1

Three of the defendants are located in California; one is located in New York. 

United States Court of Appeals,

Eleventh Circuit.

No. 96-2772.

FLORIDA DEPARTMENT OF BUSINESS REGULATION and Robert Butterworth, PlaintiffsAppellants,

v.

ZACHY'S WINE AND LIQUOR, INC., et al., Defendants,

Rochambeau Wines and Liquors, Inc., et al., Defendants-Appellees.

Oct. 24, 1997.

Appeal from the United States District Court for the Northern District of Florida. (No. 95-40462-

WS), William Stafford, Judge.

Before ANDERSON, DUBINA and CARNES, Circuit Judges.

DUBINA, Circuit Judge:

The State of Florida ("State") brought an action seeking to enjoin four out-of-state,

mail-order wine distributors from violating Florida's liquor laws, Fla. Stat. Ann. § 561 et seq. The

district court dismissed the complaint for lack of subject matter jurisdiction. We affirm.

I. STATEMENT OF THE CASE

Defendants/appellees ("defendants") are four out-of-state1

 wine retailers who solicit direct

mail-order business from Florida residents. The State contends that this practice violates Florida's

Beverage Laws, Fla. Stat. Ann. § 561 et seq. Those laws provide that alcoholic beverages imported

into Florida must be shipped to a licensed, in-state manufacturer or distributor and may be sold only

by licensed, in-state vendors. Fla. Stat. Ann. §§ 561.14, 561.54, 561.57. The Florida Division of

Alcoholic Beverages and Tobacco notified defendants of the alleged violations, but defendants did

not alter their business practices.

The State filed a five-count complaint against defendants seeking an injunction compelling

defendants to comply with the licensing requirements of the Florida Beverage Laws. The State also

alleged state law claims for payment of unpaid excise taxes, sales taxes, and license fees. The State
 2

In addition to the parties' briefs, we have the benefit of an amicus brief from the United

States and an amicus brief from the National Alcohol Beverage Control Association, Inc., and

the National Conference of State Liquor Administrators. Both amicus briefs support the State's

position. 

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invoked jurisdiction under 28 U.S.C. § 1331, which provides that district courts shall have

jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States,

and 28 U.S.C. § 1337, which provides that district courts shall have jurisdiction over actions arising

under acts of Congress regulating commerce. Specifically, the State claimed that its federal claim

arose under the Twenty-first Amendment, the Wilson Act, 27 U.S.C. § 121, and/or the WebbKenyon Act, 27 U.S.C. § 122. The State contended that the district court had supplemental

jurisdiction over the Florida state law claims pursuant to 28 U.S.C. § 1367(a).

Defendants moved to dismiss for lack of subject matter jurisdiction. The district court

granted the motion, finding that neither the Twenty-first Amendment, the Wilson Act, nor the WebbKenyon Act supplied a federal right of action for failure to comply with state liquor laws. In the

absence of a federal claim, the district court concluded that it lacked subject matter jurisdiction to

hear the case. The State then perfected this appeal.2

On appeal the State argues that the Webb-Kenyon Act provides the State with a federal cause

of action to enjoin the direct shipment of alcoholic beverages to Florida residents by out-of-state

distributors in violation of state liquor laws. The State abandons its reliance on the Twenty-first

Amendment and the Wilson Act.

II. DISCUSSION

A. Background of the Webb-Kenyon Act

"Since the founding of our Republic, power over regulation of liquor has ebbed and flowed

between the federal government and the states." Castlewood Int'l Corp. v. Simon, 596 F.2d 638, 641

(5th Cir.1979). In The License Cases, 46 U.S. (5 How.) 504, 579, 12 L.Ed. 256 (1847), the Supreme

Court recognized broad state authority to regulate alcohol, noting that states were free from the

implied restrictions of the Commerce Clause. U.S. Const. art.I, § 8, cl.3. In 1890, however, the
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The Wilson Act specifically provides:

All ... intoxicating liquors ... transported into any State or Territory ... for use,

consumption, sale, or storage therein, shall upon arrival in such State or Territory

be subject to the operation and effect of the laws of such State or Territory

enacted in the exercise of its police powers, to the same extent and in the same

manner as though such ... liquors had been produced in such State or Territory....

27 U.S.C. § 121. 

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Court struck down an Iowa law regulating the sale of liquor shipped from out-of-state. Leisy v.

