It’s natural to want to expand a successful brewery and taproom to new parts of the state. Before launching that second Florida location for your brewery or taproom, Florida brewery owners should pay attention to the following three considerations.
Continue ReadingBefore selling alcoholic beverages in another state–whether directly to consumers (where permitted) or through an in-state distributor–a supplier must know what preliminary compliance is required in that state. In most cases, an out-of-state supplier is required to obtain permission from one or more government agencies of the destination state. While each state’s requirements are different, an out-of-state supplier is required to register with or receive a permit or license from the destination state’s (1) alcoholic control agency, (2) business companies agency, and/or (3) revenue agency. 1. Licensing by the Destination State’s Alcohol Control Agency Most states require out-of-state alcoholic beverage suppliers (sometimes called out-of-state shippers) to be licensed by the destination state’s alcohol control agency. This is true whether the supplier is permitted to send alcoholic beverage products directly to consumers in the destination state–as is often the case for wineries–or the supplier is contracting to sell and cause delivery to licensed distributor or wholesaler in the destination state. Out-of-state brokers and importers, who may not ever take possession of alcoholic beverage products, must often be licensed as out-of-state suppliers before arranging deliveries to an in-state distributor. A prime example of the licensure required for out-of-state suppliers exists in Georgia. Before a brewery, winery, or distillery, or an alcoholic beverage broker cause products to be delivered to a Georgia wholesaler, it must obtain an Out-of-State Supplier license issued by the Georgia Alcohol & Tobacco Division. Georgia’s Out-of-State Supplier licensing process requires submitting personnel statements, citizenship affidavits, and a tax liability bond. Georgia, like many other states, also requires the out-of-state supplier to identify the in-state licensed wholesaler it has appointed and identify the brands that will be sold in the state. And, of course, the Georgia Alcohol & Tobacco Division charges a licensure fee. 2. Qualification to Do Business by the Destination State’s Business Companies Agency Prior to being licensed as an out-of-state supplier in many states, the supplier is required to be qualified to do business in the destination in state. Qualifying or registering to do business in a state does not apply solely in the context of alcoholic beverage, it is a general requirement for any foreign business company that will be doing more than a little business in a state. Qualifying to do business in a state generally requires registration with the state’s business companies agency, which is often part of the Secretary of State’s office. For example, out-of-state suppliers who want to make sales in Wyoming must first register through the Wyoming Secretary of State (see reference in this Wyoming Liquor Division Licensing Guide). The registration process involves providing basic information about the company, designating an in-state Registered Agent, and paying an annual registration fee. The requirement of an in-state Registered Agent can provide a challenge for out-of-state companies. Several companies provide Registered Agent services for every state, for an annual fee. An internet search for “registered agent services” provides a number of options. 3. Register with the Destination State’s Revenue Agency Even in situations where an out-of-state supplier is not required to be licensed by the destination state’s alcoholic beverage agency, it might be required to register with the state’s revenue agency. This is most often the case where the state separates alcoholic beverage regulation and alcoholic beverage excise tax collection between two agencies: an alcoholic beverage agency and state revenue agency. For example, in New York, out-of-state suppliers are treated as “distributors” for alcoholic beverage excise taxes. They are required to register with the New York Department and Finance. Do you have any questions about selling alcoholic beverages outside your home state? Contact us at contact@brewerlong.com to schedule a consultation with a beverage attorney. Because we’re attorneys: Disclaimer.
