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The State Will Fight: Files a Motion to Dismiss Growler Suit

The Office of the Attorney General, on behalf of Defendants Lawson and Spicola (DBPR and ABT), filed its Motion to Dismiss the “growler lawsuit” this morning.  The incorporated memorandum of law in support of the motion generally lays out a history lesson of how the statute was originally enacted, provides some red herring arguments in support of dismissing the lawsuit and includes a semi-hilarious explanation of why the container size law is “rational.”

As discussed in a previous post, the defendants here must only prove that the challenged law is rationally related to a legitimate government interest. It is the most lenient standard for judicial review available. Plaintiff has the burden of proving that the law serves no conceivable legitimate purpose.

Defendants mostly skirt the issue of rationality. They do bring it up briefly on three separate occasions. They argue, for example, that “iven that consumers are significantly more likely to attempt […]

By |November 19th, 2014|Blog|1 Comment

Legal Challenge of Florida’s Container Size Laws

Most are probably aware now that a lawsuit has been filed against the State of Florida (the Secretary of Florida’s Department of Business and Professional Regulation, which oversees the Division of Alcoholic Beverages and Tobacco and the Director of the Division of Alcoholic Beverages and Tobacco) seeking a declaration that Florida’s container size limitations are unconstitutional and enjoining enforcement of the container size limitations. Those container size limitations ban all containers between 32 and 128 ounces, thus making it illegal to sell or fill the industry standard 64 ounce growler. The suit was filed on behalf of a craft beer retailer that operates in Stuart.

Now that the suit has been filed, what kind of interesting things may follow? First, will the State defend this lawsuit? It’s relatively indefensible and may just be a waste of time and money. Defendants must simply prove that the challenged law is rationally related to […]

By |October 29th, 2014|Blog|1 Comment

More Breweries Do Not Result in More Drunk Driving Fatalities

If anything, statistics demonstrate an inverse relationship between craft breweries and drunk driving fatalities. Vermont, for example, ranks #1 in the country in capita/craft brewery but ranks 21st in capita/DUI fatality. Oregon ranks #2 in capita/craft brewery but ranks #42 in capita/DUI fatality. Of the top 15 states in capita/craft brewery, only 3 are also ranked in the top 15 in capita/DUI fatality.

These stats cannot tell the whole story, but it does provide some context and a trend. Certain downfalls include the fact that this uses the number of craft breweries rather than the production of beer and that there will be people who are driving under the influence who do not kill (or injure) people. The claim that a change in distribution laws would lead to over-consumption and thus increased DUI deaths and other health issues, like the claim made during the past Florida legislative session, simply cannot withstand […]

By |August 28th, 2014|Blog|0 Comments

Miami Beer Trail

By |August 27th, 2014|Uncategorized|0 Comments

Should Florida Breweries Be Selling to Fellow Breweries?

Breweries are no longer sparsely scattered throughout the state. We are seeing concentrations of breweries flourishing in the Tampa/Saint Petersburg area, Jacksonville, Fort Myers, neighborhoods in Miami and soon Tallahassee. As the number of breweries in Florida grows and areas become more concentrated with breweries, those breweries may consider selling their beer directly to one another, rather than using a distributor for such sales.

Florida Statute §561.42(1) focuses on the tied house evil and prevents integration between the tiers. Florida Statute §561.22 performs a similar function as it prohibits the licensing of a manufacturer or distributor as a vendor and vice versa. Meanwhile, Florida Statute §561.14, in its description of license and registration classifications, notes that manufacturers are “licensed to manufacture alcoholic beverages and distribute the same at wholesale to licensed distributors and to no one else within the state, unless authorized by statute.”

