Florida | Read Time: 3 minutes

Mobile Alcohol Sales Are (Mostly) Not Permitted in Florida

Imagine a business–call it Mobile Bar–that brings the bar to you. You hire Mobile Bar for a reception, party or other event held at your home, office, or other private property. Mobile Bar has a cool, old trailer, truck, or standing bar that it brings to your location. Mobile Bar handles buying all the beer, wine and liquor and bringing it to your event. Mobile Bar provides the bartender, who hands out beer, pours wine, and mixes cocktails. This is a cash bar, so Mobile Bar handles the sales too. Mobile Bar sounds great, right? You might have even seen Florida businesses that provide this exact same service. Here’s the problem: Mobile Bar, and mobile alcohol vendor services like it, are not legal in the State of Florida. The Florida Beverage Laws do not support independent, mobile alcohol sales. In other words, there is no license available in Florida that allows the licenseholder to sell to the general public primarily beer, wine or liquor, whether in sealed containers or by the drink, from non-fixed locations, whether on public or private property. And selling alcoholic beverages without a license is a crime in Florida (See Florida Statutes Section 562.12). Mobile Alcohol Sales Have a Place Problem The Florida Beverage Laws (Florida Statutes Chapters 561-565) make it clear that no person or company can sell alcoholic beverages without a license. Two criteria are primarily important to getting a license: the licensed individuals and the licensed premises. First, all of the individuals who will be involved in owning or managing an alcoholic beverage business must be identified an provide information about themselves (see Identifying the Interested Parties of a Florida License Applicant). Second, the location where alcohol will be sold and consumed–the licensed premises–must be identified and described in detail. The Florida Beverage Laws and regulations require that the premises be suitable for selling alcohol, including compliance with local zoning ordinances. Also, the licenseholder must show that it has legal control over the licensed premises, at least while alcohol is being sold and consumed. This means that the licenseholder must own the premises, have a lease to the premises, or have some other contract giving the licenseholder control over all sales and consumption of alcohol on the premises. The Florida Beverage Laws will only grant the right to sell alcohol to the individuals who can control its consumption in a specific place and only if local laws allow alcohol to be sold in that place. These location-specific licensing requirements are in most cases at odds with the purpose of a mobile bar service–to provide limited alcohol sales, on private property, for events organized by someone else. To be clear: the Florida Beverage Laws do not prohibit renting a cool old truck, trailer, or standing bar for use by a private party giving away alcohol at a hosted event. But that’s a much different business model than mobile alcohol sales. When it comes to selling alcohol in Florida, the location matters a lot. If Mobile Bar’s business is centered on selling alcohol at places that are not approved for alcohol sales, then it’s a business that does not work under the Florida Beverage Laws. Some Limited Exceptions Of course, there are exceptions to every rule, including the Florida Beverage Laws’ prohibition on mobile alcohol sales. There are some licenses available that do allow services mobile alcohol sales, for instance alcohol catering by a quota licenseholder (see Alcohol Catering with Florida Quota License) or licensed alcohol caterer (see Working with Beverage Caterers). But the limitations on these exceptions are significant and put them in a much different business model than our fictional Mobile Bar describe above. The following table briefly describes the most relevant “exceptions” to the Florida Beverage Laws’ prohibition on mobile alcohol sales and the limitations on those exceptions. See the Florida ABT’s Licenses and Permits for Alcoholic Beverages for a complete list of available licenses. Exception (License Class) Limitations Food Caterers (13CT) Only available to licensed food caterers; must derive at least 51% of food and beverage revenue from sales of food and non-alcoholic beverages; sales of alcohol only permitted at events the same caterer is providing food catering Quota License Holders (QUOTA) Only limited number of quota licenses are available per county Temporary Permit (ODP) Only available to bona fide non-profit organizations or municipalities; limited to 12 permits per year for events not exceeding 3 days at a time Public Fair (FEX) Only available to organized public fairs and expositions in connection with events held on the fairgrounds Mobile Vehicles (X) Sales permitted only to passengers; vehicle must be engaged in interstate commerce or travel between fixed terminals and on a fixed schedule Do you have any questions about mobile alcohol sales in Florida? Contact us at contact@brewerlong.com to schedule a consultation with a beverage attorney. Because we’re attorneys: Disclaimer.

