific Authority 210.55, 210.75 FS. Law Implemented 210.55, 210.60 FS. History–New ________.

 

61A-10.053 Records Maintenance.

Every manufacturer, tobacco products wholesale dealer and retailer must preserve all books, records, sales/purchase invoices, and other documents as required by Section 210.60, Florida Statutes. Such records shall be preserved for a period of 3 years. Records may be maintained on optical storage/retrieval systems capable of being viewed, retrieved and reproduced upon request by the Division.

Specific Authority 210.75 FS. Law Implemented 210.60 FS. History–New ________.

 

61A-10.054 Invoices, Tobacco Products Sales to Retailers.

(1) Tobacco products wholesale dealers are required to keep sales tickets or invoices covering all sales of tobacco products to retailers. Invoices of tobacco products sales by tobacco products wholesale dealers to retailers shall include:

(a) Tobacco products wholesale dealer’s name, address, and state permit number;

(b) Invoice number;

(c) Purchaser’s business name;

(d) Purchaser’s name (individual, partnership, or corporation);

(e) Purchaser’s business address;

(f) Retailer’s state permit number;

(g) Date of delivery;

(h) Number of units of each brand of tobacco products, wholesale price per unit, and discount per unit sold to the retailer;

(i) If items other than tobacco products are listed on the invoice to the retailer, tobacco products shall be listed following one another in uninterrupted order; and

(j) In addition to the above requirements, an out of state tobacco products wholesale dealer licensed by the state of Florida shall list discounts separate and apart from the wholesale price of each unit. All discounts and free units attached to units being sold shall not reduce the unit wholesale price for tax purposes.

(2) Invoices which include both cigarettes and other tobacco products must meet the minimum requirements set forth in this rule and Rule 61A-10.018, F.A.C.

Specific Authority 210.75 FS. Law Implemented 210.25, 210.60 FS. History–New________.

 

61A-10.055 Excise Tax Refunds.

(1) To receive a refund or credit for tobacco products upon which the excise tax has been paid and the products have been subsequently transferred to an out-of-state location, or returned to a manufacturer or importer, or been destroyed, the tobacco products wholesale dealer must provide the following documentation to the Division.

(a) Tobacco products shipped back to a manufacturer or importer must have an affidavit or credit memo from the manufacturer or importer stating that they have received the tobacco products.

(b) Tobacco products sold to tobacco products wholesale dealers, retailers, or consumers located outside of the state of Florida must have a sales invoice listing the quantity and type of tobacco products sold as well as the name, address, and telephone number of the out-of-state destination.

(c) Destroyed tobacco products must be witnessed by an agent of the Division and a copy of the signed destruction form must be provided to the Division.

(2) The amount of the tax reduction can be taken on the DBPR Form AB&T 4000A-300, Instate Tobacco Products Wholesale dealer’s Report incorporated herein by reference and effective (_______), by reporting the transaction on the appropriate details page of the report.

(3) In lieu of taking the deduction on the monthly report, the tobacco products wholesale dealer can request that the Division pay the refund or credit back to them.

Specific Authority 210.75 FS. Law Implemented, 210.25, 210.67 FS. History–New________.

 

PART III

CIGARETTE AND TOBACCO PRODUCTS

PERMIT RULES

61A-10.080 Application for Cigarette Permit, Manufacturer or Importer.

(1) In order to be permitted as a manufacturer or importer, or to make changes to an existing manufacturer or importer permit, a completed application must be submitted to and approved by the Division. A completed application shall consist of the following:

(a) Properly executed application on form, DBPR ABT-6024 Application for Wholesale Cigarette Permit, incorporated herein by reference and effective (_______);

(b) Payment of the permit fee of $100;

(c) A copy of a Federal permit to manufacture or import cigarettes; and

(d) If the location for any permit is in the state, the applicant must submit to the Division a sketch of the premises along with a right of occupancy for the location.

(2) A separate and complete application must be made for each place of business located within this state. Absent such a place of business in this state a permit is required for wherever its principal place of business is located.

(3) Permits remain in effect until July 1st following their issuance, or until suspended or revoked by the Division, or until surrendered by the permit holder.

(4) Prior to the expiration of the permit, the Department of Business and Professional Regulation will send permitees a renewal notice. The permitee shall comply with the terms of the renewal notice and submit a renewal fee of $100 prior to June 30th of each year. It is the permitee’s responsibility to timely renew a permit. Failure to receive the renewal notice from the Department of Business and Professional Regulation shall not excuse a permitee from penalties associated with late renewal.

