As Florida posts record-breaking numbers of new COVID-19 cases that make it one of the world’s hottest spots for the virus, the state is under pressure to enforce rules for an economic reopening. Some of Florida’s breweries, however, allege that the state government is unfairly targeting taprooms while allowing restaurants to reopen for on-premise consumption with less scrutiny. Brewery owners and state guild leadership say Florida’s Division of Alcoholic Beverages & Tobacco (AB&T) has deliberately sent armed agents to breweries that have criticized reopening policies.
Aardwolf Brewing Company in Jacksonville, Florida, has been the rare brewery willing to speak publicly about these events. Aardwolf partner Preben Olsen says the AB&T twice visited Aardwolf, including on July 9, when it sent three armed agents with an alleged pre-filled notice of noncompliance. A pre-filled notice would indicate the agents planned to cite Aardwolf based on circumstances they hadn’t yet observed.
(According to a Facebook post written by Olsen that accompanies a photo of the notice, the paperwork was later amended to read that the visit was for “informational purposes.”)
Olsen says the AB&T is being used as a means of intimidation by Halsey Beshears, the appointed head of the Department of Business and Professional Regulation (DBPR), which oversees the AB&T. Olsen believes that the actions of the AB&T are part of a pattern of visits to breweries that have been critical of Beshears.
The DBPR did not respond to GBH’s requests for comment and it’s unclear how many other businesses it has visited or cited. However, according to reporting by the USA Today Florida Network, Florida residents lodged 335 complaints about bars and restaurants not following the governor’s executive order for reopening from May 1-26. During that time, the DBPR issued no fines or other enforcement actions in response. The DBPR later vowed to crack down on such establishments—it did in late June suspend the license of a Tallahassee nightclub flagrantly flouting its orders—but critics say the agency is doing so inconsistently.
(Update: July 24: The DBPR replied to GBH on July 23, noting that the office welcomes the perspective of Florida's brewers "on the steps we can take together in moving Florida forward in this recovery.")
Olsen sees the July 9 visit from AB&T agents as a direct response to emails and phone calls between himself and the DBPR in which Olsen raised concerns about reopening criteria. Just one day before the armed agents arrived at the brewery, Olsen sent an email to Beshears stating Aardwolf’s intention to open a cigar bar exemption in the governor’s executive order. That exemption allows cigar bars to open for on-premise consumption of alcohol—without food—because cigars constitute “nonalcoholic and merchandise sales.”
Aardwolf’s email said—tongue in cheek—the brewery would like to reopen under this exemption, using T-shirts as their non-alcoholic merchandise sales. Olsen emphasizes that the brewery didn’t actually plan to do this; the business was merely trying to make a point. The next day, armed AB&T agents arrived at the brewery.
“With Aardwolf, a strongly worded email has been followed up by an investigation by three armed AB&T agents with that paper saying they’re already not compliant. That seems a little more than coincidental,” says Josh Aubuchon, partner at Delegal Aubuchon Consulting LLC and general counsel for the Florida Brewers Guild.
Aubuchon says AB&T agents have paid similar visits to a few other breweries, but none responded to GBH’s requests for comment. Devon Kreps, the owner of 7venth Sun Brewery, which has locations in Dunedin and Tampa, wrote in a Facebook post July 10: “Breweries are being targeted by one guy with a grudge who is an appointed official who is in charge of a regulatory branch of state government which has nothing to do with health and safety.” Aubuchon says while it looks to him like the AB&T’s visits are retaliatory actions, he can’t prove that they are.
Small business owners are at the mercy of fast-changing executive orders regarding their operations, and the reopening of Florida businesses as COVID-19 cases continue to spike creates a scary balance of economic and public health considerations.
Under Florida’s current Phase 2 of reopening, bars and brewery taprooms are closed for on-premise consumption. Only restaurants can be open for dine-in customers, at 50% capacity and in observation of social distancing rules. There are exceptions, however: Brewpubs are considered restaurants, as are taprooms where owners have their name on the license for a food truck selling on-site. (According to Aubuchon, DBPR is trying to fast-track approval for getting taproom owners’ names on food truck licenses so they can reopen for on-premise consumption.)
