Opinion
No. 99-3214
September 28, 2000.
MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS
The Christopher Columbus Italian Mutual Aid and Benevolent Society, Inc. (the A Club) and the Board of Selectmen of the Town of Winchester (the "Board) seek judicial review, pursuant to G.L.c. 30A, § 14, of a decision of the Alcoholic Beverages Control Commission (AABCC) to uphold the Board's imposition of additional licensing conditions on the Club's all alcoholic beverages license (the A license) and to strike down the Board's seven-day suspension of that license. The Club asserts that the ABCC decision imposing the additional conditions is in excess of its statutory authority; was made in error of law; was unsupported by substantial evidence; and was arbitrary and capricious. The Board asserts that the Club was given adequate notice it violated the Town of Winchester's Regulations for club licenses and G.L.c. 138 and seeks to reinstate the seven-day suspension. For the reasons set forth below, the portion of the ABCC decision relating to conditions (1)-(5) and the seven-day suspension is affirmed. The condition relating to limiting the hours during which the sale of alcohol may be made is reversed.
BACKGROUND
In the summer of 1996, the relationship between the neighborhood and the Club management had deteriorated to the point that a group of neighbors petitioned the Board for relief. On August 7, 1996, as a result of the Board's intervention, the Club reached an agreement with the neighbors concerning certain conditions of operation. As a result of renewed protests to the Board by the neighborhood, the Board voted to conduct a public hearing and an adjudicatory hearing pursuant to G.L.c. 138, § 16A and 23, concerning the operations of the Club. The Board gave notice to the Club of the hearing and possible action by the Board for failure to comply with the Town of Winchester's regulations and G.L. c. 138. (Administrative Record (AR) page 84.)
On January 12, 1998, after a hearing, the Board continued the adjudicatory hearing until January 20, 1998 to give the neighborhood and the Club an opportunity to reach an agreement on the issues in controversy. On January 15, 1998, although neighborhood representatives and the Club reached a partial agreement on conditions with which the Club was willing to comply, there were still issues in dispute. (R. 94-101.) On January 20, 1998, after hearing reports from the attorneys representing both the neighborhood and the Club, the Board voted to renew the Club's license subject to certain conditions, but suspended the license for seven days.
On January 27, 1998, the Club appealed the Board's decision to the ABCC. (R. 6.) On May 25, 1999, the ABCC upheld the portion of the decision relating to the conditions on the license and struck down the Board's seven-day suspension of the license for failing to give sufficient notice that the Club had violated G.L.c. 138. (R. 68, 71-72).
The ABCC based its decision on evidence presented at the hearing, including testimony from neighbors (R. 113-116, 117), police incident reports, (R. 105-110), a complaint letter from the neighbors as relayed by a Mrs. Catherine O'Connell dated December, 8, 1997, (R. 86-89), an incident log prepared by Mrs. O'Connell, (R. 90-93), and the Stipulated Testimony of the Chief of Police of the Town of Winchester, Joseph Perritano. (R. 52-53.)
DISCUSSION
The party appealing an administrative decision bears the burden of demonstrating the decision's invalidity. See Merisme v. Board of Appeals on Motor Vehicle Liab. Policies Bds., 27 Mass. App. Ct. 470, 474 (1989); Faith Assembly of God v. State Bldg. Code Comm'n, 11 Mass. App. Ct. 333, 334 (1981). In reviewing the agency decision, the court is required to give due weight to the agency's experience, technical competence, specialized knowledge, and the discretionary authority conferred upon it by statute. See Flint v. Commissioner of Public Welfare, 412 Mass. 416, 420 (1992); Seagram Distillers Co. v.Alcoholic Beverages Control Comm'n, 401 Mass. 713, 721 (1988).
Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. See Cherubino v. Bd. of Registration of Chiropractors, 403 Mass. 350, 354 (1988). In determining whether an agency's decision is supported by substantial evidence, the court, must consider the entire record, and must take into account whatever in the record detracts from the weight of the [Board's] opinion. See Id. (Citing Cohen v. Board of Registration in Pharmacy, 350 Mass. 246, 253 (1996)). As long as there is substantial evidence to support the findings of the Board, we will not substitute our views as to the facts. See Cherubino v. Board of Registration of Chiropractors, 403 Mass. 350 (1988). (Citing Arthurs v. Board of Registration in Medicine, 383 Mass. 299, 304 (1981)). A court may not dispute an administrative agency's choice between two conflicting views, even though the court would justifiably have made a different choice had the matter come before it de novo. See Zoning Board of Appeals of Wellesley v.Housing Appeals Comm'n, 385 Mass. 651, 657 (1982).