Continue ReadingThe terms and conditions for popular food and alcohol delivery service apps may be incompatible with the Florida Beverage Law’s prohibition on alcohol home delivery by breweries and craft distilleries. Florida Breweries and Craft Distilleries are Prohibited from Making Deliveries to Customers The Florida Beverage Law (specifically Florida Statutes Section 561.57(1)) generally allows licensed alcohol vendors to accept remote orders from retail customers and deliver the ordered products to the customers. These permitted deliveries can be made either in vehicles owned or leased by the vendor or by third party delivery providers under contract with the vendor. This is what allows customers in Florida to order beer, wine, or liquor from a grocery store, alcohol package store, or most other licensed vendors and get delivery at home. Not so for Florida breweries and craft distilleries, however. The Florida Beverage Law specifically prohibits brewery taprooms and craft distilleries to make deliveries away from their taprooms or gift shops. Regarding craft breweries, the Florida Beverage Law provides: A manufacturer possessing a vendor’s license under this subsection is not permitted to make deliveries under s. 561.57(1). Florida Statutes Section 561.221(2)(d) (2021). Florida Statutes Section 561.221(2) specifically authorizes breweries to have licensed taprooms, but subsection (d) provides that these taprooms are not allowed to make deliveries according Section 561.57(1). Craft distilleries are also specifically prohibited from making deliveries away from their gift shops: A craft distillery may not ship or arrange to ship any of its branded products or any other alcoholic beverages to consumers and may sell and deliver only to consumers within the state in a face-to-face transaction at the distillery property. Florida Statutes Section 565.03(2)(f)3. (2021). When it comes to delivery services, here is the key question: Does the delivery service app rely on delivery providers that are the agent of the seller or the customer? If the app relies on delivery providers that are the agents of the seller, then the Florida Beverage Laws clearly prohibit breweries and craft distilleries to make sales through those services. On the other hand, if the app’s delivery providers are the agents of the the customer or the app itself, then breweries and craft distilleries can make sale through those services. The big problem? Delivery service apps don’t always make clear the role of the delivery provider–as agent of the seller or the customer. Following is a brief review of the terms and conditions (as of November 2021) of 6 popular food and alcohol delivery service apps, to get at this question of agency. Grubhub – Probably Agent of the Seller Grubhub’s terms of service do not clearly define the role of the delivery provider. However, the terms suggest that it is more likely the case that the delivery provider is the seller’s agent. Grubhub is a virtual marketplace Platform that connects hungry diners with third-party service providers, including local restaurants and independent delivery service providers. You may order food through the Platform to be delivered from particular restaurants, including their authorized licensees and franchisees, or other purveyors of food in cities throughout the United States and other territories where Grubhub provides such Services (collectively, the “Restaurants”). Grubhub is not a delivery company or a common carrier. Some deliveries are provided by Grubhub’s network of independent delivery service providers (“Delivery Partners”). Delivery Partners have entered into agreements with Grubhub which require them to comply with all applicable federal, state, and local laws, rules and regulations, including, without limitation, traffic laws, requirements of the applicable motor vehicle agency, and applicable insurance requirements. By accessing the Platform, you agree and acknowledge that Delivery Partners are solely responsible for, and Grubhub shall not be liable or responsible for, the delivery services provided to you by any Delivery Partner or any subcontractors of Delivery Partners, or any acts, omissions, errors or misrepresentations made by any Delivery Partner. https://www.grubhub.com/legal/terms-of-use (emphasis added) While it’s clear that the Delivery Partners are not Grubhub’s agent, it is not clear whether they are the agents of the sellers or the customers. However, the terms indicate that the orders are “delivered from particular restaurants,” suggesting that the delivery process starts with the seller nor the customer. This leans in favor of concluding that the Delivery Partner is the seller’s agent, in which case Florida breweries and craft distilleries may be prohibited from using them. Uber Eats – Agent of the Seller Things are a bit clearer for Uber Eats, but not in a manner that favors their use by breweries and craft distilleries. For the avoidance of doubt, (i) [Uber] is an unlicensed entity that facilitates the promotion, marketing, and/or sale of Alcohol Items by third parties via the App(s); and (ii) Merchant is a licensed seller of alcoholic beverages that wishes to sell Alcohol Items via the App(s). Orders for Alcohol Items solicited via the App(s) will be transmitted to Merchant. Merchant is responsible for, will be clearly identified during, and shall control the sale of any orders for Alcohol Items, including any decisions