Home ORLANDELLA GROCERY COMPANY, INC. vs. ALCOHOLIC BEVERAGES CONTROL COMMISSION (and a companion case [Note 1]).

357 Mass. 473

March 3, 1970 - May 8, 1970

Suffolk County

Present: WILKINS, C.J., SPALDING, KIRK, REARDON, & QUIRICO, JJ.

Where the posted shelf price of an alcoholic beverage sold on premises of a package store licensee was exactly the same as the "minimum consumer price" approved by the Alcoholic Beverages Control Commission, and no other price list was posted, the commission was warranted in finding that the shelf price was posted in compliance with the requirement of G. L. c. 138, Section 15, that the current price list be posted, as well as in compliance with the requirement of Section 25C that the minimum price be posted, and that a sale below the shelf price constituted a violation of Section 15.

TWO PETITIONS for review filed in the Superior Court on November 2, 1966, and July 28, 1966.

The cases were heard by Mitchell, J.

Charles M. MacPhee, Assistant Attorney General (Walter H. Mayo, III, Assistant Attorney General, with him), for the Alcoholic Beverages Control Commission.

James W. Kelleher for Orlandella Grocery Company, Inc.

Julius H. Soble for Enterprise Liquor Store, Inc.


SPALDING, J. These are two petitions for review brought under G. L. c. 30A, Section 14, by package store licensees against the Alcoholic Beverages Control Commission (ABC). The ABC had found violations of G. L. c. 138, Section 15, and suspended their licenses. The Superior Court quashed the decisions of the ABC, and the ABC appealed.

In both cases it was established that the petitioners had sold alcoholic beverages at a price below that posted on the shelf. According to a stipulation in each case, the posted

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shelf price was in fact equal to the minimum consumer price as then approved for the alcoholic beverages in question under G. L. c. 138, Section 25C. There was no evidence showing that there was a price list elsewhere in the store. The ABC charged each petitioner with a violation of G. L. c. 138, Section 15, by selling alcoholic beverages at a price other than that stated on the current posted price list. The judge in the Superior Court found no substantial evidence of a violation of Section 15 because there was no showing that the shelf prices were posted pursuant to Section 15, rather than Section 25C, which also provides for the posting of prices.

The question for decision is whether a violation of Section 15 exists on proof that an alcoholic beverage is sold below the shelf price, when that price is also the same as that approved by the ABC under G. L. c. 138, Section 25C. Both Section 15 and Section 25C require the posting of prices and forbid the sale of alcoholic beverages at a price below those posted. [Note 2] The petitioners argue that since the posted price was exactly the same as the "minimum consumer price" required by Section 25C, this is not proof that the price posted was the Section 15 price. We disagree. Since there is a duty to post prices under both Section 15 and Section 25C, there would normally be two prices posted if a licensee chose, as he could, to sell alcoholic beverages at a price above the minimum set by Section 25C. A licensee may sell at a price higher than the minimum set by Section 25C (see T. J. Hartnett Beverages Co. Inc. v. Alcoholic Beverages Control Commn. 350 Mass. 619 , 622), but both the actual retail price under Section 15 and the minimum approved price

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under Section 25C must be posted. Where the posted shelf price is equivalent to the Section 25C approved minimum price, and there is no other price list posted, the ABC could have found that the posted price was also the current posted price list required by Section 15. See H. Hollander Co. Inc. v. Alcoholic Beverages Control Commn. 327 Mass. 390 , 392. Since the Section 15 and Section 25C prices could be equivalent, a single price posted, as here, conspicuously under the shelf where the alcoholic beverages are displayed satisfies the posting requirements of both sections. As indicated above, there was no evidence that there was any price list other than the shelf list.

It has been suggested that we reexamine our decision in T. J. Hartnett Beverage Co. Inc. v. Alcoholic Beverages Control Commn. 350 Mass. 619 , holding that Section 15 was not impliedly repealed by Section 25C. We perceive no reason for modifying that decision.

It follows that the decrees of the court below quashing the decisions of the ABC must be reversed, and new decrees entered affirming these decisions.

So ordered.


FOOTNOTES

[Note 1] Enterprise Liquor Store, Inc. vs. Alcoholic Beverages Control Commission.

[Note 2] Section 15, as amended through St. 1938, c. 353, reads in part, "Every licensee hereunder shall keep conspicuously posted in each room where any alcoholic beverages are sold a price list of such beverages . . .. Sales by such licensees shall be made only . . . at the prices stated on the current posted price list." Section 25C, as amended through St. 1965, c. 428, reads in part, "(e) . . . Each manufacturer and wholesaler . . . shall . . . compile, publish and mail to each retailer authorized to sell alcoholic beverages for off-premises consumption, a list, to be designated `minimum consumer resale price list.' Such list, as then in effect, shall be conspicuously displayed within the interior of the licensed premises where sales are made and where they can be readily inspected by consumers. (f) No licensee authorized to sell alcoholic beverages at retail for off-premises consumption shall sell, offer to sell, solicit an order for, or advertise, any alcoholic beverages at a price less than the minimum consumer resale price then in effect . . .."