MISSISSIPPI LEGISLATURE

2007 Regular Session

To: Ways and Means

By: Representative Moak

House Bill 1747

(COMMITTEE SUBSTITUTE)

AN ACT TO AMEND SECTION 27-71-5, MISSISSIPPI CODE OF 1972, TO CREATE A NEW ANNUAL PRIVILEGE LICENSE TAX, TO BE IMPOSED FOR A PACKAGE RETAILER'S SPECIAL PERMIT TO CONDUCT WINE TASTING OR SAMPLING EVENTS; TO ALLOW THE HOLDER OF SUCH A SPECIAL PERMIT TO OFFER AND SERVE LIMITED AMOUNTS OF WINE AT NO COST TO THE CONSUMERS THEREOF; TO AMEND SECTION 67-1-51, MISSISSIPPI CODE OF 1972, TO SET FORTH THE REQUIREMENTS AND LIMITATIONS ASSOCIATED WITH THE SPECIAL PERMIT FOR WHICH THE TAX IS IMPOSED; AND FOR RELATED PURPOSES.

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

     SECTION 1.  Section 27-71-5, Mississippi Code of 1972, is amended as follows:

     27-71-5.  (1)  Upon each person approved for a permit under the provisions of the Alcoholic Beverage Control Law and amendments thereto, there is levied and imposed for each location for the privilege of engaging and continuing in this state in the business authorized by such permit, an annual privilege license tax in the amount provided in the following schedule:

(a)  Except as otherwise provided in this subsection (1), manufacturer's permit, Class 1, distiller's and/or rectifier's...................................................... $4,500.00

          (b)  Manufacturer's permit, Class 2, wine manufacturer

...................................................... $1,800.00

(c)  Manufacturer's permit, Class 3, native wine manufacturer per ten thousand (10,000) gallons or part thereof produced.............................................. $   10.00

(d)  Native wine retailer's permit.......... $   50.00

(e)  Package retailer's permit, each........ $  900.00

(f)  On-premises retailer's permit, except for clubs and common carriers, each................................. $  450.00

On purchases exceeding Five Thousand Dollars ($5,000.00) and for each additional Five Thousand Dollars ($5,000.00), or fraction thereof...................................................... $  225.00

(g)  On-premises retailer's permit for wine of more than five percent (5%) alcohol by weight, but not more than twenty-one percent (21%) alcohol by weight, each................. $  225.00

On purchases exceeding Five Thousand Dollars ($5,000.00) and for each additional Five Thousand Dollars ($5,000.00), or fraction thereof...................................................... $  225.00

(h)  On-premises retailer's permit for clubs$  225.00

On purchases exceeding Five Thousand Dollars ($5,000.00) and for each additional Five Thousand Dollars ($5,000.00), or fraction thereof...................................................... $  225.00

(i)  On-premises retailer's permit for common carriers, per car, plane, or other vehicle.......................... $  120.00

(j)  Solicitor's permit, regardless of any other provision of law, solicitor's permits shall be issued only in the discretion of the commission........................................ $  100.00

(k)  Filing fee for each application except for an employee identification card................................... $   25.00

(l)  Temporary permit, Class 1, each........ $   10.00

(m)  Temporary permit, Class 2, each........ $   50.00

On-premises purchases exceeding Five Thousand Dollars ($5,000.00) and for each additional Five Thousand Dollars ($5,000.00), or fraction thereof............................................... $  225.00

(n)  (i)  Caterer's permit.................. $  600.00

On purchases exceeding Five Thousand Dollars ($5,000.00) and for each additional Five Thousand Dollars ($5,000.00), or fraction thereof...................................................... $  250.00

(ii)  Caterer's permit for holders of on-premises retailer's permit..................................... $  150.00

On purchases exceeding Five Thousand Dollars ($5,000.00) and for each additional Five Thousand Dollars ($5,000.00), or fraction thereof...................................................... $  250.00

(o)  Research permit........................ $  100.00

          (p)  Package retailer's special permit for conducting  wine tasting or sampling events, each ...................$   50.00If a person approved for a manufacturer's permit, Class 1, distiller's permit produces a product with at least fifty-one percent (51%) of the finished product by volume being obtained from alcoholic fermentation of grapes, fruits, berries, honey and/or vegetables grown and produced in Mississippi, and produces all of the product by using not more than one (1) still having a maximum capacity of one hundred fifty (150) liters, the annual privilege license tax for such a permit shall be Ten Dollars ($10.00) per ten thousand (10,000) gallons or part thereof produced.  Bulk, concentrated or fortified ingredients used for blending may be produced outside this state and used in producing such a product.

