Action of a local licensing authority reducing the hours within which a licensee might sell alcoholic beverages was not a modification of a license issued under G. L. c. 138, and the licensee's purported appeal to the Alcoholic Beverages Control Commission was without statutory authority. [453-454]
CIVIL ACTION commenced in the Superior Court on June 23, 1976.
The case was heard by Garrity, J.
The case was submitted on briefs.
Henry Paul Monaghan for the plaintiffs.
John F. Hurley, Assistant Attorney General, for the defendant.
Thomas F. McKenna, Special Assistant Corporation Counsel, for the Boston Licensing Board, amicus curiae.
KASS, J. The Boston Licensing Board (board), by orders dated January 29, 1976, shortened by two hours the time during which the plaintiffs, who operated nightclubs in the Bay Village section of Boston, might sell alcoholic beverages. These hours were curtailed from 2:00 A.M. to 12:00 midnight. From the board's orders the plaintiffs purported to appeal pursuant to G. L. c. 138, Section 67, as amended through St. 1971, c. 477, Section 4, to the Alcoholic Beverages Control Commission (commission), resting jurisdiction
on the theory that a reduction in hours constitutes a modification of an alcoholic beverages license. The Superior Court correctly dismissed the action. A reduction in hours is not a modification of a license issued under G. L. c. 138. Casa Loma, Inc. v. Alcoholic Beverages Control Comm., 377 Mass. 231 , 234 (1979). That case held that the hours of operation of a licensee from 8:00 A.M. to 11:00 A.M. and from 11:00 P.M. to 2:00 A.M. [Note 2] are a matter of local control, subject only to judicial review of a local licensing authority's failure to give a proper hearing. Thus, the plaintiffs' appeals to the commission were without statutory authority, there was no adjudicatory proceeding before the commission, and, therefore, the plaintiffs could not appeal from the commission's decision to the Superior Court under G. L. c. 30A, Section 14, as they have attempted to do.
The plaintiffs have argued that in some circumstances, and in the circumstances of these cases (which were presented in the Superior Court in a single petition for review under G. L. c. 30A, Section 14), a reduction in hours is tantamount to a revocation of license. Casa Loma decided that the hours of operation of a liquor licensee are a local option question. It would defeat the statutory scheme, in which the court in Casa Loma discerned a legislative intention to permit unreviewable policy considerations to govern, to carve out a special class of "de facto license revocations." Every licensee who suffered a cut in business hours would infallibly claim that in his case the wound was mortal. Nor do we perceive any reason why the considerations which guide a local licensing authority in the setting of permissible hours for business, notably the effect on the surrounding neighborhood, should give way to the economic considerations of a licensee.
[Note 1] Colonial Tavern, Inc.
[Note 2] This is the closing hour mandated by G. L. c. 138, Section 12, as amended through St. 1977, c. 929, Section 2.