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Case 2:14-cv-14430-RLR

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Entered on FLSD Docket 10/28/2014

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA FORT PIERCE DIVISION

The Crafted Keg, LLC,

)

)

Plaintiff,

)

)

vs.

)

Civ. Case

)

Ken Lawson, Secretary of the

)

State of Florida Department of

)

Business and Professional

)

Regulation, in his official capacity, ) and William Spicola, Director of the )

State of Florida Division of

)

Alcoholic Beverages and

)

Tobacco, in his official capacity,

)

)

Defendants.

)

)

VERIFIED COMPLAINT

1. This case involves nothing less than a small business’s economic liberty, and

at the same time it involves all Floridians’ economic liberty, as well. Plaintiff The

Crafted Keg, LLC (The Crafted Keg) alleges that a statute of the State of Florida that

prohibits the selling or filling of 64-ounce containers of beer, known as growlers, has

no

rational

basis

and

thus

violates

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The

Crafted

Keg’s

Fourteenth

Case 2:14-cv-14430-RLR

Amendment

rights

to

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Entered on FLSD Docket 10/28/2014

due

process

and

equal

protection

and

is

unconstitutional both facially and as applied.

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therefore

2. The law at issue is Section 563.06(6) of the Florida Statutes (2014) (Growler

prohibition), a true and correct copy of which is attached as Exhibit 1. This statute

forbids filling, or selling, beer in a container that holds 64-ounces. Violation of the

Growler prohibition carries the threat of being found guilty of a second-degree

misdemeanor, punishable by a fine of up to $500 and 60 days in jail. See § 562.45,

Fla. Stat. (2014).

3.

“Bans

that

needlessly

stifle

growth

to

benefit

big

business

are

unconstitutional.” 1 And unconstitutional is exactly what the Growler prohibition is.

The Growler prohibition allows cans of beer, bottles of beer, kegs of beer, pitchers of

beer, and almost everything in between– except for containers containing more than

32 ounces, and less than 128 ounces. The large corporate seller of beer can afford to

package its beers in cans, bottles, and the like. But the smaller seller of beer—like

The Crafted Keg—cannot afford the costs that moving to that system of packaging

would require.

And why should The Crafted Keg have to do so?

The 64-ounce

1 Ari Bargil and Claudia Murray Edenfield, Florida’s Dirty Dozen: Twelve Repealers That Can Boost Business, Create Jobs, and Change Florida’s Economic Policy for the Better, Institute for Justice at 22 (Feb. 2014), available at http://www.ij.org/images/pdf_folder/economic_liberty/fl_repealers/floridas-dirty-d ozen.pdf.

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growler is the craft brew industry standard, allowed nearly everywhere—but not in

Florida. In a state that depends on tourism, being out of the step with the rest of the

country costs craft beer businesses money. The law is irrational.

4. The Crafted Keg seeks a declaratory judgment that the Growler prohibition

is unconstitutional, and preliminary and permanent injunctions to forbid the

Defendants from enforcing the Growler prohibition.

Jurisdiction and Venue

5. This Court has subject matter jurisdiction of the action pursuant to 28 U.S.C.

§ 1331 (federal question); § 1343(a)(3) (constitutional violation under color of state

law); § 2201 (authorizing declaratory relief); and § 2202 (authorizing injunctive

relief). The Crafted Keg seeks redress pursuant to 42 U.S.C. § 1983 for deprivations,

under color of municipal law, of its rights secured under the Fourteenth Amendment

to the U.S. Constitution.

6. Venue in this judicial district is proper under 28 U.S.C. § 1391(b)(2),

because a substantial part of the events or omissions giving rise to the claims occurred

and are occurring in this district.

Parties

7. The Crafted Keg is a limited liability corporation doing business in the

historic Crary Buchanan Building located in downtown Stuart, Florida. The Crafted

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Keg is a full-time “growler bar” supplying the best crafted beers, wines, ciders and

sodas from throughout the world. Every day a new keg of different beer is brought

in and sold to the public, allowing for customers to taste a vast assortment of beers

from around the world. Customers can either bring the beer home in their growler or

enjoy it at the restaurant. The Crafted Keg, along with other businesses in downtown

Stuart, has helped revitalize the Stuart business district and downtown nightlife.

