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Nautical Tours, Inc. v. Department of Public Utilities

Supreme Judicial Court of Massachusetts

August 20, 2014

Nautical Tours, Inc.
v.
Department of Public Utilities

Judgment affirmed.

George J. West for the plaintiff.

Daniel J. Hammond, Assistant Attorney General, for the defendant.

OPINION

[14 N.E.3d 315] Nautical Tours, Inc. (Nautical Tours), appeals from a judgment of a single justice of this court affirming a decision of the Department of Public Utilities (department) that it did not have jurisdiction to issue the type of license needed by Nautical Tours to operate its business in the city of Boston. Nautical Tours seeks to operate amphibious motor vehicles for sightseeing and charter purposes on the streets of Cambridge and Boston and the waters of the Charles River and Boston Harbor. The parties disagree about the appropriate license needed to operate in Boston. Nautical Tours contends that it must obtain a municipal street license pursuant to G. L. c. 159A, § 1. The department ruled that Nautical Tours was required to obtain a sightseeing license, which the Boston police commissioner has the exclusive authority to issue, pursuant to St. 1931, c. 399. We agree with the department that the Legislature established two different licensing schemes. Although a municipal street license is needed to carry passengers for hire on the public ways of cities and towns in the Commonwealth under G. L. c. 159A, § 1, a sightseeing automobile operating in the city of Boston must obtain a separate sightseeing license under St. 1931, c. 399. Because we further agree with the department that it did not have jurisdiction to issue Nautical Tours a municipal street license to operate its amphibious motor vehicles in Boston, we affirm.

Background.

In 2010, Nautical Tours filed a petition with the department concerning its proposed operation of amphibious motor vehicles over certain public ways in Boston. Nautical Tours asked the department (1) to exercise its licensing authority to issue a municipal street license under G. L. c. 159A, § 1; and (2) to amend the certificate of public convenience and necessity that it had issued in a proceeding in 2007, under G. L. c. 159A, § 7.

In its 2007 order, the department concluded that Nautical Tours had not met its burden of demonstrating that it was able to operate its proposed plan, because it [14 N.E.3d 316] could not demonstrate that it had secured adequate financing. See Deacon Transp., Inc . v. Department of Pub. Utils., 388 Mass. 390, 394, 446 N.E.2d 698 (1983). To facilitate Nautical Tour's ability to obtain financing, the department, among other things, issued to Nautical Tours a conditional certificate of public convenience and necessity in accordance with G. L. c. 159A, § 7, which required Nautical Tours either to obtain from the Boston police commissioner a sightseeing license in accordance with St. 1931, c. 399, or to obtain a waiver of the sightseeing license and to obtain a municipal street license under G. L. c. 159A, § 1. Nautical Tours did not appeal from that order.[1]

Following the 2007 order, Nautical Tours did not apply to the police commissioner for a sightseeing license.[2] Instead, in 2010, it applied to the Boston city council for a municipal street license. In its application, Nautical Tours

Page 1008

described that it would be operating a " sightseeing tour." Within the sixty days allowed under G. L. c. 159A, § 1, the council did not respond or act favorably on the application.[3]

In 2010, relying on G. L. c. 159A, § 1, Nautical Tours petitioned the department.[4] The department dismissed the petition. Recognizing that the Legislature had given the Boston police commissioner " exclusive authority" to license sightseeing automobiles in the city of Boston under St. 1931, c. 399, it determined that it did not have jurisdiction to issue a municipal street license to Nautical Tours for its operation under § 1 and, therefore dismissed Nautical Tour's petition.

Pursuant to G. L. c. 25, § 5, Nautical Tours appealed to the county court from the department's order of dismissal. In 2013, the single justice issued a detailed memorandum of decision and ordered the entry of judgment affirming the department's order. This appeal followed.

Discussion.

Based on our review of the legislative history, it is clear that a municipal street license is needed to carry passengers for hire on the public ways of cities and towns in the Commonwealth. G. L. c. 159A, § 1.[5] Where a local licensing authority does not act favorably on an application for a municipal street license, the department, on an appeal by the applicant, can exercise its authority to act on the application. Id. In establishing this [14 N.E.3d 317] statutory scheme, however, the Legislature, through a special act, required a sightseeing automobile in the city of Boston to have a separate sightseeing license. St. 1931, c. 399.[6] Given the nature of sightseeing vehicles, here amphibious motor vehicles, and the public safety concerns associated with their operation on the sometimes narrow, crooked, and congested streets of Boston, the sightseeing licensing requirement is reasonable. See Commonwealthv.Boston & Maine Transp. Co., ...


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