Aristocratic Restaurant of Massachusetts, Inc. v. Alcoholic Beverages Control Commission (No. 1)

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before HENNESSEY; WILKINS; LIACOS
• Citation: Aristocratic Restaurant of Massachusetts, Inc. v. Alcoholic Beverages Control Commission (No. 1), 374 N.E.2d 1181, 374 Mass. 547 (Mass. 1978)
• Decision Date: 03 March 1978
• Parties: ARISTOCRATIC RESTAURANT OF MASSACHUSETTS, INC. v. ALCOHOLIC BEVERAGES CONTROL COMMISSION (NO. 1) (and a companion case 1 ).

Page 1181

374 N.E.2d 1181

374 Mass. 547

ARISTOCRATIC RESTAURANT OF MASSACHUSETTS, INC. v. ALCOHOLIC BEVERAGES CONTROL COMMISSION (NO. 1) (and a companion case ¹ ).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 7, 1977.

Decided March 3, 1978.

Morris M. Goldings, Boston, for plaintiffs.

Thomas Miller, Asst. Atty. Gen., for defendant.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS and LIACOS, JJ.

WILKINS, Justice.

Each plaintiff sought judicial review under G.L. c. 30A, § 14, of a decision of the Alcoholic Beverages Control Commission (commission) suspending its license to sell alcoholic beverages. In each case, summary judgment was entered in the Superior Court dismissing the complaint. The appeals, which raise identical issues, were consolidated, and we transferred them to this court on our own motion. We affirm the judgments.

Aristocratic Restaurant of Massachusetts, Inc. (Aristocratic), was the holder of a 1975 all alcoholic beverages restaurant license for premises at 240 Boylston and 19 Providence streets in Boston. One night in October, 1975, two investigators of the commission entered those premises and were seated at the bar. The investigators observed that "after leaving the stage and getting dressed, the dancers mingled with the patrons and had patrons purchase drinks for them." Each of two or three dancers employed by Aristocratic asked one or the other of the investigators to buy her a drink. The investigators subsequently identified themselves to the person in charge of the premises.

About three weeks later, the commission sent Aristocratic notice of a hearing to determine whether Aristocratic "violated certain provisions of the Liquor Control Act." The notice referred to Regulation Thirteenth of the Boston Licensing Board (Regulation 13) and the commission's Regulation 21. Regulation 13 provides that "(e)ntertainment, if any, must be confined to a particular place, and the entertainers must not be allowed to mingle with or circulate among the patrons." The commission's Regulation 21 provides that "(n)o licensee for the sale of alcoholic beverages shall permit any . . . illegality of any kind to take place in or on the licensed premises." ²

The notice of the hearing did not recite the date of the alleged violation, and the commission did not file any further specifications, although Aristocratic moved for a more definite statement. The commission had a practice of allowing a licensee's representative to read its entire file, and Aristocratic had that opportunity in this proceeding. The commission conducted a hearing on December 16, 1975; rendered a decision that day finding a violation of Regulation 13 and of its Regulation 21; and ordered a suspension of Aristocratic's license for a period of ten days. The commission filed a statement of reasons containing findings of fact.

The circumstances concerning United Food Corporation (United) are much the same as those concerning Aristocratic. On January 4, 1976, investigators of the commission entered United's licensed premises on Washington Street in Boston operated under the name "Two O'Clock Lounge." A female dancer left the stage, dressed, approached the investigators, and asked them if they would like company. They asked what they would have to do for her company, and she replied, "You'll have to buy me a drink for starters." When the investigators declined the offer, she left them and approached other male patrons on the other side of the bar. The investigators identified themselves and informed the person in charge of the premises that a report of the violation of Regulation 13 would be filed with the commission.

On March 23, 1976, the commission sent a notice of a hearing to United, asserting that on January 4, 1976, United violated Regulation 13 and Regulation 21. The commission furnished no further details and, as in the case of Aristocratic, the commission declined, on motion, to make a more definite statement of its charges. But it did advise United that the licensee's complete file was open for inspection. On April 27, 1976, the commission held a hearing and, on that same day, issued a decision suspending United's license for six days for violation of Regulation 13 and Regulation 21. The commission filed a statement of reasons containing specific findings, which have been summarized in part above.

In each case, a Superior Court judge stayed the commission's order of suspension, and, after the commission's motions for summary judgment were granted, the judge allowed each appellant's motion to stay judgment pending appeal.