8. Defendant Ken Lawson is the Secretary of the State of Florida Department

of Business and Professional Regulation. The Crafted Keg is informed and believes

that, and on that basis alleges, that Mr. Lawson, in his official capacity, is charged

with regulating and enforcing the state laws that apply to businesses and professionals

in the state of Florida. In all of his actions and omissions alleged herein, Mr. Lawson

was acting under color of state law and is being sued in this action in his official

capacity pursuant to Ex parte Young, 209 U.S. 123 (1908).

9.

Defendant William Spicola is the Director of the Division of Alcoholic

Beverages and Tobacco. The Crafted Keg is informed and believes that, and on that

basis alleges, that Mr. Spicola, in his official capacity, is charged with supervising the

conduct, management, and operation of the manufacturing, packaging, distribution,

and sale within the state of all alcoholic beverages and is tasked with enforcing the

provisions of the state’s beverage laws, including the Growler prohibition.

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See

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§ 561.02, Fla. Stat. (2014).

In all of his actions and omissions alleged herein,

Mr. Spicola was acting under color of state law and is being sued in this action

pursuant to Ex parte Young, 209 U.S. 123 (1908).

General Allegations

10. A growler is simply a jug. Growlers are a container for the beer drinker

who wants to drink draft-quality beer at home.

11. Craft brewers and craft beer restauranteurs, like The Crafted Keg, typically

sell beer in 64-ounce growlers, which many patrons collect and then re-use to

purchase beer at other breweries and restaurants.

12. In fact, the 64-ounce growler is the industry-standard size. Forty-seven

states allow beer to be sold in 64-ounce growlers, and allow brewers and

restauranteurs to fill growlers of that size. Florida—a state that depends heavily on

tourists—is one of the three states that prohibits the 64-ounce growler size.

13. The Growler prohibition provides that all malt beverages packaged in

individual containers sold or offered for sale by vendors at retail shall be in individual

containers containing no more than 32 ounces of such malt beverages; the law further

allows for the sale of malt beverages packaged in bulk or in kegs or in barrels or in

any individual container containing one gallon (128 ounces) or more of such malt

beverage regardless of individual container type. See § 563.06(6), Fla. Stat. (2014).

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14. Because of the Growler prohibition, The Crafted Keg cannot sell, or fill,

64-ounce growlers for its patrons. If it does, it faces penalties including fines of up

to $500 and 60 days in jail. See § 562.45, Fla. Stat. (2014).

15. Patrons from other states on vacation in Florida regularly visit The Crafted

Keg with their 64-ounce growlers in tow, and ask the employees of The Crafted Keg

to fill the growlers with the variety of craft beer that The Crafted Keg sells.

16. The Crafted Keg must refuse to fill those growlers, and instead must ask

the patron to purchase either two 32-ounce growlers, or a 128-ounce growler, and to

have those growlers filled. The patrons regularly inform The Crafted Keg that they

do not believe the law prohibits filling a 64-ounce growler, and further state that it

must be that The Crafted Keg is attempting to gouge the tourist.

17. Simply put, the law is so illogical that patrons cannot understand it, and

assume that The Crafted Keg is citing to a fiction in an attempt to take financial

advantage of the tourists.

Growler prohibition.

The Crafted Keg regularly loses business based on the

18. There is no rational basis to prohibit the sale of a 64-ounce jug, and for this

reason the Growler prohibition is unconstitutional as both a violation of the Due

Process and Equal Protection Clauses set out in the Fourteenth Amendment.

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INJUNCTIVE RELIEF ALLEGATIONS

19. Plaintiff hereby realleges and incorporates by reference the allegations

contained in Paragraphs 1 through 18.

20. If the Defendants are not enjoined from enforcing the Growler prohibition,

The Crafted Keg will be irreparably harmed. The Crafted Keg is now suffering a

continuous injury due to the enforcement of the Growler prohibition, because it is

unable to sell or fill 64-ounce growlers, leading to a loss of business opportunity and

deprivation of the right to earn a living free of unconstitutional restriction.

The

unconstitutional ban inflicts an ongoing loss of business on The Crafted Keg, and all

other businesses similarly situated, and the Court must enjoin the Growler prohibition

in order to put an end to this unconstitutional infringement on The Crafted Keg’s

economic liberty.

The Defendants’ practice deprives The Crafted Keg of liberty

without due process of law, and denies it the equal protection of the laws.

