Blue Moon Saloon, Inc. v. Alcoholic Beverages Control Commission

• Decision Date: 19 December 1980
• Citation: 413 N.E.2d 1122,11 Mass.App.Ct. 890
• Parties: BLUE MOON SALOON, INC. v. ALCOHOLIC BEVERAGES CONTROL COMMISSION.
• Court: Appeals Court of Massachusetts

Page 1122

413 N.E.2d 1122

11 Mass.App.Ct. 890

BLUE MOON SALOON, INC. v. ALCOHOLIC BEVERAGES CONTROL COMMISSION.

Appeals Court of Massachusetts, Worcester.

Argued Nov. 13, 1980.

Decided Dec. 19, 1980.

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

Before BROWN, GREANEY and KASS, JJ.

RESCRIPT.

1. The Alcoholic Beverages Control Commission (ABCC) correctly contends that in the present circumstances the appeal from the order of the Superior Court remanding this matter to the ABCC for further consideration is ripe for immediate appellate review. See Cliff House Nursing Home, Inc. v. Rate Setting Commn., 378 Mass. ---, --- - --- ^a, 390 N.E.2d 723 (1979). See also Wells v. Southern Airways, Inc., 517 F.2d 132, 132 n.3 (5th Cir. 1975), cert. denied, 425 U.S. 914, 96 S.Ct. 1512, 47 L.Ed.2d 765 and sub nom. Air Line Pilots Assn., Intl. v. Wells, 425 U.S. 1000, 96 S.Ct. 2217, 48 L.Ed.2d 824 (1976). From the viewpoint of the ABCC, the Superior Court judgment was final. Cf. Seymour's Case, 6 Mass.App. --- ^b, 381 N.E.2d 1121 (1978).

2. It was error for the judge of the Superior Court to order the ABCC to reconsider its decision affirming the local licensing authority's revocation decision. The judge found that the decision of the ABCC was based on substantial evidence. ¹ "The judge may set aside the agency's decision only if it is '(u)nsupported by substantial evidence.' " Olde Towne Liquor Store, Inc. v. Alcoholic Beverages Control Commn., 372 Mass. 152, 153, 360 N.E.2d 1057 (1977). The ABCC's statutory authority to revoke the plaintiff's license is not open to doubt. Id. at 154, 360 N.E.2d 1057. Thus, as revocation of a license is one of the sanctions provided by law (see G.L. c. 138, § 64), it cannot be said that revocation has no reasonable relation to the offending practices of the plaintiff. See Jacob Siegel Co. v. FTC, 327 U.S. 608, 612-613, 66 S.Ct. 758, 760, 90 L.Ed.2d 888 (1946). See also Number Three Lounge, Inc. v. Alcoholic Beverages Control Commn., 7 Mass.App. ---, --- ^c, 387 N.E.2d 181 (1979).

3. The judge relied on the severity of the penalty as the basis for his remand of this matter to the ABCC. That was error. See Levy v. Board of Registration & Discipline in Medicine, 378 Mass. ---, --- - --- ^d, 392 N.E.2d 1036 (1979). Compare Number Three Lounge, Inc. v. Alcoholic Beverages Control Commn., supra, 7 Mass.App. at --- - --- ^e, 387 N.E.2d 181.

The judgment is reversed, and the case is remanded to the Superior Court for the entry of a new judgment affirming the decision of the ABCC.

So ordered.

a. Mass.Adv.Sh. (1979) 1395, 1397-1398.

b. Mass.App.Ct.Adv.Sh. (1978) 1025.

1 None of the other grounds set out in G.L. c. 30A, § 14(7), for setting aside the decision of an agency was relied on by the judge.

c. Mass.App.Ct.Adv.Sh. (1979) 548, 565.

d. Mass.Adv.Sh. (1979) 1857, 1869-1870.

e. Mass.App.Ct.Adv.Sh. (1979) at 564-565.