Dear v. Devaney

983 N.E.2d 240, 83 Mass. App. Ct. 285, 2013 WL 518572, 2013 Mass. App. LEXIS 25
CourtMassachusetts Appeals Court
DecidedFebruary 14, 2013
DocketNo. 12-P-721
StatusPublished
Cited by5 cases

This text of 983 N.E.2d 240 (Dear v. Devaney) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dear v. Devaney, 983 N.E.2d 240, 83 Mass. App. Ct. 285, 2013 WL 518572, 2013 Mass. App. LEXIS 25 (Mass. Ct. App. 2013).

Opinion

Kafker, J.

The primary issue presented is whether defamatory statements made by police officers in their report of their investigation of an entertainment license violation are absolutely privileged. The officers were sued for defamation and intentional interference with advantageous relationships. The plaintiff, Anthony Dear, a State trooper, was accused of causing or contributing to licensing violations and other illegal activities related to his off-duty activities for an event production company. We conclude that the defendants’ statements are protected by a qualified privilege and not an absolute privilege, and that summary judgment was improperly allowed as there are material issues of disputed fact regarding whether the defendants published the statements knowing the defamatory matter to be false or with reckless disregard of the truth.

Background. On Dear’s appeal from the entry of summary judgment against him, we summarize the evidence in the light most favorable to him. Dragonas v. School Comm. of Melrose, 64 Mass. App. Ct. 429, 430 (2005). Dear is employed as a State trooper. In the late 1990s, Dear sought and received permission to perform outside work as a disc jockey (DJ) in nightclubs in and around Boston. In 2006, Dear worked with a production company known as Elite Productions (Elite); through Elite, Dear worked in various nightclubs.

The defendants, Sergeant John Devaney and Sergeant Detective Kevin McGill, are Boston police officers whose primary duties are to inspect Boston nightclubs for safety violations. Devaney is McGill’s supervisor. They act as agents of thé Boston licensing board (licensing board), which issues and regulates restaurant and alcohol licenses, and the mayor’s office of consumer affairs and licensing (MOCAL), which has jurisdiction over entertainment licenses.

On November 22, 2006, Dear attended a Thanksgiving eve party at an establishment called 33 Restaurant and Lounge (33). Although he had been scheduled to work as a DJ that evening, he did not; he was, however, present at 33. That evening the Boston fire department inspected 33 and issued an abatement order alleging that 33 was overcrowded. The abatement order did not mention Dear or Elite. On December 7, Devaney and McGill, who were not present at 33 on the evening of November [287]*28722, but who apparently checked Elite’s Web site to learn that it had promoted an event at 33 on November 22, issued two licensed premises inspection notices arising out of the November 22 incident. Notice no. 041833 alleged that the “Premise allowed ‘Elite Productions’ to operate premise. 11-22-06. Mr. Anthony Dear — promoter, contributed to overcrowding, and patron safety affected.”

In addition, Devaney and McGill wrote Boston police department incident report no. 060669544 (report), which contains most of the statements that form the basis of the defamation action.2 The report states that Elite, “a nightclub promotion company owned by” Dear, sponsored the event on November 22, 2006. It went on to say that Elite, “operated by Mr. Dear[,] conducts events that are chronically a danger to the public safety of the patrons and employees inside the nightclubs where the events are held.” The report stated further that Elite “has been the promotion company at licensed premises where the detectives have observed overcrowding, underage patrons consuming alcohol, assaults, disorder, fire code violations and over-served intoxicated patrons. The promotion company consistently violates the rules and regulations of the Boston Licensing Board, Mayor’s Office of Consumer Affairs and Licensing and the Commonwealth Laws governing alcohol and entertainment.” The report also stated that “Mr. Dear’s presence at these nightclubs raises questions as to whether or not there is a business arrangement between the clubs and Mr. Dear that the Licensing Board has not been made aware of as is required by law. Mr. Dear has appeared at Boston Licensing Board hearings and has stated to Boston Police Officers that he was working in an undercover capacity which the officers found to be false.”

Finally, the report recommended: “It is my belief that the Licensing Board should direct all licensed premises in the city that they should not use ‘Elite Productions’ and Mr. Dear to promote events at nightclubs without proper notification and adherence to all rules and regulation of the Licensing Board.”3

The November 22 violation of overcrowding was investigated [288]*288by MOCAL, resulting in a hearing. Dear was not a party or a witness at this proceeding, even though one of the license inspection violations referenced him. At the hearing, the owner of 33 stated that Elite was “not in control of the establishment on this or any other evening.” Rather, 33 had a barter arrangement with Elite, allowing its employees to dine at 33 in return for marketing and DJ services. After the hearing, MOCAL suspended 33’s entertainment license for one day for overcrowding. At least some of Devaney’s and McGill’s reports also came to the attention of the State police, which conducted an internal investigation that cleared Dear of any wrongdoing and accused Devaney of misusing his authority.

The summary judgment record includes the deposition testimony of Dear, Devaney, and McGill. Dear denied that he was the owner of Elite or that he was paid by Elite. Rather, he was one of Elite’s marketed DJs. Dear also denied that he had any financial arrangements with the licensed establishments beyond acting as a DJ. He stated that he was present in the cited premises as a DJ or patron but not as a promoter. He also denied that he violated any rules or regulations of the licensing board or MOCAL, or that he had any control over the number of people being admitted to the various establishments. He also denied ever representing that he was acting in an undercover capacity as alleged in the report.

Devaney stated in his deposition that events promoted by Elite were cited numerous times for violations. He stated that he had relied on Elite’s Web site, or Dear’s presence at a nightclub, to make the connection between an Elite promotional event and the premises cited for overcrowding and other violations. McGill also stated that Elite had banners in the establishment when it was promoting an event. Both Devaney and Mc[289]*289Gill claimed that Elite contributed to or caused the violations because Elite promoted the event. The officers did not investigate who was responsible for controlling admission into the premises. Devaney concluded that Dear himself was promoting certain of these events because he was featured on the Web site and present at the establishments when they were cited for violations. What actually appeared on the Web site was not included in the record. Devaney speculated that the promotion companies, including Elite, were getting paid by the establishments. He did not, however, check any of the establishments’ financial records to verify this speculation, although he had the authority to do so. He stated that another officer, Lieutenant Val Williams, told him that Dear had said he was acting in an undercover capacity when he was seen at a nightclub at 180 Lincoln Street during an event that led to a citation and a hearing at MOCAL. There was nothing from Williams in the summary judgment record, and Devaney stated in his deposition that he did not follow up on this information.

The nightclubs at which Dear and Elite worked that received citations terminated their relationships with Dear and Elite. Dear last worked as a DJ in 2007.

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Bluebook (online)
983 N.E.2d 240, 83 Mass. App. Ct. 285, 2013 WL 518572, 2013 Mass. App. LEXIS 25, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dear-v-devaney-massappct-2013.