Case 2:14-cv-14430-RLR Document 1 Entered on FLSD Docket 10/28/2014 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA
FORT PIERCE DIVISION

)
)
)
Plaintiff,
)
)
vs.
)
)
Ken Lawson, Secretary of the
)
State of Florida Department of
)
Business and Professional
Regulation, in his official capacity,)
and William Spicola, Director of the)
)
State of Florida Division of
)
Alcoholic Beverages and
Tobacco, in his official capacity, )
)
)
Defendants.
_____________________________ )
The Crafted Keg, LLC,

Civ. Case No. ________________

VERIFIED COMPLAINT
1. This case involves nothing less than a small businesss economic liberty, and
at the same time it involves all Floridians economic liberty, as well. Plaintiff The
Crafted Keg, LLC (The Crafted Keg) alleges that a statute of the State of Florida that
prohibits the selling or filling of 64-ounce containers of beer, known as growlers, has
no

rational

basis

and

thus

violates

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The

Crafted

Kegs

Fourteenth

Case 2:14-cv-14430-RLR Document 1 Entered on FLSD Docket 10/28/2014 Page 2 of 16

Amendment rights to due process and equal protection and is therefore

unconstitutional both facially and as applied.
2. The law at issue is Section 563.06(6) of the Florida Statutes (2014) (Growler
prohibition), a true and correct copy of which is attached as Exhibit 1. This statute
forbids filling, or selling, beer in a container that holds 64-ounces. Violation of the
Growler prohibition carries the threat of being found guilty of a second-degree
misdemeanor, punishable by a fine of up to $500 and 60 days in jail. See 562.45,
Fla. Stat. (2014).
3.

Bans that needlessly stifle growth to benefit big business are

unconstitutional.1 And unconstitutional is exactly what the Growler prohibition is.

The Growler prohibition allows cans of beer, bottles of beer, kegs of beer, pitchers of
beer, and almost everything in between except for containers containing more than
32 ounces, and less than 128 ounces. The large corporate seller of beer can afford to
package its beers in cans, bottles, and the like. But the smaller seller of beerlike
The Crafted Kegcannot afford the costs that moving to that system of packaging
would require. And why should The Crafted Keg have to do so? The 64-ounce
1

Ari Bargil and Claudia Murray Edenfield, Floridas Dirty Dozen: Twelve Repealers
That Can Boost Business, Create Jobs, and Change Floridas Economic Policy for
the Better, Institute for Justice at 22 (Feb. 2014), available at
http://www.ij.org/images/pdf_folder/economic_liberty/fl_repealers/floridas-dirty-d
ozen.pdf.
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growler is the craft brew industry standard, allowed nearly everywherebut not in
Florida. In a state that depends on tourism, being out of the step with the rest of the
country costs craft beer businesses money. The law is irrational.
4. The Crafted Keg seeks a declaratory judgment that the Growler prohibition
is unconstitutional, and preliminary and permanent injunctions to forbid the

Defendants from enforcing the Growler prohibition.

