Division of Alcoholic beverages and tobacco
Rule Number 61A-2.023 - Proposed and Final Tax Assessments
Rule Number 61A-3.0141 - Special Restaurant Licenses
Rule Number 61A-3.056 - Licensing Manufacturers as Vendors
The Division does not anticipate preliminary rule language to be prepared in advance of the workshop on March 3, 2015.
For reference, the Division has compiled declaratory statements issued from 1995 – present, available here: Index of Declaratory Statements. The index includes the subject area, petitioner name, year issued, and a link to review the filed copy of each declaratory statement.
Notices to Licensees and Interested Parties
The Department of Business & Professional Regulation, Division of Alcoholic Beverages & Tobacco, is informing the alcoholic beverage industry that the Division has investigated and continues to investigate/audit all aspects of pool buying including, but not limited to, proper record keeping, the conduct of pool buying agents, pool buying members and distributors.
Pool buying is a limited exception to the prohibition against vendor to vendor sales.
Unfortunately, as a result of the Division’s ongoing investigations/compliance audits, it has become apparent that not all industry members are adhering to Florida Administrative Code rule 61A-4.0501.
Pool buying agents, pool buying members and distributors must comply with all Florida Beverage Laws and Rules. Failing to comply will result in the initiation of administrative proceedings pursuant to Section 561.29, Florida Statutes. To that end, the Division’s ongoing compliance audits will include an increased focus on potential pool buying violations.
CASH ONLY, NO SALE AND RELEASED ISSUES
Please select Verify a License to access the ABT Delinquent Invoice & Activity List Search in order to check the cash only, no sale or released status of a retail alcoholic beverage license. If you still have issues with the status, please call 850-488-8284.
TIED HOUSE EVIL
The Department of Business & Professional Regulation, Division of Alcoholic Beverages & Tobacco, is informing the alcoholic beverage industry, and those doing business with members of the industry that the Division has investigated and continues to investigate alleged violations of Florida’s Tied House Law, Section 561.42, Florida Statutes. These investigations have led to administrative action by the Division regarding transactions between licensed wholesale distributors and licensed retail vendors (restaurants, bars, etc.) for unlawful compensation, either directly or indirectly through third party marketing companies, in violation of Section 561.42, Florida Statutes, and the rules implementing this statute.
As a result of the Division’s ongoing investigations and administrative action, certain industry members are adhering to, and the Division has approved, the following set of guidelines in a cooperative effort to cease any further potential unlawful activity generated through marketing companies:
- A distributor, manufacturer, their agent, or marketing company shall not pay a retail vendor to place its brands in the retail vendor’s business.
- A retail vendor, their agent, or marketing company shall not accept any payment from a distributor, manufacturer, or their agent or marketing company for the purchase of any distributors or manufacturers brands.
- A marketing company shall not provide things of value or perform services paid for by the distributor or manufacturer that benefit a retail vendor which cannot be performed legally by the distributor.
Wholesale distributors are requiring signed compliance certifications from all alcoholic beverage marketing companies that incorporate the above guidelines and certifying that they have no ownership interest in any retail vendor licensed to sell alcoholic beverages in the State of Florida before any marketing or promotional services may be performed.
All distributors and retail vendors must comply with all Florida Beverage Laws, specifically Section 561.42, Florida Statutes, and the related tied House rules implementing this statute http://www.myfloridalicense.com/dbpr/abt/Laws.html. Utilization of marketing companies in any manner which fails to comply will result in the initiation of administrative proceedings against both licensed distributors and retail vendors pursuant to Section 561.29(1)(k), Florida Statutes. To that end, the Division’s wholesale compliance audits will include an increased focus on potential tied house evil violations and third party marketing agreements.
Florida’s Beverage Law is contained in chapters 561, 562, 563, 564, 565, 567, and 568, Florida Statutes. In 2005, a federal court held that it is unconstitutional for Florida to prohibit the direct shipment of wine by out-of-state wineries while at the same time authorizing the direct shipment of wine by in-state producers. The remainder of the Florida Beverage Law, however, continues to apply to the sale of alcoholic beverages, including the direct shipment of wine by both in-state and out-of-state wineries.
