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Court Rules Florida's Wine-Shipping Ban Unconstitutional

Decision comes only a few weeks after Ohio is forced to allow interstate deliveries to consumers

Dana Nigro

Posted: Monday, August 08, 2005

The barriers to ordering wine online or by mail continue to crumble, as a federal court ruled on Aug. 5 that Florida's ban on interstate shipments of wine is unconstitutional. The decision, which comes only weeks after another court prevented Ohio from enforcing its ban on direct-to-consumer shipments, could make Florida the fourth state, following Connecticut and New York, to loosen its restrictions since the U.S. Supreme Court ruled on the shipping issue in May.

However, winery organizations are waiting for further word from Florida's Division of Alcoholic Beverages as to how the government is going to deal with the order; an announcement is expected on Aug. 9. Pending new legislation or a regulatory change, the Ohio court order stipulated that adult consumers must be allowed to order wine as long as they filed a report and paid taxes, but no such provisions are spelled out in the Florida order. The Florida legislature could address the issue by passing a bill either to allow shipments from all out-of-state and in-state wineries under a permit system or to ban all shipments, but its next regular session isn't scheduled to begin until March 2006.

After Florida reached an agreement earlier this summer with the consumer and winery plaintiffs who had sued the state, U.S. District Judge James Whittemore enjoined Florida from enforcing its shipping statutes against out-of-state wineries. State wholesalers had attempted to intervene with their own proposed order that would have revoked in-state wineries' ability to ship directly to residents, but Whittemore, of the U.S. District Court for the Middle District of Florida in Tampa, declined it.

"Florida's direct-shipment statutes prohibit out-of-state vendors and producers from delivering wine directly to Florida residents whereas in-state producers are not so prohibited," Whittemore wrote in the order. "Florida's statutory scheme requires out-of-state wine to pass through a wholesaler and retailer, whereas wine produced in Florida is not required to pass through a wholesaler and distributors. Florida's statutory scheme thereby discriminates against out-of-state wine producers to the advantage of in-state wine producers in violation of the Commerce Clause and is therefore unconstitutional under Granholm [the Supreme Court decision]."

While the Florida statutes in question apply to all alcoholic beverages, Whittemore stated that only wine was at issue in this case and therefore his ruling does not address beer and spirits shipments.

The Florida lawsuit, Bainbridge v. Turner, was filed in November 1999 and has been slowly working its way through the courts. The six consumer plaintiffs in the case are joined by Chateau Thomas Winery of Indiana, which wants to be able to ship to Florida and other markets. The attorneys, Indianapolis-based Robert Epstein and Indiana University School of Law professor James Alexander Tanford, were also behind the Ohio case and the Michigan case on which the Supreme Court ruled. (In Michigan, state legislators, wholesalers, wineries and consumers are still battling over bills to address the issue.)

Epstein and Tanford have been part of a national effort among wineries and consumers to force states to change their wine-shipping laws by suing them in federal court. The two are responsible for the first-ever federal shipping lawsuit filed by consumers, in Indiana; although an appeals court had upheld the state laws, they filed a new lawsuit there this year, hoping to gain traction from their Supreme Court victory. They also have a 2003 case pending in New Jersey and new suits filed in Arkansas, Kentucky, Massachusetts and Pennsylvania.

"There are more states that are beginning to roll," Epstein said, "and there are some that are still fighting."

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