Jurisdiction and Venue
5. This Court has subject matter jurisdiction of the action pursuant to 28 U.S.C.
1331 (federal question); 1343(a)(3) (constitutional violation under color of state
law); 2201 (authorizing declaratory relief); and 2202 (authorizing injunctive
relief). The Crafted Keg seeks redress pursuant to 42 U.S.C. 1983 for deprivations,
under color of municipal law, of its rights secured under the Fourteenth Amendment
to the U.S. Constitution.
6. Venue in this judicial district is proper under 28 U.S.C. 1391(b)(2),
because a substantial part of the events or omissions giving rise to the claims occurred
and are occurring in this district.
Parties
7. The Crafted Keg is a limited liability corporation doing business in the
historic Crary Buchanan Building located in downtown Stuart, Florida. The Crafted
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Keg is a full-time growler bar supplying the best crafted beers, wines, ciders and
sodas from throughout the world. Every day a new keg of different beer is brought
in and sold to the public, allowing for customers to taste a vast assortment of beers
from around the world. Customers can either bring the beer home in their growler or
enjoy it at the restaurant. The Crafted Keg, along with other businesses in downtown
Stuart, has helped revitalize the Stuart business district and downtown nightlife.
8. Defendant Ken Lawson is the Secretary of the State of Florida Department
of Business and Professional Regulation. The Crafted Keg is informed and believes
that, and on that basis alleges, that Mr. Lawson, in his official capacity, is charged
with regulating and enforcing the state laws that apply to businesses and professionals
in the state of Florida. In all of his actions and omissions alleged herein, Mr. Lawson
was acting under color of state law and is being sued in this action in his official
capacity pursuant to Ex parte Young, 209 U.S. 123 (1908).
9. Defendant William Spicola is the Director of the Division of Alcoholic
Beverages and Tobacco. The Crafted Keg is informed and believes that, and on that
basis alleges, that Mr. Spicola, in his official capacity, is charged with supervising the
conduct, management, and operation of the manufacturing, packaging, distribution,
and sale within the state of all alcoholic beverages and is tasked with enforcing the
provisions of the states beverage laws, including the Growler prohibition. See
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561.02, Fla. Stat. (2014). In all of his actions and omissions alleged herein,
Mr. Spicola was acting under color of state law and is being sued in this action
pursuant to Ex parte Young, 209 U.S. 123 (1908).
General Allegations
10. A growler is simply a jug. Growlers are a container for the beer drinker
who wants to drink draft-quality beer at home.
11. Craft brewers and craft beer restauranteurs, like The Crafted Keg, typically
sell beer in 64-ounce growlers, which many patrons collect and then re-use to
purchase beer at other breweries and restaurants.
12. In fact, the 64-ounce growler is the industry-standard size. Forty-seven
states allow beer to be sold in 64-ounce growlers, and allow brewers and
restauranteurs to fill growlers of that size. Floridaa state that depends heavily on
touristsis one of the three states that prohibits the 64-ounce growler size.
13. The Growler prohibition provides that all malt beverages packaged in
individual containers sold or offered for sale by vendors at retail shall be in individual
containers containing no more than 32 ounces of such malt beverages; the law further
allows for the sale of malt beverages packaged in bulk or in kegs or in barrels or in
any individual container containing one gallon (128 ounces) or more of such malt
beverage regardless of individual container type. See 563.06(6), Fla. Stat. (2014).
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14. Because of the Growler prohibition, The Crafted Keg cannot sell, or fill,
64-ounce growlers for its patrons. If it does, it faces penalties including fines of up
to $500 and 60 days in jail. See 562.45, Fla. Stat. (2014).
15. Patrons from other states on vacation in Florida regularly visit The Crafted
Keg with their 64-ounce growlers in tow, and ask the employees of The Crafted Keg
to fill the growlers with the variety of craft beer that The Crafted Keg sells.
16. The Crafted Keg must refuse to fill those growlers, and instead must ask
the patron to purchase either two 32-ounce growlers, or a 128-ounce growler, and to
have those growlers filled. The patrons regularly inform The Crafted Keg that they
do not believe the law prohibits filling a 64-ounce growler, and further state that it
must be that The Crafted Keg is attempting to gouge the tourist.
17. Simply put, the law is so illogical that patrons cannot understand it, and
assume that The Crafted Keg is citing to a fiction in an attempt to take financial
advantage of the tourists. The Crafted Keg regularly loses business based on the
Growler prohibition.
18. There is no rational basis to prohibit the sale of a 64-ounce jug, and for this
reason the Growler prohibition is unconstitutional as both a violation of the Due
Process and Equal Protection Clauses set out in the Fourteenth Amendment.

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INJUNCTIVE RELIEF ALLEGATIONS

19. Plaintiff hereby realleges and incorporates by reference the allegations
contained in Paragraphs 1 through 18.
20. If the Defendants are not enjoined from enforcing the Growler prohibition,
The Crafted Keg will be irreparably harmed. The Crafted Keg is now suffering a
continuous injury due to the enforcement of the Growler prohibition, because it is
unable to sell or fill 64-ounce growlers, leading to a loss of business opportunity and
deprivation of the right to earn a living free of unconstitutional restriction. The
unconstitutional ban inflicts an ongoing loss of business on The Crafted Keg, and all
other businesses similarly situated, and the Court must enjoin the Growler prohibition
in order to put an end to this unconstitutional infringement on The Crafted Kegs
economic liberty. The Defendants practice deprives The Crafted Keg of liberty
without due process of law, and denies it the equal protection of the laws.
21. The Crafted Keg is informed and believes, and on that basis alleges, that
if not enjoined by this Court, the Defendants will continue to enforce the Growler
prohibition and thereby abridge The Crafted Kegs freedom of economic liberty. The
Crafted Keg is informed and believes, and on that basis alleges, that the Defendants
contend that the Growler prohibition is constitutional.

