13 Mass. App. Ct. 268 | Mass. App. Ct. | 1982
The defendant board of license commissioners (board) denied the application of the plaintiff Cantwell to transfer a license authorizing her to sell wines and malt beverages for off-premises consumption (G. L. c. 138, § 15) to the plaintiff The Great Atlantic & Pacific Tea Company, Inc. (A & P), and to transfer its location. The stated reason for the denial of the application is set out in the margin.
There does not appear to be any dispute concerning the material facts. Cantwell, who did business under the name Emerald Package Store, for financial reasons had ceased doing business prior to the first hearing on her application and had not resumed business at the time of the second hearing.
In Dixie’s Bar the court noted that, while there was then no statutory basis for requiring a statement of reasons with respect to proceedings under G. L. c. 138, § 23, a statement of reasons would be of assistance in determining whether the board had acted fairly and properly and that such reasons “tend to ensure administrative justice and to encourage public confidence in the administrative process.” Dixie’s Bar, Inc. v. Boston Licensing Bd., supra at 702. The Legislature then promptly enacted St. 1971, c. 260, § 2, amending § 23 to require local licensing authorities to disclose their reasons for any adverse action taken relative to alcoholic beverage licenses. We therefore look to the reasons stated by the board in this case to determine the propriety of the board’s action. See Davis, Administrative Law § 14.29 (2d ed. 1980). As those reasons only relate to the location of the proposed transfer, we limit our discussion to that question.
The statutory standard governing action by local licensing boards is to be found in G. L. c. 138, § 23, first par.
We note first that the record before us does not indicate that any action has been taken by the board to cancel the Cantwell license for failure to conduct business on the licensed premises. See G. L. c. 138, § 77. Had such action been taken and the license canceled, or had the license sought to be transferred been from an area of the city outside Hungry Hill, there would be a rational basis for the board’s stated reasons for its action. In other words, it would be proper for the board to deny the transfer of a license into an area already adequately served. Here, however, we have an outstanding license to sell beer and wine in a store located in the Hungry Hill area which is sought to be transferred but a short distance to a site in the same area. The allowance of the application for transfer would thus not result in any increase in the number of outstanding off-premises licenses in the area. The only interests protected by the action of the board in this case are those of other license holders against competition from a potentially active licensee. It would seem that such competition would serve rather than militate against the common good. We hold that the board’s action was based on an erroneous conception of the law and that it was error for the judge to have upheld it.
So ordered.
“The majority of this Commission denied the requested transfer because the public and the Liberty Heights area of Springfield are more than adequately served by several Retail Package stores licensed by this Commission.”
“On the basis of this re-hearing and the consideration of the public need and the protection of the common good as to an adequate number of places at which the public may obtain wine and malt beverages, it is the opinion of the Board of License Commissioners that the location to which the transfer is requested is presently served by an adequate number of places at which the public may obtain wine and malt beverages and therefore, the request for the transfer of location is denied by a two to one (2-1) margin.”
Counsel informed us at oral argument that the store has not since been reopened.
The record indicates that the neighborhood is also known as Liberty Heights, the term used by the board (see note 2, supra).
The pertinent part of that paragraph states:
“The provisions for the issue of licenses and permits hereunder imply no intention to create rights generally for persons to engage or continue in the transaction of the business authorized by the licenses or permits respectively, but are enacted with a view only to serve the public need and in such a manner as to protect the common good and, to that end, to provide, in the opinion of the licensing authorities, an adequate number of places at which the public may obtain, in the manner and for the kind of use indicated, the different sorts of beverages for the sale of which provision is made.”
That standard does not clearly articulate a policy which permits a local licensing authority to apply anticompetitive considerations in the issuance or transfer of licenses within the limit of the total number of licenses which by statute may be issued by the municipality. A local board acting to limit competition in this area might run afoul of the Federal antitrust laws. See Community Communications Co. v. Boulder, 455 U.S. 40, 46-48 (1982).