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05/15/78 UNITED FOOD CORPORATION v. ALCOHOLIC

May 15, 1978

UNITED FOOD CORPORATION
v.
ALCOHOLIC BEVERAGES CONTROL COMMISSION (AND A COMPANION CASE *FN1



Suffolk. Civil action commenced in the Superior Court on September 6, 1977. The case was heard by Nelson, J. Civil action commenced in the Appeals Court on September 12, 1977. The case was heard by Brown, J. The Supreme Judicial Court, on its own intiative, ordered direct appellate review.

Hennessey, C.j., Kaplan, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Boston Licensing Board. Alcoholic Beverages Control Commission. State Administrative Procedure Act. Quasi Judicial Tribunal.

The opinion of the court was delivered by: Kaplan

The Boston Licensing Board is part of the executive department of the Commonwealth, and there is, therefore, no requirement that the appointment of its members be approved by the Executive Council. [242]

The Boston Licensing Board is not an agency within the meaning of G. L. c. 30A, and, therefore, is not required to adopt regulations pursuant to c. 30A, § 9. [242-243]

Upon appeal to the Alcoholic Beverages Control Commission from an order of the Boston Licensing Board revoking an establishment's all-alcoholic license, the commission properly received in evidence the transcript of the hearing before the board even though the board was not bound by the procedural requirements of the State Administrative Procedure Act. [243]

A decision of the Alcoholic Beverages Control Commission to revoke an establishment's all-alcoholic license, which was based on a transcript of a hearing before the Boston Licensing Board supplemented by additional evidence, was supported by substantial evidence. [244]

Although one of the three unlawful acts relied on by the Alcoholic Beverages Control Commission in ordering the revocation of an establishment's all-alcoholic license was based on a statute subsequently held to be unconstitutional, a remand to the commission was not required where the remaining more serious violations supported the revocation and there was no real doubt that the commission upon a remand would again order revocation. [245]

We review a judgment of the Superior Court which upheld an order of the Alcoholic Beverages Control Commission (ABCC), which in turn upheld an order of the Boston Licensing Board (BLB) revoking, because of acts of illegality on the premises, the common victualler's all-alcoholic license of the appellant United Food Corporation, doing business as the Two O'Clock Lounge, an establishment in the "combat zone" in Boston. An order of the ABCC suspending the appellant's license for ninety days was also appealed from, and upheld by the Superior Court, but that order has been carried out and need not be dealt with by us. *fn2

General Laws c. 138, § 64, as amended through St. 1964, c. 64, reads in part: "The licensing authorities after notice to the licensee and reasonable opportunity for him to be heard by them, may modify, suspend, revoke or cancel his license upon satisfactory proof that he has violated or permitted a violation of any condition thereof, or any law of the commonwealth." In February, 1977, the BLB, as local licensing authority, held a hearing upon adequate written notice to consider alleged occurrences at the lounge which constitute violations of law and breaches of license conditions. The BLB received twelve police reports detailing such episodes in the year 1976, and also heard confirming testimony by police officers. The appellant cross-examined, but introduced no evidence on its own behalf. The BLB ordered revocation of the appellant's license, choosing to rely for its grounds on two acts of prostitution on the premises (see G. L. c. 272, § 53) and an act of "open and gross lewdness" thereon, committed with the knowledge and consent of the appellant, all as related in three of the police reports. *fn3

The appellant took an appeal from the decision of the local authority to the ABCC pursuant to G. L. c. 138, § 67, which affords a fresh hearing that is required by the State Administrative Procedure Act (APA), G. L. c. 30A, §§ 10-13, to conform to the standards described therein for adjudicatory proceedings. The record made before the BLB was introduced at the ABCC hearing and other evidence was received. The appellant called no witnesses. The incidents appeared without serious challenge to have been as follows.

(i) On October 14, 1976, a police officer entered the lounge and encountered one Wolfe. Wolfe said the bartender had asked him that afternoon whether he wanted a girl. A woman was then brought to him. She said she would perform fellatio on him if he bought a bottle of champagne for $50. Wolfe agreed and they went to a booth in a back room of the lounge, where the act was performed. The officer testified that the woman and the manager of the lounge, one Bucuvalas, were present when Wolfe told his story; neither attempted any denial.

By agreement a transcript was introduced of portions of Wolfe's testimony about the event as given at the related trial of Bucuvalas and the woman on charges, respectively, of suffering the presence of females for purposes of unlawful sexual intercourse (G. L. c. 272, § 6) and prostitution. See Commonwealth v. Bucaulis, 6 Mass. App. Ct. , 373 N.E.2d 221 (1978). *fn4 These excerpts included cross-examination of ...


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