After beer retailers and distributors challenged a legal exception that helps craft brewers open up tap rooms, two Florida senators put forward a measure doing away with the exception completely—in effect ensuring breweries can sell beer on-site. But that original challenge hasn’t disappeared.
What is a structure? How do you determine whether or not it promotes Florida tourism? And where does Busch Gardens come in?
The theme park—or better, an exception it successfully lobbied for in the 1980s—is at the center of a dispute about beer licensing in the state. Florida has a three tier alcohol distribution system based on the idea of separating businesses involved in brewing distributing and retailing. But, Busch Gardens is the exception that proves the rule.
“It was enacted in ‘84 and truthfully the genesis of the statute that we’re looking at that’s an exception was created in 1963.” Josh Aubuchon, lawyer for the Florida Brewers Guild says, “What it said is nothing will prevent a manufacturer from obtaining a vendor’s license.”
Thanks to heavy Anheusser Busch lobbying, this tourism exception came to be known the Busch Gardens exception, too. Prior to the change, brewers were limited to three vendor’s licenses. When lawmakers altered the statute in 1984, they removed limits on the amount of licenses , but they added language requiring “structures which promote the brewery and the tourist industry of the state.” That’s the exception: you can get a vendors license if your brewery promotes tourism.
But that brings us back to the original question: what’s a structure that promotes tourism?
Florida Retail Federation general counsel, Samantha Padgett points out Busch Gardens had multiple permanent structures.
“You had the Phoenix, the Congo River Rapids, The African Queen boat ride, The Python, and The Scorpion, the bird garden, the Serengeti plain, restaurants, The Dolphin Theater and of course the beer tasting room,” Padgett says. “So you had rides, zoological exhibits, dining establishments and a theater. That’s a lot of stuff.”
Early this year, the Florida Retail Federation launched the administrative challenge that’s brought everyone into a small hearings chamber at the Department of Business and Professional Regulations. At the front of the room is a curved table; four agency officials are alternatively listening attentively and scribbling notes. There’s a court reporter tapping away to one side and fake plants in the corners.
The Retail Federation alleged the department was too readily awarding licenses under the tourism exception. Two beer distributor groups quickly joined the case. But administrative law is a bit unique—the court doesn’t send people to jail or award damages, it considers whether state departments are doing their job correctly.
The case claims it’s unclear how the agency determines if a brewer promotes tourism, and because of that, it should have to initiate rulemaking to clarify its procedures. The department could’ve taken the matter before a judge, but instead it agreed, and set up a rule development meeting.
But there’s a certain sense of futility.
Sen. Jack Latvala (R-Clearwater) is pushing a bill this session that takes aim at the tourism exception and it would leave the rulemaking process moot. Latvala says his bill is directly related to the retail federation’s administrative challenge.
“This addresses the issues raised recently by the lawsuit that was filed by some of the folks in the industry seeking clarification,” Latvala says, “and this amendment will give clarification to that issue.”
But Donna Blanton an attorney representing the Florida Beer Wholesalers Association says a bill isn’t a law, and until the governor signs on the dotted line, the rulemaking should proceed.
“We never know what’s going to happen in the legislative process,” she says, “and the longer I’m around that process the more I learn not to predict what may or may not happen. If in fact they pass something then the department will be dealing with a different statute, but as Mr. Martinez said at the beginning of the workshop today, we are here working under the statute we have now and unless and until that changes that’s what we have to deal with.”
Department officials didn’t come to the workshop with draft proposals in hand, and it’s unlikely they’ll host many more workshops while the legislature is in session.