Hardin, 135 U.S. 100, 10 S.Ct. 681, 34 L.Ed. 128 (1890). The Court held that the law ran afoul of

the Commerce Clause's grant to Congress of exclusive authority to regulate commerce among the

states. In response to Leisy, Congress passed the Wilson Act later that same year. The Wilson Act

provided that alcoholic beverages shipped from out-of-state became subject to the laws of the

receiving state upon arrival in that state.3

The Supreme Court held that the Wilson Act was constitutional. See In re Rahrer, 140 U.S.

545, 11 S.Ct. 865, 35 L.Ed. 572 (1891). However, the Court later ruled that the Wilson Act did not

authorize application of state regulatory laws to liquor still in transit, and did not allow states to

prohibit individuals from ordering liquor for personal consumption from out-of-state vendors. See

Rhodes v. Iowa, 170 U.S. 412, 18 S.Ct. 664, 42 L.Ed. 1088 (1898); Vance v. W.A. Vandercook Co.,

170 U.S. 438, 18 S.Ct. 674, 42 L.Ed. 1100 (1898).

In 1913, Congress closed these loopholes by passing the Webb-Kenyon Act, which was

entitled "An act divesting intoxicating liquors of their interstate character in certain cases." The

Webb-Kenyon Act prohibits the shipment or transportation of liquor into a state if the liquor is

intended to be received, possessed, sold, or otherwise used in violation of the law of the receiving

state. The Act specifically provides:

The shipment or transportation, ... of any ... intoxicating liquor of any kind, from one State,

... into any other State ... which ... intoxicating liquor is intended, by any person interested

therein, to be received, possessed, sold, or in any manner used, either in the original package

or otherwise, in violation of any law of such State, ... is hereby prohibited.
 4

Wenger predates modern implied right of action analysis, discussed infra; however, it is

useful because it is on point. 

4

27 U.S.C. § 122. In James Clark Distilling Co. v. Western Md. Ry. Co., 242 U.S. 311, 37 S.Ct. 180,

61 L.Ed. 326 (1917), the Court stated that the purpose of the Webb-Kenyon Act "was to prevent the

immunity characteristic of interstate commerce from being used to permit the receipt of liquor

through such commerce in States contrary to their laws, and thus in effect afford a means by

subterfuge and indirection to set such laws at naught." 242 U.S. at 324, 37 S.Ct. at 184.

The Twenty-first Amendment was ratified in 1933. In addition to repealing Prohibition, the

Twenty-first Amendment in effect constitutionalizes the Webb-Kenyon Act. Section 2 of the

Twenty-first Amendment "reserves to the States power to impose burdens on interstate commerce

in intoxicating liquor that, absent the Amendment, would clearly be invalid under the Commerce

Clause." Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 712, 104 S.Ct. 2694, 2707, 81 L.Ed.2d

580 (1984) (citations and quotations omitted). Section 2 "represents the only express grant of power

to the states, thereby creating a fundamental restructuring of the constitutional scheme as it relates

to one product—intoxicating liquors." Castlewood Int'l Corp., 596 F.2d at 642.

B. Whether Florida has an implied right of action

 The Webb-Kenyon Act does not explicitly provide that states may bring a cause of action

in federal court to enforce its terms. Nevertheless, the State contends that it has an implied federal

right of action under the Webb-Kenyon Act. The district court disagreed and so do we.

There is very little case law on this subject. One reported decision addresses this issue

directly and was heavily relied upon by the district court. See Georgia v. Wenger, 94 F.Supp. 976

(E.D.Ill.1950), aff'd, 187 F.2d 285 (7th Cir.1951).4

 In Wenger, the State of Georgia brought a suit

for damages in federal district court against an Illinois defendant who allegedly had shipped liquor

to Georgia without paying Georgia taxes and warehouse charges. The defendant moved to dismiss

for lack of jurisdiction, arguing that there was no federal question because Georgia's claims arose
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We note, however, that even though the State seeks injunctive relief only under the WebbKenyon Act, its state law claims are for monetary damages. 

5

under state law. Georgia argued that it had a federal right under the Webb-Kenyon Act and the

Twenty-first Amendment. The district court agreed with the defendant and found no right of action.