(5) The Division shall assess delinquent renewal penalties on permit holders who fail to timely renew their permits. The Division will use the postmark date as evidence of delinquency. Any renewal postmarked after the due date will be considered delinquent and must pay the applicable delinquent renewal penalty in addition to the renewal fee to the Division prior to the permit being renewed. A penalty of $20 will be assessed for each month or part of a month of such delinquency. Any permit not renewed within 60 days of its expiration shall be cancelled by the Division, unless the permit is involved in litigation. Furthermore, the Division may renew a permit after the 60 days for good and sufficient cause.

(6) A manufacturer or importer permit may not be transferred to a new owner.

(7) The Division may allow a permit to be moved to another location. To request that a permit be moved, a permit holder must follow the procedure set out in paragraph 61A-10.084(1)(b), F.A.C.

(8) If requested and upon application for a permit, the Division shall issue an initial temporary permit to any new applicant who has filed a complete application which does not on its face provide for denying a permit. The initial temporary permit will be valid for up to 90 days and may be extended by the Division for up to an additional 90 days. If the applicant is denied a permit, the initial temporary permit will cease to be valid on that date. The initial temporary permit fee is $100, which is separate from the permit fee and which shall be submitted to the Division upon request of the initial temporary permit.

Specific Authority 210.10, 210.15 FS. Law Implemented 210.15, 210.151, 210.1605 FS. History–New _______.

 

61A-10.081 Application for Cigarette Permit, Wholesale Dealer, Exporter, or Cigarette Distributing Agent.

(1) In order to be permitted as a wholesale dealer, exporter, or cigarette distributing agent, or to make changes to an existing wholesale dealer permit, exporter permit, or cigarette distributing agent permit, a completed application must be submitted to and approved by the Division. A completed application shall consist of the following:

(a) Properly executed application on form, DBPR ABT-6024 Application for Wholesale Cigarette Permit, incorporated herein by reference and effective (_______);

(b) A set of fingerprints for each applicant and for any person or persons interested directly or indirectly with the applicant in the business for which the permit is being sought. When making changes to an existing permit, fingerprints will only be required for new applicants and for any new person or new persons interested directly or indirectly with the business for which the permit is changed;

(c) Payment of the permit fee of $100; and

(d) If the location for any permit is in the state, the applicant must submit to the Division a sketch of the premises along with a right of occupancy for the location.

(2) A separate and complete application must be made for each place of business located within this state. Absent such a place of business in this state a permit is required for wherever its principal place of business is located.

(3) Permits remain in effect until July 1st following their issuance, or until suspended or revoked by the Division, or until surrendered by the permit holder.

(4) Prior to the expiration of the permit, the Department of Business and Professional Regulation will send permitees a renewal notice. The permitee shall comply with the terms of the renewal notice and submit a renewal fee of $100 prior to June 30th of each year. It is the permitee’s responsibility to timely renew a permit. Failure to receive the renewal notice from the Department of Business and Professional Regulation shall not excuse a permitee from penalties associated with late renewal.

(5) The Division shall assess delinquent renewal penalties on permit holders who fail to timely renew their permits. The Division will use the postmark date as evidence of delinquency. Any renewal postmarked after the due date will be considered delinquent and must pay the applicable delinquent renewal penalty in addition to the renewal fee to the Division prior to the permit being renewed. A penalty of $20 will be assessed for each month or part of a month of such delinquency. Any permit not renewed within 60 days of its expiration shall be cancelled by the Division, unless the permit is involved in litigation. Furthermore, the Division may renew a permit after the 60 days for good and sufficient cause.

(6) A wholesale dealer permit, exporter permit, or cigarette distributing agent permit may not be transferred to a new owner.

(7) The Division may allow a permit to be moved to another location. To request that a permit be moved, a permit holder must follow the procedure set out in paragraph 61A-10.084(1)(b), F.A.C.

(8) If requested and upon application for a permit, the Division shall issue an initial temporary permit to any new applicant who has filed a complete application which does not on its face provide for denying a permit. The initial temporary permit will be valid for up to 90 days and may be extended by the Division for up to an additional 90 days. If the applicant is denied a permit, the initial temporary permit will cease to be valid on that date. The initial temporary permit fee is $100, which is separate from the permit fee and which shall be submitted to the Division upon request of the initial temporary permit.

Specific Authority 210.10, 210.15 FS. Law Implemented 210.01, 210.15, 210.151, 210.1605 FS. History–New _________.

 

61A-10.082 Application for a Tobacco Products Wholesale Dealer Permit.

(1) A tobacco products wholesale dealer permit is required by any entity acting as a distributor as defined in subsection 61A-10.050(2), F.A.C. and Section 210.25(4), Florida Statutes 2005.