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22. The Crafted Keg faces future fines and penalties if they fill, or sell, a 64ounce, industry-standard growler. See 562.45, Fla. Stat. (2014).
23. Due to the Defendants enforcement of the Growler prohibition, The
Crafted Keg, and others similarly situated, are now and will continue to be denied the
right to pursue their chosen occupation free from restrictions imposed without a
rational basis at law and thus unconstitutionally.
24. The Crafted Keg has no plain, speedy, and adequate remedy at law.
Damages are indeterminate or unascertainable and, in any event, would not fully
redress The Crafted Kegs harm.
25. Accordingly, injunctive relief is appropriate.
DECLARATORY RELIEF ALLEGATIONS
26. The Crafted Keg hereby realleges and incorporates by reference the
allegations contained in Paragraphs 1 through 18 and 20 through 25.
27. An actual and substantial controversy exists between The Crafted Keg and
the Defendants over the constitutionality of the Growler prohibition. The Crafted Keg
contends, pursuant to 42 U.S.C. 1983, that both on its face and as applied to The
Crafted Keg, the Growler law violates the Due Process and Equal Protection Clauses
of the Fourteenth Amendment. The Crafted Keg is informed and believes, and on that
basis alleges, that the Defendants contend that the Growler prohibition is

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constitutional. Moreover, the Florida Supreme Court has ruled that regulations that
detrimentally affect one specific sector of the alcohol industry are unlawful exercises
of the Defendants police power.
28. This case is justiciable now because the Defendants enforcement of the
Growler prohibition has caused and will continue to cause immediate and concrete
injury to The Crafted Keg by preventing it from exercising its Florida and federal
constitutional right to exercise its economic liberty and offer to fill, and sell, 64-ounce
growlers. But for the Defendants enforcement of the Growler prohibition, The
Crafted Keg would sell and fill 64-ounce growlers.
29. Declaratory relief is therefore appropriate to resolve this controversy.
FIRST CLAIM FOR DECLARATORY AND INJUNCTIVE RELIEF
DEPRIVATION OF LIBERTY WITHOUT DUE PROCESS OF LAW
(Pursuant to U.S. Const. amend. XIV & 42 U.S.C. 1983)
30. The Crafted Keg hereby incorporates by reference the allegations contained
in Paragraphs 1 through 18, 20 through 25, and 27 through 29.
31. The Growler prohibition does not bear any relationship to protecting the
public health, safety, or welfare.
32. The Growler prohibition has no rational basis to support the Growler
prohibition, and the Defendants can proffer no rational basis to defend enforcement
of the Growler prohibition.

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33. For example, the Defendants may assert that the Growler prohibition
enhances public safety in that it prohibits the sale of 64-ounces of beer and somehow
discourages drinking and driving. But the Growler prohibition does no such thing.
A patron may lawfully purchase two 32-ounce growlers filled with beer, and that same
patron may lawfully purchase a gallon, 128 ounces, of beer contained in a 128-ounce
growler. In either event, the patron has purchased 64 ounces of beer or more, all of
which could be consumed, just as a 64-ounce growler could be consumed. Moreover,
a beer consumer can buy a six pack, or twelve pack, or even a case of beer at most any
Florida supermarket. These packages will all contain 64 ounces or more of beer.
34.

These different packaging alternatives all allow for the consumption of

64-ounces of beer. It is not the container that leads to a concern for public safety; it
is the abuse of alcohol that leads to the concern for public safety. And a simple jug,
or growler, does not impact public safety. Growlers dont drink and drive. People
who drink too much alcohol drink and drive. And there are laws on the books to
address that concern. The Growler prohibition does not address it.
35. What the law prohibits is the selling of a 64-ounce jug that contains beer.
A jug is not a public menace.

