SB2652 (COMMITTEE SUBSTITUTE) - 1998 Regular Session

MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Finance

By: Senator(s) Hewes

Senate Bill 2652
(COMMITTEE SUBSTITUTE)

AN ACT TO AUTHORIZE WHOLESALERS, RETAILERS OR PRODUCERS OF WINE DOMICILED OUTSIDE THE STATE OF MISSISSIPPI WHO HAVE NOT HAD A CONTRACT WITH THE STATE TAX COMMISSION FOR THE SALE OF ALCOHOLIC BEVERAGES TO THE COMMISSION FOR TWO YEARS, TO SHIP NOT MORE THAN 60 BOTTLES OF WINE WITHIN A 12-MONTH PERIOD DIRECTLY TO A CONSUMER IN MISSISSIPPI IF THE CONSUMER IS 21 YEARS OF AGE OR OLDER AND SUCH ALCOHOLIC BEVERAGE IS FOR SUCH CONSUMER'S PERSONAL USE; TO PROHIBIT THE SHIPMENT OF WINE THAT IS SOLD AT RETAIL IN MISSISSIPPI AT THE TIME A SHIPMENT IS MADE; TO PROHIBIT THE SHIPMENT OF WINE TO A COUNTY THAT HAS NOT VOTED TO COME OUT FROM UNDER THE DRY LAW; TO REQUIRE WHOLESALERS, RETAILERS OR PRODUCERS WHO SHIP WINE TO A CONSUMER UNDER THIS ACT TO REGISTER ANNUALLY WITH THE STATE TAX COMMISSION, PAY A FEE AND FILE A COPY OF THE INVOICE OF ANY SHIPMENT WITH THE STATE TAX COMMISSION; TO REQUIRE WHOLESALERS, RETAILERS AND PRODUCERS WHO SHIP WINE TO A CONSUMER PURSUANT TO THIS ACT TO FILE AN ANNUAL REPORT WITH THE STATE TAX COMMISSION AND TO PAY THE AMOUNT OF MARKUPS, SALES TAXES AND EXCISE TAXES THAT WOULD HAVE BEEN IMPOSED ON THE WINE IF IT WAS SOLD IN THIS STATE; TO PRESCRIBE PENALTIES FOR VIOLATIONS; TO AUTHORIZE WHOLESALERS, RETAILERS OR PRODUCERS OF WINE DOMICILED OUTSIDE THE STATE OF MISSISSIPPI WHO HAVE NOT HAD A CONTRACT WITH THE STATE TAX COMMISSION FOR THE SALE OF ALCOHOLIC BEVERAGES TO THE COMMISSION FOR TWO YEARS, TO SHIP NOT MORE THAN 60 BOTTLES OF WINE WITHIN A 12-MONTH PERIOD DIRECTLY TO A RESTAURANT IN MISSISSIPPI THAT IS THE LICENSED PREMISES OF THE HOLDER OF AN ON PREMISES RETAILER'S PERMIT FOR SALE AT SUCH RESTAURANT; TO PROHIBIT THE SHIPMENT TO A RESTAURANT OF WINE THAT IS SOLD AT RETAIL IN MISSISSIPPI AT THE TIME A SHIPMENT IS MADE; TO REQUIRE WHOLESALERS, RETAILERS OR PRODUCERS WHO SHIP WINE TO A RESTAURANT TO REGISTER ANNUALLY WITH THE STATE TAX COMMISSION, PAY A FEE AND FILE A COPY OF THE INVOICE OF ANY SHIPMENT WITH THE STATE TAX COMMISSION; TO REQUIRE WHOLESALERS, RETAILERS AND PRODUCERS WHO SHIP WINE TO A RESTAURANT PURSUANT TO THIS ACT TO FILE AN ANNUAL REPORT WITH THE STATE TAX COMMISSION AND TO PAY THE AMOUNT OF MARKUPS, SALES TAXES AND EXCISE TAXES THAT WOULD HAVE BEEN IMPOSED ON THE WINE IF IT WAS SOLD IN THIS STATE; TO PRESCRIBE PENALTIES FOR VIOLATIONS; TO AMEND SECTIONS 67-1-9, 67-1-41, 67-1-43, 67-1-45 AND 97-31-47, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. (1) A wholesaler, retailer or producer of wine domiciled outside the State of Mississippi who holds a valid license from its state of residence and who has not had a contract with the State Tax Commission for the sale of wine to the commission for the two (2) years immediately preceding any shipment it makes under this section, may ship not more than sixty (60) bottles of wine within a twelve-month period directly to a consumer in Mississippi if the shipment is for the consumer's personal use only; provided, however, that wine may not be shipped pursuant to this section:

