Bill H.258

HOUSE DOCKET, NO. 3004 FILED ON: 1/18/2013

HOUSE . . . . . . . . . . . . . . . No. 258

By Mr. Moran of Boston, a petition (accompanied by bill, House, No. 258) of Michael J. Moran for legislation to further regulate the direct shipment of wine. Consumer Protection and Professional Licensure.

The Commonwealth of Massachusetts

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In the Year Two Thousand Thirteen

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An Act An regulating the direct shipment of wine.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 19B of chapter 138, as appearing in the 2008 Official Edition, is hereby amended by striking out, in line 1 of paragraph (a), the words “ For the purposes of encouraging the development of domestic vineyards, the commission shall”, and inserting in place thereof the following words: “The commission shall”.

SECTION 2.Chapter 138 of the General Laws, as so appearing, is hereby amended by striking out section 19F and inserting in place thereof the following section.

Section 19F.Notwithstanding any general or special law to the contrary,

(a) Any person, firm or corporation that holds a federal basic permit pursuant to the federal Alcohol Administration Act, compiled in 27 U.S.C. § 201 et seq., holds a license in the Commonwealth or any other state to manufacture and export wine, and is in the business of manufacturing, bottling or rectifying wine may apply to the commission for a direct shipper's license under this section.

(b) A direct shipper, meeting the requirements of this section, shall be authorized to make sales and delivery of wine, as defined in §1, by common carrier, which holds a valid transportation permit issued by the commission under §22, to the citizens of this state over the age of twenty-one (21), for personal use and not resale, who have purchased the wine directly from the direct shipper, subject to the limitations and requirements imposed by this section.

(d) As a condition to the issuance of a direct shipper's license as authorized in this section, an applicant for the license must satisfy the following conditions:

(1) Pay to the commission a one-time nonrefundable fee in the amount of three hundred dollars ($300) when the application is submitted for review. A direct shipper's license under this section shall not be issued until the applicant has paid to the commission the annual license fee of one hundred fifty dollars ($150); provided that an affiliate, franchise, or subsidiary thereof shall require a separate license. A copy of the direct shipper’s license shall be sent by the commission to the department of revenue to be kept on file.

(2) Execute a consent to jurisdiction and venue of all actions brought before the commission, any state agency or the courts of this state, such that any and all hearings, appeals and other matters relating to the license of the direct shipper shall be held in this state.

(3) Acknowledge, in writing, that it will contract only with common carriers that agree that any delivery of wine made in this state shall be by face-to-face delivery and that deliveries will only be made to individuals who demonstrate that the individuals are over twenty-one (21) years of age and the individuals sign upon receipt of the wine.

(e) (1) No direct shipper may ship more than a total of four (4) cases of wine to any resident of the Commonwealth during calendar year.

(2) Any shipment of wine pursuant to this section shall be made only in containers that clearly indicate on the exterior of the container, visible to a person at least three feet (3') away, that the container "CONTAINS ALCOHOL: SIGNATURE OF PERSON AGE 21 OR OLDER REQUIRED FOR DELIVERY".

(f) (1) A direct shipper shall be responsible for remitting all taxes due, including but not limited to excise taxes, pursuant to section 21, resulting from any sale made under this section.

(2) The taxes levied on sales made by a direct shipper as authorized by this section shall become due and payable on the first day of each month following the month during which the sales occur, and shall become delinquent if not paid on or before the twentieth day of each such following month. For the purpose of ascertaining the amount of tax due, it is the duty of any direct shipper licensed pursuant to this section to transmit to the commissioner of the department of revenue appropriate returns on forms prescribed by the commissioner.

(3) A person licensed under this section shall report yearly to the commission and the department of revenue the total number of gallons of wine shipped into the commonwealth for the preceding year. Upon request of the commission or its designated agent, any direct shipper, licensed pursuant to this section, shall provide to the commission, under penalty of perjury, a list of any wine shipped to an address within this state, including the addressee.

(4) The commission may enforce the requirements of this section by administrative action, may suspend or revoke a direct shipper's license and may accept an offer in compromise in lieu of suspension.

(5) A direct shipper that is found to have violated this title, in addition to any fine imposed by the commission, shall reimburse the commission for all costs incurred in connection with the investigation and administrative action, including the out-of-pocket costs and reasonable personnel costs.

(6) No direct shipper may avoid liability under this section by subcontracting with a third party to perform its obligations required pursuant to this section.

(g) (1) The commission may promulgate rules and regulations to effectuate the purposes of this section in accordance with its powers under section 24 of chapter 138. The department of revenue may promulgate rules and regulations necessary to effectuate the tax oversight, collection and enforcement provisions of the General laws as they relate to this section.

(2) A person who manufactures, transports, imports, exports, or receives wine in violation of this section shall be deemed to have engaged in a deceptive act or practice under chapter 93A.

(h) (1) No person shall direct ship wine to consumers without a license to sell and ship wine under this section.

(2) A violation of subdivision (h)(1) shall be punishable by up to one (1) year in the house of correction, a fine of $1,000.00 or both.

(i) The commission shall issue an annual report to the house and senate committees on ways and means and the joint committee on consumer protection and professional licensure, which shall include, but is not limited to, a determination of direct shipment licenses issued, a review of violations and enforcement measures under this section, and an analysis of the need for changes in the law and regulations relative thereto.

(j) The provisions of this law are severable, and if any clause, sentence, paragraph of this section or an application thereof shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair, or invalidate the remainder thereof but shall be confined in its operation to the clause, sentence, paragraph, or section adjudged invalid.

Name:	District/Address:	Date Added:
Michael J. Moran	18th Suffolk	1/18/2013