373 Mass. 708 | Mass. | 1977
Because of increase in its population, the town of Barnstable became eligible in 1976 to make awards of seven new year-round licenses for the sale by common victuallers of all alcoholic beverages to be drunk on the premises (“pouring” licenses). See G. L. c. 138, §§ 12, 17. Twenty-seven firms or individuals presented applications to the board of selectmen (hereafter the board), which acts as the local licensing authority (see G. L. c. 138, § 1, & note 16 infra), and the board after hearings granted licenses to seven of these applicants. Tri-Nel Management, Inc., owner of the Windjammer Lounge, was one of those denied a license — a near miss, as will appear, as Tri-Nel might have been granted a license, had not a license been awarded to M. D. Armstrong’s, Inc., owner of a restaurant of that name. Tri-Nel appealed from the denial to the Alcoholic Beverages Control Commission (commission) pursuant to G. L. c. 138, § 67,
1. Procedural irregularities. When Mrs. Montagna was elected as a member of the board of selectmen in March, 1975, it was recognized that problems were likely to arise about her participation in the board’s work as liquor licensing authority. Therefore the board sought an opinion of town counsel. His advice, summed up, was that Mrs. Montagna should avoid acting on the Marlin’s then current application for renewal of a seasonal license, and, if that were granted, should avoid “acting on any matter involving any on premise pouring liquor license within a
On Friday, February 20, 1976, when the board’s hearings began, a decision was taken without Mrs. Montagna’s participation to consider applications in the order in which they were filed. The Marlin application was dealt with first, Mrs. Montagna abstaining. (Actually it is not clear from the record that that application was the first filed among the three earliest filed, all on January 23, 1976.) Selectman Eshbaugh pointed out that the statute (c. 138, § 16B) required that applications be acted on within a period of thirty days of receipt, which would expire the next Monday. He remarked, in effect, that it would be well to dispose of the Marlin application so that it would not be “hanging over” the other applications on which Mrs. Montagna would be deliberating and voting. With very brief discussion in which no other application was mentioned, selectmen Eshbaugh and Brown voted a license for the Marlin.
Consideration and disposition of the other twenty-six applications, with Mrs. Montagna participating and voting, took place later on February 20, and on February 24, 25, and 26. The plan of following the order of filing was not adhered to after -February 20. Five licenses were granted in the Main Street area of Hyannis. These restaurants were not in the Marlin’s immediate neighborhood. On the road on which the Marlin was located (Route 132 becoming Route 28), the only other award, evidently a meritorious one, was made to the Ramada Inn (see note 3 supra), which, however, was closer to Main Street and the Hyannis town center than to the Marlin. Mrs. Mon-tagna spoke up when two applicants on the road were considered, the Windjammer and the Red Coach Grille,
Appraising the whole case before it, the commission said in its decision (set out in part in the margin)
Whether the licensing function is characterized by the term “quasi judicial,” see Albano v. Selectmen of S. Had-ley, 341 Mass. 494, 495 (1960), or by some other term betokening impartiality and disinterestedness, it seems to us that the standards of propriety to which the commission appealed were commonsensical (see Jaffarian v. Murphy, 280 Mass. 402, 405 [1932]; Josephson v. Planning Bd. of Stamford, 151 Conn. 489 [1964]; S & L Associates, Inc. v. Washington, 61 N.J. Super. 312 [1960], aff’d in part and rev’d in part, 35 N.J. 224 [1961]), and the decision reached was supported by substantial evidence. See G. L. c. 30A, § 14 (8) (e); Katz v. Massachusetts Comm’n Against Discrimination, 365 Mass. 357, 365 (1974); Al-meida Bus Lines, Inc. v. Department of Pub. Utils., 348 Mass. 331, 341-342 (1965). As to the desirability of a comparative assessment regarding the Marlin application, it may be acknowledged that the realities of proceedings before a board of selectmen may often prevent perfect comparison when many applicants apply for a limited number of licenses; but however flexible the criterion may have to be, it is nevertheless significant and should not be ignored. Cf. Bay State Harness Horse Racing & Breeding Ass’n v. State Racing Comm’n, 342 Mass. 694, 702-703 (1961). Here more meaningful comparative appraisal was possible and should have been pursued. The commission was warranted in finding that, in a situation calling par
2. Authority of the commission. Answering the challenge to the authority of the commission to check the local board as it did here, we hold that the commission had competence to decline approval of the licenses on the ground of procedural irregularity; its decision was not “[i]n excess of [its] statutory authority or jurisdiction” (G. L. c. 30A, §14 [8] [6]).
