Home/Massachusetts Supreme Judicial Court/Cleary v. Cardullo's, Inc.

Cleary v. Cardullo's, Inc.

198 N.E.2d 281, 347 Mass. 337, 1964 Mass. LEXIS 768
CourtMassachusetts Supreme Judicial Court
DecidedApril 16, 1964
StatusPublished
Cited by104 cases

This text of 198 N.E.2d 281 (Cleary v. Cardullo's, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cleary v. Cardullo's, Inc., 198 N.E.2d 281, 347 Mass. 337, 1964 Mass. LEXIS 768 (Mass. 1964).

Opinion

Cutter, J.

The plaintiffs who are taxpayers in Cambridge (see G. L. c. 139, §§ 16 and 16A, as amended by St. 1934, c. 328, §§ 11 and 12) seek to enjoin Cardullo’s, Inc. (Cardullo’s), and the owners of the premises at 6 to 7 Brattle Street, near Harvard Square in Cambridge, from selling alcoholic beverages upon these premises. A preliminary injunction against such sale was granted, from which Cardullo’s appealed.

After trial on the merits, the judge made the following findings. Cardullo’s leases the Brattle Street premises and there maintains a delicatessen store. Silveira’s Liquor Store, Inc. (Silveira’s), operated a licensed retail liquor package store at 291-293 Cambridge Street, Cambridge, which is approximately two miles from 6 to 7 Brattle Street. On September 18, 1961, Silveira’s asked the licensing commission of Cambridge for leave to transfer its license to Cardullo’s at the Brattle Street premises. Up to September 13, 1961, Frank N. Cardullo was the owner of all the shares of Cardullo’s. On that day he transferred to his son, Frank R. Cardullo (the son) “all of his stock interest . . . without monetary consideration.”

The transfer applications failed of approval by a tie vote (1 to 1). The Alcoholic Beverages Control Commission (ABC) approved both applications and remanded the mat *340 ters to the Cambridge commission recommending approval. The Cambridge commission took no action.

New transfer applications were made by Silveira’s on March 28, 1962. These were approved by the Cambridge commission on April 25, 1962. The plaintiffs contend that the approval was invalid (a) because Silveira’s had filed similar applications within one year, see G. L. c. 138, §§ 23 and 67 (as amended through St. 1955, c. 652, and St. 1955, c. 461, respectively; see later amendment of § 67 by St. 1962, c. 500); (b) because the Brattle Street premises are within 500 feet of two churches, see G. L. c. 138, § 16C (inserted by St. 1954, c. 569, § 1); 2 (c) because the approval of the application involved granting licenses to one corporation under more than one section of G. L. c. 138 in violation of c. 138, § 17 (as amended through St. 1960, c. 691) ; 3 and (d) because there was a misstatement of fact in the transfer applications. See c. 138, § 23.

Upon each of these issues the trial judge made findings and rulings. He concluded that the “sale . . . of any alcoholic . . . beverages at . . . 6-7 Brattle Street . . . constitutes a liquor nuisance within” G. L. c. 139, § 16A, “for the reason, and none other, that . . . [the] premises are located within 500 feet of the nearest church or churches within the meaning of ” § 160. The owners and Cardullo’s appealed, as did the plaintiffs, from a final decree enjoining use of the premises for such sale. The evidence is reported.

1. The Cambridge commission could act upon the applications of March 28, 1962, despite the prior applications *342 filed on September 18,1961. The trial judge correctly ruled that the last sentence of the fifth paragraph of Gr. L. c. 138, § 67, 4 has no application to the transfer situation now before us, and that the pertinent statutory provision was the last paragraph of § 16B. 5 In context the prohibition in the last sentence of the fifth paragraph of § 67 seems to relate to the issue of original licenses and not to transfers. Because the license year is the calendar year the 1961 and the 1962 applications were for separate license years and thus the 1962 application was not forbidden by § 16B.

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Bluebook (online)
198 N.E.2d 281, 347 Mass. 337, 1964 Mass. LEXIS 768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleary-v-cardullos-inc-mass-1964.