21. The Crafted Keg is informed and believes, and on that basis alleges, that

if not enjoined by this Court, the Defendants will continue to enforce the Growler

prohibition and thereby abridge The Crafted Keg’s freedom of economic liberty. The

Crafted Keg is informed and believes, and on that basis alleges, that the Defendants

contend that the Growler prohibition is constitutional.

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22. The Crafted Keg faces future fines and penalties if they fill, or sell, a 64-

ounce, industry-standard growler. See § 562.45, Fla. Stat. (2014).

23. Due to the Defendants’ enforcement of the Growler prohibition, The

Crafted Keg, and others similarly situated, are now and will continue to be denied the

right to pursue their chosen occupation free from restrictions imposed without a

rational basis at law and thus unconstitutionally.

24. The Crafted Keg has no plain, speedy, and adequate remedy at law.

Damages are indeterminate or unascertainable and, in any event, would not fully

redress The Crafted Keg’s harm.

25. Accordingly, injunctive relief is appropriate.

DECLARATORY RELIEF ALLEGATIONS

26. The Crafted Keg hereby realleges and incorporates by reference the

allegations contained in Paragraphs 1 through 18 and 20 through 25.

27. An actual and substantial controversy exists between The Crafted Keg and

the Defendants over the constitutionality of the Growler prohibition. The Crafted Keg

contends, pursuant to 42 U.S.C. § 1983, that both on its face and as applied to The

Crafted Keg, the Growler law violates the Due Process and Equal Protection Clauses

of the Fourteenth Amendment. The Crafted Keg is informed and believes, and on that

basis

alleges,

that

the

Defendants

contend

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that

the

Growler

prohibition

is

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constitutional. Moreover, the Florida Supreme Court has ruled that regulations that

detrimentally affect one specific sector of the alcohol industry are unlawful exercises

of the Defendants’ police power.

28. This case is justiciable now because the Defendants’ enforcement of the

Growler prohibition has caused and will continue to cause immediate and concrete

injury to The Crafted Keg by preventing it from exercising its Florida and federal

constitutional right to exercise its economic liberty and offer to fill, and sell, 64-ounce

growlers.

But for the Defendants’ enforcement of the Growler prohibition, The

Crafted Keg would sell and fill 64-ounce growlers.

29. Declaratory relief is therefore appropriate to resolve this controversy.

FIRST CLAIM FOR DECLARATORY AND INJUNCTIVE RELIEF DEPRIVATION OF LIBERTY WITHOUT DUE PROCESS OF LAW (Pursuant to U.S. Const. amend. XIV & 42 U.S.C. § 1983)

30. The Crafted Keg hereby incorporates by reference the allegations contained

in Paragraphs 1 through 18, 20 through 25, and 27 through 29.

31. The Growler prohibition does not bear any relationship to protecting the

public health, safety, or welfare.

32.

The Growler prohibition has no rational basis to support the Growler

prohibition, and the Defendants can proffer no rational basis to defend enforcement

of the Growler prohibition.

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33.

For example, the Defendants may assert that the Growler prohibition

enhances public safety in that it prohibits the sale of 64-ounces of beer and somehow

discourages drinking and driving. But the Growler prohibition does no such thing.

A patron may lawfully purchase two 32-ounce growlers filled with beer, and that same

patron may lawfully purchase a gallon, 128 ounces, of beer contained in a 128-ounce

growler. In either event, the patron has purchased 64 ounces of beer or more, all of

which could be consumed, just as a 64-ounce growler could be consumed. Moreover,

a beer consumer can buy a six pack, or twelve pack, or even a case of beer at most any

Florida supermarket. These packages will all contain 64 ounces or more of beer.

34. These different packaging alternatives all allow for the consumption of

64-ounces of beer. It is not the container that leads to a concern for public safety; it

is the abuse of alcohol that leads to the concern for public safety. And a simple jug,

or growler, does not impact public safety. Growlers don’t drink and drive. People

who drink too much alcohol drink and drive.

And there are laws on the books to

address that concern. The Growler prohibition does not address it.

35. What the law prohibits is the selling of a 64-ounce jug that contains beer.

A jug is not a public menace.

36. By enforcing the arbitrary, irrational, unequal, and fundamentally unfair

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Growler prohibition, the Defendants, acting under color of state law, are depriving and

will continue to deprive The Crafted Keg of its constitutional right to economic liberty

without due process of law.

37. The Crafted Keg is informed and believes, and on that basis alleges, that

the Defendants believe their actions comply with all applicable laws.