regarding accepting, fulfilling, and rejecting orders for Alcohol Items. Each Delivery Person shall deliver Alcohol Items under and pursuant to Merchant’s Required Licenses and, as necessary, as Merchant’s third-party beneficiary. https://www.uber.com/legal/en/document/?name=uber-eats-merchant-alcohol-terms-of-use&country=united-states&lang=en (emphasis added) In this case, it’s more clear that (a) the Uber Eat app is a tool for sales by the seller, and (b) the Delivery Person is acting for an on behalf of the seller. That means that the Florida Beverage Laws most likely prohibit breweries’ and craft distilleries’ sales through Uber Eats. Instacart – Agent of the Customer Unlike Grubhub and Uber Eats, Instacart’s terms point toward the conclusion that the delivery provider is the agent of the customer, not the seller. When you use the Services to place an order for goods, you authorize the purchase of those goods from the Retailers you select and, if you have selected delivery services, the delivery of those goods by Third Party Providers. Unless otherwise specified, you acknowledge and agree that Instacart and the Third Party Provider are collectively acting […]
Continue ReadingWe reviewed the 2021 Florida Craft Distilleries Law in two prior blog posts–2021 Florida Craft Distilleries Law: General Overview and 2021 Florida Craft Distilleries Law: Destination Entertainment Venues–but questions remain. Following are just five questions we have about the new law. Question #1: Can new Florida craft distillery apply directly for the DD(CD) license? It is unclear whether a new craft distillery must first obtain a Florida distillery (DD) license and only then can request designation as a craft distillery (DD(CD)). Concerning licensing of a craft distillery, the 2021 Florida Distilleries Law added the following statutory provision: A distillery may not operate as a craft distillery until the distillery has provided to the [Florida Division of Alcoholic Beverages and Tobacco] written notification that it meets the criteria specified in paragraph (1)(b). Upon the division’s receipt of the notification and its verification that the distillery meets all such criteria, the division shall add the designation of craft distiller on the distillery’s license. Fla. Stat. S. 565.03(2)(a) (2021) The answer to this question is worth $3,000. That is, the annual license fee for a DD license is $4,000, whereas the annual license fee for a DD(CD) license is $1,000. Will the ABT require a new applicant to first pay $4,000 to obtain a DD license before requesting the “craft distillery” designation, or will the ABT allow an applicant to provide the craft distillery written notification at the time of application and pay only $1,000? Question #2: Can Florida breweries with a craft distillery license sell distilled products from their taproom? The 2021 Florida Craft Distilleries Law has already generated strong interest among licensed breweries and wineries wanting to also manufacture and sell distilled products. Nearly all Florida breweries and wineries have an adjoining taproom or tasting room with a vendor license–most often, a 2COP (beer and wine, consumption on premises or carryout) license. Now that Florida craft distilleries are authorized to sell their own distilled products, for consumption on premises, from a “gift shop or tasting room” attached to the distillery, can that be the same space as the brewery taproom or winery tasting room? Where the brewery taproom or winery tasting room has the 2COP license, the answer is probably no–at least until the ABT says otherwise. The premises of a license–the physical space covered by a license–is significant under the Florida Beverage Law. It is unlawful to sell particular alcoholic beverages–whether beer, wine, or distilled spirits– except on the premises covered by the license. See Fla. Stat. S. 562.02. Generally, one licensed premises cannot overlap another licensed premises. The 2021 Florida Craft Distilleries Law authorizes retail sales of distilled spirits as part of the DD(CD) manufacturing license itself, meaning that the distillery’s gift shop/tasting room must be part of the licensed distillery itself. That is, a craft distillery that is attached to a Florida brewery should be permitted to make sales from its owned tasting room that is covered by the craft distillery license, but probably not from a 2COP licensed taproom attached to the brewery. However, the Florida Beverage Law supports at least two exceptions. First, a brewery or winery with a craft distillery, that also has a 4COP (beer, wine, and liquor) licensed taproom or tasting room, should be able to transfer its own distilled products to the 4COP licensed premises for sale under that license. Nothing prohibits a brewery’s taproom having a 4COP quota license or a 4COP-SFS restaurant license. Second, Florida law does allow “special low proof products”, however derived, distilled, mixed, or fermented and which contain less than 6 percent alcohol by volume, to be sold by 2COP licensed vendors. See Fla. Stat. S. 564.06(5)(b). However, the ABT’s existing rule concerning these special low proof products is much more restrictive, limiting the definition of special low proof products to “products sealed by the manufacturer and offered for sale to vendors through licensed distributors in the originally sealed containers.” FAC Rule 61A-3.050. Particularly in light of the 2021 Florida Craft