36. By enforcing the arbitrary, irrational, unequal, and fundamentally unfair

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Growler prohibition, the Defendants, acting under color of state law, are depriving and
will continue to deprive The Crafted Keg of its constitutional right to economic liberty
without due process of law.
37. The Crafted Keg is informed and believes, and on that basis alleges, that
the Defendants believe their actions comply with all applicable laws.
38. An actual controversy exists between the parties, in that The Crafted Keg
will continue to suffer an ongoing and irreparable harm unless the further enforcement
of the Growler prohibition is declared unlawful and enjoined by this Court.
SECOND CLAIM FOR DECLARATORY
AND INJUNCTIVE RELIEFEQUAL PROTECTION:
ARBITRARY AND IRRATIONAL DISCRIMINATION

39. The Crafted Keg hereby incorporates by reference the allegations contained
in Paragraphs 1 through 18, 20 through 25, 27 through 29, and 31 through 38.
40. By granting protections and special privileges to containers 32 ounces and
under, and 128 ounces and over, but prohibiting growlers and other beer containers
between 33 and 127 ounces, the Defendants have created an irrational and arbitrary
law that protects established businesses, which sell beer in cans and bottles, against
competition.
41. Preventing the sale and filling of industry-standard 64-ounce growlers
amounts to irrational arbitrary discrimination against The Crafted Keg and other
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similarly situated restauranteurs, and is an example of the Defendants acting under the
color of state law to violate The Crafted Kegs right to equal protection of the laws.
42. The Crafted Keg is informed and believes, and on that basis alleges, that
the Defendants believe their actions comply with all applicable laws.
43. An actual controversy exists between the parties, in that The Crafted Keg
is suffering an ongoing and irreparable harm by the Defendants discriminatory
treatment, and the harm will continue unless the Growler prohibition is declared
unconstitutional and enjoined by this Court.
Prayer for Relief
WHEREFORE, The Crafted Keg prays for relief as follows:
1. For a declaration that the Growler prohibition on its face, and as applied to
The Crafted Keg by the Defendants, deprives The Crafted Keg of liberty without due
process of law in violation of the Due Process Clause of the Fourteenth Amendment
to the United States Constitution;
2. For a declaration that the Growler prohibition on its face, and as applied to
The Crafted Keg by the Defendants, deprives The Crafted Keg of the equal protection
of the laws in violation of the Equal Protection Clause of the Fourteenth Amendment
to the United States Constitution;
3. To permanently enjoin the Defendants, their agents, representatives, and

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employees, from enforcing the Growler prohibition and the criminal penalties
attendant thereto.
4. For an award, pursuant to 42 U.S.C. 1988(b), of reasonable attorney fees,
expenses, and costs; and
5. For such other relief as the Court deems just and proper.
DATED: October 28, 2014.
Respectfully submitted,

CHRISTINA MARTIN
Fla. Bar No. 0100760
Pacific Legal Foundation
8645 N. Military Trail, Suite 511
Palm Beach Gardens, FL 33410
Telephone: (561) 691-5000
Facsimile: (561) 691-5006
E-mail: cmm@pacificlegal.org

By: /s/ Mark Miller

Mark Miller
Fla. Bar No. 0094961
Pacific Legal Foundation
8645 N. Military Trail, Suite 511
Palm Beach Gardens, FL 33410
Telephone: (561) 691-5000
Facsimile: (561) 691-5006
E-mail: mm@pacificlegal.org

Counsel for Plaintiff

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Page 2of3
Case 2:14-cv-14430-RLR Document 1 Entered on FLSD Docket 10/28/2014 Page 15 of 16

We'stlaw.
West's F.S.A. 563.06

Page 1

Effective: October 1, 2001

West's Florida Statutes Annotated Currentness
Title XXXIV. Alcoholic Beverages and Tobacco (Chapters 561-569) (Refs & Annos)
"Iii Chapter 563. Beer (Refs & Annos)
-+-+ 563.06. Malt beverages; imprint on individual container; size of containers; exemptions

(1) On and after October I, 1959, all taxable malt beverages packaged in individual containers possessed by any
person in the state for the purpose of sale or resale in the state, except operators of railroads, sleeping cars,
steamships, buses, and airplanes engaged in interstate commerce and licensed under this section, shall have imprinted thereon in clearly legible fashion by any permanent method the word "Florida" or "FL" and no other
state name or abbreviation of any state name in not less than 8-point type. The word "Florida" or "FL" shall appear first or last, if imprinted in conjunction with any manufacturer's code. A facsimile of the imprinting and its
location as it will appear on the individual container shall be submitted to the division for approval.