     In addition to the filing fee imposed by item (k) of this subsection, a fee to be determined by the State Tax Commission may be charged to defray costs incurred to process applications.  The additional fees shall be paid into the State Treasury to the credit of a special fund account, which is hereby created, and expenditures therefrom shall be made only to defray the costs incurred by the State Tax Commission in processing alcoholic beverage applications.  Any unencumbered balance remaining in the special fund account on June 30 of any fiscal year shall lapse into the State General Fund.

     All privilege taxesimposed by this section shall be paid in advance of doing business.  The additional privilege tax imposed for an on-premises retailer's permit based upon purchases shall be due and payable on demand.

     Any person who has paid the additional privilege license tax imposed by item (f), (g), (h), (m) or (n) of this subsection, and whose permit is renewed, may add any unused fraction of Five Thousand Dollars ($5,000.00) purchases to the first Five Thousand Dollars ($5,000.00) purchases authorized by the renewal permit, and no additional license tax will be required until purchases exceed the sum of the two (2) figures.

     (2)  There is imposed and shall be collected from each permittee, except a common carrier, solicitor or a temporary permittee, by the commission, an additional license tax equal to the amounts imposed under subsection (1) of this section for the privilege of doing business within any municipality or county in which the licensee is located.  If the licensee is located within a municipality, the commission shall pay the amount of additional license tax to the municipality, and if outside a municipality the commission shall pay the additional license tax to the county in which the licensee is located.  Payments by the commission to the respective local government subdivisions shall be made once each month for any collections during the preceding month.

     (3)  When an application for any permit, other than for renewal of a permit, has been rejected by the commission, such decision shall be final.  Appeal may be made in the manner provided by Section 67-1-39.  Another application from an applicant who has been denied a permit shall not be reconsidered within a twelve-month period.

     (4)  The number of permits issued by the commission shall not be restricted or limited on a population basis; however, the foregoing limitation shall not be construed to preclude the right of the commission to refuse to issue a permit because of the undesirability of the proposed location.

     (5)  If any person shall engage or continue in any business which is taxable under this section without having paid the tax as provided in this section, the person shall be liable for the full amount of the tax plus a penalty thereon equal to the amount thereof, and, in addition, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00), or by imprisonment in the county jail for a term of not more than six (6) months, or by both such fine and imprisonment, in the discretion of the court.

     (6)  It shall be unlawful for any person to consume alcoholic beverages on the premises of any hotel restaurant, restaurant, club or the interior of any public place defined in Chapter 1, Title 67, Mississippi Code of 1972, when the owner or manager thereof displays in several conspicuous places inside the establishment and at the entrances of establishment a sign containing the following language:  NO ALCOHOLIC BEVERAGES ALLOWED.

     SECTION 2.  Section 67-1-51, Mississippi Code of 1972, is amended as follows:

     67-1-51.  (1)  Permits which may be issued by the commission shall be as follows:

          (a)  Manufacturer's permit.  A manufacturer's permit shall permit the manufacture, importation in bulk, bottling and storage of alcoholic liquor and its distribution and sale to manufacturers holding permits under this chapter in this state and to persons outside the state who are authorized by law to purchase the same, and to sell exclusively to the commission.  Manufacturer's permits shall be of the following classes:

     Class 1.  Distiller's and/or rectifier's permit, which shall authorize the holder thereof to operate a distillery for the production of distilled spirits by distillation or redistillation and/or to operate a rectifying plant for the purifying, refining, mixing, blending, flavoring or reducing in proof of distilled spirits and alcohol.

     Class 2.  Wine manufacturer's permit, which shall authorize the holder thereof to manufacture, import in bulk, bottle and store wine or vinous liquor.

     Class 3.  Native wine producer's permit, which shall authorize the holder thereof to produce, bottle, store and sell native wines.

          (b)  Package retailer's permit.  Except as otherwise provided in this paragraph and as otherwise provided in paragraph (j) of this subsection (1) when the holder of a package retailer's permit also holds a package retailer's special permit for conducting wine tasting or sampling events, a package retailer's permit shall authorize the holder thereof to operate a store exclusively for the sale at retail in original sealed and unopened packages of alcoholic beverages, including native wines, not to be consumed on the premises where sold.  Alcoholic beverages shall not be sold by any retailer in any package or container containing less than fifty (50) milliliters by liquid measure.  In addition to the sale at retail of packages of alcoholic beverages, the holder of a package retailer's permit is authorized to sell at retail corkscrews, wine glasses, soft drinks, ice, juices, mixers and other beverages commonly used to mix with alcoholic beverages.  Nonalcoholic beverages sold by the holder of a package retailer's permit shall not be consumed on the premises where sold.  The holder of a package retailer's permit may also hold a package retailer's special permit for conducting wine tasting or sampling events as provided for in paragraph (j) of this subsection (1).

