This is аn appeal from a Superior Court judgment affirming a decision of the Alcoholic Beverages Control Com
The licensee commenced an action in the Superior Court for judicial review of the commission’s action pursuant to G. L. c. 30A, § 14. A Superior Court judge denied the licensee’s applicаtion for a preliminary injunction staying the enforcement of the commission’s decision.
2
The licensee moved for summary judgment. The licensee’s motion for summary judgment was denied and summary judgment was entered for the commission pursuant to Mass. R. Civ. P. 56 (c),
We summarize the evidence. In 1983, the licensee operated a nightclub located at 1192-1198 Commonwealth Avenue in Alisten. As a rеsult of complaints of “selective discrimination” against blacks in its admissions policies, fifteen members of the “Community Disorders Unit” of the Boston police department conducted a series of investigations at the licensee’s place of business at various times over the period between April 17 and May 2, 1983.
On several occasions during this investigation, plainclothes officers and detectives approached, entered, or attempted to enter the licensee’s premises. On one of the nights of the investigation, three officers, two black males and one white female, were denied entry when they failed to produce a second form of photographic identification in аddition to their valid Massachusetts driver’s licenses. While they were detained at the door, the officers observed several white patrons enter without having to produce any identification. On another occasion, three plainclothes officers, all white, entered the licensee’s premises without being detained or asked for any form of identification. One of those officers said that “the only people who were turned away on that evening were black people.”
On each of the nights of the investigation, the police observed between 100 and 250 patrons enter the licensee’s establishment. On four of these nights the police interviewed black individuals who were denied admission as to the reasons given to them for their exclusion. The reasons reported included improper attire, failure to produce two forms of identification, and lack of a “VIP” card issued by the licensee. However, the officers witnessed white patrons enter the premises on the same evenings who were dressed more casually than the blаcks turned away, and who were not required to present any form of identification.
On Sunday night, April 17, 1983, one Charles Griffin, a forty-three year old black man from Cambridge, attempted to
Shortly after the police investigation, the Boston Licensing Board conducted hearings to determine whether the licensee did, in fact, discriminate against black persons in its admissions policy. After reviewing the testimony of twenty-two witnesses, six police reports, and other documentary evidence, the board rendered a “Decision and Statemеnt of Reasons,” including eighteen detailed subsidiary findings, wherein it voted to revoke the licensee’s liquor license. The board expressly found “a deliberate pattern” of discrimination. The licensee appealed the board’s decision to the commission pursuant to G. L. c. 138, § 67. After a hearing, the commission affirmed the action of the board. In its decision, the commission upheld the board’s revocation of the plaintiff’s license and incorporated by reference the board’s statement of reasons.
1.
Substantial evidence.
The licensee argues that the decision of the commission must be reversed under G. L. c. 30A, § 14 (7) (1986 ed.), because there is no evidence that the black individuals who were excluded were denied admission due to their race. The licensee argues that the record shows that all the alleged incidents of discrimination occurred on Sunday, the club’s busiest night, that overcrowding was a problem at the club, and that the alleged incidents of discrimination constituted nothing more than the licensee’s legitimate, race-neu
The evidence warrants the finding that the licensee on more than one occasion detained blacks at the door and forced them to produce more forms of identification than whites entering at the same time. The evidence also warrants the finding that the licensee excluded blacks allegedly because of their attire, even though they were dressed as well as, or better than, whites admitted at the same time. The commission considered evidence that the licensee at times admitted blacks to the licensee’s premises and excluded whites. The commission concluded that the licensee limited the number of blacks it admittеd, and excluded other blacks on the basis of race. 3 Based on the evidence, the commission could conclude that the licensee’s proffered excuses were merely pretexts and that the licensee was discriminating against some persons because of race.
The licensee asserts that the -evidence does not meet the substantial evidence standard. Substantial evidence is “such evidence as a reasonable mind might accept as adequate to support a conclusion.” G. L. c. 30A, § 1 (6) (1986 ed.).
New Boston Garden Corp.
v.
Board of Assessors of Boston,
The licensee next suggests that because the anti-discrimination statute, G. L. c. 272, § 98, is a criminal statute, it is unclear what standard the commission was required to employ and that the commission did not clearly state what standard it did employ. Contrary to the licensee’s argument, it is abundantly clear that substantial evidеnce is the appropriate standard regardless of whether the alleged violation is of a criminal statute or a regulation. See, e.g.,
Saxon Coffee Shop, Inc.
v.
Boston Licensing Bd.,
2. Required findings of intent to discriminate. We reject the licensee’s argument that the agencies failed to make a required finding of intent to discriminate. The board expressly found “a deliberate pattern” of discrimination pursuant to which the licensee “permitted a limited number of black patrons to be admitted to the licensed premises and . . . еstablished and instituted a system of discrimination in the further admission of black persons by arbitrarily and capriciously applying the requirements of: (a) ‘proper dress’; (b) V.I.P. cards; [and]'(c) Multiple picture identification cards.” Those findings were adopted by the commission after a de novo hearing. Discriminatory intent could be inferred from the licensee’s pattern of conduct directed against black persons.