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Beverage Legislation | Read Time: 3 minutes

Grains of Paradise, and What They Mean for Florida’s Alcohol Adulteration Statute

Florida’s 150 Year Old Alcohol Adulteration Statute The Florida Beverage Law is, in many instances, confusing, contradictory, and just plain weird. It is also unenforceable in some aspects. Take for instance Florida’s Adulterated Liquor Statute, Florida Statutes Section 562.455. First enacted in 1868, the relatively short Adulterated Liquor Statute makes it a felony of the third degree to include certain substances in alcohol. Whoever adulterates, for the purpose of sale, any liquor, used or intended for drink, with cocculus indicus, vitriol, opium, alum, capsicum, copperas, laurel water, logwood, 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, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Florida Statutes Section 562.455 (2021) Chances are, this statute is unenforceable in some respects. That was the conclusion of a federal court in 2020, and it got one “adulterator” taken off the list. The Case of the Aframomum Melegueta Prior to July 1, 2021, the verboten list of alcohol adulterators included one more: grains of paradise. Grains of paradise (scientific name Aframomum melegueta) is a species in the ginger family, closely related to cardamom. Its seeds are used as a spice (ground or whole); it imparts a pungent, black-pepper-like flavor with hints of citrus. It is also common known as melegueta pepper. Florida Law 2021-135 removed grains of paradise from Florida’s Adulterated Liquor Statute because a federal court found the law to be unenforceable, at least where grains of paradise are concerned. On January 28, 2020, the United States District Court for the Southern District of Florida held that the statute, specifically as it related to the use of grains of paradise in liquor, was preempted by federal law. The court found that the statute frustrated the purposes and objectives of the Federal Food, Drug and Cosmetic Act (FFDCA) and implementation of FDA regulations. Under FFDCA, the FDA has broad regulatory authority to monitor and control the introduction of “food additives” in interstate commerce. Florida’s Adulterated Liquor Statute was unenforceable because it prohibited the use of an additive that is generally regarded as safe by the FDA (referred to as GRAS). Source: Bill Analysis for Florida Senate Bill 1966 (2021). Will More “Adulterators” be Removed? What about the rest of the Florida statute’s list of alcohol adulterators? It seems likely that federal preemption applies to other entries on this list, particularly those that are general regarded as safe by the FDA (we’re looking at you, capsicum). Following is Florida’s list of the remaining substances forbidden to be included in alcohol: Cocculus indicus – known as moonseed; historically used to enhance giddiness Vitriol – probably referring to ether, which is also known as “sweet oil of vitriol” Opium – narcotic Alum – used  as a flocculant to clarify turbid liquids and as a dye Capsicum – pepper plants; Capsicum frutescens L. (includes Tabasco pepper) and Capsicum annuum L. (includes bell, jalapenos, chili, and cayenne peppers) are GRAS Copperas – iron sulfate; used in iron supplements and as a dye Laurel Water – distilled from cherry laurel leaves; contains prussaic acid Logwood – probably referring to brushhollies or xylosmas; used as a dye; has narcotic properties Brazil Wood – also known as Pernambuco wood; used as a dye Cochineal – a parasitic insect; used to produce carmine (red) dye Sugar of Lead – lead acetate; has a sweet taste, which led to its historical use as a sugar substitute in wines and foods Do you have any questions about Florida’s Alcohol Adulteration Statute? Contact us at contact@brewerlong.com to schedule a consultation with a beverage attorney. Because we’re attorneys: Disclaimer.

