BEVERAGE LAW; ADMINISTRATION Ch. 561

561.05 Beverage department director; bond, duties.-

(1) The principal officer of the state bever­age department shall be the director who shall be appointed by the governor. The term of office of said director shall begin and run con­currently with the regular terms of office of the successive governors of this state, but he may be removed at any time by the governor at the dis­cretion of the governor.

(2) The director shall furnish a surety bond by a surety company authorized to do business in this state in the sum of one hundred thou­sand dollars, payable to the governor and to be approved by the comptroller, conditioned upon the faithful performance of his duties. He shall promptly report and remit to the treasurer all taxes and fees collected by him hereunder, and shall send a copy of such reports to the comptroller.

(3) The premiums on the bond of the direc­tor and the blanket bond covering all employees and assistants of the beverage department, as herein provided, shall be paid by the state.

Hlstory.-§1, ch. 16774, 1935; CGL 1936 Supp. 4151(227); §lA, ch. 19301, 1939; §1, ch. 20299, 1941; am. §1, ch. 23746, 1947 ; §6, ch. 57-401 and §4, ch. 57-420. cf.-§113.07 Bonds of officials.

Note.-Amendments made by chs. 57-401 and 57-420 are Identical.

561.06 Employees; salaries; bonds, dis­charge.-The director is hereby granted the power to employ such employees and assistants, in accor dance with the applicable regulations of the Florida merit system, as may be neces­sary for the proper operation of the beverage department. Sufficient funds for payment of the· salaries and expenses of the director and a ll employees and assistants of the beverage department, as are incurred in the discharge of their duties in connection therewith, shall be included in the biennial appropriations act. All employees and assistants of the beverage de­partment shall be covered by a blanket bond in such amount as determined by the director, conditioned upon the faithful performance of their duties, payable to the state, for the use and benefit of the state beverage department.

Hlstory.-§1, ch. 16774, 1935; CGL 1936 Supp. 4151(227); §lA, ch. 19301, 1939; am. §2, ch. 21839, 1943; am. §2, ch. 22663, 1945; §5, ch. 57-420.

561.07 Employees; powers and duties.-All employees authorized by the director shall have access to and shall have the right to inspect the premises of all licensees under the beverage law and under the cigarette law, now in effect or which may hereafter* be reenacted, to collect taxes and remit them to the officers entitled to them and to examine the books and records of all licensees. Such authorized employees shall require of each licensee strict compliance with the laws of this state relating to the transac­tion of such business and shall have all the power of deputy sheriffs in the enforcement of the beverage law and the cigarette tax law of this state, and in the prosecution of offend­ers against such laws.

Hlstory.-§1, ch. 16774, 1935; CGL 1936 Supp. 4151(227) ; §1A, ch. 19301, 1939 ; am. §3, ch. 22663, 1945 ; §6, ch. 57-420. • Act reads "hereinafter." cf.-§561.52, Authority of certain employees.

561.08 Enforcement of beverage law; direc­tor to prescribe forms.-The director and all employees of the beverage department shall en­force the provisions of the beverage law and cigarette tax law and perform such other acts as may be necessary to carry out the provisions thereof, and the director shall prescribe forms of bonds, reports, and other papers, to be used under and in the execution and enforcement of the provisions of the beverage law and the cigarette tax law.

Hlstory.-§1, ch. 16774, 1935; CGL 1936 Supp. 4151(227); §1A, ch . 19301, 1939 ; §7, ch. 57-420. ct.-Ch. 562, Beverage law; enforcement.

§561.52, Authority of certain employees.

561.09 Labeling regulations, refills; misrep­resentation and penalty for violation.-

(1) The director of the beverage depart­ment is fully authorized to make and promul­gate reasonable rules and regulations governing the labeling of all alcoholic beverages contain­ing more than one per cent of alcohol by weight, which rules and regulations shall not conflict with the federal regulations pertaining to such labeling.

(2) Any person who shall re-use or refill with distilled spirituous liquors for the purpose of sale a bottle or other container which has once been used to contain spirituous liquors and to which has theretofore been attached a stamp as required by the beverage laws of Florida, or any person who shall willfully misrepresent or permit to be misrepresented the brand of distilled spi­rits being sold or offered for sale in or from any bottles or containers shall be guilty of a misde­meanor and, where such person is licensed under this law, is subject to have his license revoked by the director. The possession of such a refilled or a mislabeled bottle or other container of spi­rituous liquors shall be prima facie evidence of the violation of this section.

Hlotory.-§8, ch. 18015, 1937; CGL 1940 Supp. 4151(271h) , 7648(8); am. §3, ch. 21839, 1943 ; (1) by §8, ch . 57-420. cf.-§775.07, Punishment for misdemeanor.

§502.03, Labels on milk containers.

561.091 Brands or labels to be registered; fee; revocation.-

(1) No manufacturer, distiller, rectifier, processor, blender, bottler or distributor of spirituous liquors, whether licensed under the beverage laws of this state or not, shall sell or offer for sale in this state, or move or cause to be moved within this state, or into this state, any spirituous liquors, without first register­ing its name and the brands or labels under which the spirituous liquors are to be sold or moved, and furnishing such samples and such information as to content, quality, age, proof and formula of such spirituous liquors as the director may require.

(2) Each registrant shall pay an annual registration fee of twenty dollars for a brand or label. Any registration may be suspended or revoked in the same manner as a beverage license for any violation of the beverage law.

(3) The director shall promulgate suitable

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rules for carrying out the purpose of this sec­tion.

History.-§!, ch. 28149, 1953; sub. §§ (1), (2) am. §2, ch. 29786, 1955.

561.11 Power and authority of director.­The director shall have full power and author­ity to make, adopt, amend or repeal such rules, regulations or administrative orders in pursu­ance of the purposes of the beverage laws, or reasonably necessary for, or calculated to facil­itate, the enforcement or administration of the provisions thereof as may be appropriate, and such rules, regulations or orders shall have the full force and effect of law.

History.-§1, ch. 16774, 1935; CGL 1936 Supp. 4151(227); §2, ch. 18015, 1937; §lA, sub-§ (b), ch. 19301, 1939; CGL 1940 Supp. 4151f271b); §4, ch. 22663, 1945; §132, ch. 26869, 1951.

Am. §9, ch. 57-420.

561.12 Deposit of revenue.-All funds col­lected by the state under the beverage law shall be paid into the state treasury to the credit of the general revenue fund.

History.-§13, ch. 18015, 1937; CGL 1940 Supp. 4151(271k); §1, ch. 22923, 1945; §133, ch. 26869, 1951.

561.14 License classification.-Licenses re­ferred to in this chapter shall be classified as follows:

(1) Manufacturers who shall be licensed to manufacture the beverage herein referred to and distribute the same at wholesale to licensed dis­tributors and licensed vendors and to no one else within the state, provided persons engaged in the business of distilling, rectifying or blending spirituous liquors licensed under paragraphs (d) and Ce) of subsection (1) of §561.35, shall sell and distribute such beverages at wholesale only to other manufacturers and to licensed distribu­tors and to no one else within this state.

(2) Distributors who when so licensed shall be permitted to sell and distribute the beverages herein referred to at wholesale to other licensed distributors, to licensed vendors, to licensed op­erators of railroads and steamships, buses and airplanes, to licensed clubs, to nonresident dealers, and to no one else within this state; but no distributor shall sell or distribute to any vendor any beverage which such vendor is not licensed to sell nor shall any vendor buy from any distributor any beverage which such vendor is not licensed to sell.

(3) Vendors shall include all persons, associa­tions of persons or corporations selling the beverages herein referred to at retail only. No vendor shall purchase or acquire in any manner for the purpose of resale, any of the beverages herein described from any person, firm or cor­poration not duly licensed as a manufacturer, bottler or distributor under the beverage law. No vendor shall import or engage in the im­portation of any such beverages from places beyond the limits of the state. No vendor shall knowingly sell alcoholic beverages for the pur­pose of resale. A sale made by a vendor to a person, firm or corporation known by said ven­dor to hold a current retail liquor dealer's stamp issued by the internal revenue authorities of the United States shall be prima facie evidence

of a sale knowingly made for resale under this section.

History.-§4, sub-§ (b), (c), ch. 16774, 1935; CGL 1938 Supp. 4151 (230); §1, ch. 19499, 1939; §2, ch. 25359. 1949; sub. § (2) am. §10, ch. 26484, 1951; (3) by §11, ch. 57-420.

561.15 Licenses; qualifications required.­(!) Licenses shall be issued only to persons

of good moral character, who are not less than twenty-one years of age. Licenses to corpora­tions shall be issued only to corporations whose officers are of good moral character and not less than twenty-one years of age. There shall be no exemptions from the license taxes herein provided to any person, association of persons or corporation, any law to the contrary notwith­standing.

(2) No license under the beverage law shall be issued to any person who has been convicted within the past five years of any offense against the beverage laws of this state, or who has been convicted in the last past fifteen years of any felony in this state, or has been convicted in any other state or the United States, of an offense designated as a felony by such state or the Unit­ed States, or to a corporation, any one of whose officers has been so convicted. The term "con­viction" shall include an adjudication of guilt on a plea of guilty or nolo contendere, or the forfeiture of a bond when charged with a crime.

(3) The director may refuse to issue a li­cense under the beverage law to any person, firm or corporation whose license under the beverage law has been revoked or to any cor­poration, an officer of which has had his license under the beverage law revoked, or to any person, who is or has been an officer of a corporation whose license has been revoked under the beverage law. Any license issued to a person, firm or corporation prohibited from obtaining such license, under the beverage law, may be revoked by the director.

History.-§3, cb. 16774, 1935; CGL 1936 Supp. 4151(229) Am. §12, ch. 57-420.

561.17 License applications.-(!) Any person, firm or corporation before

engaging in the business of manufacturing, bot­tling, distributing, selling or in anywise dealing in alcoholic beverages, shall file with the tax collector of the county in which the place of business for which a license is sought, is locat­ed, sworn application in triplicate on forms provided to the tax collector by the director. The application shall state the character of the business to be engaged in, the address of exist­ing building wherein is located the premises sought to be licensed and to which applicant must have right of immediate possession, the name of the manager or person to be in charge, and the kind of license as hereinafter defined which the applicant desires. The application shall also give the names and addresses of any persons interested directly or, when required by the director, indirectly, with the applicant . in the business for which the license is being sought. Prior to any application being approv­ed, the applicant shall file a set of fingerprints on regular United States department of justice

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forms for himself and the manager or person to be in charge. The applicant shall also file such a set of fingerprints for any person or per­sons interested directly or indirectly with the · applicant in the business for which the license is being sought, when so required by the direc­tor. If the applicant or any person interested with the applicant either directly or indirectly in the business for which the license is sought shall be such a person as is within the defini­tion of persons to whom a license should be denied as prescribed by §561.15 or if the man­ager or person to be in charge is such a person as is within the definition of persons not to be employed as prescribed in §562.13, then the ap­plication shall be denied by the director.

(2) All applications for alcoholic beverage licenses for consumption on the premises shall be accompanied by a certificate of the state board of health that the place of business wherein the business is to be conducted meets all of the sanitary requirements of the state.

Hlstory.-§2, ch. 16774, 1935; CGL 1936 Supp. 4151(228); §5, ch. 22663. 1945; H. ch. 25359, 1949; §3, ch. 29786, 1955.

Am. §14, ch. 57-420.

561.18 License investigation.-The applica­tion shall be filed in duplicate by the tax col­lector with the director of the beverage depart­ment, or with the beverage enforcement agent of the beverage department designated by the director, who shall cause said application to be fully investigated, both as to qualifications of the applicants and the premises sought to be licensed.

Hlstory.-§2, ch. 16774, 1935 ; CGL 1936 Supp. 4151(228). Am. §5, ch . 25359, 1949; §15, ch. 57-¥.!0.

561.19 License issuance upon approval of director.-

(1) Upon the completion of the investiga­tion of an application, the director shall endorse his approval or disapproval on said application and notify the tax collector of his action. When so notified, the tax collector shall, in turn, notify the applicant of such approval or dis­approval. If approved, the license shall be issued, upon payment to the tax collector of the license tax hereinafter provided.

(2) If the application is disapproved, the director shall give the applicant notice of the disapproval and the reasons therefor and if re­quested by the applicant, a fair hearing as to his qualifications and the qualifications of the premises. If, after such hearing, the director shall find that the applicant and premises have such qualifications as required by the beverage law, he shall approve the application and the same shall be handled as provided in subsec­tion (1) . If the director's disapproval is sus­tained, he shall so notify the applicant. Any applicant may at any time within thirty days after such disapproval and notice thereof, file with the director a request in writing for a re­view of such disapproval by the governor. The director shall thereupon certify his findings on which the dis::tpproval was based to the gov­ernor who shall review the same and order the

application be granted or denied as justice shall require.

History.-§2, ch. 16774, 1935; CGL 1936 Supp. 4151(228) . Am. §6, ch. 25359, 1949; §16, ch. 57-420.

561.20 Limitation of number of licenses is­sued.-

(1) No license under §561.34 (3)-(8) inclus­ive, shall be issued so that the number of such licenses within the limits of any incorporated municipality or in the territory of any county lying outside of such municipalities therein shall exceed one such license to each twenty­five hundred residents, or major fraction there­of, within such municipality or within such county outside of the limits of such munici­palities as shown by the last regular state-wide census, either federal or state, of such county or municipality; provided, however, that such limitation shall not prohibit the issuance of at least three licenses in any county that may approve the sale of intoxicating liquors in such county.

(2) *No such limitation of the number of licenses as herein provided shall prohibit the issuance of a special license to any bona fide hotel, motel, or motor court of not less than fifty guest rooms or to any bona fide restaurant containing all necessary equipment and sup­plies for and serving full course meals regular­ly and having accommodations at all times for service of two hundred or more patrons at tables and occupying more than four thousand · square feet of space, providing, however, that any restaurant granted special license here­under shall be prohibited from selling alcoholic beverages in packages for consumption off the premises, and from operating as a package store, and providing further that the beverage director shall suspend any such license if such restaurant ceases to be a bona fide restaurant as required as a prerequisite for obtaining such license, and providing that no intoxicating beverage shall be sold under such license after the hours of serving food has ceased; provided, however, that any licenses heretofore or here­after issued to any such hotel, motel, motor court, or restaurant under the provisions of the general law shall not be moved to a new lo­cation, such licenses being valid only on the premises of such hotel, motel, motor court, or restaurant; provided further, that licenses issued to hotels, motels, motor courts, or res­taurants under the general law and held by such hotels, motels, motor courts, or restau­rants on May 24, 1947, shall be counted in the quota limitation contained in subsection (1) herein; and provided further, that any license issued for any hotel, motel, motor court or restaurant under the provisions of this law shall be issued only to the owner of said hotel, motel, motor court or restaurant, or, in the event the hotel, motel, motor court, or restau­rant is leased, to the lessee of the hotel, motel, motor court, or restaurant and the license shall remain in the name of said owner or lessee so long as the license is in existence. Any

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special license now in existence heretofore is­sued under the provisions of this law cannot be renewed except in the name of the owner of the hotel, motel, motor court, or restaurant, or, in the event the hotel, motel, motor court, or restaurant is leased, in the name of the lessee of the hotel, motel, motor court, or restaurant, in which the license is located and must remain in the name of said owner or lessee so long as the license is in existence. Any license is­sued under this section shall be marked "Spec­ial."

(3) The limitation upon the number of such licenses to be issued as herein provided shall not apply to existing licenses nor to the renewal or transfer of such licenses but upon the revocation of any existing license no renewal thereof or new license therefor shall be issued contrary to the limitation herein prescribed; provided, however, that such transfer permitted herein shall not in­clude the change in location of any licensed premises as provided in §561.33 of the beverage law when such change of location will increase the number of licenses contrary to the limitation upon the number of such licenses as herein pro­vided. But provided further, that such restric­tion on the change in location of any licensed premises contained in this paragraph or in §561.33 shall not apply to those applications for change of location of licensed premises from with­in incorporated cities or towns to a location within the county and outside such incorporated cities or towns where such applications have been filed heretofore with the proper tax collector and the director and the legal right to such change in location is now a subject of litigation pending in the supreme court of Florida.

( 4) *The limitations herein prescribed shall not affect or repeal any existing or future local or special act relating to the limitation by population and exceptions or exemptions from such limitation by population of such licenses within any incorporated city or town or county that may be in conflict herewith.

(5) When additional licenses are available by reason of an increase in population, no per­son, firm or corporation already holding a liquor license shall be permitted to own or have any interest, directly or indirectly, in any such additional licenses, or when additional licenses are available by reason of a county permitting the sale of intoxicating beverages when the same is prohibited, no person, firm or corpora­tion will be permitted to own or have any in­terest, directly or indirectly, in more than one license. This limitation is enacted pursuant to the police power of the state, for the express purpose of promoting the public health, morals and welfare. This limitation shall only apply when a license is originally issued after first becoming available and shall not apply to sub­sequent transfers of such licenses from the original purchaser thereof, or to renewals of such licenses.

(6) No license shall be issued under §561.34 (11), to exceed five more than the number of such licenses issued prior to May 24, 1947, and

in effect in any county on said date; provided however, in all counties with a population of more than 400,000 inhabitants according to the last official state-wide decennial census, no li­cense shall be issued under §561.34 (11), to ex­ceed eighteen more than the number of licenses issued prior to May 24, 1947, and in effect on said date and provided further, that any addi­tional licenses issued under this section in such counties shall be limited to subordinate lodges or clubs of national fraternal or benevolent as­sociations; golf clubs municipally or privately owned; nonprofit corporations or clubs devoted to promoting community, municipal or county development or any phase of community, munic­ipal or county development; clubs fostering and promoting the general welfare and prosper­ity of members of showmen and amusement en­terprises; clubs assisting, promoting and devel­oping subordinate lodges or clubs of national fraternal or benevolent associations; clubs pro­moting, developing and maintaining cultural relations of people of the same nationality; pro­vided finally, however, that any chartered or in­corporated club owning and maintaining any bona fide regular, standard golf course consist­ing of at least nine holes, with clubhouse, locker rooms and attendant golf facilities and com­prising in all at least one hundred acres of land owned by such club may be issued a li­cense under §561.34 (11), but failure of such club to maintain golf course and golf facilities shall be ground for revocation of license.

(7) In addition to any licenses that may be issued to restaurants and hotels under §561.20 (2), the state beverage director is hereby au­thorized upon the approval of the inter-Ameri­can center authority to issue not to exceed three special licenses to qualified applicants within the confines of the inter-American cul­tural and trade center.

History.-§2, ch. 16774, 1935; CGL 1936 Supp, 4151(228); §2, ch. 23746, 1947; §7, ch. 25359, 1949; sub. § (2) am. §1, ch. 28117, sub. §(6) am. §1, ch. 28113, 1953; sub. §§(1), (2) am. §4, ch. 29786, sub. § (6) am. §1, ch. 29978, sub. § (7) comp. §1, ch. 29829, 1955; (1) by §17, ch. 57-420; (2) by §17, ch. 57-420 and §1, ch 57-733; (4) by §1, ch. 57-299, §17, ch. 57-420 and §2, ch. 57-773; (5) by §17, ch. 57-420; (6) by §24, ch. 57-1, and §1, ch. 57-837.

*Effective January 1, 1958. Note.-subsectlons (2), (4) were also amended by §17, ch. 57-

420, and effective for period from August 17, 1957 to January 1, 1958. These amendments are quoted In full:

"(2) No such limitation of the number of licenses as herein provided shaiJ prohibit the Issuance of a special license to any bona fide hotel, motel, or motor court of not Jess than fifty guest rooms or to any bona fide restaurant containing all nec­essary equipment and supplies for, and serving fuiJ course meals regularly and having accommodations at aU times for service of two hundred or more patrons at tables and occupying more than four thousand square feet of space; provided, however, that any licenses heretofore or hereafter Issued to any such hotel, motel, motor court, or restaurant under the provisions of any Jaw shall not be moved to a new location, such licenses being valid only on the premises of such hotel, motel, motor court, or restaurant; provided further, that licenses Issued to hotels, motels, motor courts, or restaurants under the general Jaw and held by such hotels, motels, motor courts, or restau­rants on May 24, 1947, shaiJ be counted In the quota limitation contained In subsection (1) herein; and provided further, that any license Issued by any hotel, motel, motor court or res­taurant under the provisions of this Jaw shaiJ be Issued only to the owner of said hotel, motel, motor court or restaurant, or, In the event the hotel, motel, motor court, or restaurant Is leased, to the lessee of the hotel, motel, motor court, or restau­rant and the license shall remain 1n the name of said owner or Jessee so long as the license Is In existence. Any special license now In existence heretofore Issued under the provisions of this law cannot be renewed except 1n the name of the owner of the hotel, motel, motor court, or restaurant, or, In the event the

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hotel, motel, motor court, or restaurant Is leased, In the name ot the lessee of the hotel, motel, motor court, or restaurant, in which the license Is located a.nd must remain In the name of said owner or lessee so long a.s the license Is In existence. Any license Issued under this section shall be marked "Special."

"(4) The limitations herein prescribed shall be cummula.tlve ot a.nd shall not affect or repeal a.ny existing or future local or special a.ct relating to the limitation by population of such licenses within any Incorporated munlclpa.llty or county that ma.y be In conflict herewith."

Note.-see also ch. 57-299, effective Ma.y 30, 1957, amending (4) relating to municipalities In Na.ssa.u County.

561.22 Licensing manufacturers and distrib­utors as vendors prohibited.-

(1) Except as hereinafter provided, any ap­plicant may receive a license as a manufacturer or distributor, but no license shall be issued to a manufacturer or distri'butor as a vendor, nor shall any license be issued to a vendor as a manu­facturer or distributor.

(2) If any applicant for a vendor's license or renewal thereof shall be an individual or copart­nership, such individual or copartnership shall be deemed within the provisions of subsection (1) of this section in the event the individual or any member of the copartnership is interested or connected, directly or indirectly, with any corporation which is engaged, directly or in­directly, or through any subsidiary or affili­ate corporation, including any stock ownership as set forth in subsection (3) of this section in manufacturing or distributing alcoholic bever­ages under a license of this state or any state of the United States.

such applicant corporation is controlled by, or the majority stock therein owned by another cor­poration, which latter corporation owns or con­trols in any way the majority stock or controlling interest in any other corporation that is engaged directly or indirectly, in selling alcoholic bever­ages as vendor under a license of this state.

Hlstory.-§2, ch. 16774, 1935; CGL 1936 Supp. 4151(228). Am. §8, ch. 25359, 1949.

561.23 License issued in quadruplicate and display.-

(1) Licenses shall be issued in quadrupli­cate. The original license shall be delivered to the licensee. One copy of the license shall be delivered to the director of the beverage de­partment on or before the tenth day of the month succeeding the month in which the orig­inal license was issued to the licensee, by the tax collector. One copy of the license shall btl retained by the tax collector, and the fourth copy forwarded to the district office of the county wherein the license is located.

(2) All vendors licensed under the bever­age law shall display their licenses in conspicu­ous places on their licensed premises.

Hlstory.-§2, ch. 16774, 1935; CGL 1936 Supp. 4151(228). Am. §9, ch. 25359, 1949; a.m. (1) a.nd (2) by §18, (3) R. by

§ 19, ch. 57-4>20.

561.24 Licensing out-of-state manufacturers as distributors prohibited; procedure for issu­ance and renewal of distributor's license.-(3) If any applicant for a vendor's license

or the renewal thereof be a corporation, such (1) No manufaeturer, rectifier or distiller, corporation shall be deemed within the provisions manufacturing, rectifying or distilling spirit­of subsection (1) of this section when such cor- uous liquors, in any state other than the State poration is affiliated with, directly or indirectly, of Florida, shall hereafter be granted a license any other corporation which is engaged in manu- as a distributor. facturing or distributing alcoholic beverages un- (2) No manufacturer, rectifier or distiller, der a license of this state or any other state of manufacturing, rectifying or distilling spirit­the United States, or when such applicant cor- uous liquors, in any state other than the State poration is controlled by or the majority stock of Florida, shall be granted a renewal of a therein owned by another corporation, which lat- license theretofore held as a distributor. ter corporation owns or controls in any way the majority stock or controlling interest in any (3) If the applicant for a distributor's other corporation that is engaged, directly or in- license or renewal thereof shall be an individ­directly, in manufacturing or distributing alco- ual or copartnership, such individual or co­holic beverages under a license in this state or partnership shall be deemed within the provi­any other state in the United States. sions of subsections (1) or (2) of this section,

(4) If any applicant for a manufacturer's or as the case may be, in the event the individual distributor's license, or renewal thereof, shall be or any member of the copartnership is inter­an individual or copartnership, such individual ested or connected, directly or indirectly, with or copartnership shall be deemed within the pro- any corporation which is engaged directly or visions of subsection (1) of this section in the indirectly, or through any subsidiary or affiliate event the individual or any member of the copart- corporation, incl•uding any stock ownership as nership is interested or connected, directly or in- set forth in subsection (4) of this section, in directly, with any corporation which is engaged, manufacturing, rectifying or distilling spirit­directly or indirectly, or through any subsidiary uous liquors in any state other than the State or affiliate corporation, including any stock of Florida. It is the intent of this subsection ownership as set forth in subsection (5) of this that if any individual or any member of such section in selling alcoholic beverages as a copartnership within six months next preceding vendor under a license of this state. the making of an application hereunder has

(5) If any applicant for a manufacturer's or been interested or connected as provided by distributor's license or the renewal thereof, be a this subsection, then such individual or such corporation, such corporation shall be deemed member of the copartnership shall be prima within the provisions of subsection (1) of this facie presumed to be so interested or con­section when such corporation is affiliated with, nected with such corporation at the time of the directly or indirectly, any other corporation making of the application and such prima facie which is engaged in selling alcoholic beverages as presumption shall continue until overcome by vendor under a license of this state or when the applicant.

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( 4) If the applicant for a distributor's license, or for the renewal thereof, shall be a corporation, such corporation shall be deemed within the provisions of subsections (1) and (2) of this section, as the case may be, when such corporation is affiliated with, directly or indirectly, any other corporation which is en­gaged in manufacturing, rectifying or distill­ing spirituous liquors in any state other than the state of Florida, or when such applicant corporation is controlled by, or the majority of stock therein is owned by, another corporation, which latter corporation owns, or controls in any way, the majority of stocks or controlling interest in any other corporation which is en­gaged, directly or indirectly, in manufacturing, rectifying or distilling spirituous liquors in any state other than the State of Florida.

(5) Notwithstanding any of the provisions of the foregoing subsections, an.y corporation which holds a license as a distributor on June 3, 1947, shall be entitled to a renewal thereof, provided such corporation shall comply with all of the provisions of the beverage law of Florida, as amended, and of this section and shall estab­lish by satisfactory evidence to the board of county commissioners of the county wherein the original license was issued that during the six months period next preceding its applica­tion for such renewal, that, of the total volume of its sales of spirituous liquors, in either dol­lars or quantity, not more than forty per cent of such spirituous liquors sold by it, in either dollars or quantity, were manufactured, recti­fied or distilled by any corporation, in any state other than the State of Florida, with which the applicant is affiliated, directly or indirectly, in­cluding any corporation which owns or con­trols in any way any stock in the applicant cor­poration or any corporation which is a subsid­iary or affiliate of the corporation so owning. stock in the applicant corporation.

(6) Any person, copartnership or corpora­tion applying for a distributor's license or a re­newal thereof under the provisions of this sec­tion, shall file a written or printed application therefor with the tax collector of the county in which a new license is sought, or, where a re­newal license is sought, with the tax collector of the county in which the original license was isl'lued. Such application shall be sworn to by the applicant or a member of the copartnership or an officer of the corpora-l;ion, depending upon whether the applicant is a 1 individual, copart­nership or a corporation. F'orms for such appli­cations shall be provided by the director to the tax collector. Every such application shall set forth clear and detailed information neces­sary and sufficient to establish the right of the applicant under the provisions of this section to receive or renew its license, as the case may be. The information herein required to be set forth shall be in addition to any information re­quired to be set forth by any other provision of applicable law. Any application failing to com­ply fully with the provisions of this section shall be denied.