Distilleries Law, this rule may require modification. Question #3: How does a craft distillery obtain a permit to regularly participate in farmers markets? Under the 2021 Florida Craft Distilleries Law, craft distilleries may providing tastings and sales at organized, including farmers markets. The entire statutory provision is here: Craft distilleries may conduct tastings and sales of distilled spirits produced by the craft distilleries at Florida fairs, trade shows, farmers markets, expositions, and festivals. The division shall issue permits to craft distilleries for such tastings and sales. A craft distillery must pay all entry fees and must have a distillery representative present during the event. The permit is limited to the duration and physical location of the event Fla. Stat. 565.17(2) (2021). How will craft distilleries apply for the required permit? Will one permit allow a craft distillery to participate in the same farmers market every week, or will separate permits be required? What will be the cost of each permit? The ABT will have to provide answers to these questions. Question #4: How will Florida craft distilleries comply with the Florida agricultural products requirement? Effective July 1, 2026, Florida craft distilleries will be required to ensure that a minimum of 60 percent of their total finished branded products are distilled in Florida and contain one or more Florida agricultural products. Our sister website and blog, Groves Law, which focuses on the law of Florida agribusiness, already did a deep-dive into what might constitute “Florida agricultural products” for this purpose, but hopefully additional guidance will be provided by the ABT. In addition to what constitutes “Florida agricultural products”, how will the ABT verify that this requirement is met? What records will the distillery be required to keep? Are “total finished branded products” counted by volume or by package? There are a lot of practical questions that must be answered before this requirement becomes effective? Question #5: How many destination entertainment venues (DEVs) will we see? A large part of the 2021 Florida Craft Distilleries Law is focused on […]
Continue ReadingIf life is a highway, where do you stop for a drink? With over 274,000 lane miles–seventh most in the United States (per Cubit’s Blog)–Florida offers a lot of ways for people to get to where they’re going, including breweries, wineries, and distilleries. To help people get there, the Florida Statutes authorize roadway directional signs for qualifying alcoholic beverage manufacturers located in the state. Roadway Signs for Florida Breweries Florida Statutes Section 563.13 authorizes the Florida Department of Transportation to install directional signs on interstate highways and other roads for certain breweries. To qualify, the Florida brewery must produce a minimum of 2,500 barrels of beer per year on the premises. The brewery must be open to the public at least 30 hours per week and must offer tours. A Florida brewery that wishes to apply for a roadway directional sign must apply to the the Florida Department of Transportation and pay the cost of installing and replacing the sign. Roadway Signs for Florida Wineries Certified Florida Farm Wineries are permitted to request a roadway directional signs pursuant to Florida Statutes 599.004. Certified wineries are those that participate in the Florida Department of Agriculture and Consumer Services’ Florida Farm Winery Program. Farm winery certification is limited to wineries that produce at least 250,000 gallons of wine annually (60% or more of which is made from state agricultural products), maintain at least 5 acres of land in Florida, and are open to the public for tours, tastings, and sales at least 30 hours each week. To install a roadway sign, a Certified Florida Farm Winery must apply to the Florida Department of Transportation and pay $250 and the cost of installing the sign. Roadway Signs for Florida Distilleries Directional signs are authorized for qualified Florida craft distilleries (Florida Statutes Section 565.03(6)). To qualify as a craft distillery, the distillery must produce no more than 75,000 gallons of distilled spirits annual and notify the Florida Division of Alcoholic Beverages and Tobacco (ABT). Like breweries and wineries, Florida craft distilleries wanting to have a roadway sign installed must apply to the Florida Department of Transportation and pay the cost of installing the sign. Roadway Sign Application Process The Florida Department of Transportation has authority for installing roadway directional signs. The process for applying for a new sign is governed by Florida Administrative Code Rule 14.51. Requests must be made in writing to the District Traffic Operations Engineer for the Department District where the sign is proposed. Beverage manufacturers that qualify for a roadway sign are not guaranteed to get one. All requests are subject to space availability and take into consideration a variety of factors, including local government recommendations. For roadway signs, the highest preference is given to destinations that attract a larger number of trips from distances greater than 100 miles. Do you have questions about applying for a directional sign for your Florida beverage manufacturer? We’d love to discuss it with you. Contact us at contact@brewerlong.com to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel–hopefully BrewerLong.
