United Liquors, Inc. v. Department of Alcoholic Beverage Control

SHOEMAKER, J.

On October 19, 1960, the Department of Alcoholic Beverage Control filed an accusation in two counts against United Liquors, Inc., the possessor of a general off-sale liquor license. Count I charged violations of Business and Professions Code, section 24755, and rule 99(f) of the department’s rules (Cal. Admin. Code, tit. 4), in that said licensee had, on October 5, 1960, sold two brands of alcoholic beverages at retail at prices less than the minimum resale price provided for in fair trade contracts duly filed with the department. Count II charged a violation of rule 17(e) of the department’s rules in that said licensee had, on the same date, delivered these beverages to a consumer without an accompanying delivery order.

On March 29, 1961, a hearing was duly held before a hearing officer of the department. A special investigator for the department testified he had visited the licensed premises on the date in question and had asked the clerk on duty whether he was entitled to any special discount as a Kaiser Employee Club member. When the clerk requested identification, he produced a club membership card. He also informed the clerk that he could not afford to make a purchase at the normal posted prices for liquor patrons. After a discussion about the prices of various brands of whisky, the clerk agreed to sell him six fifths of White Horse Scotch and six fifths of Old Crow bourbon for $57.25. The clerk stated that he could not give him as large a discount for the Scotch as for the bourbon, but that the discount on the entire case would amount to approximately 25 per cent. The investigator paid for his purchase with a blank check signed by his wife. He then asked the clerk to deliver the whisky and to provide him with an invoice or receipt of some kind. The clerk subsequently made the delivery but said that the only receipt he could provide was the cash register tape.

[453]

In addition to the testimony above summarized, the department introduced into evidence certified copies of fair trade contracts and minimum fair trade price schedules which had been duly filed with the department and which provided that the minimum resale price for Old Crow bourbon was $4.99 per fifth, and the minimum resale price for White Horse Scotch was $6.55 per fifth.

The assistant area administrator of the department testified that both of the brands of liquor purchased by the investigator were in open competition with other brands in the same general class, and he named several of the other brands and stated that these brands were available for sale in most retail stores, and were similar in quality, price, taste and public acceptance to White Horse Scotch and Old Crow bourbon.