William J. Mezzetti Associates, Inc. v. State Liquor Authority (66 A.D.2d 800, 1978)

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 subdivision 5 of section 101-bbb 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 AD2d 946). We have considered petitioner’s other contentions and find them to be without merit. Gulotta, Shapiro and Margett, JJ., concur.

Suozzi, J. P., 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 AD2d 946). 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. (146 Cal Rptr 585), which struck down a statute virtually identical to the one at bar as violative of the Sherman Antitrust Act.