(7) The procedure otherwise provided in this chapter with regard to every application for license as a distributor, with the addition thereto of the procedure provided by this sec­tion, shall be followed with regard to every ap­plication for license as distributor and every application for any renewal of such license; provided, §561.27 shall have no application to the renewal of a license of any distributor, except that no license of any distributor shall be renewed if the license of such distributor and continuations thereof shall have been re­voked or the qualifications of such distributor shall have been impaired.

(8) Any maneuver, shift or device by any applicant whereby any provision of this section, in any manner, is sought to be avoided or evaded shall be deemed a violation of the bever­age law and shall subject the applicant, or in case of a corporation, the officer who is respon­sible for the application, to the penalties pro­vided in §562.45.

Hlstory.-§2, ch. 16774, 1935; CGL 1936 Supp. 4151(228); am. §1, ch. 23899, 1947.

561.241 Distributor's licenses; issuance and transfer; procedure.-

No new spirituous liquor distributor's license shall be issued by the beverage department, and no transfer of an existing spirituous liquor dis­tributor's license shall be made unless and un­til the director shall determine that such issu­ance or transfer is necessary in the interest of the public and the licensee concerned, after a hearing duly called and held by the director in which fifteen days notice shall be given to the licensee or applicant and to all other li­censed spirituous liquor distributors.

History.-comp. §19, ch. 57-420.

561.25 Officers and employees prohibited from being employed by or engaging in bever­age business; penalties.-No officer or em­ployee of the state beverage department, and no sheriff or other state, county or municipal officer with state police power granted by the legislature, shall be permitted to engage in the sale of alcoholic beverages under the bever­age law; or be employed, directly or indirectly, in connection with the operation of any busi­ness licensed under the beverage law; or be permitted to own any stock or interest in any firm, partnership or corporation dealing wholly or partly in the sale or distribution of alcoholic beverages. Any person violating this provision of the beverage law shall be guilty of a mis­demeanor and shall, upon conviction, be auto­matically removed or suspended from office and punished by a fine of not more than $500.-00 or by imprisonment in the county jail for not more than 6 months, or both.

Hlstory.-§3, ch. 16774, 1935; CGL 1936 Supp. 4151C229), 7648(4); am. §6, ch. 22663, 1945; 520, ch. 57-420. cf.-§775.06, Alternative punishment.

561.26 Term of licenses.-(1) Except as herein otherwise provided,

no license shall be issued except annual licenses

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BEVERAGE LAW; ADMINISTRATION Ch. 561

which shall be paid for on or before the first of October and shall expire the first of the succeeding October; provided that any person beginning business after the first of October may obtain a new license upon the application therefor and the payment of the annual license tax and such license shall expire on the first of the succeeding October; provided, further, that any person beginning such business on or after the first of April of the license year may obtain a new license expiring on the first of October of the same year upon application therefor and the payment of one-half the license tax herein required for the annual license. Nothing herein shall be construed to permit the issuance of licenses contrary to the limita­tion on the number of such licenses as provided in subsection (4), §561.20, nor to amend the provisions of this law pertaining to the re­newal or transfer of licenses.

(2) In addition to the state license tax here­in required, there shall be paid by each licensee a county license tax equal to the state license

· tax. History.-§5, sub-§ VII'h, ch. 16774, 1935: CGL 193&

Supp, 4151(231); §10, ch. 25359, 1949; (2)R. by §21, ch. 57-420, r emaining· subsections renumbered.

561.27 Renewing license.-(1) A duly licensed annual licensee under

the beverage law, except as provided in §§561.22 and 561.24 of the beverage law, shall be enti­tled to a renewal of his annual license from year to year, as a matter of course, on or before the first of October, by presenting the license for the previous year or satisfactory evidence of its loss or destruction to the tax collector, and by paying the annual license tax and giving any bond required of such licensee under the bever­age law, without the necessity of applying to the director for approval thereof; provided, the annual license of such licensee shall not have been revoked.

(2) A license may be renewed subsequent to October 1 of each year only upon making to the director a delinquent application for ap­proval, accompanied by an affidavit, that n(J sa les of alcoholic beverages have been made subsequent to October 1, and upon payment of a penalty of $5.00 per month or fraction thereof for each month of delinquency, or 5% of the license fee or fraction thereof, whichever is the g reater.

Hlstory.-§9, ch. 18015, 1937: CGL 1940 Supp 4151(2711). Am. §11, ch. 25359, 1949 ; §22, ch. 57-420.

561.29 Revocation and suspension of li­cense; power to subpoena; hearing; appeal to courts.-

(1) Th€ director is given full power and authority to revoke or suspend the license of any person, firm or corporation holding a li­cense under the beverage law, where it is deter­mined or found by the director upon sufficient cause appearing of:

(a) Violation by the licensee, his or its agents, officers, servants or employees, on the licensed premises, of any of the laws of this

state, or any state, or of the United States, or violation of any municipal or county regulation in regard to the hours of sale, or engaging in or permitting disorderly conduct on the licensed premises.

(b) Violation by the licensee, and, if a cor­poration, by any officers thereof, of any laws of this state, or any state, or territory of the United States.

(c) Maintaining a nuisance on the licensed premises.

(d) Maintaining licensed premises that are unsanitary, or are not approved as sanitary by the county or state board of health having juris­diction thereof.

Whether or not the licensee, his or its of­ficers, agents or employees, have been convict­ed in any criminal court of any such violation shall not be considered in proceedings before the director for suspension or revocation of license.

(2) The beverage director, or any assistant designated by him, shall have the power &nd authority to examine into the business, books, records and accounts of any licensee, and to is­sue subpoenas to said licensee or any other per­son from whom information is desired and to take depositions of witnesses within or with­out the state. The director, or any assistant designated by him, may administer oaths and issue subpoenas. The provisions of the civil law of the state in relation to enforcing obe­dience to a subpoena lawfully issued by a judge or other person duly authorized to is­sue subpoenas under the laws of Florida, to is­sue subpoenas in civil cases, shall apply to a subpoena issued by the beverage director, or any assistant designated by him, as author­ized in this section, and may be enforced by writ of attachment to be issued by the beverage direc­tor, or any assistant designated by him, for such witness to compel him to attend before the director, or any assistant designated by him, and give his testimony and to bring and produce such books, papers and documents as may be required for examination. and the director, or any assistant designated by him, may punish any wilful refusal to so appear or give testimony by citation of any witness before the circuit court who shall punish such witness for con­tempt as in cases of refusal to obey the orders and process of the circuit court. The director may in such cases pay such attendance and mileage fees as are permitted to be paid to wit­nesses in civil cases appearing before the cir­cuit court.

(3) Before the director shall revoke or sus­pend the license of any licensee, he shall give such licensee a written statement of such cause for revocation or suspension of license and a fair hearing, if the licensee shall demand a hearing. Provided that said licensee shall in writing demand a hearing within ten days after the receipt of said written statement from the director and shall, within said ten days deliver

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to the director, either in person or by due course of mail, a copy of such written demand for hear­ing. If no such demand is made within the time herein fixed, the director shall proceed to the revocation or suspension of said license. At such hearing the licensee shall be entitled to produce witnesses and be represented by coun­sel. If the hearing is conducted by an assistant designated by the director, a transcript of the proceedings of such hearing shall be reviewed by the director, who shall enter his decision thereon.

. ( 4) (a) In order to permit a licensee whose license shall be revoked or suspended an oppor­tunity to apply to the court for relief, no revo­cation or suspension of license by the director shall become effective until fifteen days after the date of revocation or suspension.

(b) Application to the court for relief from any order of suspension or revocation shall be only by certiorari to the circuit court of the county wherein such licensee is licensed to do business under the beverage law.

(c) An application for a writ of certiorari to the circuit court shall be by petition filed in the court within thirty days from the effective date of the order of suspension or revocation sought to be reviewed. It shall be accompanied by a transcript of the record duly certified by the director, of the proceedings involved. The petition shall contain a concise statement of the cause and the reasons relied on for grant­ing the writ and shall be accompanied by a sup­porting brief.

(d) A copy of the petition, the supporting brief and the transcript shall be served upon the director, on or before the time they are filed with the clerk of the circuit court.

(e) The director shall file his brief in op­position to petition for the writ, and serve a copy thereof upon the petitioner within twenty days after he has been furnished a copy of petitioner's brief.

(f) The petition shall be set down for oral argument before the court after the time al­lowed the director herein to file his brief. Thereafter, the court shall issue or deny the writ.

(g) Such petition for writ of certiorari shall not supersede the order of revocation or sus­pension sought to be reviewed unless the peti­tioner shall give a good and sufficient bond conditioned to pay all cost and expenses oc­casioned by reason of such proceedings. Notice of application for supersedeas bond shall be given to the director of the beverage depart­ment and such bond shall be fixed in such amount as the court shall deem reasonable.

History.-§!, ch. 16774, 1935; CGL 1936 Supp. 4151(227); §1A, ch. 19301, 1939; am. §4, ch. 21839, 1943; am. §7, ch. 22663, 1945; §3, ch. 23746, 1947; sub. § (1) am. §5, ch. 29786, 1955; (1) ,(4) by §23, ch. 57-420. cf.-§90.14 Compensation of witnesses in various courts.

561.291 Termination of communication serv­ice; revocation of license issued by beverage department or hotel commission.-

(!) Whenever the telephone, telegraph or any other communication facility or service furnished by a public utility to any place or installed on the premises of any place in the state operating under a license of the state beverage department or the state hotel com­mission has been duly and legally removed or terminated by operation of a state law having for its purpose the prohibiting of bookmaking or other gambling, or because of the operation of any rule, regulation or order of the Florida railroad and public utilities commission, the license or licenses shall be automatically and immediately suspended dur­ing the time the communication facilities are denied such places or premises. The Florida railroad and public utilities commission shall notify the state beverage department and the state hotel commission of the removal of com­munication services from such places.

(2) This section shall be deemed an ex­ercise of the police power of the state for the protection of the public welfare, health, peace, safety and morals of the people of the state, and the provisions of this section shall be liberally construed for the accomplishment of this purpose.

(3) Nothing in this section shall be con­strued as repealing the provisions of any other law or preventing the prosecution or the im­posing of criminal or civil penalties provided by other law, the penalties herein imposed shall be in addition to any other penalties.

Hlstory.-Comp. §§1-3, ch. 26773, 1951.

561.32 Transfer of Iicenses.-Licenses is­sued under the provisions of the beverage law shall not be transferable except as follows: When a licensee shall have made a bona fide sale of the business which he is so licensed to conduct he may obtain a transfer of such license to the purchaser of said business, pro­vided the application of the purchaser shall be approved by the director of the beverage de­partment in accord with the same procedure provided for in §§561.17, 561.18 and 561.19, in the case of issuance of new licenses; provided further, however, that no one shall be en­titled as a matter of right to a transfer of a license when revocation or suspension pro­ceedings have been instituted against a li­censee, and transfer of license in any such case shall be within the discretion of the director; provided further before the issu­ance of any transfer of license herein provided the transferee shall pay the following transfer fee applicable to the tax collector of the county, and said transfer fee shall be remitted to the beverage director on or before the tenth day of the following calendar month:

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BEVERAGE LAW; ADMINISTRATION Ch. 561

LICENSES ISSUED UNDER §561.34, FLORIDA STATUTES (1) (a) (1) (b) (2) (a) (2) (b) (3) (4) (5) (6) (7) (8) (9) (10) (11) & (12)

TRANSFER LICE~SE FEE $ 6.00

3.00 20.00 10.00

10% of the total state, county and city, if any, annual license fees.

All licenses issued under §561.35, shall pay a transfer license fee equal to ten per cent of the total state, county and city, if any, annual license fee.

There is herein imposed a service fee of twenty-five cents on each such transfer license issued under this section and shall be col­lected by the county tax collector from each transferee upon the issuance of any such trans­fer license. The service fee shall be retained by the tax collector and accounted for as a part of his funds in accordance with law.

Hlstory.-§6, ch. 18016, 1937; CGL 1940 Supp. 4151(271f); §4, ch. 23746, 1947; §12, ch. 25359, 1949; am. §1, ch. 28123, 1953.

561.33 Licensee moving to new location; changing name of business.-

(!) Any licensee may move his place of business and sell at his new place of business upon making application, in triplicate, for such change of location to the tax collector of the county wherein the new location is situated, and upon such application being approved by the director of the beverage department, as provided in §§561.18 and 561.19. Upon such application and such approval thereof, there shall be issued to such licensee a license for the new location without the payment of any further fee or tax; provided, however, that if the new place of business be in a different county from the county where the original li­cense was issued, an additional county license tax shall be paid by the licensee before the is­suance of the license applied for; and, provided further, that if the new place of business be in a different incorporated municipality than that in which the original license was issued, the licensee shall be required to pay an additional tax to the incorporated municipality in which the new place of business is located. Nothing in this section shall be construed to permit the change in location of any license that will in­crease the number of licenses in any county or incorporated municipality contrary to the limitations of the number of licenses provided in §561.20 (1).

(2) No licensee may change the name of his place of business, except by making application in triplicate for such change to the tax collector of the county wherein is located the licensed premises and upon such application being ap­proved by the director of the beverage depart-

ment, as provided in §§561.18 and 561.19 of the beverage law.

Hlstory.-§11(b), ch. 16774, 1935; CGL 1936 Supp. 4151-(237); §1, ch. 20830, 1941; §13, ch. 25359, 1949; §24, ch. 57-420.

561.34 License fees; vendors.-Each vendor shall pay an annual state license tax as follows:

(1) (a) Vendors of beverages containing alcohol of more than one per cent by weight and not more than three and two tenths per cent by weight, fifteen dollars.

(b) Vendors of beverages containing alcohol of more than one per cent by weight and not more than three and two tenths per cent by weight for consumption off the premises only, seven and one-half dollars.

(2) (a) Vendors of beverages containing alcohol of more than one percent by weight and not more than fourteen per cent by weight, and wines regardless of alcoholic content, fifty dol­lars.

(b) Vendors of beverages containing alcohol of more than one per cent by weight and not more than fourteen per cent by weight and wines regardless of alcoholic content, for consumption off the premises only, twenty-five dollars.

The following license taxes shall apply to vendors who are permitted to sell any such bev­erages regardless of alcoholic content.

(3) Vendors operating places of business where beverages are sold only in sealed con­tainers for consumption off the premises where sold, an amount equal to seventy-five per cent of the amount of the license tax herein provided for vendors in the same county operating places of business where consumption on the premises is permitted.

(4) Vendors operating places of business where consumption on the premises is per­mitted in counties having a population of over one hundred thousand, according to the latest state or federal census, seven hundred fifty dol­lars.

(5) Vendors operating places of business where consumption on the premises is permitted in counties having a population over sixty thou­sand and not over one hundred thousand, ac­cording to the latest state or federal census, six hundred dollars.

(6) Vendors operating places of business where consumption on the premises is per­mitted in counties having a population of over forty thousand and not over sixty thousand, ac­cording to the latest state or federal census, five hundred dollars.

(7) Vendors operating places of business where consumption on the premises is per­mitted in counties having a population of over ten thousand and not over forty thousand, according to the latest state or federal census, three hundred dollars.

(8) Vendors operating places of business where consumption on the premises is permitted in counties having a population of ten thousand or less, according to the latest state or federal census, two hundred dollars.

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(9) Any operator of railroads or sleeping cars in this state may obtain a license to sell the beverages mentioned in the beverage law on passenger trains on the payment of an an­nual license tax of two hundred fifty dollars, said tax to be paid to the director. Such license shall authorize the holder thereof to keep for sale and sell all beverages mentioned in the bev­erage law upon any dining, club, parlor, buffet or observation car operated by it in this state, but said beverages may be sold only to passen­gers upon said cars and must be served for con­sumption thereon. It is unlawful for such li­censees to purchase or sell any liquor except in miniature bottles of not more than two ounces. Every such license shall be good throughout the state. No license shall be required or tax levied by any municipality or county for the privilege of selling such beverages for consumption in such cars. Such beverages shall be sold only on cars in which are posted certified copies of the licenses issued to such operator. Such certified copies of such licenses shall be issued by the director upon the payment of a tax of one dollar.

(10) Operators of steamships and steamship lines, buses and bus lines, airplanes and airlines engaged in interstate commerce or plying be­tween fixed termini and upon fixed schedules in this state may obtain licenses to sell the bev­erages mentioned in the beverage law on steam­ships, buses and airplanes operated by such operators on payment of an annual license tax of one hundred dollars, said tax to be paid to the director. Such licenses shall authorize the holders thereof to keep for sale and sell all beverages mentioned in the beverage law upon any steamship, bus or airplane operated by such operators in this state but said beverages may be sold only to passengers upon such steam­ships, buses and airplanes and may be served only for consumption thereon. It is unlawful for such licensees to purchase or sell any liquor except in miniature bottles of not more than two ounces. Such sales shall be permitted only while said steamships, buses and airplanes are in transit and shall not be permitted while such steamships are moored at docks or wharves in ports of this state, or while said buses are at stations, or while airplanes are in airports. Every such license shall be good throughout the state. No license shall be re­quired or tax levied by any municipality or county for the privilege of selling such bever­ages for consumption on such steamships, buses or airplanes. Such beverages shall be sold only on steamships, buses and airplanes in which are posted certified copies of the license issued to their operators. Certified copies of such license shall be issued by the director upon payment of a fee of one dollar for each certified copy; provided, that this paragraph shall not apply to operators of pleasure or excursion boats not having regular round trip runs of more than one hundred miles in each direction, but operators of such pleasure or excursion boats may obtain

a license, with such boats being designated as their place of business, upon compliance with all the laws relating to vendors operating places of business where consumption on the premises is permitted; provided further, that no license to sell the beverages herein defined shall be issued to the operator of any boat which plies upon or is anchored upon the waters of any lake within this state.

Operators of railroads, sleeping cars, steam­ships, buses and airplanes licensed under th1s section shall not be required to obtain thai• beverages from licensees under the beverage law, but such operators shall keep strict account of all such beverages sold within this state and shall make monthly reports to the director on the forms prepared and furnished by the direc­tor. Said operators are hereby required to pay an excise tax for said beverages sold within this state as to which such excise tax has not theretofore been paid, equal to the tax as­sessed against manufacturers and distribu­tors. Said operators shall pay said tax n.onthly to the director, at the same time they furnish the reports hereinabove provided for. Said re­ports shall be filed on or before the fifteenth day of each month for sales for the previou~ calendar month.

(11) Persons associated together as a char­tered or incorporated club, inc! uding social clubs incorporated by orders of circuit judges after their charters have been found to be for objects authorized by law and approved by said judges as organized for lawful purposes and not for the purpose of evading license taxes on dealers in beverages defined herein, which such organizations are bona fide clubs, and at the time of application for license hereunder shall have been in continuous active existence and' operation for a period of not less than two years in the county where they exist, shall before serving or distributing to their members or non­resident guests the beverages defined herein. whether such service or distribution be made upon contribution to the club of money or by check or other device, pay annual license taxe~ as follows: To the state ---------------------------------------------- $125.00 To the county ------------------------------------------------$125.00 provided, that any golf club operated by or on behalf of any incorporated municipality in this state, and any veteran's or fraternal organiza­tion of national scope, need not have been, or need not be, in continuous active existence or operation for any required period of time prior to an application for license hereunder. The pay­ment of such club license tax shall authorize the service and distribution to members and nonresident guests of the club only and such service and distribution to said members and nonresident guests shall not be deemed sales within the meaning of the law in this state but any service or distribution to anyone other than a member or nonresident guest of such licensed club shall be deemed a sale and any officer, member or employee of any such licensed club who shall sell or distribute or serve any such

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BEVERAGE LAW; ADMINISTRATION Ch. 561

beverages to any person other than a member or nonresident guest of such club for money or other value shall be deemed guilty of selling such beverages without a license and shall be punished as provided by law. Any officer of any such club which has not paid such license, who shall knowingly permit such service or distribu­tion by such club of the beverages herein de­fined to members or nonresident guests of such club shall, upon conviction thereof, be punished as herein provided; provided, that this para­graph shall not apply to clubs organized or used for the purpose of evading the payment of the license tax on vendors of such beverages, but such club shall be subject to the payment of the license tax imposed by the beverage law upon vendors. The president, vice-president, secre­tary or treasurer or officers of corresponding duties, by any name they may be called, of any club required by this section to pay a license tax, shall be required to see that such license tax shall be paid and in default thereof shall each be personally liable to the punishment pro­vided by the beverage law for nonpayment of the license hereby required; provided, further, that clubs not authorized to obtain licenses un­der this subsection or which do not obtain li­censes under this subsection may, if the:Y com­ply with this provision of the beverage law, obtain licenses as vendors. Clubs obtaining such club licenses shall not purchase any bev­erage herein defined from anyone other than a distributor licensed under the beverage law, nor shall such clubs dispense or serve any bev­erages defined herein unless such beverages shall have been purchased by such club from such licensed distributor; nor shall they dis­pense or serve any such beverage on which a tax stamp is required by the beverage law un­less the containers of Ruch beverages have affixed to them the stamps required by said law. Such club license cannot be transferred in any manner whatsoever.

(12) Caterers at horse and dog racing plants may obtain licenses upon the payment of an annual state license tax of two hundred fifty dollars and an annual county license tax of two hundred fifty dollars. Incorporated municipali­ties may provide for a municipal license tax on such caterers of fifty per cent of the state and county license tax, to be deducted from the state and county license tax as provided herein with reference to other municipal license taxes. Such caterers' licenses shall permit sales only within the enclosure wherein such racing is conducted under authority of the state racing commission and such licensees shall ·be permit­ted to sell only during the period beginning ten days before and ending ten days after racing under the authority of the state racing commis­s ion is conducted in such racing plant. Except as in this subsection otherwise provided cater­ers licensed hereunder shall be treated as vend­ors licensed to sell by the drink the beverages mentioned herein and shall be subject to all the provisions hereof relating to such vendors.

(13) (a) Any person, firm or corporation operating a commercial establishment used principally or primarily for the consumption of alcoholic beverages thereon, and located in any county where the sale of alcoholic bever­ages is licensed by law but who does not hold a valid beverage license of any classification, shall pay a license fee of twenty-five dollars per day for each day of operation in addition to any other license fees now required by law.

(b) Said premises shall be subject to all general laws and special laws and municipal ordinances regulating the hours of opening and closing as provided for vendors of alcoholic beverages.

(c) The enforcement of this chapter shall be under the director and the director is here­by authorized to make such necessary rules and regulations to enforce the provisions here­of.

History.-§5, ch. 16774, 1935; CGL 1936 Supp. 4151(231); §5, ch. 23746, 1947; §11, ch. 25035, 1949: sub. § (1) (a) am. §10, ch. 26484>, 1951; sub. § (13) comp. §1, ch. 29960, 1955.

Am. (9)- (12) by §25, ch . 57-4>20. cf.-§561.63, Sale of mixed drinks, when prohibited.

§567.10, Refund on discontinuance by local option. §561.20 Limitation on number of llcenses issued. §561.32 Transfer of l!cense.

561.341 Licenses; in Monroe county.­Licenses under subsections (3) and (7) of §561.34, shall be granted to vendors whose places of business a re on the Florida Keys or islands in Monroe county, even though such places of business are or shall be within two thousand five hundred feet of an established school or church, provided, however, that such places of business are not or shall not be within five hundred feet of an established school or church. This section shall not apply to vendors whose places of business are or shall be within an incorporated city or town.

History.-§!, ch. 23880, 1947; §11, cb. 25035, 1949.

561.35 License fees; manufacturers, distri-butors and importers.- ·

(1) Each manufacturer authorized to do business under the beverage law shall pay an annual license tax as follows:

(a) If engaged in the manufacture of wines and of nothing else, a state license tax of fifty dollars.

(b) If engaged in the manufacture of wines and cordials and of nothing else, a state license tax of one hundred dollars.

(c) If engaged in the business of brewing malt liquors and nothing else, a state license tax of seven hundred and fifty dollars.

(d) If engaged in the business of distilling spirituous liquors and nothing else, a state license tax of seven hundred and fifty dollars.

(e) If engaged in the business of rectifying and blending spirituous liquors and nothing else, a state license tax of twelve hundred and fifty dollars.

(f) Persons licensed hereunder in the busi­ness of distilling spirituous liquors may also en­gage in the business of rectifying and blending spirituous liquors without the payment of an additional license tax.

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Ch. 561 BEVERAGE LAW; ADMINISTRATION

(g) All persons licensed under paragraphs (a), (b), (c), (d), and (e) of this subsection shall be deemed manufacturers within the mean­ing of the beverage law.

(h) There shall be a separate license tax for each manufacturing plant or establishment op­erated in the state even though the same manu­facturer operates more than one manufacturing plant or establishment.

(i) Each distributor who shall distribute beverages containing alcohol of more than one per cent by weight and not more than three and two-tenths per cent by weight, in counties where the sale of intoxicating liquors, wines and beers is prohibited, for each and every establishment or branch he may conduct, shall pay an annual state license tax of two hundred dollars.

(j) Each distributor who shall sell beverages containing alcohol of more than one per cent by weight and not more than fourteen per cent by weight, and wines regardless of alcoholic content, in counties where the sale of intoxicating li­quors, wines and beers is permitted, shall pay for each and every such establishment or branch he may operate or conduct a state license tax of two hundred dollars.

(k) All other distributors authorized to do business under the beverage law shall pay a state license tax of twelve hundred fifty dollars for each and every establishment or branch they may operate or conduct in the state; provided, that in counties having a population of fif­teen thousand or less according to the latest state or federal census the state license tax for a restricted license shall be three hundred fifty dollars, but the holder of such a license shall be permitted to sell only to vendors and dis­tributors licensed in the same county, and such license shall contain such restrictions. In such counties licenses without such restrictions may be obtained as in other counties but the tax for a license without such restrictions shall be the same as in other counties. Warehouses of a li­censed distributor used solely for storage, lo­cated in the county in which license is issued to such distributors, shall not be construed to be separate establishments or branches.

(2) Each manufacturer and distributor shall pay an annual county license tax equal to the state license tax.

(3) All licenses of manufacturers and dis­tributors shall be issued annually and shall run from the first day of October to the first day of the succeeding October, except that where a manufacturer or distributor shall begin business after the first of April in any year he may ob­tain a license expiring on the first of the suc­ceeding October upon the payment of one-half the tax for such annual license.

Hlstory.-§5, ch. 16774, 1935; CGL 1936 Supp. 4151(231); §2, sub. §(h), ch. 19301, 1939 ; am. §5, ch. 21839, 1943; (+) R. by §12, ch. 29786, 1955. cf.-§561.32 Transfer of license.

561.36 Municipal license tax.-(1) Each incorporated municipality in the

state may levy and collect a license tax on each manufacturer, distributor, vendor, caterer and club having a place of business or club house or club rooms within the corporate limits of such city or town not to exceed fifty per cent of the state and county license tax herein provid­ed, but if such municipality provides and col­lects such license tax the manufacturer, distri­butor, vendor or club paying such license tax shall be entitled to a reduction in his state and county license tax of the amount so paid for such municipal license tax, upon exhibiting to the county tax collector a receipt for the pay­ment of such municipal license tax. Such municipal license shall not apply to state and county licensees who shall have paid their state and county license tax before the ordinance providing for such municipal license tax shall have become effective.

No tax on the manufacture, distribution, transportation, importation or sale of such beverages shall be imposed by way of license, excise or otherwise, by any municipality, any thing in any municipal charter, special or gen­eral law to the contrary notwithstanding, ex­cept as herein expressly authorized.

(2) Any beverage license issued by an in­corporated municipality must be separate from any other municipal license and the amount of license tax paid for such license must show on its face.

