Home BOARD OF SELECTMEN OF BREWSTER vs. ELDREDGE E. SPARROW, individually and as trustee, & others.

15 Mass. App. Ct. 988

April 19, 1983

Even after argument we do not know why the selectmen or their counsel thought it necessary to bring the present separate action (No. 38792) in order to establish their standing to contest the titles of the present defendants to the parcels which are designated as "Owners Unknown" in the 1970 order of taking and which are supposedly involved in the original action (No. 35287). We do know that the judgment in the present action is in error because the selectmen do have standing to contest the titles to the parcels in dispute (see Prentice v. Worcester, 129 Mass. 559 , 568 [1880]; Emery v. Boston Terminal Co., 178 Mass. 172 , 182 [1901]; Taber v. Boston, 190 Mass. 101 , 107 [1906]), whether they are acting under the fifth sentence of G. L. c. 79, Section 7D, as appearing in St. 1970, c. 795, Section 1, or under G. L. c. 79, Section 39 (see Willar v. Commonwealth, 297 Mass. 527 , 528-529 [1937]; contrast George A. Fuller Co. v. Commonwealth, 303 Mass. 216 , 224 [1939]). The allegations of the eighth through eleventh unnumbered paragraphs of the complaint in the original action suggest that the selectmen may wish to move to dismiss that earlier action under Mass.R.Civ.P. 12(b)(1) or (6), 12(c) or 56(b), 365 Mass. 755 -756, 824 (1974). See Nicklas v. New Bedford, 250 Mass. 471 , 474-475 (1925); Cann v. Commonwealth, 353 Mass. 71 (1967); Whitehouse v. Sherborn, 11 Mass. App. Ct. 668 , 674-675 (1981), and cases cited. In any event, the judgment in the present action (No. 38792) is reversed, and that action is to be consolidated with the original action (No. 35287) for all purposes.

So ordered.

Home LION DISTRIBUTORS, INC. vs. ALCOHOLIC BEVERAGES CONTROL COMMISSION.

15 Mass. App. Ct. 988

April 21, 1983

The plaintiff appeals from a judgment affirming a decision of the Alcoholic Beverages Control Commission (commission) to suspend the plaintiff's wholesaler's and importer's license for six days by reason of violations of G. L. c. 138, Section 18 (licensee must keep business records and commission shall have access to such records), Section 25 (licensee precluded from receiving or extending credit, directly or indirectly, for alcoholic beverages), and Section 63A (making it a criminal offense to hinder or delay any authorized investigator in the performance of his duties or to refuse to give him needed information). In addition to challenging the findings of the commission as "[u]nsupported by substantial evidence,"

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G. L. c. 30A, Section 14(7)(e), as appearing in St. 1973, c. 1114, Section 3, the plaintiff claims (1) that in the absence of the commission's prescribing what records should be kept, there can be no violation of Section 18; (2) that the commission failed to make adequate findings to support the Section 25 violation; and (3) that Section 63A does not apply to mere delays in giving information, but requires a refusal of entry to the premises.

1. Violation of G. L. c. 138, Section 18. The commission's findings show repeated attempts over a four-month period by investigators to obtain records concerning sales by the plaintiff of "beer-related" and other equipment to retail licensees. The only records ever received from the plaintiff were duplicates of invoices (from a supplier of equipment) which the investigators had given the plaintiff to copy, records relating to equipment sales as to which the plaintiff knew the investigators had independent knowledge, and ledger cards containing misrepresentations. The plaintiff's cards usually showed payments by retailers within a few days of sale, although evidence from retailers and their cancelled checks indicated that payments were often made significantly later.

We agree with the judge that there was substantial evidence to support the commission's findings that not all the records of the plaintiff were produced and that some of the ones which were contained misrepresentations. The commission's findings are also sufficient to show a denial of access to the plaintiff's records. Not only was the commission entitled to infer that the plaintiff's records were selectively produced, but it could properly conclude that access to misrepresented records is equivalent to no access at all.

