Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-1713 _____________________________ MB DORAL, LLC, CORRECTED PAGES: pg 5, 9, & 13 CORRECTIONS ARE UNDERLINED IN Appellant, RED AND EXTRA SPACING DELETED MAILED: July 22, 2020 BY: FTA 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. _____________________________ On appeal from a Final Order of the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco. June 29, 2020 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 2 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 1 “Beverage Law” means chapters 561 through 568 of the Florida Statutes. § 561.01(6), Fla. Stat. (2018). 2 We explicitly limit our ruling to receipt of alcohol by licensed vendors at events where the law allows alcohol to be sold. 3 We decline to expand the regulatory authority of an agency based on silence in a statute. State Dep’t of Envtl. Regulation v. Falls Chase Special Taxing Dist., 424 So. 2d 787 (Fla. 1st DCA 1982); Cataract Surgery Ctr. v. Health Care Cost Containment Bd., 581 So. 2d 1359 (Fla. 1st DCA 1991). 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. 4 WOLF and ROBERTS, JJ., concur; 4 KELSEY, J., concurs in part and dissents in part with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ 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.3.) 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. 4 Judge Wolf was assigned to this case after Judge Winsor was appointed to federal court, and has watched the oral argument video. 5 (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. See § 562.03, Fla. Stat. (prohibiting storage of alcohol anywhere except “the building or room shown in the diagram accompanying his or her license application or in another building or room approved by the division”). As a general rule, it is illegal to sell or serve alcohol anywhere except on the physical, licensed premises described in the license application. § 562.06, Fla. Stat. (making off-licensed-premises sales illegal). As an exception to this general rule, licensed vendors such as Martinibar are authorized to sell and serve alcohol at catered events at locations that are not themselves “licensed premises,” if a licensed caterer is providing the food there: Notwithstanding any law to the contrary, any vendor licensed under s. 565.02(1) [i.e., a quota vendor license such as Martinibar’s, limited in number based on population] subject to the limitation imposed in subsection (1), may, without any additional licensure under this subparagraph, serve or sell alcoholic beverages for consumption on the premises of a catered 6 event at which prepared food is provided by a caterer licensed under chapter 509. § 561.20(2)(a)5., Fla. Stat. (emphasis added). 1 Martinibar’s question for the Department was whether distributors can deliver alcohol in quantity directly to the locations of catered events that are not “licensed premises” as defined in statute. On this transportation issue, the majority mistakenly concludes that nothing prohibits distributors from delivering alcohol to catered events that are not on “licensed premises.” To the contrary, that express prohibition exists in section 562.07, which sets a blanket rule prohibiting all deliveries of more than twelve bottles of alcohol, unless an enumerated exception applies—and no exception authorizes distributor delivery to an off- licensed-premises catered event: It is unlawful for alcoholic beverages to be transported in quantities of more than 12 bottles except as follows: (1) By common carriers; (2) In the owned or leased vehicles of licensed vendors or any persons authorized in s. 561.57(3) transporting alcoholic beverage purchases from the distributor’s place of business to the vendor’s licensed place of business or off-premises storage for alcoholic beverages purchased and transported as provided for in the alcoholic beverage law; 1 Section 561.57(1) also permits vendors “to make deliveries away from their places of business of sales actually made at the licensed place of business; provided, telephone, electronic, or mail orders received at a vendor’s licensed place of business shall be construed as a sale actually made at the vendor’s licensed place of business.” No one contends that this provision applies to the issue presented. 7 (3) By individuals who possess such beverages not for resale within the state; (4) By licensed manufacturers, distributors, or vendors transporting alcoholic beverages pursuant to s. 561.57; and (5) By a vendor, distributor, pool buying agent, or salesperson of wine and spirits as outlined in s. 561.57(4). § 562.07, Fla. Stat. 2 The exceptions in this statute demonstrate the error in the majority’s assertion that nothing in the Beverage Law expressly authorizes distributors to deliver alcohol anywhere. The logical conclusion of this assertion would be that distributors cannot even deliver to their own storage and distribution facilities, nor to vendors’ licensed premises and permitted off-site storage locations. No party raised such an argument, and it is incorrect. Section 562.07 clearly and unambiguously states the general rule prohibiting transportation of alcoholic beverages in volume, 2 The Beverage Law includes several other provisions restricting alcohol deliveries. See § 561.221(2)(d) (prohibiting manufacturers that also hold vendor licenses from making deliveries to unlicensed premises); § 561.54(1), Fla. Stat. (prohibiting out-of-state conveyances, manufacturers, and suppliers from delivering alcoholic beverages into Florida except to “qualified manufacturers, distributors, and exporters . . . and to qualified bonded warehouses” in Florida); § 561.545, Fla. Stat. (prohibiting direct shipments and direct-transportation-deliveries of alcoholic beverages to Florida residents who are not validly- licensed manufacturers, wholesalers, or exporters, or not a state- bonded warehouse); § 561.56, Fla. Stat. (authorizing manufacturers, distributors, and exporters to transport alcoholic beverages, or cause them to be transported into Florida from out of state and vice versa, and from place to place within the state, “for sale at wholesale or export as herein provided”). These provisions individually and collectively evidence the Legislature’s strict regulation of alcohol deliveries. 