The district court in Wenger outlined the history and purpose of both the Twenty-first

Amendment and the Webb-Kenyon Act. The district court noted that in passing the Twenty-first

Amendment, Congress, the states, and the people of the United States intended "to place the states

in position to put their respective policies relating to intoxicants into effect by state legislation

without hindrance due to constitutional limitation applicable to ordinary articles of commerce."

Wenger, 94 F.Supp. at 982. The Twenty-first Amendment also "anticipated and rendered harmless

a possible repeal of the Webb-Kenyon Act." Id. The district court stated that it found no authority

that the Webb-Kenyon Act nor the Twenty-first Amendment gives rise to any legal right which will

sustain a cause of action for damages. Accordingly, the district court concluded:

Both by history and by judicial interpretation in the light of history the intended scope and

purpose of [the Twenty-first Amendment and the Webb-Kenyon Act] is to divest liquor in

interstate commerce of its interstate character so as to deprive it of all immunity from state

control. Neither serves to give the states enforceable civil rights but only serves as enabling

authority for broader state legislation relating to intoxicants.

Id. at 981-82. The Seventh Circuit affirmed, stating that the district court "correctly held that no

cause of action of the nature asserted here arose under the [Twenty-first] Amendment or the WebbKenyon Act." Wenger, 187 F.2d at 287.

The State contends that Wenger is distinguishable because it involved a claim for monetary

damages under the Webb-Kenyon Act, and here, by contrast, the State seeks injunctive relief only.5

This is a distinction without a difference. The analytical starting point is ascertaining whether

Florida has an independent right of action under the Webb-Kenyon Act. If the State does, then—and

only then—does the court reach the question of what remedies are available to the State. See

Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 65-66, 112 S.Ct. 1028, 1032, 117 L.Ed.2d 208

(1992)("As we have often stated, the question of what remedies are available under a statute that
 6

During oral argument, in response to a panel member's question regarding whether Wenger is

distinguishable, counsel for the State was unable to provide the court with an adequate response

other than the one mentioned in the brief and discussed infra. 

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provides a private right of action is analytically distinct from the issue of whether such a right exists

in the first place.")(quotation and citation omitted). Thus, we do not believe Wenger is

distinguishable merely because it involved a claim for damages.6

The United States, as amicus, argues that West Virginia v. Adams Express Co., 219 F. 794

(4th Cir.1915), is a more appropriate precedent. In Adams Express, West Virginia brought an action

in state court to enjoin Ohio defendants from direct-mailing liquor to West Virginia residents in

violation of state law. The defendants removed the action to federal district court. The district court

denied the injunction on the ground that the state law was invalid under the Commerce Clause. The

Fourth Circuit reversed, holding that the Webb-Kenyon Act was "a direct recognition of the right

of the state to prohibit the receipt or delivery as well as the possession and use of liquor, without

trespassing upon the power of Congress to regulate interstate commerce." Id. at 801. Consequently,

the state law was valid and entitled West Virginia to injunctive relief.

The State argues that Adams Express indicates that the Webb-Kenyon Act permits states to

enforce their liquor laws in federal court. The Adams Express court, however, did not state that

West Virginia had a right of action under Webb-Kenyon itself. The district court noted that the

defendants invoked removal jurisdiction because "the suit is one arising under the Constitution or

laws of the United States." 219 F. 331 (S.D.W.Va.1914). The court, unfortunately, did not elaborate

because the state did not contest this basis for jurisdiction. Thus, the basis for subject matter

jurisdiction in that case remains unclear.

 In considering the State's contention that it has an implied right of action, we must consider

the Supreme Court's pronouncement on this topic. The Court has set forth four relevant factors to

determine whether a statute implies a right of action:

First, is the plaintiff "one of the class for whose especial benefit the statute was

enacted"—that is, does the statute create a federal right in favor of the plaintiff? Second, is

there any indication of legislative intent, explicit or implicit, either to create such a remedy
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or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme

to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally

relegated to state law, in an area basically the concern of the States, so that it would be

inappropriate to infer a cause of action based solely on federal law?

Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975)(quotation & citations

omitted). Subsequent decisions have clarified that the most important factor is whether Congress

intended to create a cause of action. See e.g., Transamerica Mortgage Advisors, Inc. v. Lewis, 444

U.S. 11, 15-16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979); Collins v. FMHA-USDA, 105 F.3d

1366, 1367-68 (11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 2528, 138 L.Ed.2d 1028 (1997).

