William J. Mezzetti Associates, Inc. v. State Liquor Authority

• Decision Date: 11 December 1978
• Citation: 66 A.D.2d 800,410 N.Y.S.2d 893
• Parties: In the Matter of WILLIAM J. MEZZETTI ASSOCIATES, INC., Petitioner, v. STATE LIQUOR AUTHORITY of the State of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 893

410 N.Y.S.2d 893

66 A.D.2d 800

In the Matter of WILLIAM J. MEZZETTI ASSOCIATES, INC., Petitioner, v. STATE LIQUOR AUTHORITY of the State of New York, Respondent.

Supreme Court, Appellate Division, Second Department.

Dec. 11, 1978.

Buchman & Buchman, New York City (Abraham Walters, Abraham M. Buchman, Raymond Reisler and Mark A. Koslowe, New York City, of counsel), for petitioner.

Warren B. Pesetsky, New York City (Martin P. Mehler, New York City, of counsel), for respondent.

Louis J. Lefkowitz, Atty. Gen., New York City (Burton Herman and Samuel A. Hirshowitz, New York City, of counsel), appearing pursuant to section 71 of the Executive Law.

Before SUOZZI, J. P., and GULOTTA, SHAPIRO and MARGETT, JJ.

MEMORANDUM BY THE COURT.

Proceeding pursuant to CPLR article 78 Inter alia to review a determination of the State Liquor Authority which, after a hearing, found that petitioner had violated section 101-bbb (subd. 5) of the Alcoholic Beverage Control Law, suspended its retail store license for a certain period and forfeited its bond in the sum of $1,000.

Determination confirmed and proceeding dismissed on the merits, without costs or disbursements.

Section 101-bbb of the Alcoholic Beverage Control Law falls well within the intended scope of the Twenty-first Amendment to the United States Constitution and constitutes State action which does not conflict with the Sherman Antitrust Act (see Matter of Theodore Polon, Inc. v. State Liq. Auth., 59 A.D.2d 946, 399 N.Y.S.2d 469). We have considered petitioner's other contentions and find them to be without merit.

GULOTTA, SHAPIRO and MARGETT, JJ., concur.

SUOZZI, Justice Presiding, concurs in the result, with the following memorandum:

The majority holds that section 101-bbb of the Alcoholic Beverage Control Law falls within the scope of the Twenty-first Amendment to the United States Constitution and constitutes State action which does not conflict with the Sherman Antitrust Act. In so holding, the majority relies upon a prior decision of this court (Matter of Theodore Polon, Inc. v. State Liq. Auth., 59 A.D.2d 946, 399 N.Y.S.2d 469).

I concur in the result reached by the majority solely on constraint of Polon. However, it is my view that section 101-bbb of the Alcoholic Beverage Control Law is violative of the Sherman Antitrust Act and, in that regard, I agree with the well-reasoned opinion of the Supreme Court of California in Rice v. Alcoholic Beverage Control Appeals Bd., 21 Cal.3d 431, ...