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MATTER GREAT EASTERN LIQUOR CORP. v. STATE LIQUOR AUTHORITY STATE NEW YORK (12/11/69)

COURT OF APPEALS OF NEW YORK


decided: December 11, 1969.

IN THE MATTER OF GREAT EASTERN LIQUOR CORP., RESPONDENT,
v.
STATE LIQUOR AUTHORITY OF THE STATE OF NEW YORK, APPELLANT; IN THE MATTER OF JACOVES LIQUORS, INC., RESPONDENT, V. STATE LIQUOR AUTHORITY OF THE STATE OF NEW YORK, APPELLANT

Matter of Great Eastern Liq. Corp. v. State Liq. Auth., Chief Judge Fuld and Judges Breitel and Gibson concur with Judge Bergan; Judge Burke dissents and votes to reverse in a separate opinion in which Judges Scileppi and Jasen concur.

Author: Bergan

 Whatever may be the reasons of policy leading the Legislature to prescribe the display of price signs and to regulate price advertising of liquor, it seems obvious from a reading of the Alcoholic Beverage Control Law as a whole that the Legislature has not attempted to promote temperance by making alcoholic beverages more expensive to New York consumers.

In the same section of the same statute (§ 101-b, subd. 1) which states (as does § 2) that one of the purposes of the act is "to promote temperance", there is a mandatory requirement that manufacturers of brand liquor shall file with the Authority a schedule showing that the bottle and case "price" of liquor to New York wholesalers is no higher than the "lowest price" at which it is sold to wholesalers or public agencies anywhere in the United States (§ 101-b, subd. 3, par. [d]).

The section itself deals, as its heading states, with "discriminations" and in text expresses in very plain language a policy in New York to prevent discrimination against New York consumers and to keep prices of liquor as low in New York as the statute can do it for the benefit of consumers in this State.

This general price policy was enacted in 1964 (ch. 531) in response to an investigation under the direction of the Governor which revealed that the New York consumer was paying from 50 cents to $1.50 more for each fifth of whiskey than the price at which it was available in at least seven freer price markets (Moreland Commission Report No. 1, p. 3 [1964]).

This study led the Governor to recommend to the Legislature a change in the prior rigid public price management of liquor. The Governor estimated by that mechanism a "surcharge" had been imposed on New York consumers of liquor of $150 million a year (Message, Feb. 10, 1964). This, of course, went to the liquor industry.

The present statutory requirement that the wholesale "price" of brand liquor, which makes up most of the liquor market, shall be "no higher than" that charged anywhere in the country resulted from this study and recommendation.

The constitutional validity of the statute was upheld against the vigorous argument of the liquor industry that it "did not promote temperance" (Seagram & Sons v. Hostetter, 16 N.Y.2d 47, affd. 384 U.S. 35, rehearing den. 384 U.S. 967; see, especially, the appellant's argument based on temperance, 16 N.Y.2d, at p. 49).

Thus it is rather clear that the Legislature does not equate higher prices of liquor with temperance, and the statute must be read as saying that while temperance is to be promoted, the New York consumer must not, for this reason, be discriminated against by paying higher prices for the liquor he chooses to buy.

Consistently with this, the Legislature as part of the 1964 amendments to the statute also took steps to discourage monopoly and increase competition and hence, presumably, keep prices to consumers down, by repealing rather large distance requirements between retail license stores which had been provided by former subdivision 4 of section 105 and which the Governor's message to the Legislature had described as "artificial devices" through which the liquor industry received "uniquely beneficial treatment at the consumer's expense" (see Matter of Hub Wine & Liq. Co. v. State Liq. Auth., 16 N.Y.2d 112, 116, 117).

It is with this background to the policies formulated by the present statute that subdivision 19 of section 105 dealing with signs and advertising of "price" must be read.

The text of the subdivision is this: "19. No licensee authorized to sell beer or liquor at retail for consumption off the premises shall display any sign on or adjacent to the licensed premises, setting forth the price at which beer or liquor, or any brand thereof, is sold or offered for sale, or advertise such price in any other manner or by any other means, except in the interior of the licensed premises."

That subdivision which before the 1964 revision by chapter 531 had referred only to beer, was, as a part of the general revision in 1964, amended to include liquor and it would not be reasonable to think that the Legislature added "liquor" to its regulation of signs and advertising of "price" in order to increase prices at the same time its manifest concern and avowed policy was to bring liquor prices down and to prevent discrimination against New York consumers.

Thus the language of subdivision 19 should not be read to impose greater restrictions on competition and on advertising of liquor than its words require. Its actual words prohibit advertising of "the price" and not of comparative terms or selling arguments. Long after the present charges against petitioners of violations of subdivision 19 were made by the Authority in 1967, and while the appeal was pending in this court, the Legislature in 1969 (ch. 1155) added subdivision 20 to section 105, which made further directions as to "price".

