Affiliated Distillers Brands Corp. v. State Liquor Authority

Tilzer, J, The appellant State Liquor Authority on June 21, 1967 disapproved the petitioner’s application for a brand label registration for its Ancient Age Kentucky Straight Bourbon, 86 Proof, eight-year-old liquor. The Authority acted on the ground that the application was designed to circumvent the affirmation section of the Alcoholic Beverage Control Law (§ 101-b, subd. 3, par. [d]; L. 1964, ch. 531, § 9). The court below granted the applicant’s petition pursuant to article 78 of the CPLR and directed the Authority to register the particular label. The registration (§ 107-a) as well as the affirmation provisions of the Alcoholic Beverage Control Law does not confer upon the State Liquor Authority merely ministerial duties requiring that the Authority issue brand label registrations if the labels are in order, the requisite fee paid and the affirmations on file. The purpose of the Legislature in enacting the Liquor Reform Laws of 1964 was to “ end the discrimination by the liquor industry against the New York consumer which, as the commission had found, cost the New York consumer $150 million a year above that which a free market would have offered. ” (Seagram & Sons v. Hostetter, 16 N Y 2d 47, 55, affd. 384 U. S. 35, rearg. den. 384 U. S. 967; L. 1964, ch. 531, § 8.) The means made available to the Authority to carry out the intendment of the Legislature to prevent discrimination against New York consumers of liquor in terms of prices of liquor sold throughout the country, provided for filing of price schedules by brand owners, together with an affirmation that the prices to New York wholesalers are no higher than the prices at which the items are sold to wholesalers outside of this State. Before any item of liquor may appear on a price schedule, it must be registered with the Authority under a brand label registration. The affirmation requirements of section 101-b may not be frustrated by a piecemeal reading of the statute. To assure that the policy of the State to benefit consumers be carried out, the Alcoholic Beverage Control Law must be read as a whole. In order to accomplish its declared objective, it is apparent that the Legislature intended to confer upon the Authority a reasonable measure of discretion in the performance of its duties in the issuance of brand label registrations. It was pursuant to this discretionary power that the Authority on June 21, 1967 disapproved petitioner’s application to register its Ancient Age [360] Kentucky Straight Bourbon, 86 proof, eight-year-old liquor. (A prior application by the petitioner had been disapproved by the Authority on November 28, 1966.) The Authority found that the petitioner’s withdrawal of its 6-year-old Ancient Age Kentucky Bourbon from the New York market (petitioner’s largest selling bourbon whiskey) and its attempt to substitute the eight-year-old Ancient Age label bourbon in the New York market, which would be sold at a higher price than the six-year-old bourbon, would allow the petitioner to circumvent the remedial legislation. By this mechanism the petitioner could maintain the price of a medium bourbon in New York (eight-year-old) and market a medium age bourbon throughout the country (six-year-old) at any price it saw fit. New Yorkers, of course, could not buy the six-year-old Ancient Age because it had been withdrawn from the New York market. The removal of the option to citizens of this State to choose either the 6-year-old or the 8-year-old bourbon, the Authority concluded, was but a device to evade and escape the 1 fundamental changes made in the pricing of liquor by the enactment of chapter 531 of the Laws of 1964. ’ ’ (Fischel & Co. v. Macy & Co., 20 N Y 2d 180,184.) It is for the Authority to determine in the circumstances whether a brand label registration for petitioner’s eight-year-old bourbon would create a situation of price discrimination against New York consumers of liquor. Its determination of the problem finds reasonable basis in the record. Mandamus, for that matter, does not lie directing the Authority to issue to petitioner a brand label registration (Matter of Stuart & Stuart v. New York State Liq. Auth., 29 A D 2d 176). In the circumstances here, the action of the Authority in denying a brand label registration to petitioner, in any event, is not subject to judicial challenge or review. Actions of the Authority generally are not subject to review by the courts unless they fall within the 10 classifications enumerated in section 121 of the Alcoholic Beverage Control Law. The right of judicial review provided by section 121 was extended in 1966 and 1967 by adding new categories, but the Legislature did not provide for review of the Authority’s actions arising from the amendments of the Alcoholic Beverage Control Law by chapter 531 of the Laws of 1964. (See Matter of Millman v. O’Connell, 300 N. Y. 539; Reckler v. Quinn, 255 App. Div. 873, affd. 280 N. Y. 768; Matter of Calvary Presbyt. Church v. State Liq. Auth., 249 App. Div. 288, affd. 275 N. Y. 552.) Accordingly, the order and judgment (one paper) should be reversed, on the law, and the petition dismissed, with costs and disbursements to appellant.