Continue ReadingIn Florida, it’s common for beer suppliers and distributors alike to speak in terms of the appointment of a supplier’s exclusive distributor. This is not technically accurate in the context of the Florida Beverage Laws. A beer supplier is not required to appoint an exclusive distributor for itself in Florida. Rather, a supplier is required by Florida law to appoint exclusive distributors for each beer brand it chooses to distribute in Florida. The focus (and the franchise) is on the brands, not the brewery. With that brands-focus in mind, here are 3 tips for beer suppliers’ to better manage their appointment of exclusive distributors for beer brands. Tip #1: Avoid “All Brands and Extensions” Distribution Agreements It is common in Florida for beer distribution agreements to apply to “all brands and extensions” of the supplier. So common, in fact, the a large Florida distributor recently made the following statements in a federal court pleading: “Beer distribution agreements in Florida are not amended for every new brand because they are covered by Florida Beer Franchise Law, which makes it so that once a case of a brand is sold the distributor has the distribution rights for all brands.” This statement, and the practice of distribution agreements covering “all brands and extensions”, is not consistent with the Florida Beverage Laws concerning brand distribution. Florida Statutes Section 563.021(1) provides: “Where a manufacturer or importer sells several brands, the agreement may apply to all brands sold by the manufacturer or importer or may apply to one brand or several brands so long as each brand is covered by an exclusive territorial agreement.” (emphasis added) Beer suppliers should exercise extreme caution before agreeing to distribution agreements that cover “all brands and extensions” of the supplier. Making this agreement robs the supplier’s future self of the freedom to make strategic decisions about the distribution of its future brands and brand extensions. Tip #2: Select the Right Distributors in the Right Territories for the Right Brands Provided that all brands distributed in the State of Florida are covered by an exclusive territorial agreement, beer suppliers can pick the right distributors for the right brands. Suppliers can have two or more distributors within the same distribution territory, as long as each of those distributors has the franchise to distributor different brands. Likewise, suppliers can appoint different distributors to distribution the same brands in different territories. Granting the right to exclusively distribute all beer brands to one distributor in a territory is probably the right decision in many cases (particularly considering economies of scale), but it is not a requirement of the Florida Beverage Laws. Beer suppliers have greater flexibility in deciding the right distributor to distribute each of its brands. Tip #3: Craft Distribution Goals and Terms that Fit the Brand Even for territories in which a beer supplier has designated one exclusive distributor for all of its brands, different terms, requirements, expectations and goals might apply to some of those brands. For instance, consider a brewery’s flagship brands versus its seasonal brands. It is not inconsistent with the Florida Beverage Laws that a beer supplier and distributor agree on terms that recognize that not all brands–even from the same supplier–should be treated the same. The one exception comes to the terms that apply to specific beer brands concerns pricing. The Florida Beverage Laws prohibits the distribution agreement from setting the distributor’s prices for sales to retailers. See Fla. Stat. s. 563.021(3). This includes not only explicitly set prices but also formulas, markup factors, or other methods of fixing prices. Distributors are guarantee the right to determine their own prices to retailers. Do you have questions about crafting the perfect Florida distribution agreements for your beer brands? We’d love to discuss it with you. Contact us at contact@brewerlong.com to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel–hopefully BrewerLong.
Continue ReadingThe 2021 Session of the Florida Legislature will include consideration of a number of bills affecting breweries, wineries, distilleries, retailers and consumers. The 2021 regular session of the Florida Legislature kicks off Tuesday, March 2, 2021. This 2-month session will see the consideration of a number of bills (though not as many as in prior years) that could affect the Florida beverage industry as soon as July. For a refresher on how a bill goes from being introduced to becoming law in Florida, check out the Florida Senate’s Idea-to-Law Flowchart and the Florida League of City’s short video: Florida’s Legislative Process 101. The following chart provides a summary of this session’s beverage-focused bills. We’ll check back in on the status of these bills at end of the session. Do you have questions about how these proposed changes to Florida Beverage Law could affect our business or your plans for a new beverage business? Contact us at contact@brewerlong.com to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel–hopefully BrewerLong.