This new amendment has neither any effect on the present proceedings nor on the proper construction to be given to subdivision 19. The first paragraph (a) of the new subdivision requires prices of liquor and wine to be placed near the items to be sold and restricted the size of the signs.

The second paragraph (b) prohibits banners, signs or other "devices" advertising "sale", "discounts", "reductions", or "bargains" or any "similar reference to the price" to be displayed on the premises except under certain stated conditions.

This specific restriction on banners and signs on the licensed premises does not limit the unamended provisions of subdivision 19 as to advertising "by any other means", e.g., newspaper advertising which does not itself state "the price".

Exact consistency is not easily spelled out in the successive amendatory legislation as to liquor advertising, but until the Legislature repeals its main mechanism in section 101-b (subd. 3, par. [d]) to keep prices of liquor low on New York consumers, it must be assumed that it favors lower prices to consumers and favors competition among dealers. Thus ambiguous terms in price statutes should be read in this direction.

The present appeals are concerned with two proceedings against retail licensees.

In Jacoves the hearing officer found that the licensee advertised in newspapers in these terms: "Save over $", "22% off", "25% off". He found, however, that "the price" on which the liquor was to be sold could not be determined "from the use of such words or percentages".

The Liquor Authority, however, rejected this finding and sustained the charge that the licensee's advertising had violated the statute, suspended the license for 10 days, required payment on the licensee's bond, but temporarily deferred the 10-day suspension if the penal amount of the bond were paid.

The determination was unanimously annulled by the Appellate Division in a memorandum: "In our opinion, petitioner did not publicize 'the price' (Alcoholic Beverage Control Law, § 105, subd. 19) of liquor by newspaper advertisements such as '22% off Save over 1.20 quart', 'save more than 22%', and 'save over $4 on 3 Pack'. Potential customers could not know what the price was, what the cost was or the amount of money they would have to spend until they patronized the store. Accordingly, under the circumstances herein, the advertisements did not violate the law or the spirit of the statute". The court made reference to its concurrent decision in Matter of Great Eastern Liq. Corp.

The advertising in Great Eastern Liquor contained the words "at wholesale" and "wholesale". The hearing officer in ruling the charge was "not sustained" found that the advertisements did" not reveal the price or prices that the liquor items listed therein were sold or offered for sale". The Authority reversed the hearing officer's report and sustained the charge, one member voting to dismiss. A suspension and forfeiture penalty were imposed.

The Appellate Division unanimously annulled the determination in an opinion. This decision, as it has been noted, became the basis for the decision in Jacoves.

Although it is an appellant here, the Liquor Authority agrees that the 1964 amendments to the statute as construed in Seagram & Sons and Matter of Hub Wine & Liq. Co. (supra), designed to liberalize the policy of the State, require that the "price" provisions of subdivision 19 of section 105 be read to restrict advertising only to the extent necessary to meet the literal words of the statute and the Authority thus agrees in effect with the arguments of petitioners.

On reviewing its own reading of the statute and the administrative construction of its effect, the Authority states in this court its acceptance of advertisements using terms such as "priced under" or "less than" a stated amount as being lawful. It states: "An interpretation of the section of law involved was required strictly in the public interest (Alcoholic Beverage Control Law, §§ 2, 160), and the section was so construed that, unless the actual price at which the item of liquor was being sold or offered for sale was stated, the advertisement would not violate the statute. This, it is submitted, is a reasonable and rational interpretation made in the public interest and

[25 N.Y.2d 525 Page 532]

    --> for the public welfare, and calculated to best carry out the legislative intent to provide the public with the benefits of an open competitive market. Moreover, the phrases considered followed generally the usual and normal methods of advertising where the actual or specific prices are not given but the attention of the public is desired within budgetary considerations. There can be no doubt that these advertisements brought about a more competitive market."

Several court decisions ran counter to this interpretation by the Authority, the principal one being Matter of Rosenblum v. Als Liqs. (27 A.D.2d 521 [First Dept.]), but the effect of which was limited by the later decision of that court in Matter of Samjack Liqs. v. State Liq. Auth. (32 A.D.2d 258).

The present decisions of the Appellate Division, Second Department, are consistent with the original view of the Liquor Authority which, although an appellant here, is still held as its view. The appeal, then, is here to resolve the conflict and to aid in the administration of the statute.

The orders should be affirmed, with costs.

Disposition

In each case: Order affirmed.