8 and the limited enumerated exceptions under which alcoholic beverages may be delivered lawfully. Section 562.07 references section 561.57 in general and two specific subsections of it. Under section 561.57(3), distributors may make deliveries “from a distributor’s place of business to the vendor’s licensed premises or off-premises storage.” Under section 561.57(4), distributors can make deliveries “from the manufacturer to his or her licensed premises.” No exception applies to Martinibar’s proposal, and therefore the general rule prohibiting delivery applies: distributors cannot make these deliveries. Because the Legislature enacted a general prohibitive rule and then expressly created limited exceptions to that rule, we are not at liberty to expand the enumerated exceptions by judicial fiat as the majority has done. See Smith v. State, 215 So. 3d 113, 115– 16 & n.1 (Fla. 1st DCA 2017) (invoking the principle of expressio unius est exclusio alterius as requiring courts to respect the separation of powers doctrine because “where a statute enumerates the things on which it is to operate, . . . it is ordinarily to be construed as excluding from its operation all those not expressly mentioned”) (quoting Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976)); see also Buzzard v. Buzzard, 412 So. 2d 388, 390–91 (Fla. 2d DCA 1982) (recognizing the general rule that “a court is not authorized in the construction of a statute, to create exceptions not specifically made.” (quoting Ogle v. Heim, 442 P.2d 659, 660 (Cal. 1968))); Marshall v. Hollywood, 224 So. 2d 743, 750 (Fla. 4th DCA 1969) (reasoning that “[t]he specific enumeration of exceptions to the [Marketable Record Title Act limitations] indicates a legislative intent to exclude no other claims”), aff’d, 236 So. 2d 114 (Fla. 1970); Biddle v. State Beverage Dep’t, 187 So. 2d 65, 67 (Fla. 4th DCA 1966) (finding maxim of expressio unius est exclusio alterius to be a “fatal stumbling block” to any judicial attempt to add a statutory exception the legislature did not create in the Beverage Law). The majority improperly extends the governing statutes by refusing to defer to the prohibitive rule of section 562.07, and adding an exception that the Legislature did not enact. We have long adhered to the principle that we will not cross the boundary between interpreting the law and making the law, and we should do so here. “This court is without power to construe an 9 unambiguous statute in a way which would extend, modify, or limit its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.” Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So. 2d 777, 778 (Fla. 1st DCA 1968) (rejecting interpretation of insurance statute that injected requirements the Legislature had not expressly adopted); see also Halifax Hosp. Med. Ctr. v. State, 278 So. 3d 545, 550 (Fla. 2019) (refusing to give statute “a greater effect than its provisions establish”). B. “No Additional Licensure.” The majority likewise improperly attempts to circumvent the clear statutory prohibition of section 562.07 by reasoning that the location of a catered event somehow “becomes” a licensed place of business because section 561.20(2)(a)5. provides that vendors need no additional licensure to serve and sell at catered events as long as food there is provided by a duly-licensed caterer. Or perhaps the reasoning is that that the need for no further licensure by the vendor somehow eliminates the need for any kind of statutory authority for distributors. By the same illogical leap, no one else connected with a catered event should need any kind of licensure— everything is allowed as long as the caterer has its license. By that reasoning, manufacturers could direct-deliver just like distributors could. This reasoning equates apples and oranges. As the majority otherwise recognizes, Florida has a three-tiered system in which each major set of players is separately defined and regulated. Permission given for vendors to sell and serve under their own licenses does not expand to cover other activities by any other player in the industry. Reliance on the “no additional licensure” language is contrary to the statute itself and the Legislature’s express limitation of its application. This provision appears in a section of the statute limiting the number of licenses issued (the quota license system), and then listing as exceptions to that numerical limit certain situations that do not require additional licensure and thus do not count against the quota limits. See § 561.20(2)(a)1.