13 Mass. App. Ct. 70 | Mass. App. Ct. | 1982
These are appeals by the plaintiffs from an order of a judge of the Superior Court which dissolved a preliminary injunction issued at their request. G. L. c. 231, § 118, second par. The injunction had barred enforce
The various arguments of the plaintiffs revolve around two underlying premises: first, that they were entitled to, and did not receive, hearings before the board of an adjudicatory or quasi judicial nature, and, second, that the evidence adduced before the board did not warrant a conclusion that all, or any, of the plaintiffs had violated the provisions of c. 138 and, hence, did not warrant the board’s curtailment of their licenses. To a considerable extent the latter contention is unreconcilable with the holdings in Casa Loma, Inc. v. Alcoholic Beverages Control Commn., 377 Mass. 231, 233-235 & n. 6 (1979), and Profile Lounges, Inc. v. Alcoholic Beverages Control Commn., 7 Mass. App. Ct. 453, 454 (1979), which decided that G. L. c. 138, § 12, sixth par., gives a local licensing board a virtually unlimited and unreviewable discretion to determine the closing hours of a restaurant licensee between the hours of 11:00 p.m. and 2:00 a.m.,
The second sentence of the paragraph, as amended through St. 1977, c. 929, § 2, says that the local licensing authority “shall not decrease the hours during which sales of alcoholic beverages may be made . . . until after a public hearing concerning the public need for such decrease; provided, that any licensee affected by such change shall be given two weeks notice of such public hearing.” The first sentence says that the local licensing authority may fix the hours “either generally or specially for each licensee.” Here the local board proposed to, and did, act generally, cutting all pouring licenses back to a 1:00 a.m. closing time. No charges were made of violations by the licensees, although it was suggested at the July 30 hearing (see note 4, supra) that there was overcrowding in certain licensed establishments during the early morning hours. Rather, the hearings focused on the existence of a public safety problem allegedly arising from the divergence between Peabody’s 2:00 a.m. closing time and the 1:00 a.m. closing time in effect in the surrounding communities, a divergence which was claimed to be the cause of a postmidnight onslaught of vehicles whose occupants converged on Peabody bars in search of one or two more drinks.
The board correctly took the position from the outset that the hearing was legislative, or regulatory, rather than quasi judicial in nature. No one factor by itself leads to that conclusion. Cambridge Elec. Light Co. v. Department of Pub. Util., 363 Mass. 474, 488 (1973). The facts that the proposed action was to be of general applicability (see 2 Davis, Administrative Law § 15.03, at 353, and § 15.14, at 433 [1958]), that the governing standard was “public need” (see Dubois v. Selectmen of Dartmouth, 2 Mass. App. Ct. 674, 677-678 [1974]), and that no violations of law were charged against the licensees (contrast Saxon Coffee Shop, Inc. v. Boston Licensing Bd., 380 Mass. 919, 922-929 [1980]) in combination point to the appropriateness of a regulatory-type hearing:
The plaintiffs make an additional argument, not developed particularly clearly, that the discretion given local licensing authorities by G. L. c. 138, § 12, sixth par., to regulate closing times is unconstitutionally broad because the statute does not provide a meaningful standard, other than “public need,” for its exercise. Concededly, the discretion is broad; but, historically, the business of selling alcoholic beverages is subject to pervasive regulation (see Supreme Malt Prod. Co. v. Alcoholic Beverages Control Commn., 334 Mass. 59, 61 [1956]; Connolly v. Alcoholic Beverages Control Commn., 334 Mass. 613, 619 [1956]), and the conditions under which liquors may be sold are subject to abrupt change at the will of the State or locality. “Liquor licenses are licenses in the technical sense, which are revocable at pleasure without assignment of reasons by the granting authority, and are not intended to confer vested property rights in the holder.” Opinion of the Justices, 349 Mass. 794, 797 (1965). To the same effect, see Tracy v. Ginzberg, 189 Mass. 260, 262-263 (1905), aff’d, 205 U.S. 170 (1907); Jubinville v. Jubinville, 313 Mass. 103, 106 (1943). Cf. Commonwealth v. Downey, 12 Mass. App. Ct. 754, 756-757 (1981). Local licensing boards may law
It follows that the judge did not err in refusing to continue in effect the injunction against implementation of the 1:00 a.m. closing policy.
Order dissolving preliminary injunction affirmed.
“Closing hour” is used in this opinion, as it was by the licensing board, to denote the time at which sales of alcoholic beverages must cease. An advisory from the board gave licensees additional time to clear glasses from tables, cause patrons to leave, and secure the premises.
Under the board’s June 16 decision the uniform 1:00 a.m. closing policy was to have gone into effect on July 7, but on that date the plaintiffs obtained the first of several court orders enjoining enforcement of the new policy. The judge expressed the view that the evidence before the board had been insufficient to support its conclusion that the public interest required the earlier closing time. Consequently the board held a lengthy hearing on July 30, 1980, following which it issued a detailed decision reaffirming the new policy. The decision was to take effect August 8, 1980, but the judge did not dissolve the injunction until September 2, 1980. Single justices of this court and the Supreme Judicial Court, on September 16 and September 30,1980, respectively, refused the plaintiffs’ applications for injunctive relief under the first paragraph of G. L. c. 231, § 118, so the uniform 1:00 a.m. closing policy has presumably been in effect since September 2, 1980.