Hlatory.-§7, ch. 16774, 1935; CGL 1936 Supp. 4151(233); §12, ch . 18015, 1937; §26, ch. 57-420.

561.37 Bond for payment of taxes.-Each manufacturer or distributor shall file with the director a surety bond acceptable to the direc­tor in the sum of twenty-five thousand dollars as surety for the payment of all taxes, provid­ed, however, that where in the discretion of the director the amount of business done by the manufacturer or distributor is of such vol­ume that a bond of less than twenty-five thou­sand dollars will be adequate to secure the pay­ment of all taxes assessed or authorized by the beverage law, the director may accept a bond in a lesser sum than twenty-five thousand dol­lars, but in no event shall he accept bond of less than ten thousand dollars, and he may at any time in his discretion require any bond in an amount less than twenty-five thousand dollars to be increased so as not to exceed twenty-five thousand dollars; provided, however, that the amount of bond required for a brewer shall be twenty thousand dollars, except that where in the discretion of the director, the amount of business done by the brewer is of such vol­ume that a bond of less than twenty thousand dollars will be adequate to secure the payment

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BEVERAGE LAW; ADMINISTRATION Ch. 561

of all taxes assessed or authorized by the bev­erage law, the director may accept a bond in a lesser sum than twenty thousand dollars, but in no event shall he accept bond of less than ten thousand dollars, and he may at any time in his discretion require any bond in an amount less than twenty thousand dollars to be in­creased so as not to exceed twenty thousand dollars; provided, further, that the amount of the bond required for a wine or wine and cor­dial manufacturer shall be five thousand dol­lars, except that, in the case of a manufacturer engaged solely in the experimental manufac­ture of wines and cordials from Florida pro­ducts where in the discretion of the director the amount of business done by such manu­facturer is of such volume that a bond of less than five thousand dollars will be adequate to secure the payment of all taxes assessed or authorized by the beverage law, the director may accept a bond in a lesser sum than five thousand dollars, but in no event shall he ac­cept a bond of less than one thousand dollars and he may at any time in his discretion re­quire a bond in an amount less than five thou­sand dollars to be increased so as not to ex­ceed five thousand dollars; provided, further, that the amount of bond required for a dis­tributor who sells only beverages containing not more than three and two-tenths per cent of alco­hol by weight, in counties where the sale of in­toxicating liquors, wines and beers is prohibited, and to distributors who sell only beverages con­taining not more than fourteen per cent of alcohol by weight and wines regardless of alcoholic content, in counties where the sale of intoxi­cating liquors, wines and beers is permitted, shall file with the director a surety bond ac­ceptable to the director in the sum of twenty­five thousand dollars, as surety for the pay­ment of all taxes, provided, however, that where in the discretion of the director the amount of business done by such distributor is of such volume that bond of less than twen­ty-five thousand dollars will be adequate to secure the payment of all taxes assessed or authorized by the beverage law the director may accept a bond in a less sum than twenty­five thousand dollars but in no event shall he accept a bond less than one thousand dollars and he may at any time in his discretion re­quire any bond in an amount less than twenty­five thousand dollars to be increased so as not to exceed twenty-five thousand dollars; pro­vided, further, that the amount of bond re­quired for a distributor in a county having a population of fifteen thousand or less who procures a license by which his sales are re­stricted to distributors and vendors who have obtained licenses in the same county, shall be five thousand dollars.

Hlotory.-§5, sub-§ XI (h), ch. 16774, 1985; CGL 1936 Supp. 4151 (231); §2, ch. 19301, 1939.

561.38 Issuance of license prohibited until bond approved.-No license shall be issued to a manufacturer or distributor until the bond

herein provided for has been approved by the director.

Hlotory.-§5, ch. 16774, 1935 ; CGL 1936 Supp. 4151(231); §2, ch. 19301, 1939.

561.39 State license tax collected by county tax collector.-The state license tax provided for in the beverage law shall be collected by the county tax collector of each county and shall be remitted by him monthly with the report to the director on or before the tenth day of the succeeding month.

Hlotory.-§5, ch. 16774, 1935 ; CGL 1936 Supp. 4151(231); §2, ch. 19301, 1939 ; §14, ch. 25359, 1949.

561.41 Maintenance and designation of principal office by manufacturers, bottlers and distributors.-Each manufacturer, bottler and distributor licensed hereunder shall have with­in this state an office which shall be designated as his principal office within this state and may maintain branch offices within or without this state. Said principal and branch offices within this state shall during regular defined business hours be kept open for the inspection of authorized employees of the beverage depart­ment.

Hlotory.-§4, ch. 16774, 1935; CGL 1936 Supp. 4151(230). Am. §27, ch . 57-420 .

561.42 Tied house evil; financial aid and assistance to vendor by manufacturer or dis­tributor prohibited; procedure for enforcement; exception.-

(!) No licensed manufacturer, or distribu­tor, of any of the beverages herein referred to shall have any financial interest, directly or indirectly, in the establishment or business of any vendor licensed under the beverage law, nor shall such licensed manufacturer or dis­tributor assist any vendor by any gifts or loans of money or property of any description or by the giving of any rebates of any kind what­soever. No licensed vendor shall accept, di­rectly or indirectly, any gift or loan of money or property of any description or any rebates from any such licensed manufacturer or dis­tributor; provided, however, that this shall not apply to any bottles, barrels or other containers necessary for the legitimate transportation of such beverages, or advertising materials, and shall not apply to the extension of credit, for liquors sold, made strictly in compliance with the provisions of this section.

(2) Credit for the sale of liquors may be extended to any vendor up to but not including the tenth day after the calendar week within which such sale was made.

(3) In cases where payment for sales to a vendor is not made by the tenth day suc­ceeding the caler1dar week in which such sale was made, the distributor who made such sale shall, within three days, notify the beverage department in writing of such fact and the beverage department, upon receipt of such no­tice, shall, after compliance with the proceed­ings hereinafter mentioned, declare in writing to such vendor and to all manufacturers and

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distributors within the state that all further sales to such vendor are prohibited until such time as the beverage department shall certify in writing that such vendor has fully paid for all liquors previously purchased.

(4) Before the beverage department shall so declare, and prohibit such sales to such vendor, it shall, within two days after receipt of such notice, give written notice to such vendor by mail of the receipt by the beverage department of such notification of delinquency and such vendor shall be directed to forthwith make payment thereof, or upon failure to do so, to show cause before the beverage director or one of his designated assistants why further sales to such vendor shall not be prohibited. Good and sufficient cause to prevent such ac­tion by the beverage department may be made by showing payment, failure of consideration, or any other defense which would be consid­ered sufficient in a common law action. The vendor shall have five days after receipt of such notice within which to show such cause, and he may demand a hearing thereon, pro­vided he does so in writing within said five days, such written demand to be delivered to the beverage director either in person or by due course of mail within such five days. If no such demand for hear:"lg be made, the bev­erage department sh~ll thereupon declare in writing to such vendor and to all manufac­turers and distributors within the state that all further sales t0 such vendor are prohibited until such time as the beverage department shall certify in writing that such vendor has fully paid for all liquors previously purchased. If such demand for hearing is made, the vendor shall be entitled to produce witnesses and be represented by counsel. Decision thereon may be made by the director or such designated as­sistant who has heard the same. In the event no good cause be shown, such prohibition of sales and declaration thereof to the vendor, manufac­tlJrers and distributors shall follow five days after such hearing unless the vendor within such time seeks review of such decision by cer­tiorari or any other appropriate remedy to the circuit court of the county wherein the vendor is licensed to do business under the beverage law. In the event application for such review is filed within such time, such prohibition of sales shall not be made, published or declared until final disposition of such review by the courts.

(5) Upon receipt by the beverage depart­ment from the distributor of the notice of nonpayment provided for by subsection (3), above, the beverage department shall forthwith notify such delinquent vendor and all distribu­tors in the state that no further purchases or sales of liquor by or to such vendor, ex­cept for cash, shall be made until good cause be shown by such vendor as heretofore pro­vided for. No liquor shall be purchased by such vendor or sold to him by any distribu­tor, except for cash, from and after such notification by the beverage department and until such cause be shown as is provided

for in subsection (4), next above. In the event no good cause be shown, then all further sales, for cash or credit are hereby prohibited after such declaration in writing by the beverage department is sent to such vendor and dis­tributors and until all delinquent accounts have been paid.

(6) Nothing herein shall be taken to for­bid the giving of trade discounts in the usual course of business upon wine and liquor sales.

(7) The extension or receiving of credits in violation of this section shall be considered as an arrangement for financial assistance and shall constitute a violation of the beverage act and any maneuver, shift or device of any kind by which credit is extended contrary to the provisions of this section shall be considered a violation of the beverage act.

(8) The director may establish rules and require reports to enforce the herein estab­lished limitation upon credits and other forms of assistance. Nothing herein shall be taken to affect the provisions for cash sales of wines or beer as are provided in §562.21 or provisions of §562.22 but shall govern all other sales of intoxicating liquors.

(9) The term advertising materials as used in this section shall not include outside signs so located as to be connected with or apper­taining to the vendor's licensed premises.

(10) No manufacturer or distributor of the beverages herein referred to shall directly or indirectly give, lend, rent, sell or in any other manner furnish to a vendor any outside sign, printed, painted, electric, or otherwise; nor shall any vendor display any sign advertising any brand of alcoholic beverages on the outside of his licensed premises or on any lot of ground of which the licensed premises are situate, or on any building of which the licensed premises are a part.

(11) A vendor may display in the interior of his licensed premises, including the window or windows. thereof, neon, electric, or other signs, including window painting and decal­comanias applied to the surface of the interior or exterior of such windows, and posters, plac­ards, and other advertising material advertis­ing the brand or brands of alcoholic beverages sold by him, whether visible or not from the outside of the licensed premises, but no vendor shall display in the window or windows of his licensed premises more than one neon, elec­tric, or similar sign, advertising the produce of any one manufacturer.

(12) Any manufacturer or distributor may give, lend, furnish, or sell to a vendor who sells the products of such manufacturer or distribu­tor neon or electric signs, window painting and decalcomanias, posters, placards and other ad­vertising material herein authorized to be used or displayed by the vendor in the interior of his licensed premises.

History.-§4, ch. 16774, 1935; CGL 1936 Supp. 4151(230); §1, ch. 22078, 1943; §6, ch. 23746, 1947 : §1, ch . 25260, 1949: §1, ch. 25340, 1949; sub. § (3) am. § 10, ch. 26484, 1951.

Am. (6), (11) by §28, ch. 67-420.

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BEVERAGE LAW; ADMINISTRATION Ch. 561

561.43 Manufacturer's or distributor's li­cense in dry counties prohibited; exception made for citrus fruits, citrus fruit products or citrus fruit byproducts, agricultural products and byproducts.-No license except under paragraphs (a) and (b) of subsection (1) of §561.35 shall be issued to a manufacturer or distributor for the operation of a manufactur­ing or distributing plant or establishment in any county where the sale of intoxicating liquors, wines and beers is prohibited; provided, however, that a license may be issued under paragraph (d) of subsection (1) of §561.35, in any such county to any person, firm or corporation engaged in the business of dis­tilling alcoholic or spirituous liquors from cit­rus fruits, citrus fruit products or citrus fruit byproducts, agricultural products and byprod­ucts.

llistory.-§5, ch. 16774, 1935; CGL 1936 Supp. 4151(231); §2, ch. 19301, 1939; am. §8, ch. 22663, 1945; am. §7, ch. 23746, 1947.

561.44 Licensing vendors near school or church; zoning regulations in cities and coun­ties.-

(1) Incorporated cities and towns are here­by given the power hereafter to establish zoning ordinances restricting the location wherein a vendor licensed under §561.34 may be permitted to conduct his place of business and no license shall be granted to any such licensee to con­duct a place of business in a location where such place of business is prohibited from being operated by such municipal ordinance; pro­vided, however, such power shall not apply to vendors licensed under paragraph (b) of sub­section (1) of §561.34.

(2) The board of county commissioners of any county of the state may hereafter, by resolution, establish zones or areas, in the territory lying without the limits of incor­porated cities or towns, wherein the loca­tion of a vendor's place of business licensed under this act may be permitted to be operated; provided, however, such power shall not apply to vendors licensed under paragraph (b) of sub­section (1) of §561.34, and no license shall be granted to any such licensee to conduct a place of business in a location where such place of business is prohibited from being operated by such resolution, provided, how­ever, that no license under subsections (3) to (8) inclusive, of §561.34, shall be granted to a vendor, in the territory lying without the limits of incorporated cities or towns, whose place of business is within twenty-five hundred feet of an established church or school (which distance shall be measured by following the shortest route of ordinary pedestrian travel along the public thoroughfare from the main entrance of said place of business to the main entrance of the church) and, in the case of a school, to the nearest point of the school grounds in use as part of the school facilities; provided further, that where such established church or school be within the incorporated city or town and the applicant for such license,

under subsections (3) to (8) inclusive, of §561.34, within the county be outside such in­corporated city or town, or in another county and outside any other incorporated city or town, then and in either event such applicant may be granted such license if his place of business be the same or a greater distance from such church or school as required by the ordinance of the incorporated city or town wherein such church or school is located; pro­vided further, that where an established church or school be located in a county outside an incorporated city or town so near the corporate limits of any such city or town that under the ordinances of such city or town a vendor there­in shall receive a license under subsection (3) to (8) inclusive, of §561.34, within a distance less than twenty-five hundred feet of such church or school, then and in that event any applicant for such license in the county outside such city or town may be issued such license when his place of business is the same or a greater distance from such church or school as any such vendor duly licensed within such incorporated city or town; provided, further, that any such licensed premises located on any populated island the distance from any estab­lished church or school shall be two thousand feet. Provided always, that any measurements required by the provisions of this subsection shall be made as heretofore set forth in this subsection.

(3) No license shall be granted under §561.34 (3) -(8) inclusive, where said business is located in any building, or upon a lot or parcel of land located less than three hun­dred feet to the nearest property line of any public housing project constructed or main­tained by or with the aid of federal funds. The provisions of this subsection shall be applicable only in cities having a population of more than one hundred thousand people and less than two hundred thousand people according to the last federal census.

History.-§5, ch. 16774, 1935; CGL 1936 Supp. 4151(231); §2, ch. 19301, 1939; (1), (2) §8, ch. 23746, 1947; (3) §1, ch. 23789, 1947; (4) §1, ch. 23835, 1947.

Am. §1, ch. 25104, 1949 (Law effective May 18, 1949). Am. §15, ch. 25359, 1949 (Law effective June 13, 1949).

561.441 Additional zoning powers granted certain counties.-

(!) From and after May 30, 1949, the county commissioners of those counties in the state where the sale of intoxicating liquors is permitted and where said commissioners are authorized to establish or have established zoning and planning boards, be and they are, herebv authorized to determine the distance from ·churches and schools within which in­toxicating liquors may be sold in those areas within said counties outside the limits of in­corporated cities and towns that are now, or which may hereafter be, designated or zoned for business purposes.

(2) Such distance so determined by said county commissioners shall not be less than the distance established by ordinance in the county seats of the respective counties in which

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county commissioners may exercise such author­ity, or not more than the distance established by general law in the absence of any such authority being exercised by the county com­missioners.

Hlstory.-Comp. §§1, 2, ch. 25184, 1949.

561.45 Establishment of school or church near licensee after license issued.-Whenever a licensee has procured a license permitting the sale of beverages containing more than one per cent of alcohol by weight, and thereafter a church or school be established within a dis­tance otherwise prohibited by law of the place of business of the licensee, the establishment of such church or school shall not be cause for the revocation of the license of such licensee and shall not prevent the subsequent renewal of such license of such licensee.

Provided, that whenever the beverage direc­tor has heretofore approved the transfer of any such license from a location which is within the distance from churches or schools prohibited by law to a new location which is likewise in such prohibited distance and such new location is substantially the same distance from churches or schools as the former location or is in the same business block as the former location then such license and transfer thereof by the beverage direc­tor is hereby validated, approved and con­firmed and provided further, that whenever any license heretofore issued has been issued and renewed yearly for the past five years, in· cluding renewals and transfers thereof, it shall not be grounds for revocation of any such license that the location of the licensee there­under is now or was, when originally issued, within such prohibited distance from churches or schools and provided further that nothing herein shall authorize the beverage director to hereafter transfer any license without such prohibited distance to a location within such prohibited distance.

Hlstory.-§11, ch. 18015, 1937; CGL 1940 Supp. 4161(271j); §9, ch. 23746, 1947; §1, ch. 26585, 1951.

561.46 Excise taxes on beverages; exemp· tion.-

(1) As to malt beverages containing more than one per cent of alcohol by weight, there shall be paid by all manufacturers and distribu· tors, as herein defined, a tax of twenty-four cents per gallon upon all such beverages in bulk or in kegs or barrels and when sold in containers of less than one gallon, the tax shall be three cents on each pint or fraction thereof in said container. Provided, however, the ex­cise taxes required to be paid by this subsec­tion upon malt beverages containing alcohol of not more than three and two-tenths per cent by weight, shall not be required to be paid upon such beverages, where the same are sold to post exchanges, ship service stores and base ex­changes located in military, naval or air force reservations within this state.

(2) As to beverages including wines, except natural sparkling wines and malt beverages,

containing more than one per cent alcohol by weight and less than fourteen per cent alcohol by weight, there shall be paid by all manufac­turers and distributors a tax at the rate of one dollar per gallon; provided, however, that there shall be paid by all manufacturers and distributors a tax of twenty cents per gallon and no more, upon all wines manufactured in Florida from fresh fruits, berries or grapes and not from concentrates thereof, except concen­trates of fruits, berries or grapes grown and concentrated in the state, bottled within this st ate and containing more than one per cent alcohol by weight and less than fourteen per cent alcohol by weight.

(3) As to all wines, except natural spark­ling wines containing fourteen per cent or more alcohol by weight, there shall be paid by manufacturers and distributors a tax at the rate of one dollar and forty cents per gallon; provided, however, that there shall be paid by all manufacturers and distributors a tax of thirty cents per gallon and no more, upon all wines manufactured in Florida from fresh fruits, berries or grapes and not from concen­trates thereof, except concentrates of fruit, ber­ries or grapes grown and concentrated in the state, bottled within this state and containing fourteen per cent or more of alcohol by weight.

( 4) As to natural sparkling wines there shall be paid by all manufacturers and distribu­tors a tax at the rate of two dollars per gallon; provided, however, that there shall be paid by all manufacturers and distributors a tax of forty cents per gallon and no more, upon all natural sparkling wines manufactured in Flor­ida from fruits, berries or grapes and not from concentrates thereof, except concentrates of fruits, berries or grapes grown and concentra­ted in this state and bottled within this state.

(5) As to beverages containing fourteen per cent or more of alcohol by weight and not more than forty-eight per cent of alcohol by weight, except wines, there shall be paid by all manu­facturers and distributors a tax at the rate of one dollar twenty cents, per gallon, said tax to be evidenced by stamps as hereinafter provided.

(6) As to beverages containing more than forty-eight per cent of alcohol by weight, there shall be paid by all manufacturers and distribu­tors a tax at the rate of two dollars forty cents per gallon, said tax to be evidenced by stamps as hereinafter provided.

(7) Nothing in this section shall in any manner affect any tax imposed by chapter 24342, laws of 1947 §561.64, or of chapter 25340, laws of 1949 §§561.42, 561.461, 561.462.

(8) Provided further that wine used by any established church as sacramental wine or in connection with religious services is hereby expressly exempted from the provisions of this section. ·

(9) As to all beverages taxed under this section which are manufactured or bottled in Florida, there shall be a two per cent discount allowed to the manufacturer or bottler on the

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BEVERAGE LAW; ADMINISTRATION Ch. 561

amount of taxes assessed against wine for his losses from shrinkage, in filtering, breakage and waste in bottling, said two per cent to be computed on the taxable amount assessed by the state when sold taxpaid, and said two per cent shall be deducted by the manufacturer or bottler on his monthly report.

History.-§9, ch. 16774, 1935; CGL 1936 Supp. 4151(235) §10, ch. 18015, 1937; §2, ch. 20830, 1941; am. §1, ch. 22562, 1945 ; § § 1-7. 9, ch. 26324, 1949; sub. § (2) am. §1, ch. 28177, 1953.

Sub. §§(2)-(4), am., sub. §(9) comp. §8, ch. 29786, 1955. Am. (1 ), (4) by §29, ch. 57-420.

561.461 Additional tax on certain bev­erages.-In addition to all taxes now levied and imposed by the laws of Florida upon the manu­facture, distribution and sale of beverages con­taining fourteen per cent or more of alcohol by weight, except all wines, natural sprakling wines and malt beverages, there is hereby levied and imposed an additional tax of twenty­five cents per gallon upon such beverages con­taining fourteen per cent or more of alcohol by weight and not more than forty-eight per cent of alcohol by weight, and an additional tax of fifty cents per gallon upon such beverages containing more than forty-eight per cent of alcohol by weight. The payment of said addi­tional tax shall be evidenced by stamps as provided for in the beverage law.

Hlstory.-Comp. §2, ch . 25340, 1949.

561.462 Legis)athe intent; interdependence of §§561.42 and 561.461.-It is the intent that §§561.42 and 561.461 shall be dependent upon each other and considered together as making one whole, and should one portion be declared unconstitutional and invalid, then the other shall fail.

Hlstory.-Comp. §3, ch. 25340, 1949.

561.47 Stamps sold distributors only; price; affixing.-

(1) The stamps provided for shall be sold by the director to distributors who are licensed in this state and who have furnished the bond required herein, and to none else. The director shall sell all such stamps to distributors for cash only at a price of ninety-eight cents for each dollar's worth of stamps purchased.

(2) Each such purchaser of stamps shall by such purchase become obligated and required to affix such stamps to the bottles or immediate containers in which beverages requiring stamps are sold, and stamps of the required amount shall be affixed thereto before such beverages are sold . by any distributor. Such stamps shall be affixed in accordance with regulations of the director, which said regulations the director may make, promulgate and change from time to time.

(3) The director may at any time require reports additional to the monthly reports here­inbefore required, as to the disposition of the beverages herein defined, for the purpose of assessment and collection of the excise taxes herein provided, and the burden of proof shall

be on the distributors to satisfy the director as to the disposition of said beverag·es.

History.-§9, ch. 16774, 1935 ; CGL 1936 Supp. 4151(235); §10, ch. 18015, 1937; §2, ch. 20830, 1941; am. §3, ch. 22026, 1943; am. §9, ch. 22663, 1945; am. §10, ch. 23746, 1947.

561.471 Malt beverages; stamp on crown or can lid.-

(1) On and after the first day of October, 1949, all taxable malt beverages packaged in bottles or cans, manufactured within the con­tinental limits of the United States, possessed by any person, firm or corporation in the state, for the purpose of sale or resale in the state, except operators of railroads, sleeping cars, steamships, buses and airplanes engaged in interstate commerce and licensed under this section, shall have printed or lithographed on the crown or can lid thereof, the word "Florida" in not less than 8-point type; crown Closures and can lids shall bear the manufacturer's in­signia, name or trade-mark in addition to the word "Florida." Manufacturers of the malt beverages shall be required to submit samples of crowns or lids to the state beverage director for approval as to the "Florida" designation.

(2) Nothing herein contained shall require crowns or can lids bearing such designation to be attached to containers of malt beverages which are transported through this state and which are not sold, delivered or stored for sale therein, if transported in accordance with such rules and regulations as adopted by the state beverage director; nor shall this requirement apply to malt beverages packaged in bottles or cans and held on the premises of a brewer or bottler, which malt beverages are for sale and delivery to persons, firms or corporations outside the state. ·

(3) It is further provided that the state beverage director shall issue his approval of a crown or can lid only if the word "Florida" is applied in a clear fashion and by a method that will assure the permanent attachment of the design to the crown or can lid. Manufac­turers of crown or can lids shall, at the time of delivery of crowns or lids bearing the desig­nation "Florida" at the direction of the brewer or bottler for whose use said crowns or lids were manufactured, notify the state beverage director of the brewer or bottler for whom manufactured and the number of such crowns or lids delivered.

(4) The possession by any person, fi.rm or corporation in the state, except as otherwise provided herein, of more than four and one­half gallons of malt beverages in bottles or cans, the crowns or lids of which do not have the word "Florida" as herein provided, shall be prima facie evidence that said malt beverage is possessed for the purpose of sale or resale.

(5) Except as otherwise provided herein, any malt beverages in bottles or cans held or possessed in the state for the purpose of sale or resale within the state, the crown or can lid of which does not bear the word "Florida" thereon

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Ch. 561 BEVERAGE LAW; ADMINISTRATION

and for which design there is not an approval and an approved sample thereof on file in the office of the state beverage director, shall, at the direction of, or by, the state beverage direc­tor, be confiscated in accordance with the pro­visions of §§562.39, 562.40 and 562.44; pro­vided, that the provisions of this section shall not be effective until the 1st day of October, 1949, with respect to malt beverages held or possessed by a manufacturer or distributor, and shall not be effective until the 1st day of Janu­ary, 1950, with respect to malt beverages held or possessed by retail vendors.

(6) Any person, firm or corporation, its agents, officers or employees, violating any of the provisions of this section, shall upon con­viction thereof be fined up to five hundred dollars or imprisoned for one year or both; and the license, if any, shall be subject to revocation or suspension by the state beverage director.

Hi•tory.-§ § 1-5, ch. 25261, 1949; sub. § (1) am. §9, ch. 29786, 1955. cf.-§95.37 Limitation on claims against state.

§215.26 Limitation on right to refund from state treasury.

561.48 Stamp redemption.-The comptroller may upon receipt of satisfactory evidence of the facts, and of approval by the director, make allowance for or redeem such stamps as may have been spoiled, destroyed or rendered useless or unfit for the purposes intended or for which the purchaser may have no use, or which through mistake may have been im­properly or unnecessarily used. Such allowance or redemption may be made either by giving to the purchaser other stamps in lieu of the stamps so allowed for or redeemed, or by re­funding the amount or value to the owner thereof, but no allowance or redemption shall be made in any case until the stamps so spoiled shall have been returned to the comptroller or until satisfactory proof has been made show­ing the reason why the same cannot be re­turned or if so required by the comptroller or by the director when the person presenting the same cannot satisfactorily trace the his­tory of said stamps from their issuance to the presentation of his claim as aforesaid. No allowance or repayment shall be made except to the original purchaser. Such claim shall not be paid unless approved by both the director and the comptroller. Sufficient funds are here­by appropriated out of the revenues collected under the beverage law to make such repay­ment.

History.-§10, ch. 16774, 1935; CGL 1936 Supp. 4151(236). Am. §10, ch. 29786, 1955.

561.49 No tax on out-of-state sales.-The excise taxes provided for in this chapter shall be paid as to all such beverages sold within this state. No excise tax shall be required to be paid by manufacturers or distributors as to the sale of beverages which are actually de­livered by such manufacturer and distributor to persons outside the state when such deliv­eries are actually made outside the state in places where the sale of such beverages is

authorized by law to persons authorized by the laws of the places where such delivery is made to purchase and receive such beverages in such places. The burden shall always be on the manufacturer or distributor to show to the sat­isfaction of the director by bill of lading of a common carrier or other satisfactory evidence that delivery was made outside the state in ac­cordance with the laws of the place of delivery.

History.-§9, ch. 16774, 1935; §10, ch. 18015, 1937; CGL 1936 Supp. 4151 (235); §2, ch. 20830, 1941.

561.50 One state tax payment and reports.­There shall be only one state tax paid as to each gallon or fraction thereof of beverage sold under the beverage law, and no other excise tax shall be levied directly or indirectly. Said tax shall be computed from the reports and books and records of manufacturers and distributors and said tax shall be remitted to the director at intervals of one month, i. e., said tax shall be paid by the tenth of each month for all bever­ages sold during the previous calendar month and such payment of tax shall accompany the report provided in §561.55. Provided, however, ·when the monthly tax liability of a manufac­turer or distributor exceeds the amount of the bond furnished for payment of taxes, the direc­tor may require payment each Monday of the tax on the sales for the previous week.

