210.18 Penalties for tax evasion; reports by sheriffs.—
(1) Any person who possesses or transports any unstamped packages of cigarettes upon the public highways, roads, or streets in the state for the purpose of sale; or who sells or offers for sale unstamped packages of cigarettes in violation of the provisions of this part; or who willfully attempts in any manner to evade or defeat any tax imposed by this part, or the payment thereof, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Any person who has been convicted of a violation of any provision of the cigarette tax law and who is thereafter convicted of a further violation of the cigarette tax law is, upon conviction of such further offense, guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) Except as otherwise provided in this section, any person who fails, neglects, or refuses to comply with, or violates the provisions of, this part or the rules adopted by the division under this part commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Any person who has been convicted of a violation of any provision of the cigarette tax law and who is thereafter convicted of a further violation of the cigarette tax law is, upon conviction of such further offense, guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) Any person who falsely or fraudulently makes, forges, alters, or counterfeits any stamp prescribed by the division under the provisions of this part; or causes or procures to be falsely or fraudulently made, forged, altered, or counterfeited any such stamp; or knowingly and willfully utters, purchases, passes or tenders as true any such false, altered, or counterfeited stamp; or, with the intent to defraud the state, fails to comply with any other requirement of this part commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4)(a) Any person or corporation that owns or is in possession of any cigarettes upon which a tax is imposed by the cigarette law, or would be imposed if such cigarettes were manufactured in or brought into this state in accordance with the regulatory provisions of the cigarette law, and upon which such tax has not been paid is, in addition to the fines and penalties otherwise provided in the cigarette law, personally liable for the amount of the tax imposed on such cigarettes; and the division may collect such tax from such person or corporation by suit or by restitution if the taxpayer is convicted, found guilty, or pleads nolo contendere or guilty to any crime under this chapter. This paragraph is applicable even if adjudication is withheld.
(b) This subsection does not apply to a manufacturer or distributor licensed under the cigarette law, to a state bonded warehouse, or to a person possessing not in excess of three cartons of such cigarettes, which cigarettes were purchased by such possessor outside the state in accordance with the laws of the place where purchased and brought into this state by such possessor. The burden of proof that such cigarettes 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 cigarettes.
(5)(a) All cigarettes on which taxes are imposed by the cigarette law, or would be imposed if such cigarettes were manufactured in or brought into this state in accordance with the regulatory provisions of such law, which are found in the possession or custody or within the control of any person for the purpose of being sold or removed by him or her in fraud of the cigarette law or with design to evade payment of such taxes may be seized by the division or any supervisor, sheriff, deputy sheriff, or other law enforcement agent and shall be forfeited to the state.
(b) This subsection does not apply to a person possessing not in excess of three cartons of cigarettes, which cigarettes were purchased by such possessor outside the state in accordance with the laws of the place where purchased and brought into this state by such possessor.
(6)(a) Every person, firm, or corporation, other than a licensee under the provisions of this part, who possesses, removes, deposits, or conceals, or aids in the possessing, removing, depositing, or concealing of, any unstamped cigarettes is presumed to have knowledge that they have not been taxed and commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) This section does not apply to a person possessing not in excess of three cartons of such cigarettes purchased by such possessor outside the state in accordance with the laws of the place where purchased and brought into this state by such possessor. The burden of proof that such cigarettes 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 cigarettes.
(7) Any sheriff, deputy sheriff, police officer, or state law enforcement officer, upon the seizure of any unstamped cigarettes under this section, shall promptly report such seizure to the division or its representative, together with a description of all such unstamped cigarettes seized, so that the state may be kept informed as to the size and magnitude of the illicit cigarette business. The division shall keep records showing the number of seizures and seized cigarettes reported to, or seized by, the division.
(8)(a) It is unlawful for any person to conspire with any other person or persons to do any act in violation of the provisions of this part, when any one or more of such persons does or commits any act to effect the object of the conspiracy.
(b) Any person who violates the provisions of this subsection:
1. If the act conspired to be done would constitute a misdemeanor, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
2. If the act conspired to be done would constitute a felony, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(9) Notwithstanding any other provision of law, the sale or possession for sale of counterfeit cigarettes by any person or by a manufacturer, importer, distributing agent, wholesale dealer, or retail dealer shall result in the seizure of the product and related machinery by the division or any law enforcement agency.
(10) It is unlawful to sell or possess with the intent to sell counterfeit cigarettes, as defined in s. 210.01(22).
