404 Mass. 1008

May 3, 1989

Thomas W. Stanton for the plaintiff.

Evan T. Lawson for Charles Street Liquors, Inc.

Countess C. Williams, Assistant Attorney General, for Alcoholic Beverages Control Commission.

The sole issue in this case is whether the Alcoholic Beverages Control Commission (commission) or the Boston Licensing Board (local board) has the final determination once the local board has denied an application to change the description of premises licensed to sell alcoholic beverages.

This dispute began in July, 1985, when Charles Street Liquors, Inc., the owner of a package store at 143 Charles Street in Boston, applied to change the description of its licensed premises. The licensee wished to take over an empty storefront abutting the package store so it could have additional storage space and offer a section for the sale of fine wines. The local board denied the application, stating that a neighborhood group complained of trash and litter from the licensed premises and that the local board believed that the expansion of this package store "would create a liquor presence on this neighborhood street far out of proportion to the needs of the local community." The local board noted eight other liquor outlets in the immediate area.

Charles Street Liquors, Inc., appealed the denial to the commission. The commission ordered the local board to reconsider its decision because the commission found that the expansion would facilitate compliance with the State bottle bill, G. L. c. 94, Sections 321-327. The local board responded by reaffirming its original decision and by notifying the commission in writing that the local board considered the commission to be without jurisdiction to hear a second appeal in these circumstances. The commission, however, decided that it had jurisdiction and ordered the local board to amend the license of Charles Street Liquors, Inc., to reflect the change in description. The local board appealed to the Superior Court, which upheld the commission's action. The local board then appealed to the Appeals Court, which reversed the Superior Court judgment and entered a judgment declaring the commission to be without jurisdiction to hear a reappeal in these circumstances. See Boston Licensing Bd. v. Alcoholic Beverages Control Comm'n, 26 Mass. App. Ct. 275 , 278 (1988). We granted the applications of Charles Street Liquors, Inc., and the commission for further appellate review.

We reverse the judgment of the Superior Court for the reasons advanced by the Appeals Court, i.e., G. L. c. 138, Section 67, sixth par., the controlling

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statute, permits reappeal to the commission only where one is aggrieved by the local board's "modifying, suspending, cancelling, revoking or declaring forfeited" a license. A refusal of a licensee's request to make a change in description of premises does not fall into one of these categories.

Because we find the commission lacked jurisdiction, we reverse the Superior Court judgment; the original decision of the local board stands.

So ordered.


[Note 1] Charles Street Liquors, Inc.