Florida/Georgia Personal Injury & Workers Compensation

...On October 9th, 1951, the appellants, who are retail liquor dealers, purchased on credit $640.74 of merchandise from McKesson-Robbins, Inc., a wholesale liquor dealer of Jacksonville. The appellants did not pay for this merchandise within the time required by Section 561.42, Florida Statutes 1949, F.S.A....

...*718 This Court has heretofore denied the application for Constitutional Writ. See Supreme Court Rule 33, 30 F.S.A., Wingate v. Mach, 114 Fla. 380, 154 So. 192. State ex rel. Watson v. Lee, 150 Fla. 496, 8 So.2d 19. On appeal the appellants contend that the Statute in question; that is, Section 561.42, known as the "Tied House Evil" law is unconstitutional in that it violates Sections 1 and 2 of the Declaration of Rights of the Constitution of the State of Florida, F.S.A., and the Fourteenth Amendment to the Constitution of the Unit...

...l and wholesale outlets and to remove the retail dealer in intoxicating liquors from financial or business obligations to the wholesaler, with the exception of ordinary commercial credit for liquors sold." It is significant to note that the original Section 561.42, which was Section 4 of Chapter 16,774, Laws of 1935, was the original "Tied House Evil" law in this state....

...n the establishment or business of any vendor licensed under the beverage law", and also prohibited any assistance "by * * * gift, or loan of money or property * * or * * * rebates * * *." This Act was amended in 1949 by Chapter 25,340, which is now Section 561.42 under attack....

...as to be, for all practical purposes, one and the same subject, and properly connected with the subject of the liquor industry. We have carefully examined and considered all of the contentions of the appellants and find that they are without merit. Section 561.42, Florida Statutes, F.S.A., does not violate any of the provisions of the State or Federal Constitution, as contended in this proceeding and the Chancellor was correct in denying application for temporary injunction and dismissing the bill of complaint....

...LaRosa, Tallahassee, for appellee. ROBERT P. SMITH, Jr., Judge. Anheuser-Busch appeals from an order of the Division of Alcoholic Beverages and Tobacco *1179 finding that the brewer's promotional "bar spending" for vacationing collegians at Daytona Beach violated Section 561.42(1), Florida Statutes (1979), the "Tied House Evil" law....

...dors and their employees during a four-day period in March 1978. The Division charged that the manufacturer's bar spending constituted "the giving of a gift, loan of money or property or ... the giving of a rebate" to retail vendors, in violation of Section 561.42(1), which provides: (1) No licensed manufacturer or distributor of any of the beverages herein referred to shall have any financial interest, directly or indirectly, in the establishment or business of any vendor licensed under the Bev...

...gifts or loans of money or property of any description or by the giving of any rebates of any kind whatsoever... . Exercising its power to "establish rules ... to enforce the herein established limitation upon credits and other forms of assistance," Section 561.42(8), the Division has promulgated Rules 7A-1.09 and 7A-1.10, Fla....

...Code, amplifying the terms "rebate" and "gift" as used in the statute: 7A-1.09 Rebate. The term "rebate" (often referred to as accumulative promotion or retroactive discount) shall include any refund or discount made or allowed other than such discounts as are permitted under Section 561.42, Florida Statutes [allowing trade discounts in the usual course of business, Section 561.42(6)]; and as such they are prohibited....

...Such would be an inducement for other vendors to carry the products of the promoting manufacturer, thus creating a Tied House effect heretofore condemned in this State. Thus the Division's order in this case equates the antitrust, antifavoritism and antipredator purposes of Section 561.42(1) with the perceived dangers of manufacturers' bar spending....

...The record is not susceptible *1181 to the Division's substituted finding that the bar spending had "substantial intrinsic if not precise worth to the vendor in the party's effect on the vendor's profit, overhead, [and] cash flow... ." Therefore no violation of Section 561.42(1) can be founded particularly on Rules 7A-1.09 and 7A-1.10, whose terms emphasize the "gift" and "rebate" characteristics of direct financial rewards given by a seller to a buyer in return for purchases in the chain of distribution. The Division's order finding a violation of Section 561.42(1) therefore depends less on the precise terms of Rules 7A-1.09 and 7A-1.10 than on the general purposes of the statute itself, whose reach the Division says is illustrated but not exhausted by the Rules: The definitions [Rules 7A-1.09...

...ive rules, and refined and adapted to particular situations through orders in individual cases. See McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Notwithstanding the continued availability of adjudication as a means of Section 561.42(1) policy development within the Division's delegated authority, this plainly is a case of policymaking for which rules are preferable to orders....

...chosen vehicle for policymaking — that, say, Anheuser-Busch bought a lot of its beer from various Daytona Beach taverns in the Spring of 1978 — and then to expound elegantly, but without a record foundation, that those purchases were forbidden by Section 561.42(1)....