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ABT | Read Time: 4 minutes

Off-Site Alcohol Service by Florida Retailers

Alcoholic beverage retailers–including bars, restaurants, breweries, wineries, and distilleries–are often asked to provide off-site alcohol service–catering–for a range of events. In Florida, there are a limited number of ways in which an alcohol retailer can participate in providing alcohol service away from its licensed premises. Option 1: Sales to Private Party for Open Bar Alcohol retailers that have a license that permits sales for consumption off premises can supply a private party to host an open bar event. For instance a wine or beer bottle shop with a 2APS license can provide all the beer or wine to be served by the host at a wedding reception. The same is true for a bar, restaurant, brewery or winery with a 2COP license. Each of these retailers can sell wine or beer in cans, bottles, or kegs, and they can provide keg service equipment. Even a craft distillery gift shop can sell to a private party bottled liquor, now in unlimited quantities under the recently changed craft distillery law. However, this option does not permit two activities: First, the alcohol retailer cannot provide bartending service for the event. Second, the host of the event cannot resell the alcohol at the event–open bar only. Option 2: Sales to an Licensed Alcohol Caterer Alcohol retailers that have an off-premises consumption license can sell alcohol to the holder of a 13CT alcohol catering license. See Florida Statutes Section 561.20(2)(a)5. Generally, one licensed retailer is not permitted to purchase alcohol from another licensed retailer. One of the few exceptions to this rule is a licensed alcohol caterer (requirements for acting as an alcohol caterer are discussed below). Licensed alcohol caterers are permitted to purchase alcohol directly from a retailer that is licensed to sell alcohol to individuals for off-premises consumption. Licensed alcohol caterers are permitted to operate a cash bar at a private event (assuming compliance with other state laws and local ordinances). After the event, the alcohol caterer is required to leave the remaining alcohol with its private customer or return unopened alcohol to the retailer, provided the retailer will accept the return. Under this option, the alcohol retailer again is not permitted to provide bartending service for the event, but the alcohol caterer can provide this service. Option 3: Sales for a Non-Profit Event Similar to Option 2, alcohol retailers that have an off-premises license can sell alcohol to a non-profit organization or municipality for a permitted non-profit event. Non-profit organizations and municipalities are eligible to obtain a One, Two, or Three Day Permit (ODP) from the Florida Division of Alcoholic Beverages and Tobacco (ABT). See Florida Statutes Section 561.422. The ODP permit allows the organizer of a non-profit event to serve or sell beer, wine, or liquor at the event (assuming compliance with other state laws and local ordinances). Like the licensed alcohol caterer, the ODP event organizer is permitted to purchase alcohol directly from an alcohol retailer with an off-premises consumption license. The non-profit event host is permitted to reseller alcohol at the event. Presumably, the alcohol retailer is permitted to provide bartending services to the event host (no provision of the Florida Beverage Law or regulations seems to prohibit this). However, all net profits from sales of alcoholic beverages at the event  must be retained by the non-profit organization. Option 4: Alcohol Catering with a 13CT License As discussed above, the holder of a 13CT alcohol catering license is permitted to sell and serve alcohol at a catered event. A licensed alcohol retailer can hold a 13CT alcohol catering license and provide catering services directly in certain circumstances. To obtain a 13CT alcohol catering license, the retailer must first have a public food service (PFS) license issued by the Florida Division of Hotels and Restaurants. That is, the retailer must be licensed as a restaurant, mobile food vehicle, or food caterer. A retailer with a 13CT alcohol catering license may sell alcohol (beer, wine, or liquor) at events for which it also provides the food catering. Moreover, the retailer must derive at least 51% of its gross food and beverage revenue from the sale of food and nonalcoholic beverages at each catered event. A 13CT licensed alcohol caterer cannot sell only alcohol at the event. See also Working with Beverage Caterers. Option 5: Alcohol Catering with a Quota License A retailer with a 4COP or 3PS quota license is also permitted to sell and serve alcohol at a catered event. Importantly, this does not include a restaurant that holds a 4COP-SFS license, which prohibits sales for consumption off-premises (although such a restaurant could hold a separate 13CT license). Unlike a 13CT licensed alcohol caterer, a quota licensed retailer is not required to derive at least 51% of its revenue from the sale of food and nonalcoholic beverages at each event. However, each catered event must have  prepared food is provided by a caterer by the Florida Division of Hotels and Restaurants. See also Alcohol Catering with Florida Quota License. Do you have any questions about off-site alcohol service by Florida retailers? Contact us at contact@brewerlong.com to schedule a consultation with a beverage attorney. Because we’re attorneys: Disclaimer.