          (c)  On-premises retailer's permit.  An on-premises retailer's permit shall authorize the sale of alcoholic beverages, including native wines, for consumption on the licensed premises only.  Such a permit shall issue only to qualified hotels, restaurants and clubs, and to common carriers with adequate facilities for serving passengers.  In resort areas, whether inside or outside of a municipality, the commission may, in its discretion, issue on-premises retailer's permits to such establishments as it deems proper.  An on-premises retailer's permit when issued to a common carrier shall authorize the sale and serving of alcoholic beverages aboard any licensed vehicle while moving through any county of the state; however, the sale of such alcoholic beverages shall not be permitted while such vehicle is stopped in a county that has not legalized such sales.

          (d)  Solicitor's permit.  A solicitor's permit shall authorize the holder thereof to act as salesman for a manufacturer or wholesaler holding a proper permit, to solicit on behalf of his employer orders for alcoholic beverages, and to otherwise promote his employer's products in a legitimate manner.  Such a permit shall authorize the representation of and employment by one (1) principal only.  However, the permittee may also, in the discretion of the commission, be issued additional permits to represent other principals.  No such permittee shall buy or sell alcoholic beverages for his own account, and no such beverage shall be brought into this state in pursuance of the exercise of such permit otherwise than through a permit issued to a wholesaler or manufacturer in the state.

          (e)  Native wine retailer's permit.  A native wine retailer's permit shall be issued only to a holder of a Class 3 manufacturer's permit, and shall authorize the holder thereof to make retail sales of native wines to consumers for on-premises consumption or to consumers in originally sealed and unopened containers at an establishment located on the premises of or in the immediate vicinity of a native winery.

          (f)  Temporary retailer's permit.  A temporary retailer's permit shall permit the purchase and resale of alcoholic beverages, including native wines, during legal hours on the premises described in the temporary permit only.

     Temporary retailer's permits shall be of the following classes:

     Class 1.  A temporary one-day permit may be issued to bona fide nonprofit civic or charitable organizations authorizing the sale of alcoholic beverages, including native wine, for consumption on the premises described in the temporary permit only.  Class 1 permits may be issued only to applicants demonstrating to the commission, by affidavit submitted ten (10) days prior to the proposed date or such other time as the commission may determine, that they meet the qualifications of Sections 67-1-11, 67-1-37, 67-1-51(2) and (3), 67-1-55, 67-1-57 (excluding paragraph (e)) and 67-1-59.  Class 1 permittees shall obtain all alcoholic beverages from package retailers located in the county in which the temporary permit is issued.  Alcoholic beverages remaining in stock upon expiration of the temporary permit may be returned by the permittee to the package retailer for a refund of the purchase price upon consent of the package retailer or may be kept by the permittee exclusively for personal use and consumption, subject to all laws pertaining to the illegal sale and possession of alcoholic beverages.  The commission, following review of the affidavit and the requirements of the applicable statutes and regulations, may issue the permit.

     Class 2.  A temporary permit, not to exceed seventy (70) days, may be issued to prospective permittees seeking to transfer a permit authorized in either paragraph (b) or (c) of this section.  A Class 2 permit may be issued only to applicants demonstrating to the commission, by affidavit, that they meet the qualifications of Sections 67-1-5(l), (m), (n), (o), (p) or (q), 67-1-37, 67-1-51(2) and (3), 67-1-55, 67-1-57 and 67-1-59.  The commission, following a preliminary review of the affidavit and the requirements of the applicable statutes and regulations, may issue the permit.

     Class 2 temporary permittees must purchase their alcoholic beverages directly from the commission or, with approval of the commission, purchase the remaining stock of the previous permittee.  If the proposed applicant of a Class 1 or Class 2 temporary permit falsifies information contained in the application or affidavit, the applicant shall never again be eligible for a retail alcohol beverage permit and shall be subject to prosecution for perjury.

