Opinion
14-P-1136
08-20-2015
DISTRICT CONVENIENCE, INC. v. BOARD OF SELECTMEN OF DEDHAM & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After the board of selectmen of the town of Dedham (board), the licensing authority for the town of Dedham (town), revoked the wine and malt packages store license (license) of the plaintiff store, District Convenience, Inc. (District), District filed a complaint in the Superior Court. The judge granted the defendants' motion for judgment on the pleadings and District appeals. We affirm.
1. Background. The facts presented in the complaint are undisputed. The board first revoked District's license in 2012 because the store failed to remain open during its anticipated hours of operation. District appealed to the Alcoholic Beverages Control Commission (commission), but before the commission issued a decision, District and the board settled by agreement dated January 31, 2013 (agreement). Therein, the board agreed to reinstate the license in exchange for certain promises on the part of District. As is relevant here, the agreement provides that:
"Commencing on the first business day of the month . . ., the Licensee shall submit to the Board of Selectmen a written statement . . . attesting to the hours the Licensed Premises was open for business during the previous month. . . .
"The Licensee further agrees and stipulates that, in the event that Licensee fails to satisfy any of the terms and conditions of this Settlement Agreement, the Board may, after notice to Licensee and hearing, vote to revoke the License, and upon such vote, Licensee shall forthwith surrender said License without any right of appeal which right of appeal the Licensee hereby specifically waives. . . .
"This Settlement Agreement . . . is to be construed as a Massachusetts contract, . . . sets forth the entire contract between the parties, . . . and may be cancelled, modified or amended only by a written instrument executed by both parties hereto."
Following the reinstatement of the license, District failed to timely report its hours of operation in March and April of 2013. By letter dated June 7, 2013, the town informed District of the board's vote to revoke District's license, citing the reporting failure. On June 18, 2013, District filed a complaint in the Superior Court requesting specific performance of the agreement, among other relief. The defendants filed a motion for judgment on the pleadings, see Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974), citing the unambiguous language of the agreement. The judge agreed with the defendants and ordered the entry of judgment in favor of the defendants.
Rather than filing the reports on the first business day of the month for those months, District filed the reports on the second Monday of the month.
District waived the other three counts in the complaint; they are not before us on appeal.
2. Discussion. "A defendant's rule 12(c) motion is 'actually a motion to dismiss . . . [that] argues that the complaint fails to state a claim upon which relief can be granted.'" Jarosz v. Palmer, 436 Mass. 526, 529 (2002), quoting from Smith & Zobel, Rules Practice § 12.16 (1974). Our review is de novo. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). "We accept as true the allegations in the complaint and draw every reasonable inference in favor of" District. Ibid. "Judicial review of [a licensing authority's] decision is limited to determining whether the decision was arbitrary and capricious and whether the [licensing authority] made an error of law." Donovan v. Woburn, 65 Mass. App. Ct. 375, 379 (2006).
General Laws c. 138, § 23, governs the issuance of liquor licenses and the sale of alcoholic beverages in the Commonwealth. Therein, the Legislature explicitly provides that the statute was enacted in order to serve the public need and to protect the common good rather than to create individual private property rights. See Beacon Hill Civic Assn. v. Ristorante Toscano, Inc., 422 Mass. 318, 322-323 (1996); Donovan v. Woburn, supra at 378-379. In addition to the explicit requirements of G. L. c. 138, § 23, the statute further provides that local licensing authorities may require applicants to comply with any other reasonable requirements that the licensing authority may from time to time make with respect to licenses. If a licenseholder fails to maintain compliance with c. 138, § 23, the licensing authority may, after hearing or an opportunity therefor, modify, suspend, revoke, or cancel the license.
"[W]hether the effect of any specific statute can be avoided by contract depends upon the purpose for which the statute was enacted . . . . [W]here laws are enacted on grounds of general policy their uniform application for the protection of all citizens alike is desirable, and an agreement to waive their provisions is generally declared invalid." Beacon Hill Civic Assn. v. Ristorante Toscano, Inc., supra at 322 (citation omitted).
The quoted language from Beacon Hill Civic Assn. makes clear that, despite the contract language in the agreement, and District's arguments to the contrary on appeal, the agreement is not subject to principles of common-law contract interpretation. Rather, the agreement is simply a set of additional conditions, as sanctioned by § 23, that District must maintain in order to keep its license. It admittedly failed to do so, enabling the board to revoke its license. There was no error.
The defendants' request for appellate attorney's fees is denied.
By the Court (Cohen, Wolohojian & Maldonado, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: August 20, 2015.