...The hearing officer rightly said "the proof does not indicate that particular benefit." And even if that factual premise were shown, the Division's proof does not show further why conferring such a "benefit" through manufacturers' bar spending should be regarded under Section 561.42(1) as equivalent to giving a gift or rebate to, or acquiring a financial interest in, a vendor....

...Because the Division's final order in this case undertook to establish and is based upon nonrule policy which we judge was susceptible of verification by evidence in the proceedings before the hearing officer, but which was not proved by the Division, the order finding violations of Section 561.42(1) and assessing civil penalties lacks a record foundation and is therefore VACATED....

...to plaintiff causing defendant to charge plaintiff with the price of the liquor whereas in fact plaintiff had never ordered or received same. The gist of the action lies because of a report made and filed with the state beverage director pursuant to Section 561.42, Fla. Stat. 1941, F.S.A., because defendant knew or should have known before filing the report that plaintiff was not in fact indebted. Defendant claims both absolute and qualified privilege to preclude recovery. Reliance is upon the statute, Sec. 561.42, Fla....

...The recent decision of this court in Anheuser Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981), should preclude affirmance of the order below. In that case, the agency ruled that a brewer's promotional "bar spending" violated Florida Statutes § 561.42, which prohibits the giving of "any gifts or loans of money or property ......

...56(c) (requiring the non-moving party with the burden of proof at trial to advance "depositions, answers to interrogatories, ... admissions on file" and/or "affidavits" to oppose summary judgment). The only arguable "criminal activity" is that of bribery under the Florida Beverage Law, Fla.Stat. § 561.42(1), as enforced through Fla.Stat....

...Younan, supra, as authority for a recital that where the business engaged in is a privilege rather than a right it is not essential that "a specific prescribed standard" [15] be expressly stated in the legislation, the author also stated and held that: "* * * The plain and specific language of Section 561.42 clearly provides sufficient standards for the adoption of Rule 7A-4.18." [16] Thus it appears from a careful analysis of both the Central Florida Distributing Company case and the Permenter case that in neither did the Courts condone t...

...[12] Constitutional equality applies with equal vigor to privileges as well as rights. Indeed, under our constitution all persons have a "right" to equal treatment by the government and its subdivisions and agencies. [13] Cited and mentioned in Footnote 8, supra. [14] F.S. 561.42....

...The size of the discount is no longer a factor. So long as it is a cash discount given simultaneously at the time of sale and so long as the same discount is offered to all vendors buying similar quantities, it is a discount in the usual course of business and thus exempted from § 561.42 by subsection (6)....

...A fourth class — exporters — is strictly prohibited from engaging in any in-state liquor business, see Division of Beverage v. Bonanni Ship Supply, Inc., 356 So.2d 308 (Fla. 1978), and therefore is unaffected by the present controversy. [4] See 27 U.S.C. § 205(b) (1976). [5] The present prohibition is found in § 561.42(1), Fla. Stat. (1977), which provides: No licensed manufacturer or distributor of [alcoholic beverages] shall ... assist any vendor by any gifts or loans of money or property of any description or by the giving of any rebates of any kind whatsoever. [6] § 561.42(6), Fla....

...s for Appellee. PER CURIAM. This appeal arises from a final order of the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Agency), penalizing a distributor of alcoholic beverages (Taylor) for violating section 561.42(5), Florida Statutes (1995)....

...due diligence on the part of Taylor, is supported by competent, substantial evidence. Heifetz, 475 So.2d at 1281. Accordingly, we REVERSE and REMAND for further proceedings consistent herewith. ERVIN, BOOTH, and VAN NORTWICK, JJ., CONCUR. NOTES [1] Section 561.42(5) prohibits liquor sales to delinquent vendors who fail to show good cause for nonpayment....

...discount given simultaneously at the time of sale. The same discounts shall be offered to all vendors buying similar quantities. Any discount which is in violation of this section shall be considered an arrangement for financial assistance by gift." Section 561.42(1) provides that no licensed distributor shall, "assist any vendor by any gifts or loans of money or property of any description or by the giving of any rebates of any kind whatsoever. No licensed vendor shall accept, directly or indirectly, any gift or loan of money or property of any description or any rebates from any ... licensed manufacturer or distributor; ..." Section 561.42(6) provides that nothing in section 561.42 "shall be taken to forbid the giving of trade discounts in the usual course of business upon wine and liquor sales." Plaintiff also relies upon Attorney General Opinion 073-196, State of Florida, 1973, wherein the Attorney General of Florida said: The size of the discount is no longer a factor. So long as it is a cash discount given simultaneously at the time of sale and so long as the same discount *91 is offered to all vendors buying similar quantities, it is a "discount in the usual course of business" and thus exempted from Section 561.42 by Subsection (6)....