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ABT | Read Time: < 1 minute

Searchable Penalty Guidelines Table

What happens when a Florida licensed beverage company violates the Florida Beverage Law? In 1994, the ABT issued penalty guidelines concerning single and repeated violations of the Florida Beverage Law. While these penalty guidelines have not been updated to reflect all changes to the law since 1994, it is a helpful guide to the ABT’s disciplinary actions. Unfortunately, the official publication of the penalty guidelines (available on the  Florida Department of State website) contains a non-searchable table of violations and penalties. To make life easier for the folks who need to understand these guidelines, we have created a searchable reproduction of the table. Find the searchable Florida Beverage Law Penalty Guidelines under the Resources tab or by clicking this link:  Florida Beverage Law Penalty Guidelines. Do you have any questions about the Florida Beverage Law penalty guidelines? Contact us at contact@brewerlong.com to schedule a consultation with a beverage attorney. Because we’re attorneys: Disclaimer.

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Florida | Read Time: 4 minutes

What is a “Tied House” and Why is it Evil?

How a Florida law designed to prevent the “evil” of vertical integration in the alcoholic beverage industry limits the ability of suppliers to help you buy their products. Tied Houses, Evil and Otherwise The term “Tied House Evil” appears in the heading to Florida Statutes Section 561.42. Although the term is nowhere defined in the Florida Statutes, it is rooted in Prohibition in the United States and the re-legalization of alcoholic beverages when Prohibition was repealed in 1933. A “tied house” is a contractual relationship between an alcoholic beverage vendor and a supplier, in which the vendor is required to by part or all of its supply from one or a handful of suppliers. In many cases, the supplier provided essential financial backing–such as a loan or lease–without which the vendor (called the “managed house”) might not exist. The practice of tied houses still exists in the United Kingdom and other countries, but in the United States it was generally abolished by “tied house evil” statutes passed after the appeal of Prohibition. In 1971, the Supreme Court of California described “tied house evil” statutes as follows: By enacting prohibitions against “tied-house” arrangements, state legislatures aimed to prevent two particular dangers: the ability and potentiality of large firms to dominate local markets through vertical and horizontal integration . . . and the excessive sales of alcoholic beverages produced by the overly aggressive marketing techniques of larger alcoholic beverage concerns.  California Beer Wholesalers Ass’n v. Alcoholic Beverage Control App. Bd., 5 Cal. 3d 402, 407–408 (1971). Statutory Limits on Help for Florida Vendors Florida’s Tied House Evil Statute, Florida Statutes Section 561.42, generally prohibits alcoholic beverage suppliers from (1) having a direct or indirect financial interest in a Florida vendor, and (2) providing gifts, loans of money or property, or rebates to a Florida vendor. Florida vendors are also prohibited from accepting support from suppliers. The suppliers that are limited by the Tied House Evil Statute include manufacturers, distributors, importers, primary American sources of supply, brand owners or registrants, brokers, sales agents, or sales persons, whether or not they are operating in Florida or outside the state. There are, of course, exceptions to the Tied House Evil prohibitions. Distributors can give vendors trade credit (that is, extend the date for payment for sale) up to the 10th day after the calendar week in which a sale is made. Distributors can also give trade discounts in the usual course of business upon wine and liquor sales (discussed more fully in Alcohol Distributors’ Discounts Under Florida Law). The prohibition against providing gifts and loans of property excludes bottles, barrels and other containers necessary for transportation of purchased beverage products and, importantly, excludes advertising materials (although, advertising materials expressly excludes outside signs). Outdoor Signs are Bad; Indoor Signs are Good The Florida Tied House Evil Statute has a lot to say about signs–printed, painted, electric or other. Suppliers are prohibited from directly or indirectly giving, lending, renting, selling or otherwise furnishing to a vendor any outside sign, and vendors are prohibited from accepting them. Suppliers can furnish vendors with indoor signs, including posters, placards, and other advertising materials. Vendors