House of Spirits, Inc. v. Doyle

43 A.D.2d 880, 352 N.Y.S.2d 588, 1974 N.Y. App. Div. LEXIS 5895

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 1974
• Status: Published

Opinion

Appeal from an order of the Supreme Court, entered September 25, 1972 in Albany County, which denied plaintiff’s motion for summary judgment, granted defendants’ cross motion for summary judgment and awarded judgment declaring that subdivision 2 of section 101-bb of the Alcoholic Beverage Control Law is constitutional and valid. Plaintiff, a retailer licensed to sell alcoholic beverages for off-premises consumption, has allegedly violated subdivision 2 of section 101-bb of the Alcoholic Beverage Control Law by offering liquor at a price lower than 12% above the bottle price on the schedule of its supplier. The mandatory 12% minimum markup on retail sales of liquor is attacked by plaintiff on several grounds. It contends on this appeal that the statute, having no relationship to the health, welfare and safety of the public, constitutes an unreasonable exercise of the police power; that the 12% markup violates due process because it has no relationship to a liquor retailer’s actual average minimum overhead; and that, since the minimum retail price is fixed solely by the retailer’s supplier, the statute is discriminatory and promotes unfair competition. These points have been properly determined in a thoroughly outlined and well-reasoned opinion by Mr. Justice Hughes at Special Term (72 Mise 2d 1036). Accordingly, we affirm on that opinion. Order affirmed, with costs. Herlihy, P. J., Staley, Jr., Greenblott, Sweeney and Main, JJ., concur.