Hlstory.-§9, ch. 16774, 1935; CGL 1936 Supp. 4151(235); §10, ch. 18015, 1937; §2, ch. 20830, 1941 ; §30, ch. 57-420.

561.51 Beverage stamps, minimum denomi­nation.-N o stamp shall be sold by the beverage department, as provided by the beverage laws of this state, in denomination of less than seven and one-half cents, and no container of beverages containing alcohol of fourteen per cent or more by weight except wines, shall be sold in this state, except that there be affixed thereto a stamp of not less than seven and one-half cents, or a stamp of such larger denomination as may be required by said beverage laws.

Hlstory.-§9, ch. 16774, 1935; CGL 1936 Supp. 4151(235); §10, ch. 18015, 1937; §2, ch. 20830, 1941.

561.52 Authority of certain employees.-All white male employees of the state beverage department are hereby vested with all the au­thority and power that is conferred on super­visors in §§561.07 and 561.08, with respect to the beverage and cigarette tax laws of the state.

Hlstory.-CGL 1936 Supp. 4151(235); §10, ch. 18015, 1937; §3, ch. 20830, 1941; am. §10, ch. 22663, 1945.

561.53 Compromise of small claims.-The director of the state beverage department is hereby vested with the power and authority to compromise a violation of the alcoholic bever­age control laws of Florida in an amount not to exceed five dollars; provided that each tax­able item involved in a transaction constituting a violation of the alcoholic beverage control laws of Florida, in the discretion of the direc­tor, may be deemed to be a violation and each such violation may be compromised as afore­said and in an amount as aforesaid; and pro­vided, further, that any compromise of any violation arising out of a single transaction

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BEVERAGE LAW; ADMINISTRATION Ch. 561

shall be limited to not more than one thousand dollars.

Hlstory.-CGL 1936 Supp. 4151(235); §10, ch. 18015, 1937; §4. ch. 20830. 1941 ; §16, ch. 25359, 1949.

561.54 Certain deliveries of beverages pro­hibited.-It shall be unlawful for common or permit carriers, operators of privately-owned cars, trucks, buses or other conveyances to make delivery from without the state of any beverage containing more than one per cent alcohol by weight to any person, association of persons or corporation within the state, ex­cept to qualified manufacturers and distribu­tors of such beverages so delivered and to quali­fied bonded warehouses in Florida, and except sacramental wines ordered under permit issued by the state beverage department.

History.-CGL 1936 Supp. 4151(235); §10, ch. 18015, 1937; §5, ch. 20830, 1941; a m. §11, ch. 22663, 1945; am. §11, ch. 23746, 1947; §11, ch. 25035, 1949; §11, ch. 29786, 1955.

561.55 Manufacturers' and distributors' rec­ords and reports.-Manufacturers and distribu­tors shall keep a complete and accurate record and make reports showing the amount of bev­erages manufactured or sold within the state and to whom sold; also of all beverages im­ported from beyond the limits of the state and to whom sold; also all beverages exported be­yond the limits of the state, to whom sold, the place where sold and the address of the person to whom sold. Manufacturers and distribu­tors shall make full and complete report by the tenth day of each month for the previous calendar month. Said report shall be made out in triplicate, two copies of which shall be sent to the beverage department, the third copy retained for the manufacturer's or distributor's record. Reports shall be made on forms pre­pared and furnished by the director.

Hlstory.-§4, ch. 16774, 1935; CGL 1936 Supp. 4151(230). Am. §31, ch. 57-420.

561.56 Transportation of beverages by man­ufacturers and distributors.-Manufacturers and distributors may transport or cause to be transported such beverages from one place in this state to another place in this state, or from any place beyond the limits of this state into any place within this state, or from any place in this state to any place beyond this state, for sale at wholesale as herein provided, except that no beverage prohibited to be sold in cer­tain counties in this state shall be transported for sale or be caused to be transported for sale in the counties where their sale is prohibited.

History.-§4, ch. 16774, 1935; CGL 1936 Supp. 4151(230).

561.57 Deliveries by licenses.-Vendors shall be permitted to make deliveries away from their places of business of sales actually made at the licensed place of business, provid­ed, telephone orders received at vendor's li­censed place of business shall be construed as ::t sale actually made at the vendor's licensed place of business. Where deliveries are m.ade by a vendor, manufacturer or distributor away from his place of business, such deliveries shall be made only in vehicles to which are conspicu-

ously attached vehicle plates as herein defined. The director shall have prepared annually ve­hicle plates suitable to be attached to such ve­hicles, with the words, "Beverage Vehicle No. ____________________ ," which such plates may be obtain-ed by any licensee upon payment of a fee of one dollar for each such license plate, said fee to be paid to the director.

History.-§11(c), ch. 16774, 1935; CGL 1936 Supp. 4151 (237); § 1, ch . 20830, 1941; §17, ch . 25359, 1949; §32, ch. 57-420.

561.58 Issuance of license for a prior license revoked.-When a license is revoked by the director under the authority granted in §561.29, it shall be within the discretion of the director to prohibit or permit a license provided for in §§561.34 and 561.35 to be issued for the location of the place of business formerly operated un­der such revoked license; provided the maxi­mum period of time that any such license shall be prohibited by the director from any such place of business shall be two years from the first day of the succeeding October following such revocation.

History.-§7, ch. 20830, 1941; §18, ch. 25359, 1949.

561.60 Regulation concerning draft beer.­Each and every tap or spigot through which draft beer is served shall, on the handle of such tap or spigot in plain view of the consum~ng public display the name of the beer bemg presen'tly served through such tap or spigot.

History.-§9, ch. 20830, 1941; §18, ch. 57-1.

561.63 Sale of mixed drinks by certain ven­dors prohibited.-Vendors licensed to sell alco­holic beverages under subsections (2) •a) and (2) (b ) of §561.34, are hereby prohibited from selling or dealing in or possessing for sale any alcoholic beverage except malt and vinous beverages, commonly termed beers, wines and ales, it being intended hereby to forbid the sale of what is known as prepared mixed drinks by those vendors who are licensed under subsections (2) (a) and (2) (b) of §561.34.

History.-§2, ch. 22026, 1943; am. §2, ch. 22562, 1945. Am. §19, ch. 25359, 1949.

561.631 Cigarette vending machines may be operated in package liquor stores.-It shall be lawful for places of business of vendors operat­ing package liquor stores for consump~ion off the premises, to r::aintain and operate Cigarette vending machines therein and thus through such medium offer for sale and sell cigarettes to patrons.

History.-Comp. §1, ch. 28293, 1953.

561.64 Additional tax upon alcoholic bev­erages containing fourteen per cent or more of alcohol; exceptions.-In addition to all taxes now levied and imposed by the laws of Florida upon the manufacture, distribution and sale of beverages .;ontaining fourteen per cent or more of alcohol by weight, except all wines, natural sparkling wines and malt beverages, there is hereby levied and imposed an additional tax of seventy-two cents per gallon upon such bever-

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'Ch. 561 BEVERAGE LAW; ADMINISTRATION

ages containing fourteen per cent or more of alcohol by weight and not more than forty-eight per cent of alcohol by weight and an additional tax of one dollar and forty-four cents per gallon upon such beverages containing more than

•

forty-eight per cent of alcohol by weight. The payment of said additional tax shall be evi­denced by stamps as provided for in the bev­erage law.

Hlator;r.-§§1, 3, ch. 2a'113, 1946; am. 11, ch. ~. 194'1 •

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BEVERAGE LAW; ENFORCEMENT

CHAPTER 562 BEVERAGE LAW; ENFORCEMENT

Ch. 562

562.01 Possession of unstamped beverages by 562.28 Possession of beverages in fraud of bever-· vendor, club or caterer prohibited. age law.

562.02 Possession of beverage not permitted to be 562.29 Raw materials and personal property; seiz-sold under license. ure and forfeiture.

562.03 Storage on licensed premises. 562.30 Possession of beverage prima facie evidence; 562.031 Inspection and search of licensed premises. exception. 562.04 Sale of unstamped beverages prohibited. 562.31 Possession of raw materials prima facie 562.05 Sale without license prohibited. evidence; exception. 562.06 Sale only on licensed premises. 562.32 Moving or concealing beverage with intent 562.061 Misrepresentation of beverages sold on li- to defraud state of tax; penalty.

censed premises. 562.33 Beverage and personal property; seizure 562.07 Illegal transportation of beverages. and forfeiture. 562.08 Beverage container limit. 562.34 Containers; seizure and forfeiture. 562.09 Package store restrictions. 562.35 Conveyance; seizure and forfeiture. 562.10 Regulations for consumption on premises; 562.36 Beverage on conveyance prima facie evi-

penalty. dence; proviso. 562.11 Selling, giving or serving alcoholic beverages 562.37 Absence of stamp on container prima facie

to minors prohibited. evidence that state or federal tax not 562.111 Possession of alcoholic beverages by minors paid.

prohibited. 562.38 Report of seizures. 562.12 Licensee selling beverages not permitted by 562.39 Disposition and appraisal of property

his license prohibited. seized under this chapter. 562.13 Employment of minors or certain other per- 562.40 Forfeiture proceedings.

sons by certain vendors prohibited. 562.401 Delivery of property to claimant. 562.14 Regulating the time for sale of alcoholic 562.402 Proceeding when no claim filed.

and intoxicating beverages; municipal and 562.403 Proceeding when claim filed. county regulations, etc. 562.404 State attorney to represent state.

562.15 Possession of unstamped beverages. 562.405 Judgment of forfeiture. 562.16 Possession of beverages upon which tax is 562.406 Fees for services.

unpaid. 562.407 Disposition of proceeds of forfeiture. 562.17 Collection of unpaid beverage taxes. 562.408 Exercise of police power. 562.18 Possession of beverage upon which federal 562.41 Searches; penalty.

tax unpaid. 562.42 Destruction of forfeited property. 562.19 lllegal use of tax stamps; penalty. 562.44 Donation of forfeited beverages or raw ma-562.20 Monthly reports by common and other car- terials to state institutions; sale of far-

riers of beverages required. feited beverages. 562.21 Sale of beer and wine to vendors for cash 562.45 Penalties for violating beverage law.

only. 562.451 Moonshine liquor, etc.; possession prohib-562.22 Cash deposit on beer sales. ited. 562.23 Conspiracy to violate beverage law; penalty. 562.46 Legal remedies not impaired. 562.24 Administration of oaths by director or 562.47 Rules of evidence; beverage law.

supervisor. 562.48 Minors patronizing. visiting or loitering in a 562.25 State bonded warehouses. dance hall. 562.26 Delivering beverage on which tax unpaid. 562.49 Wines; sacramental and religious purposes. 562.27 Seizures and forfeitures. 562.50 Habitual drunkards; furnishing intoxicants

562.01 Possession of unstamped beverages by vendor, club or caterer prohibited.-It is unlawful for any vendor, club or caterer to purchase, serve, distribute or store any bever­ages herein defined requiring stamps, unless sa id beverages bear or have affixed thereto the Florida excise tax stamps.

History.-§9, cl.t. 16774, 1935; CGL 1936 Supp. 4151(235); §10, ch. 18015, 1937; §2, ch. 20830, 1941 ; §1, ch. 57-327. cf.-§§561.46-47, Tax stamps on beverages.

562.02 Possession of beverage not permitted to be sold under license.-lt is unlawful for a licensee under the beverage law to have in his possession or permit anyone else to have in his or her possession at or in the place of business of such licensee beverages containing more than one per cent of alcohol by weight and not per­mitted to be sold by such licensee under the license issued to him under §561.34.

Hlatory.-§7, ch. 18015, 1937; §4, ch. 19301, 1939; CGL 1940 Supp. 4151(271g); am. §12, ch. 23746, 1947.

to, after notice.

562.03 Storage on licensed premises.­It is unlawful for any vendor to store or keep any beverages defined hereunder, except for the personal consumption of the vendor, his f amily and guest, in any building or room other than the building or room shown in the dia­gram accompanying his license application; provided, however, that where a vendor re­quires an additional building or storeroom for the storing of a portion of his stock of such beverages, he shall make application to the di­rector for a permit to store such beverages in some other designated building or room. If such application shall be deemed reasonable by the director, he shall without any fee or other charges issue such permit and the vendor will thereby be permitted to keep or store such beverages in the place designated in the permit. Such permit shall be issued in duplicate, one copy which shall be posted in a conspicuous place in the licensee's place of business; the

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Ch. 562 BEVERAGE LAW; ENFORCEMENT

other duplicate shall be posted on the outside · of the entrance door to the building or room described in the permit. History.-~6 . ch. 16774, 1935; CGL 1936 Supp. 4151(232). Am. §1, ch. 57-327.

562.031 Inspection and search of licensed premises.-Licensees, by the acceptance of their license, agree that their places of business shall always be subject to be inspected and searched without search warrants by the authorized em­ployees of the beverage department and also by s heriffs, deputy sheriffs and police officers during business hours or at any other time such premises are occupied by the licensee or other persons.

IDstory.-Comp. §2, ch. 57-327.

562.04 Sale of unstamped beverages pro­hibited.-It is unlawful for any person to sell within this state any beverages on which stamps are required unless the bottle or other immediate container in which said beverage is contained shall have affixed to it the stamps hereby required.

History.-§11, sub-§ (a), ch. 16774, 1935; CGL 1936 Supp. 4151 (237) ; §1, ch. 20830, 1941. <Jf.-§562.37, Absence of stamp prima facie evidence of

violation.

562.05 Sale without license prohibited.­( !) It is unlawful for any person to sell

beverages herein defined containing more than one per cent of alcohol by weight unless such person shall hold a proper license permitting such sale issued by the state and county where­in such sale is made. Any person convicted of violation of this section shall be guilty of a misdemeanor and shall be punished by fine of not less than $100.00 nor more than $1,000.00, or by imprisonment in the county jail for not more than 6 months, or both.

(2) Upon the arrest of any person charged with the violation of this section, the arresting officer shall take into his custody all intoxicat­ing liquors, wines or beers found in the posses­sion, custody or control of the person arrested, or found on the premises wherein such person was arrested, and safely keep a nd preserve the same and have it forthcoming at any investiga­tion, prosecution or other proceeding for the violation of this section. Upon the conviction of the person arrested for the violation of thi;; section such intoxicating liquors, wines or beers found by the arresting officer as aforesaid shall be forfeited to the state and shall be dis­posed of by the director according to the pro­visions of section 562.44.

History.-§11, sub-§ (b). ch. 16774, 1935; CGL 1936 Supp. 4151 (237); § 1, ch. 20830, 1941; § 1, ch. 57-327 .

562.06 Sale only on licensed premises.­Each license application shall describe the lo­cation of the place of business where such beverage may be sold. It is unlawful to sell, or permit the sale of such beverage except on the premises covered by the license as described in the application therefor.

History.-§11, sub-§ (b), ch. 16774, 1935; CGL 1936 Supp. 4151 (237); §1, ch. 20830, 1941 ; §1, ch. 57-327.

562.061 Misrepresentation of beverages sold on licensed premises.-It is unlawful for any licensee, his agent or employee knowingly, to sell or serve any beverage represented or pur­porting to be a beverage containing more than one per cent of alcohol by weight which in fact is not such beverage. It is further unlawful for any licensee knowingly to keep or store on the licensed premises any bottles which are filled or contain liquid other than that stated on the label of such bottle.

History.-Comp. §2, ch. 57-327.

562.07 Illegal transportation of beverages. -It is unlawful for the beverages herein de­fined to be transported in quantities of more than twelve bottles except as follows:

( 1) By common carriers ; (2) In vehicles of licensees to which said

vehicles are attached the license plates herein mentioned;

(3) By individuals who possess such bev­erages not for resale within the state.

Hlstory.-§11, sub-§ (c), ch. 16774, 1935; CGL 1936 Supp. 4151 (237) ; §1, ch. 20830, 1941.

562.08 Beverage container limit.-It is un­lawful for any distributor or vendor to sell spirituous beverages in containers having a capacity of more than forty ounces.

History.- §11, sub-§ (d), ch. 16774, 1935; CGL 1936 Supp. 4151(237); §1, ch. 20830, 194!1; §1, ch. 57-327.

562.09 Package store restrictions.-Vendors licensed under §561.34(3) shall not in said places of business sell, offer or expose for sale any merchandise other than such beverages, and such places of business shall be devoted ex­clusively to such sales; provided, however, that s uch vendors shall be permitted to sell bitters, grenadine, nonalcoholic carbonated beverages, fruit juices produced in Florida, and minia­tures of no alcoholic content. Such places of business shall have no openings permitting di­rect access to any other building or room, ex­cept to a private office or storage room of the place of business from which patrons are ex­cluded.

History.-§11, sub-§ (e), cb. 16774, 1935; CGL 1936 Supp. 4151(237); §1, ch. 20830, 1941; am. §13, ch. 23746, 1947.

Am. §1, cb. 29964, 1955; §1, ch. 57-327.

562.10 Regulations for consumption on premises; penalty.-Vendors licensed under §561.34, subsections (4) to (8), inclusive, shall provide seats for the use of their customers. Such vendors may sell the beverages herein de­fined by the drink or in containers for consump­tion on or off the premises where sold. It is un­lawful for .such premises to conta·in swinging doors or to contain screens so placed as to pre­vent passersby from seeing into the premises. There shall not be sold at such places of busi­ness anything other than the beverages hereby permitted and what is customarily sold in a restaurant. The premises of all such vendors shall be subject to and meet all the applicable provisions of chapter 381 and the regulations promulgated thereunder.

History.-§11, sub-§ (f), cb. 16774, 1935 ; CGL 1936 Supp. 4151 (237); §1, elL. 20830, 1941; am. §14, ch. 23746, 1947.

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BEVERAGE LAW; ENFORCEMENT Ch. 562

562.11 Selling, g1vmg or serving alcoholic beverages to minors prohibited.-

(!) It is unlawful for any person, firm or in the case of a corporation, the officers, agents and employees thereof, to sell, give, serve or permit to be served alcoholic beverages, includ­ing wines and beer, to persons under twenty­one years of age or to permit a person under twenty-one years of age to consume said bever­ages on the licensed premises. Anyone convict­ed of violation of the provisions hereof shall be punished by imprisonment in the county jail for not more than six months or by fine of not more than five hundred dollars.

(2) It is unlawful for any person to mis­represent or misstate his or her age or the age of any other person for the purpose of inducing any licensee, his agents or employees, to sell, give, serve or deliver any alcoholic beverages to a person under twenty-one years of age. Anyone convicted of violating the provisions hereof shall be punished by imprisonment in the county jail for not more than three months or by fine of not more than two hundred fifty dollars; provided, any person under the age of seventeen year s violating said provisions shall be within the jurisdiction of the judge of the juvenile court, if any, or the county judge acting as a juvenile judge and shall be dealt with by said judge as a juvenile delinquent ac­cording to law.

(3) Any person under the age of twenty-one years testifying in any criminal prosecution or in any hearing before the director involving the violation by any other person of the pro­visions of this section shall be given full and complete immunity from prosecution for any violation of law revealed in such testimony that may be or may tend to be self incriminating, and any such person under twenty-one years of age so testifying, whether under subpoena or otherwise, shall be compelled to give any such testimony in such prosecution or hearing for which immunity from prosecution therefor is herein given.

Hlstory.-§11, sub-§ (g), ch. 16774, 1935; CGL 1936 Supp. 4151 (237) ; §1, ch. 20830, 1941; am. §15, ch. 23746, 1947.

Am. §20, ch. 25359, 1949; §1, ch. 57-327.

562.111 Possession of alcoholic beverages by minors prohibited.-It is unlawful for anv person under the age of twenty-one years t~ have in his or her possession alcoholic bever­a?"~s, except persons ~mployed under the pro­VISIOns of §562.13, actmg in the scope of their employment.

Hlstory.-comp. §2, ch. 57-327.

562.12 Licensee selling beverages not per­mitted by his license prohibited.-

(!) It is unlawful for any licensee under this chapter to make sales of any of the bever­ages mentioned in this chapter except such b_everages as such licensee is permitted by his hcense to sell, or to sell such beverages in any manner except that permitted by his license and any licensee or other person who keep~ or possesses alcoholic beverages not permitted

to be sold by his license, or not permitted to be sold without a license, with intent to sell or dispose of same unlawfully, or who keeps and maintains a place where intoxicating liquors, wines or beer are sold unlawfully, shall, for each offense, upon conviction, be punished as for misdemeanors.

(2) Upon the arrest of any person charged with violation of this section, the arresting officer shall take into his custody all intoxicat­ing liquors, wines or beers not within the pur­view of his license found in the possession, custody or control of the person arrested, and safely keep and preserve the same and have it forthcoming at any investigation, prosecution or other proceeding for the violation of this section, and for the destruction of the same as provided herein. Upon the conviction of the person arrested for the violation of this section, the judge of the court trying the case after notice to the person convicted and any other person whom the judge may be of the opinion is entitled to such notice, as the judge may deem reasonable, shall issue to the sheriff of the county a written order adjudging and de­claring such intoxicating liquors, wines or beers forfeited and directing the sheriff to dis­pose of said liquors, wines and beers as pro­vided in §568.10.

Hlstory.-§11, sub-§ (h), ch. 16774. 1935; CGL 1936 Supp. •151 (237) ; § 1, ch. 20830, 1941; am. § 1, ch. 28069, 1953.

562.13 Employment of minors or certain other persons by certain vendors prohibited.­It is unlawful for any vendor licensed under the beverage law to employ any person under twenty-one years of age; provided however, this section shall not apply to professional en­tertainers between the ages of eighteen and twenty-one years who are not in school, or to drug stores, grocery stores or automobile serv­ice stations which have obtained licenses to sell beer or beer and wine, where such sales are made for consumption off the premises only; and provided further, this section shall not prohibit the employment of bellboys, ele­vator boys and others under the age of twenty­one years in hotels where such employees are engaged in work apart from the portion of the hotel property where alcoholic beverages are offered for sale for consumption on the prem­ises. It shall also be unlawful for the vendor to knowingly employ any person in the place of business of such vendor who has been con­victed with!n the last past five years of any offense agamst any of the beverage laws of this state, or who has been convicted, within the last past fifteen years of any felony in this state or has been convicted in any other state or th~ United States, of an offense designated as a felony by such state or United States. The. term "conviction" shall include an adjudication of guilt on a plea of guilty or nolo contendere or the forfeiture of a bond when charged with a crime.

Hlstory.-§11, sub-§(j), ch. 16774, 1935· CGL 1936 Supp 4151 (237) ; §1, ch. 20830, 1941; am. §1. ch. 22669. 1945. •

Am. §21, ch. 2535P, 1949 ; §2, ch. 29964, 1955; §1, ch. 57-327.

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Ch. 562 ~EVERAGE LAW; ENFORCEMENT

562.14 Regulating the time for sale of alco­holic and intoxicating beverages; municipal and county regulations, etc.-

(1) No alcoholic beverages may be sold, consumed or served or permitted to be served or consumed, in any place holding a license un­der the state beverage department of Florida, between the hours of midnight and seven o'clock a. m. of the following day.

(2) No intoxicating beverages may be sold, consumed or served or permitted to be served, or consumed, in any place holding a license un­der the state beverage department of Florida, between twelve o'clock midnight Saturday and seven o'clock a. m. Monday.

(3) Incorporated municipalities may by ordinance independently regulate the hours of sale of alcoholic beverages within the corporate limits thereof, notwithstanding the provisions of this section. It shall be the duty of the sheriff, deputy sheriff and police officers of such municipality, and not the duty of the state beverage department, to enforce the hours of sale as regulated by any incorporated munic­ipality.

( 4) The board of county commissioners of any county of the state may, by resolution, independently regulate the hours of sale of alcoholic beverages within the territory of such county not included within any munici­pality notwithstanding the provisions of this section. It shall be the duty of the sheriff, deputy sheriff and police officers of such coun­ty, and not the duty of the state beverage department to enforce the hours of sale as regulated by such resolution.

(5) Any person, firm or in case of a corpora­tion, the officers, agents or employees thereof, violating any of the provisions of this section

. shall be guilty of a misdemeanor and shall upon conviction be punished by imprisonment in the county jail for not more than six months or by fine of not more than five hundred dollars, either one or both, in the discretion of the court trying the offender.

(6) Provided, however, that nothing con­tained in this section shall apply to beverages served upon any dining, club, parlor, buffet or observation car operated on any railroad, but such beverages may be sold only to passengers upon said cars and must be served for consump­tion thereon.

Hlstory.-§11, sub-§ (k), ch. 16774, 1935; CGL 19311 Supp. 4151(237); §1, ch. 20830, 1941; am. 1§1-4, ch. 21944, 1943; am. §1, ch. 22605, 1945: am. §16, ch. 23746, 1947. · Am. (3), (4) by §1, ch. 57-327.

562.15 Possession of unstamped beverages. -It is unlawful for any person to own or possess within this state any alcoholic beverage con­taining more than one per cent of alcohol by weight, unless the immediate container of such beverage shall have affixed to it the Florida excise liquor stamp required to be affixed for beverages of like alcohol content. Provil}ed, that this sec­tion shall not apply to manufacturers or dis­tributors licensed under the beverage law, to . state bonded warehouses or to common · carriers;

provided, further, this section shall not apply to persons possesBing not in excess of one gallon of such beverages; provided, the beverage shall have been purchased by said possessor outside of the state in accordance with the laws of the place where purchased and shall have been brought into this state by said possessor. The burden of proof that such beverages were pur­chased outside the state and in accordance with the laws of the place where purchased shall in all cases be upon the possessor of such beverages.

History.-§5, ch. 18015, 1937; §5 (a), ch. 19301, 1939; CGL 1940 Supp. 4151(271e); am. §2, ch. 22669, 1940.

562.16 Possession of beverages upon which tax is unpaid.-Any person or corporation who shall own or have in his or its possession any beverage upon which a tax is imposed by the beverage law, or which would be imposed if such beverage were manufactured in or brought into this state in accordance with the regulatory provisions of the beverage law, and upon which such tax has not been paid shall, in addition to the fines and penalties otherwise provided in the beverage law, be personally liable for the amount of the tax imposed on such beverage, and the director may collect such tax from such person by suit or otherwise; provided, that this section shall not apply to manufacturers or distributors licensed under the beverage law, to state bonded warehouses or to common car­riers; provided, further, this section shall not apply to persons possessing not in excess of one gallon of such beverages; provided, the bever- . age shall have been purchased by said possessor outside of the state in accordance with the laws of the place where purchased and shall have been brought into this state by said possessor. The burden of proof that such beverages were purchased outside the state and in accordance with the laws of the place where purchased in all cases shall be upon the possessor of such beverages.

History.-§5, ch. 18015, 1937; §5 (b), ch. 19301, 1939; CGL 1940 Supp. 4151(271e); am. §3, ch. 22669, 1945.

Am. § 1, ch. 57-327.

562.17 Collection of unpaid beverage taxes. -Any excise tax imposed by the beverage law may be collected as any other excise tax im­posed by the state, and all rights and remedies available in the collection of any excise tax imposed by the state are made available for the collection of taxes imposed under the bev­erage law. Any and all taxes due the state on alcoholic beverages may be collected as pro­vided in §210.14.

Hlotory.-§6, ch. 18015, 1937; §6 (c), ch. 19301, 1939; CGL 1940 Bupp. 4151 (27le); §22, ch. 25359, 1949.

562.18 Possession of beverage upon which federal tax unpaid.-It is unlawful for any per­son to have in his possession within this state any beverage containing more than one per cent of alcohol by weight, on which a federal excise tax is required to be paid, unless such federal excise tax has been paid as to such beverage •

Hlatory.-§4, ch. 18015, 1987; CGL 1940 Supp. 4151(271d) .

