In the Matter of Admiral Wine & Liquor Co., Also Known as Admiral Wine Merchants, Respondent-Appellant,
v.
State Liquor Authority, Appellant-Respondent.
Court of Appeals of the State of New York.
Argued January 5, 1984. Decided February 23, 1984.Robert Abrams, Attorney-General (August L. Fietkau, Frederick K. Mehlman, Richard Liskov and Peter H. Schiff of counsel), for appellant-respondent.
Samuel Bernstein and Lewis S. Bernstein for respondent-appellant.
Martin P. Mehler for Retailers Alliance, Inc., amicus curiae.
Victor Feingold for Wine, Liquor & Distillery Workers Union Local 1, AFL-CIO, and others, amici curiae.
Lawrence Kill, Steven M. Pesner, Daniel N. Sang, Scott B. Schreiber, William B. Schreiber, Michael T. Kelly, Richard M. Rosenbaum and Michael Whiteman for Peerless Importers, Inc., and others, amici curiae.
Judges JASEN, JONES, WACHTLER, MEYER and KAYE concur; Chief Judge COOKE and Judge SIMONS taking no part.
*860MEMORANDUM.
The order of the Appellate Division should be modified, with costs, by reinstating the State Liquor Authority's findings with respect to charge No. 2 and otherwise affirmed. The certified question should be answered in the negative.
Subdivision 3 of section 101-b of the Alcoholic Beverage Control Law does not violate the Sherman Antitrust Act (Battipaglia v New York State Liq. Auth., 583 F Supp 8). The Appellate Division's reliance on Matter of Mezzetti Assoc. v State Liq. Auth. (51 N.Y.2d 761) and California Liq. Dealers v Midcal Aluminum (445 US 97) is misplaced because the statutes found to be invalid in those cases established a price maintenance scheme. Subdivision 3 of section 101-b, on the other hand, is a price-posting *861 statute, which simply requires the dealer to file with the State, on a monthly basis, a list of the prices the dealer himself has decided to charge for his products during that period with provision for a downward modification of that price. Subdivision 3 of section 101-b does not authorize anyone to determine retail prices for wine, nor does it bind other wholesalers as to the prices which they may charge their dealers.
Having concluded that there is no irreconcilable conflict between the State statute and the Sherman Act, we also find no merit to appellant's argument that the State law is invalid because it might have an anticompetitive effect (Rice v Williams Co., 458 US 654, 659).
We also note that the authority does not contest the Appellate Division's annulment of its findings with respect to count No. 3 and thus we do not reach or decide the question. The authority, however, should now reconsider the penalty in light of the dismissal of charge No. 3.
Order modified, with costs to the State Liquor Authority, in accordance with the memorandum herein and, as so modified, affirmed. Question certified answered in the negative.