(2) Nothing herein contained shall require such designation to be attached to individual containers of malt beverages which are transported through this state and which are not sold, delivered, or stored for sale therein, if
transported in accordance with such rules and regulations as adopted by the division; nor shall this requirement
apply to malt beverages packaged in individual containers and held on the premises of a brewer or bottler, which
malt beverages are for sale and delivery to persons outside the state.

(3) Possession by any person in the state, except as otherwise provided herein, of more than 4 1/2 gallons of
malt beverages in individual containers which do not have the word "Florida" or "FL" as herein provided, shall
be prima facie evidence that said malt beverage is possessed for the purpose of sale or resale.

(4) Except as otherwise provided herein, any malt beverages in individual containers held or possessed in the
state for the purpose of sale or resale within the state which do not bear the word "Florida" or "FL" thereon
shall, at the direction of the division, be confiscated in accordance with the provisions of the Beverage Law.

(5)(a) Nothing contained in this section shall require that malt beverages packaged in individual containers and
possessed by any person in the state for purposes of sale or resale in the state have imprinted thereon the word
"Florida" or "FL" if the manufacturer of the malt beverages can establish before the division that the manufacturer has a tracking system in place, by use of code or otherwise, which enables the manufacturer, with at least
85 percent reliability by July 1, 1996, and 90 percent reliability by January 1, 2000, to identify the following:

1. The place where individual containers of malt beverages were produced;

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

Exhibit 1
https://web2. westlaw.com/print/printstream.aspx?mt= WestlawGC&prft= HTMLE&vr=2. O&destination=...

10/22/2014

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Case 2:14-cv-14430-RLR Document 1 Entered on FLSD Docket 10/28/2014 Page 16 of 16
West's F.S.A. 563.06

Page2

2. The state into which the individual containers of malt beverages were shipped; and

3. The individual distributors within the state which received the individual containers of malt beverages.

(b) Prior to shipping individual containers of malt beverages into the state which do not have the word "Florida"
or "FL" imprinted thereon, the manufacturer must file an application with the division to claim the exemption
contained herein and must obtain approval from the division to ship individual containers of malt beverages into
the state which do not have the word "Florida" or "FL" imprinted thereon. Information furnished by the manufacturer to establish the criteria contained within paragraph (a) may be subject to an annual audit and verification by the division. The division may revoke an approved exemption if the manufacturer refuses to furnish the
information required in paragraph (a) upon request of the division, or if the manufacturer fails to permit a subsequent verification audit, or if the manufacturer fails to fully cooperate with the division during the conducting
of an audit.

(c) When a distributor has information that malt beverages may have been shipped into Florida on which payment of Florida excise taxes has not been made, such information may be provided to the division and the division shall investigate to ascertain whether any violations of Florida law have occurred.

(6) All malt beverages packaged in individual containers sold or offered for sale by vendors at retail in this state
shall be in individual containers containing no more than 32 ounces of such malt beverages; provided, however,
that nothing contained in this section shall affect malt beverages packaged in bulk or in kegs or in barrels or in
any individual container containing I gallon or more of such malt beverage regardless of individual container type.

(7) Any person, firm , or corporation, its agents, officers or employees, violating any of the provisions of this
section, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083;
and the license, if any, shall be subject to revocation or suspension by the division.

CREDIT(S)
Laws 1949, c. 25261, 1 to 5; Laws 1955, c. 29786, 9; Laws 1959, c. 59-143, l; Laws 1961, c. 61-219,
8; Laws 1965, c. 65-246, l; Laws 1969, c. 69-106, 16, 35.; Laws 1971, c. 71-136, 561; Fla.St.1971,
561.471; Laws 1972, c. 72-230, 3; Laws 1986, c. 86-269, 31. Amended by Laws 1988, c. 88-308, 8, eff.
Oct. I, 1988; Laws 1988, c. 88-413, 1, eff. July 7, 1988; Laws 1995, c. 95-346, 12, eff. June 16, 1995; Laws
1996, c. 96-419, 8, eff. June 7, 1996; Laws 200 I, c. 200 I-78, I, eff. Oct. I, 200 I.

Current through Ch. 255 (End) of the 2014 Sp. "A" Sess. of the Twenty-Third Legislature
(C) 2014 Thomson Reuters . No Claim to Orig. US Gov. Works
END OF DOCUMENT

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

Exhibit 1
https://web2. westlaw.com/print/printstream.aspx?mt= WestlawGC&prft= HTMLE& vr=2.0&destination=...

I 0/22/2014