Continue ReadingWho can delivery beer, wine, and distilled spirits directly to the homes of Florida customers? See the following summary chart and the explanations below. Florida Breweries Cannot Deliver Alcohol to Customers’ Homes While certain breweries are allowed by Florida law to sell alcoholic beverages to customers, breweries are specifically prohibited from delivering alcohol away from their licensed taproom or brewpub. Florida breweries have two routes to selling beer to customers: a retail licensed taproom or a brewpub. Taprooms may have a retail license to sell beer, wine or distilled spirits for consumption on premises or carry-out (a 2COP or 4COP license), but the provision of Florida Statutes that makes that possibly specifically states that breweries cannot make deliveries away from the taproom. See Florida Statutes Section 561.221(2)(d). Breweries with a brewpub license (CMBP) may sell alcoholic products for consumption on premises only. Florida Wineries Can Deliver Alcohol to Customers’ Homes Like breweries, Florida wineries can have a retail license, which allows them to sell beer, wine or distilled spirits for consumption on premises or carry-out. For this purpose, wineries includes cideries and meaderies. Unlike breweries, Florida wineries are not prohibited from delivering alcoholic beverages to customers’ homes. Retail-licensed vendors in Florida are generally permitted to make deliveries away from their places of business. See Florida Statutes Section 561.57. Deliveries must be made in vehicles owned or leased by the vendor or in a third-party vehicle pursuant to a contract with the third party, such as a common carrier. A winery with a retail vendor license is not prohibited from making deliveries as provided by Section 561.57. Florida Distilleries Cannot Deliver Alcohol to Customers’ Homes Unlike Florida breweries and wineries, Florida distilleries are not permitted to hold a retail license. Because they cannot hold a retail license, distilleries cannot make deliveries to customers homes as provided Section 561.57. Certain Florida distilleries, which the statutes call “craft distilleries”, are permitted to have gift shop at which packaged products can be sold. Under current law, Florida craft distilleries are limited to selling not more than 6 individual containers of each branded product to each customer per year. See Florida Statutes Section 565.03(c). The craft distillery statute requires that sales must be in face-to-face transactions, for the customers personal use and not for resale. While craft distillery gift shops can make retail sales, the craft distillery is not granted a retail vendor license. This matters, because Section 561.57 allow pertains to deliveries made by licensed retail vendors. Florida Distributors Cannot Deliver Alcohol to Customers’ Homes Licensed Florida distributors, along with importers and broker sales agents, are only permitted to sell alcoholic beverages to licensed manufacturers and other licensed distributors. Accordingly, this group is prohibited from selling alcoholic beverages directly to customers in all circumstances. Florida Non-Manufacturing Retailers Can Deliver Alcohol to Customers’ Homes As discussed above, Florida licensed retail vendors are permitted to make deliveries to customers, as long as the vendor is not also a brewery. See Florida Statutes Section 561.57. Again, deliveries must be made in vehicles owned or leased by the vendor or in a third-party vehicle pursuant to a contract with the third party, such as a common carrier. Delivery Services Contracted by Florida Retailers Can Deliver Alcohol to Customers’ Homes Florida Statutes Section 561.57 specifically authorizes licensed retailers to engage third parties to make deliveries to customers’ homes. Companies like Drizly, Shipt, and Minibar contract with Florida retailers to deliver alcoholic products. In these cases, the retailer is treated as having sold the products directly to the customer, and the deliverer acts as an agent of the retailer. Section 561.57 requires a contract to exist between the licensed retailer and the delivery service. Personal Shopping Services Contracted by Customers Can Probably Deliver Alcohol to Customers’ Homes Personal shopping services, like Instacart, claim to operate differently than retailer delivery services. Whereas retailer delivery services operate as an agent for the retailer, personal shopping services operate as an agent for the customer. The experience of getting deliveries through a retail delivery service versus a personal shopping service may be the same, but there is a legal distinction that matters. While Florida Statutes Section 561.57 expressly permits retailers to engage third-party deliverers, it does not expressly authorize personal shopping services. It appears that nothing in the Florida Beverage Laws directly addresses personal shopping services, whether it is permitted or prohibited. The Florida Statutes do prohibit the transportation of alcoholic beverages in quantities of more than 12 bottles, and it is unclear how this might apply to personal shopping services. Florida Statutes Section 562.07 provides a short list of who may transport alcohol in quantities of more than 12 bottles, including “individuals who possess such beverages not for resale within the state.” Arguably, this should cover a personal shopper, who is not intending to resell the products, but rather deliver products that have been remotely purchased to the customer, as the customer’s agent. Still, there legal situation for personal shopping services is less clear than it is for retailer delivery services. Do you have questions about home delivery of alcohol in Florida? Contact us at contact@brewerlong.com to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding […]
