MB Doral, LLC v. Fla. Dep't of Bus. & Prof'l Regulation

• Decision Date: 29 June 2020
• Docket Number: No. 1D18-1713,1D18-1713
• Citation: 298 So.3d 132
• Parties: MB DORAL, LLC, Appellant, v. FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Division of Alcoholic Beverages and Tobacco, Beer Industry of Florida, Inc., Florida Beer Wholesalers Association, Inc., and Wine and Spirits Distributors of Florida, Inc., Appellees.
• Court: Florida District Court of Appeals

298 So.3d 132

MB DORAL, LLC, Appellant,

v.FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Division of Alcoholic Beverages and Tobacco, Beer Industry of Florida, Inc., Florida Beer Wholesalers Association, Inc., and Wine and Spirits Distributors of Florida, Inc., Appellees.

No. 1D18-1713

District Court of Appeal of Florida, First District.

June 29, 2020

Louis J. Terminello and Michael Martinez of Greenspoon Marder Law, Miami, for Appellant.

Donna E. Blanton and Thomas A. Crabb, Radey Law Firm, Tallahassee, for Appellees Florida Beer Wholesalers Association, Beer Industry of Florida, Inc., and Florida Beer Wholesalers Association, Inc.

Ross Marshman, Chief Appellate Counsel, and Beth A. Miller, Department of Business and Professional Regulation, Tallahassee, for Appellee Department of Business and Professional Regulation.

Per Curiam.

M.B. Doral, a limited liability company doing business as "Martinibar," appeals a final order of the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco. Martinibar holds a liquor license (referred to as a "quota" license) pursuant to sections 561.20(2) and 565.02(1), Florida Statutes (2018). That license authorizes Martinibar to sell alcohol at certain catered events "without any additional licensure." § 561.20(2)(a)5, Fla. Stat. (2018). Relying on that authorization, Martinibar plans to sell alcohol at big events like music festivals and sporting events, and it hopes to have distributors deliver alcohol directly to the location of these events. According to Martinibar, these on-site deliveries are critical because they will eliminate the costs Martinibar would incur if it had to receive the alcohol at its business location and separately transport it to the event site. Martinibar sought a declaratory statement from the Department as to the legality of these on-site deliveries. See § 120.565, Fla. Stat. (2018) ; Fla. Admin. Code R. 28-105.001 (2007).

The Department issued an order determining that licensed vendors cannot receive deliveries of alcohol at catered events where they can lawfully sell alcohol. Martinibar challenges this determination. Because we find no authority to support the Department's position, we reverse.

We review agencies’ interpretation of statutes de novo. See Art. V, § 21, Fla. Const. Florida Law regulates the alcoholic beverage industry under a three-tiered system, allowing entities to be licensed as either a manufacturer, a distributor, or a vendor. Generally, only vendors may sell alcohol at retail, and generally, sales may only occur on a vendor's "licensed premises." § 562.06, Fla. Stat. (2018) ; see also § 561.01(11), Fla. Stat. (2018) (defining "licensed premises"). But "[n]otwithstanding any law to the contrary," quota licensees may sell at certain catered events. § 561.20(2)(a)5, Fla. Stat. The catered-event exception—which the parties agree allows the event sales Martinibar hopes to make—says nothing about the transportation and delivery of alcohol; separate provisions regulate that.

Section 562.07 makes it illegal to transport alcohol for resale except by a licensed manufacturer, distributor, or vendor acting in compliance with section 561.57. Section 561.57 provides that vendors and distributors may make deliveries away from their place of business, but "only in vehicles that are owned or leased by the licensee." § 561.57(1), (2), Fla. Stat. That section further provides that a vendor may only make deliveries of alcohol that was sold (actually or constructively) at its licensed premises, but distributors are not restricted in this manner. § 561.57, Fla. Stat. The statute contains no restrictions on when, where, or how a distributor may make deliveries, so long as the deliveries are made in an appropriately licensed vehicle. Cf. § 561.56, Fla. Stat. (2018) (providing that distributors may transport alcohol "from one place in this state to another place in this state"). In fact, nothing in the text of chapter 561, the Beverage Law,¹ the Department's rules, or any other authority the Department cites prohibits distributors from making (or vendors from accepting) alcohol deliveries at catered-event sites where alcohol may be sold.²

