This proceeding was instituted to obtain a review of a determination and order made by the State Liquor Authority (hereinafter referred to as Authority) suspending the wholesale liquor license of the petitioner, Standard Food Products Corp. (hereinafter referred to as Standard) for a period of thirty days and making demand upon Standard and the surety company which executed the bond in connection with the issuance of the license, for the penal sum provided for therein. The determination by the Authority was made after hearing and resulted in the sustaining of seven charges of violations of section 100, subdivision 2, of the Alcoholic Beverage Control Law. That subdivision reads as follows: "2. No manufacturer and no wholesaler shall sell, or agree to sell or deliver in this state any alcoholic beverage for the purposes of resale to any person who is not duly licensed pursuant to this chapter to sell such beverages, at wholesale or retail, as the case may be, at the time of such agreement and sale."
In order to make the prohibition against a violation of that subdivision as broad and far reaching as possible, for it was of vital importance in carrying out the policy of the State (§ 2), the Legislature made its own definition of a "sale". It defined it as follows in section 3, subdivision 28: "28. `Sale' means any transfer, exchange or barter in any manner or by any means whatsoever for a consideration, and includes and means all sales made by any person, whether principal, proprietor, agent, servant or employee of any alcoholic beverage and/or a warehouse receipt pertaining thereto. `To sell' includes to solicit or receive an order for, to keep or expose for sale, and to keep with intent to sell and shall include the delivery of any alcoholic beverage in the state." Thus the Legislature not only provided for the conventional sale defined in the Personal Property Law, section 82, but it provided that the words "to sell" as *Page 58 used in section 100, subdivision 2, should include the receipt of an order or even the keeping of an alcoholic beverage with intent to sell it. Finally such words were defined to include the delivery of an alcoholic beverage in the State to anyone, for the one to whom such delivery might be made was not specified.
Standard, a wholesaler, (Alcoholic Beverage Control Law, § 3, subd. 35) over a period of nine months accepted and placed upon its books, through its duly authorized employee and agent, orders for the sale and delivery of liquor (§ 3, subd. 19) to unlicensed retailers on Staten Island, New York City as follows:
(1) Between March 28, 1944, and August 14, 1944, six orders for one Piscopo, whose license had been revoked by the Authority in December, 1942.
(2) [a] Between March 28, 1944, and August 14, 1944, six orders for Alabama Club, Inc., 523 Tomkins Avenue, Rosebank, Staten Island, to which no license had ever been issued. A license had been issued at that address to one Migliore, but that license had been surrendered on November 8, 1943.
[b] During the period from March 28, 1944, to August 14, 1944, eight orders for Brass Rail, Inc., 4263 Hylan Boulevard, Great Kills, which had never been licensed. A license issued to one Andrzejak at that address had been surrendered on December 1, 1942.
(3) Eleven orders over an undisclosed period for Bill's Wild Cat at 3292 Hylan Boulevard, Dongan Hills. It does not appear that a license had ever been issued under that name but one had been issued at 3291 Hylan Boulevard, etc., for Deacon Wilde Cat, Inc., which had been surrendered on October 1, 1942. A new license was issued on August 8, 1944, to Vindvill's Inc., at the same address.
(4) Between February 25, 1944, and April 18, 1944, three orders for one Peter Crane at premises for which there was no license in effect from January 1, 1944, to April 30, 1944, although for some undisclosed period there had been a summer license.
(5) Over a period from March 28, 1944, to May 18, 1944, three orders for one Leo Berna at premises which had been licensed for the sale of beer only.
(6) During the period from December 1, 1943, to August 14, 1944, ten orders for one Savoco, who had been unlicensed since March, 1942. *Page 59
(7) On March 28, 1944, one order for one Cornell, whose last license was a summer license for the year 1943.
Standard concedes that no check or inquiry was made by those in its (1) order department, (2) credit department, (3) shipping department or (4) delivery department for the purpose of learning whether the orders above mentioned were for licensees or for licensed premises. Standard concedes further that under the statute, "if a sale or delivery is made to an unlicensed person it is wholly immaterial whether the sale was made through inadvertence, negligence or otherwise" but argues that "in this case there is ample proof in the record that petitioner took all reasonable precautions to prevent sales to unlicensed persons. It instructed the salesmen not to take orders from unlicensed customers. It instructed the drivers not to make deliveries to unlicensed premises and, except on C.O.D. orders where noquestion of credit was involved all license numbers were checked by the credit department." (Emphasis supplied.)
Precautions and instructions to employees are no defense. As Standard itself phrased it they are immaterial. Standard was not doing business as a matter of right but as a matter of privilege under a license by the State. It was obligated by statute and agreement to take no orders for unlicensed persons and to make no deliveries to anyone other than licensed persons. Here it did both. That its salesman placed with it orders for liquor for unlicensed persons in order that with the connivance of a truck driver he might appropriate the liquor for himself, was no defense. The orders were for unlicensed persons and unlicensed premises. The fact that the salesman was dishonest could not make the persons or premises licensed ones, nor constitute an excuse for not performing a statutory duty. A simple inquiry would have disclosed the absence of licenses. A conspiracy between the salesman and truck driver worked no change in the obligations of Standard. The orders remained orders for unlicensed persons and the deliveries to the truckman were deliveries for unlicensed persons and premises, and, upon conversion of the merchandise by the salesman and truck driver, were still deliveries to unlicensed persons. Both receipt and acceptance of the orders and the deliveries of the liquor constituted sales within the definition in the act (supra). While the failure here to employ honest and law-abiding salesmen was not *Page 60 available to Standard as an excuse for failure to check the orders upon its books, it should be pointed out that a reading of the Alcoholic Beverage Control Law in its entirety clearly discloses the legislative intent to put the burden of compliance and obedience upon a licensee such as Standard, since it conducts its business as a matter of favor and not as a matter of right. See especially section 2.
Finally, that Standard relied upon a distiller's lists of licensees to whom beverages might be allocated during a shortage, and thus fell into the same errors as the distiller, was clearly no defense.
The question whether under section 118, subdivision 6, the license of Standard should have been revoked rather than suspended has not been argued and we do not pass upon it.
There was ample substantial and competent evidence to sustain the determination of the Authority and the order of the Appellate Division should be affirmed, with costs.
LOUGHRAN, Ch. J., LEWIS and THACHER, JJ., concur with DYE, J.; CONWAY, J., dissents in opinion in which DESMOND, J., concurs.
Order reversed, etc.