...ction by assessing the tax on four locations in the same room. Anheuser-Busch, Inc. v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 393 So.2d 1177 (Fla. 1st DCA 1981). Hypothetical circuit court allegation: Because section 561.42(1) prohibits only "the giving of a gift, loan of money or property or the giving of a rebate," the Department threatens to act in a way not colorably within its jurisdiction by charging that the brewer illegally bought beer for bar customers....

...n its complaint: "(a) Beer and wine vendors are subjected to a `cash only' purchase policy while vendors of `hard liquors and spirits' are statutorily granted credit up `to the tenth day after the calendar week within which such sale was made' (F.S. § 561.42, F.S.A.); "(b) Beer and wine vendors are discriminated against in that they are treated differently, and with no rational or constitutionally permissible basis for that difference, from all other retail merchants in the denial of credit pur...

...We affirm the order of the DOAH hearing officer sustaining Rule 7A-4.13 of the Division of Alcoholic Beverages and Tobacco against appellant's Section 120.56 challenge that (1) the Rule exercises regulatory powers not granted the Division by the Tied House Evil statute, Section 561.42, Florida Statutes (1979) and that (2) the statute, if construed to authorize the Rule, unconstitutionally discriminates against beer wholesalers and retailers and in favor of their counterparts who deal in distilled spirits and wine, to whom the Rule does not apply....

...If he wishes, a wholesaler may charge a different price for beer every day; but the Rule does require that he announce the price change ten days before it is to become effective. This challenge does not contest the Division's rule-making authority, Section 561.42(8), nor its power thereby to require public posting of wholesale beer prices....

...quipment to retail alcoholic beverage vendors for use in their businesses, and assessed a civil penalty of $2,000.00 against Central because of the violation. The issues are (1) whether Administrative Rule 7A-4.18 contributes an invalid extension of Section 561.42, Florida Statutes; (2) whether Central's right to due process was violated when the hearing examiner considered the Division's official file, which was not introduced into evidence, in arriving at his recommendation as to the penalty; and (3) whether the penalty assessed against Central was reasonable....

...ers and a civil penalty of $1,800.00. The examiner recommended that Central's license be suspended for twenty days. The Division adopted the examiner's findings of fact but reduced the penalty from license suspension to a civil penalty of $2,000.00. Section 561.42 provides that no distributor shall have any financial interest in the business of any vendor. Section 561.11, Florida Statutes, authorizes the Division to promulgate rules to carry out the purposes of the beverage law. The Division adopted Rule 7A-4.18, which provides that it shall be considered a violation of Section 561.42 for any distributor to rent any property to any vendor if the property is used in the vendor's business. The purpose of Section 561.42 is to prohibit any financial obligation between a distributor and a vendor, thus, prevent control of retail outlets. Pickerill v. Schott, 55 So.2d 716 (Fla. 1951). The plain and specific language of Section 561.42 clearly provides sufficient standards for the adoption of Rule 7A-4.18....

...Here, where the business engaged in is a privilege, rather than a right, it is not essential that a specific prescribed standard be expressly stated in the legislation. Permenter v. Younan, 159 Fla. 226, 31 So.2d 387 (1947). Rule 7A-4.18 reasonably carries out the intent of Section 561.42....

...BOYER, C.J., concurs in part and dissents in part. BOYER, Chief Judge (dissenting in part and concurring in part). I respectfully dissent. In my view the leasing of the equipment here involved by a distributor to a vendor is not prohibited *146 by F.S. 561.42(1)....

...laintiff’s competitors exceed the cash discounts allowed appellant on purchases of similar quantities of beverages, which disparity in the amount of discounts allowed constitutes an arrangement for financial assistance by gift in violation of F.S. Section 561.42, F.S.A., commonly referred to as the Tied House Evil Law....

...The complaint herein, however, contains no such allegations and under the present state of the law and regulations of the department, we are of the view that no cause of action has been properly alleged. The judgment appealed is accordingly affirmed. SPECTOR, C. J., and CARROLL, DONALD K., J., concur. . F.S. § 561.42(1), (6), (7), (8), F.S.A....

...discrimination. Castlewood International Corp. v. Wynne, 294 So.2d 321 (Fla.1974). We remanded the cause for proceedings and entry of an order consistent with our view. In return, the trial judge ruled that while § 562.21, F.S., was void, Sections 561.42(1), (2) and (7), F.S., remained in force and required cash payment for sale of beer and wine to retail vendors but that liquor retail vendors could still qualify for a ten day credit....

...ol by weight shall be deemed and held to be intoxicating liquors, wines and beers “All laws and parts of laws in conflict with this Act are hereby repealed. .” (Emphasis added.) On June 14, 1943, Chapter 22078, Laws of Florida, amended the prior § 561.42, F.S., and stated in pertinent part as follows: “ ....