are permitted are permitted to display signs (including neon or electric) signs in their windows facing outward, but they are limited to one sign advertising the product of any one manufacturer. Beer Glassware and Other Advertising Assistance The Florida Tied House Evil Statute says a lot more about the assistance beer and malt beverage suppliers can provide to vendors, particularly concerning advertising materials. Beer coupons: Suppliers are prohibited from providing any type of malt beverage coupon which is to be redeemable by a vendor. Expendable retailer advertising specialities: Beer supplier may sell to vendor, at actual cost or higher, trays, coasters, mats, menu cards, napkins, cups, glassware, thermometers and the like. Durable retailer advertising specialities: Beer suppliers may rent, loan without charge, or sell to vendors clocks, pool table lights, and the like which bear advertising materials. Consumer advertising specialties: Beer suppliers may sell to vendor, at actual cost or higher, ashtrays, T-shirts, bottle openers, shopping bags, and the like. Cooperative advertising: Beer suppliers may not engage in cooperative advertising with vendors (more on this in You Can’t Tag This). Draft equipment and tapping accessories: Beer distributors may sell to vendor, at actual cost or higher, draft equipment and may also furnish replacement parts of nominal intrinsic value, including washers, gaskets, tail pieces, hoses, hose connections, clamps, plungers, and tap markers. Branded glassware gets detailed treatment in the Florida Tied House Evil Statute. A beer distributor may give to a vendor a limited amount of branded glassware that the distributor receives at no charge from the beer manufacturer. The glassware must hold no more than 23 ounces of liquid vollum and must bear a permanent brand name intended to prominently advertise the brand. The beer distributor can give the vendor no more than 10 cases of glassware per year per licensed premises. Both the manufacturer and distributor must keep records of glassware gifts for at least 3 years. The vendor may not sell the glassware or return it to the distributor for cash, credit or replacement. Do you have any questions about Florida’s Tied House Evil Statute or what assistance alcoholic beverage suppliers can provide to Florida vendors? Contact us at contact@brewerlong.com to schedule a consultation with a beverage attorney. Because we’re attorneys: Disclaimer.

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Beverage Legislation | Read Time: 2 minutes

Florida Beverage Legislation: 2021 Post-Session Review of Beverage Bills

The 2021 Session of the Florida Legislature will result in major changes to the Florida Beverage Laws affecting how craft distilleries and restaurants sell alcoholic products. Both houses of the Florida Legislature passed two major bills related to alcoholic beverage sales: SB 46 and SB 148. As of this writing, neither bill has been sent to the Governor, but expectations are that the Governor will sign both bills into law. More complete evaluations of both bills will be coming in the following weeks, but here are brief descriptions. SB 46: Craft Distilleries Finally Get to Sell Drinks Senate Bill 46 (along with its companion, House Bill 737) gives several boosts to Florida’s craft distillery industry, starting with an increase in the production limits required to qualify as a craft distillery, from 75,000 gallons to 250,000 gallons. Effective July 1, 2021, SB 46 would allow each craft distillery to sell up to 75,000 gallons per year of its branded products (whether distilled, rectified or blended) to adult customers at its distillery, in bottles for consumption off premises or in drinks on premises. The “six bottles per person per brand per year” requirement is eliminated. Senate Bill 46 also authorizes certain craft distilleries, located within authorized “destination entertainment venues”, to hold vendor quota licenses that would allow them to sell not only their own branded products but also alcoholic beverage products acquired from distributions. SB 148: Restaurants Can Keep Selling Cocktails to Go Senate Bill 148 (along with its companion, House Bill 329) makes permanent the Governor’s COVID-19 “cocktails-to-go” executive order allowing restaurants to deliver mixed drinks together with food orders. The bill provides directions about how these alcoholic beverage products must be packaged and stored during transportation to customers. The following chart provides a summary of this session’s beverage-focused bills and where they ended at the conclusion of the session. Do you have questions about how these 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.