(a) A person who does not hold a permit or holds a retail permit under the provisions of this chapter and who violates this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, and is subject to the imposition of fines and additional penalties as follows:
1. If the quantity of counterfeit cigarettes sold or possessed with the intent to sell is less than two cartons or the equivalent, the fine for a first violation shall not exceed $1,000 or five times the retail value of the counterfeit cigarettes, whichever is greater. A subsequent violation may result in the imposition of a fine not to exceed $5,000 or five times the retail value of the counterfeit cigarettes, whichever is greater, and shall result in revocation of the retail permit by the division.
2. If the quantity of counterfeit cigarettes sold or possessed with the intent to sell is two cartons or more or the equivalent, the fine for a first violation shall not exceed $2,000 or five times the retail value of the counterfeit cigarettes, whichever is greater. A subsequent violation may result in the imposition of a fine not to exceed $50,000 or five times the retail value of the counterfeit cigarettes, whichever is greater, and shall result in revocation of the retail permit by the division.
(b) A person who holds a permit, other than a retail permit, under the provisions of this chapter and who violates this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, and is subject to the imposition of fines and additional penalties as follows:
1. If the quantity of counterfeit cigarettes sold or possessed with the intent to sell is less than 10 cartons or the equivalent, the fine for a first violation shall not exceed $1,000 or five times the retail value of the counterfeit cigarettes, whichever is greater. A subsequent violation may result in the imposition of a fine not to exceed $5,000 or five times the retail value of the counterfeit cigarettes, whichever is greater, and shall result in revocation of the permit by the division.
2. If the quantity of counterfeit cigarettes sold or possessed with the intent to sell is 10 cartons or more or the equivalent, the fine for a first violation shall not exceed $2,000 or five times the retail value of the counterfeit cigarettes, whichever is greater. A subsequent violation may result in the imposition of a fine not to exceed $50,000 or five times the retail value of the counterfeit cigarettes, whichever is greater, and shall result in revocation of the permit by the division.
For purposes of this subsection, any counterfeit cigarettes seized by the division shall be destroyed.
(11) The division shall create a toll-free number for reporting violations of this part. Upon a determination that a violation has occurred, the informant who provided the information that led to the determination shall be paid a reward of up to 50 percent of the fine levied and paid under this section. A notice must be conspicuously displayed in every location where cigarettes are sold which contains the following provision in conspicuous type: “NOTICE TO CUSTOMER: FLORIDA LAW PROHIBITS THE POSSESSION OR SALE OF UNSTAMPED CIGARETTES. REPORT VIOLATIONS TO (TOLL-FREE NUMBER). YOU MAY BE ELIGIBLE FOR A CASH REWARD.” This notice must be provided at the expense of the retail dealer.
Cited 23 times | Published | Supreme Court of Florida
...943.46-943.464: (1) "Racketeering activity" means to commit, to attempt to commit, to conspire to commit, or to solicit, coerce, or intimidate another person to commit: (a) Any crime which is chargeable by indictment or information under the following provisions of the Florida Statutes: 1. Section 210.18, relating to evasion of payment of cigarette taxes....
J. Jackson Walter Executive Director Department of Business Regulation Tallahassee QUESTIONS: 1. Under s. 210.18 (6)(a), F....
...Under the statutes which govern the Division of Alcoholic Beverages and Tobacco, seized contraband unstamped cigarettes must be forfeited to the state and may not be returned to the convicted violator. Contraband cigarettes may not be returned to the possessor. Section 210.18 (6)(a), F....
...nce of the above-quoted statutory provision as an alternative to the established criminal penalties for cigarette tax evasion. The title of Ch. 77-421 sheds no significant light on the legislative purpose in adding the proviso to paragraph (6)(a) of s. 210.18 , F. S. It states only that paragraph (6)(a) and other subsections of s. 210.18 relate `to evasion of the cigarette tax.' The section heading or subtitle placed and enacted by the Legislature may be considered in determining the intendment of the Legislature....
...or conspiring to do any of such prohibited acts. An administrative agency may not, of course, impose any penalty except as may be authorized or provided for by statute. Section 18, Art. I, State Const. Criminal penalties such as those prescribed in s. 210.18 , and s. 775.082 , s. 775.083 , or s. 775.084 , F. S., which are by reference incorporated into s. 210.18 , may be imposed only by the courts, absent some statute expressly empowering an administrative agency to impose and collect a penalty other than a sentence of imprisonment. I note, parenthetically, that s. 210.18 (4)(a) provides that any person or corporation owning or possessing any cigarettes upon which a tax is imposed by the cigarette law and upon which such tax has not been paid is, in addition to the fines and penalties otherwise provided in t...
