Section 19F. (a) The commission may issue to an applicant, who: (1) operates a winery whose total annual production, including that of its affiliates, franchises and subsidiaries, is 30,000 gallons of wine or more; provided, however, any wine or wine product fermented from other than grapes shall not be included in the aforementioned 30,000 gallon figure; and (2) is authorized by the appropriate licensing authority to manufacture, export and sell wine, a large winery shipment license to sell and ship wine or winery products produced by the winery directly to consumers; provided that the winery has not contracted with or has not been represented by a wholesaler licensed under section 18 for the preceding 6 months.
(b) The commission may issue to an applicant who: (1) operates a winery whose total annual production, including that of its affiliates, franchises and subsidiaries, is less than 30,000 gallons of wine; provided, however, any wine or wine product fermented from other than grapes shall not be included in the aforementioned 30,000 gallon figure; and (2) is authorized by the appropriate licensing authority to manufacture, export and sell wine, a small winery shipment license to sell and ship wine or winery products produced by the winery: (i) at retail directly to consumers; (ii) at wholesale in kegs, casks, barrels or bottles to a person licensed under section 12, 13 or 14; (iii) at wholesale for the sole purpose of resale in containers in which wine was delivered to any person licensed under section 15; provided, that all direct deliveries of wine from a winery to a section 15 licensee shall not exceed 250 cases of wine annually; (iv) at wholesale to a person licensed under section 18, 19 or 19B; (v) at wholesale to churches and religious societies, educational institutions, incorporated hospitals, homes for the aged, manufacturers of food products and manufacturers of drugs and chemicals under section 28; or (vi) at wholesale to a registered pharmacist holding a certificate of fitness under section 30.
(c) The annual license fee for a license issued under this section shall be $100 per winery; provided, however, that an affiliate, franchise or subsidiary thereof shall require a separate license. The applicant shall provide the commission and the department of revenue with a true copy of the applicable alcoholic beverage licenses to manufacture, export and sell its wine as issued by the appropriate licensing authority. A copy of the wine shipment license, obtained under this section, shall be sent by the commission to the department of revenue to be kept on file.
(d) A person licensed under this section may ship wine in accordance with section 22.
(e) A household shall not receive delivery of more than 240 liters of wine per year from licensees under this section.
(f) A person licensed under this section shall: (i) report monthly to the commission and the department of revenue the total number of gallons of wine shipped into the commonwealth for the preceding month; (ii) pay to the department of revenue, under the department's rules and regulations, all taxes due, the amount of such taxes to be calculated as if the sale were at the location where the delivery is made; provided, however, that the licensee shall pay, for each shipment of wine, the excise levied on importations of wine calculated under section 21; and (iii) upon request, allow the commission or the department of revenue to perform an audit of the licensee's records.
(g) The commission shall enforce the requirements of this section, by administrative proceedings, against a licensee who ships wine in violation of this section, as follows:--
(i) for a first violation, by a fine of $100;
(ii) for a second violation, by a suspension of the winery's direct shipment license for not more than 1 year, a fine of $500, or both;
(iii) for a third violation, by prohibition of the winery from making any shipments of wine under this section or through a wholesaler or importer under section 18, by a fine of up to $5,000, or both; provided, however, that after 1 year, the winery may apply for the authority to ship wine through a wholesaler or importer under said section 18; and
(iv) if a violation of this section involves a sale or delivery to a person under 21 years of age, a first offense may be punished by suspension of the winery's direct shipment license for not more than 1 year; and a second offense may be punished by a prohibition of the winery from making any shipments of wine under this section or through a wholesaler or importer under section 18; provided, however, that after 1 year the winery may apply for the authority to ship wine through a wholesaler or importer under section 18; provided, however, that nothing in this clause shall preclude punishment under section 34.
(h) No person shall direct ship wine to consumers without a license to sell and ship wine. A person who manufactures, transports, imports, exports or receives wine in violation of this chapter shall be deemed to have engaged in a deceptive act or practice under chapter 93A; provided, however, that a common carrier acting in the ordinary course of business shall be exempt from this subsection.