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562.19 Illegal use of tax stamps; penalty.­Whoever fraudulently cuts, tears, or removes any adhesive stamp used in pursuance of this chapter, or fraudulently uses, joins, fixes, or places to, with, or upon any container of a bev­erage, as to which any tax is imposed by this chapter (1) any adhesive stamp which has been cut, torn, or removed from any such container, or (2) any adhesive stamp of insufficient value, or (3) any forged or counterfeit stamp; pre­pares any adhesive stamp with intent to use or cause the same to be used after it has already been used, or knowingly or willfully buys, sells, offers for sale, or gives away any such washed or restored stamp to any person for use, or knowingly uses the same, or whoever knowing­ly and without lawful excuse has in his posses­sion any washed, restored, or altered stamp which has been removed from any such con­tainer; or whoever knowingly or willfully pre­pares, buys, sells, offers for sale, or has in his or its possession any counterfeit stamps, shall be guilty of a felony and upon conviction shall be punished by fine of not more than five thou­sand dollars, or imprisonment of not more than five years.

Hlstory.-§14, ch. 16774, 1936; CGL 1936 Supp. 7648(6). ct.-§776.06, Alternative punishment.

562.20 Monthly reports by common and other carriers of beverages required.-

(!) All common carriers of freight operating in the state shall file monthly reports with the beverage department on forms to be prepared by the beverage department which shall show in detail all shipments of alcoholic beverages containing more than one per cent by weight of alcohol transported by them to or from any point within the state.

(2) Every other person, except manufac­turers and distributors licensed in this state who are required to make reports under §561.55, who brings into the state from any point with­out the state, any alcoholic beverage or bever­ages, in amounts exceeding one gallon in the aggregate, shall likewise file monthly reports with the beverage department on the forms to be prepared by the beverage department, which shall show in detail all such amounts of alco­holic beverages transported by them to any point within the state from any point without the state. Every licensee under this law who ships any alcoholic beverage to points beyond the state shall file monthly reports with the beverage department on forms to be prepared by the beverage department, which shall show in detail all shipments of alcoholic beverages transported by them from any point within the state to any point without the state.

(3) Such reports shall show in detail the name of the shipper and the consignee of each shipment and a description of the kind and amount of each such shipment, and shall be filed monthly on or before the fifteenth of each month for the calendar month previous.

Hlstory.-§12, ch. 16774, 1936; CGL 1936 Supp. 4151(238); am. §1, ch. 21840, 1943.

cash only.-All sales of malt, brewed or vinous beverages as defined in the beverage law, made by manufacturers, when distributing under a manufacturer's license, wholesalers and dis­tributors to retail licensees must be for cash only, and cash in this instance means that delivery and payment therefor is to be a simul­taneous transaction and any maneuver, device or shift of any kind whereby credit is extended shall constitute a violation of the beverage law. Nothing herein shall be construed to permit such manufacturers to distribute to vendors under a manufacturer's license where a ware­house has been established in any county or counties from which such beverages are dis­tributed other than the county wherein they are licensed to so manufacture.

Hlstory.-§1, ch. 19568, 1939; CGL 1940 Supp. 4161(271cc) ;. §2, ch, 21840, 1943; §23, ch. 25359, 1949.

562.22 Cash deposit on beer sales.-That all licensed manufacturers, when distributing un­der a manufacturer's license, wholesalers and distributors of domestic malt or brewed bev­erages, as defined in the beverage law, shall require a minimum cash deposit of fifty cents on the sale of each case of twenty-four bottles of any domestic malt or brewed beverage herein referred to from their vendors, except non­returnable bottles, and all vendors thereof shall make a minimum cash deposit of fifty cents on the purchase of each case of twenty-four bot­tles of any domestic malt or brewed beverage herein referred to, except nonreturnable bottles, and vendors shall require a minimum cash de­posit of fifty cents on the sale of each case of twenty-four bottles of any domestic malt or brewed beverages herein referred to from their purchasers, except nonreturnable bottles. Said manufacturers, wholesalers and distributors shall keep a record of all such deposits and shall make refund to their vendors within ten days after receipt of notice from such vendors in writing that empties are ready for return, if such be true, to such manufacturers, whole­salers and distributors.

Hlstory.- §1, ch. 19570, 1939; CGL 1940 Supp. 4151(271dd). Am. §24, ch. 26359, 1949.

562.23 Conspiracy to violate beverage law; penalty.-If two or more persons shall conspire to do any act which is in violation of any of the provisions of the beverage law, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy, upon conviction, if the act so conspired to be done would be a misdemeanor under the provisions of the beverage law, shall be punished by imprisonment in the county jail for not more than one year or by fine of not more than $500.00, or if the act so con­spired to be done would be a felony under the provisions of the beverage law, shall be pun­ished by imprisonment of not more than five years in the state penitentiary or fined not more than $5,000.00.

Hlstory.-§6, ch. 19301, 1939; CGL 1940 Supp. 7648(26). Am. § 3, ch. 29964, 1955.

ct.-§775.06, Alternative punishment.

562.21 Sale of beer and wine to vendors for

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562.24 Administration of oaths by director

Ch. 562 BEVERAGE LAW; ENFORCEMENT

or supervisor.-The director and supervisors of the state beverage department may admin­ister oaths or affirmations on statements of de­fendants charged with the violation of the bev­erage law and other things directly connected with the enforcement of said law.

History.-§7, ch. 19301, 1939; CGL 1940 Supp. 4151(271-o).

562.25 State bonded warehouses.-No opera­tor of any storage warehouse shall accept for storage in such warehouse any beverage sub­ject to tax under the beverage law until such operator shall have obtained from the state beverage department a permit to store such beverage and shall have filed a bond payable to the state beverage department, conditioned upon the full compliance by such operator with the provisions of this section; provided, how~ ever, that this section shall not apply to a feder­a l bonded warehouse owned wholly by and operated solely for a manufacturer or dis­tributor licensed under the beverage law. Such permit shall issue upon the payment of one dollar to the state beverage department, and may be refused, suspended or revoked in the same manner and upon the same grounds that the license of a distributor may be refused, suspended or revoked. Such bond shall be in an amount of not more than five thousand dol­lars nor less than one thousand dollars, in the discretion of the director, with a surety com­pany licensed to do business in the state as surety.

On or before the tenth day of each month the operator of any state bonded warehouse shall report, on forms furnished by the state beverage department, the amount of such bev­erages on deposit in such warehouse on the last day of the previous calendar month and the amount of such beverages deposited in and withdrawn from such warehouse during the previous calendar month; provided, however, that no report shall be required as to such bev­erages on which all taxes have been paid which have been deposited in storage by a vendor licensed under the beverage law. History.-~ 8, sub-§ ~ (a), (b), ch. 19301, 1939; CGL 1940

Supp. 4151 (271p); §24, ch. 57-1.

562.26 Delivering beverage on which tax unpaid.--It is unlawful for any storage ware­house operator to deliver any beverages subject to tax under the beverage law and on which the tax has not been paid to anyone within the state except a common carrier or a manufac­turer or distributor licensed under the beverage law to manufacture or distribute the type of beverage so delivered.

Hlstory.-§8, sub-§ (c), ch. 19301, 1939; CGL 1940 Supp. 4151 (27lp).

562.27 Seizures and forfeitures.-(!) It is unlawful for any person to have in

his possession, custody or control, or to own, make, construct or repair any still, still piping, still apparatus or still worm, or any piece or part thereof. designed or adapted for the manufacture of an alcoholic beverage containing more than one per cent of alcohol by weight, or to have in his possession, custody or control any receptacle

or container containing any mash, wort or wash or other fermented liquids whatever capable of being distilled or manufactured into an alcoholic beverage containing more than one per cent of alcohol by weight, unless such possession, custody, control, ownership, manufacture, construction or repairing be by or for a licensee licensed under the beverage law to manufacture such alcoholic beverage.

(2) Any such still, still piping, still apparatus or still worm, or any piece or part thereof, or any such mash, wort or wash or other fermented liquids and the receptacle or container thereof, and any such alcoholic beverage, together with all personal property used to facilitate the manu­facture or production of such alcoholic beverage or to facilitate the violation of the alcoholic bev­erage control laws of the state or the United States, may be seized by the director or any supervisor or any sheriff or deputy sheriff and shall be forfeited to the state.

(3) Any vehicle, vessel, aircraft or any animal used in the transportation or removal of or for the deposit or concealment of any illicit liquor still or stilling apparatus or any mash, wort, wash, or other fermented liquids capable of being distilled or manufactured into an alcoholic beverage conta ining more than one per cent of a lcohol by weight or any alcoholic beverage commonly known and referred to as "moonshine whiskey" shall be seized and for­feited; provided that no vehicle, vessel or air­craft used by any person as a common carrier in the transaction of business as such carrier shall be forfeited under the provisions of this law unless it shall appear that (a) in the case of a railway car or engine, the owner, or (b) in the case of any other such vehicle, vessel or aircraft the owner or the master of such vessel or the owner or conductor, driver, pilot or other person in charge of such vehicle or aircraft was at the time of the alleged illegal act a consenting party or privy thereto: provided, f'.lrther, that no vehicle, vessel or aircraft or other conveyance, shall be forfeited under the provisions of this law by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such vehicle, ves­sel or aircraft was unlawfully in the possession of a person who acquired possession thereof in violation of the criminal laws of any state or of the United States. Any sheriff, deputy sheriff, state beverage director, or any super­visor of the state beverage department, or con­stable or police officer may seize any of such vehicles, vessels or conveyances, and the same shall be forfeited as hereinafter provided.

( 4) The finding of any such still, still piping, still apparatus or still worm, or any piece or part thereof, or any such mash, wort or wash or other fermented liquids in the dwelling house or place of business, or so near thereto as to lead to the reasonable belief that they are within the pos­session, custody or control of the occupants of said dwelling house or place of business, shall be prima facie evidence of a violation of this section

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by the occupants of said dwelling house or place of business.

(5) Any person violating any provisions of this section of the law shall be guilty of a felony on the first offense and each subse­quent offense and shall be punished by im­prisonment of not more than five years or fined not more than $5,000.00 on each offense.

Hlstory.-§9, ch. 19301, 1939; CGL 1940 Supp. 4151(271q); §4, ch. 22669, 1945; sub. § (3) am. §1, ch. 28073, 1953; sub. § (5) camp. § 1, ch. 29804, 1955

562.28 Possession of beverages in fraud of beverage law.-All beverages on which taxes are imposed by the beverage law or would be imposed if such beverages were manufactured in or brought into this state in accordance with the regulatory provisions of such law, which shall be found in the possession, or custody, or within the control of any person, for the purpose of being sold or removed by him in fraud of the beverage law, or with design to evade payment of said taxes, may be seized by the director or any supervisor or any sheriff or deputy sheriff and shall be forfeited to the state.

History.-§10, sub-§ (a), ch. 19301, 1939; CGL 1940 Supp. 4151 (271r).

562.29 Raw materials and personal property; seizure and forfeiture.-All raw materials found in the possession of any person intend­ing to manufacture the same into a beverage subject to tax under the beverage law, or into a beverage which would be subject to tax un­der such law if manufactured in accordance with the regulatory provisions thereof, for the purpose of fraudulently selling such manufac­tured beverage, or with the design to evade the payment of said tax; and all tools, implements, instruments, and personal property whatsoever, in the place or building or within any yard or enclosure or in the vicinity where such bever­age or raw materials are found, may also be seized by the director or any supervisor or any sheriff or deputy sheriff, and shall be forfeited as aforesaid.

History.-§1Q, sub-§ (b), ch. 19301, 1939; CGL 1940 S pp. 4151 (271r).

562.30 Possession of beverage prima facie evidence; exception.-The possession by ny person, except a licensed manufacturer or is­tributor, a state bonded warehouse, or a c mon carrier, of any beverage which is tax under the beverage law, or which would taxable thereunder if such beverage were rna u­factured in or brought into the state in c­cordance with the regulatory provisions th e­of, and upon which the tax has not b en paid, shall be prima facie evidence that s'ich beverage has been manufactured, or is be ng sold, removed or concealed with design to ev de payment of such tax.

Hlstory.-§10, sub-§ (c), ch. 19301, 1939; CGL 1940 Supp. 4151 (271r).

562.31 Possession of raw materials prima facie evidence; exception.-The possession by any person, except a licensed manufacturer or distributor, a state bonded warehouse or a com-

mon carrier, of any mash, wort or wash, or any other raw materials for the manufacture of bev­erage subject to tax under the beverage law, or which would be taxable thereunder if such bev­erage were manufactured or brought into the state in accordance with the regulatory pro­visions of such law, shall be prima facie evi­dence that such person intends to manufacture the same into such beverage for the purpose of selling such beverage with design to evade the payment of such tax.

History.-§10, sub-§ (d), ch. 19301, 1939; CGL 1940 Supp. 4.161 (271r) ; am. §5, ch. 22669, 1946.

562.32 Moving or concealing beverage with intent to defraud state of tax; penalty.-Every person who removes, deposits, or conceals, or is concerned in removing, depositing or con­cealing any beverage for or in respect whereof any tax is imposed by the heverage law or would be imposed if such beverage were manu­factured in or brought into this state in ac­cordance with the regulatory provisions there­of, with intent to defraud the state of such tax or any part thereof, shall be guilty of a felony and upon conviction shall be pun­ished by a fine of not more than five thousand dollars or by imprisonment in the state peni­tentiary for a term of not less than one year or more than five years.

History.-§11, sub-§ (a), ch. 19301, 1939; CGL 1940 Supp. 7648(27). c!.-§775.06, Alternative punishment.

562.33 Beverage and personal property; seizure and forfeiture.-Whenever any bever­age on which any tax is imposed by the bever­age law or would be imposed if such beverage were manufactured in or brought into this state in accordance with the regulatory provisions thereof, or any materials, utensils, or vessels proper, or other personal property whatsoever, intended to be made use of for or in the manu­facture of such beverage are removed, or are deposited or concealed in any place, with in­tent to defraud the state of such tax, or any part thereof, all such beverages and all such materials, utensils, vessels, or other personal property whatsoever, may be seized by the director or any supervisor or any sheriff or deputy sheriff and shall be forfeited to the state.

Hlstory.-§11, sub-§ (b), ch. 19301, 1939; CGL 1940 Supp. 4151 (27lsj. cf.-§210.12, Seizures; forfeiture proceedings.

562.34 Containers; seizure and forfeiture.­In every such case all the casks, vessels, cases, or other packages whatsoever, containing, or which shall have contained such beverage, may be seized by the director or any supervisor or any sheriff or deputy sheriff, and shall be for­feited as aforesaid.

Hlstory.-§11, sub-§ (c), ch. 19301, 1939; CGL 1940 Supp. 4151 (271s).

562.35 Conveyance; seizure and forfeiture.­Every vehicle, vessel, aircraft or other convey­ance, including animals used in the transpor­tation or removal of or for the deposit or con­cealment of any mash, wort or wash, or other

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Ch. 562 BEVERAGE LAW; ENFORCEMENT

fermented liquids, or any moonshine whiskey, or any raw materials used to manufacture illicit liquors, utensils or stills and stilling apparatus, may be seized and forfeited subject to the provisions of §562.27 (3).

Hlstory.-§11, sub-§ (d), ch. 19301, 1939; CGL 1940 Supp. 4151 (271s); am. §2, ch. 28073, 1953.

562.36 Beverage on conveyance prima facie evidence; proviso.-The presence, in any con­veyance or place, of any beverage upon which a tax is imposed by the beverage law or would be imposed if such beverage were manufactur­ed in or brought into this state in accordance with the regulatory provisions thereof, and upon which the tax has not been paid, shall be prima facie evidence that such beverage is being removed, deposited or concealed with in­tent to defraud the state of such tax; pro­vided, that the provisions of this section shall not apply to any conveyance or any place owned by, or in the possession, custody or control of a licensed manufacturer or dis­tributor, a state bonded warehouse, or a com­mon carrier.

History.-§11, sub-§ (e), ch. 19301, 1939; CGL 1940 Supp. 4151 (271s).

562.37 Absence of stamp on container prima facie evidence that state or federal tax not paid. -The absence of the Florida excise liquor stamp upon the immediate container of any beverage as to the sale of which an excise stamp tax is re­quired to be paid by the beverage law, or which would be required thereunder if such beverage were manufactured in or brought into the state in accordance with the regulatory provisions of such law, shall be prima facie evidence that such tax on such beverage has not been paid. The absence of the federal strip stamp on the immediate container of any beverage as to the sale of which an excise liquor stamp tax is re­quired to be paid under the laws of the United States, shall be prima facie evidence that such excise liquor stamp tax has not been paid. The absence of any entry on the page or pages of the records of the state beverage department on which such entry would ordinarily appear, show­ing the payment of the tax on any beverage upon which a tax is imposed by the beverage law, shall be prima facie evidence that such tax has not been paid. A true copy of such page or pages of such records, sworn to be such by the director, or the testimony in open court of any employee of the state beverage department that such em­ployee has examined such records and that they contain no entry showing the payment of such tax, shall be admissible in any court in the state as evidence that such tax has not been paid.

Htstory.-§11A, ch. 19301, 1939; CGL 1940 Supp. 4151-(271t) ; am. §6, ch. 22669, 1945.

562.38 Report of seizures. - Any sheriff, deputy sheriff, constable or police officer, upon the seizure of any property under this act shall promptly report such seizure to the director of the beverage department or his representative, together with a description of all such property

seized so that the state may be kept informed as to the size and magnitude of the illicit liquor business.

Hlstory.-§12, ch. 19301, 1939; CGL 1940 Supp. 4151(271u). §25, ch. 25359, 1949; am. §3, ch. 28073, 1953.

562.39 Disposition and appraisal of property seized under this chapter.-

(1) Every peace officer seizing property pursuant to the provisions of this law shall forthwith make return of the seizure thereof and deliver the said property to the board of county commissioners of the county wherein the said property was seized. The said return to the board of county commissioners shall de­scribe the property seized and give in detail the facts and circumstances under which the same was seized and state in full the reason why the seizing officer knew, or was led to believe, that the said property was being used for and in connection with a violation of the statutes and laws of this state prohibiting the manufacture of and traffic in illicit moonshine whiskey or other materials set forth in section one hereof. The said return shall contain the names of all persons, firms and corporations known to the seizing officer to be interested in the seized property.

(2) When any property is seized by any peace officer or law enforcement officer here­tofore named pursuant to this act and delivered to the board of county commissioners as afore­said, the board shall forthwith fix the approxi­mate value thereof and make return thereof to the clerk of the circuit court as hereinafter provided.

(3) The return of the board of county com­missioners shall contain a schedule of the prop­erty seized, describing the same in reasonable detail and give in detail the facts and circum­stances under which it was seized and state in full the reason why the seizing officer knew or was led to believe that the property was be­ing used for or in connection with a violation of the statutes and laws of this state prohibit­ing the manufacture of or traffic in illicit moon­shine whiskey; and a statement of the names of all persons, firms and corporations known to the board to be interested in the seized prop­erty; and shall attach to their said return as exhibit thereto, the return of the seizing officer to the board.

( 4) The board of county commissioners shall hold the said seized property pending its disposal by the court as hereafter provided.

Hlstory.-§13, ch. 19301, 1939; CGL 1940 Supp. 4151(271v); §7, ch. 22669, 1945 : am. §4, ch. 28073, 1953.

562.40 Forfeiture proceedings.-(1) The return of the board aforesaid to the

clerk of the circuit court shall be taken and considered as the state's petition or libel in rem for the forfeiture of the property therein described, of which the circuit court of the county shall have jurisdiction, without regard to value, under and by virtue of that provision in §6 (3), art. V of the state constitution, under which the circuit courts may be given juris­diction of "such other matters as the legislature

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BEVERAGE LAW; ENFORCEMENT Ch. 562

may provide." The said return shall be suf­ficient as said petition or libel notwithstanding the fact that it may contain no formal prayer or demand for forfeiture, it being the intention of the legislature that forfeiture may be de­creed without a formal prayer or demand there­for. The said return shall be subject to amend­ment at any time before final hearing, provided that copies thereof shall be served upon all persons, firms or corporations who may have filed a claim prior to such amendment.

(2) Upon the filing of said return the clerk of the circuit court shall issue a citation, di­rected to all persons, firms and corporations owning, having or claiming an interest in or lien upon the seized property, giving notice of the seizure and directing that all persons, firms or corporations owning, having or claiming an interest therein or lien thereon to file their claim to, on, or in said property within the time fixed in said citation, as to persons, firms and corporations not personally served, and within twenty days from personal service of said cita­tion, when personal service is had.

(3) The said citation may be in, or sub-stantially in, the following form:

IN THE CIRCUIT COURT OF THE-­JUDICIAL CIRCUIT, IN AND FOR-­COUNTY, FLORIDA.

IN RE FORFEITURE OF THE FOLLOWING DESCRIBED PROPERTY:

(here describe property) THE STATE OF FLORIDA TO:

ALL PERSONS, FIRMS AND CORPORA­TIONS OWNING, HAVING OR CLAIMING AN INTEREST IN OR LIEN ON THE ABOVE DESCRIBED PROPERTY.

YOU AND EACH OF YOU are hereby noti­fied that the above described property has been seized, under and by virtue of chapter 562, Florida Statutes as amended, and is now in the possession of the Board of County Commis­sioners of this county, and you, and each of you, are hereby further notified that a petition, under said chapter, has been filed in the Circuit Court of the ____________ Judicial Circuit. in and for ---------------- County, Florida, seeking the forfeiture of the said property, and you are hereby di­rected and required to file your claim, if any you have, and show cause, on or before---, 195-, if not personally served with process herein, and within twenty days from personal service if personally served with process here­in, why the said property should not be for­feited pursuant to said chapter. Should you fail to file claim as herein directed judgment will be entered herein against you in due course. Persons not personally served with process may obtain a copy of the petition for forfeiture filed herein from the undersigned clerk of court.

WITNESS my hand and the seal of the above

mentioned court, at ______________ Florida, this _____________ _ 195 ______ ,

(COURT SEAL)

Clerk of the above mentioned court By------------------------------------------------------

Deputy Clerk ( 4) Such citation shall be returnable, as to

persons served constructively, as therein di­rected, not less than twenty-one nor more than thirty days, from the posting or publication thereof, and as to those personally served with process within twenty days from service there­of. A copy of the petition shall be served with the process when personally served. Personal service of process may be made in the same manner as a summons in chancery.

(5) If the value of the property seized is shown by the board's return to have an ap­praised value of four hundred dollars or less, the above citation shall be served by posting at three public places in the county, one of which shall be the front door of the courthouse; if the value of the property is shown by the board's return to have an approximate value of more than four hundred dollars, the citation shall be published once a week for three con­secutive weeks in some newspaper of general publication published in the county, if there be such a newspaper published in the county, and if not, then said notice of such publication shall be made by certificate of the clerk if publica­tion is made by posting and by affidavit as provided in chapter 49, if made by publica­tion in a newspaper, which affidavit or cer­tificate shall be filed and become a part of the record in the cause. Failure of the rec­ord to show proof of such publication shall not affect any judgment made in the cause unless it shall affirmatively appear that no such publication was made.

Hlstory.-§14, ch. 19301, 1939; CGL 1940 Supp. 4151(271w). §26, ch. 25359, 1949; am. §5, ch. 28073, 1953.

562.401 Delivery of property to claimant.­Any person, firm or corporation filing a claim in the cause, which claim shall state fully his right, title, claim or interest, in and to the seized property, may, at any time after said claim is filed with the clerk of the court, obtain possession of the seized property by filing a petition therefor with the board of county com­missioners and posting with said board, to be approved by it, a surety bond, payable to the governor of the state, in twice the amount of the value of the said property as fixed in the board's return to the clerk of the circuit court, with a corporate surety duly author­ized to transact business in this state as surety, conditioned upon his paying to the board of county commissioners the value of the prop­erty together with costs of the proceeding, if judgment of forfeiture be entered by the court. Upon the posting of such bond with the board and the release of the property to the applicant the cause shall proceed to final judgment in the same manner, as it would have; had no such

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Ch. 562 BEVERAGE LAW; ENFORCEMENT

bond been filed, except that any exception to be issued in the cause pursuant to judgment may run against and be enforced against the person posting said bond and his surety.

History .-Comp. § 6, ch. 28073, 1953.

562.402 Proceeding when no claim filed.­When no claim is filed in the cause within the time required the clerk shall enter a default against all persons, firms and corporations own­ing, claiming or having an interest in and to the property seized and the cause may then pro­ceed in the same manner as a common law cause after default, and final judgment shall be en­tered therein ex parte, except as may be herein otherwise provided.

History.-Comp. §7, ch. 28073, 1953.

562.403 Proceeding when claim filed. -When one or more claims are filed in the cause the cause shall be tried upon the issues made thereby with the petition for forfeiture with any affirmative defenses being deemed denied without further pleading. Judgment by default shall be entered against all other persons, firms and corporations owning, claiming or having an interest in and to the property seized after which the cause shall proceed as in othe~ COIIl­

mon law cases; except any claimant shall prove to the satisfaction of the court that he did not know or have any reason to believe, at the time his right, title, interest, or lien arose, that the property was being used for or in connection with the violation of any of the statutes or laws of this state prohibiting the manufacture of or traffic in illicit moonshine whiskey, and further that at sa id time there was no reasonable rea­son to believe that the said property might be used for such purpose. Where the owner or user of the property has been convicted of a violation of the statutes and laws of this state prohibiting the manufacture of or traffic in illicit moonshine whiskey such conviction shall be prima facie evidence that each claimant had reason to believe that the property might be used for or in connection with a violation of such statutes and laws, and the burden of proof shall be upon such claimant to satisfy the court that he was without knowledge of such convic­tion, providing, however, the prima facie pre­sumption of knowledge of a previous conviction of a violation of this law shall only apply to a subsequent proceeding involving the forfeiture of a motor vehicle when owned by such pre­vious offender and upon which a lien is held by the same lienee involved in the first claim pro­ceedings. Trial of all such causes shall be without a jury, except in such cases as a trial by jury may be guaranteed by the state con­stitution and in such cases trial by jury shall be deemed waived unless demanded in the claim filed.

History.-Comp. §8, ch. 28073, 1953.

562.404 State attorney to represent state.­Upon the filing of the board's return with the clerk of the circuit court the said clerk shall furnish the state attorney with a copy thereof and the said state attorney shall represent the

state in the forfeiture proceeding. The attorney gener3:l shall represent the state in all appeals from Judgments of forfeiture to the supreme court. The state may appeal any judgment denying forfeiture in whole or in part or that may be otherwise adverse to the state.

History.-Camp. §9, ch. 28073, 1953.

562.405 Judgment of forfeiture.-On final hearing the return of the board to the clerk of th~ circuit court shall be taken as prima facie evidence that the property seized was or had b.een used in, or in connection with, the viola­ti.o~ ?f the statutes and laws of this state pro­hibiting the manufacture of or traffic in illicit moonshine whiskey in this state and shall be su!ficie~t predicate for a judgment of for­feiture m the absence of other proofs and evi­dence. The burden shall be upon the claimants to show that the property was not so used, if S? u s~d, that they had no knowledge of such viOlatiOn and no reason to believe that the seized property was or would be used for the violation of such statutes and laws. Where such property is encumbered by a lien or re­tained title agreement under circumstances wherein the lienholder had no knowledge that the property was or would be used in violating such statutes and laws, and no reasonable rea­son to believe that it might be so used, then the court may declare a forfeiture of all other rights, titles and interests, subject however to t~e lien of such innocent lienhoider, or ~ay direct the payment of such lien from the pro­ceeds of any sale of the said property. The proceedings and the judgment of forfeiture shall be in rem and shall be primarily against the property itself. Upon the entry of a judg­ment of forfeiture the court shall determine the. disposi~ion to be made of the property, which may mclude the destruction thereof, the sale thereof, the allocation thereof to some governmental function or use, or otherwise as the court may determine. Sales of such prop­erty shall be at public sale to the highest and best bidder therefor for cash after two weeks public notice as the court may direct. Where the property has been delivered to a claimant upon the posting of a bond the court shall de­termine the value of the property or portion thereof subject to forfeiture and shall enter judgment .against the principal and surety of the bond m such amount for which execution sh.all ~ssue in the u~ual manner. Upon the ap­plicatiOn of any claimant the court may fix the value of the forfeitable interest or interests in the seized property and permit such claimant to redeem the said property upon the payment of a sum equal to said value which sum shall be disposed of as would the proceeds of a sale of the said property under a judgment of for­feiture.