...or otherwise. See also s. 210.02 (6), F. S., making the person receiving cigarettes from outside the state (other than a distributing agent or wholesale dealer) responsible for the tax on such cigarettes and the payment of the same to the division. Section 210.18 (4)(a), however, does not authorize the division to impose or collect any `fines and penalties otherwise provided [for] in the cigarette law,' or in s. 210.18 . AS TO QUESTION 1: Section 2 of Ch. 77-421, Laws of Florida, amended s. 210.18 (6)(a) in such a manner as to make the proscribed acts punishable as second degree misdemeanors as provided in the Florida Criminal Code, s....
...ttes. (Emphasis supplied.) The above-quoted provision clearly does not purport to empower the Division of Alcoholic Beverages and Tobacco of the Department of Business Regulation to impose or collect any penalty, civil or criminal, from violators of s. 210.18 (6)(a), F....
...ed provisions of paragraph (6)(a). The alternative penalty or punishment authorized by the 1977 amendment is at least in the nature of a fine such as those prescribed in s. 775.083 , F. S.; and `when specifically authorized by statute,' violators of s. 210.18 (6)(a) `may be sentenced to pay a fine in lieu of any [imprisonment] punishment described in s....
...minal violation is defined by s. 775.08 (3) to mean . . . any offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by no other penalty than a fine, forfeiture, or other civil penalty. Since s. 210.18 (6)(a), F....
...S., incorporates by reference s. 775.082 , s. 775.083 , or s. 775.084 , F. S., those sections together with any other applicable section or part of the Florida Criminal Code, such as ss. 775.021 (2) and 775.08 , F. S., must be considered or read in pari materia with s. 210.18 , and construed with reference to each other....
...Bowden, 150 So. 259 (Fla. 1933); and Mann v. Goodyear Tire and Rubber Company, 300 So.2d 666 (Fla. 1974). So construed in light of the considerations and circumstances above delineated, I am of the opinion that the proviso set forth in the last sentence of s. 210.18 (6)(a) authorizes but does not require the sentencing court to sentence a violator of s. 210.18 (6)(a), adjudged by the court to be guilty of a `noncriminal violation' as defined by s. 775.08 (3) and limited by s. 775.082 (5), to pay a `fine, forfeiture, or other civil penalty' in the amount equal to double the tax authorized by s. 210.02 , F. S.; or, alternatively, such court may sentence a violator of s. 210.18 (6)(a), adjudged by the court to be guilty of a misdemeanor of the second degree, to pay a penalty, or a fine, in an amount equal to double the amount of such tax on the unstamped cigarettes ` in lieu of the penalties provided in [s....
...rmined otherwise, I am of the opinion that the officers of the Division of Alcoholic Beverages and Tobacco are not vested by law with any discretion to impose and collect the tax and penalty due upon conviction in a misdemeanor possession case under s. 210.18 (6)(a), F. S., in lieu of filing misdemeanor possession charges. To construe the proviso so as to allow such discretion or option in the division (or in a violator of s. 210.18 (6)(a) adjudged by the court to be guilty of the proscribed acts) would raise serious constitutional issues which this office may not conclusively resolve and bring the proviso into collision with settled rules of constitutional and decisional law....
...or punishment provided by law are matters within the exclusive jurisdiction of the judiciary. AS TO QUESTION 2: No statute authorizes the Division of Alcoholic Beverages and Tobacco or the court to return seized contraband to a convicted violator of s. 210.18 (6)(a), F. S. — such contraband must be seized and forfeited to the state under s. 210.18 (5)(a) or other applicable statutes; and, unless such other statutes authorize the division to return the contraband to a convicted violator and specify the circumstances in which and conditions upon which such return may be made, it cannot be done. Any tax owed may be collected by the division pursuant to ss. 210.02 (6), 210.12 (3), 210.14 , and 210.18 (4)(a), F....
...S., unless otherwise ordered by a court or otherwise specifically provided for in other applicable statutes. AS TO QUESTION 3: In view of my answers to your first two questions, your third question does not require a response. In summary, I conclude that s. 210.18 (6)(a), F....
...by the courts in the absence of express statutory authority for an administrative agency to impose a penalty other than imprisonment. No statute authorizes the division or the courts to return seized contraband cigarettes to a convicted violator of s. 210.18 (6)(a), and such contraband must be seized and forfeited to the state under s. 210.18 (5)(a), or other applicable statutes. Nay tax owed may be collected by the division in the manners prescribed in ss. 210.02 (6), 210.12 (3), 210.14 , and 210.18 (4)(a), F....
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