Total Wine & More Claims Out-Of-State Discrimination In New York

Interpreting the Commerce Clause is the basis of legal arguments that will impact the beverage alcohol retail tier.

Total Wine (interior pictured), which has a mega-store on Long Island, is appealing the New York State Supreme Court’s decision to deny the retail chain a second liquor license.
Total Wine (interior pictured), which has a mega-store on Long Island, is appealing the New York State Supreme Court’s decision to deny the retail chain a second liquor license. (Photo by Scott Suchman)

Maryland-based Total Wine & More continues raising the legal stakes for the beverage alcohol retail tier in New York. Though its application to open a wine and spirits store in Westchester County was shot down three separate times, Total Wine’s owners’ claim the denials are based on anti-competitive protectionism, political opposition, and the applicant’s non-resident status. Total Wine, which has a mega-store on Long Island, is appealing the New York State Supreme Court’s decision to deny the retail chain a second liquor license. Citing the large number of wine and spirits stores in the area, acting state Supreme Court Justice Gerard Maney agreed in his September ruling with the New York State Liquor Authority’s (SLA) December 2018 decision denying Total Wine a license to open a liquor store in the hamlet of Hartsdale, 30 miles north of Manhattan.

The case has been appealed to the state Supreme Court Appellate Division. Arguments should be heard this April in Albany, with a decision expected later this year. In its notice of appeal, Total Wine’s owners claim the denial violated the Commerce Clause and the Privileges and Immunities Clause of the U.S. Constitution. The SLA argued the area for the proposed store is oversaturated with 19 retail outlets for liquor and wines within two miles.

Total Wine & More co-owner Robert Trone formed White Plains Fine Wines & Spirits, LLC and applied for a license for the 21,093-square-foot store in Hartsdale in July 2018.  Trone claims in court documents that the SLA’s rejection of his application was an attempt to protect existing area stores from competition. This legal argument involving beverage alcohol is going to require a court’s interpretation of the dormant Interstate Commerce Clause prohibiting discrimination against interstate business.

In the appeal brief filed on December 26, 2019, Trone’s attorneys note that SLA commissioner Lily Fan considered Trone’s out-of-state residency when denying his application. “I do believe the applicant is very, very qualified and experienced in this area; however, he’s not a New York resident and I think that it’s hard to be local if you’re not local,” she said. Fan’s comment was analyzed in a later brief, filed on January 23 on behalf of the SLA and more than 50 Westchester beverage alcohol retailers. This brief also mentioned that Robert Trone’s brother David—a U.S. congressman representing Maryland—was granted a license in New York, despite not being a New York resident.

Total Wine & More co-owners David and Robert Trone (pictured) founded Total Wine in 1991, and today the chain has 205 superstores in 24 states.
Total Wine & More co-owners David and Robert Trone (pictured) founded Total Wine in 1991, and today the chain has 205 superstores in 24 states. (Photo by Scott Suchman)

In a related case, the U.S. Supreme Court ruled last June in favor of Total Wine to eliminate a two-year residency requirement in Tennessee to apply for a liquor store license. Total Wine challenged Tennessee’s residency requirement in violation of the Commerce Clause, prohibiting interstate commerce barriers. Total Wine has also appealed to the U.S. Supreme Court’s against Connecticut’s minimum pricing system, claiming it violates federal anti-trust laws supporting fair competition.

The Trone brothers founded Total Wine in 1991; the chain now has 205 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 on 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, according to court documents. It carries approximately 5,000 spirits and 9,000 wine SKUs, including 900 from New York.

Under New York law, an individual or entity may not own more than one liquor license in the state. Based on the success of Westbury Fine Wines, Robert Trone formed Stony Brook Fine Wine & Spirits and applied in August 2017 for a retail liquor license for a 25,700-square-foot store in Stony Brook in neighboring Suffolk County on Long Island. The state Liquor Authority denied that application. Last August, under the name of MCT Fine Wines and Spirits, Michelle Trone, David Trone’s daughter, applied to open a wine and spirits store in Queens, New York. The pending proposal faces fierce opposition from the Metro Package Store Association, and local, city, state, and federal politicians.