(a) To a consumer who is less than twenty-one (21) years of age;

(b) If the identical type and brand of wine to be shipped is sold at retail in this state at the time the shipment is to be made; or

(2) A wholesaler, retailer or producer of wine who desires to ship wine pursuant to this section shall register annually with the State Tax Commission and pay a fee of One Hundred Dollars ($100.00) prior to making any shipment pursuant to this section. Each shipment shall be accompanied by an invoice detailing the transaction. A copy of the invoice shall be filed with the State Tax Commission by the wholesaler, retailer or producer who ships the wine.

(3) Wholesalers, retailers and producers that ship directly to consumers in Mississippi pursuant to this section shall file an annual report with the State Tax Commission showing the total number of cases shipped into the state, the type of wine shipped and the name brands of the wine shipped. This report shall be accompanied by a payment in an amount equal to the markups, excise taxes and sales taxes that would have been imposed upon the wine shipped if such wine had been sold in this state.

(4) It shall be unlawful for any wholesaler, retailer or producer of wine domiciled outside the State of Mississippi to:

(a) Ship more than sixty (60) bottles of wine directly to any consumer;

(b) Ship wine to a consumer who is less than twenty-one (21) years of age;

(d) Ship wine to a county that has not voted to come out from under the dry law.

(5) A bottle shipped under the provisions of this section shall not exceed seven hundred fifty (750) milliliters.

(6) A wholesaler, retailer or producer who violates the provisions of this section shall, in addition to any other penalty prescribed by law, be punished as follows:

(a) A first violation of this section shall be punished by a fine to be imposed by the State Tax Commission of not more than Five Thousand Dollars ($5,000.00).

(b) Upon conviction of a second or subsequent violation of this section, a retailer, wholesaler or producer shall be guilty of a felony and, upon conviction, shall be punished by a fine of not more than Twenty-five Thousand Dollars ($25,000.00) or by imprisonment in the State Penitentiary not less than one (1) year, nor more than five (5) years, or both.

SECTION 2. (1) A wholesaler, retailer or producer of wine domiciled outside the State of Mississippi who holds a valid license from its state of residence and who has not had a contract with the State Tax Commission for the sale of wine to the commission for the two (2) years immediately preceding any shipment it makes under this section, may ship not more than sixty (60) bottles of wine within a twelve-month period directly to a restaurant in Mississippi that is the licensed premises of the holder of an on-premises retailer's permit for sale on the licensed premises; provided, however, that wine may not be shipped pursuant to this section if the identical type and brand of wine to be shipped is sold at retail in this state at the time the shipment is to be made.

(3) Wholesalers, retailers and producers that ship directly to restaurants in Mississippi pursuant to this section shall file an annual report with the State Tax Commission showing the total number of cases shipped into the state, the type of wine shipped and the name brands of the wine shipped. This report shall be accompanied by a payment in an amount equal to the markups, excise taxes and sales taxes that would have been imposed upon the wine shipped if such wine had been sold in this state.

(4) It shall be unlawful for any wholesaler, retailer or producer of wine domiciled outside the State of Mississippi to:

(a) Ship more than sixty (60) bottles of wine directly to any restaurant;

(b) Ship wine to a restaurant that is not the licensed premises of the holder of an on-premises retailer's permit; or

(5) A bottle shipped under the provisions of this section shall not exceed seven hundred fifty (750) milliliters.

(6) A wholesaler, retailer or producer who violates the provisions of this section shall, in addition to any other penalty prescribed by law, be punished as follows:

(a) A first violation of this section shall be punished by a fine to be imposed by the State Tax Commission of not more than Five Thousand Dollars ($5,000.00).