“You almost need a Rosetta Stone to figure [these regulations] out,” Aubuchon says. “With 26,000 licensed alcohol beverage vendors, it’s really hard to enforce.”
Olsen feels that inconsistent and unclear reopening policies put small businesses in financial danger, and that unpredictability distracts regulators’ attention from businesses—like bars and theme parks—that are most likely to threaten public health. Meanwhile, brewery owners fear that speaking out about the reopening guidelines would only put them on the AB&T’s radar—potentially trapping them in red tape or causing a visit from agents.
Olsen says there are plenty of bars that are much more crowded and rowdy than taprooms that have been allowed to reopen provided they serve some nominal amount of food. (Indeed, a grilled-cheese restaurant in Windermere, Florida, had drawn national media attention as the site of anti-mask demonstrations.)
“The fact that they’re classifying a bar that serves nachos as a restaurant is crazy. The fact that the strip club down the street from us that has a salad bar is open—that’s crazy,” Olsen says. “They seem to be selectively enforcing against breweries rather than other establishments.”
Olsen says he and his peers want to be treated fairly by regulators. He says including brewery taprooms in the same category as bars and nightclubs under the reopening orders is part of a systemic problem: some lawmakers and regulators think brewery taprooms are havens for poor behavior and overconsumption. According to Olsen, lawmakers don’t fully understand the environment inside brewery taprooms.
“The ones who get it really get it, and they’re big fans, but the ones who don’t absolutely think we’re nightclubs,” Olsen says. “At the end of the day, a bar is a bar is a bar in their minds.”
While regulators’ alleged targeting of Florida breweries seems singular, tensions over how to classify taprooms have cropped up elsewhere.
On Monday, several Texas breweries were ordered to close for dine-in service following an update to the state’s definition of what constitutes a “bar.”. Under Gov. Greg Abbott’s executive order, a bar is defined as any establishment that makes 51% or more of its sales from alcohol rather than food; the clarification states that brewpubs must factor the beer they sell through distributors—not just on-premise—in that equation. Houston’s Saint Arnold Brewing Company said this “defies all logic and common sense.” Austin Beerworks called it “intentional targeting of an iconic Texas business or just a really, really uninformed decision.”
Aardwolf’s taproom has, as of mid-July, been closed more days than it’s been open this year. And COVID-19 had already created economic hardship Olsen says is made worse by reopening regulations. Initially, the brewery saw strong sales of to-go beers in the first phase of reopening, when all bars and restaurants were closed. Now that “any bar with a hot dog roller” can reopen, Olsen says Aardwolf’s to-go beer sales have markedly declined, with average daily spend at the brewery down 28% compared to that first phase.
“People aren’t buying packaged beer to-go if they can go to bars and restaurants,” he says. “This is a worst-case situation for us.”
Aardwolf was able to secure some payroll funding through the CARES Act’s Payroll Protection Program (PPP) and kept most of its brewing staff employed. Bartenders’ hours have been reduced by about a third. Between the first phase of reopening, which began May 16, and a new emergency order issued June 26, brewery taprooms were allowed to open for on-site consumption at reduced capacity, provided they had a food truck on site. During that time, Aardwolf purchased yeast and other brewing ingredients—but now the taproom is closed again.
“Our ingredients are going down the drain, and we don’t have any financial relief this go-around. Our to-go sales have just crashed. We’re in a very bad place,” Olsen says.
His eyes are fixed on July 16, the date he says Beshears promised to make an announcement about updates to the economic reopening plan. According to Olsen, Beshears said that updated COVID-19 data will inform his decision about whether to keep restaurants open and taprooms closed.
Meanwhile, breweries watch as taproom revenue dries up—while gyms, movie theaters, and even Walt Disney World’s parks open for guests.
Words by Kate Bernot