...icating beverage’ and the term ‘intoxicating liquor’ shall include only those liquors, wines and beers containing more than three and two-tenths per cent of alcohol by weight.” (Emphasis added.) Next, in 1947, Chapter 23746, Laws of Florida, § 561.42 F.S., limited the credit for “liquors” sold to vendors up to but not including the 10th day after the calendar week during which the sale was made, but in doing so this law distinguished beer and wine and limited those to cash sales only as provided in § 562.21 with the additional provisio that the law “....

...beer, malt beverage and wine descriptions come within the term and are synonymous with the word “liquor” and “intoxicating liquors” under Chapters 561 and 562, Florida Statutes. Having invalidated § 562.21, F.S., without expressly treating § 561.42, F.S., we now consider the facets of § 561.42(1), (2) and (7), F.S. (in light of the foregoing analysis). These sections permit a ten day credit for “liquors”. Sub-section (8) of § 561.42, F.S., additionally states: “ ....

...[njothing herein shall be taken to affect the provisions for cash sales of wines1 or beer as are provided in § 562.21. . . Certainly this language is now meaningless and vitiated by our previous Opinion. However, sub-section (8) in discussing the application of § 561.42 goes further to state: “....

...afforded “liquor”, i. e., credit, up to, but not including the tenth day after the calendar week in which such sale was made. Obviously, nothing contained herein is or should be construed as a constitutional ruling, vel non, upon the validity of § 561.42, F.S., but to the contrary simply puts a proper construction on that general statute as it now exists and places the referenced beverages in their proper perspective....

effect, but that the “Tied House Evil Statute,” section 561.42, Florida Statutes,1 barred Winn Dixie from

...The sign contained standard outdoor advertising material used by the beer company for advertising its product throughout the country and did not refer to the retail vendor or mention that the product was sold on the premises. The lower court held that in these circumstances there had been no violation of Section 561.42(10), supra, and we agree. The statute with which we are here concerned, Section 561.42, Fla.Stat.1953, F.S....

...ndor’s licensed premises.”' F.S.A. § 561;42(9). Finally, in 1949, by Chapter 25260, also, by an identical provision contained in Chapter 25340, Laws of 1949, the Legislature amended the Act to add what are now Subsections (10), (11) and (12) of Section 561.42, Fla.Stat.1953, F.S.A....

...rs sold.” 48 C.J.S., Intoxicating Liquors, § 197, p. 329, quoted with approval in Pickerill v. Schott, Fla.1951, 55 So.2d 716 . And when viewed in the light of its history and the purpose sought to be attained, it is clear that Subsection (10) of Section 561.42 does not prohibit, per sc, the location of a sign advertising an alcoholic beverage on the outside of a vendor’s premises....

...violated. Here, it is part of the stipulated facts that the lease from the vendor to the outdoor advertising company was entered into “in good faith,” and there is no intimation in the record that the lease was a ruse to evade the prohibition of Section 561.42(10)....

...Whether the furnishing and displaying of a sign of the latter type would amount to an indirect furnishing and displaying of the sign, as prohibited by the statute, need not be decided, since the question is not presented. For the reasons stated, we agree with the court below that there has been no violation of Section 561.42(10), so the decree appealed from should be and it is hereby Affirmed....

...at Overstreet was indebted to them. A temporary injunction was entered without notice to appellant which was subsequently dissolved and the petition dismissed for failure to state a cause of action. Overstreet states two points on his appeal : “1. Section 561.42, Florida Statutes, violates the United States Constitution and the Constitution of the State of Florida in that it constitutes an unlawful delegation of judicial authority, operates to deny the appellant, and • others of a similar cl...

...relief, and the trial court erred in granting the director’s motion to dismiss the complaint, and consequently dissolving the temporary restraining order.” Appellant devotes the major portion of his brief and argument toward the proposition that Section 561.42 requires the Beverage Department Director to determine the existence of a debt and enforcement thereof in contravention of Section 3 of the Declaration of Rights of the State of Florida, F.S.A. 2 For the sake of brevity, we shall not recite in detail the lengthy provisions of F.S. Section 561.42, F.S.A., in view of the able and detailed opinion authored by Justice Mathews in Pickerill v. Schott. 3 Succinctly, appellant urges that the Beverage Director has been designated judge, jury and enforcer for collection of debts due a wholesaler of liquors by a retailer of liquors. Section 561.42 declares as an evil the selling of liquors by a distributor to a retailer on credit extended in excess of a limited period of time....

...or in the legislative halls, and not in our judicial chambers.” The chancellor was eminently correct in finding that the bill was without equity and in dismissing same. Affirmed. CARROLL, DONALD K., Chief Judge,, and WIGGINTON, J., concur. . F.S., § 561.42, F.S.A....