SECTION 3. Section 67-1-9, Mississippi Code of 1972, is amended as follows:

67-1-9. (1) (a) Except as otherwise provided in paragraphs (b) and (c) of this subsection, it shall be unlawful for any person to manufacture, distill, brew, sell, possess, import into this state, export from the state, transport, distribute, warehouse, store, solicit, take order for, bottle, rectify, blend, treat, mix or process any alcoholic beverage except as authorized in this chapter. However, nothing contained herein shall prevent importers, wineries and distillers of alcoholic beverages from storing such alcoholic beverages in private bonded warehouses located within the State of Mississippi for the ultimate use and benefit of the State Tax Commission as provided in Section 67-1-41. The commission is hereby authorized to promulgate rules and regulations for the establishment of such private bonded warehouses and for the control of alcoholic beverages stored in such warehouses. Additionally, nothing herein contained shall prevent any duly licensed practicing physician or dentist from possessing or using alcoholic liquor in the strict practice of his profession, or prevent any hospital or other institution caring for sick and diseased persons, from possessing and using alcoholic liquor for the treatment of bona fide patients of such hospital or other institution. Any drugstore employing a licensed pharmacist may possess and use alcoholic liquors in the combination of prescriptions of duly licensed physicians. The possession and dispensation of wine by an authorized representative of any church for the purpose of conducting any bona fide rite or religious ceremony conducted by such church shall not be prohibited by this chapter.

(b) It shall not be unlawful for any person to import or transport wine pursuant to Section 1 of Senate Bill No. 2652, 1998 Regular Session. It shall not be unlawful for any person to possess wine shipped pursuant to Section 1 of Senate Bill No. 2652, 1998 Regular Session, in any county in this state that has voted to come out from under the dry law, provided that the person purchased the wine for his or her personal use and consumption only.

(c) It shall not be unlawful for any person to import or transport wine pursuant to Section 2 of Senate Bill No. 2652, 1998 Regular Session. It shall not be unlawful for a restaurant that is the licensed premises of the holder of an on-premises retailer's permit to sell or possess wine shipped pursuant to Section 2 of Senate Bill No. 2652, 1998 Regular Session.

(2) Any person, upon conviction of any provision of this section, shall be punished as follows:

(a) By a fine of not less than One Hundred Dollars ($100.00), nor more than Five Hundred Dollars ($500.00), or by imprisonment in the county jail not less than one (1) week nor more than three (3) months, or both, for the first conviction under this section.

(b) By a fine of not less than One Hundred Dollars ($100.00) nor more than Five Thousand Dollars ($5,000.00) or by imprisonment in the county jail not less than sixty (60) days, nor more than six (6) months, or both fine and imprisonment, for the second conviction for violating this section.

(c) By a fine of not less than One Hundred Dollars ($100.00) nor more than Five Thousand Dollars ($5,000.00) or by imprisonment in the State Penitentiary not less than one (1) year, nor more than five (5) years, or both fine and imprisonment, for conviction the third time under this section for the violation thereof after having been twice convicted of its violation.

SECTION 4. Section 67-1-41, Mississippi Code of 1972, is amended as follows:

67-1-41. (1) The State Tax Commission is hereby created a wholesale distributor and seller of alcoholic beverages, not including malt liquors, within the State of Mississippi. It is granted the sole right to import and sell such intoxicating liquors at wholesale within the state, and no person who is granted the right to sell, distribute or receive such liquors at retail shall purchase any such intoxicating liquors from any source other than the commission except as authorized in subsections (4), (9) and (10), provided that retailers and consumers may purchase native wines directly from the producer. The commission may establish warehouses, purchase intoxicating liquors in such quantities and from such sources as it may deem desirable and sell the same to authorized permittees within the state including, at the discretion of the commission, any retail distributors operating within any military post or qualified resort areas within the boundaries of the state, keeping a correct and accurate record of all such transactions and exercising such control over the distribution of alcoholic beverages as seem right and proper in keeping with the provisions or purposes of this chapter.

The commission is empowered to borrow such working capital as may be required, not to exceed the sum of Nine Hundred Thousand Dollars ($900,000.00). Such loan shall be repaid from the earnings of the wholesale liquor business.

The commission is hereby authorized to use and to promulgate rules for the affixing of identification stamps to each container of alcoholic liquor.

(2) No person for the purpose of sale shall manufacture, distill, brew, sell, possess, export, transport, distribute, warehouse, store, solicit, take orders for, bottle, rectify, blend, treat, mix or process any alcoholic beverage except in accordance with authority granted under this chapter, or as otherwise provided by law for native wines.

(3) No alcoholic beverage intended for sale or resale shall be imported, shipped or brought into this state for delivery to any person other than as provided in this chapter, or as otherwise provided by law for native wines.

(4) The commission may promulgate rules and regulations which authorize on-premises retailers to purchase limited amounts of alcoholic beverages from package retailers located within the county and for package retailers to purchase limited amounts of alcoholic beverages from other package retailers located within the county. The commission shall develop and provide forms to be completed by the on-premises retailers and the package retailers verifying the transaction. The completed forms shall be forwarded to the commission within five (5) working days after the transaction.

