Capiscean Corp. v. Alcoholic Bev. etc. Appeals Bd.
| Decision Date | 02 January 1979 |
| Citation | 87 Cal.App.3d 996,151 Cal.Rptr. 492 |
| Parties | , 1979-2 Trade Cases P 62,768 CAPISCEAN CORPORATION, d/b/a Pacific Heights Liquors, San Bruno, California, Petitioner, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD of the State of California, Respondent; DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, Real Party in Interest. Civ. 44862. |
| Court | California Court of Appeals Court of Appeals |
Jack K. Dooling & Associates, Jack K. Dooling, Alfred J. Arnaud, San Francisco, for petitioner.
Atty. Gen. of the State of California, Matthew P. Boyle, Harold W. Teasdale, Deputy Attys., Gen., San Francisco, for respondent.
Charles Cameron, Jr., Chief Counsel, Dept. of Alcoholic Beverage Control, Sacramento, for Dept. of Alcoholic Beverage Control, real party in interest.
In this extraordinary writ proceeding, authorized by section 23090 of the Business and Professions Code, 1 we consider the validity of fair trade laws regulating the sale of wine in this state, in light of the ruling in Rice v. Alcoholic Bev. etc. Appeals Bd. (1978) 21 Cal.3d 431, 146 Cal.Rptr. 585, 579 P.2d 476, which invalidated California's price maintenance laws relating to distilled spirits. The matter arose as follows:
On November 22, 1976, petitioner, holder of an off-sale general alcoholic beverage license issued by the Department of Alcoholic Beverage Control (hereafter Department) sold a quart of Old Crow whiskey to an employee of the Department for $1.63 less than the minimum price and a magnum of Cresta Blanca wine for 92 cents less than the posted price. On November 30, 1976, petitioner sold another bottle of Old Crow whiskey to the same employee for $1.63 less than the minimum price. After notice and hearing, the Department found that petitioner had violated section 24755 and title 4, section 99, subdivision (a), of the California Administrative Code in the sale of distilled spirits, and section 24862 and title 4, section 101, subdivision (a) in the sale of wine. The Department ordered petitioner's license suspended for 10 days on each of the three counts, the penalties to be served concurrently. On appeal to the Alcoholic Beverage Control Appeals Board (hereafter Board), the Board, following Rice, reversed the decision of the Department with respect to the counts alleging sale of distilled spirits below the minimum price but affirmed the decision of the Department with respect to the count alleging sale of wine below the posted price. The Board believed itself prohibited from declaring the wine price maintenance provisions invalid by reason of article III, section 3.5 of the California Constitution. 2 Petitioner seeks annulment of that portion of the Board's order affirming the decision of the Department, contending that the ruling in Rice, supra (21 Cal.3d 431, 146 Cal.Rptr. 585, 579 P.2d 476) should be extended to invalidate wine price maintenance provisions as well.
We have compared the statutes and regulations relating to price maintenance of distilled spirits invalidated in Rice with the statutes and regulations relating to price maintenance of wine challenged in this proceeding, and find no significant differences. Although the statute invalidated in Rice (§ 24755) is more comprehensive than the statute challenged in this proceeding (§ 24862), 3 section 24862, construed in conjunction with the other sections contained in chapter 11 (§ 24866 et seq.), 4 accomplishes the same end. Section 24866, for example, requires wine growers, wholesalers licensed to sell wine, wine rectifiers and rectifiers to post schedules of selling prices of wine, make and file fair trade contracts and file schedules of resale prices. Section 24862 prohibits an off-sale retail licensee from selling at less than that prescribed price.
We agree with petitioner that the wine price maintenance provisions of section 24862 and related statutes differ from the price maintenance provisions relating to distilled spirits only in the type of beverage and the precise language of the respective sections, and that the impact of the restrictions is identical. As respondent Board acknowledges, the arguments in favor of retail price maintenance rejected by the California Supreme Court in Rice, supra (21 Cal.3d 431, 146 Cal.Rptr. 585, 579 P.2d 476) cannot be accepted here. We conclude that the wine price maintenance provisions cannot be distinguished from the price maintenance provisions invalidated in Rice And, for the reasons stated in Rice, must also fall.
That portion of the Board's order affirming the decision of the Department with respect to alleged violations of the wine price...
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... ... Alcoholic Bev. etc. Appeals Bd. (1978) 21 Cal.3d 431, ... 97, 100 S.Ct. 937, 63 L.Ed.2d 233; Capiscean Corp. v. Alcoholic Bev. etc. Appeals Bd. (1979) ... ...
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Midcal Aluminum, Inc., v. Rice
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