Grendel's Den, Inc. v. Goodwin

• Decision Date: 14 August 1980
• Docket Number: Civ. A. No. 77-3418-T.
• Citation: 495 F. Supp. 761
• Parties: GRENDEL'S DEN, INC. v. Herbert N. GOODWIN et al.
• Court: U.S. District Court — District of Massachusetts

495 F. Supp. 761

GRENDEL'S DEN, INC. v. Herbert N. GOODWIN et al.

Civ. A. No. 77-3418-T.

United States District Court, D. Massachusetts.

August 14, 1980.

Rosenberg, Baker & Fine, David Rosenberg, Cambridge, Mass., Lawrence H. Tribe, Cambridge, Mass., for plaintiff.

Gerald Caruso, Thomas Miller, John E. Bowman, Jr., Asst. Attys. Gen., Boston, Mass., for defendants.

Michael C. Costello, David B. O'Connor, Legal Counsel, Cambridge, Mass., for Cambridge License Commission and Davenport and Cremins.

OPINION

TAURO, District Judge.

The plaintiff, Grendel's Den, Inc. (Grendel's), is a Harvard Square area restaurant that has, since 1977, unsuccessfully sought issuance of a liquor license by the defendant Cambridge License Commission (the CLC). The CLC denial was upheld on appeal by the Commonwealth's Alcoholic Beverages Control Commission (the ABCC). It is undisputed that both the local and state authorities have refused to grant Grendel's request solely because of the opposition filed by the Holy Cross Armenian Catholic Parish Church (the Church) under the provisions of Mass.Gen.Laws ch. 138, § 16C. That statute states in pertinent part:

Premises, except those of an innholder and except such parts of buildings as are located ten or more floors above street level, located within a radius of five hundred feet of a church or school shall not be licensed for sale of alcoholic beverages if the governing body of such church or school files written objection thereto . . . .

"Church" is defined as a "building dedicated to divine worship and in regular use for that purpose." It is undisputed that the Church meets the definition.

Grendel's asserts that § 16C violates the federal constitution in three ways. It first alleges a due process violation by the legislature's delegation to private persons of the power to veto issuance of a liquor license.¹ As a spinoff of that theory, Grendel's next argues that vesting the right of veto in the Church violates the separation of religious and political power mandated by the Establishment Clause.² Third, Grendel's contends that the legislative classifications embodied in § 16C are irrational and, therefore, do not afford equal protection of the law.³ An additional claim by Grendel's is that § 16C violates federal antitrust law by creating a licensing system that permits private parties to engage in anticompetitive practices.⁴

The parties suspended action in this case for two years pending resolution of a state court challenge to the same statute by another liquor license applicant. In Arno v. Alcoholic Beverages Control Comm'n, ___ Mass. ___, 384 N.E.2d 1223 (1979), the Supreme Judicial Court upheld the validity of § 16C over arguments that it violates both state and federal constitutional provisions.

With the state law issues thus settled,⁵ the parties here filed cross-motions for summary judgment with respect to these four facial attacks on the validity of § 16C under federal law.⁶ The parties have asked this court, in the interest of expediting this litigation, to rule now on these federal issues, before taking evidence on Grendel's "as applied" arguments. They have also requested that this court certify its decision on those issues for interlocutory appeal under 28 U.S.C. § 1292(b).

To prepare an adequate basis for prompt decision, the parties have submitted an agreed statement of facts and an agreed statement of contested issues. There being no factual disputes material to the issues presented, and with state law decided, the cross motions for summary judgment with respect to these federal issues are ripe for decision.

I.

Grendel's is a restaurant located in the Harvard Square area of Cambridge, Massachusetts. The Church is situated approximately ten feet from Grendel's. There are now twenty-six liquor licenses outstanding for premises within the statutory 500 feet of the Church.

Pursuant to a purchase agreement with a license holder, Grendel's filed for a transfer of that license to itself with the CLC. After the required notice was issued, the Church filed a written objection pursuant to § 16C. The CLC rejected that objection as not properly indicating due authorization from the Church's governing body. The Church then filed a second opposition on May 25, 1977. The CLC thereupon rejected Grendel's application in a letter dated May 31, 1977. The only basis for the CLC's decision cited in that letter was the filing of a proper objection by the Church.

Grendel's then appealed to the ABCC, the state agency charged with enforcing the Commonwealth's liquor regulations. After a hearing, the ABCC on September 8, 1977, upheld the CLC's denial of Grendel's application expressly on the basis of the Church's objection, which the ABCC in that decision characterized as "an absolute veto." Statement of Agreed Facts, Exhibit E.