–6., Fla. Stat. The specific subsection, section 561.20(2)(a)5., addresses sales of alcohol at catered events. It authorizes caterers whose sales are more than half food and non-alcoholic beverages to also sell alcohol 10 at catered events without having to get any license other than their catering licenses. It then specifies that quota license vendors like Martinibar can also serve or sell alcohol at catered events, again without having to get another license. This language is immediately followed by a reminder that this part cannot be construed as authorizing anything by implication, but rather the limited authority to sell at a catered event “shall not authorize the holder to conduct activities on the premises to which the other license or licenses apply that would otherwise be prohibited by the terms of that license or the Beverage Law.” § 561.20(2)(a)5., Fla. Stat. This clear statutory language contradicts the majority’s reasoning. In context, section 561.20(2)(a)5. means only that quota- licensed retail vendors like Martinibar are not required to obtain any additional license to serve or sell alcohol at outside events and locations. It applies to them and their retail sales and service. It distinguishes these vendors from other entities that are required to obtain separate licenses to sell alcohol at unlicensed premises, such as caterers selling at horse and dog racetracks and jai alai frontons under section 565.02(5), and entities affiliated with symphony orchestras under section 565.02(8). The “without any additional licensure” provision of section 561.20(2)(a)5. applies only to licensed retail vendors like Martinibar, and applies only to their acts of serving and selling. It does not expand or otherwise modify the rights of any other kind of entity or apply in any other context. It cannot, and does not, modify the general licensed- premises-based restriction on sales codified at section 562.06. It expresses the Legislature’s intention that caterers and quota license vendors have authority to serve or sell alcohol at a catered event without having to get a special license—nothing more, nothing else, and certainly nothing otherwise contrary to the terms of their licensure or the Beverage Law. The majority misconstrues and vastly over-expands this provision to justify its conclusion that this provision eliminates all other obstacles to direct wholesale delivery of alcohol to unlicensed premises. C. Vendor Deliveries at Vendor Expense. The majority also suggests that if licensed vendors are authorized to sell and serve alcohol at catered events without 11 additional licensure, someone must be able to deliver the alcohol there, and distributors must be allowed to fill that service gap. This is contrary to sections 561.57 and 562.07, as already explained; and the statute itself solves the transportation problem in another way. It authorizes vendors themselves to handle those deliveries, as one of the enumerated exceptions to the general rule prohibiting all delivery of more than twelve bottles of alcohol. See § 562.07(4), Fla. Stat. (permitting vendors to transport more than 12 bottles of alcohol under section 561.57). Section 561.57(1) expressly authorizes vendors to make deliveries away from their licensed premises, but only in vehicles the vendor owns or leases, or if the vendor contracts with a third party that will make the deliveries in the third party’s vehicles: Deliveries made by a vendor away from his or her place of business may be made in vehicles that are owned or leased by the vendor or in a third-party vehicle pursuant to a contract with a third party with whom the vendor has contracted to make deliveries, including, but not limited to, common carriers. § 561.57(1), Fla. Stat. The logical extension of the majority’s reasoning and ruling is that the “third party” referenced here can be a wholesale alcohol distributor, and that the vendor need not pay for this off-site delivery, or perhaps can pay at a reduced price that allows it to make a profit. To interpret section 561.57’s reference to “third- party” as including distributors is to ignore all of the governing statutory provisions. A “third party” by definition is not a principal party to a relationship. See Third Party, BLACK’S LAW DICTIONARY (11th ed. 2019) (“Someone who is not a party to a lawsuit, agreement, or other transaction but who is usu[ally] somehow implicated in it; someone other than the principal parties. —Also termed outside party; third person.”). Applying the plain meaning of “third party,” and considering its use in context, the phrase cannot include distributors, which are the only players in Florida’s three-tiered system that have a direct relationship with vendors. This construction is also consistent with the general rule of section 562.07 prohibiting deliveries beyond the enumerated exceptions, of which none applies. In contrast, the majority’s reasoning is 12 inconsistent with the statutory scheme as a whole and inconsistent with specific statutory restrictions on delivery of alcohol. D. Tied-House Evil. Procedurally, I dissent from the majority’s unconditional reversal on the distributor-delivery issue, which is premature. Such distributor delivery might violate Florida’s Tied-House-Evil laws. The Department declined to address this issue on the limited facts presented in the Petition, and I concur in the majority’s affirmance on this issue. As long as that issue is unresolved, our opinion cannot be construed as authorizing the wholesale distributor deliveries Martinibar wants. At most, we should remand for further proceedings if Martinibar wishes to pursue them. 3 E. Conclusion. For all of these reasons, I must respectfully dissent from the majority’s opinion and disposition. _____________________ 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. 3 As to further proceedings, I dissent from the majority’s premise that the Beverage Law is completely silent on the delivery question and therefore rulemaking is required. To the contrary, the statute answers the question in the negative. Further, even if the Beverage Law were silent on the question, then there would exist no legislative authority for rulemaking. See, e.g., Sw. Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So. 2d 594, 598– 600 (Fla. 1st DCA 2000) (interpreting section 120.52(8), Florida Statutes, as prohibiting agency from creating via rulemaking an exemption not specifically authorized in enabling statute). 13 Ross Marshman, Chief Appellate Counsel, and Beth A. Miller, Department of Business and Professional Regulation, Tallahassee, for Appellee Department of Business and Professional Regulation. 14