FL Breweries & Distilleries: Be Wary of Home Delivery Service Apps
The 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) 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 as your agents in the ordering, picking, packing, and/or delivery of goods purchased by you and the Retailer—not the Third Party Provider and not Instacart—is the seller of the goods to you. You agree that your purchase is being made from the Retailer you have selected, that Retailer is the merchant of record, and that title to any goods passes to you when they are purchased at the applicable Retailer’s store.https://www.instacart.com/terms (emphasis added)
This indicates that Florida breweries and craft distilleries can make sales through Instacart.
DoorDash/Caviar – Agent of the Customer
Like Instacart, DoorDash (and its wholly owned subsidiary, Caviar) provide clear indication that the customer is control of the ordering process, and the delivery provider is acting on behalf of the customer.
DoorDash, including its wholly-owned subsidiary Caviar, provides an online marketplace connection, using web-based technology that connects you and other consumers, restaurants and/or other businesses and independent delivery contractors (“Contractors”)
DoorDash provides a technology platform facilitating the transmission of orders by Users to Merchants for pickup or delivery by Contractors.
You agree that the goods that you purchase will be prepared by the Merchant you have selected, that title to the goods passes from the Merchant to you at the Merchant’s location, and that, for delivery orders, the Contractor will be directed by your instructions to transport the products to your designated delivery location. You agree that neither the Contractor nor DoorDash holds title to or acquires any ownership interest in any goods that you order through the Services.https://help.doordash.com/consumers/s/terms-and-conditions-us?language=en_US (emphasis added)
This suggests that Florida breweries and craft distilleries can make sales through DoorDash or Caviar.
Drizly – Agent of the Seller
Drizly may be the most popular alcohol-focused delivery service app, but its terms and conditions do not point to its use by Florida breweries and craft distilleries.
Drizly is not a delivery company or a common carrier. The delivery of your order will be facilitated by the Retailer or a delivery service utilized by the Retailer.https://drizly.com/terms/US (emphasis added)
It doesn’t get much clearer than that. Drizly relies on delivery providers that are contracted by the seller, which means that it is not compatible with the Florida Beverage Law’s prohibition of deliveries by breweries and craft distilleries.
Minibar – Probably Agent of the Seller
Minibar, another popular alcohol delivery app, is less clear than Drizly when it comes to the relationship between seller and delivery provider.
Minibar Delivery provides a market service, and a market service only, for our liquor store partners (each, a “Delivery Agent”), through which all orders and purchases are processed.https://minibardelivery.com/terms
The Minibar terms and conditions do not really address the role of delivery providers at all. But referring to liquor store partners as “Delivery Agents” is a strong clue that the delivery provider is either the seller directly or an agent of the seller. This suggests that Florida breweries and craft distilleries may be prohibited from working with Minibar for home delivery sales.
Do you have any questions about working with delivery service apps for sales of alcohol in Florida? Contact us at firstname.lastname@example.org to schedule a consultation with a beverage attorney.
Because we’re attorneys: Disclaimer.