24 Mass. App. Ct. 708 | Mass. App. Ct. | 1987
Beverages International Ltd. (Beverages), holder of a liquor wholesaler’s license under G. L. c. 138, § 18, claims that § 25E of that chapter prohibits a certain liquor wholesaler from summarily refusing to sell to it. The defendants are the Alcoholic Beverages Control Commission (commission) and Schenley Affiliated Brands Corporation (Schenley),
A judge of the Superior Court had reversed and remanded a decision of the commission adverse to Beverages for further fact finding. After rehearing, the commission made additional findings of fact and reaffirmed its original decision. Beverages then filed an amended complaint, again seeking review of the commission’s decision. A judge of the Superior Court entered judgment for the defendants.
The facts as found by the commission are not disputed. From 1983 until May, 1984,
After a hearing, the commission on November 19, 1985, rendered a decision holding that G. L. c. 138, § 25E, was inapplicable because of the “absence of a six month period of sales recent to the protested refusal” as required by the statute. Beverages’ appeal was dismissed.
The question raised by Beverages on appeal concerns the interpretation of a phrase in G. L. c. 138, § 25E, as amended through St. 1982, c. 627, § 10. The pertinent part of the statute is the first paragraph, which reads:
“ It shall be an unfair trade practice and therefore unlawful for any . . . wholesaler of any alcoholic beverages, to refuse to sell, except for good cause shown, any item having a brand name to any licensed wholesaler to whom such . . . wholesaler has made regular sales of such brand item during a period of six months preceding any refusal to sell.'’ (Emphasis supplied.)
The parties dispute the meaning of the italicized language. The defendants argued below, and here, that the required six months of regular sales must immediately precede the supplier’s
Beverages, on the other hand, contends that § 25E only requires a six-month “trial period” of regular sales at any time before the supplier refuses to sell. Since Schenley admittedly sold brand-name liquor to Beverages on a regular basis for more than six months (from March, 1983, to May, 1984), Beverages concludes that G. L. c. 138, § 25E, applies and that Schenley could discontinue sales only for “good cause shown” and upon following the procedures set out in the second paragraph of the statute, i.e., a 120-day grace period before termination and a “good cause” hearing before the commission. (Not one of the parties suggests that Schenley has shown cause or complied with those procedures).
It appears that this aspect of § 25E has not yet received judicial interpretation by an appellate court. In the circumstances, while the commission’s interpretation is not binding on the court, a reasonable construction of a regulatory statute adopted by the enforcing agency is entitled to some weight. Amherst-Pelham Regional Sch. Comm. v. Department of Educ., 376 Mass. 480, 491-492 (1978). See Casa Loma, Inc. v. Alcoholic Beverages Control Commn., 377 Mass. 231, 235 (1979). See also Great Atl. & Pac. Tea Co. v. License Commnrs. of Springfield, 387 Mass. 833, 837 (1983), citing Connolly v. Alcoholic Beverages Control Commn., 334 Mass. 613, 618 (1956) (Alcoholic Beverages Control Commission has “specialized knowledge of the problems affecting the regulation of the sale of alcoholic beverages”). We think that the commission’s interpretation is reasonable and sound. See Howard Johnson Co. v. Alcoholic Beverages Control Commn., ante 487, 490 (1987) (“agency charged with the administration of a statute may, in a decision, define or interpret statutory terms, at least in the first instance”). Cf. Amoco Oil Co. v. Dickson, 378 Mass. 44, 50 (1979);
Beverages argues that the commission’s interpretation is inconsistent with the “plain language” of the statute, pointing to the use of the indefinite article “a” rather than “the” in the statute. Two venerable cases are cited in support of this contention, Palmer v. Kellogg, 11 Gray 27, 28 (1858) (cited as indicating that the article “the” denotes the singular), and National Union Bank of Boston v. Copeland, 141 Mass. 257, 266 (1886) (cited for the proposition that “a” is commonly used as a synonym for “one” or “any”). Neither is determinative of the question in this case. Both occur in totally different contexts from the present. Further, the National Union Bank case (interpreting a provision in a deed) holds that “the particle ‘a’ is not necessarily a singular term ...” (emphasis supplied), and holds in addition that a strict grammatical construction of a phrase should not be followed if it leads to a result “at variance with other and apparently controlling provisions or objects of the [instrument being interpreted].” Ibid.
Reading the language in question here in context leads to the conclusion that the Commission’s interpretation is the correct one. The interpretation suggested by Beverages would render the phrase “preceding any refusal to sell” surplusage, in violation of the rule of statutory construction that, “wherever possible, no provision of a legislative enactment should be treated as superfluous.” Casa Loma, Inc. v. Alcoholic Beverages Control Commn., 377 Mass. at 234. Adamowicz v.
In sum, Beverages has presented no convincing argument that the commission was wrong, either as matter of law or as matter of public policy, in its interpretation of the statutory provision at issue.
Judgment affirmed.
In a related proceeding a United States Bankruptcy Court judge found that the business relationship extended over a period of seventeen years.
In its decision after remand, the commission states that whether it would have been commercially feasible for Beverages to make such purchases is not relevant to the commission’s final decision. It, goes on, however, to say that “[wjhere the wholesaler itself ceased to make purchases, it cannot avail itself ten months later of the provisions of [G. L. c. 138, §] 25E to recreate a business relationship that it dissolved” (emphasis supplied). The commission also states that, because Beverages had the legal capacity to place orders during the period in question, the commission did not reach the question whether Beverages would have been entitled to protection under § 25E had it lacked such capacity. Beverages asserts that it did not intend to terminate its course of dealings with Schenley, and that this fact
The commission’s decision after remand was based on the same ground.
“It is simply not clear that in all instances the public interest would be served by requiring suppliers to continue marketing agreements with dealers whose business operations had been and would be chronically and irremediably unprofitable to the suppliers.” 378 Mass, at 50.
“A provision for cancellation in the event of a change of control of one’s distributor or supplier is a reasonable method of ensuring freedom for a supplier to select a new distributor (or a wholesaler to select a new supplier) . ...” 11 Mass. App. Ct. at 938.
Another case cited by Beverages, Faulks v. Schrider, 114 F.2d 587, 590 (D.C. Cir. 1940), held that the phrase “a period of fifteen years before the bringing of the action” in a District of Columbia Code provision providing a method of establishing title by adverse possession did not refer solely to the fifteen-year period immediately preceding commencement of the action; this interpretation was based in part on reference to another code provision, the applicable limitation statute. Again, as the context is different, the interpretation is not dispositive here.