Florida appellate court overturns regulators and greenlights automated alcohol vending machine sales that implement purchasing oversight much more restrictive and thorough than hotel mini-bars.

La Galere Markets operates gourmet mini-markets inside high-rises that use self-checkout systems. Only building residents can enter the stores. Generally, no employee is on-site. LGM wanted to sell beer and wine in its stores to residents in buildings where its stores operated (sounds like a giant communal mini-bar) and it asked the Florida Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco for guidance on its plan to allow this kind of automated checkout. 

The plan? 

1) the stores with the automated dispensing machines would be in residential buildings that could only be accessed by residents;

2) the residents would need a FOB to access the stores so access was restricted;

3) residents would have to qualify to buy beer and wine from the automated dispensing machines verifying their age and identity and providing biometric data (fingerprint).

That’s right, you’d need to pre-qualify by showing your ID and your fingerprint tagged to that ID would be necessary for a check-out. 

On top of all that, the stores are monitored and purchases are digitally recorded through 24-hour surveillance with electronic payment being the only form of payment accepted – LGM could monitor and maintain records of all transactions.

Again, like a giant communal mini-bar. Hotels do this with in-room access and what they don’t do is monitor or control who accesses the fridge in such a thorough fashion.

The Division refused to issue a declaratory opinion about LGM’s plan after industry groups intervened to oppose the endeavor and also went beyond the request issuing a determination that the plan to sell through automated dispensing machines was not authorized under Florida’s beverage laws because the statutes did not expressly authorize them. – The old, “it doesn’t say they’re allowed, so we say they’re prohibited gambit.”

Thankfully, LGM has some good liquor and regulatory attorneys who saw this for what it was: an opportunity to set some good precedent after a regulator’s unjustified decision making and LGM appealed.

The Florida Appellate Court – The 1st District Court of Appeal – overturned the Department’s decision regarding the determination that the automated dispensing machine program was prohibited by Florida’s beverage laws. You can read the full opinion regarding alcoholic beverage automated dispensing machines here.

The Appellate Court noted that the statutes in Florida authorizing the sale of alcoholic beverages like wine, spirits and beer were not ambiguous and did not prohibit sales from automated machines:

  1. The statute authorizing the Division to oversee sales does not prohibit the distribution or sale of alcohol from automated dispensing machines;
  2. Nothing in the Florida alcoholic beverage statutes requires face-to-face checking of IDs for transactions to sell alcoholic beverages;
  3. Compliance with Florida’s Responsible Vendor Act is voluntary – so the training that employees of alcohol retailers undergo to identify underage customers are not a mandatory and cannot be “violated” by a practice;
  4. Statutes that provide defenses to those that checked IDs for sales of alcohol at the time of the sale would not apply but those statutes only offer defenses in the case of not checking IDs and don’t mandate that checking occur in person (alcohol delivery would be out the door if this was the case);
  5. LGM said it would get licenses so the Department’s statements in an order saying they couldn’t sell because they needed a license was premature; and
  6. LGM could ensure that Department staff had access to be able to inspect the stores regardless of whether an employee physically worked in the store or not.

Sometimes regulatory functions or statutory interpretation get side-tracked when industry members are allowed to intervene and press an agenda or a case that may not just not be in the State’s interest, it may be contrary to the actual law. Thankfully, appellate review cleared up the situation here granting greater access and once again showing that our great-grandparents’ alcohol regulatory system and laws were premised on their infrastructure and drinking habits and need to be rethought and re-drafted to satisfy modern drinking practices and forms of commerce and interaction.

Ashley Brandt

Hi there! I’m happy you’re here. My name is Ashley Brandt and I’m an attorney in Chicago representing clients in the Food and Beverage, Advertising, Media, and Real Estate industries. A while back I kept getting calls and questions from industry professionals and attorneys looking for advice and information on a fun and unique area of law that I’m lucky enough to practice in. These calls represented a serious lack of, and need for, some answers, news, and information on the legal aspects of marketing and media. I've got this deep seeded belief that information should be readily available and that the greatest benefit from the information age is open access to knowledge... so ... this blog seemed like the best way to accomplish that. I enjoy being an attorney and it’s given me some amazing opportunities, wonderful experiences, and an appreciation and love for this work. I live in Chicago and work at an exceptional law firm, Goldstein & McClintock, with some truly brilliant people. Feel free to contact me at any time with any issues, comments, concerns… frankly, after reading this far, I hope you take the time to at least let me know what you think about the blog and how I can make it a better resource.

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