Greenspoon Marder Hospitality, Alcohol & Leisure Blog: A Win on Appeal for the Hospitality, Alcohol and Leisure Industry Group

Apr 29, 2020

The Hospitality, Alcohol and Leisure Industry Group at Greenspoon Marder (GM) can place another victory feather in its cap. On April 27, 2020, the First District Court of Appeals ruled in favor of the Appellant, MB Doral, LLC d/b/a Martini Bar invalidating a longstanding Florida rule which mandated that retail alcohol beverage licensees may only receive off-premise storage permits (OPS) in the same county as where the licensed business is located. In other words, a retailer operating in Miami-Dade County was not permitted to hold an OPS permit and maintain a storage facility in any other county in the State of Florida with the exception of Miami-Dade County. Virtually every retail licensee, numbering in the tens of thousands, was constrained by this rule and limited to operating a separate storage facility only in the county the business resided in.

The initial facts of the case are straight forward. MB Doral, a Miami-Dade County licensee, as part of its catering operations, applied for an OPS to warehouse its alcohol beverages in Orange County where the catered event was to occur. The Division of Alcoholic Beverages denied application and refused to issue the permit stating that it was outside the licensee’s parent place of business and in contravention to the longstanding rule.

MB Doral, LLC, represented by Greenspoon Marders Hospitality, Alcohol and Leisure Industry Group brought an initial rule challenge with the State of Florida Division of Administrative Hearings (DOAH) arguing that rule was unpromulgated and went beyond the scope of the enabling statute. As usual in matters of this sort various industry interest groups chimed in opposing the Appellants position and ultimately DOAH ruled in favor of DABT even though the Division was unable to articulate any operational justification for the rule. Greenspoon Marder appealed the DOAH findings to the 1^st DCA.

For the uninitiated, statues are drafted by and voted on and approved by legislatures. Rules, such as the one challenged in this case, are drafted and enacted by state agencies (in this case, DABT) and provide the terms of implementing or executing upon the statute. A party who is affected by a rule may challenge that rule in the State of Florida on the basis that the rule is an invalid exercise of delegated legislative authority if the agency has exceeded the grant of rule-making authority.

MB Doral attacked the validity of the rule arguing that it enlarged, modified and contravened the statute at hand. In essence, the DABT rule, they argued, far exceeded the authority granted to it by the enabling statue.

DABT argued and cited general statutes that granted it authority to make rules to enact the Beverage Law and that they had the authority to “approve” OPS applications which was sufficient for them to enact and enforce the same county requirement.

At oral argument GM attorney’s persuaded the court that this broad based grant of authority and approval was insufficient for upholding the rule and not a sufficient argument for making approval contingent on the county based limitation. The court agreed, ruling in favor of the GM attorneys and invalidated the longstanding DABT rule paving the way for Florida retailers to maintain off-premise storage locations in counties other than where their licensed business is located.

About Greenspoon Marder

Greenspoon Marder LLP is a full-service law firm with over 240 attorneys and more than 20 office locations across the United States. With operations from Miami to New York and from Denver to Los Angeles, our firm attracts some of the nation’s top talent in key markets and innovation hubs. Our core practice areas include Real Estate, Litigation, and Transactional Services, complemented by the capabilities of a full-service firm. Greenspoon Marder has upheld a spot on The American Lawyer’s Am Law 200 as one of the top law firms in the U.S. since 2015, and our goal is to provide exceptional client service by developing a thorough understanding of each client’s business needs and objectives in order to provide strategic, cost-effective solutions.

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Greenspoon Marder Hospitality, Alcohol & Leisure Blog: A Win on Appeal for the Hospitality, Alcohol and Leisure Industry Group

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