NYSLA, Empire Wine and Due Process

On January 23, the New York State Liquor Authority is scheduled to hold a hearing to determine if retailer Empire Wine & Spirits (“Empire”) engaged in “improper conduct” that warrants the suspension, cancellation or revocation of the retailer’s New York liquor license.  According to the SLA’s Notice of Pleading, Empire allegedly shipped wine to consumers in other states, including states that do not allow for retailer direct-to-consumer alcohol shipping, and this amounts to “improper conduct’ that warrants a disciplinary penalty.  (For a summary of the issues involved, including some of Empire’s legal arguments to date, please see https://www.dpf-law.com/blogs/lex-vini/empire-wine-nysla-lawsuit/).

Under New York law, after the SLA has served a notice of pleading, and if the licensee pleads not guilty, the licensee is entitled to a hearing before an impartial decision maker – a basic tenetant of due process rights.  Those same due process rights also prohibit the SLA from prejudging specific facts or laws that will be at issue in a hearing.  For example, New York courts previously held that public statements by the Chairman or a commissioner of the SLA indicated prejudgment of facts at issue in a pending proceeding.  Because the chairman / commissioner that made the statement had not disqualified themselves from the proceeding, licensee’s due process rights had been violated.  If a “disinterested observer may conclude that [the administrative official] has in some measure adjudge the facts as well as the law of a particular case in advance of hearing it,” then that official is disqualified on the ground of prejudgment.  Woodlawn Heights Taxpayers & Cmty. Ass’n v. N.Y. State Liquor Auth., 307 A.D.2d 826, 827 (N.Y. App. Div. 1st Dep’t 2003).

Recently, the SLA used its official Twitter and Facebook accounts to publish a link to an op-ed written by Craig Wolf, president of the Wine & Spirits Wholesalers of America, in which Mr. Wolf states that Empire “has for years shipped alcohol across state lines in violation of recipient states’ tax and licensing laws.”  Mr. Wolf goes on to state that, “The SLA is doing what is right” by going after Empire, and argues that the SLA’s enforcement actions is supported by the 21st Amendment.

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By promoting Mr. Wolf’s article, one could argue that the SLA has already decided the facts before Empire has had any chance to present evidence at the hearing.  Moreover, the SLA has conclusively weighed in on a key legal questions at issue in this hearing:  does the SLA’s disciplinary action attempt to regulate interstate sale and distribution of alcohol in violation of the Commerce Clause, or is the SLA’s action permissible under the 21st Amendment?  (For a review of some of Empire’s other legal arguments, please see

The SLA’s adoption and public promotion of Mr. Wolf’s views and statements may provide the basis for an appeal by Empire  (if needed).

John Trinidad is an attorney at DPF and also serves as pro-bono General Counsel to the American Wine Consumers Coalition, an advocacy organization seeking to protect consumer rights and lower barriers to wine access.  His full bio is available here.  

Updated 1/25/2015

One Comment

  • craig wolf
    Jan 22, 2015 @ 09:28:58

    1. Perhaps as a matter of full disclosure, your law firm/Mr. Trinidad – in alleging bias by the NYSLA- should disclose its ownbias – whether it represents retailers engaged in interstate shipment of alcohol or organizations of such retailers. For instance, Mr. Trinidad is GC of the so-called American Wine Consumers Coalition – a group that does not reveal is membership – but which claims to represent consumers – and which clearly expresses disdain for state laws prohibiting direct to consumer sales by retailers across state lines. Someone reading this piece might want to be aware of Mr. Trinidad’s potential bias when reading his legal “analysis.”
    2. The reported arguments by Empire thus far are not that it doesn’t ship alcohol into states that prohibit out of state retailer shipments to consumers, but that the NYSLA should essentially turn a blind eye to those potentially illegal sales by its licensee and mind its own business. Perhaps Mr. Trinidad could shed light on any other defense Empire has raised?
    3. As a law firm, it would probably be helpful if you could point to some actual legal precedent holding that a regulatory agency tweeting a link to an op-ed supporting an ongoing action by that agency – which notes the fact that there is an opposing op-ed in that same edition – is evidence of bias. Linking to an op-ed does not come close to constituting bias or pre-judgment.
    4. The proper term for a legal principle is a “tenet,” not a “tenant.” A tenant is a renter of property.


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