The following paragraphs highlight several of those sections of law. However, you should be aware that these paragraphs are not intended to provide you with an exhaustive summary of the Beverage Law. You should refer to the statutes themselves, as well as the Department’s rules, in order to familiarize yourself with the entirety of Florida’s Beverage Law, including the full range of penalties for noncompliance.
Florida’s Three-Tier Alcoholic Beverage Licensing Structure
Florida’s Beverage Law makes it a second degree misdemeanor to manufacture, bottle, distribute, sell, or in any way deal in alcoholic beverages without first obtaining a license from the State. Section 562.12, Florida Statutes.
Florida’s three-tier system provides that licensees may only hold licenses within one tier of the system, either as a manufacturer, distributor, or vendor, although Florida law permits Florida wineries to hold a license in more than one tier. Section 561.14, Florida Statutes, provides that manufacturers of alcoholic beverages must be licensed as manufacturers. Distributors must be licensed and may purchase alcoholic beverages from manufacturers to sell to retail vendors only. A retail vendor must be licensed and may sell alcoholic beverages to consumers 21 years of age or older.
Florida’s Beverage Law prohibits any person from holding a license at any tier if he or she “has been convicted within the last past 5 years of any offense against the beverage laws of this state, the United States, or any other state; who has been convicted within the last past 5 years in this state or any other state or the United States of soliciting for prostitution, pandering, letting premises for prostitution, or keeping a disorderly place or of any criminal violation of chapter 893 or the controlled substance act of any other state or the Federal Government; or who has been convicted in the last past 15 years of any felony in this state or any other state or the United States ….” Section 561.15, Florida Statutes. That same prohibition applies to a corporation where any of its officers have been convicted of any of the offenses listed above.
General Prohibitions Regarding Selling or Serving Alcohol
Florida’s Beverage law provides that 'sale’ and ‘sell’ mean any transfer of an alcoholic beverage for consideration, any gift of an alcoholic beverage in connection with, or as a part of, a transfer of property other than an alcoholic beverage for a consideration, or the serving of an alcoholic beverage by a club licensed under the Beverage Law.” Section 561.01, Florida Statutes.
Florida’s legal drinking age is 21, and Florida’s Beverage Law makes it “unlawful for any person to sell, give, serve, or permit to be served alcoholic beverages to a person under 21 years of age ….” Section 562.11, Florida Statutes.
It is illegal to sell alcoholic beverages without a license or, in the case of licensees, to sell alcoholic beverages except as permitted by his or her license. Section 562.12, Florida Statutes. It is also illegal to sell any intoxicating liquors, wines, or beer in any county that has voted against the sale of such beverages. Section 568.02, Florida Statutes.
Prohibitions and Penalties for Failure to Comply with Florida’s Excise Tax
Florida’s Beverage Law prohibits the ownership, possession, purchase, sale, serving, distribution or storage of any alcoholic beverage within the State unless the required excise tax has been paid on the beverage. Sections 562.01 and 562.15, Florida Statutes.
Florida’s Beverage Law provides a number of penalties for possession of alcoholic beverages on which no excise tax has been paid. First, possession of any alcoholic beverage on which tax has not been paid constitutes prima facie evidence that the beverage is being manufactured, sold, removed or concealed with design to evade payment of the excise tax. Section 562.30, Florida Statutes. The only exceptions made are for: licensed manufacturers or distributors, state bonded warehouses, and common carriers.
Second, in addition to any other fines and penalties, Florida’s Beverage Law imposes personal liability on any person or corporation in possession of any such alcoholic beverages. Section 562.16, Florida Statutes. The only exceptions made are for: licensed manufacturers and distributors, state bonded warehouses, common carriers, and persons in possession of less than one gallon of such beverages as long as the beverages were purchased by that person outside of Florida in accordance with the laws of the place of purchase.
Finally, the willful violation of any provision of Florida’s Beverage Law concerning the excise tax constitutes a felony of the third degree. Section 562.45, Florida Statutes.