Continue ReadingIn most cases, a craft brewery in Florida consists of a single structure divided into two parts. One part is the brewery, which has the required federal and state licenses to make beer. The other part is the taproom, which has a state license to sell beer for consumption on premises (and might also be licensed as a restaurant). As required by federal and state law, the brewery and the taproom are physically separate to ensure that patrons cannot have direct access to tax unpaid beer. What happens when the structure that contains the brewery cannot accommodate a separate taproom? Or, what if the the brewing company would like to have a separate taproom that is across the street, or across town? Here are two licensing strategies that allow brewing companies to support taprooms that are not directly contiguous to the brewery. Strategy #1: The Single, Divided Complex The Florida Beverage Law (specifically, Florida Statutes Section 561.221(2)(a)) allows a brewing company to have a taproom that is not directly contiguous to the brewery, provided its is part of a single complex that is divided by not more than one public road or highway. “Single complex” is not defined by the Florida Beverage Law, so the term should have its ordinary, but imprecise, meaning. A single complex generally refers to a collection of separate parts that work together for a common purpose. A building that houses a brewery and a taproom is clearly a single complex. But a single complex could be created when a brewery and taproom, while not within the same building, are close enough in proximity and operations that they operate together. To qualify for licensing, a single, but divided, brewery-taproom complex cannot be divided by more than one public road or highway. This means that a taproom can stand directly across the street from the brewery. But can the taproom stand across the street and several building’s removed from the brewery? It’s unclear, and the determination would be made by the Florida Division of Alcoholic Beverage and Tobacco (ABT). Strategy #2: Remote Manufacturing Space and Taproom For brewery companies that wish to locate a remote taproom that is outside the immediate area of the brewery, the single, divided complex clearly will not suffice. An alternative strategy is for the brewery company to license the remote location as both a manufacturing space and a taproom. A brewery company is permitted to have additional licensed manufacturing spaces, and each of those separate manufacturing spaces can have attached to it its own licensed taproom. Requiring a separate manufacturing license in the remote location does increase the licensing cost, but there are two mitigating factors. First, while the remote location must have a separate manufacturing license, it is not required to actually conduct any manufacturing. In fact, there is no requirement that the remote location have manufacturing equipment in order to maintain the manufacturing license. Second, the remote location could have a separate brewery (CMB) license or it could have a winery (AMW) license. Both are manufacturing license, both allow a taproom to be located contiguously to the licensed manufacturing space, and the annual licensing fee for the AMW license is one-third the amount of the CMB license ($1,000 versus $3,000). Note, however, using AMW licenses for this strategy allows the licenseholder to have only three (3) taprooms, whereas the CMB license allows for up to eight (8). There is a major downside to the remote manufacturing space and taproom strategy: All beer supplied to the location must be through a licensed distributor, unless the remote location produces some amount beer itself. However, if the remote location does produce beer, an equal amount can be supplied by the brewing company’s other locations directly without going through a distributor. Do you have questions about brewery and taproom licensing? Contact us at contact@brewerlong.com to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel–hopefully BrewerLong.
Continue ReadingThe end of the federal Craft Beverage Modernization and Tax Reform Act (CBMTRA) on December 31, 2020 would mean big excise tax increases for small manufacturers. What is the CBMTRA and Where is It Going? The CBMTRA was passed along with the Tax Cuts and Jobs Act of 2017. The federal law made changes to the US Tax Code which resulted in lower federal excise taxes (FET) on beer, wine and distilled spirits. Small Domestic Brewers (those that make less than 2 million barrels per year) saw their FET rate go from $18 per barrel to $3.50 per barrel. FET rates on distilled spirits were reduced from $13.34 per proof gallon to $2.70 per proof gallon for the first 100,000 proof gallons produced by any distillery in a calendar year, regardless of size. The CBMTRA also reduced FET rates for mead and wine having less than 8.5% alcohol by volume (ABV) from $1.07 per wine gallon to $0.07 per wine gallon. The CBMTRA was originally effective for only 2018 and 2019. One December 20, 2019, with the end just 11 days away, the CBMTRA was extended for one additional year. The CBMTRA is now scheduled to sunset on December 31, 2020. The Push to Make CBMTRA Permanent If CBMTRA is allowed to sunset at the end of 2020, FET rates will return to their 2016 levels. Beverage manufacturers would welcome another one-year extension, but that just prolongs the suspense. What they really want is permanence. National manufacturers’ associations–including the Brewers Association, the Wine Institute, and the American Craft Spirits Association–are all pushing to make CBMTRA permanent. A new Craft Beverage Modernization and Tax Reform Act (S. 362/H.R. 1175), if passed, would make the FET rate cuts permanent. The act is co-sponsored by 346 U.S. Representatives and 74 Senators, reflecting broad support from Republicans and Democrats. Do you have questions about excise taxes on alcoholic beverages? Contact us at contact@brewerlong.com to schedule a 15-minute introductory call at no charge. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel–hopefully BrewerLong.
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