Burke, J. (dissenting). I cannot agree with the majority's conclusion that the advertisements in question in these companion cases do not violate the pertinent provision of the Alcoholic Beverage Control Law (§ 105, subd. 19). That section provides that: "No licensee authorized to sell beer or liquor at retail for consumption off the premises shall display any sign on or adjacent to the licensed premises, setting forth the price at which beer or liquor, or any brand thereof, is sold or offered for sale, or advertise such price in any other manner or by any other means, except in the interior of the licensed premises." (Emphasis added.) Today's decision permits price advertising by means of such phrases as "20% Off", "at wholesale", "Save 20%", and other similar phrases and prohibits only the use of the exact dollars-and-cents price at which the beer or liquor is being offered for sale. This conclusion is derived from the fact that the Legislature used the definite article "the" before the word "price" and later referred to it in the section as "such price". While this may be grammatically attractive and persuasive, it is obvious that statutes are not mere exercises in grammar, but rather are attempts to express policies thought desirable by the Legislature. To say that the avoidance of the use of the precise dollars-and-cents figure at which liquor is being offered for sale in such advertising is not advertising the "price" is to take a very dim view of the ordinary consumer's ability to deduce from such advertising the fact that a particular bottle of liquor being offered for sale "at wholesale," at a "reduction of 20%", or at a "saving of 20%" is going to cost him less than it ordinarily would. Even the most jaundiced observer of the average consumer will agree that such advertisements will bring home the message that the items being advertised are cheaper than usual and that, as a matter of simple economics, it is advantageous to buy now and even to "stock up" so as to maximize his savings.

Even apart from such a common-sense construction of the language used in subdivision 19, the advertisements in question must be deemed violative of the statute when read in light of the functionally-integrated provisions of subdivision 20. Subdivision 19 prohibits advertising the price of beer or liquor "except in the interior of the licensed premises." Subdivision 20 (added L. 1969, ch. 1155 [eff. Sept. 1, 1969]) then specifies the uses of the price factor in the interior of the licensed premises which are either required, permitted or prohibited: "(a) Each retail licensee of liquor and/or wine shall designate the price of each item of liquor or wine by attaching to or otherwise displaying immediately adjacent to each such item displayed in the interior of the licensed premises where sales are made a price tag, sign or placard setting forth the bottle price at which each such item is offered for sale therein. No sign setting forth the price of liquor or wine which exceeds three by four inches in size shall be displayed anywhere in or on the licensed premises.

" (b) No banner, sign or placard or other device advertising 'sale', 'discounts', 'reductions', 'bargains', or in any way making any similar reference to the price of any liquor or wine, shall be displayed on the exterior, or in the interior of the licensed premises; except that in instances of a closeout of a brand or damaged merchandise a sign may be displayed in the interior of the premises in accordance with such rules as the liquor authority may prescribe." (Emphasis added.) When it is recognized that the fundamental purpose of the entire regulatory scheme has been, and is, that of promoting "temperance" (Alcoholic Beverage Control Law, § 2), it is clear that the Legislature, in adding provisions dealing with price advertising, could only have intended to restrict it so as to avoid promoting consumption. Indeed, the State Liquor Authority itself recognized this as the purpose for the enactment of subdivision 19 in its 1964 Annual Report when it indicated that the subdivision had been enacted to reinforce the prohibition of below-cost sales contained in section 101-bb of the act and " to mitigate any untoward use of the price factor as inducement to immoderate purchases and consumption " (pp. 8-9 [emphasis added]). That position finds support in the provisions of subdivision 20.

The basic question is whether it can reasonably be said that the Legislature supposed that it could further promote the basic purpose of the regulatory scheme -- temperance -- by allowing retail licensees to attract purchases and ultimate consumption by use of price advertising. It must be assumed that the Legislature understood that the only reason for the existence of advertising is precisely that of increasing purchases and consumption. It is thus both unnecessary and injudicious to interpret a legislative act in such a way as to impute non-recognition or ignorance of such a basic proposition to the Legislature.

The purposes of the statute as a whole are clearly and directly served by reading subdivisions 19 and 20 together so as to prohibit advertising based on the price factor (and not merely the exact dollars-and-cents price itself) except as expressly permitted in the interior of the premises by subdivision 20. The majority, however, by giving section 101-b (subd. 3, par. [d]) such a sweeping construction has nullified the clear legislative intent manifested in subdivisions 19 and 20. Indeed, to read subdivision 19 as the majority would in the face of the restriction on the use of the price in the interior of the premises (the licensee cannot use a price sign in the interior of the premises which exceeds three by four inches and cannot use standard "sale" slogans except for closeouts and damaged merchandise) makes no sense at all. Such a reading requires that we conclude that the Legislature made the determination that the use of price signs larger than three by four inches in the interior of the licensed premises would have a greater tendency to promote consumption than would the use of newspaper advertisements

    --> and throwaways proclaiming "bargains", "20% reductions" and "wholesale prices". That conclusion should not be accepted, particularly when other parts of the functionally whole regulatory scheme clearly provide the basis upon which to reach a reasonable construction which comports with the purposes of the whole.

In keeping with the obviously sophistical interpretation advanced by the State Liquor Authority and accepted by the majority, a New York department store recently advertised in the papers of extensive circulation that the New York State law prohibited advertising the price of liquor, but went on to inform the readers that they could rely on the low, low price. The construction placed on the provisions of the statute by the State Liquor Authority has led to this contemptuous disregard for the plain language of the statute.

Accordingly, the orders of the Appellate Division should be reversed and the determinations of the State Liquor Authority reinstated.

19691211

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