Beacon Restaurant, Inc. v. Adamo
| Decision Date | 22 April 1968 |
| Docket Number | No. 157-A,157-A |
| Citation | 103 R.I. 698,241 A.2d 291 |
| Parties | The BEACON RESTAURANT, INC. v. Pat John ADAMO et al. ppeal. |
| Court | Rhode Island Supreme Court |
This civil action in the nature of mandamus was instituted against the defendants who, as members of the Westerly town council, constitute the board of license commissioners for that municipality. The complaint was brought to order the defendants to advertise a public hearing on a proposed transfer of a class B victualler beverage license presently held by Sunny Day Restaurant, Inc. to the plaintiff. The case is before us on the defendants' appeal from a judgment of the superior court which granted the request for mandamus and directed the defendants: to set a date for a hearing on the transfer application; to advertise notice of the pendency of the application; and to conduct the hearing thereon. Enforcement of the writ has been stayed pending this appeal. Hereafter we shall refer to the plaintiff as 'Beacon,' the defendants as 'the council,' and the holder of the license as 'Sunny Day.'
Sunny Day is a Rhode Island corporation which owns and operates a tavern at the corner of Atlantic Avenue and Winnapaug Road in the Misquamicut Beach section of Westerly. On December 21, 1965, the council met and received an application for the transfer of the liquor license from Sunny Day to Beacon. The application which was signed by the respective presidents of the transferor and transferee also contained a request that the license be transferred from its present location to a new one described in the application as the 'North Side of Atlantic Avenue, Misquamicut, R.I.-Lot No. 7, Plat of Rear Beach Lots, Pleasant View, Westerly, R.I.'
The council 1 discussed the application and then directed its cleak to notify Beacon that it was unable to consider the application because of the proposed change in the location of the premises to be affected by the license and the absence of any building on the lot described in the application. The clerk complied with the council's mandate and on December 24, 1965, she sent the president of Beacon a letter embodying the council's decision. A copy of this letter is a part of the record.
When the council met on February 14, 1966, the clerk informed the body that she had received a telephone call from the president of Sunny Day asking that the application for the transfer of its license be withdrawn. Beacon's attorney was in attendance at the meeting. He told the council that, contrary to the assertion contained in the clerk's letter, there was a building located on the site described in the application; and he also submitted a memorandum of law to the council and urged it to advertise the required public hearing on the transfer. Counsel for the president of Sunny Day then addressed the local legislature. His client, he said, was going to sell the entire stock in the corporation to a third person later identified as John E. Cherenzia. This lawyer asked the council to permit the withdrawal of the transfer application. The council then referred the controversy to the town solicitor with a directive that he furnish it at some later date with an opinion as to the course of action it should follow in the light of the views expressed by the two attorneys. At a special meeting on March 1, 1966, the solicitor's opinion was read by the clerk. It advised the council that under the zoning ordinance an enterprise such as contemplated by Beacon could operate at its proposed location only if it were granted a special exception by the zoning board. Since such an exception had been neither asked of nor granted by the board, the solicitor told the council that it could not entertain the application for the license transfer. A spirited discussion followed in which members of the council and the respective attorneys for Sunny Day and Beacon participated. It was then voted that the entire question be tabled to a later date.
Beacon commenced this litigation on February 23, 1966. Although the council was served with a process on that day, it failed to answer the complaint within the following 20 days as it specified by rule 12 of the rules of civil procedure of the superior court. On April 8, 1966, Cherenzia filed a motion to intervene as a party defendant. Three days later Sunny Day filed a similar motion. On April 18, 1966, Beacon filed a motion for summary judgment under rule 56 of the rules of civil procedure together with an affidavit in support thereof. The council filed an answer on April 21, 1966-over a month beyond the twenty-day limitation set forth in rule 12 of the rules of civil procedure. In its answer, the council admitted that it had refused to advertise the application but attempted to justify its position because of the alleged presence of certain zoning restrictions which we have already referred to and to Sunny Day's attempted withdrawal of the transfer request. Nowhere in its answer did the council renew its allegation that there was not a building on the lot owned by Beacon.
Following the council's belated reply, there followed a series of motions to strike filed by plaintiff and a quite belated attempt by the council to file an amended answer. These motions, together with the intervenors' motions, were considered by the superior court at various times during the years 1966-1967. It was not until March 16, 1967, that the judgment complained of here was entered. Another factor contributing to the delay in a purposeful consideration of this case was a municipal election which was held in Westerly in November, 1966. This biennial event caused an almost complete replacement of the then incumbent council and the appointment of a new solicitor who assumed this position on January 9, 1967.
After sweeping away the plethora of motions filed herein, the simple issue presented for our consideration is the right of a person who has applied for a transfer to him of a retail liquor license held by another to have this matter heard by the local liecensing authority. Under G.L.1956, § 3-5-19, a local licensing board may allow the transfer of an outstanding license only after it has given public notice of the pending application in a manner set forth in § 3-5-17. The pertinent portion of this latter section which provides for the advertising of the date of the hearing on the transfer application reads as follows:
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