As we have indicated, the appellants raise identical issues in their appeals. They claim that Regulation 13 and Regulation 21 are "vague, overbroad, and in violation of constitutional rights of speech and association." Their main contentions are that a prohibition of entertainers' mingling with and circulating among patrons is too imprecise to meet constitutional requirements of due process and that, in any event, such a regulation is overbroad because it denies entertainers constitutionally protected rights to speak to and associate with customers. Before reaching these constitutional questions, we shall address procedural objections raised by the appellants.

1. The unsupplemented notices of the hearings were inadequate to provide the licensees with "sufficient notice of the issues involved to afford them reasonable opportunity to prepare and present evidence and argument" (G.L. c. 30A, § 11(1), inserted by St.1954, c. 681, § 1), and, therefore, the commission's decisions were "(m)ade upon unlawful procedure" (G.L. c. 30A, § 14(7)(d), as amended through St.1973, c. 1114, § 3). However, only where "the substantial rights of any party may have been prejudiced" is a reversal of agency action appropriate. G.L. c. 30A, § 14(7). Neither appellant has made such a showing here. The files of the commission, including reports of the violations claimed by its investigators, were available to each licensee. Indeed, the record of each proceeding indicates that counsel was adequately prepared to meet the evidence presented before the commission and that in neither case did he ask for a continuance. ³

2. There is no merit to the appellants' argument that the commission exceeded its jurisdiction by enforcing a regulation of a local licensing authority. They claim that the commission lacks the power to make an initial interpretation of such a regulation on its own. The appellants concede, however, that the commission has comprehensive powers of suspension over licensees and has statutory authority (G.L. c. 138, § 64) to revoke or suspend a license for violation of a regulation of a local licensing authority. Nothing in the legislative pattern of regulation suggests that the commission may enforce only those local regulations which have been interpreted by a local licensing authority.

3. There was substantial evidence to support the commission's findings of fact. In each case, the evidence showed, and the commission found, that at least one entertainer approached customers on the licensed premises and attempted to have them purchase her drinks. This evidence supported findings that entertainers mingled with or circulated among the patrons. The evidence warranted an inference that the management of the licensed premises "allowed" entertainers to associate with patrons in this manner. Thus, the finding of a violation of Regulation 13, and in turn of Regulation 21, was amply supported by substantial evidence. We consider next the appellants' claim that the suspensions of their licenses cannot stand because Regulation 13 and Regulation 21 are unconstitutional.

4. Regulation 13 and Regulation 21 are not unconstitutionally vague as applied to the appellants in the circumstances revealed by the commission's findings. The appellants, therefore, have no standing to challenge these regulations on due process grounds by showing that the regulations may be facially vague, that is, impermissibly vague in other factual circumstances. See Commonwealth v. Gallant, --- Mass. ---, --- ^a, 369 N.E.2d 707 (1977), and cases cited; Broadrick v. Oklahoma, 413 U.S. 601, 607, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). ⁴ The question is whether the licensees had sufficient warning, and the enforcement authorities had sufficient guidance, from Regulation 13 to determine whether the conduct of the licensees' entertainers was forbidden. See Commonwealth v. Bohmer,--- Mass. ---, --- ^b, 372 N.E.2d 1381 (1978); Commonwealth v. 707 Main Corp., --- Mass. ---, --- - --- ^c, 357 N.E.2d 753 (1976). We believe that where an entertainer indiscriminately approaches patrons soliciting them to purchase drinks for him or her, the entertainer has "mingle(d) with or circulate(d) among the patrons." These words are not vague in the context of the facts apparent on the record. Even if Regulation 13 were to be considered a criminal statute, and thus held to a higher standard of certainty than a civil sanction (Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 92 L.Ed. 840 (1948)), it furnishes a sufficiently definite warning so that people of common intelligence would know that the activities of the appellants' entertainers constituted mingling with and circulating among patrons. See Commonwealth v. Gallant, supra at --- - --- ^d, 369 N.E.2d 707; Commonwealth v. 707 Main Corp., supra at --- - --- ^e, 357 N.E.2d 753. See also Miami v. Kayfetz, 92 So.2d 798, 802 (Fla.1957); New Orleans v. Kiefer, 246 La. 305, 312, 164 So.2d 336 (1964) (holding that the verb "mingle" has a clear connotation to the ordinary mind); People v. King,115 Cal.App.2d Supp. 875, 879, 252 P.2d 78 (1952) (same).

5. The appellants argue that Regulation 13 infringes on constitutional rights of free speech and association. ⁵

The claim that Regulation 13 violates any right of freedom of speech or assembly under the First Amendment to the Constitution of the United...