"Congressional intent to create a private right of action will not be presumed. There must be clear

evidence of Congress's intent to create a cause of action." Baggett v. First Nat'l Bank of Gainesville,

117 F.3d 1342, 1345 (11th Cir.1997)(citing Touche Ross & Co. v. Redington, 442 U.S. 560, 570,

99 S.Ct. 2479, 2486, 61 L.Ed.2d 82 (1979)). The State and its amici argue that application of this

analysis compels a ruling in Florida's favor. We disagree.

In considering the four Cort v. Ash factors, only the first one favors Florida's position: the

Webb-Kenyon Act was enacted for the benefit of the states. The most important

factor—Congressional intent—weighs against the State. The State cites no affirmative evidence that

Congress intended the Act to create an independent cause of action enforceable in federal court.

Indeed, the United States concedes in its amicus brief that "there is no express legislative history

confirming the right of states to enforce Webb-Kenyon, ..." Br. of United States at 13.

Nor does it appear that the legislative history implicitly supports an independent cause of

action under Webb-Kenyon. The United States' brief, for example, quotes one of the Act's sponsors,

Senator Kenyon, as stating that the Act's "purpose, and its only purpose, is to remove the

impediment existing to the States in the exercise of their police powers regulating the traffic or

control of intoxicating liquors within their borders." Br. of United States at 5 (emphasis added).

If the only purpose of the Act was to grant states authority to exercise their own police powers, it

follows that the Act did not also create a federal cause of action.
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In addition, Congress passed the Reed Amendment in 1917, which originally banned the

advertisement of liquor and provided for federal criminal enforcement of the Webb-Kenyon Act.

Congress intended to "ma[ke] the liquor traffic a Federal offense in certain cases, instead of merely

subjecting that traffic to the operation of State laws." H.R.Rep. No. 74-1258, at 3 (1935). From

1919 to 1933, the Webb-Kenyon Act and the Reed Amendment were superseded by the Prohibition

laws. But in 1933, the Twenty-first Amendment became effective, ending Prohibition, and

effectively constitutionalizing the Webb-Kenyon Act. In 1934, Congress amended the Reed

Amendment to delete the provisions banning the advertising of liquor.

In 1936, Congress enacted the "Liquor Enforcement Act," which was an act "To Enforce the

Twenty-First Amendment to the Constitution." See H.R. 8368, 74th Cong. (1936); 49 Stat.1928,

ch. 815 (June 25, 1936). Section 3 of the new act made it illegal to import liquor into any state if

(1) the state required a permit for the importation of the liquor, and the liquor was not accompanied

by a permit, or (2) the state banned the importation of alcohol altogether. See H.R. 8368, 7th Cong.

§ 3 (1936), codified at 18 U.S.C. § 1262. Section 9 of the new act repealed the Reed Amendment.

See H.R. 8368, 7th Cong. § 9 (1936).

According to the committee report accompanying the new act, Congress intended to "relieve

the States of federally imposed prohibition," H.R.Rep. No. 74-1258, at 4, and "conform [federal law]

to the intent of the twenty-first amendment, that is, to avoid Federal prohibition laws which give the

States more protection than they want." Id. at 8. Congress designed a system whereby

the regulation of the liquor problem is to be left to the States, with the assurance that the

Federal Government will afford them affirmative protection against violations directed from

outside their borders.

H.R. Rep. 74-258, at 4. The idea was that if states provided the federal government with clear

indications of what they wanted to keep out, the federal government would criminalize the

importation of such items into the objecting states. See id. at 5.

The legislative history of the Webb-Kenyon Act demonstrates that if Congress had intended

to provide a civil remedy for violations of the Act, then it could have done so explicitly, as it did
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We note that a bill was introduced in the House of Representatives last March titled, "A bill

to amend the Webb-Kenyon Act to allow any state, territory, or possession of the United States

to bring an action in federal court to enjoin violations of that act or to enforce the law of such

state, territory, or possession with respect to such violations." This bill, which is still in

committee, indicates at the very least that some members of the present Congress feel that the

Congress which originally enacted the Webb-Kenyon Act did not provide states with a right of

action. 

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Assuming arguendo that we considered the other factors, they reinforce our conclusion that

the Webb-Kenyon Act does not imply a federal cause of action. Considering the third factor,

implying a right of action is not consistent with the underlying purpose of the Webb-Kenyon

Act—to remove Commerce Clause objections to state liquor regulations. See. e.g., Craig v.