38. An actual controversy exists between the parties, in that The Crafted Keg

will continue to suffer an ongoing and irreparable harm unless the further enforcement

of the Growler prohibition is declared unlawful and enjoined by this Court.

SECOND CLAIM FOR DECLARATORY AND INJUNCTIVE RELIEF–EQUAL PROTECTION:

ARBITRARY AND IRRATIONAL DISCRIMINATION

39. The Crafted Keg hereby incorporates by reference the allegations contained

in Paragraphs 1 through 18, 20 through 25, 27 through 29, and 31 through 38.

40. By granting protections and special privileges to containers 32 ounces and

under, and 128 ounces and over, but prohibiting growlers and other beer containers

between 33 and 127 ounces, the Defendants have created an irrational and arbitrary

law that protects established businesses, which sell beer in cans and bottles, against

competition.

41.

Preventing the sale and filling of industry-standard 64-ounce growlers

amounts to irrational arbitrary discrimination against The Crafted Keg and other

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similarly situated restauranteurs, and is an example of the Defendants acting under the

color of state law to violate The Crafted Keg’s right to equal protection of the laws.

42. The Crafted Keg is informed and believes, and on that basis alleges, that

the Defendants believe their actions comply with all applicable laws.

43. An actual controversy exists between the parties, in that The Crafted Keg

is suffering an ongoing and irreparable harm by the Defendants’ discriminatory

treatment, and the harm will continue unless the Growler prohibition is declared

unconstitutional and enjoined by this Court.

Prayer for Relief

WHEREFORE, The Crafted Keg prays for relief as follows:

1. For a declaration that the Growler prohibition on its face, and as applied to

The Crafted Keg by the Defendants, deprives The Crafted Keg of liberty without due

process of law in violation of the Due Process Clause of the Fourteenth Amendment

to the United States Constitution;

2. For a declaration that the Growler prohibition on its face, and as applied to

The Crafted Keg by the Defendants, deprives The Crafted Keg of the equal protection

of the laws in violation of the Equal Protection Clause of the Fourteenth Amendment

to the United States Constitution;

3. To permanently enjoin the Defendants, their agents, representatives, and

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employees, from enforcing the Growler prohibition and the criminal penalties

attendant thereto.

4. For an award, pursuant to 42 U.S.C. §1988(b), of reasonable attorney fees,

expenses, and costs; and

5. For such other relief as the Court deems just and proper.

DATED: October 28, 2014.

Respectfully submitted,

CHRISTINA MARTIN Fla. Bar No. 0100760 Pacific Legal Foundation 8645 N. Military Trail, Suite 511 Palm Beach Gardens, FL 33410 Telephone: (561) 691-5000 Facsimile: (561) 691-5006 E-mail: cmm@pacificlegal.org

By:

/s/ Mark Miller

Mark Miller Fla. Bar No. 0094961 Pacific Legal Foundation 8645 N. Military Trail, Suite 511 Palm Beach Gardens, FL 33410 Telephone: (561) 691-5000 Facsimile: (561) 691-5006 E-mail: mm@pacificlegal.org

Counsel for Plaintiff

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Case 2:14-cv-14430-RLR

We'stlaw.

West's F.S.A. § 563.06

Document 1

Entered on FLSD Docket 10/28/2014

Effective: October 1, 2001

Page 15 of 16

Page 2of3

Page 1

West's Florida Statutes Annotated Currentness Title XXXIV. Alcoholic Beverages and Tobacco (Chapters 561-569) (Refs & Annos) "Iii Chapter 563. Beer (Refs & Annos) -+-+ 563.06. Malt beverages; imprint on individual container; size of containers; exemptions

(1) On and after October I, 1959, all taxable malt beverages packaged in individual containers possessed by any person in the state for the purpose of sale or resale in the state, except operators of railroads, sleeping cars, steamships, buses, and airplanes engaged in interstate commerce and licensed under this section, shall have im- printed thereon in clearly legible fashion by any permanent method the word "Florida" or "FL" and no other state name or abbreviation of any state name in not less than 8-point type. The word "Florida" or "FL" shall ap- pear first or last, if imprinted in conjunction with any manufacturer's code. A facsimile of the imprinting and its location as it will appear on the individual container shall be submitted to the division for approval.

