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04/11/78 MARVIN T. JOHNSON & OTHERS v. FERDINAND F.

April 11, 1978

MARVIN T. JOHNSON & OTHERS
v.
FERDINAND F. MARTIGNETTI & OTHERS



Middlesex. Civil action commenced in the Superior Court on February 20, 1975. The case was heard by Greaney, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Hennessey, C.j., Quirico, Braucher, Wilkins, & Liacos, JJ.

SYLLABUS BY THE COURT

Alcoholic Liquors, License, Nuisance. Due Process of Law, Vagueness of statute. Constitutional Law, Equal protection of laws. Statute, Construction. Nuisance. Practice, Civil, Judgment. Words, "Combination of persons."

The opinion of the court was delivered by: Hennessey

The provisions of G. L. c. 138, § 15, limiting the number of package stores which may be individually or jointly owned, are not unconstitutionally vague. [787-790]

The provisions of G. L. c. 138, § 15, limiting the number of package stores which may be individually or jointly owned, do not violate the equal protection rights of package store owners. [790-793]

In an action pursuant to G. L. c. 138, § 60, and G. L. c. 139, § 16A, seeking to abate the use of a building as a liquor nuisance, an injunction prohibiting the owners of the building from using their premises as a package store for a period of one year was not inconsistent with the terms of c. 139, § 16A. [793-796]

On February 20, 1975, fourteen taxpayers brought an action pursuant to G. L. c. 138, § 60, and G. L. c. 139, § 16A, *fn1 seeking to abate the use of a building on the ground that it was being used unlawfully as a liquor nuisance. Their claim of unlawful use was based on G. L. c. 138, § 15, commonly known as the "multiple ownership law," which provides, in substance, that no person or combination of persons, directly or indirectly, shall be granted more than three liquor licenses for the sale of alcoholic beverages to be consumed away from the premises.

The named defendants include various individuals controlling six corporations, which in turn hold eight package store licenses, and which do business under the name of "Martignetti Liquors." *fn2 Additionally, the trustees of Y & M Trust, owners of the Woburn real estate on which one of the defendant corporations does business, were named as defendants. All defendants denied that they had violated G. L. c. 138, § 15. Further, by way of a motion to dismiss, the defendants challenged the constitutionality of the multiple ownership law on due process and equal protection grounds. The Attorney General was permitted to intervene and be heard on the asserted constitutional claims.

After considering testimony, numerous exhibits, and a statement of agreed facts, the Judge denied the defendants' motion to dismiss and concluded that the various defendants were a "combination of persons" holding more than three liquor licenses in violation of G. L. c. 138, § 15. As a result, the Judge (1) permanently enjoined the individual and corporate defendants from maintaining an illegal liquor nuisance at their Woburn location (hereinafter Plaza Package Store), (2) ordered the individual and corporate defendants to remove all property from the Plaza Package Store within thirty days after final judgment, and (3) enjoined the owner of the premises from using, leasing, or renting the location as a package store for a period of one year from the date of the judgment.

In light of our decision in Powers v. Sixty Broadway, Inc., 371 Mass. 296 (1976), the defendants now concede that, "in combination," they do own or control more than three package store licenses in violation of G. L. c. 138, § 15. Their arguments on appeal are thus directed toward the constitutionality of § 15 and toward the propriety of the injunction under G. L. c. 139, § 16A. For the reasons discussed below, we conclude that § 15 is neither unconstitutionally vague nor violative of the defendants' rights to equal protection. We further conclude that the terms of the injunction are not inconsistent with the provisions of G. L. c. 139, § 16A. Accordingly, we affirm.

The facts are as follows. Martignetti Liquor operations were begun originally by Carmen Martignetti and his wife. Their sons, Anthony, Ferdinand, and Joseph, began their work in the family business when they were children. In 1963, the elder Martignettis transferred to Anthony, Ferdinand, Joseph, and their respective wives, all their stock holdings in Martignetti Grocery Co., Inc., and Orlandella Grocery Co., Inc. As a result of this transfer, the family of each Martignetti son now controls 33 1/3% of the eligible voting stock in the Martignetti and Orlandella corporations.

Subsequent to the 1963 transfer, the Martignetti brothers acquired other package stores, including the Plaza Package Store located in Woburn. *fn3 At present, the Martignetti brothers and their wives control, in the aggregate, 100% of the voting stock of eight package stores. None of the individuals, however, owns stock in corporations holding more than three package store licenses.

Several indicia of common operations led the Judge to conclude that "over the years by design and collusion the three primary individuals, Joseph, Ferdinand and Anthony Martignetti . . . have constructed . . . a tightly interconnected liquor chain . . . ." The Judge found that the defendant corporations and individuals participated in a common scheme of advertising, bookkeeping, pension plans, liability and insurance policies, discounting techniques, pricing, hiring, and financing corporate debt. The Judge further found: a common design to promote the name "Martignetti Liquors" with reference to all the stores; a history of interconnecting loan transactions which suggested common use of corporate and trust assets; and a system whereby each of the individual defendants had authority to act on behalf of the other corporations in which he was not an officer or director. In light of these findings, the Judge ...


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