          (g)  Caterer's permit.  A caterer's permit shall permit the purchase of alcoholic beverages by a person engaging in business as a caterer and the resale of alcoholic beverages by such person in conjunction with such catering business.  No person shall qualify as a caterer unless forty percent (40%) or more of the revenue derived from such catering business shall be from the serving of prepared food and not from the sale of alcoholic beverages and unless such person has obtained a permit for such business from the Department of Health.  A caterer's permit shall not authorize the sale of alcoholic beverages on the premises of the person engaging in business as a caterer; however, the holder of an on-premises retailer's permit may hold a caterer's permit.  When the holder of an on-premises retailer's permit or an affiliated entity of the holder also holds a caterer's permit, the caterer's permit shall not authorize the service of alcoholic beverages on a consistent, recurring basis at a separate, fixed location owned or operated by the caterer, on-premises retailer or affiliated entity and an on-premises retailer's permit shall be required for the separate location.  All sales of alcoholic beverages by holders of a caterer's permit shall be made at the location being catered by the caterer, and such sales may be made only for consumption at the catered location.  The location being catered may be anywhere within a county or judicial district that has voted to come out from under the dry laws or in which the sale, distribution and possession of alcoholic beverages is otherwise authorized by law.  Such sales shall be made pursuant to any other conditions and restrictions which apply to sales made by on-premises retail permittees.  The holder of a caterer's permit or his employees shall remain at the catered location as long as alcoholic beverages are being sold pursuant to the permit issued under this paragraph (g), and the permittee shall have at the location the identification card issued by the Alcoholic Beverage Control Division of the commission.  No unsold alcoholic beverages may be left at the catered location by the permittee upon the conclusion of his business at that location.  Appropriate law enforcement officers and Alcoholic Beverage Control Division personnel may enter a catered location on private property in order to enforce laws governing the sale or serving of alcoholic beverages.

          (h)  Research permit.  A research permit shall authorize the holder thereof to operate a research facility for the professional research of alcoholic beverages.  Such permit shall authorize the holder of the permit to import and purchase limited amounts of alcoholic beverages from the commission or from importers, wineries and distillers of alcoholic beverages for professional research.

          (i)  Alcohol processing permit.  An alcohol processing permit shall authorize the holder thereof to purchase, transport and possess alcoholic beverages for the exclusive use in cooking, processing or manufacturing products which contain alcoholic beverages as an integral ingredient.  An alcohol processing permit shall not authorize the sale of alcoholic beverages on the premises of the person engaging in the business of cooking, processing or manufacturing products which contain alcoholic beverages.  The amounts of alcoholic beverages allowed under an alcohol processing permit shall be set by the commission.

          (j)  Package retailer's special permit for conducting  wine tasting or sampling events.  A package retailer's special permit for conducting wine tasting or sampling events shall authorize the holder of the special permit to conduct an event solely for the purpose of offering and serving tastes or samples of wine at no cost to the consumers thereof, during which limited amounts of wine may be consumed on the premises where the holder of such package retailer's special permit also holds a package retailer's permit and sells wine at retail.  The special permit shall not authorize the sale of wine or alcoholic beverages for consumption on the premises of the holder of a package retailer's permit, but shall only authorize the limited consumption of wine on such premises for the sole purpose of tasting or sampling various wines.  No more than one (1) wine tasting or sampling event may be held per month pursuant to this special permit.  A wine tasting or sampling event shall be conducted totally within an area that is cordoned off by barriers that clearly separate the event from the point of sale of any wine or other alcoholic beverage.  A sign stating that no one under twenty-one (21) years of age may participate in the event shall be placed in a visible location at the entrance to the wine tasting or sampling area.  No such event may continue for no more than four (4) hours in duration, with no more than a total of eight (8) ounces of various wines to be dispensed to any individual.  The holder of a special permit issued under this paragraph (j) shall keep an accurate accounting of the various wines and amounts consumed at a tasting or sampling event.  Written notice of each event to be conducted shall be provided to the Alcoholic Beverage Control Division of the State Tax Commission at least fifteen (15) days before the event.

     (2)  Except as otherwise provided in subsection (4) of this section, retail permittees may hold more than one (1) retail permit, at the discretion of the commission.

     (3)  Except as otherwise provided in this subsection, no authority shall be granted to any person to manufacture, sell or store for sale any intoxicating liquor as specified in this chapter within four hundred (400) feet of any church, school, kindergarten or funeral home.  However, within an area zoned commercial or business, such minimum distance shall be not less than one hundred (100) feet.

     A church or funeral home may waive the distance restrictions imposed in this subsection in favor of allowing issuance by the commission of a permit, pursuant to subsection (1) of this section, to authorize activity relating to the manufacturing, sale or storage of alcoholic beverages which would otherwise be prohibited under the minimum distance criterion.  Such waiver shall be in written form from the owner, the governing body, or the appropriate officer of the church or funeral home having the authority to execute such a waiver, and the waiver shall be filed with and verified by the commission before becoming effective.

     The distance restrictions imposed in this subsection shall not apply to the sale or storage of alcoholic beverages at a bed and breakfast inn listed in the National Register of Historic Places.

     (4)  No person, either individually or as a member of a firm, partnership, limited liability company or association, or as a stockholder, officer or director in a corporation, shall own or control any interest in more than one (1) package retailer's permit, nor shall such person's spouse, if living in the same household of such person, any relative of such person, if living in the same household of such person, or any other person living in the same household with such person own any interest in any other package retailer's permit.

     SECTION 3.  This act shall take effect and be in force from and after July 1, 2007.