History .-Camp. § 10, ch. 28073, 1953.

562.406 Fees for services.-Fees for services required hereunder shall be the same as pro­vided for sheriffs and clerks for like and simi­lar services in other cases and matters.

History .-Camp. § 12, ch. 28073, 1953.

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BEVERAGE LAW; ENFORCEMENT Ch. 562

562.407 Disposition of proceeds of forfei­ture.-All sums received from sale or other dis­position of the seized property shall be paid into the county fine and forfeiture fund and shall become a part thereof; provided, however, that in instances where the seizure is by a municipal police officer within the limits of any municipality having an ordinance requiring such vehicles, vessels or conveyances to be for­feited, the city attorney shall act in behalf of the city in lieu of the state attorney and shall proceed to forfeit the property as herein pro­vided, and all sums received therefrom shall go into the general operating fund of the city.

Hlstory.-Comp. §11, ch. 28073, 1953.

562.408 Exercise of police power. - It is deemed by the legislature that this law is neces­sary for the more efficient and proper enforce­ment of the statutes and laws of this state pro­hibiting the manufacture of or traffic in illicit moonshine whiskey and a lawfnl exercise of the police power of the state for the protection of the public welfare, health, safety and morals of the people of the state. All the provisions of this law shall be liberally construed for the accomplishment of these purposes.

History.-Comp. §13, ch. 28073, 1953.

562.41 Searches; penalty.-(1) The director, any beverage department

employee, any sheriff, any deputy sheriff or any police officer may make searches of per­son, places, and conveyances of any kind whatso­ever, in accordance with the laws of this state for the purpose of determining whether or not the provisions of the beverage law are being violated.

(2) The director, any beverage department employee, any sheriff, any deputy sheriff or a ny police officer may enter, in the day time, any building or place where any beverages sub­ject to tax under the beverage law or which would be subject to tax thereunder if such beverage were manufactured in or brought into this state in accordance with the regu­latory provisions thereof, or any intoxicating beverages containing more than one per cent of alcohol by weight, are manufactured, pro­duced or kept, so far as may be necessary, for the purpose of examining said beverages. When such premises are open at night, such officers may enter them while so open, in the performance of their official duties.

(3) Any owner of such premises or per­son having the agency, superintendency or possession of same, who refuses to admit such officer, or to suffer him to examine such bev­erages, shall, for every such refusal, be sub­ject to a fine of five hundred dollars or im­prisonment in the county jail for six months.

( 4) Any person who shall forcibly obstruct or hinder the director, any beverage depart­ment employee, any sheriff, any deputy sheriff or any police officer in the execution of any power or authority vested in him by law, or who shall forcibly rescue or ca use to be rescued a ny property if the same shall have been seized

by such officer, or shall attempt or endeavor to do so, shall, for each such offense, be subject to pay a fine of five hundred dollars or impri­sonment in the county jail for six months, or both.

Uistory.-§15, ch. 19301, 1939; CGL 1940 Supp. 4151(271><), 7648(28), 7648(29); §1, ch. 57-327.

562.42 Destruction of forfeited property.­In case of the seizure of any intoxicating beverage, still, doubler, worm, worm tub, still piping, still apparatus or any piece or part thereof, any mash, wort, or wash or other fermented liquids and any containers therefor, for any offense involving forfeiture of the same, where such apparatus shall be of less than one thousand dollars in value and it shall be impracticable to remove the same to a place of safe storage from the place where seized, the seizing officer is authorized to de­stroy the same only so far as to prevent the use thereof, or any part thereof, for the purpose for which it was intended. Such de­struction shall be in the presence of at least one credible witness and such witness shall unite with the said officer in a duly sworn report of said seizure and such destruction, to be made to the director, in which report they shall set forth the grounds of the claim or forfeiture and the reasons for such seizure and destruction and an estimate of the fair value of the apparatus destroyed and also of the materials remaining after the destruction and a statement that, from facts within their own knowledge, they have no doubt whatever that such apparatus was set up for use in the unlawful manufacture of intoxicating bever­ages and that it was impracticable to remove the same to a place of safe storage; provided, that not more than one pint of any such in­toxicating beverage shall be preserved by the seizing officer to be used as evidence against anyone accused of violating the provisions of the beverage law, and such pint of intoxicating beverage is hereby declared to be sufficient of such intoxicating beverage upon which to base a conviction of a violation of the beverage law.

History.-§16, ch. 19301, 1939; CGL 1940 Supp. 4151(271y).

562.44 Donation of forfeited beverages or raw materials to state institutions; sale of for­feited beverages.-Any alcoholic beverage or raw materials used for the manufacture of al­coholic beverages that may be seized and for­f eited under any of the provis ions of the bever­age law may, wit h the approval and consent of the governor, be donat ed to any state operat­ed or cha ritable institution that may h ave a legitimate use therefor in the operation of such institution, or the director may sell such bever­age so seized and forfeited to any licensed wholesaler in the state, upon the condition that a ll federal and state taxes that may be due thereon shall be paid and that such sale shall be made only upon submission by said director·

218!

Ch. 562 BEVERAGE LAW; ENFORCEMENT

of a request for bids to at least five wholesale dealers in the state and such sale shall be made to the highest and best bidder therefor. Pro­vided, however, if in the director's opinion, no satisfactory bid from a wholesaler is received, the director may then reject all bids and sell such beverage so seized and forfeited to any retailer, licensed in this state to sell such bever­age, upon the condition that all federal and state taxes that may be due thereon shall have been paid, that such sale shall be made only upon submission by said director of a request for bids to at least five retail dealers in the state and that such sale shall be to the highest and best bidder therefor. All moneys received from such sales shall be paid by the director to the state treasurer for the account of the bever­age fund and shall be subject to disbursement in accordance with the law relating thereto.

Hlstory.-§18, ch. 19301, 1939; CGL 1940 Supp. 4151-(27laa); am. §8, ch. 22669, 1945; §1, ch. 57-327.

562.45 Penalties for violating beverage law. -Any person willfully and knowingly making any false entries in any records required under the beverage law or willfully violating any of the provisions of the beverage law, concerning the excise tax herein provided for shall be guilty of a felony and upon conviction thereof be punished by imprisonment of not more than five years or by fine of not more than $5,000.00. It is unlawful for any person to violate any provision of the beverage law, and any pro­vision of the beverage law for which no penalty has been provided shall be guilty of a misde­meanor and shall upon conviction be punished by imprisonment in the county jail for not more than six months or by fine of not more than $500.00; provided, that any person who shall have been convicted of a violation of any pro­vision of the beverage law and shall thereafter be convicted of a further violation of the bever­age law, shall, upon conviction of said further offense, be deemed guilty of a felony and shall be punished by imprisonment for not more than five years or fined not more than $5,000.00.

Nothing in the beverage law contained shall be construed to affect or impair the power or right of any incorporated municipality of the state hereafter to enact ordinances regulatin~ the hours of business and location of place of business, and prescribing sanitary regula­tions therefor. of any licensee under the bev­erage law within the corporate limits of such municipality.

Hlstory.-§15, ch. 16774, 1935; CGL 1940 Supp. 4151(240), 7648(6); §3, ch. 19301, 1939; §4, ch. 29964, 1955; §1, ch. 57-327.

562.451 Moonshine liquor, etc.; possession prohibited. -

(1) It is unlawful for any person to own or possess within this state any mash. wort. wash or any alcoholic beverage unless the same shall have been made or manufactured in accordance with the regulatory provisions of the laws of the state.

(2) The possession in this state by any per-

son of any mash, wort, wash or any beverage commonly known as moonshine whiskey shall be prima facie evidence that the same was not made or manufactured in accordance with the regulatory provisions of the laws of Florida pertaining thereto.

(3) Any person owning or possessing less than one gallon of any alcoholic beverage, com­monly known as moonshine whisky, shall be guilty of a misdemeanor and shall upon convic­tion be punished by imprisonment in the county jail for not more than six months or by fine of not more than $500.00.

( 4) Any person owning or possessing with­in this state any mash. wort, wash or one gal-1on or more of any alcoholic beverage commonly known as moonshine whisky, shall be deemed guilty of a felony on the first offense and each subsequent offense and shall be punished by imprisonment of not more than five years or fined not more than $5,000.00.

Hlstory.-§9, ch. 22669, 1945; am. §17, ch. 23746, 1947. Sub. § (3) am., sub. § (t) comp. §5, ch. 29964, 1955.

562.46 Legal remedies not impaired.-It is the declared legislative intention that no pro­vision or provisions of the beverage law shall in any manner limit, modify or preclude any person from instituting legal proceedings in courts of competent jurisdiction for the adjudi­cation of any rights that such person may have under the federal and state constitutions and under laws now existing, or laws which may be hereinafter enacted.

Hlstory.-§17, sub-§ (a), 16774, 1935; CGL 1936 Supp. 4151(243).

562.47 Rules of evidence; beverage law.-In all prosecutions for violations of "the beverage law" proof that the liquor in question was and is known as whiskey, moonshine whiskey, shine, rum, gin, brandy, or other similar name or names shall be prima facie evidence that such liquor is intoxicating and contains more than three and two-tenths per cent of alcohol by weight and that same is intoxicating. Any person or persons who by experience in the past in the handling or use of intoxicating liquors, or who by taste, smell, or the drinking of such liquors has knowledge as to the intoxicating nature thereof, may testify as to his opinion whether such beverage or liquor is or is not intoxicating, and a verdict based upon such testimony shall be valid.

Hlstory.-§1, ch. 20744, 1941.

562.48 Minors patronizing, visiting or loiter­ing in a dance hall.-Any person, firm or corpo­ration, or any employee of such person, firm or corporation operating any dance hall in con­nection with the operation of any place of busi­ness where any malt, spirituous or vinous liquors, including beer, ale and wine or any ardent, or other intoxicating liquor of any kind whatso­ever, or any essence, extract, bitters, prepara­tion, compound, composition, or any article what­soever under any name, label or brand, which produces intoxication is sold, who shall know­ingly permit, or allow any person under the

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BEVERAGE J;.AW; ENFORCEMENT Ch. 562

age of eighteen years to patronize, visit or loiter in any such dance hall, or place of business, unless such minor is attended by one or both of his or her parents, or by his or her natural guardian, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding five hundred dollars, or six months in the county jail, or by both such fine and imprisonment, at the discretion of the judge.

History.-§!, ch. 20838, 1941 ; am. §1, ch. 28291, 1953. cf.-§562.11, Selling alcoholic beverages to minors.

562.49 Wines; sacramental and religious purposes.-

( 1) For the purpose of this section the term "wine" is hereby defined to mean wine, vinous spirits or vinous liquors.

(2) Any religious order, monastery, church or religious body, or any minister, pastor, priest, or rabbi thereof, may purchase wine for religious or sacramental purposes from any duly licensed wholesaler or retailer within or without the state, by obtaining a permit from the director of the beverage department of Florida for such purchases herein provided.

(3) The director of the beverage depart­ment of Florida shall issue said permit upon sworn application, stating the name of the ap­plicant, the religious purpose for which the wine is to be used, the amount to be purchased, and from whom the purchase is to be made.

(4) The director of the beverage depart-

ment of Florida for good cause may refuse to issue said permit.

(5) Said wine and the sale thereof, when sold as herein provided for religious or sacra­mental purposes, shall be exempt from all other restrictions, regulations and taxation now pro­vided by the laws of the State of Florida for the sale and distribution of wine.

Bistory.-§ §1-5, ch. 20978, 1941; sub. §§(2)-(4), am. §7, ch. 29964, 1955.

562.50 Habitual drunkards; furnishing in­toxicants to, after notice.-Any person who shall sell, give away, dispose of, exchange or barter any malt, spirituous or vinous liquors, including beer, ale and wine, or any ardent or other intoxicating liquor of any kind whatso­ever, or any essence, extract, bitters, preparation, compound, composition or any article whatsoever under any name, label or brand, which produces intoxication, to any person habitually addicted to the use of any or all such intoxicating liquors, after having been given written notice by wife, husband, father, mother, sister, brother, child or nearest relative that said person so addicted is an habitual drunkard and that the use of in­toxicating drink or drinks is working an injury to the person using said liquors, or to the person giving said written notice, shall, upon conviction thereof, be sentenced to a term of imprisonment for not more than six months, or by fine of not more than five hundred dollars, or both, for each and every such offense.

Hlatory.-§1, ch. 22633, 1945.

2183

Ch. 567 LOCAL OPTION ELE~TIONS

CHAPTER 567

LOCAL OPTION ELECTIONS

567.01 Petition, order, notice of election. 567.02 Registration and qualification of electors. 567.03 Mode of holding election. 567.04 Time of holding elections. 567.05 Inspectors, returns and canvass. 567.06 Form of ballot; canvassing votes, etc. 567.07 Results of election. 567.08 Refund of unused portion of state license

tax.

567.09 Refund of unused portion of county li­cense tax.

567.10 Refund of unused portion of municipal li-cense tax.

567.11 Evidence of legal election. 567.12 Proceedings to test legality of election. 567.13 Sale by the package only. 567.14 Penalty for violation.

567.01 Petition, order, notice of election.- and 48.11, for making proof of publication and (1) The board of county commissioners of proof of posting incident to constructive serv­

each county shall order an election to decide ice of process, except that the provisions of said whether the sale of intoxicating liquors, wines sections for recording shall not apply. All or beer shall be prohibited in said county and if proofs of publication and of posting shall be not prohibited, to decide the method of sale, entered upon the minutes of the board, but this upon the presentation to said board at a regular requirement shall be directory only. or special meeting, of a written application ask-ing for such a determination in the county in (6) It is the purpose and intent of the legis­which said application is made signed by one- lature that such election shall obviate the neces­fourth of the registered voters of the county. sity for holding two separate elections by de­The signature of each registered voter shall be termining in one election (a) whether the sale personally signed to such application; pr ovided, of intoxicating liquors, wines or beer shall be however, a copy of said petition shall be dated prohibited or permitted, and (b) if such sales and filed with the derk of the circuit court of are determined to be permitted, to further de­the county in which such election is to be held termine whether the sales so made shall be prior to procuring the signature of. any regis- limited to sales by the package as hereinbefore tered voter thereon; and such petition must be defined, or whether sales by the drink on the completed and presented to the board of county premises, as well as sales by the package may be commissioners within one hundred twenty days permitted. A majority of those legally voting from the date said copy of said petition is at such election must cast their votes "for sell­originally fil ed with the clerk of the circuit ing intoxicating liquors, wines or beers" in court; and if not so done, said petition sha ll be order that the results of the election on the sec­held to be invalid. ond question shall be effective and binding.

H lstory.-§1, ch. 3700, 1887; RS 857; GS 1209; §1, ch. (2) The election so ordered shall be (a) to 6180, 1911 ; CGL 1936 Supp. 4151(196); a m. §1, ch. 23747,

decide whether the sale of intoxicating liquors, 1947; <1l by §1, ch. 57- 119.

wines or beer shall be prohibited or permitted 567.02 Registration and qualification of in said county and (b) to decide also whether electors.-For the election under §567.01 elec­such sale, if permitted by said election, shall be tors may be registered as provided in the gen­restricted to sales by the package as hereinafter eral law for registration for special elections defined. and they shall have the same qualifications for

(3) The term "sales by the package" is de- and prerequisites to voting as in elections fined to mean sales made in quantities of not under the general election laws. less than one-half of a pint, contained in sealed History .-§1, ch. 3700, 1887; RS 858; GS 1210; CGL 1936 containers, for consumption off the premises Supp. 4151 <197>· where sold. 567.03 Mode of holding election.-The elec-

(4) Such an election shall not be ordered tion under §567.01 shall be held and conducted oftener than once every two years. All orders in the manner prescribed by law for holding for such election shall be in writing and shall general elections, except as herein provided. be entered upon the minutes of the board but Hlstory.-§1, ch. 3700, 1887; RS 859; GS 1211; CGL 1936 this requirement shall be directory only. Supp. 4151(198) .

(5) Upon the making of the order for an 567.04 Time of holding elections.-All elec-election as aforesaid, the board shall cause its tions ordered under this chapter shall be held clerk to give at least thirty days' notice of said within sixty days from the time of presenting election by publishing a copy of the order for such application, but if any such election election in one newspaper in each and every should thereby take place within sixty days town in said county in which a newspaper or of any state or national election, it shall be newspapers be published, and if no newspaper held within sixty days after any such state be published within the county, then by posting or national election. at least ten copies of said order in ten of the History.-§!, ch. 3700, 1887; RS 860; GS 1212; CGL 1936

most public places in said county, one of which Supp. 4151

<199>·

shall be the court house door. Proof of publica- 567.05 Inspectors, returns and canvass.­tion or proof of posting shall be filed with the Inspectors of election shall be appointed and board and shall be made as provided by §§48.10 qualified as in cases of general elections, and

2184

LOCAL OPTION ELECTIONS Ch. 567

they shall canvass the vote cast and make due returns of the same to the county commis­sioners without delay. The county canvassing board shall canvass the returns and declare the result, and cause the same to be recorded as provided in the general law concerning elec­tions, as far as applicable.

Hlotory.-§1, ch. 3700, 1887 ; RS 861; GS 1213: CGL 1936 Supp. 4151(200).

567.06 Form of ballot; canvassing votes, etc.-

(1) At the election under §567.01, the bal­lot used shall be printed on one side of a plain white piece of paper in the form following:

OFFICIAL BALLOT NO. _______________ _

OFFICIAL BALLOT NO. _______________ _

OFFICIAL ELECTION BALLOT

-------------------------------------- ---------------- ------------------' 19 --------Month Day Year

PRECINCT NUMBER ___ ___ _________ _

---------------- -------------------------------------- County, Florida INSTRUCTIONS: Local Option Election on

TWO QUESTIONS: QUESTION NUMBER 1 is to decide whether

the sale of intoxicating liquors, wines or beer shall be prohibited or permitted in ---------------------­County, Florida.

QUESTION NUMBER 2 is to decide whether the sale of intoxicating liquors, wines or beer shall be restricted to sales made in quantities of not less than one-half of a pint, contained in sealed containers, for consumption off the premises where sold, such sales being described as "sales by the package". The results on ques­tion number 2 shall be effective and binding only in the event a majority of those voting at the election shall cast their votes "For selling intoxicating liquors, wines or beer" on ques­tion number 1.

Vote on both questions! If you fail to vote on question number 1, your

vote on question number 2 will not be counted! To vote, make a cross mark (X) at the right

of your choice on each question.

QUESTION NO. 1: For Selling Intoxicating Liquors,

Wines or Beer

Against Selling Intoxicating Liquors, Wines or Beer

QUESTION NO. 2:

For Sales by the Package and Drink

For Sales by the Package Only

j_J I I

be counted or considered in determining the results on said question unless the elector cast­ing said vote shall have voted also upon question number 1; provided that:

(a) If a majority of those legally voting at said election cast their votes on question num­ber one, the vote of said majority shall be de­terminative of said question and the votes cast on question number two shall in no way affect or nullify the result of the vote on question number one; provided that

(b) A majority of votes legally cast on ques­tion number two shall be determinative of said question and the number of votes cast on ques­tion number one shall in no way affect or nullify the result of the vote on question number two, unless a majority of the votes legally cast at said election shall be "Against selling intoxicating liquors, wines or beer";

(c) Provided, further, that voting machines may be used in counties which have adopted voting machines for use in general elections.

Hlotory.-§1, ch. 3700, 1887; RS 862; GS 1214; CGL 1936 Supp. 4151(201); am. §2, ch. 23747, 1947.

567.07 Results of election.-(!) Should a majority of those legally voting

at any election under §567.01 cast their votes "Against selling intoxicating liquors, wines or beers" on question number one, then no intoxi­cating liquors, wines or beer shall be sold in the county in which said election was held until otherwise determined by an election, which shall not be held oftener than once in every two years.

(2) Should a majority of those legally vot­ing at any such election cast their votes "For selling intoxicating liquors, wines or beer" on question number one and a majority of votes legally cast on question number two be cast "For sales by the package only," then

(a) No intoxicating liquors, wines or beer shall be sold in said county in quantities of less than one-half of a pint,

(b) No intoxicating liquors, wines or beer shall be sold in said county that are not con­tained in sealed containers and

(c) No intoxicating liquors, wines or beer shall be consumed in said county on the premises where such intoxicating liquors, wines or beer are sold or on ariy other premise under the con­trol, either directly or indirectly, of the licensee, until otherwise determined in an election, which shall not be held oftener than once in every two years.

(3) In the event a majority of those legally voting in any such election cast the:ir vote "For selling intoxicating liquors, wines or beer" on question number one and a majority of the votes legally cast on question number two be not cast "For sales by the package only", then intoxi­cating liquors, wines or beer may be sold as otherwise provided by law in said county until otherwise determined in an election, which shall not be held oftener than once in every two years.

(2) Hlotory.-§1, ch. 3700, 1887; RS 863; GS 1215; CGL 1931

Supp. 4151(202); am. §3, ch. 23747, 1947. No vote on question number two shall

2185

Am. §11, ch. 25036, 1949.

Ch. 567 LOCAL OPTION ELECTIONS

567.08 Refund of unused portion of state license tax.-When any county votes by an election to discontinue permitting the sale of intoxicating liquors, wines or beer, prior to the date of expiration of any license issued by the state for the sale of intoxicating liquors, wines or beer in such county, the fee for the unexpired and unused portion of said license shall be refunded to the licensee by warrant drawn by the state comptroller on the state treasurer who shall pay such war­rants from any moneys in the state treasury not otherwise appropriated.

History.-§!, ch. 6479, 1905 ; CGL 1936 Supp. 4151(203) . cf.-§ 17.12 Comptro!ler authorized to Issue warrants for pay­ment.

567.09 Refund of unused portion of county license tax.-The county commissioners of such county voting by election to discontinue per­mitting the sale of intoxicating liquors, wines or beer, shall refund to the licensee the fee for the unexpired and unused portion of any such license issued to him by said county.

History.-§2, ch. 6479, 1905; CGL 1936 Supp. 4151(204).

567.10 Refund of unused portion of munici­pal license tax.-Any municipality in such county voting by election to discontinue per­mitting the sale of intoxicating liquors, wines or beer, shall refund to the licensee the fee for the unexpired and unused portion of any such license issued to him by said municipality.

Hlstory.-§567.10 Florida Statutes, 1941.

567.11 Evidence of legal election.-In all prosecutions by the state for the unlawful sale of intoxicating liquors, wines or beer contrary to prohibition regulations, the introduction of a copy of the record of the result of the canvass of the returns of the election as made by the county canvassing board and recorded in the minutes of the proceedings of the board of county commissioners, or in any book used as a book of record in the office of the clerk of the circuit court, duly certified to by the clerk of the circuit court, for such county in which an election shall have been held, shall be taken as prima facie evidence that said election was legally called, conducted and held.

Hlstory.-§7, ch. 4930, 1901; GS 3559; §1, ch. 7289, 1917; CGL 1936 Supp. 7600(1) .

567.12 Proceedings to test legality of elec­tion.-Any resident of any county in this state in which an election may be held or which may hereafter be held to determine whether the sale of intoxicating liquors, wines or beer should be prohibited or permitted in such county and, if permitted by such election, to determine wheth­er such sale should be restricted to "Sales by the package," as such term is defined in §567.01, shall have the right to test the legality and regularity of such election by suit in equity in

the circuit court of such county to be filed against the county commissioners thereof; and in case any such election shall be adjudged to be illegal and void in any such suit such judg­ment shall have the effect of nullifying such election in toto as to all inhabitants of such county whether they were parties to such suit or not; provided, no such suit shall be brought to test the validity of any such election unless the same shall be instituted within ninety days after the recording of the declaration of the result of any such election in the minutes of the board of county commissioners.

Hlstory.-§1, ch. 6247, 1903; GS 1216; CGL 1936 Supp. 4151 (205); am. §4, ch. 23747, 1947; §2, ch. 29737, 1955.

567.13 Sale by the package only.-In any county that has voted "For selling intoxicating liquors, wines or beer" and also has voted to restrict such sale to "Sales by the package only" as herein provided, thereupon;

(1) It shall be unlawful for anyone to sell, or cause to be sold, any intoxicating liquors, wines or beer in quantities of less than one-half of a pint;

(2) It shall be unlawful for anyone to sell, or cause to be sold, any intoxicating liquors, wines or beer not contained in sealed contain­ers;

(3) It shall be unlawful for anyone who sells, or causes to be sold, any intoxicating liquors, wines or beer to permit such intoxicat­ing liquors, wines or beer to be consumed on the premises where such intoxicating liquors, wines or beer are sold or on any other premise under the control, either directly or indirectly, of the licensee and it shall be unlawful for anyone to consume any intoxicating liquors, wines or beer on the premises where such in­toxicating liquors, wines or beer are sold or on any other premise under the control, either directly or indirectly, of the licensee.

Hlstory.-§5, ch. 23747, 1947.

567.14 Penalty for violation.-Any person violating any of the provisions of §567.13 shall be guilty of a misdemeanor and shall, upon con­viction thereof, be punished by imprisonment in the county jail for not more than six months or by fine of not more than five hundred dol­lars; provided, that any person who shall have been convicted of a violation of any of the provisions of said §567.13 and shall thereafter be convicted of a further violation of any of said provisions, shall, upon conviction of said further offense, be deemed guilty of a felony and shall be punished by imprisonment of not less than one year nor more than five years in the state penitentiary or by fine of not more than five thousand dollars.

Hlotory.-§6, ch. 23747, 1947.

2186

INTOXICATING LIQUORS IN COUNTIES WHERE PROHIBITED Ch. 568

CHAPTER 568 INTOXICATING LIQUORS IN COUNTIES WHERE PROHIBITED

568.01 568.02

Alcoholic content of intoxicating liquors. 568.08 Person required to testify; exemption from Selling intoxicating liquors in counties prosecution.

where prohibited. 568.09 Holding federal license or tax stamp prima 668.03

568.04

568.05 568.06 568.07

Possessing intoxicating liquors in counties facie evidence. where prohibited with intent to sell. 568.10 Confiscation of liquors.

Maintaining place of business for sale of 568.11 Right of property forfeited. liquors in counties where prohibited. 568.12 Record of confiscation required.

Penalty. 568.13 Form of information or indictment. Proof necessary to convict. 568.14 Beverage department vested with enforc-Name sufficient proof; compe·i;ency of wit- ing powers.

ness.

568.01 Alcoholic content of intoxicating liquors.-All liquors, wines or beer containing more than three and twu-tenths per cent of alcohol by weight shall be deemed and held to be intoxicating liquors, wine::~ or beer and sub­ject to the provisions of this chapter.

Hlstory.-§5, ch. 18016, 1937; CGL 1940 Supp. 7648(14).

568.02 Selling intoxicating liquors in coun­ties where prohibited.-It is unlawful for any­one to sell, or cause to be sold, any intoxicating liquors wines or beer in any county that has voted ~gainst the sale of intoxicating liquors, wines or beer.

Hlstory.-§1, ch. 18016, 1937; CGL 1940 Supp. 7648(10).

568.03 Possessing intoxicating liquors in counties where prohibited with intent to sell. -It is unlawful for anyone to keep, or possess, intoxicating liquors, wines or beer in any coun­ty that has voted against the sale of such in­toxicating liquors, wines or beer with intent to sell or dispose of them unlawfully.

Hlstory.-§2, ch. 18016, 1937; CGL 1940 Supp. 7648(11).

