While the legislative tempest is beginning to swirl again over 64 oz growlers, ABC Fine Wine and Spirits has doubled down on 32 oz growlers earlier this year and began filling them at several Central Florida locations. This has caused confusion over just what the limits and laws are regarding growler filling in Florida (each state law governs growler filling differently). After researching some of the growler laws around the state of Florida, attorney Trevor Brewer from BrewersLaw has written an article about some hot issues related to growlers in the Sunshine State. BrewersLaw recently reached out to Florida Beer News about this issue and sent over a well-researched article on the subject, here for your consideration.
Look for more information from Florida Beer News as the legislative debate begins again over 64oz and 32oz growlers in Florida.
Growler-Full of Confusion in Florida
Trevor K. Brewer, Brewers’ Law
Growlers—small, reusable, containers used to take tap-dispensed beer home from your favorite microbrewery—are a mainstay of craft beer culture and consumption. While craft beer is booming in Florida, the state has yet to adopt clear laws or regulations about the filling of growlers. In the Sunshine State, confusion about growlers abounds. This article addresses just one aspect of that confusion—who can fill growlers in Florida?
Brewery Taprooms Can Fill Growlers
Which license must a vendor have in Florida to sell beer, intended by the purchaser to be consumed off-premises, by filling and sealing the purchaser’s growler? It may be a straightforward question, but there is no definite answer in Florida law—neither in the Florida Statutes nor the Florida Administrative Code (the compilation of Florida’s administrative rules). Growler filling is generally permitted by brewery taprooms, which must have a CMB license to make beer and a 2COP license to sell beer or wine for consumption on or off premises. However, whether any other license holders can fill growlers is inexplicable, as demonstrated by two recent situations.
Tipple’s Brews Cannot Fill Growlers
Tipple’s Brews is a beer and wine bar and store in Gainesville, Florida. It has held a 2COP license since October 2009. According to the rules regulating the Florida Division of Alcoholic Beverages and Tobacco (the ABT), which issues 2COP and other licenses, the 2COP allows the holder to sell beer and wine for consumption on the premises or in sealed containers for take-away. Tipple’s began filling growlers early in 2010. In May 2010, the ABT ordered Tipple’s to stop filling growlers. The ABT claimed that filling growlers without a manufacturer’s (CMB) license was a violation of Florida Statutes Section 562.34(1) and a felony.
Florida Statutes Section 562.34(1), cited as the basis of Tipple’s violation, is not an easy statute to read or apply. Here it is:
562.34 Containers; seizure and forfeiture.—
(1) It shall be unlawful for any person to have in her or his possession, custody, or control any cans, jugs, jars, bottles, vessels, or any other type of containers which are being used, are intended to be used, or are known by the possessor to have been used to bottle or package alcoholic beverages; however, this provision shall not apply to any person properly licensed to bottle or package such alcoholic beverages or to any person intending to dispose of such containers to a person, firm, or corporation properly licensed to bottle or package such alcoholic beverages.
This statute has been on the books nearly unchanged since the 1940s. It may have more to do with anti-bootlegging and the enforcement of liquor taxes than whether or not a licensed retailer can fill growlers. This was the position taken by Tipple’s in January 2011 when it filed a Petition for Declaratory Statement with the ABT.
In the Petition, (a publicly available document), Tipple’s asked the ABT to officially respond to this question: “Is a 2COP license holder forbidden from selling growlers under Florida Statutes Section 624.34(1)?” Unfortunately, the ABT did not have a chance to respond. Although Tipple’s Petition cogently argued that Section 624.34(1) does not prohibit 2COP license holders from filling growlers, Tipple’s voluntarily withdrew the petition before the ABT responded. Tipple’s, and all those seeking an end to the confusion about who can fill growlers in Florida, would have to wait.
But ABC Fine Wine & Spirits Can Fill Growlers
The latest chapter in Florida confused growler history began in August 2013, when ABC Fine Wine & Spirits formally asked the ABT to allow growlers to be filled at ABC’s Lake Mary, Florida store location. Unlike Tipple’s, the Lake Mary ABC store holds a 3PS license, called a quota license, which allows it to operate a package store. The Lake Mary ABC store may sell beer, wine, and liquor for consumption off premises only.
In it’s request to the ABT (also a publicly available document), ABC asked for a waiver of the ABT’s rules applicable to package stores. According to ABC, if the ABT would waive its rule requiring package stores to sell beer in the original sealed packages received from distributors, ABC stores could fill growlers. In support of its request, ABC stated that no provision of the Florida Statutes prohibits a license holder from filling growlers. Moreover, ABC claimed that the holder of a COP license (like Tipple’s) can lawfully fill growlers, but the Lake Mary ABC store should not be required to carry a COP license just for that purpose.
ABC reportedly got the OK. With much fanfare in the press, the Lake Mary ABC store began filling growlers in August 2013. ABC has signaled that growler filling will soon be available at its stores in other Florida locations.
Does that settle it? Can the growler-filling taps start flowing freely? A rule waiver is nice, even if you can’t be sure exactly what rule was waived, but something more is needed: new legislation that will clearly answer questions about filling growlers in Florida.
Florida Needs a New Growler Law
Hopefully, new legislation is coming soon. The idea for writing new law about growlers came up last year, as the Florida Legislature grappled with a proposed bill to permit 64 oz. growlers, with input from both sides from brewers and distributors. That bill failed, but what appears to be rising from its ashes is comprehensive growler legislation. In September 2013, the Business & Professional Regulation Subcommittee held a workshop to address a range of questions on the filling of growlers. Questions asked at the workshop included:
*Who should be permitted to fill growlers?
*Should growler container sizes be limited?
*Should there be limits on the containers used as growlers?
*Should there be cleaning requirements for filling growlers?
*Should there be requirements related to sealing growlers?
Legislation that clearly addresses these questions would go a long way to dispel Florida’s current state of growler confusion. When the Florida Legislature’s session convenes on March 4, 2014, Florida’s craft beer community—brewers, retailers, and consumers—will be ready for a growler-full of rational regulation about everyone’s favorite little, brown jug.
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