(5) The commission may promulgate rules which authorize the holder of a package retailer's permit to permit individual retail purchasers of packages of alcoholic beverages to return, for exchange, credit or refund, limited amounts of original sealed and unopened packages of alcoholic beverages purchased by such individual from the package retailer.

(6) The commission shall maintain all forms to be completed by applicants necessary for licensure by the commission at all district offices of the commission.

(7) The commission may promulgate rules which authorize the manufacturer of an alcoholic beverage or wine to import, transport and furnish or give a sample of alcoholic beverages or wines to the holders of package retailer's permits, on-premises retailer's permits, native wine retailer's permits and temporary retailer's permits who have not previously purchased the brand of that manufacturer from the commission. For each holder of the designated permits, the manufacturer may furnish not more than five hundred (500) milliliters of any brand of alcoholic beverage and not more than three (3) liters of any brand of wine.

(8) The commission may promulgate rules disallowing open product sampling of alcoholic beverages or wines by the holders of package retailer's permits and permitting open product sampling of alcoholic beverages by the holders of on-premises retailer's permits. Permitted sample products shall be plainly identified "sample" and the actual sampling must occur in the presence of the manufacturer's representatives during the legal operating hours of on-premises retailers.

(9) The commission may promulgate rules and regulations that authorize the holder of a research permit to import and purchase limited amounts of alcoholic beverages from importers, wineries and distillers of alcoholic beverages or from the commission. The commission shall develop and provide forms to be completed by the research permittee verifying each transaction. The completed forms shall be forwarded to the commission within five (5) working days after the transaction. The records and inventory of alcoholic beverages shall be open to inspection at any time by the Director of the Alcoholic Beverage Control Division or any duly authorized agent.

(10) The holder of an on-premises retailer's permit may purchase wine as provided for in Section 2 of Senate Bill No. 2652, 1998 Regular Session, and a wholesaler, retailer or producer may import wine as provided for in Section 2 of Senate Bill No. 2652, 1998 Regular Session.

SECTION 5. Section 67-1-43, Mississippi Code of 1972, is amended as follows:

67-1-43. Any authorized retail distributor who shall purchase or receive intoxicating liquor from any source except from the commission, unless authorized by rules and regulations of the commission promulgated under subsection (4) of Section 67-1-41 or unless authorized by Section 2 of Senate Bill No. 2652, 1998 Regular Session, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than Five Hundred Dollars ($500.00), nor more than Two Thousand Dollars ($2,000.00), to which may be added imprisonment in the county jail for not more than six (6) months. Any authorization of such person to sell intoxicating beverages may be revoked as provided by law.

This section shall not apply to any authorized retail distributor who shall purchase native wines directly from the producer.

SECTION 6. Section 67-1-45, Mississippi Code of 1972, is amended as follows:

67-1-45. Except as otherwise provided in Sections 1 and 2 of Senate Bill No. 2652, 1998 Regular Session, no manufacturer, rectifier or distiller of intoxicating liquor shall sell or attempt to sell any such intoxicating liquor, except malt liquor, within the State of Mississippi, except to the commission, or to the holder of a research permit as provided in Section 67-1-41. However, a producer of native wine may sell native wines to the commission, authorized retail distributor or directly to consumers.

Any violation of this section by any manufacturer, rectifier or distiller shall be punished by a fine of not less than Five Hundred Dollars ($500.00), and not more than Two Thousand Dollars ($2,000.00), to which may be added imprisonment in the county jail not to exceed six (6) months.

SECTION 7. Section 97-31-47, Mississippi Code of 1972, is amended as follows:

97-31-47. It shall be unlawful for any transportation company, or any agent, employee, or officer of such company, or any other person, or corporation to transport into or deliver in this state in any manner or by any means any spirituous, vinous, malt, or other intoxicating liquors or drinks, or for any such person, company, or corporation to transport any spirituous, malt, vinous, or intoxicating liquors or drinks from one (1) place within this state to another place within the state, or from one (1) point within this state to any point without the state, except in cases where this chapter, Section 67-1-9 or 67-9-1 authorizes the transportation.

SECTION 8. Sections 1 and 2 of this act shall be codified in Chapter 1 of Title 67, Mississippi Code of 1972.

SECTION 9. This act shall take effect and be in force from and after July 1, 1998.