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Breweries | Read Time: 3 minutes

Florida Roadway Signs for Beverage Manufacturers

If 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.

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Florida | Read Time: 3 minutes

Making & Selling Ready-to-Drink Cocktails in Florida

Ready-to-drink (RTD) or canned cocktails are growing in popularity. According to Grand View Research, the global RTD cocktails market is anticipated to grow at a compound annual growth rate of 12.1% from 2020 through 2027. Kevin Roberts, the executive vice president of supplier engagement for the alcohol distributor Breakthru Beverage Group, said “You have a convenience trend happening, you have a lifestyle thing happening, and then you have this can phenomenon.” (The Rise of Ready-to-Drink Cocktails) RTD Cocktails Can be Made by Licensed Florida Manufacturers Alcoholic beverage manufacturers in Florida can make RTD cocktails, provided they have the right manufacturing license for the type of alcohol. The key is the type (or types) of alcohol that are included in the products. Florida wineries (holding the federal winery permit and state AMW license) can make and package RTD cocktails in which the alcoholic content is only from fruit wine or mead. Other than standard orange wine (OTSOW) is a versatile ingredient that is often used in the “mocktini” variety of RTD cocktails. Florida breweries (holding the federal Brewer’s Notice permit and state CMB license) can make and package RTD cocktails in the category of malt beverages. This includes hard seltzers, which use sugar as a permissible substitute to malt. RTD cocktails that include distilled spirits or any other alcoholic ingredient that is not wine or malt beverage can only be manufactured and packaged in Florida by a licensed distillery (holding the federal DSP permit and state DD or DD(CD) license). Florida Distributes Must Have the Right Type of License for the RTD Cocktails’ Alcohol Class Florida distributors that hold a federal wholesaler permit and a state JDBW (beer and wine only) distribution license are limited to handling RTD cocktails that are classified as wine or malt beverage, depending on their ingredients. For RTD cocktails that contain distilled spirits or any other alcoholic ingredient, a Florida distributor must hold a state KLD (beer, wine, and spirits) distribution license. Low-Proof RTD Cocktails Can be Sold by a Large Number of Florida Licensed Retailers When it comes to retail sales of RTD cocktails, the amount of alcohol matters. Special low-proof products—including distilled, mixed, or fermented products which contain less than 6% alcohol by volume (ABV)–may be purchased by licensed vendors holding a 2COP or 2APS license (that is, a beer or wine license). This means that a KLD licensed distributor can sell the products to beer-and-wine vendors. See Florida Statutes Section 564.06(5)(b) and Florida Administrative Code Rule 61A-3.050. This is what allows spirits-based RTD cocktails to be sold in convenience stores and grocery stores. For RTD cocktails that contain 6% ABV or greater, the type of alcohol is controlling. Retailers with a 2COP or 2APS license can only selling high-proof RTD cocktails if the are in the category of wine or malt beverage. Any other type of high-proof RTD cocktails, including those containing distilled spirits, can only be sold by retailers that hold a 4COP or 4APS quote license. Do you have questions about making or selling RTD cocktails in Florida? 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.

