A New Chapter for Tied House Laws: Burger King’s Whopper Bar Wins Florida Alcohol License After 14 Years

Hospitality, Alcohol & Leisure Blog Dec 16, 2024 Miami, FL

By: Louis J. Terminello, Esq. and Brad Berkman, Esq.

After 14 years, the Florida Division of Alcoholic Beverages and Tobacco (DABT) finally closed an administrative action against Burger King. The Consent Order, entered into on October 1, 2024, adds another exception to Florida tied house regulations and the definition of the indirectly interested party.

A Burger King venue, known as the Whopper Bar, found in Miami Beach, Fla., has been embroiled in a long-standing administrative dispute initiated by DABT when it issued a Notice of Intent to Deny License for a new 2COP Beer/Wine alcohol beverage license.

For over 14 years since this action began, the same team, spearheaded by Louis J. Terminello, has represented the Whopper Bar to the conclusion of the matter.

There are many interesting facts associated with this case. First, the Whopper Bar has been operating from a temporary alcohol beverage license for 14 years which is uncommon.

The basic facts are that on December 30, 2010, the Whopper Bar applied for a new 2COP alcohol beverage license for the Miami Beach location. The restaurant was issued a temporary alcohol beverage license and started selling beer at the premises.

Five months after the issuance of the temporary license, DABT served the Whopper Bar with a Notice of Intent to Deny License which stated as the reason(s) for denial of the Applicant’s direct or indirect affiliation with control by, or otherwise, financial interest in a corporation licensed in the State of Florida as a brand registrant or manufacturer of alcoholic beverages.

DABT argued that two Florida statutes prohibited the Whopper Bar from holding a vendor’s license. First, DABT cited Florida Statute 561.42, known as Florida’s Tied House Evil Statue which in part states:

“No manufacturer, distributor, importer, primary American source of supply, or brand owner or registrant of any of the beverages herein referred to, whether licensed or operating in this state or out-of-state, nor any broker, sales agent, or salesperson thereof, shall have any financial interest, directly or indirectly, in the establishment or business of any vendor licensed under the Beverage Law.”

Next, DABT relied on Florida Statute 561.22, which prohibits licensing manufacturers, distributors, and registered exporters as vendors. Subsection 3 states in part that licensure is prohibited “If any applicant for a vendor’s license… is affiliated with, directly or indirectly, any other corporation which is engaged in manufacturing, distributing, or exporting alcoholic beverages under a license or registration of this state or any other state of the United States, or if such applicant corporation is controlled by or the majority stock therein…”

These tied house regulations exist to prevent control over vendors of alcoholic beverages by manufacturers of beverage alcohol.

DABT applied these statutes to an attenuated ownership structure between a vendor of alcoholic beverages and a manufacturer of beverage alcohol, in this instant case and concluded that a prohibited interest existed due to a limited number of board members that sat atop the ownership stream of both the manufacturer licensee and the vendor applicant.

Mr. Terminello and his team took the position that the structure ran counter to the intended spirit and purpose of Florida tied house regulations – monopolistic control of a vendor of alcoholic beverages by a manufacturer. The structure was too far attenuated to give rise to a tied house violation.

Now, after 14 years of various legal interactions, DABT issued a consent order and granted Whopper Bar a license while it remains indirectly owned by a publicly traded manufacturer of alcoholic beverages. The consent order required Whopper Bar to abstain from selling the products of its indirect owner.

Such an order sets a new precedent for DABT and the application of tied-house laws.

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A New Chapter for Tied House Laws: Burger King’s Whopper Bar Wins Florida Alcohol License After 14 Years

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