(2) Nothing herein contained shall require such designation to be attached to individual containers of malt bever-

ages which are transported through this state and which are not sold, delivered, or stored for sale therein,

transported in accordance with such rules and regulations as adopted by the division; nor shall this requirement

apply to malt beverages packaged in individual containers and held on the premises of a brewer or bottler, which malt beverages are for sale and delivery to persons outside the state.

if

(3) Possession by any person in the state, except as otherwise provided herein, of more than 4 1/2 gallons of malt beverages in individual containers which do not have the word "Florida" or "FL" as herein provided, shall be prima facie evidence that said malt beverage is possessed for the purpose of sale or resale.

(4) Except as otherwise provided herein, any malt beverages in individual containers held or possessed in the state for the purpose of sale or resale within the state which do not bear the word "Florida" or "FL" thereon shall, at the direction of the division, be confiscated in accordance with the provisions of the Beverage Law.

(5)(a) Nothing contained in this section shall require that malt beverages packaged in individual containers and possessed by any person in the state for purposes of sale or resale in the state have imprinted thereon the word "Florida" or "FL" if the manufacturer of the malt beverages can establish before the division that the manufac- turer has a tracking system in place, by use of code or otherwise, which enables the manufacturer, with at least 85 percent reliability by July 1, 1996, and 90 percent reliability by January 1, 2000, to identify the following:

1. The place where individual containers of malt beverages were produced;

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

Exhibit 1

Case 2:14-cv-14430-RLR

West's F.S.A. § 563.06

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Entered on FLSD Docket 10/28/2014

Page 16 of 16

Page 3of3

Page2

2. The state into which the individual containers of malt beverages were shipped; and

3. The individual distributors within the state which received the individual containers of malt beverages.

(b) Prior to shipping individual containers of malt beverages into the state which do not have the word "Florida"

or "FL" imprinted thereon, the manufacturer must file an application with the division to claim the exemption contained herein and must obtain approval from the division to ship individual containers of malt beverages into the state which do not have the word "Florida" or "FL" imprinted thereon. Information furnished by the manu- facturer to establish the criteria contained within paragraph (a) may be subject to an annual audit and verifica- tion by the division. The division may revoke an approved exemption if the manufacturer refuses to furnish the information required in paragraph (a) upon request of the division, or if the manufacturer fails to permit a sub- sequent verification audit, or if the manufacturer fails to fully cooperate with the division during the conducting of an audit.

(c) When a distributor has information that malt beverages may have been shipped into Florida on which pay-

ment of Florida excise taxes has not been made, such information may be provided to the division and the divi-

sion shall investigate to ascertain whether any violations of Florida law have occurred.

(6) All malt beverages packaged in individual containers sold or offered for sale by vendors at retail in this state

shall be in individual containers containing no more than 32 ounces of such malt beverages; provided, however, that nothing contained in this section shall affect malt beverages packaged in bulk or in kegs or in barrels or in any individual container containing I gallon or more of such malt beverage regardless of individual container type.

(7) Any person, firm , or corporation, its agents, officers or employees, violating any of the provisions of this

section , shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083; and the license, if any, shall be subject to revocation or suspension by the division.

CREDIT(S)

Laws 1949, c. 25261, §§

8; Laws

561.471; Laws 1972, c. 72-230, § 3; Laws

Oct.

1 to

l;

5;

Laws

Laws

1955, c. 29786, § 9; Laws

1969, c. 69-106, §§

1, eff. July

1959, c. 59-143, § l; Laws 1961, c. 61-219, §

16, 35.; Laws 1971, c. 71-136, § 561; Fla.St.1971, §

88-308, § 8, eff.

1988; Laws 1995, c. 95-346, § 12, eff. June 16, 1995 ; Laws

1965, c. 65-246,

§

1988; Laws

1986, c. 86-269, § 31. Amended by Laws

7,

1988, c.

I,

1988, c. 88-413, §

1996, c. 96-419, § 8, eff. June 7 , 1996; Laws 200 I , c. 200 I-78 , § I, eff. Oct.

I , 200 I.

Current through Ch. 255 (End) of the 2014 Sp. "A" Sess. of the Twenty-Third Legislature

(C) 2014

Thomson Reuters . No Claim to Orig. US Gov. Works

END OF DOCUMENT

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

Exhibit 1

https://web2.westlaw.com/print/printstream.aspx?mt=WestlawGC&prft=HTMLE&vr=2.0&destination=

I0/22/2014