568.04 Maintaining place of business for sale of liquors in counties where prohibited.­It is unlawful for anyone to keep or maintain a place where intoxicating liquors, wines or beer are sold in any county that has voted against the sale of intoxicating liquors, wines or beer.

Hlotory.-§3, ch. 18016, 1937; CGL 1940 Supp. 7648(12).

568.05 Penalty.-Any person who sells, or causes to be sold, any intoxicating liquors, wines or beer in any county that has voted against the sale of intoxicating liquors, wines or beer, or who keeps or possesses in any such county any intoxicating liquors, wines or beer with intent to sell or dispose of same unlaw­fully, or who keeps or maintains in any such county a place where intoxicating liquors, wines or beer are sold, shall, for each such of­fense, upon conviction, be punished by a fine of not exceeding five hundred dollars, or by imprisonment in the county jail for not more than six months.

Hlstory.-§4, ch. 18016, 1937; CGL 1940 Supp. 7648(13). ct.-§775.06, Alternative punishment.

568.06 Proof necessary to convict.-In any trial of any person for violation of §568.02, it shall not be necessary for the prosecution to prove that the accused had any interest in the intoxicating liquors, wines or beer delivered or sold by him, or any interest in the money

received by the accused for such intoxicating liquors, wines or beer delivered by him, but proof of the delivery of intoxicating liquors, wines or beer by the accused and the receipt of money therefor by him, shall be prima facie evidence of the ownership of said intoxicating beverages by the accused and proof of the sale of a single quantity of intoxicating liquors, wines or beer by such person shall be suffi­cient evidence upon which to base a conviction for violation of §568.02.

Hlotory.-§6, ch. 18016, 1937; CGL 1940 Supp. 7648(15).

568.07 Name sufficient proof; competency of witness.-In all prosecutions for violation of this chapter proof that the liquor in ques­tion was and is known as whiskey, moonshine whiskey, shine, rum, gin, brandy, or other sim­ilar name or names shall be prima facie evi­dence that such liquor is intoxicating and con­tains more than three and two-tenths per cent of alcohol by weight and that same is intoxi­cating. Any person or persons who by experi­ence in the past in the handling or use of intoxicating liquors, or who by taste, smell, or the drinking of such liquors have knowledge as to the intoxicating nature thereof, may testify as to this opinion, whether such bev­erage or liquor is or is not intoxicating, and a verdict based upon such testimony shall be valid.

The alcoholic content of any liquor, wine or beer, or other beverage may be shown by hy­drometer or gravity test made in or away from the presence of the jury by any person who has knowledge of the uses of such instruments, but the production of such evidence shall be optional. The alcoholic content of any liquor or beverage, or compound, the subject of any inquiry in and proceedings or prosecution may also be shown by chemical or any other anal­ysis made by and certified by any competent chemist or the state chemist, or any of his duly designated assistants or deputies. The sample analyzed may be identified by the sworn testimony of any peace officer or prosecuting officer, that he personally delivered to said chemist such sample for analysis and that it was personally taken by him from the recep­tacle containing beverages, drinks or alcohol­ic liquors or compounds, the subject of in­quiry.

The mode of proof herein provided shall be considered cumulative and not exclusive.

HlstorT.-§7, ch. 18016, 1937; CGL 1940 Supp. '1648(1.1) .

2187

Ch. 322 INTOXICATING LIQUORS IN COUNTIES WHERE PROHIBITED

568.08 Person required to testify; exemp­tion from prosecution.-No person shall, upon any investigation before a grand jury, state attorney, county solicitor or other prosecuting attorney commissioned by the state, or regu­larly employed by a county, for an alleged vio­lation of any of the provisions of this chapter, or before any court upon the trial of any per­son, association of persons, or corporation, charged with the violation of any of the provi­sions of this chapter herein made a criminal offense, refuse to testify or give evidence, or produce any document, record, book, papers, or any other personal property of any kind or description, upon the ground that by so doing he may thereby convict himself of crime, or give evidence against himself, or expose him­self to criminal prosecution, penalty or for­feiture; and any person who shall so testify or give such evidence, or produce any such docu­ment, record, book, paper or any other personal property of any kind or description, shall not be prosecuted or held liable for any penalty or forfeiture for or on account of any matter or thing concerning which he may so testify, or give evidence, or produce any such document, record, book, paper or any other personal property of any kind or description, and the same shall not be given in evidence or used against such person in any wise or in any manner in any prosecution or other proceed­ing in any of the courts of this state, or other­wise; provided, that nothing in this section contained shall protect any person against prosecution for perjury or false swearing.

History.-§8, ch. 18016, 1937; CGL 1940 Supp. 7648(17).

duction by the prosecuting officer of a certi­fied copy of said license, tax stamp or certifi­cate of the collector of internal revenue of the United States; and proof having been made as provided in this section, it shall be sufficient evidence, without explanation, to convict.

History.-§9, ch. 18016, 1937; CGL 1940 Supp. 7648(18).

568.10 Confiscation of liquors.-Upon the arrest of any person charged with the violation of any of the provisions of this chapter, the ar­resting officer shall take into his custody all in­toxicating liquors, wines or beers found in the possession, custody or control of the person ar­rested, and safely keep and preserve the same and have it forthcoming at any investigation, prosecution or other proceeding for the viola­tion of any of the provisions of this chapter, and for the destruction of the same as is in this sec­tion provided. Upon the conviction of the person arrested for the violation of any provisions of this chapter, the judge of the court trying the case, after such notice to the person convicted and any other person whom the judge may be of the opinion is entitled to such notice, as the judge may deem reasonable, shall issue to the sheriff of the county a written order adjudging and declaring such intoxicating liquors, wines or beers forfeited, and directing such sheriff to sell such liquors, wines or beers to any licensed wholesaler in the state, upon the condition that new state stamps be placed thereon, or in case of beer and wine, that the tax levied by the bP.verage law of Florida be again paid thereon, and that the money received from said sale be paid into the general fund, or such like fund, of the county in which such seizure was made, such sale shall be made how­ever, only upon submission by said sheriff of a request for bids to at least five wholesalers in the state, and such sale shall be made to the high­est and best bidder; such order shall further provide, in the event any such forfeited liquors, wines and beers cannot be so sold, that the sheriff shall immediately destroy the same, or deliver the same to the beverage director of the state for disposition as provided in §562.44. In the event said liquors, wines and beers are to be destroyed under such order, such destruction shall be in the presence of the clerk of the circuit court of said county and at such times, places and in such manner ·as such judge, in his order, directs.

Hlstory.-§10, ch. 18016, 1937; CGL 1940 Supp. 7648(19); a m . §1, ch. 22024, 1943. cf .-§562.12 Selling beverage not permitted by license

568.11 Right of property forfeited.-The­right of property in and to intoxicating liquors~ wines or beer sold or possessed by any person~ association of persons, or corporation in vio­lation of any of the provisions of this chapter­is declared not to exist in any person, associa­tion of persons, or corporation and the same shall be forfeited.

History.-§11, ch. 18016, 1937; CGL 1940 Supp. 7648(20) .

568.09 Holding federal license or tax stamp prima facie evidence.-The holding, owning, having in possession or paying for a license or tax stamp issued by the internal revenue authorities of the United States showing the payment of a tax as a dealer in intoxicating liquors, wines or beer, by the holder thereof to the United States government shall be held in all the courts of this state as prima f acie evidence aga inst the holder thereof in prose­cution of such holder for violation of this chap­ter and upon proof being made by the certifi­cate of the collector of internal revenue, as provided for by the federal statute, in cases where the proper prosecuting officers shall produce said certificate or certified copy, the grand jury may indict the holder of such li­cense or tax stamp or the proper prosecuting officer may file information against the holder of such license or tax stamp without further proof, charging such holder with the violation of this chapter, and upon the trial of persons charged with the violation of this chapter, upon information or indictment proof of the owning, holding or possession of such license or tax stamp by the defendant may be made by two witnesses who have seen such license or tax stamp in the place of business or the hold­er thereof, or by the production of the orig­inal tax stamp or license with proof that said license or tax stamp is the property of the de- 568.12 Record of confiscation required.­fendant by one or more witnesses, or by pro- Any sheriff, who seizes intoxicating liquors,_

2188

INTOXICATING LIQUORS IN COUNTIES WHERE PROHIBITED Ch. 568

wines or beer as provided for in this chapter, .shall keep a permanent itemized record of all such liquors including a complete record of the destruction of such liquors, which record shall be verified by the signature of the sher­iff in person, and such records shall be open to inspection at all times.

Hlstory.-§12, ch. 18016, 1937; CGL 1940 Supp. 7648(21).

568.13 Form of information or indictment. -An indictment or information framed sub­stantially as follows shall be deemed sufficient in counties voting against the sale of intoxi­cating liquors, wines or beer:

The grand jurors of the State of Florida, inquiring in and for the body of the county of --------------------------------------• upon their oaths do present that ----------------------------------------------------• late <>f the county of --------------------------------------------• did, on, to-wit: the ________________ day of ----------------------------19 ·-------• in the said county of --------------------------------•

State of Florida, unlawfully sell intoxicating liquors (or intoxicating wines or intoxicating beer as the case may be), which said county had voted against the sale of intoxicating Iiq. uors, wines or beer, contrary to the statute made and provided and against the peace and dignity of the State of Florida.

Said form of indictment or Information may also be used in charging violation of §568.03 and §568.04.

Hlstory.-§13, ch. 18016, 1937; CGL 1940 Supp. 7648(22) .

568.14 Beverage department vested with en· forcing powers.-For the purpose of enforc­ing the provisions of this chapter the director and supervisors of the state beverage depart­ment shall exercise and perform all powers and duties vested in the several sheriffs and their denuties in the state under the provisions of this -chapter.

Hlstory.-§13A, ch. 18016, 1937; CGL 1940 Supp. 7648(23). cf.-§561.0l!, Duties of state beverage department.

2189

Ch. 569 DISPENSING AND CONSUMING OF LIQUOR AND BEVERAGES

CHAPTER 569 DISPENSING AND CONSUMING OF LIQUOR AND BEVERAGES

569.01 CUrb service of intoxicating liquor pro­hibited.

669.02 Curb drinking of intoxicating liquor pro­hibited.

569.03 Purchase of beverages by licensed clubs; size of individual containers.

569.04 Clubs to sell only individual drinks. 569.05 Penalty for violation of §§569.01-569.04.

569.01 Curb service of intoxicating liquor prohibited.-It is unlawful for any person to sell or serve, by the drink, any intoxicating liquor, other than malt beverages of legal al­coholic content, except within the building which is the address of the person holding a license for the sale of such intoxicating liquor. It is in­tended to forbid the practice of curb or drive-in service in connection with such intoxicating liquors when sold by the drink; provided, how­ever, that nothing in this section contained shall be construed to prevent the regular delivery by licensed dealers of sealed, stamped containers containing such intoxicating liquors.

Hlstor:y,-§1, ch. 19437, 1939; CGL 1940 Supp. 7648(30); am. §7, ch. 22858, 1946. cf.-§1.01 (3), "Person" defined.

569.02 Curb drinking of intoxicating liquor prohibited.-It is unlawful for any person to consume any intoxicating liquor, except malt beverages of legal alcoholic content, at curb or drive-in stands, except within the building which is the address of the person holding a license for the sale of such intoxicating liq­uors.

Hlstor:y.-§2, ch. 19437, 1939; CGL 1940 Supp. 7648(31) .

569.03 Purchase of beverages by licensed clubs; size of individual containers.-It is un­lawful for any person holding a license as a club for the sale of intoxicating liquors and beverages to purchase any of said beverages except from a licensed distributor in the state, and in individual containers not larger than one quart, nor smaller than one-fifth of one gallon.

Hbtory.- §1, ch. 19500, 1939; CGL 1940 Supp. 7648(34).

569.04 Clubs to sell only individual drinks. -It is unlawful for any person holding a li­cense as a club for the sale of intoxicating liq­uors and beverages to sell the same except by the individual drink.

Hlstor:y.-§2, ch. 19500, 1939; CGL 1940 Supp. 7648(35).

569.05 Penalty for violation of §§569.01-569.04-Any person violating the provisions of §§569.01-569.04, shall be guilty of a misde­meanor and shall be punished accordingly; and if a licensee, the license held by such person shall be subject to revocation.

Hlstory.-§3, ch. 19437, 1939; §3, ch. 19600, 1939 ; CGL 1940 Supp. 7648(32), 7648(36) . cf.-§775.07, Punishment for misdemeanor.

569.06 Limitation of size of individual wine containers; penalty.-lt is unlawful for any

569.06 Limitation of size of individual wine con­tainers; penalty.

569.07 Sale of intoxicating liquors to Indians pro­hibited; penalty.

569.08 Saloons to be closed in time of riot. 569.09 Same; penalty violating proclamation of

mayor. 569.10 Adulterating liquor; penalty.

person to sell within this state any wine in in­dividual containers holding more than one gallon of such wine. Provided, that qualified distribu­tors and manufacturers may sell to other qualified distributors or manufacturers such wine in any size containers. Any person convicted of a viola­tion of this section shall be guilty of a misde­meanor and shall be punished accordingly.

Hlstory.-§§1, ~ ch. 19498, 1939; CGL 1940 Supp. 7648(88); am. §7, ch. 22858, 1945. cf.-§776.07, Punishment for misdemeanor.

569.07 Sale of intoxicating liquors to In­dians prohibited; penalty.-Any person who shall sell, give away, dispose of, exchange or barter any malt, spirituous or vinous liquor including beer, ale and wine, or any ardent or other intoxicating liquor of any kind whatso­ever, or any essence, extract, bitters, prepara­tions, compound, composition, or any article whatsoever under any name, label or brand, which produces intoxication to any Indian, or half or quarter breed Indian in this state, shall upon conviction thereof, be sentenced to a term of imprisonment for not more than one year, or a fine of not less than one hundred dollars, nor more than one thousand dollars; provided, that this section shall not prevent the adminis­tration of whiskey or any other liquor by or on the prescription of any reputable physician.

Hlstory.-§1, ch. 18017, 1937; CGL 1940 Supp. 7648(26). cf.-§776.06, Alternative punishment.

569.08 Saloons to be closed in time of riot. -Whenever any riot or mob occurs in any town, city or village of this state, all persons therein who sell intoxicating liquors shall, upon being notified by the mayor, chief of po­lice, marshal, or any policeman, sheriff or con­stable, immediately close their barrooms, saloons, shops or other places where the sale of such intoxicating liquors is carried on, and keep them closed, and refrain from selling, bartering, lending or giving away any intoxi­cating liquors as above mentioned, until such time as public notice shall be given by the sheriff of the county, or mayor of any city, town or village where any mob or riot may occur, that such places may be opened and the sale of intoxicating liquors carried on. Any person failing to close up such barroom, saloon, shop or other place where the sale of intoxicating liquors is carried on, or who sells, barters or gives away any intoxicating liquors as aforesaid, after receiving such notice that a mob or riot has occurred, or is then going on, shall forfeit his license, and shall be fined not

2190

DISPENSING AND CONSUMING OF LIQUOR AND BEVERAGES Ch. 569

exceeding one thousand dollars, or be im­prisoned not exceeding one year.

Hlotor;,..-§1, ch. 4033, 1891; GS 8244; CGL 1936 Supp. 1179(1).

569.09 Same; penalty violating proclamation of mayor.-Whenever any riot or mob has oc­curred, or there is a reasonable cause to appre­hend an outbreak thereof in any town, city or village, or in the vicinity thereof, the mayor shall immediately issue his proclamation order­ing the closing of all the places mentioned in §569.08, forbidding the selling, lending, giving away, bartering or otherwise disposing of any alcoholic, vinous or malt liquors, intoxicating bitters or beverages, or any other liquors or substances by whatsoever name it may be call­ed, which produces or may produce intoxica­tion, until such time as in his judgment the public peace and safety no longer requires such restrictions. Any person or persons know­ingly violating the provisions of such proclama­tion, or suffering any person or persons in

his employ to do so, or conniving with any other person or persons to evade the terms of such proclamation, shall be fined not exceeding one thousand dollars, or be imprisoned not exceed­ing one year.

Hhtory.-§2, ch. 4033, 1891; GS 3245; CGL 1936 Supp. 7179(2). ct.-§775.06, Alternative punishment.

569.10 Adulterating liquor; penalty.-Who­ever adulterates, for the purpose of sale, any liquor, used or intended for drink, with coc­culus indicus, vitriol, grains of paradise, opium, alum, capsicum, copperas, laurel water, Iogwood, brazil wood, cochineal, sugar of lead or any other substance which is poisonous or injurious to health, and whoever knowingly sells any liquor so adulterated, shall be pun­ished by imprisonment in the s.tate prison not exceeding three years, and the articles so adul­terated shall be forfeited.

Hl&tor;,..-§4, sub-ch. 9, ch. 1637, 1868; RS 2664; GS 3593; RGS 5522; CGL 7687.

2191

TITLE XXXIII AGRICULTURE, HORTICULTURE AND ANIMAL INDUSTRY

CHAPTER 575

CERTIFICATION SEED LAW

575.01 Definitions. 575.02 Certification of seed. 575.03 Fees for cert ification. 575.04 Unlawful to use words "certified," "regis­

tered" or "inspected."

575.01 Definitions.-As used in this chapter: (1) The term "department" shall mean the

department of agriculture of the state. (2) The word "commissioner" shall mean

the commissioner of agriculture of the state. (3) The term "certified seed" shall include

seed potatoes, and such agricultural or vege­table seeds as shall have been inspected dur­ing their period of growth and preparation for market by the department .or its author­ized agents (or by the legally constituted in­pection officials of the state in which such seed potatoes or agricultural or vegetable seeds were grown, or by such other agencies as may be approved or recognized by the com­missioner of agriculture) and found to be reasonably free from diseases and other de­fects, as specified in the rules and regulations issued by the commissioner under the pro­visions of this chapter.

( 4) The term "seed potatoes" shall mean and include tubers of the Irish potato and sweet potato varieties and slips, plants or vines grown or produced from the latter which are grown and intended to be used for seed or planting purposes.

(5) The term "agricultural seeds" shall in­clude all seeds which are commonly known as farm crop seeds, which are grown and intended to be used as seed in raising farm crops.

(6) The term "vegetable seeds" shall in­clude all seeds which are commonly known as vegetable seeds, and which are grown and intended to be used as seed in raising garden and truck crops.

Wstory.-§2, chs. 19364, 19432, 1939; CGL 1940 Supp. 4151(591). 4151(607); §1, ch. 20627, §2, ch. 20251, 1941; §2, 21942, 1943; transferred from §578.01; §2, ch. 26961, 1951.

575.02 Certification of seed.-Any grower of seed potatoes, agricultural or vegetable seeds, located in Florida, may make applica­tion to the commissioner for inspection and certification of his crop for seed purposes, under such rules and regulations as the com­missioner may issue.

The commissioner, or his authorized agents,

575.05 Rules and regulations. 575.06 Employees. 575.07 Penalty. 575.08 Enforcement of chapter. 575.09 Short title.

shall issue such certificates of inspection and designate or provide such official tags for mark­ing containers of "certified seed," and estab­lish such standards of grade and quality, as are necessary to safeguard the privileges and ser­vice provided for in this chapter.

Hlstory.-§3, ch. 19432, 1939; CGL 1940 Supp. 4151(608); trans­ferred from §578.05 ; §3, ch. 26961, 1951.

575.03 Fees for certification.-The commis­sioner may fix, assess and collect, or cause to be collected, fees for the certification inspec­tion service, the same to be paid in such man­ner as he may direct. Such fees shall be large enough to meet the reasonable expenses incur­red by the commissioner or his agents in mak­ing such inspections as may be necessary for certification.

Hlstory.-§4, ch. 19432, 1939; CGL 1940 Supp. 4151(609); trans­ferred from §578.06; §4, ch. 26961, 1951.

575.04 Unlawful to use words "certified," "registered" or "inspected."-It is unlawful to use the terms "certified," "registered," "in­spected," or any form or modification of such terms which tends to convey to the purchaser of such seed that the same has been certified, on tags or containers, either orally or in writ­ing or in advertising material intended to pro­mote the sale of seed potatoes or agricultural or vegetable seeds, or on labels or containers, except when such seed potatoes or agricultural or vegetable seeds shall have b~~n inspect~d and certified to under the prov1s1ons of th1s chapter by the commissioner of agriculture or by an inspection agency duly authorized by any state or county and recognized and ap­proved by the commissioner of agriculture of the state.

Hlstory.-§5, ch. 19432, 1939 ; CGL 1940 Supp. 4151(610); trans­ferred from §578.07; f5, ch. 26961, 1951.

575.05 Rules and regulations.-The commis­sioner may make all necessary rules and regu­lations to carry out the provisions of this chapter.

Hlstory.-§12, ch. 19364, §6, ch. 19432, 1939; CGL 1940 SUPIJ· 4151 (601), 4151 (611); transferred from §578.04; §6, ch. 2696~, 1951.

575.06 Employees.-The commissioner may employ such assistants, inspectors, specialists

2192

CERTIFICATION SEED LAW Ch. 575

and others as may be necessary to carry out the provisions of this chapter, to fix their salaries and to pay same from such funds as may be available for the purpose.

Blstory.-§11, ch. 19364, §7, ch. 19432, 1939; CGL 1940 Supp. 4151(600) , 4151(612) ; transferred from §578.03 ; §7, ch. 26961, 1951.

575.07 Penalty.-Any person, copartnership, association or corporation, and any officer, agent, servant or employee thereof, violating any of the provisions of this chapter or any of the rules and regulations promulgated here­under, shall be deemed guilty of a misde­meanor, and on conviction, shall be punished by fine not exceeding one hundred dollars.

Bistory.-§15, ch. 19364, §8, ch. 19432, 1939; CGL 1940 Supp. 8135(54), (55); §12, ch. 20251 , 1941 ; §15, ch. 21942, 1943; trans­ferred from §578.18; §8, ch. 26961, 1951.

575.08 Enforcement of chapter.-The corn­missioner is vested with power and authority to enforce the provisions of this chapter and the

rules and regulations made pursuant thereto by writ of injunction in the proper court as well as by criminal proceedings. It shall be the duty of the attorney general, the state attorneys, prose­cuting attorneys, county solicitors, and all public prosecutors in each county to represent the corn­missioner when called upon to do so. The corn­missioner in the discharge of his duties and in the enforcement of the powers herein delegated may send for books and papers, administer oaths and hear witnesses, and to that end it is made the duty of the various sheriffs through­out the state to serve all summons and other papers upon request of said commissioner.

Bistory.-§13, ch. 19364, §9, ch. 19432, 1939; CGL 1940 Supp. 4151(602) , 4151 (613); transferred from §578.15 ; §9, ch. 26961, 1951.

575.09 Short title.-This chapter shall be known by the title of the Florida certification seed law.

History.---<:omp. §10, ch. 26961 , 1951.

!!193

Ch. 576 AGRICULTURAL FERTILIZERS

CHAPTER 576 AGRICULTURAL FERTILIZERS

576.01 Definitions. 576.02 Reports required of manufacturers, etc.,

prior to sale of fertilizers. 576.03 State chemist to analyze samples of com­

mercial fertilizer. 576.04 Analysis of fertilizers to be shown on tag,

etc. 576.05 Form for fertilizer and fertilizer material

tags; generally. 576.06 Sale of unprocessed leather, hair, etc.; mis­

representation of ingredients. 576.07 Inspection fee to be paid upon commercial

fertilizer; reporting system.

576.01 Definitions.-In construing this chap­ter, where the context permits, the word, phrase, or term:

(1) The term "fertilizer material" means any substance containing nitrogen, phosphoric acid, potash, or any recognized plant food ele­ment or compound which is used primarily for its plant food content or for compounding mixed fertilizers, except unmanipulated animal and vegetable manures.

(2) The words "mixed fertilizer" shall be construed to mean the combination or mixture of two or more fertilizer materials.

(3) The term "commercial fertilizer" in­cludes mixed fertilizer or fertilizer materials.

( 4) The words "water insoluble nitrogen" shall be construed to include nitrogen not solu­ble in water and shall be so classified. All organic nitrogen soluble in water shall be classified as water soluble organic nitrogen. Nitrogen in the form of nitrate shall be classi­fied as nitrate nitrogen. Nitrogen in the form of ammoniacal nitrogen shall be so classified.

(5) The words "primary plant food" shall be construed as relating to and consisting of nitrogen or any form of nitrogen, phosphoric acid, or potash, or any combination of these substances.

(6) The words "available primary plant food" shall be construed as relating to and consisting of total nitrogen, available phos­phoric acid, and water soluble potash.

(7) The words "total available primary plant food" shall be construed to mean the sum of the total nitrogen, available phosphoric acid, and water soluble potash.

(8) The words "secondary plant food" shall be construed to mean any element or substance useful as plant food other than the primary plant foods hereinabove defined, except sul­phur.

(9) The word "tolerance" means the vari­ation from the guaranteed analysis permitted in this chapter, or by regulation.

(10) The word "manufacturer" means a per­son engaged in the business of importing, pre­paring, mixing, or manufacturing commercial fertilizer for sale, either direct to consumers or by or through other media of distribution, and the word "manufacture" means prepara­tion, mixing, or manufacturing.

576.08 Action by party entitled to recover dam-ages under this chapter.

576.081 Commercial values. 576.082 Tolerances. 576.083 Penalties for deficiencies and refunds to

buyer. 576.084 Penalties. 576.09 Rules and regulations. 576.10 Criminal penalties for violation of this

chapter. 576.11 Remedy by injunction.

(11) The words "dealer or agent" mean any person, other than the manufacturer, who offers for sale, sells, barters, or otherwise supplies at a profit commercial fertilizer.

(12) The word "deficiency" means the amount found by analysis less than that shown on the analysis tag.

(13) The word "excess" means the amount found by analysis over and above that guaran­teed shown on the analysis tag.

(14) The words "to import" and the word "importing" shall be construed as meaning the bringing of commercial fertilizer into this state from any other state, territory, or possession of the United States, or from any foreign country, for sale within this state, and the word "importer" shall be construed as mean­ing the person who brings in commercial fer­tilizer from any other state, territory, or pos­session of the United States, or from any for­eign country, for sale within this state.

(15) The word "brand" means the name, number, trademark, or other designation under which mixed fertilizer or fertilizer material is registered, offered for sale, distributed for sale, or sold in this state.

(16) The term "grade" means the minimum percentage of total nitrogen, available phos­phoric acid, and water soluble potash stated in the order given in this definition and when applied to mixed fertilizer shall be in whole numbers only.

(17) The words "guaranteed analysis" shall be construed as meaning the percentage of primary or secondary plant foods shown on the analysis tag.

(18) The words "official sample" shall be construed to mean any sample of commercial fertilizer manufactured, offered for sale, or sold in this state which is taken by an of­ficial inspector duly appointed or any official authorized under this chapter to take such samples.

(19) The word "person" shall be construed as applying to individuals, partnerships, asso­ciations, and corporations.

(20) When the interpretation of this chap­ter requires it, words in the singular number may extend and be applied to several persons or things, and words in the plural number may be construed to refer to the singular.

2194

AGRICULTURAL FERTILIZERS Ch. 576

(21) means

(22) change.

The word "per cent" or "percentage" the percentage by weight.

The term "sell" or "sale" includes ex-

(23) A "unit" of plant food means one per cent by weight or twenty pounds per ton.

(24) The term "pesticide-fertilizer mixture" means a mixed fertilizer to which has been added a pesticide or pesticides.

Hlstory.-§11, ch. 4983, 1901 ; GS 1273; RGS 2407; CGL 3816; §1, ch. 16999, 1935 ; §1, ch. 25148, 1949; sub. § (4) am. §10, ch. 26484, 1951; sub. §§(8) , (9) am. §§1, 2, sub. §(24) comp. §3, ch. 29793, 1955; (24) by §24, ch . 57-1.

