In the Matter of William J. Mezzetti Associates, Inc., Petitioner, v. State Liquor Authority, Respondent

In the Matter of William J. Mezzetti Associates, Inc., Petitioner, v State Liquor Authority, Respondent. [MAJORITY] 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. [CONCURRENCE — Suozzi, J. P., concurs in the result, with the following memorandum:] 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.