A pouring license needs the approval of both the local licensing board and the commission to become effective. See G. L. c. 138, §§12 and 67.
In the interplay of State and local authority, the commission has considerable scope. In Connolly v. Alcoholic Beverages Control Comm’n, 334 Mass. 613 (1956), we find an important discussion of the range of authority of the commission, which in that case had declined to approve a license awarded by the Framingham selectmen. On review in this court of the commission’s action, it was argued that the commission could not refuse approval, after the board’s affirmative vote, except for personal unfitness of the applicant, which had not been suggested. We examined at some length the position of the commission in the scheme of the statute, concluding thus: “The legislative history of G. L. (Ter. Ed.) c. 6, § 43,
It is scarcely believable that a commission so empowered as to substance is disempowered as to procedural claims that might, as in the present case, go to the integrity of the process by which the local board reached its decision. The statutory power to give or withhold approval contains no such express limit (see note 9 supra) and should be read as including a capacity to consider these matters of procedure.
We have no precedent under the liquor laws which is squarely decisive of the present question as to the authority of the commission,
In reaching a negative conclusion as to the commission’s authority, the judge of the Superior Court took no note of the factors mentioned above. He suggested that the commission’s decision was tantamount to removing Mrs. Montagna, an elected official, from her post on the board. That overstates the case. She was merely considered disqualified in the particular matter; she may act on any liquor matters as to which she is indifferent.
3. Disposition. Finding procedural irregularity on the part of the local board, the commission took a sound course in remanding to the board for a “second look” as to all applicants without entering on the merits. See Coyne v. Alcoholic Beverages Control Comm’n, 312 Mass. 224, 227-228 (1942); W.C. Three, Inc. v. Township Comm. of Wash., 142 N.J. Super. 291, 295-296 (1976). This seems particularly appropriate in a scheme of license approval where the local board, as we have seen, is given greater responsibility than is usual at the lower tier in a two-tier administrative structure. There is no difficulty in the board’s acting effectively on remand. The two disinterested selectmen may act for the board; the situation is not one of “necessity” which might allow Mrs. Montagna’s participation despite her interest. See Graham v. McGrail, 370 Mass. 133, 138 (1976); Albano v. Selectmen of S. Hadley, 341 Mass. 494, 496 (1960); Coyne, supra at 228; Township Comm. of Freehold v. Gelber, 26 N.J. Super. 388, 393 (1953).
The judgment of the Superior Court is reversed and the commission’s decision reinstated.
So ordered.
Section 67, as appearing in St. 1953, c. 672, provides in part: “Any applicant for a license who is aggrieved by the action of the local licensing authorities in refusing to grant the same, or by their failure to act within the period of thirty days limited by section sixteen B,... may appeal therefrom to the commission within five days following notice of such action or following the expiration of said period, upon petition in writing, setting forth all the material facts in the case.”
The parties raise no question about the license awarded to the Ramada Inn, which was earlier approved by the commission.
The commission questions whether § 14 review is properly available, but indicates correctly that a declaratory action would be available in the present situation if § 14 were inapposite; the considerations would be roughly the same. See Canney v. Municipal Court of the City of Boston, 368 Mass. 648, 654-655 (1975); Boston Licensing Bd. v. Alcoholic Beverages Control Comm’n, 367 Mass. 788, 792 (1975); Westland Hous. Corp. v. Commissioner of Ins., 352 Mass. 374, 383-385 (1967); South Shore Nat'l Bank v. Board of Bank Incorporation, 351 Mass. 363 (1966).
Counsel believed that Mrs. Montagna’s joinder in these decisions would likely encompass violations of G. L. c. 268A, the conflict of interest statute.
For purposes of this appeal, it would not matter that it could be found that Mrs. Montagna was acting in good faith and trying to be objective.
“Although Mrs. Montagna did not sit nor take part in the vote relating to the Marlin Restaurant because of her obvious interest therein, it is the opinion of the Commission that the manner in which the proceedings were held and the participation of Mrs. Montagna in decisions relating to the locations of potentiál competitors was improper. This Commission makes no finding nor was there any evidence presented to it relating to any improper exercise of influence by Mrs. Montagna. However, we believe that the appearance of conflict and the potential for deference by other Selectmen to her interests is too real and obvious to be ignored. This is particularly so since the Marlin Restaurant was the first applicant considered and approved. Effective discussion relating to the comparative merits of the Marlin Restaurant for the license as opposed to the other applicants was thereby inhibited and put to bed very early in the day.
