In Wine Law…Be Careful What You DO NOT Ask For
The recent opening of Florida for wine shipments from out-of-state wine retailers is a story of “be careful what you DON’T ask for”.
In 2005, in the wake of the Granholm v Heald Supreme Court decision, a Florida Federal District Court ruled that the state was barred from enforcing its laws that banned out-of-state shipments of wine. At the time wineries rightfully celebrated. However, there was also in place an assumption that the Court order barring enforcement of the state’s anti-shipping laws only applied to wineries, and not to retailers.
Then, in 2018, Kahn’s Fine Wine & Spirits in Indiana asked the following the of the Florida Division of Alcohol Beverage and Tobacco: “Does the Court order apply to retailers as well as wineries and under the 2005 court order, may out-of-state retailers ship into the state legally?”
In response to Kahn Fine Wines and Spirits’ question, the Florida DABT issued the following inside an official Declaratory Statement:
“The applicability of sections 561.54 and 561.545, Florida Statutes (that barred all wine shipments from out of state) to out-of-state wine producers and vendors is settled. See Bainbridge v Turner…(enjoining the Division form enforcing section 561.54 and 561.545, Florida Statutes, against out of state manufacturers and vendors of wine). The Division abides by the terms of the order entered in Bainbridge, and Petitioner’s inquiry is answered accordingly.”
Though somewhat opaque, this response from the Florida DABT indicates that the Divison is barred from enforcing Florida’s anti-wine shipping laws either against wineries or vendors/retailers.
It is unlikely that any other state could be opened for wine retailer shipping in the same manner as Florida has been opened. The reason is that in the wake of the 2005 Bainbridge Federal District Court decision that barred the state from enforcing its anti-shipping laws, the state has never passed any law regarding wine shipping like most other states have. This means that shipping into the state is allowed under the terms of the Federal Court order in Bainbridge. Florida could have passed a law allowing wineries, but not retailers to ship into the state, but it never did. Had it done this, consumers in Florida would not today have access to wines sold by out-of-state retailers.
To this point, neither FedEx nor UPS have committed to begin shipping wine from retailers to Florida customers. This decision is arbitrary as is the common carriers’ affirmative decision to take winery products into the state. The hope is that FedEx and UPS will soon see the Florida DABT Declaratory Statement for what it is: a straightforward declaration that the DABT may not enforce state laws that bar shipments from out-of-state retailers using common carriers like UPS and FedEx.
Some have argued that the DABT Declaratory Statement is unclear and ought not to be the vehicle by which out of state retailers begin shipping wine to Florida residents nor common carriers begin delivering that wine. Florida beer, wine and spirit wholesalers were so adamant about this point that they have sued the DABT asking that the Declaratory Statement be overturned. If anyone were to read the briefs in this case issued by the Florida DABT it would be clear that the DABT did, in fact, means what it said, that it may not stop out of state retailers from shipping to consumers in the state. From the DABT’s brief defending their Declaratory Statement:
“The district court’s order in Bainbridge plainly states how the Federal Constitution’s Commerce Clause impacts the Department’s enforcement of sections 561.54 and 561.545, Florida Statutes – it renders them unenforceable. Specifically, the Department cannot enforce those provisions against “out-of-state vendors and producers” of wine. (See R. 390) (emphasis added.) This means the Department was correct to point the Appellee-Petitioner, an out-of-state retailer of wine, to the district court’s order in Bainbridge and state that “[t]he applicability of sections 561.54 and 561.545, Florida Statutes, to out-of-state wine producers and wine vendors is settled.” (See R. 88) (emphasis added.) The Appellants’ arguments to the contrary are untenable.”
In the end, the most important point is that had Kahn’s Fine Wines and Spirits not asked the question, then 21 million Floridians would not today have access to hundreds of thousands of wines simply not available to them from Florida wine stores and wineries. The 81,000+ beer, wine and spirit products that have been approved for sale in Florida may seem like a lot. However, it’s really a rather pitiful amount compared to what is actually available in the national market place. Consider that in the past 24 months, the Federal government has approved 235,000 wine products alone for sale in the United States.
Cross posted from NAWR.ORG