We reject the plaintiff's contention that no sanctions may be imposed for a violation of Section 18 in the absence of regulations or other directives from the commission indicating what records are required. The third paragraph of Section 18, inserted by St. 1934, c. 385, Section 8, provides that a licensee "shall keep such records in such detail and affording such information as the commission may from time to time prescribe." While a plaintiff keeping accurate records may be entitled to challenge a claim by the commission that his records are not sufficiently revealing, we think the plaintiff here has no standing to assert the imprecision of the record-keeping requirement. Fraudulent records can in no way comply with the statute, and a plaintiff who compiles and produces such records, "a so called hard-core violator," is not entitled to take advantage of any uncertainty in the provision. Commonwealth v. Bohmer, 374 Mass. 368 , 371 n.6 (1978). Commonwealth v. Guest, 12 Mass. App. Ct. 941 (1981). The commission would be well advised, however, to issue regulations setting forth the information required and the length of time records should be held.

2. Violation of Section 25. In its statement of reasons, the commission found the plaintiff had violated Section 25. No findings, however, relate to that charge. From the comments of the chairman during the hearing, it

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may be inferred that the commission considered any creditor-debtor relationship between a wholesaler and a retailer, even concerning matters other than liquor, to be proscribed by Section 25. See James J. Sullivan, Inc. v. Cann's Cabins, Inc., 309 Mass. 519 , 521 (1941). What is unclear, however, is what time period between sale and payment creates a prohibited creditor-debtor relationship (the chairman indicated that there would be no problem with thirty days), and whether an agreement as to credit is necessary or whether mere late payment by a retailer creates an improper relationship. Moreover, the commission's statement does not indicate which transactions of the plaintiff were found to be Section 25 violations. Charlesbank Restaurant, Inc. v. Alcoholic Beverages Control Commn., 12 Mass. App. Ct. 879 (1981). The commission thus failed, as required by c. 30A, Section 11(8), inserted by St. 1954, c. 681, Section 1, to determine "each issue of fact or law necessary to the decision," and, as a consequence, we cannot determine whether the commission's conclusions were warranted. Since the matter must be remanded to the commission, we need not decide whether, as the plaintiff claims, the sanction imposed by the commission for the Section 25 violation was prohibited. See Griffin's Brant Rock Package Store, Inc. v. Alcoholic Beverages Control Commn., 12 Mass. App. Ct. 768 , 774 (1981).

3. Violation of Section 63A. Section 63A, as appearing in St. 1943, c. 542, Section 16, is transgressed when a person "hinders or delays any authorized investigator . . . in the performance of his duties . . . or . . . refuses to give to such investigator . . . such information as may be required for the proper enforcement of this chapter." Although one also may not "refuse[] to admit . . . or lock[] out" any inspector under Section 63A, we reject the plaintiff's contention that the provision is confined to a refusal of entry to premises. Since the findings referred to in part 1 of this opinion show that the plaintiff hindered the investigators in the performance of their duties, such findings are sufficient to establish a violation of Section 63A.

4. Remedy. In its decision, the commission suspended the plaintiff's license for one day for violation of Section 18, two days for violation of Section 63A, and three days for violation of Section 25. The judgment insofar as it affirms the commission's decision imposing penalties for violations of Sections 18 and 63A is affirmed. That portion of the judgment which affirms the commission's decision and penalty imposed for violation of Section 25 is vacated, and an order is to enter remanding the case to the commission for findings and rulings in compliance with G. L. c. 30A, Section 11(8). In its discretion, the commission may proceed on the basis of the evidence presented at the earlier hearing, or it may rehear the case insofar as a violation of Section 25 is alleged. See Charlesbank Restaurant, Inc. v. Alcoholic Beverages Control Commn., 12 Mass. App. Ct. at 882.

So ordered.