II.

It is well established that a state, acting under the powers granted by the Twenty-first Amendment, may constitutionally ban the sale of liquor within a specified radius of a church. See, Arno, supra, 384 N.E.2d at 1226 (citations); California v. LaRue, 409 U.S. 109, 120, 93 S.Ct. 390, 398, 34 L.Ed.2d 342 (1972) (Stewart, J., concurring) (dicta). Such a ban, properly enacted by the legislature, raises none of the issues advanced by Grendel's in its attack on the operation of § 16C.

On the other hand, the state's powers under the Twenty-first Amendment do not abrogate other constitutional guarantees. See, California Retail Liquor Dealers Assoc. v. Midcal Aluminum, Inc., 445 U.S. 97, 108, 100 S.Ct. 937, 945, 63 L.Ed.2d 233 (1980); see also P. Brest, Processes of Constitutional Decisionmaking, Cases and Materials, 258 (1975), cited with approval in Craig v. Boren, 429 U.S. 190, 206, 97 S.Ct. 451, 461, 50 L.Ed.2d 397 (1976). The Supreme Court has noted that "once passing beyond consideration of the Commerce Clause, the relevance of the Twenty-first Amendment to other constitutional provisions becomes increasingly doubtful." Craig, supra, at 206, 97 S.Ct. at 461. Indeed, in Craig the Court struck down on equal protection grounds a state statute setting different ages at which males and females could drink beer.⁷

It is clear, therefore, that a state's right to regulate liquor sales is not absolute. Regulations promulgated under the umbrella of the Twenty-first Amendment are subject to the same standards of scrutiny developed to evaluate the constitutionality of other kinds of state action. Within this framework, the court now examines plaintiff's various theories for relief.

A. Due Process.

The plaintiff's principal due process argument rests on three Supreme Court decisions defining the kind of power legislatures may delegate to private entities.

In Eubank v. Richmond, 226 U.S. 137, 33 S.Ct. 76, 57 L.Ed. 156 (1912), the Court voided an ordinance which gave the power to establish building setback lines to the owners of two-thirds of the property abutting any street. In Cusack Co. v. Chicago, 242 U.S. 526, 37 S.Ct. 190, 61 L.Ed. 472 (1917), the Court upheld a municipal restriction banning billboard construction unless the owners of a majority of the affected property waived the restriction. The triad was completed by Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210 (1928), in which the Court struck down an ordinance permitting the establishment of homes for the elderly only on the written consent of the owners of two-thirds of the property located within 400 feet of the proposed site.

As the Supreme Judicial Court observed in Arno, the teaching of these cases is that a legislature may not delegate the power to impose a restriction. Arno, supra, 384 N.E.2d at 1227 (citing cases). The principle embodied by this rule is that legislative power may only be exercised by the legislative body, though in specific instances affected parties may be authorized to waive an otherwise applicable legislative restriction. Cusack, supra, 242 U.S. at 531, 37 S.Ct. at 192; City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 677-78 & n. 12, 96 S.Ct. 2358, 2363-64 & n. 12, 49 L.Ed.2d 132 (1976). Given this standard, therefore, the test of a statute is whether it incorporates a legislative policy subject to waiver or whether it actually licenses private persons to impose policy on the public.

Section 16C, as presently enacted, is the third approach adopted by the Massachusetts legislature to regulate liquor outlets located near a church or school. As originally enacted in 1954, § 16C flatly forbade the licensing of liquor outlets within 500 feet of a church or school. In 1968, the legislature amended § 16C to permit licenses within the 500 foot radius, provided "the governing body of such church or school assents in writing." The statute was then amended to its present form in 1970. Arno, supra, 384 N.E.2d at 1226-27.

The 1954 version of § 16C was a constitutional exercise of the Commonwealth's power to regulate alcohol in its promulgation of an absolute ban. Similarly, the 1968 version comported with the Cusack standard as the legislature there provided a clear statement of policy, but permitted individual churches and schools to exercise their discretion to waive the legislative ban on liquor outlets near them.

The present § 16C, however, presents a quite different picture. There is now no general legislative proscription on liquor licenses within 500 feet of a church or school. The statute on its face reflects legislative neutrality concerning the proximity of liquor outlets to churches or schools. The decision as to whether a license may issue at a location within 500 feet of a church or school has been delegated to the affected institution. Legislative neutrality, therefore, has effectively delegated the policy decision of liquor licensing to private entities. An objection filed by such a private entity is unreviewable⁸ and, therefore, operates as an absolute veto over any application subject to § 16C.

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