Greenspoon Marder Hospitality, Alcohol & Leisure Blog: Hawaiian Punch Not Sold Here

Dec 2, 2021 Miami, FL

Most readers will recognize that the Commerce Clause of the United States Constitution is often invoked in matters of the Beverage Law. Plaintiff’s attack state laws on the grounds that they are in violation of the Dormant or Negative Commerce Clause, which in simple terms implies that even when Congress has not acted through the passage of federal law, states may not enact laws that unduly burden interstate commerce absent very limited exceptions (see important state interests and market participation by the state).

As example, a very important case in our industry likely known to the reader is Granholm v. Heald. Michigan law at the time permitted in state wineries to sell directly to consumers within Michigan but did not permit out of state wineries from doing the same. The discriminatory effect of the law to out of state producers was declared unconstitutional by the United States Supreme Court and in violation of the Commerce Clause.

Now to the interesting find in Florida Beverage Law which, in this writer’s opinion would not likely withstand a Commerce Clause attack. It is also written about here to highlight issues of special interest that reside within the text of the Beverage Law. Florida statute 565.04 limits what certain licensees may sell in their stores…in other words it specifies those items which may be sold by vendors of package sales (the common liquor store) and by the plain language of the statute excludes everything else. The law is reprinted below:

565.04 Package store restrictions.

(1) Vendors licensed under s. 565.02(1)(a) shall not in said place of business sell, offer, or expose for sale any merchandise other than such beverages, and such places of business shall be devoted exclusively to such sales; provided, however, that such vendors shall be permitted to sell bitters, grenadine, nonalcoholic mixer-type beverages (not to include fruit juices produced outside this state), fruit juices produced in this state, home bar, and party supplies and equipment (including but not limited to glassware and party-type foods), miniatures of no alcoholic content, and tobacco products. Such places of business shall have no openings permitting direct access to any other building or room, except to a private office or storage room of the place of business from which patrons are excluded.

This writer enjoys a nice cold, freshly squeezed glass of Florida Orange Juice as much as the next beverage alcohol lawyer but is of the opinion that United States Constitution preempts the Florida law excluding the sale of juices manufactured in other states. Of course, given modern production methods and the international trade of fruit juices and their comingling during production, one must wonder if and how this statutory provision is enforced. Enforcement isn’t really the point, however. Favoring special interests over settled federal law is. As the law is written, if I’d like a glass of cold and delicious Hawaiian pineapple juice to mix with my rum I better look somewhere other than my favorite liquor store.

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