The statute that authorizes manufacturers to distribute to […]

By |August 26th, 2014|Blog|0 Comments

Check out Ross’ Latest Publication on the Craft Beer Industry and Trademark Law – Worry Wort: A Path to Acquiring Trademark Rights in the Craft Brewing Industry

Check out Ross’ latest article, titled: Worry Wort: A Path to Acquiring Trademark Rights in the Craft Brewing Industry. It appears in Volume XXIV, Book 4 of the Fordham Intellectual Property, Media & Entertainment Law Journal.

http://iplj.net/blog/wp-content/uploads/2014/07/C04_Appel_R1.pdf

The article discusses the manner in which trademark law functions, focusing upon the statutory definition of “use in commerce” and related case law developments. It examines the legal framework as it applies in the craft beer context and analyzes an illustrative legal dispute and considers the effect in time, money and frustration that trademark disputes can have on small craft brewery owners.  It also analyzes the early life-cycle of two upstart brewers to demonstrate that rights in a mark must accrue, in certain circumstances, prior to any sales activity.  It further examines the manner in which rights in a mark are acquired in the pharmaceutical industry, where the time from development to marketing launch […]

By |July 15th, 2014|Blog, News|0 Comments

Craft Beer: Franchise Laws Need Not Apply

Franchise laws, as applied to the  craft beer industry, have the negative potential of restricting the possibilities for growth (small brewers may avoid expanding into a test market because they will first have to tie themselves to a distributor forever) and allowing distributors to hold breweries to a relationship that is neither healthy nor profitable for either party.

Franchise laws were viewed as a necessity a few decades after Prohibition, when few breweries remained operational. Those that remained were generally doing the uninteresting: mass-producing uniformly flavored beer. However, the efficiency of these breweries came at the expense of flavor and creativity and would put many smaller breweries out of business. This led to a great deal of consolidation in the beer industry and ultimately led to the existence of several large breweries with power to influence the policies of the next tier of the distribution system, the distributors themselves. It was […]

By |June 12th, 2014|Blog|1 Comment

Ross Worked With BeverageTradeNetwork on a Recent Article about Craft Beer Label Design and Requirements

Please click on the following link on BeverageTradeNetwork to read the recent article in which Ross was consulted regarding craft beer label design. The article discusses the process and requirements for label approval, prohibited content on malt beverage labels and why you might consider plans for brewery expansion when designing a label. Let us know if you have any questions or comments!

http://beveragetradenetwork.com/en/article-base/craft-beer-label-design-how-to-adhere-to-state-and-federal-law-and-get-your-labels-approved–351.htm

By |June 9th, 2014|Blog, News|0 Comments

It’s Kind of Their Thing

Anheuser Busch is doing that thing Anheuser Busch does. This time in South Carolina. It’s what they recently did in Florida. Here, they had some politicians that were either willing to do their bidding or were willing to accept vague and unsupported assertions as fact without asking any logical follow-up questions. In South Carolina, they’ve got their lawyer-lobbyists doing the same.

ABInBev’s attorneys wrote a short letter to South Carolina Senators asking that they “please non-concur”  with house amendments to the bill that was drafted to help open up the craft beer industry in South Carolina and perhaps provide incentive to Stone Brewing to bring jobs and money to South Carolina. Read that letter here: (as posted by Wesley Donehue and BeerOfSC) http://www.scribd.com/doc/224630184/Stone-Bill.

The attorneys begin by noting that “the manner in which the law would be changed would be detrimental to the current three tier system for alcohol distribution.” It is […]

By |May 19th, 2014|Blog|0 Comments

A Letter to the Senator

I emailed Senator Stargel today after reading her opinion piece that appeared in a number of Florida publications:

Senator Stargel,

I read your opinion piece on SB 1714 this morning and wanted to reach out in response. I certainly appreciate your opinion and the fact that you took the time to attempt to clarify certain information making its way around the media and internet right now. I also appreciate that you have worked hard on this bill and have made efforts to find a compromise. I don’t believe any compromise was ever necessary because I don’t believe there ever should have been any such legislation that would add more regulations to Florida’s beer industry. I would like to go through your piece and reply to your arguments.

 

STARGEL: It’s clear the three-tier system, purposefully instituted after Prohibition, must be preserved to prevent: predatory practices that would eliminate competition, opaque or illicit distribution channels, […]

By |April 29th, 2014|Blog|2 Comments