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ABT | Read Time: 4 minutes

The 3 Requirements for Florida Restaurant’s to Sell Beer, Wine & Liquor

Florida restaurants that want to sell beer, wine and liquor–whether at a restaurant bar or to seated customers–must have a 4COP-SFS (formerly known as 4COP-SRX) license issued by the Florida Division of Alcoholic Beverages & Tobacco (ABT) pursuant to Florida Statutes Section 561.20(2)(a)4. To get a 4COP-SFS license, a Florida restaurant must meet the following three requirements: Maintain at least 2,500 square feet of service area. Have the capacity to serve meals to at least 150 persons at one time. Derive at least 51% of its gross food and beverage revenues from food and nonalcoholic beverages. Requirement 1: At Least 2,500 SF of Service Area The Service Area Requirement means that only restaurants of a minimum size are permitted to have a 4COP-SFS license. However, “service area” is generally interpreted by the ABT very broadly. The dining room is part of the service area, of course, but the kitchen is also. So are office and storage spaces. So are the restrooms. Outdoor seating is also part of the service area, as long as the restaurant has the legal right to use the space (according to the lease or deed). The only part of a restaurant’s floor plan that is not part of the service area, for purposes of meeting the Service Area Requirement, is any part that (1) is not covered by the restaurant’s Public Food Service (PFS) license issued by the Florida Division of Hotels and Restaurants, or (2) is covered by a different alcoholic beverage license, such as a manufacturing license (for a brewery or winery), bottle club license, or package store license. Requirement 2: Serve Meals to 150 Persons at One Time Only restaurants that are capable of serving meals to at least 150 persons at one time are allowed to get and keep a 4COP-SFS license. The ABT has interpreted this requirement to mean serving at least 150 persons full meals that are consumed one the premises. In other words, it is not enough that a restaurant have a kitchen capable of preparing 150 meals at one time. The restaurant must also have tables, chairs, servers and service capacity that is sufficient to serve those meals to 150 persons present in the restaurant at the same time. In other words, a restaurant’s robust carryout or Uber Eats business is not enough. To determine whether a restaurant meets the 150 Persons Requirement, the ABT generally takes into account three sources of information: The number of seats reflected on the restaurant’s Public Food Service Establishment (PFS) license; The maximum building occupancy allowed by the fire marshal; and The maximum capacity rating provided by the local water treatment and sewer authority. Requirement 3: 51% of Revenue from Food and Nonalcoholic Beverages A restaurant that is granted a 4COP-SFS license must continue to derive at least 51% of its food and beverage gross revenue from the sale of food and nonalcoholic beverages. The ABT confirms that this requirement is met by by reviewing the restaurant’s sales records. When a new 4COP-SFS is issued, the ABT will review the restaurant’s food and beverage sales records after the first 60 or 90 days. If those records show that more than 49% of revenue comes from alcoholic beverage sales, the ABT will generally allow the restaurant another 60 to 90 days to show compliance with the 51% Sales Requirement. After that additional time, if the restaurant’s records still reflect that more than 49% of revenue comes from alcoholic beverage sales, then the 4COP-SFS license will be canceled. In that event, the restaurant must choose among: (1) purchasing a 4COP quota license (for which there is a limited number per county), (2) applying for a 2COP beer and wine only license, or (3) no alcoholic beverage license. On an annual basis, the ABT will review the restaurant’s food and beverage sales records to confirm that it continues to meet the 51% Sales Requirement. 4COP-SFS License Does Not Allow Package Sales An important limitation of the 4COP-SFS license is that it is limited by statute to sales of alcoholic beverages for consumption on sales only. That is, a 4COP-SFS licensed restaurant is statutory prohibited from making package sales of beer, wine, or liquor for consumption off premises. For breweries and wineries, this would prohibit filling growlers or sales of canned or bottled products. There are a couple exceptions to the statutory prohibition against packaged sales. First, partially consumed wine bottles can be resealed and taken home by the customer. Second, the Florida Governor’s temporary (but seemingly permanent) emergency order allows 4COP-SFS licensed restaurants to sell alcohol to go during the COVID-19 pandemic. Do you have questions about retail alcoholic beverage licenses for Florida restaurants? 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.

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