(2) In order to be permitted as a tobacco products wholesale dealer, or to make changes to an existing permit, a completed application must be submitted to and approved by the Division. A completed application shall consist of the following;

(a) Properly executed application on form, DBPR ABT-6005 Application for Tobacco Products Wholesale Dealer’s Permit, incorporated herein by reference and effective (______).

(b) Payment of the permit fee of $25.

(c) If the location for any permit is in the state, the applicant must submit to the Division a sketch of the premises along with a right of occupancy for the location.

(d) Submission of a surety bond issued by a surety company authorized to do business in Florida in the amount of no less than $1,000. The Division shall have discretion in requiring a larger bond amount if the minimum is insufficient to fully protect the state.

(3) A separate and complete application must be made for each place of business the distributor proposes to engage in business. The applicant may provide the Division with one bond in an amount determined by the Division for all applications made by the distributor.

(4) The permit shall expire on June 30th of each year. The Department of Business and Professional Regulation will send out renewal notices to permitees prior to the expiration of the permit. The permitee shall comply with the terms of the renewal notice and submit the renewal fee of $25 prior to July 1st of each year. It is the permitee’s responsibility to timely renew a permit. Failure to receive the renewal notice from the Department of Business and Professional Regulation shall not excuse a permitee from penalties associated with late renewal.

(5) The Division shall assess delinquent renewal penalties on permit holders who fail to timely renew their permits. The Division will use the postmark date as evidence of delinquency. Any renewal postmarked after the due date will be considered delinquent and must pay the applicable delinquent renewal penalty in addition to the renewal fee to the Division prior to the permit being renewed. A penalty of $20 will be assessed for each month or part of a month of such delinquency. Any permit not renewed within 60 days of its expiration shall be cancelled by the Division, unless the permit is involved in litigation. Furthermore, the Division may renew a permit after the 60 days for good and sufficient cause.

(6) A tobacco products wholesale dealer’s permit may not be transferred to a new owner. An attempt to transfer the permit will result in automatic expiration.

(7) If requested and upon application for a permit, the Division shall issue an initial temporary permit to any new applicant who has filed a complete application which does not on its face provide reason for denying a permit. The initial temporary permit will be valid for up to 90 days and may be extended by the Division for up to an additional 90 days. If the applicant is denied a permit, the initial temporary permit will cease to be valid on that date. The initial temporary permit fee is $25, which is separate from the permanent permit fee and which shall be submitted to the Division upon request of the initial temporary permit.

Specific Authority 210.75 FS. Law Implemented 210.25, 210.35, 210.40, 210.405, 210.45, 210.51 FS. History–New ________.

 

61A-10.083 Application for Retail Tobacco Products Dealer Permit.

(1) For this section the term retail tobacco products dealer shall refer to the definition provided by Section 569.002(4), Florida Statutes. For this section the term tobacco products shall refer to the definition provided by Section 569.002(6), Florida Statutes. A tobacco products retail dealer permit is required to sell cigarettes and tobacco products at retail.

(2) In order to be permitted as a retail dealer, or to make changes to an existing tobacco products retail dealer permit, the applicant or permit holder must do one of the following:

(a) Retail dealers only interested in applying for a retail dealer tobacco products permit must submit form DBPR ABT-6028, Application for Retail Tobacco Products Dealer Permit, incorporated herein by reference and effective (______); or;

(b) Retail dealers interested in applying for both a tobacco products permit and an alcoholic beverage license simultaneously must complete and submit form DBPR ABT 6001, Application for Alcoholic Beverage License and Tobacco Permit, as referenced in Rule 61A-5.700, F.A.C.; or

(c) Retail dealers interested in applying for multiple permits or to make changes thereto must complete and submit form DBPR ABT 6028 Application for Retail Tobacco Products Dealer Permit, incorporated herein by reference and effective (______).

(3) The fee for a new tobacco products retail dealer permit shall be $50.

(a) For applicants applying under paragraph (1)(a) of this rule, the $50 fee must be paid when the application is submitted to the Division.

(b) Applicants applying under paragraph (1)(b) of this rule must submit the $50 fee once the application has been approved by the Division. The Division will notify the applicant of their approval and will invoice the applicant for the cigarette and tobacco products retail dealer permit.

(4) The terms “place of business”, “place”, “the premises”, “location”, “single location” and “permitted premises” are synonymous. Place of business is defined as rooms where tobacco products are stored or sold or kept for the purpose of sale or consumption.

