The Florida Alcohol Beverage Law: A Body of Law in Flux and Change.

• Author: Terminello, Louis J.

It is common knowledge that beverage alcohol is a highly regulated commodity in the United States. The 21st Amendment of the U.S. Constitution established that the states have virtually plenary control over the intrastate sales, service, and consumption of alcohol. The federal government's purview rests in the interstate commerce aspect of the commodity and, in particular, the importation, manufacture, and labeling of alcohol. Title 27 of the U.S. Code of Federal Regulations codifies these legal requirements in manageable form.

State control over beverage alcohol is codified in heftier texts--that is the statute books and code sections of all 50 states. Florida, where the story that follows takes place, has designated F.S. Chs. 561-569 and F.A.C.R. 61A-1 through 61A-5 as its body of alcohol beverage law. Collectively these laws and regulations are referred to as the Beverage Law. This term of art is a living and breathing thing. Statutory interpretation and code section validity have been tested in both declaratory statements, administrative hearings, and often in the courts of the state of Florida. The litigants in these matters are easy to identify. They are those with vested interests, namely the actors that operate within the three-tier system.

The three-tier system, the bedrock principle of the Beverage Law, establishes that there must be manufacturers, distributors, and retailers of beverage alcohol and never must the three meet (with limited exceptions). These distinct and entrenched camps, guided by their own interests, often face off as adversaries in the battles and struggle to interpret the Beverage Law. Collectively, these tiers have expended significant treasure in the courtroom and on the legislative floor to ensure that they and the orthodox concept of the three-tier system will not perish from this earth. In the absence of the three-tier system, certain industry members could cease to exist.

Three Cases: Statutory Interpretation and Intervention

What follows is the story of a trio of lawsuits brought in Florida that began not in the courts but as petitions for declaratory statements tendered to the Florida Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco (DABT) and as an administrative rule challenge in Florida's Division of Administrative Hearings (DOAH). However, the First District Court of Appeal ultimately resolved all these matters. Two of these cases were intervened in by trade associations composed of distributors opposing a retailer. All three cases while standing for a specific proposition of law also affect future interpretations of the Beverage Law. Stated from the outset, that proposition is if an activity is not specifically and explicitly prohibited, the act complained of is likely permitted within the context of the Beverage Law.

The first two cases concerned the grant and use of an alcohol beverage storage permit known as an off-premises storage permit or OPS. An OPS allows licensed retailers of beverage alcohol to store alcohol off its licensed premises (licensed premises defined broadly as its brick-andmortar store). An OPS can take the form of a fully operational warehouse with multi-level racks, forklifts, and warehouseman. It may also consist of a sole shipping container secured by a padlock that sits atop the tarmac of nearly vacant parking lot. The OPS, as part of the permitting process, must be inspected and approved by DABT prior to its use.

The statutory authority for the existence of the OPS can be found in F.S. [section]562.03. F.A.C.R. 61A-4.020 provides guidance on the approval process and related operational matters for the storage facility. A Florida vendor of alcoholic beverages is permitted to maintain an unlimited number of OPS facilities with no state-imposed fee. The rule does, however, limit where a vendor may operate an OPS: "Such permits can be obtained from the [d]ivision without fee, provided that the storage room is located in the same county as the parent place of business of the licensee...." (1)

To complicate matters further, there are many types of retail alcohol beverage licenses available under the Beverage Law. Most of these...