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Nancy Smith

Florida's 'Growler' Ban Unconstitutional, Lawsuit Claims

October 27, 2014 - 7:00pm

Florida is violating the United States Constitution by arbitrarily banning restaurants, taverns, and breweries from selling or filling the most popular portable jug for craft beers -- the half-gallon (64-ounce) growler.

That's according to a civil rights lawsuit filed today in federal court on behalf of the owners of a downtown Stuart craft beer restaurant, The Crafted Keg. The lawsuit was filed by the national free-enterprise legal organization, Pacific Legal Foundation (PLF).

"It should be an interesting suit as we are fairly certain that this is the first courtroom challenge to the growler ban," said Kate Pomeroy, PLF's Washington, D.C., media director.

"PLF always gets its man, so to speak," retired Orange County attorney Sanford R. Craig told Sunshine State News. Craig was part of a legal team that unsuccessfully opposed PLF a few years ago. "The state is in for a fight on this one."

Surprisingly, the growler ban has been one issue both incumbent Republican Gov. Rick Scott and his Democratic opponent Charlie Crist agree on -- they both back growler legalization. But, for two years in a row, attempts to end the ban were scuttled when lawmakers, acting at the behest of big beer interests, weighed down a bill to repeal the growler ban with new restrictions on brewery sales.

Under current law, breweries can sell beer in quart and gallon-size containers, but they cant fill a half-gallon bottle. Craft brewers want to end the ban.

More specifically, growlers are jugs of beer patrons buy at craft beer establishments and then bring back, or carry to other taverns, breweries, or restaurants, for refills with different kinds of custom brewed beer. Floridas growler restrictions, Fla. Statute Section 563.06(6), allow this practice when it comes to gallon? or quart?sized beer jugs. But the most popular size -- the half-gallon growler -- is prohibited. It cannot be sold or filled by any business in the state.

Said Mark Miller, managing attorney with PLFs Atlantic Center office in Palm Beach Gardens, Florida imposes a double standard by allowing less popular growlers but banning the one people prefer. Floridas restrictions stand in stark contrast to 47 other states, where half-gallon growlers are perfectly legal and have become the industry standard.

There is simply no defensible reason for Florida to single out the most popular craft-brew jug and ban it, Miller continued. Whats the health or safety rationale for telling consumers that a half-gallon jug is off-limits, but two quarter-gallon jugs are fine? Clearly, the ban isnt to help the public, its to protect major beer interests by holding back the growth of craft brewers."

He explained, This is why the growler ban cant be allowed to stand. Protecting a powerful industrys market share isnt a legitimate reason for government restrictions or regulations. It doesnt justify limiting the economic liberty of other businesses and consumers. Under constitutional guarantees of due process and equal rights, regulations must serve the public interest, not the demands of the well-connected for protectionism.

According to a PLF prepared statement, The Crafted Keg is a small-business success story whose ability to serve customers "is undermined by the states unconstitutional ban on popular half-gallon growlers."

Located in one of Stuart's historic downtown buildings, The Crafted Keg was founded last year by Guy Piasecki and his three sons, Matthias, Alex, and Max, along with their partner Zachary Levine. All are beer enthusiasts, says PLF, as well as creative entrepreneurs who recognized an exploding demand for craft beer products.

"Since opening in December, The Crafted Keg has grown steadily in popularity. Customers are offered 58 varieties of craft beer, cider, soda, and wine, along with a variety of meats, cheeses, and other bar foods that go with a good beer," the statement says.

Added Miller, The Crafted Keg is an inspired business venture, but its potential is held back by Floridas unjustified ban on the most popular service it could offer. The Crafted Keg specializes in filling growlers, but it cant fill the growler that most people prefer.

PLF sees the problems for Florida craft brew establishments like The Crafted Keg as particularly acute when it comes to serving tourists -- people from any of the 47 states where businesses are free to sell and refill half-gallon growlers. When out?of?state customers bring in their 64?ounce growlers to be filled, Florida businesses like The Crafted Keg are forced to say "no.

While a Florida business can refill two 32-ounce growlers, or a 128?ounce growler, says PLF, this isnt a welcome alternative, because its more expensive and connoisseurs generally consider the 64-ounce growler as the most convenient size.

Floridas growler restrictions have been found to be limiting the growth of a promising industry, according to Business Week. Though there are 50 craft breweries around the state with another 28 soon to open, a University of Florida study, commissioned by the Florida Brewers Guild, concluded that the state could eventually support 500 craft breweries.

The lawsuit has been filed at a time when a lobbying group for Florida distributors that sell brews from MillerCoors and other large (non-Bud) beermakers is making what looks like a peace offering.

In a video posted to its website Oct. 9, the Beer Industry of Florida promised its support for ending the ban: Were mobilizing an industry-wide coalition to make this new container size legal, no strings attached, says the narrator of the video.

Rep. Katie Edwards, D-Plantation, one of two lawmakers who filed bills in 2013 to legalize the half-gallon jugs, told Sunshine State News she is hopeful peace will reign across the industry after the 2015 legislative session.

"I believe in the principles behind a three-tier system," Edwards said. "However, I believe it's imperative that the Legislature address the antiquated container regulation system set forth in statute. I still believe there is a better way to ensure the craft brews produced by local craftsmen can fit into the existing three-tier system."

Regardless of any lawsuit, she said, "I really think you will see a happy medium in 2015, with everyone doing some give and take."

We want to give everyone great service, but the Florida growler restrictions are a barrier to that, said Alex Piasecki, co-owner of The Crafted Keg. ...Were very grateful that Pacific Legal Foundation is helping us fight this restriction that makes no sense from any reasonable point of view.

The lawsuit was filed inU.S. District Court for the Southern District of Florida, Fort Pierce Division. The case is The Crafted Keg v. Lawson, et. al. -- referring to Ken Lawson, secretary of the Florida Department of Business and Professional Regulation.

Donor-supported Pacific Legal Foundation, with its Atlantic Center as its Florida headquarters, describes itself as"a nonprofit public interest watchdog organization that litigates for limited government, property rights, and free enterprise, in courts across the country."PLF represents The Crafted Keg -- as all its clients -- free of charge.

Reach Nancy Smith at nsmith@sunshinestatenews.com or at 228-282-2423. Twitter: @NancyLBSmith

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