576.02 Reports required of manufacturers, etc., prior to sale of fertilizers.-

( ! ) Each brand of commercial fertilizer shall be registered before being offered for sale, sold or otherwise distributed in this state. The application for registration shall be sub­mitted to the commissioner on forms furnished by the commissioner and shall be accompanied by a tag outline setting forth the guaranteed analysis which shall be the same as that ap­pearing on the product registered. The com­missioner of agriculture is hereby authorized to refuse to accept, or to ca ncel, if accepted, registration of anyone who violates any of the provisions of this chapter by failing or refusing to do anything herein required to be done; pr ovide.d, however, that no registration shall be cancelled until the registrant shall have been notified and given opportunity to be heard before the commissioner. No manufacturer shall be permitted to register any brand of mixed fertilizer of which the available primary plant food constitutes less than sixteen per cent; provided, however, that the commissioner of agriculture, upon request from any manu­facturer, shall issue a permit to said manufac­turer permitting him to manufacture mixed fertilizer of less than sixteen per cent available primary plant food when said request is ac­comp~nied with a copy of the complete formula showing in detail all ingredients and the amount of each to be used; and provided fur­ther that the state chemist has examined and approved such a permit. All provisions of this chapter shall apply to manufacture and sale of mixed fertilizer under said permit.

(2) It shall be unlawful for any manufac­turer, importer, or agent for the sale of com­mercial fertilizer to sell or make delivery of such commercial fertilizer before the registra­tion thereof has been accepted by the com­missioner of agriculture and the manufacturer, importer, or agent notified of such acceptance by the commissioner of agriculture; provided, such registration may be handled by telegraph prior to delivery of order.

(3) Any change in or deviation from the information filed upon registration of brands of mixed fertilizer with the commissioner of agriculture shall constitute a separate brand and shall require a separate registration; pro­vided, however, that secondary plant foods may be added to a brand already registered so long as such addition does not in any way change

or qualify any other requirements of the regis­tration previously made, and such addition of secondary plant foods shall not require an additional registration. A mere change in the analysis or percentage of plant food for fer­tilizer material shall not constitute a separate fertilizer material, but shall require an addi­tional registration.

( 4) "Total nitrogen," "available phosphoric acid," "water soluble potash," and "total avail­able primary plant food" shall be expressed and guaranteed only in whole numbers repre­senting percentages. Other forms of "primary plant food" and all forms of "secondary plant food" may be expressed and guaranteed in whole numbers or decimal fractions of whole numbers representing percentages.

(5) Manufacturers shipping or delivering commercial fertilizer in lots of one or more tons shall notify the commissioner of agri­culture thereof on the date of such shipment, giving the name and address of consignee, point of destination, and county in which lo­cated, quantity and brand or brands, and if shipped by rail in carload lots, the number and initial of the car.

Hlstory.-§5, ch. 4983, 1901 ; OS 1267; ROS 2401; §1, ch. 10128, 1925 ; COL 3810, §2, ch. 16999, 1935.

Am. §1, ch. 25148, 1949; subsection (1) formerly §576.03, subsections (2) and (3) formerly §576.04, subsection <•> formerly §576.02, subsection (5) formerly §576.05.

Sub. § (1) am. §4, ch. 29793, 1955.

576.03 State chemist to analyze samples of commercial fertilizer.-

(!) It shall be the duty of the state chemist to analyze samples of commercial fertilizer that may be offered for sale in this state, and for this purpose he is authorized and directed to take or have taken by an inspector of the bureau of inspection of the state department of agriculture, or by one on whom the powers of inspector are by this law conferred, an official sample from any lot of commercial fer­tilizer offered for sale or sold within this state, which samples shall be taken as pre­scribed by regulation hereunder.

(2) Upon receipt of the official sample, the state chemist shall have the said official sam­ple prepared and analyzed. Before making said official analysis, however, the state chemist shall take or have taken a sufficient portion from the official sample for check analysis, and shall place the same or shall have the same placed in a bottle, sealed and identified by number, date, and initials of the person preparing it. This sealed and identified sam­ple, herein called "official check sample," shall be kept by the state chemist until the analysis is completed on the official sample. Provided, however, that the manufacturer may obtain upon request to the state chemist a portion of said official sample sufficient for analysis. If upon completion of said official analysis it is found to conform, within the meaning of this chapter, with the guarantee of analysis of the manufacturer of the commercial fertilizer from which the official sample was taken, the official check sample may be destroyed. If, however, it is found that the analysis of the commer-

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Ch. 576 AGRICULTURAL FERTILIZERS

cial fertilizer from which the official sample was taken does not conform, within the mean­ing of this chapter, with the guarantee of the manufacturer, then the said official check sam­ple shall be retained by the state chemist for a period of ninety days from the date of the certificate of analysis of the official sample. And if within said time the manufacturer of the commercial fertilizer from which the of­ficial sample was taken, upon receipt of certifi­cates, shall make demand for analysis of the official check sample by a referee chemist, a portion of the said official check sample suf­ficient for analysis shall be sent to a referee chemist mutually acceptable to the commis­sioner of agriculture, the state chemist, and the manufacturer of the commercial fertilizer, for analysis at the expense of the said manu­facturer. The referee chemist, upon completion of his analysis, shall forward to the commis­sioner of agriculture and to the manufacturer a certificate of analysis bearing a proper iden­tification mark or number and said certificate of analysis shall be verified by an affidavit of the person making the analysis. If said certificate of analysis checks within two-tenths of one actual per cent (0.20%) with the state chemist's analysis on each element for which analysis was made, then the mean average of the two analyses shall be accepted as final and binding on all concerned; provided, however, that if the referee's certificate of analysis shows a variation in any one or more elements for which an analysis was made greater than two­tenths of one actual per cent (0.20%) a portion of the official check sample sufficient for analy­sis shall be submitted to a second referee chemist mutually acceptable to the commis­sioner of agriculture, to the state chemist, and to the manufacturer of the commercial fer­tilizer from which the official sample was taken, upon demand of either of them. The second referee chemist, upon completion of his analy­sis shall make certificate and report as provided above for the first referee chemist. The mean average of the two certificates of analysis nearest in conformity shall be accepted as final and binding on all concerned; if said mean average shows that the manufacturer's guarantee has not been met within the varia­tion hereinafter provided in this chapter, the said certificates shall be admissible in any court.

(3) The state chemist shall show in his cer­tificate of analysis the moisture content of the goods analyzed, the total nitrogen content, the nitrogen as nitrate nitrogen, the nitrogen as ammoniacal nitrogen, the nitrogen as water soluble organic nitrogen, the nitrogen as water insoluble nitrogen, the available phosphoric acid, the insoluble phosphoric acid, the water soluble potash, the total available primary plant food, and the chlorine.

(4) If the guaranteed analysis tag attached to the package from which the official sample was taken shows a claim of percentage of any secondary plant food, then if shall be the duty

of the state chemist to determine the percentage of such secondary plant food present by the methods as provided in this chapter, and to show in his certificate of analysis such per­centages as are found present.

(5) Upon completion of the analysis of the official sample by the state chemist, he shall mail to the manufacturer of the commercial fertilizer from which the official sample was taken, and also to the dealer or agent, if any, or purchaser, a true copy of his certificate of analysis.

(6) If an error occurs in analyzing com­mercial fertilizer or reporting same, the state chemist shall immediately make a corrected report and furnish a copy thereof to the manu­facturer and a copy to the purchaser of the fertilizer.

(7) In drawing any official sample and in making any analysis the officially adopted methods and terminology of the association of official agricultural chemists shall be used. In cases not covered by officially adopted methods and terminology of the association of official agricultural chemists, the state chem­ist shall, as soon as practicable, adopt and publish methods and terminology which shall be official in the state until such methods and terminology are officially adopted by the as­sociation of official agricultural chemists; ex­cepting that in any instance in which it is the judgment of the technical committee, as pro­vided for in §576.09 that the officially adopted methods and terminology of the association of official agricultural chemists are not appli­cable to conditions, circumstances, or cases, in the state, then the state chemist shall, with the approval of the technical committee, adopt and publish methods and terminology which shall be official in the state.

History.-§ § 5, 9, ch. 4983, 1901; GS 1267, 1271; §2, ch. 7939, 1919; RGS 2401, 2405; §1, ch. 9128, 1923; § § 1, 3, ch. 10128, 1925; CGL 3810, 3814; § § 2, 4, ch. 16999, 1935; am. §7, ch. 22858, 1945; present section comp. §1, ch. 25148, 1949 ; former §576.03 now appears as §576.02(1); material In present §576.03 formerly §576.18; sub. § (7) am. §5, ch. 29793, 1955.

576.04 Analysis of fertilizers to be shown on tag, etc.-

(1) Every package of commercial fertilizer manufactured, imported, transported, distrib­uted, stored, kept or offered for sale or sold in or into the state, shall have securely at­tached a tag on which shall be plainly and legibly printed the name or brand of the commercial fertilizer, the name and address of the manufacturer, the net contents of the package in pounds, stating the minimum per­centage of total nitrogen, the minimum per­centage of nitrate nitrogen, the minimum per­centage of ammoniacal nitrogen, the minimum percentage of water soluble organic nitrogen, the minimum percentage of water insoluble nitrogen, the minimum percentage of avail­able phosphoric acid, the minimum percentage of insoluble phosphoric acid, the minimum per­centage of water soluble potash, the minimum percentage of total available primary plant food, and the maximum percentage of chlorine.

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AGRICULTURAL FERTILIZERS Ch. 576

The sum of the various forms of nitrogen guaranteed shall equal the total nitrogen guar­anteed. There shall also be stated on the tag all the materials from which the above plant food are derived.

(2) If claim is made for any of the secon­dary plant foods they shall be guaranteed on the tag in percentage expressed as oxide with the exception of sulphur which shall be guaran­teed as an element. When secondary plant foods are guaranteed in a mixture containing primary plant foods, the guarantee shall be expressed as oxide only; except the element magnesium which shall be guaranteed as an oxide and the percentage thereof guaranteed as to both total and water soluble, and except sulphur which shall be guaranteed as an element. Where such elements form more than one oxide the "technical committee" shall designate the par­ticular oxide which shall be used in a guaran­teed analysis.

(3) There shall also be attached to or printed on the tag on each package a label or stamps showing the payment of the fee required; the date of delivery or shipment of the commercial fertilizer to the purchaser shall also be shown on each tag bearing the label or stamp and shall serve as a cancellation mark thereon. There shall be no other statement on the tag, unless required by regulations, ex­cept the name and the address of the person to whom the commercial fertilizer is shipped or delivered by the manufacturer; however, the order number may be shown on the tag so long as it does not in any way render the guaran­teed analysis illegible. When commercial fer­tilizer is shipped in bulk by rail there shall be fastened on the inside wall of the car near the door a tag of the same kind as is used in the case of package shipments bearing the same information as required or permitted in the case of package shipments. In such case, the labels or stamps cancelled with date of their use shall be attached to or printed on the tag; provided, however, that in case of bulk shipments or materials from without the state to points within the state, guaranteed analysis of said material and tax stamps can­celled on the date of use may be attached to the invoice covering such shipment of ma­terials and delivered to the purchaser or re­ceiver in lieu of attaching to the inside of the car. When commercial fertilizer is shipped in bulk by truck, wagon or other vehicle, the tags required in this section bearing proper labels or stamps and cancelled with the date of their use shall be attached to the copy of the invoice and shall be delivered to the re­ceiver.

History .-§3, ch. 4983, 1901; GS 1264; §1, ch. 5660, 1907; RGS 2398; §1, ch. 9127, 1923; §2, ch. 10128, 1925; CGL 3807; §1, ch. 14510, 1929; §5, ch. 16999, 1935.

Am. §1, ch. 25148, 1949; material formerly In this section Is now included in §576.02 as subsections (2) and (3); material In present §576.04 was formerly §576.07.

576.05 Form for fertilizer and fertilizer ma­terial tags; generally.­

"technical committee" herein provided for. (2) The provisions for tagging shall not

be construed as referring or applying to ma­terials stored by manufacturers for mixing purposes or stored for them in public ware­houses, and manufacturers are not required to attach tags or guaranteed analysis to such ma­terials until they are offered for sale, nor shall it be construed as applying to sales of com­mercial fertilizer by one manufacturer to an­other.

(3) Regulations hereunder may require ad­ditional wording on the tag, covering any sub­stances legally included in the fertilizer, other than those provided for in §576.04.

History.-Comp. § 1, ch. 25148, 1949; material formerly contained In §576.05 Is now Included In §576.02 as subsection (5); prior to 1949 amendment of ch. 576, §§576.08 and 676.09 covered form for fertilizer tags.

History notes to former § § 576.08 and 576.09 providing forms for fertlllzer tags.

History ( § 576.08) .-§ 3, ch. 4983, 1901; OS 1264; § 1, ch. 5660, 1907; ROS 2398; §1, ch. 9127, 1923; §2, ch. 10128, 1925; COL 3807; §1, ch. 14510, 1929 ; §5, ch. 16999, 1935.

History ( §576.09).-§3, ch . 4983, 1901; OS 1264; §1, ch. 5660, 1907; ROS 2398 ; §1, ch. 9127, 1923; §2, ch. 10128, 1925; COL 3807; §1, ch. 14510, 1929; §5, ch. 16999, 1935.

576.06 Sale of unprocessed leather, hair, etc.; misrepresentation of ingredients.-

( I) No person shall sell or offer for sale in the state any unprocessed leather, hair, or wool waste as a commercial fertilizer, or as an ingredient of any mixed fertilizer, nor organic material showing an activity of water insoluble nitrogen less than prescribed by the association of official agricultural chem­ists.

(2) Any manufacturer who shall misrepre­sent the proportion of nitrogen and the source thereof, phosphoric acid, or potash, or other ingredients contained in commercial fertilizers shall be guilty of a misdemeanor punishable as in this chapter provided.

History.-§ § 4, 12, ch. 4983, 1901; OS 1274, 3726, 3727; ROB 2408, 5711, 5712; COL 3817, 7934, 7935; § § 7, 8, ch. 16999, 1935.

Am. §1, ch. 25148, 1949; material In subsection (1) for­merly §576.24; material In subsection (2) formerly §576.25.

576.07 Inspection fee to be paid upon com­mercial fertilizer; reporting system.-

(1) Every manufacturer of or agent or dealer in commercial fertilizer shall pay to the commissioner of agriculture a fee of twenty­five cents per ton for commercial fertilizer of­fered for sale in the state, except raw ground phosphate rock, soft phosphate, colloidal phosphate, phosphatic clays and all other untreated phosphatic materials, peat or hu­mus, and hydrated lime and limestone · when sold or used for agricultural purposes, on which materials the fee shall be ten cents per ton. The said fee or fees shall accompany the order or orders on the commissioner of agriculture for the official stamps or tags which shall evi­dence the payment of said fees as herein re­quired. Provided that when the manufacturer shall have paid the fee herein named for any person acting as agent or seller for any manu­facturer, the agent or seller shall not be re­

(!) The form of the tag shall be scribed by regulation, recommended

as pre- quired to pay the fee named in this section. by the This section shall not be construed as applying

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Ch. 576 AGRICULTURAL FER'riLIZERS

to sales of commercial fertilizer by one manu­facturer to another. All fees paid to the com­missioner of agriculture, as herein provided, shall be by him paid into the state treasury to be placed in the general inspection fund.

(2) Any manufacturer, importer, dealer, agent or seller of commercial fertilizer in Florida may make application to the commis­sioner of agriculture of Florida for a permit to r eport the tonnage of commercial fertilizer sold and pay the inspection fee fixed and re­quired in the first paragraph of this section, as the basis for said report, in lieu of affixing or furnishing inspection fee tags or stamps. The commissioner of agriculture may, in his dis­cretion, grant such permit. The issuance of all permits will be conditioned on the appli­cant satisfying the commissioner of agricul­ture that he has a good bookkeeping system and keeps such records as may be necessary to indicate accurately the tonnage of commercial fertilizer sold in the state and as are satisfac­tory to the commissioner of agriculture and granting the commissioner of agriculture, or his duly authorized representative, permission to examine such records and verify the tonnage statement. The tonnage report shall be monthly and the inspection fee shall be due and payable monthly, on or before the fifteenth day of each month covering the tonnage and kind of commercial fertilizer sold during the last pre­ceding month. The report shall be under oath and on forms furnished by the commissioner. If the report is not filed and the inspection fee paid on the date due or if the report of ton­nage be false, the amount of inspection fee due shall bear a penalty of ten per cent which shall be added to the inspection fee due and shall constitute a debt and become a claim and lien against the cash deposit or securities or bond which may be required. Failure to make an accurate statement of tonnage or to pay the inspection fee as provided herein shall con­stitute sufficient cause for revocation of the permit. That in order to guarantee faithful per­formance with the provisions of this subsec­tion each applicant shall, before being granted a permit to use the reporting system, deposit with the commissioner of agriculture cash in the amount of one thousand dollars or securi­ties acceptable to the commissioner of a value of at least one thousand dollars or shall de­posit with the commissioner a surety bond in like amount executed by some corporate surety company authorized to do business in Florida. The commissioner shall approve all such se­curities or bonds before acceptance.

(3) In the event the permittee for any rea­son discontinues operating under the provisions of this subsection (2) of this section, and there is no liability against the bond posted by the permittee as herein required, the said bond or deposit shall thereupon be returned to the per­mittee.

( 4) The manner and method of labeling to show the information required by §576.04 shall

be provided by the permittee and shall be ac­ceptable to the commissioner of agriculture.

mstory.-§6, ch. 4983, 1901; as 1268; ROS 2402; COL 3811; §9, ch. 16999, 1935; am. §1, ch. 28112, 1953.

Am. §1, ch. 25148, 1949; the material in this section was formerly included in §576.11; material formerly in §576.07 Is now Included In § 576.0+; sub. § (2) am. § 6, ch. 29793, 1955.

576.08 Action by party entitled to recover damages under this chapter.-

(1) Any person purchasing commercial fer­tilizer from any manufacturer or dealer or agent who shall discover upon an analysis made by the state chemist or otherwise pro­vided by this chapter that he is entitled to recover damages for reason of variation from guaranteed analysis greater than the tolerances permitted under this chapter, shall recover in any action he may institute upon proof of the variation the amount to which he may be en­titled under the provisions of penalties.

(2) In the event of the recovery of said penalty in a court action, the said penalty shall be in the form of a judgment in the law court of this state having jurisdiction of the amount involved and the parties. Said law action shall be prosecuted and defended in ac­cordance with the usual practices and pro­cedure in such court.

(3) In case of any sale by any manufac­turer or agent of any person or persons re­siding out of the state, manufacturing, com­pounding, or furnishing for sale any such commercial fertilizer, the purchaser thereof may at his option proceed by attachment as now provided by law, in case of nonresident and absconding debtors, against any such commercial fertilizer, rights or credits of any person selling, manufacturing, compounding, or furnishing said commercial fertilizer, when such commercial fertilizer, rights, or credits can be found within the limits of this state.

(4) In case a shipment of commercial fer. tilizer in lots of one or more tons includes more than one brand, or is consigned to dif­ferent purchasers and delivered at destination in the same car, or by the same boat or vessel at the same time, analysis of one sample taken according to law and the rules and regulations concerning the same, representing any one brand and guaranty, shall be considered repre­sentative of and applying to all the fertilizer of that brand included in such shipment and shall entitle each purchaser of fertilizer of that brand contained in such shipment to the remedies provided by this chapter for adultera­tion of or deficiency in one or more plant food elements.

(5) Any certificate of analysis required or provided for by this chapter, when properly verified, shall be competent evidence in any court of law or equity in this state.

Hlstory.-§10, ch. 4983, 1901; OS 1272; ROB 2406; §4, eh. 10128, 1925; COL 3815 ; §10, ch. 16999, 1935.

Am. §1, ch. 25148, 1949; material contained in this sec­tion was formerly §576.19; tor forms tor fertilizer tags, formerly covered by this section, see §576.05 ; sub. § (1) am. ~ 7, ch. 29793, 1955.

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AGRICULTURAL FERTILIZERS Ch. 576

576.081 Commercial values.-The commer­cial value used in assessing penalties for any deficiency shall be that established by the state chemist in his latest published report in the year in which such deficiency occurs.

Hlstory.-Comp. §1, ch. 25148, 1949.

576.082 Tolerances.-Tolerances shall be those set by the commissioner of agriculture in technical rules and regulations adopted and promulgated by him, as recommended to him by the technical committee as provided in and under §576.09; provided that the tolerances fixed and established in §576.082, shall be and remain in full force and effect until super­seded by tolerances fixed and set by rules and regulations adopted and promulgated by the commissioner of agriculture under §576.082 as herein amended.

Hlstory.-§1, ch. 25148, 1949; §8, ch. 29793, 1955.

576.083 Penalties for deficiencies and re­funds to buyer.-

Deficiencies and penalties for same shall be as follows:

Where the commercial value of the goods in which a deficiency in primary plant food has been found equals or exceeds the amount guaranteed by the manufacturer, no penalty shall be assessed, provided that no element of primary plant food is deficient more than one-

ing the amount of said liabilities and shall also notify the commissioner of agriculture in writ­ing that such payment has been made.

( 4) If any fertilizer is found to be short weight by an inspector of the department of agriculture, the manufacturer or guarantor shall, within thirty days of receipt of notice of such shortage, pay to the commissioner of agriculture three times the value of the short­age based on the invoice price of the goods to the consumer. Said penalty shall be deposited in the state treasury to the credit of the gen­eral inspection fund from which said general inspection fund there shall be paid to the con­sumer, upon approval of the commissioner, the amount of said penalty to which the consumer is entitled.

(5) In any case wherein the manufacturer or dealer or agent fails or refuses to make such payment to the buyer or to the commissioner of agriculture within said sixty days, the buyer may institute legal action against such manu­facturer or dealer or agent for the recovery of the penalties as in this chapter provided, and any judgment against the manufacturer or dealer or agent shall be for double the amount of the penalty and shall include a reasonable attorney's fee and costs.

Hlstory.-§1, ch. 25148, 1949 ; sub. §§ (4), (5) am. §§10, 11, ch. 29793, 1955.

half of one actual per cent when the guarantee 576.09 Rules and regulations.-does not exceed ten per cent nor more than (1) This chapter shall be administered .and one actual per cent when the guarantee ex- its provisions and all rules and regulations ceeds ten per cent. If the commercial value adopted and promulgated hereunder shall be found fails to equal or exceed that which is enforced by the commissioner of agriculture of guaranteed, a penalty shall be assessed based the state. on the actual deficiency found. No overage in any secondary plant food shall compensate (2) All rules and regulations made, adopted, for a deficiency in primary plant food nor of and promulgated under authority of this chap­another secondary plant food. Where a de- ter shall be divided into two classes to be known ficiency is found in any plant food, the buyer as "technical rules and regulations" and "ad­shall be entitled to collect an amount from ministrative rules and regulations." the manufacturer of three times the value of (3) All "technical rules and regulations" the deficiency found. adopted and promulgated hereunder shall be

lllotory.-Comp. §1, ch. 25148. 1949. first recommended to the commissioner of agri-576_084 Penalties.- culture by a majority of a "technical commit­

tee" composed of the state chemist of Florida, (1) In tobacco brands of commercial fer- the director of the Florida agricultural experi­

tilizer, penalty for an excess of chlorine of more ment stations, and the director of the Florida than twenty-five per cent of the guarantee, a agricultural extension service. The said "tech­penalty of one hundred per cent of the invoice nical committee" is hereby authorized to recom­value of the goods shall be assessed. No penalty mend rules and regulations perta ining to the shall be assessed for an excess of chlorine of composition and use of commercial fertilizers, less than twenty-five per cent of the guarantee including, without limiting the foregoing gen­and in no case shall a penalty be assessed un- era l terms, the taking and handling of samples, less the chlorine present is one per cent or more. the establishment of tolerances, deficiencies,

(2) In brands of commercial fertilizer other and penalties where not specifica lly provided than tobacco brands the penalty for excess in for in this chapter; to prohibit the sale or use chlorine shall be one-eighth the penalties as in fertilizer of any material proven to be detri­set forth above for excess in tobacco brands. mental to agriculture or of questionable value;

(3) When a manufacturer or dealer or agent to provide for the incorporation into comme~­is liable for the penalties under the provisions cial fertilizer of such other substances as pesb­of this chapter, such manufacturer or dealer cides and provide for proper labeling of such or agent shall make payment to the buyer with- mixture ; and to prescribe the information in sixty days from the date of the receipt of a which shall appear on the tag, other than spe­certificate of analysis of the state chemist show- cifically set forth in this chapter.

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Ch. 576 AGRICULTURAL FERTILIZERS

(4) Any member of the "technical commit­tee" and any person, firm, or corporation manu­facturing, offering for sale, selling, consuming, or otherwise using commercial fertilizer in the state may propose a rule or regulation and such proposal shall be acted upon by the "tech­nical committee" within a reasonable time not exceeding sixty days after it is filed with the state chemist. Any person, firm, or corporation, with offices in or who is a resident of the state, interested in the manufacture, sale, consump­tion, or other use of commercial fertilizer in the state may file his name and address with the state chemist and request that he be furnished with a copy of any proposed rule or regulation, and thereafter the state chemist shall in not less than five days before a meeting of the "techni­cal committee" for the consideration of the pro­posed regulation mail a copy of such proposed regulation to every person so requesting same. Any such person shall have the right to be fully heard in person or through an attorney by the "technical committee" upon any proposed rule or regulation.

(5) It shall be the duty of the commissioner of agriculture within a reasonable time, to either approve or reject and if approved to adopt and promulgate all rules and regulations under the classification "technical rules and regulations" recommended to him by the "tech­nical committee."

(6) The commissioner of agriculture is here­by authorized to make, adopt, and promulgate all rules and regulations under the classifica­tion "administrative rules and regulations" which he shall deem necessary or helpful in the efficient administration and enforcement of this chapter.

(7) All rules and regulations heretofore made and promulgated under existing commer­cial fertilizer laws which are consistent with the

provisions of chapter 576, as herein amended, shall remain in force and effect until super­seded, modified, or repealed as in this chapter provided.

History.-Comp. § § 1, 2(b), ch. 25148, 1949; original section 576.09 Included forms for fertlllzer tag·s, see now §576.05 cover­Ing- forms; sub. § (3) am. §12, ch. 29793, 1955.

576.10 Criminal penalties for violation of this chapter.-Whoever knowingly violates any of the provisions of this chapter by doing any­thing prohibited or by failing or refusing to do anything herein required to be done shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than $500.00 or imprisoned for not more than six months or by both such fine and imprisonment.

History.-§ § 2, 4-6, 12, ch. 4983, 1901; as 3723, 3725; ROB 5708, 5710, 5712; §2, ch. 9127, 1923; COL 7931, 7933; § § 2, 5, 7, 9, ch. 16999, 1935; COL 1936 Supp. 7935-7937, 7943(1); §1, ch. 25148, 1949; § 13, ch. 29793, 1955.

History notes to former §576.10.-§3, ch. 4983, 1901; as 1264; §1, ch. 5660, 1907; ROB 2398; §1, ch. 9127, 1923; §2, ch. 10128, 1925; COL 3807; §1, ch. 14510, 1929; §5, ch. 16999, 1935.

576.11 Remedy by injunction.-In addition to the remedies provided in this chapter and notwithstanding the existence of any adequate remedy at law, the commissioner of agriculture is hereby authorized to make application for injunction to a circuit court or circuit judge and such circuit court or circuit judge shall have jurisdiction upon hearing and for cause shown to grant a temporary or permanent in­junction, or both, restraining any person from violating or continuing to violate any of the provisions of this chapter or rules and l"egula­tions hereunder or for failing or refusing to comply with the requirements of this chapter or . any rule or regulation duly adopted and promulgated; such injunction shall be issued without bond.

History,-§6, ch. 4983, 1901; GS 1268; RGS 2402; CGL 3811; §9, ch. 16999, 1935; §1, ch. 25148, 1949; material formerly ~~l~~=t. In §576.11 Is now §576.07; §28, ch, 29737, 1955; §20,

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