(i) The commission may promulgate rules and regulations necessary to effectuate its alcohol oversight, licensing and enforcement purposes under this chapter as they relate to this section, including rules and regulations for reporting violations of this section and the requirement of sufficient documentation of a winery's annual wine production. The department of revenue may promulgate rules and regulations necessary to effectuate the tax oversight, collection and enforcement provisions of the General Laws as they relate to this section. The rules and regulations shall be submitted to the joint committee on state administration and regulatory oversight and the joint committee on consumer protection and professional licensure before promulgating such rules and regulations.
(j) The commission shall issue an annual report to the house and senate committees on ways and means and the joint committee on consumer protection and professional licensure, which shall include, but not limited to, a determination of licenses issued, a review of violations and enforcement measures under this section and an analysis of the need for changes in the laws and regulations relative thereto.
Chapter 138: Section 19F. Direct wine shipper licenses; regulation and enforcement by commission
[ Text of section as amended by 2014, 165, Sec. 162 effective January 1, 2015. See 2014, 165, Sec. 286. For text effective until January 1, 2015, see above.]
Section 19F. (a) The commission may issue a direct wine shipper license pursuant to this section to any person, firm or corporation that holds a federal basic permit pursuant to the federal Alcohol Administration Act, compiled in 27 U.S.C. § 201 et seq.; holds a license in the commonwealth or any other state to manufacture and export wine; and is in the business of manufacturing, bottling or rectifying wine.
(b) Under this section, a direct wine shipper licensee may make sales and delivery of wine directly to residents of the commonwealth who are 21 years of age or older, for personal use and not for resale.
(c) The fee for a license issued pursuant to this section shall be $300 per winery; provided that an affiliate, franchise or subsidiary of the winery shall require a separate license. Licenses shall be renewed annually at a fee of $150. If a direct wine shipper's license expires and is not renewed, a subsequent application shall be treated as an application for a new license. An applicant for a direct wine shipper license shall provide the commission and the department of revenue with a true copy of the applicable alcoholic beverage license to manufacture, export and sell the applicant's wine as issued by the appropriate licensing authority. A copy of the direct wine shipment license obtained pursuant to this section shall be provided by the commission to the department of revenue.
(d) A direct wine shipper licensee under this section shall ship wine in accordance with section 22.
(e) A direct wine shipper licensee may ship up to 12 cases of wine, containing not more than 9 liters of wine per case, per year to a resident of the commonwealth.
(f) A licensee under this section shall: (i) report yearly to the commission and the department of revenue the total number of gallons of wine shipped into the commonwealth for the preceding year; (ii) pay to the department of revenue, under the department's rules and regulations, for each shipment of wine the excise levied on importations of wine calculated under section 21 and any and all other applicable taxes; and (iii) upon request, allow the commission or the department of revenue to perform an audit of the direct shipper licensee's records.
(g) No person, firm or corporation shall ship wine directly to consumers without a direct wine shipper license. A person, firm or corporation who manufactures, transports, imports or exports wine in violation of this section shall be deemed to have engaged in a deceptive act or practice under chapter 93A.
(h) Whoever ships wine in violation of this section shall be subject to the following penalties: for a first violation, by suspension of the direct wine shipper license for 60 days or a fine of $500, or both; for a second violation, by suspension of the direct wine shipper license for 120 days or a fine of $1,000, or both; and for a third or subsequent violation, by suspension of the direct wine shipper license for 1 year or by a fine of $3,000, or both. A licensee whose license has been suspended for 1 year or more may apply for a direct wine shipper license and shall be treated as a new applicant. The commission may revoke a direct wine shipper license after 3 or more violations.
(i) If a violation of this section involves the sale or delivery of wine to a person under 21 years of age, the commission may impose the following additional penalties: for a first violation, by suspension of the direct shipper license for 180 days or a fine of $1,000, or both; for a second violation, by suspension of the direct shipper license for 1 year or a fine of $2,000, or both; and for a third or subsequent violation, by suspension of the direct shipper license for 2 years or by a fine of $5,000, or both. Nothing in this section shall preclude enforcement of violations of section 34.
(j) The commission shall promulgate rules and regulations to effectuate this section. The department of revenue may promulgate rules and regulations necessary to effectuate the oversight and collection of taxes due to the commonwealth as a result of the sale and shipment of wine into the commonwealth pursuant to this section.
(k) The commission shall issue an annual report to the joint committee on consumer protection and professional licensure, which shall include, but not be limited to, the number of direct wine shipment licenses issued and a review of violations and enforcement measures taken pursuant to this section.
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