Andover Liquors, Inc. v. Den Rock Liquors, Inc.

5 Mass. L. Rptr. 239
CourtMassachusetts Superior Court
DecidedMay 15, 1996
DocketNo. 960032C
StatusPublished

This text of 5 Mass. L. Rptr. 239 (Andover Liquors, Inc. v. Den Rock Liquors, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andover Liquors, Inc. v. Den Rock Liquors, Inc., 5 Mass. L. Rptr. 239 (Mass. Ct. App. 1996).

Opinion

Whitehead, J.

This matter comes before the court on the defendants’ special motion to dismiss pursuant to G.L.c. 231, §59H.2 In the underlying action, the plaintiff seeks to recover damages from the defendants for their alleged violations of G.L.c. 93, §5 (the Massachusetts Antitrust Act), and G.L.c. 93A, §11 (the Massachusetts Consumer Protection Act). For the reasons set forth below, the defendants’ special motion to dismiss is ALLOWED.3

BACKGROUND

The pleadings and the supporting and opposing affidavits reveal the following:

In 1995, the plaintiff, Andover Liquors, Inc. (“Andover Liquors”), dba The Vineyard, applied to the Board of Selectman of North Andover for a license to sell beer and wine at a location on Route 114, diagonally across from Merrimack College. The individual defendants, William Burliss (“Burliss”) and Salvatore Messina (“Messina”) are residents of North Andover. Burliss is a director, officer and employee of defendant Den Rock Liquors, Inc. (“Den Rock Liquors”); and Messina is a director, officer and employee of Messina Liquors, Inc. (“Messina Liquors”). Den Rock Liquors and Messina Liquors are both located in North Andover.

The issuance of a license to Andover Liquors was opposed by numerous residents of North Andover. Charles Lessard (“Lessard”), a resident of North Andover, initiated' a petition stating that opposition in writing. Employees of Den Rock Liquors and Messina Liquors actively supported the petition drive by soliciting signatures from customers. In addition, Burliss conducted door-to-door solicitations at homes in North Andover.

On October 20, 1995, Richard M. Stanley, the Chief of Police of North Andover (“Chief Stanley”), sent a memorandum to Interim Town Manager Kevin Mahoney (‘Town Manager Mahoney”) in which he stated that the police department had public safety concerns about the issuance of the license, due to heavy traffic on Route 114 and the proximity of the proposed store to Merrimack College. He stated that “Route 114 is a busy roadway and the chance of students crossing the road to purchase alcohol is great, especially at night when visibility for motorists is at its worst.”

By a memorandum dated October 23, 1995, Chief Stanley informed Town Manager Mahoney that he had met with Joseph Hoffman (“Hoffman”), the owner of Andover Liquors, and had discussed the public safety issues with him. Based upon this meeting, Chief Stanley had become satisfied that the store would not present serious public safety problems, due especially to the facts that the store would close at 9:00 p.m. and that it would not sell kegs of beer.

On October 23, 1995, the North Andover Board of Selectmen (“the Board”) held a public hearing at which the issuance of the license to Andover Liquors was considered. Hoffman made a short presentation in which he described the nature of the store; and Chief Stanley spoke in favor of the issuance of the license. The Board voted 3 to 2 in favor of granting a license to Andover Liquors for the sale of beer and wine. Burliss and Messina both attended the meeting, but they arrived after the vote had been taken. Nonetheless, the Board allowed Burliss to present to it the petition in opposition to the granting of the license. The petition contained the signatures of approximately 137 residents of North An-dover, including Burliss and Messina. Burliss told the Board that the petitioners opposed the granting of the license because they believed that there already were enough stores selling beer and wine in North Andover, and because they were concerned about safety problems which could result from the high volume of traffic on Route 114 and the store’s proximity to a college.

On October 28, 1995, Lessard retained Attorney Ramsey A. Bahrawy (“Bahrawy”). On October 30, 1995, Bahrawy attended a meeting of the Board of Selectmen, at which he requested that the Board reconsider the issuance of the license to Andover Liquors. Like Burliss, Bahrawy stated that the petitioners believed that there were enough stores selling beer and wine in North Andover, and that they were concerned with the public safety implications of the store being located on a busy roadway across from a college. The Board, however, did not act upon Bahrawy’s request for reconsideration.

[240]*240Subsequent to the Board’s failure to act on the request for reconsideration, approximately 180 residents of North Andover, including Burliss, signed a petition to appeal the Board’s issuance of the license to the Massachusetts Alcoholic Beverages Control Commission (“the ABCC”), pursuant to G.L.c. 138, §67. On behalf of the appellants to the ABCC, Bahrawy submitted a memorandum to the ABCC, in which he argued that the issuance of the license “did not serve the public need” or “protect the public good.” Specifically, Bahrawy argued that the Board’s decision was arbitrary and capricious because the Board did not reconsider its vote after receiving the petition. He further argued that the area of North Andover which Vineyard Liquors sought to serve already was served adequately by other licensed stores; that the location of the new store could create a public safety problem; and that the peace and tranquility of abutters would be disturbed by the potential sale of alcohol to college students.

A hearing was held by the ABCC on January 11, 1996. Messina attended the hearing and testified that he believed that issuance of the license could potentially lead to public safety problems. The record before the court does not indicate whether the ABCC has yet ruled upon the appeal.

DISCUSSION

This is the another in a growing line of cases in which the court is asked to grant a special motion to dismiss based upon the so-called “anti-SLAPP” statute.4 In 1994, the General Court enacted the anti-SLAPP statute over Governor Weld’s veto. St. 1994, c. 283, §1; G.L.c. 231, §59H. SLAPP is an acronym for “strategic litigation against public participation.” The statute enables defendants to bring a “special motion to dismiss” if the civil claims against them are based upon their exercise of their constitutional right to petition the government.

The objective of anti-SLAPP legislation, in Massachusetts and elsewhere, is to protect citizens from lawsuits designed to chill their right to petition concerning a matter of public concern. See, “Massachusetts Anti-SLAPP Statute,” 3 M.S.L. Law Rev. 41 (1995). As a preliminary matter, in order to establish the applicability of the statute, the moving party must show that the “civil claims . . . against said party are based upon said parly’s exercise of its right of petition under the constitution of the United States or of the Commonwealth.” G.L.c. 231, §59H. Once the moving party makes a prima facie showing that the statute applies, the burden of proof shifts to the non-moving party. The court must grant the special motion to dismiss unless the non-moving party shows: “(1) that the moving party’s exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) that the moving party’s acts caused actual injury to the responding party.” Id.

The defendants in this case, as the moving parties, have clearly met their burden of showing that the civil claims against them are based upon their exercise of their right to petition. The anti-SLAPP statute defines “a party’s exercise of its right of petition” as:

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Bluebook (online)
5 Mass. L. Rptr. 239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andover-liquors-inc-v-den-rock-liquors-inc-masssuperct-1996.