3.
Inadequate notice.
The licensee’s challenge to the adequacy of the notice it received from the board is not supported by the appellate record. Notice of violations is sufficient when it “affords the parties reasonable opportunity to prepare and present evidenсe.” G. L. c. 30A, § 11 (1). Here the notice to the licensee stated: “That on April 17th, 24th, May 1st, 2d, 1983 you did make a distinction, discrimination or restriction on account of race or color relative to the admission of persons in a place of public accommodations, in violation of G. L. c. 272, section 98.” This notice provided the licensee with ample opportunity to prepare for the hearing, and the licensee in fact presented eight witnesses at that hearing/ Moreover,
4. De novo hearing. The licensee admits that the commission could receive in evidence a transcript of the board hearing, United Food Corp. v. Alcoholic Beverages Control Comm’n, supra at 243, and that thе commission could adopt the board’s findings without making further findings. Olde Towne Liquor Store, Inc. v. Alcoholic Beverages Control Comm’n, supra at 155. The licensee’s basic complaint seems to be that the commission should have made different findings based on the evidence presented in the de novo hearing. As already noted, however, the commission’s findings are fully supported by substantial evidence. 4 See supra at 351-352.
5.
Disproportionate penalty.
The licensee argues that revoсation of its license is a disproportionate penalty. It is unclear whether the licensee properly preserved its objection to the penalty. At oral argument, the licensee claimed that it placed the issue of disproportionate penalty in its notice of appeal to the commission. That notice is not in the rеcord before us. The licensee did raise the issue of disproportionate penalty in the Superior Court. However, an issue not raised before the commission is deemed waived.
5
See, e.g.,
Langlitz
v.
Board
Assuming the issue is properly presented, there is no error. It is “well settled that in reviewing the penalty imposed by an administrative body which is duly constituted to announce and enforce such penalties, neither a trial court nor an appellate court is free to substitute its own discretion as to the matter; nor can the reviewing court interfere with the impоsition of a penalty by an administrative tribunal because in the court’s own evaluation of the circumstances the penalty appears to be too harsh.”
Levy
v.
Board of Registration & Discipline in Medicine,
Revocation of a license is one of the sanctions provided by G. L. c. 138, § 64, and the licensee’s own affidavits indicate that it is imposed regularly by the board and the commission.
7
Judgment affirmed.
Notes
Rule 14 provides in relevant part: “No licensee shall make any distinction, discrimination or restriction on account of race, color, religious creed, national origin, sex or ancestry relative to the admission or treatment of any person.”
The docket reflects that the licensee sought preliminary relief staying the commission’s order from three different Superior Court judges. Every judge denied the stay.
The licensee asserts that the commission’s findings are inadequate because it did not find that the licensee was a place of public accommodation. The argument is specious. In the first paragraph of its complaint, the licensee stated that it held an “all alcoholic common victualer’s license” pursuant to G. L. c. 138, § 12. In its answer, the commission admitted that fact.
The licensee’s claim that the commission abdicated its responsibility to grant a de novo hearing pursuant to G. L. c. 138, § 67, and c. 30A, §§ 10-13, is frivolous. The licensee received a fresh adjudicatory hearing before the commission; it cross-examined all of the board’s witnesses and presented eleven witnesses of its own, including four who did not testify before the board.
The licensee’s reliance on
Olde Towne Liquor Store, Inc.
v.
Alcoholic Beverages Control Comm’n, supra,
for the proposition that a penalty imposed by the board may be attacked for the first time before the Superior
The licensee then had another opportunity to complain about the commission’s upholding of that penalty through a request for administrative reconsideration pursuant to 801 Code Mass. Regs. § 1.01 (10) (p). See Norway Cafe, Inc. v. Alcoholic Beverages Control Comm’n, 7 Mass. App. Ct. 37, 40 (1979).
In the Superior Court the licensee filed an affidavit which indicates that serious offensеs such as drug sales on occasion resulted in penalties less severe than revocation. The licensee suggests that invidious discrimination may not be punished more severely than these other offenses. We disagree. Generally the range of penalties is for the agency. The commission was well within its authority in determining that racial discrimination is a most serious infraction.
In the case the licensee points to, In re Dartmouth Restaurant Corp., ABCC decision, June 11, 1985, the commission, citing the decision of the Appeals Court in Board of Selectmen of Clinton v. Alcoholic Beverages Control Comm’ n, supra, assumed that the board imposed a long suspension instead of a revocation because of its view that a revocation could be appealed a second time to the commission pursuant to G. L. c. 138, § 67, sixth par., whereas a suspension carried no similar statutory right of reappeal.