(a) Where sales of tobacco products are conducted through a vending machine, the premises shall include the place where the vending machine is located and any such vending machine including the area within the unobstructed line of sight of the dealer, or the dealer’s agent or employee responsible for preventing sales to persons under 18 years of age.

(b) Where sales of tobacco products are conducted from a cart or person moving about, the place of business and/or the premises shall include any such conveyance.

(c) A theme park complex, a hotel or resort complex, a stadium, an airport facility and the like will be considered a “single location” when all buildings or structures are owned, managed, controlled or operated under one business name and are situated on the same tract or plot of land that is not separated by a public street or highway.

(d) Itinerant stores, industrial caterers, trains, steamships and similar vehicles and vessels may be permitted for the retail sale of cigarette and tobacco products with the vehicle or vessel being designated as the place of business. In any such case, the location address shall be the office or homeport address in this state where the vehicle or vessel is domiciled.

(5)(a) The permit year for a retail tobacco products dealer permit shall be from January 15 through the following January 15 of each year and shall not be pro rated except as follows:

(b) The permit year for a retail tobacco products dealer permit shall be changed in order that the alcoholic beverage license and the tobacco permit may be renewed simultaneously. A person who is both an alcoholic beverage licensee and a retail tobacco products dealer permit holder will have a permit year commensurate with the alcoholic beverage license year. The retail tobacco products dealer permit will be renewed at a charge of $50 and the permit year shall commensurate with the license year of the alcoholic beverage license which is either April 1 through March 31 or October 1 through September 30 as specified by county.

(6) A cigarette and tobacco products retail dealer permit may not be transferred to a new owner.

(7) The Division shall issue at the request of the applicant a temporary retail tobacco products permit whenever an applicant is also filing a temporary alcoholic beverage license of any kind. There shall be no fee for the issuance of the temporary retail tobacco products dealer permit.

(8) If a permit is lost or destroyed, a retail tobacco products permit holder may apply to the Division for the issuance of a duplicate permit. This request shall be in the form of an affidavit advising that the permit has been lost or destroyed and shall be accompanied by payment of a $15 fee.

(9) Prior to the expiration of the permit, the Department of Business and Professional Regulation will send permitees a renewal notice. The permitee shall comply with the terms of the renewal notice and submit a renewal fee of $50 prior to the permit expiration date. It is the permitee’s responsibility to timely renew a permit. Failure to receive the renewal notice from the Department of Business and Professional Regulation shall not excuse a permitee from penalties associated with late renewal.

(10) The Division shall assess delinquent renewal penalties on permit holders who fail to timely renew their permits. The Division will use the postmark date as evidence of delinquency. Any renewal postmarked after the due date will be considered delinquent and must pay the applicable delinquent renewal penalty in addition to the renewal fee to the Division prior to the permit being renewed. A penalty of $5 will be assessed for each month or part of a month of such delinquency.

Specific Authority 569.009 FS. Law Implemented 569.002, 569.003 FS. History–New _______.

 

61A-10.084 Permit Changes.

(1) Any permitee desiring to make a change in the business name and/or the location of the place of business must secure a supplemental permit reflecting the new business name and/or location prior to initiating the change. Application for such supplemental permits must be made to the Division on the appropriate forms.

(a) To request a change of business name or change of mailing address, a permittee must complete and submit DBPR form ABT-6009 Change of Business Name or Change of Mailing Address Application, incorporated herein by reference and effective (______), to the Division.

(b) To make changes to a permit not covered by paragraph (a), the permitee shall submit a complete application to the Division as specified in Rules 61A-10.080, 61A-10.081, and 61A-10.082, F.A.C.

(2) Any wholesale dealer, distributing agent, or exporter desiring to make any changes in business name and/or location must furnish the Division with satisfactory evidence that the bond covering the wholesale dealer’s, distributing agent’s or exporter’s business has been properly changed to reflect the new business name and/or place of business.

Specific Authority 210.10 FS. Law Implemented 210.15 FS. History–New _______.

 

61A-10.085 Duplicate License Request.

Any permitee desiring to replace a lost or destroyed permit, may make a request to the Division for the issuance of a duplicate permit. This request shall be in the form of an affidavit advising that the permit has been lost or destroyed.

Specific Authority 20.165, 120.536, 210.10, 455.2035, 569.009 FS. Law Implemented 210.15, 455.219, 569.003 FS. History–New ________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Marie Carpenter, Auditing Bureau Chief, Division of Alcoholic Beverages and Tobacco, 1940 North Monroe Street, Suite 42, Tallahassee, Florida 32399, [phone]

NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Pat Wilson Parmer, Division Director, Alcoholic Beverages and Tobacco

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: November 22, 2005

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: September 2, 2005