Victoria, Inc. v. Alcoholic Beverages Control Commission

602 N.E.2d 578, 33 Mass. App. Ct. 507, 1992 Mass. App. LEXIS 875
CourtMassachusetts Appeals Court
DecidedNovember 10, 1992
DocketNo. 91-P-117
StatusPublished
Cited by3 cases

This text of 602 N.E.2d 578 (Victoria, Inc. v. Alcoholic Beverages Control Commission) 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
Victoria, Inc. v. Alcoholic Beverages Control Commission, 602 N.E.2d 578, 33 Mass. App. Ct. 507, 1992 Mass. App. LEXIS 875 (Mass. Ct. App. 1992).

Opinion

Perretta, J.

This appeal concerns the commission’s denial of the plaintiffs application for a seasonal pouring license (for sale of alcoholic beverages for consumption on the prem[508]*508ises) under G. L. c. 138, § 17. On the plaintiffs application for judicial review, a Superior Court judge determined that the commission’s decision was based upon an erroneous reading of the statute. He allowed the plaintiffs motion for summary judgment and ordered that the commission approve the plaintiffs application. We agree that the commission’s decision was based upon an error of law but remand the matter for further consideration of the plaintiffs application in light of our conclusion.

1. Pertinent statutory provisions. Whether a liquor licensee can sell alcoholic beverages for consumption on or off the premises where the sale occurs depends upon the nature of the license granted under G. L. c. 138. Section 12 speaks to on-premises, or pouring, licenses, and § 15 concerns off-premises, or retail sales, licenses. The number of each of these two types of year-round licenses that local licensing authorities (boards) may issue is regulated by § 17, which sets up a quota system based upon population. Because an area’s population can increase at certain times of the year, provision is made in § 17 for additional on-premises and off-premises licenses during seasons of temporary population increases. Up until 1970, the number of seasonal on-premises and off-premises licenses which could be granted by boards was also based upon population. Each year the boards were required, as of a date dependent upon the season in issue, to make an estimate of any increase in the resident population as of a specified time.

In 1970, numerical limits based on temporary population increases were lifted from seasonal pouring licenses. Section 17 was amended by St. 1970, c. 453, § 2, to provide, in the fifth paragraph: “[T]he local licensing authorities of any city or town . . . may grant, in addition to and irrespective of any limitation of the number of licenses contained in this section, seasonal licenses under section twelve ... to the amount or number that such authorities deem to be in the [509]*509public interst.”1 Population-based quotas for both types of year-round licenses and for seasonal off-premises licenses were left undisturbed by the 1970 amendment.

An emergency act was passed on July 12, 1978. Declaring it necessary “to provide forthwith for the more equitable distribution of certain alcoholic beverage licenses in resort areas of the commonwealth,” the Legislature added a local enabling statute, § 17A, to c. 138. The original version of § 17A bears no resemblance to its present form. Section 17A, as inserted by St. 1978, c. 377, § 2, provided: “The local licensing authority of a city or town which granted seasonal licenses under section twelve prior to January the first, nineteen hundred and seventy-eight, and which accepts this section ... is hereby authorized to grant, in addition to, and irrespective of any limitation of number of licenses contained in section seventeen, but subject to all other provisions of this chapter, additional licenses under section twelve.”

By accepting this provision, a city or town which had granted seasonal pouring licenses under the fifth paragraph of § 17 could now approve year-round pouring licenses in a greater number than that established with population-based quotas. Cities or towns which did not accept § 17A remained limited, under § 17, to that number of year-round pouring licenses determined by population-based quotas and to that number of seasonal pouring licenses deemed in the public interest by the local board.

Section 17A was amended to its present form by St. 1984, c. 491, § 2. It presently reads: “In any city or town which accepts the provisions of this section, a local licensing authority which granted seasonal all alcoholic beverage . . . licenses as set forth in section twelve, on or before June thirtieth, nineteen hundred and eighty-four, is hereby authorized to grant, in addition to, the number of licenses which may be issued pursuant to section seventeen, but sub[510]*510ject to all other provisions of this chapter, additional all alcoholic beverage licenses at a rate of one such all alcoholic beverage license per year; provided, however, that said additional licenses shall be granted only to holders of said seasonal licenses; provided, further, that the holder of said seasonal license surrenders such license; and provided, further, that the total number of seasonal licenses that the local licensing authority may issue pursuant to said section seventeen shall be reduced by one for each new license issued.”2 Those cities and towns which had accepted § 17A prior to January 1, 1985, were not subject to the terms of the 1984 amendment.3 See Chief of the Fire Dept, of Lynn v. Allard, 30 Mass. App. Ct. 128, 130 (1991), and cases therein cited.

2. The plaintiff’s application. During 1983 and prior years, Westborough’s board approved one or more seasonal pouring licenses on the basis of estimates of temporary increases in its local population. In 1985, Westborough accepted § 17A in its amended present form. Thereafter, outstanding seasonal licenses were either converted to year-round licenses or were terminated so that, as of the time of the plaintiffs application in April, 1990, there were no seasonal licenses in Westborough.

In approving the plaintiffs application for a seasonal pouring license, the board had not made an estimate of any temporary increase in population for 1990. Although the commission recognized in its decision that § 17 “leaves the number of seasonal pouring licenses to be issued to local board discretion,” it concluded that the discretionary deter-[511]*511initiation of local public interest “must be based on a good faith determination of seasonal population increase.”

The commission denied the plaintiffs application for the sole reason that the board had not made, “prior to March 1, ... an estimate of the temporary increase in the resident population (as of July 10 following) warranting issuance of one or more additional seasonal licenses.” The March/July dates specified by the commission in its decision are identical to those required only for seasonal off-premises licenses by the fifth paragraph of § 17.

3. Discussion. It is the commission’s argument that, without population estimates, local boards have no standard by which to determine the local “public interest.” The commission claims that its requirement for such estimates is consistent with the entire statutory licensing scheme and that its interpretation of § 17 is entitled to deference. By its decision on the plaintiffs application, the commission essentially has written back into § 17 that which the Legislature, by the 1970 amendment, chose to repeal, that is, population-based limits on seasonal pouring licenses. However, “[i]t is a well settled rule, that when any statute is revised, or one act framed from another, some parts being omitted, the parts omitted are not to be revived by construction, but are to be considered as annulled. To hold otherwise would be to impute to the legislature gross carelessness or ignorance; which is altogether inadmissible.” Brockton Edison Co. v. Commissioner of Corps. & Taxn., 319 Mass. 406, 411 (1946), quoting from Ellis v. Paige, 1 Pick. 43, 45 (1823).

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Bluebook (online)
602 N.E.2d 578, 33 Mass. App. Ct. 507, 1992 Mass. App. LEXIS 875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/victoria-inc-v-alcoholic-beverages-control-commission-massappct-1992.