As of Aug. 1, Florida residents can order and receive wine from out-of-state retailers through common carriers. That's big news for fine wine retailers looking to ship to consumers in the Sunshine State, which represents a huge market for alcohol sales. According to Impact Databank, a sister publication of Wine Spectator, 541.7 million gallons of wine, beer and spirits were sold in Florida in 2018. It's the third-most populous state in the U.S.—and now the most populous to allow direct-to-consumer retailer shipping from out of state.
The Florida Department of Alcoholic Beverages and Tobacco (DABT) issued a ruling allowing the practice in response to Indiana retailer Kahn's Fine Wine and Spirits, which filed a request for clarification on the state's regulation in May 2018.
The DABT responded by issuing a declaratory statement granting out-of-state retailers the right to ship into Florida beginning in August 2018. But the decision was appealed by several local wholesaler and distributor associations. The matter was put to rest in a final statement in favor of Kahn's in June 2019.
Battles Around the Nation
This latest development adds Florida to the list of states that allow out-of-state direct-to-consumer retailer shipping, which now includes 15 states and Washington, D.C. In June, Connecticut Gov. Ned Lamont signed legislation that allowed out-of-state retailers to ship directly to that state's residents. Under the law, retailers can send a maximum of 2 cases of wine to one individual in a two-month period. The law went into effect July 1.
Tom Wark, executive director of the National Association of Wine Retailers, says he doesn't expect any more legislation to pass this year. "It's too late in the legislative season and most are already out of session," he told Wine Spectator. "Next year, I expect a push for legislation in New York, Illinois, Michigan and New Jersey."
Where can you order wine from? Check out Wine Spectator's comprehensive guide to state shipping laws.
Multiple shipping battles are being fought in court, however. Advocates for retailer direct shipping are emboldened by the June decision from the U.S. Supreme Court that a Tennessee residency requirement for alcohol retailers violated the Constitution's Commerce Clause. But even with that win on their side, getting such cases through the courts is a lengthy process.
In September 2018, the U.S. District Court for the Eastern District of Michigan ruled that the state's ban on out-of-state retailer shipping is unconstitutional, since it allows in-state retailers to ship. The case is now being appealed by the state of Michigan, as well as the Michigan Beer and Wine Wholesalers Association, in the Sixth Circuit Court of Appeals. "This is the same court that called Tennessee's residency requirement unconstitutional and that the Supreme Court affirmed," noted Wark.
The plaintiff in the Michigan case, Indiana-based retailer Lebamoff Enterprises, also filed a similar suit in Illinois, which was remanded back to the federal district court in November 2018 by the Seventh Circuit Court of Appeals. It is currently being litigated, and court watchers believe a decision will come before the end of this year.
A case in Missouri, brought by Florida-based retailer Sarasota Wine Market, is still moving forward. The U.S. District Court for the Eastern District of Missouri granted the defendant's motion to dismiss in March 2019; the plaintiff filed an appeal with the Eighth Circuit Court of Appeals in April. Wark said he hopes the case wraps up at the end of this year or early 2020.
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Epstein, Cohen, Seif & Porter, the law firm that is representing the plaintiffs in the aforementioned cases, has been looking for other battlegrounds as well. Last month, the firm filed four lawsuits with retailer plaintiffs who are claiming that state bans on out-of-state retailer shipping are unconstitutional.
On July 3, they filed in New Jersey on behalf of New York–based The Wine Cellarage; on July 8, in Indiana for Illinois-based The Chicago Wine Company; on July 10, in Kentucky for Indiana-based Tannins of Indianapolis; and on July 12, in Texas for Illinois-based The House of Glunz.
Getting these cases through will be no easy feat. "It's going to take a long time," partner Robert Epstein told Wine Spectator. However, the recent Supreme Court decision might have cleared a more unencumbered path with yet another precedent and its strong defense of the Commerce Clause.