Florida Calls for Dismissal of Growler Suit

GrowlerFlorida’s Office of the Attorney General has filed a motion to dismiss a lawsuit that calls into question the constitutionality of the state’s long held and controversial ban on 64 oz. growlers.

Currently, 32 and 128 oz. growlers are legal in the state, but 64 oz. packages, which are most commonly used for sales of take-home draft beer, are prohibited, something that many argue is harmful to the burgeoning craft beer industry.

As Brewbound reported last month, the suit was filed initially by the Pacific Legal Foundation (PLF), a free-enterprise legal organization, which is working pro-bono on behalf of the owners of The Crafted Keg, a growler bar that is based in Stuart, Fla. The defendants in the suit are listed as Ken Lawson, secretary of the Florida Department of Business and Professional Regulation (DBPR), and William Spicola, director of the State of Florida Division of Alcoholic Beverages and Tobacco.

In the motion, the state presents the case that the current restrictions are in place to combat excessive drinking and thus derive from a rational basis. Additionally, it posits that the sale of intoxicants is not a constitutional right of any kind, but a privilege.

In detailing how the status quo curbs excessive drinking, the motion for dismissal claims “consumers are significantly more likely to attempt to consume an amount of beer greater than 32 ounces, but less than 128 ounces at one sitting if they can buy that amount at one time in one container.”

A spokesman with the Office of the Attorney General deferred requests for further comment to the DBPR; the DBPR declined to comment as the case is pending litigation.

Mark Miller, the managing attorney with PLF who is representing the plaintiff, however, called the state’s justification of the ban “comical.”

“To me, a good analogy would be if the state said you can’t drive over 70 miles per hour to discourage excessive speeding, but you can go over 100,’” he told Brewbound. “That doesn’t make any sense.”

The ability to consume more than 32 ounces, but less than a gallon — in this case a 64 oz. growler — also creates an opportunity for consumers to be disingenuous about how much they’d had to drink in a given outing, the Attorney General’s office is arguing.

“It is submitted it cannot be considered irrational that, if individuals may buy beer in bottles or jugs of over 32 ounces, but less than one gallon, they may assume that it is reasonable for an individual to drink such bottles or jugs,” according to the motion for dismissal. “Further, they could honestly say, if asked by a spouse, friend or police officer about their drinking, that they had only had, ‘one beer.’”

Miller called it an insult to the intelligence of police officers in the state to insinuate they might believe that a person who just drank 64 ounces of beer had only had “one beer,” adding the state is merely grasping at straws to “defend an indefensible law.”

“The only rational basis they can advance is that it discourages excessive drinking and it doesn’t do that,” he said. “You can still buy the 128 [oz. container] or two 32s.”

The debate surrounding growlers in the state has been a contentious one, as past efforts made by brewers have triggered other legislative efforts that actually tightened other regulation pertaining to small brewers.

Brewers aren’t alone in advocating for change, however. The Beer Industry of Florida, whose MillerCoors-aligned network of wholesalers carry craft, macro and import brands alike, joined the chorus of those in the state that want to see the ban lifted last month.

So what’s next? Miller said PLF plans to file a response to the state’s motion to dismiss and request an oral argument. He expects a ruling to come sometime in the next two months.

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