“Accordingly, it is ordered that this matter be remanded to the Board of Selectmen of Barnstable and that new hearings be held by the Board with respect to all applicants for those licenses which have not yet been approved by this Commission. We deliberately do not limit our decision merely to the appellant herein. Mrs. Montagna should take no part in either the discussions nor the vote with respect to these licenses if approval by this Commission is anticipated.”
The need to reach early decision on the applications filed on January 23 did not prevent comparison with others, for the others had been filed by early February and were known when the hearings commenced on February 20.
Section 12 provides in part that a victualler “may be licensed by the local licensing authorities, subject to the prior approval of the commission.”
See the partial text of § 67 quoted at note 2 supra. Section 67 also provides: “If the commission approves the action of the local licensing authorities it shall issue notice to them to that effect, but if the commission disapproves of their action it shall issue a decision in writing advising said local authorities of the reasons why it does not approve, and shall then remand the matter to the said local authorities for further action. The commission shall not in any event order a license to be issued to any applicant except after said applicant’s application for license has first been granted by the local authorities.”
Section 43 establishes the commission. Section 44 states: “The commission shall have general supervision of the conduct of the business of manufacturing, importing, exporting, storing, transporting and selling alcoholic beverages ....”
The court’s footnote at this point in the Connolly quotation is omitted.
The court said (concerning the issue of a package store license to a person holding a drug store license): “It is not necessary to decide in this case what are the precise limits of the authority of the commission in considering the approval or disapproval of the acts of local licensing boards under § 15, but we do hold that such authority at least extends to considering such matters (shown by the record to have been discussed by the commission at its hearing on the application) as (1) the existing patronage by school children and others of the petitioner’s drug store; (2) the proximity of churches and schools; (3) the adequacy in the public interest of the drug store license under G. L. (Ter. Ed.) c. 138, § 30A, as appearing in St. 1935, c. 440, § 26, already possessed by the petitioner; and (4) whether this, on all the facts, was a proper instance in which a registered pharmacist might also be given a license under § 15, as is permitted by G. L. (Ted. Ed.) c. 138, § 29, as appearing in St. 1935, c. 440, § 25. See discussion in Webster v. Alcoholic Beverages Control Commission, 295 Mass. 572, 575-576 [1936]; Coyne v. Alcoholic Beverages Control Commission, 312 Mass. 224, 228-229 [1942]. On all of these matters, we think the commission cannot be said to have acted unreasonably in the light of the evidence before it, giving due weight to its specialized knowledge of the problems affecting the regulation of the sale of alcoholic beverages.” (Footnote omitted.) Id. at 617-618.
“An agency’s powers are shaped by its organic statute taken as a whole and need not necessarily be traced to specific words.” Commonwealth v. Cerveny, ante, 345, 354 (1977), citing Warner Cable of Mass. Inc. v. Community Antenna Television Comm’n, 372 Mass. 495, 504-505 & n.17 (1977).
In Piona v. Alcoholic Beverages Control Comm’n, 332 Mass. 53 (1954), this court held that the commission had erred in failing to allow an appeal from a local board which had omitted to provide a notice required by the statute. “[T] hereby,” said the court, “ [the commission] countenanced and gave effect to the error which the board had committed.” Id. at 56. Cf. G. L. c. 30A, § 14 (8) (d) (court may set aside agency action which was “[m]ode upon unlawful procedure”). In Boston Licensing Bd. v. Alcoholic Beverages Control Comm’n, 367 Mass. 788, 796-797 (197-5), the court did not have to pass on the question whether the commission had an implied duty to insist that the local board meet minimal procedural standards in the promulgation of regulations, similar to the standards required of the commission, because the board had in fact provided adequate opportunity for a hearing.
We note that the New Jersey director has more extensive power than our commission finally to override decisions of the local authorities, but this perhaps makes all the more suitable and important that our commission should be able to insist on fair proceedings by those boards.
In the cities the local licensing authorities are appointed, not elected, and the statute disqualifies any from membership who are “engaged, directly or indirectly, in the manufacture or sale of alcoholic beverages.” G. L. c. 138, § 4. This shows the legislative concern with disinterested decision. The blanket disqualification of § 4 would not be feasible where selectmen act as the licensing authority; ad hoc disqualification of a particular member, when justified by the facts, then becomes necessary.