Boren, 429 U.S. 190, 205-06, 97 S.Ct. 451, 461-62, 50 L.Ed.2d 397 (1976); McCormick & Co.

v. Brown, 286 U.S. 131, 140-41, 52 S.Ct. 522, 526, 76 L.Ed. 1017 (1932); James Clark

Distilling Co. v. Western Md. Ry. Co., 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326 (1917). In fact,

the Wilson Act, the Webb-Kenyon Act, and the Twenty-first Amendment worked together "to

reinvigorate the State's regulatory role" with respect to alcoholic beverages. Craig, 429 U.S. at

205, 97 S.Ct. at 461. The aims of restoring authority to the states and providing a constitutional

footing for state regulation are not consistent with creating a federal cause of action. Finally, the

last Cort v. Ash factor militates against finding an implied federal right of action because states

have historically taken the lead in the regulation of alcoholic beverages. 

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with criminal sanctions. The legislative history of the Reed Amendment, as well as the WebbKenyon Act, is ambiguous and is not "clear evidence" of an intent to create a federal civil cause of

action. Baggett, 117 F.3d at 1345.7

Therefore, the first two Cort v. Ash factors do not support the implication of a right of action.

We need not reach the other two factors. See Taylor v. Citizens Fed. Sav. & Loan Ass'n, 846 F.2d

1320, 1322 (11th Cir.1988)(citing California v. Sierra Club, 451 U.S. 287, 297-98, 101 S.Ct. 1775,

1781, 68 L.Ed.2d 101 (1981)).8

The State urges this court to find an implied federal cause of action because it needs a federal

forum to enforce its liquor laws. The Supreme Court, however, has rejected necessity as a rationale

for implying a right of action. See Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct.

2479, 2489, 61 L.Ed.2d 82 (1979)("We need not reach the merits of the arguments concerning the

"necessity' of implying a private remedy and the proper forum for enforcement of the rights asserted

by ... for we believe such inquiries have little relevance to the decision of this case."). The State
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At oral argument, in response to a question about why the State insists on federal

jurisdiction, counsel for the State and the United States claimed that an injunction from a federal

court would have more impact than a state court injunction. We find no merit to this argument

because under the Full Faith and Credit Clause, a state court must give deference to another state

court's order. See U.S. Const. art. IV, § 1. 

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offers no clear reason why it needs a federal forum.9 Additionally, states have been enforcing their

liquor laws against out-of-state distributors in state courts for years. See e.g., Alcohol Div. of Dept.

of Finance & Tax. v. Strawbridge, 258 Ala. 384, 63 So.2d 358 (1953); State v. Ward, 361 Mo. 1236,

239 S.W.2d 313 (1951).

 Finally, the State argues that Webb-Kenyon is an "assimilated" act because it subsumes state

liquor laws and thereby renders the violation of those laws a breach of federal law, as well. Florida

relies upon United States v. Sharpnack, 355 U.S. 286, 78 S.Ct. 291, 2 L.Ed.2d 282 (1958), in which

the Court upheld the constitutionality of the Assimilative Crimes Act of 1948 ("ACA"). The ACA

criminalized and provided for the prosecution of any action on a federal enclave which would

constitute a crime in the state where the enclave was located. That is, the ACA "assimilated" and

federalized state criminal law on federal enclaves. Sharpnack challenged the ACA's inclusion of

state criminal law enacted after the passage of the ACA. The Court noted that assimilative acts often

incorporate future state legislation. The Court cited several examples, including the Webb-Kenyon

Act. 355 U.S. at 294, 78 S.Ct. at 296. The State argues that under Sharpnack, the Webb-Kenyon

Act must be read as "federalizing" state liquor laws.

We conclude that the Webb-Kenyon Act is not an assimilated act. The issue in Sharpnack

was not whether the ACA or any other statute implied a right of action, but whether the ACA was

constitutional. Also, to say that a particular statute is assimilative does not answer the question of

whether it implies an independent right of action.

In conclusion, we hold the State does not have an implied federal cause of action under the

Webb-Kenyon Act. Because the district court properly dismissed the State's complaint for lack of

subject matter jurisdiction, we affirm the district court's judgment.

AFFIRMED.
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