Total Wine & More’s fight to open more stores in New York has entered a decisive phase. The New York Supreme Court Appellate Division heard arguments on May 19 concerning Maryland-based Total Wine’s appeal to open a store in Westchester County; a decision is expected in the coming weeks. The New York State Liquor Authority (SLA), meanwhile, is scheduled to make a decision on Total Wine’s application for a wine and spirits store in Queens on June 10.
A New York Supreme Court ruling in September 2019 upheld the SLA’s December 2018 decision to deny Total Wine a license to open a store in Hartsdale, 30 miles north of Manhattan. Total Wine’s appeal was heard through virtual oral arguments before the state Supreme Court Appellate Division, Third Judicial Department.
Victoria Graffeo, an attorney for White Plains Fine Wines, claims the denials are based on anti-competitive protectionism, political opposition, and the applicant’s non-resident status. “Any one of those improper factors should be viewed by your court as sufficient to reverse the Supreme Court order,” she argued.
Robert Trone, co-owner of the Total Wine & More retail chain, formed White Plains Fine Wines and applied for a 21,093-square-foot store license in Hartsdale in July 2018. Trone and his brother David Trone, a U.S. congressman representing Maryland, founded Total Wine in 1991. Total Wine has 207 superstores in 24 states.
David Trone formed New York Fine Wine & Spirits LLC in 2016 and received a retail liquor license for Westbury Fine Wines in Nassau County, Long Island. Doing business as Total Wine, Spirits & More Westbury, the 26,000-square-foot store has about 125 employees and annual sales of more than $60 million. It carries approximately 5,000 spirits SKUs and 9,000 wine SKUs, including 900 from New York. In August 2019, under the name MCT Fine Wines & Spirits, Michelle Trone, David Trone’s daughter, applied to open a wine and spirits store in College Point, Queens, New York. The proposal faces significant opposition.
Justice Christine Clark questioned Graffeo about the large number of beverage alcohol retailers already in Westchester. “There was not one iota of community opposition to this store,” Graffeo responded. “It was all existing licensees trying to eliminate competition and that type of economic protectionism should not be the concern of the SLA.”
Mark Frering, an attorney for the SLA, argued that observational comments made by SLA board members at the 2018 hearing weren’t the basis for their determination. “The so-called issues they raise—the political opposition and the alleged discrimination against an out-of-state applicant—are irrelevant to the inquiry,” Frering disputed. “They don’t say, ‘based on the overwhelming opposition I am disapproving this application.’”
Justice Molly Fitzgerald questioned Frering about the SLA board member comments. “Don’t you think it is a little disingenuous for you to argue that … just because they don’t stick ‘based on’ in there we are not supposed to act as though that wasn’t one of the things that influenced them?” she asked.
Martin Mehler, an attorney representing retailers opposing the application, said the SLA decided there is no public convenience and advantage to approve the license. Mehler noted stores in the area surrounding the applicants proposed location had declined in sales, no increase in population, 20 stores within a five-mile radius, and 200 stores within Westchester County.
In addition to the New York case, Total Wine has also recently challenged beverage alcohol laws in Tennessee and Connecticut to the U.S. Supreme Court. The company scored a victory last year when the High Court knocked down Tennessee’s residency requirements for beverage alcohol retailing. In Connecticut, however, the Supreme Court’s April ruling upheld the state’s minimum pricing system.