I. THE CONDITIONS
On January 20, 1998, the Board voted to impose the following conditions on the Club's license:
(1) specific parking restrictions;
(2)compliance with the Board's regulations;
(3)the Club will provide a current list of names and addresses of all members of the Club within 10 days of the renewal of the license to the Chief of Police or the Board and update the list at reasonable intervals upon request;
(4)the Club will identify to the Town manager, names of Club members that will act as liaisons to the neighbors;
(5)the Club shall maintain an incident log of all complaints received from neighbors or others regarding operation of the Club; and
(6)a reduction of the hours during which sales of alcohol may be made.
Summary of conditions from the record. See Exhibit K. (R. 103.)
The record before this court reflects substantial evidence to support the decision of the ABCC and the Board, to impose conditions (1), (4), and (5) upon the Club due to the nature of the residential neighborhood in which it resides, the changing nature of the Club's members (R. 113, 114, 116-118), and the difficulties experienced in enforcing the prior agreement between the neighbors and the Club. (R. 113, 116, 118, 121-122).
G.L.c. 138, § 23 allows the local licensing authority to place reasonable requirements upon the license. Under G.L.c. 138, § 12, conditions (2) and (3) are reasonable because the statute provides that the Board's regulations govern the Club's license and the statute authorizes licensees to sell alcoholic beverages only to their members and to guests of members. To ensure compliance with G.L.c. 138, § 12 par. 2, a condition requiring a list of the Club's members is reasonable.
Under G.L.c. 138, § 12, sixth par., the Board failed to follow proper procedure to reduce the hours for the sale of alcohol because it did not give notice to the Club of such a decrease. See Casa Loma, Inc. v. Alcoholic Beverages Control Commn., 377 Mass. 231, 233-235 n. 6 (1979); Pronghorn, Inc. v. Licensing Board of Peabody, 13 Mass. App. Ct. 70 (1980); and Profile Lounges, Inc. v. Alcoholic Beverages Control Commn., 7 Mass. App. Ct. 453, 454 (1979). A reduction in the hours for the sale of alcohol is not a modification under G.L.c. 138, § 23, and requires specific notice and a hearing. See Casa Loma, 377 Mass. at 234-235;Profile Lounges, 7 Mass. App. Ct. at 454. Therefore, the imposition of condition (6) is reversed because it was made on unlawful procedure.
The second sentence of the paragraph states, 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 of such decrease; provided that any licensee affected by such change shall be given two weeks notice of such public hearing. G.L.c. 138, § 12.
II. THE SEVEN-DAY SUSPENSION
A suspension may be made after a hearing, with notice reasonably designed to afford the licensee reasonable opportunity to prepare and present evidence and argument. See Aristocratic Restaurant of Massachusetts, Inc. v. ABCC (No. 1), 374 Mass. 547, 551 (1978). Under G.L.c. 138, § 64, a licensing authority may suspend a liquor license upon satisfactory proof that he has violated or permitted a violation of any condition thereof, or any law of the commonwealth.
In Aristocratic, the Court held that the unsupplemented notices of the hearing were insufficient because the notices failed to specify the violation and the dates of the violations, which were the result of an investigation. Though the ABCC decision was based on unlawful procedure, the court concluded reversal of the agency action was not warranted because the licensee could have reviewed the files from the investigation to determine the precise allegations against it. See id. at 549, 551.
Here, there was no investigation that apprised the Club of a specific violation and the notice did not sufficiently state the issues involved. The December 29, 1997 notice stated the purpose for the hearing was to determine the renewal of the Club's annual license. (R. 84.) The notice also generally referenced G.L.c. 138 and the Selectmen's Regulations as to whether the Club was in compliance with those statutes and regulations. Finally, the notice incorporated a letter of complaint which largely addresses alleged violations of an agreement between the Club and its neighbors. This court concludes that the Club was entitled to more specific notice as to the alleged violations, the dates thereof, and the statute(s) or regulation(s) allegedly violated. Both the statute and the regulations are lengthy and complex. General reference does not provide adequate notice.
The decision by ABCC to strike down the seven-day suspension imposed by the Board is affirmed because the Board failed to provide sufficient notice to the Club of a specific violation of a condition of its license or General Laws.
ORDER
For the foregoing reasons, the ABCC decision to impose conditions (1)-(5) and to strike down the seven-day suspension is AFFIRMED . The ABCC decision to impose condition (6) is REVERSED .
_____________________________ Raymond J. Brassard Justice of the Superior Court