Embers of Salisbury, Inc. v. Alcoholic Beverages Control Commission

517 N.E.2d 830, 401 Mass. 526, 1988 Mass. LEXIS 18
CourtMassachusetts Supreme Judicial Court
DecidedJanuary 14, 1988
StatusPublished
Cited by63 cases

This text of 517 N.E.2d 830 (Embers of Salisbury, Inc. v. Alcoholic Beverages Control Commission) 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
Embers of Salisbury, Inc. v. Alcoholic Beverages Control Commission, 517 N.E.2d 830, 401 Mass. 526, 1988 Mass. LEXIS 18 (Mass. 1988).

Opinions

Hennessey, C.J.

As a result of a hearing held on May 28, 1985, the licensing board of Salisbury (board) found that on July 9,1983, the appellants-licensees1 (licensees) had violated G. L. c. 138, § 34 (1986 ed.), by serving alcohol to a minor, one Holly Kozec (Kozec), then nineteen years of age. Accordingly, the board voted under G. L. c. 138, § 64, to suspend the licensees’ liquor licenses for three days. Pursuant to G. L. c. 138, § 67 (1986 ed.), the licensees appealed the board’s action to the Alcoholic Beverages Control Commission (ABCC) which, after a de novo hearing on August 1, 1985, upheld the board’s action. The licensees then sought judicial review of the ABCC’s decision. The Superior Court denied the licensees’ motion for summary judgment and granted summary judgment in favor of the ABCC. The licensees appealed from the Superior Court’s judgment, and this court took the case on its own motion. We affirm.

The evidence relied on by the board and by the ABCC in finding that the licensees had served alcohol to a minor consisted primarily of a transcript of the testimony of Kozec, who testified at her criminal trial that she was nineteen years old on July 9, 1983, and that on that date she had been served alcoholic beverages at the licensees’ establishments. The facts of Kozec’s case, which are set forth in Commonwealth v. Kozec, 399 Mass. 514, 515-516 (1987), are relevant to this case only in so far as the licensees argue that Kozec, who was on trial for assault with intent to murder, falsified her testimony regarding her consumption of alcohol in an attempt to establish that she was intoxicated at the time of the alleged crime, and that her self-serving testimony is inherently unreliable. Accordingly, they contend that there is not substantial evidence to support the ABCC’s findings.

[528]*528The only other evidence before the ABCC consisted of a stipulation between the parties as to the anticipated testimony of seven other witnesses. The testimony of four of these, owners and managers of the licensees’ establishments, would have tended to disprove Kozec’s testimony. The other three, police officers, would have testified that they saw Kozec at the Salisbury police station following her arrest; that she appeared intoxicated; that she told them that she had been drinking that night at the licensees’ establishments; and that she told them that she was underage.2

On appeal, the licensees contend that the ABCC’s decision is not supported by substantial evidence; and that they were deprived of the opportunity to confront and to cross-examine Kozec, in violation of the rights guaranteed them by G. L. c. 30A,- § 11 (3) (1986 ed.), and by the Federal and State Constitutions.

The standard of review by this court of the ABCC’s decision to suspend licensees’ liquor licenses is the substantial evidence test. Saxon Coffee Shop, Inc. v. Boston Licensing Bd., 380 Mass. 919, 924 (1980) (revocation case). Olde Towne Liquor Store, Inc. v. Alcoholic Beverages Control Comm’n, 372 Mass. 152, 153 (1977). We may set aside the ABCC’s decision if it is “[u]nsupported by substantial evidence.” G. L. c. 30A, § 14 (7) (e) (1986 ed.).3 “ ‘Substantial evidence’ means such evidence as a reasonable mind might accept as adequate to support a conclusion.” G. L. c. 30A, § 1 (6) (1986 ed.).

The ABCC’s decision is supported by substantial evidence. The transcript of Kozec’s testimony, admitted without objection from the licensees,4 included testimony to the effect that [529]*529Kozec, who was then underage, had been served alcoholic beverages by the licensees’ establishments. Although the stipulated testimony of the licensees’ witnesses tended to disprove Kozec’s testimony, the ABCC was entitled to believe the one and disregard the other. “It is for the agency, not the courts, to weigh the credibility of witnesses and to resolve factual disputes. ‘A court may not displace an administrative board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.’” School Comm. of Wellesley v. Labor Relations Comm’n, 376 Mass. 112,120 (1978), quoting Labor Relations Comm’n v. University Hosp., Inc., 359 Mass. 516, 521 (1971). See also Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). This court may not disturb the ABCC’s findings unless our review of the record as a whole fails to disclose substantial evidence to support it. Clearly, the testimony of Kozec, if believed, amply supports the ABCC’s findings, and it is the ABCC, not this court, which is “the sole judge of the credibility and weight of evidence before it during the administrative proceeding.” Number Three Lounge, Inc. v. Alcoholic Beverages Control Comm’n, 7 Mass. App. Ct. 301, 309 (1979).

The licensees argue, however, that the transcript of Kozec’s testimony does not constitute substantial evidence to support the ABCC’s findings, first, because it is inherently unreliable, and second, because uncorroborated hearsay evidence does not constitute substantial evidence under our opinion in Sinclair v. Director of the Div. of Employment Sec., 331 Mass. 101 (1954).

The licensees do not and could not plausibly argue that the ABCC is bound by the rules of admissibility of evidence observed by courts.5 Rather, they say that, because Kozec was trying to establish her intoxication as a defense to a serious [530]*530criminal charge, she had every incentive to lie regarding her procurance and consumption of alcohol. This contention, however, goes to the credibility of and the weight to be given such testimony, a matter squarely within the ambit of the ABCC’s fact-finding responsibility, and we cannot say, as matter of law, that Kozec’s testimony was insufficient to support the ABCC’s findings.

We think that the licensees misconstrue the teaching of Sinclair, supra. Although in that case we said that “[i]f the pertinent evidence is exclusively hearsay, that does not constitute ‘substantial evidence’ even before an administrative tribunal,” Sinclair, supra at 103, the line we were drawing was not between evidence admissible in a court and evidence that. is inadmissible because of the rules of evidence observed by courts, but between evidence having indicia of reliability and probative value and that which does not. The United States Supreme Court similarly advanced the broad proposition that “[m]ere uncorroborated hearsay or rumor does not constitute substantial evidence,” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 230 (1938), but later explained that “[t]he contrast the Chief Justice [Hughes] was drawing [in the above quoted language] was not with material that would be deemed formally inadmissible in judicial proceedings but with material ‘without a basis in evidence having rational probative force.’ This was not a blanket rejection by the Court of administrative reliance on hearsay irrespective of reliability and probative value. The opposite was the case.” Richardson v. Perales, 402 U.S. 389

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Bluebook (online)
517 N.E.2d 830, 401 Mass. 526, 1988 Mass. LEXIS 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/embers-of-salisbury-inc-v-alcoholic-beverages-control-commission-mass-1988.