Despite acknowledging that nothing in the Beverage Law "addresses when or where a licensed alcoholic beverage vendor may receive a delivery of alcoholic beverages purchased by a licensed distributor," Final Order ¶37, the Department concludes that deliveries to catered-event sites are nonetheless unlawful. According to the Department, the Beverage Law's silence actually indicates the Legislature's intent to prohibit deliveries anywhere other than a "licensed premises." Moreover, in arguing that catered-event-site deliveries are unlawful because the Beverage Law does not explicitly authorize them, the Department ignores the fact that the Beverage Law likewise does not explicitly authorize licensed-premises deliveries. In fact, the Beverage Law does not explicitly authorize delivery anywhere; it is silent on that. We cannot from this hold that catered-event-site deliveries are unlawful.³

The intervenors also argue that the Department could not issue a declaratory statement approving catered-event-site deliveries because that would amount to a rule of general applicability, which must be done through rulemaking. It is unclear why a declaratory statement the other way—like the one on appeal—would not likewise be subject to the same argument: If a declaratory statement announcing a practice's lawfulness is a rule of general applicability, so too is a statement announcing a practice's unlawfulness. Regardless, this court has held that when facing a petition for a declaratory statement that would "ha[ve] such a broad and general application that it meets the definition of a rule," the agency still must issue the declaratory statement (if otherwise appropriate) but must simultaneously initiate the rulemaking process. Soc'y for Clinical & Med. Hair Removal, Inc. v. Dep't of Health , 183 So. 3d 1138, 1144 (Fla. 1st DCA 2015) ; accord Fla. DBPR, Div. of Pari-Mutuel Wagering v. Inv. Corp. of Palm Beach , 747 So. 2d 374, 380 (Fla. 1999) (noting that "[a] declaratory statement may not be employed in place of a rule to require compliance with general agency policy") (emphasis added). Moreover, the Department may not avoid issuing a declaratory statement merely because the statement would affect other industry participants. See ExxonMobil Oil Corp. v. State, Dep't of Agric. & Consumer Servs. , 50 So. 3d 755, 758 (Fla. 1st DCA 2010).

In conclusion, we reverse the declaratory statement to the extent it concluded the Beverage Law precluded Martinibar from accepting deliveries at catered-event sites where it lawfully serves alcohol. As to the remaining issue—whether the Department was justified in not addressing whether Martinibar's proposed delivery scheme would violate the tied-house evils law, see § 561.42, Fla. Stat., we affirm based on the petition's lack of particularized facts. Cf. Regal Kitchens, Inc. v. Fla. Dep't of Revenue , 641 So. 2d 158, 162 (Fla. 1st DCA 1994) ("A declaratory statement may be affirmed in part to the extent that it is proper, if the improper parts are severable.").

AFFIRMED in part and REVERSED in part.

Wolf and Roberts, JJ., concur;⁴ Kelsey, J., concurs in part and dissents in part with opinion.

Kelsey, J., concurring in part and dissenting in part.

I dissent from the majority's interpretation of Florida's Beverage Law as allowing wholesale distributors to deliver alcohol to a catered event that is not at a "licensed premise" as the statute defines it, merely because a licensed vendor can sell and serve alcohol there without getting a separate license. What a distributor can do and what a vendor can do are two separate things. Merging them misinterprets the Beverage Law and overlooks the express rule and limited exceptions by which the statute prohibits wholesale distributors from delivering alcoholic beverages to Martinibar at the unlicensed location of catered events.

The majority misconstrues the Beverage Law as simultaneously "contain[ing] no restrictions" on distributors’ deliveries as long as licensed vehicles are used, and providing no authority for deliveries by anyone at all: "In fact, the Beverage Law does not explicitly authorize delivery anywhere; it is silent on that." (See supra p. 134.) Both assertions are wrong. The majority's legal analysis ignores clear and controlling statutory provisions governing where alcohol can be delivered, and who can transport it for delivery. The Beverage Law states a general rule that all deliveries of more than twelve bottles of alcoholic beverages are prohibited, subject only to enumerated exceptions, none of which authorizes the deliveries contemplated here. § 562.07, Fla. Stat. (2018). The majority's analysis ignores this blanket rule/limited exception framework, and violates settled rules of statutory interpretation in applying it. Before examining section 562.07 and its limited exceptions, none of which authorizes distributors to deliver alcoholic beverages directly to a catered event merely because a licensed vendor is selling and serving alcohol there, I will explain the vendor licensing provisions that apply to Martinibar.

A. Statutory Regulation.

Vendor licensees like Martinibar are authorized to store, sell, and serve alcohol at their own "licensed premises," as defined by statute. See § 561.01(11), Fla. Stat. (2018) (defining "licensed premises" as the building in which the licensee will make retail sales, as represented in a diagram on the license application, together with associated storage rooms as well as any sidewalks and other approved areas outside the building as designated on the diagram). "Licensed premises" are limited to the two specified physical locations named in that statute. Licensed vendors may also have off-licensed-premises storage facilities if they obtain separate permits for them....