Boston Licensing Bd. v. Alcoholic Beverages Control Commission

• Decision Date: 21 May 1975
• Citation: 328 N.E.2d 848,367 Mass. 788
• Parties: BOSTON LICENSING BOARD v. ALCOHOLIC BEVERAGES CONTROL COMMISSION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 848

328 N.E.2d 848

367 Mass. 788

BOSTON LICENSING BOARD v. ALCOHOLIC BEVERAGES CONTROL COMMISSION.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 6, 1975.

Decided May 21, 1975.

Lawrence J. Ball, Sp. Asst. Corp. Counsel, for the Boston Licensing bd.

Howard S. Whitehead, Deputy Asst. Atty. Gen. (Michael Eby, Deputy Asst. Atty. Gen., with him), for the Alcoholic Beverages Control Commission.

Morris M. Goldings, Boston, for United Food Corp.

Before TAURO, C.J., and QUIRICO, BRAUCHER, HENNESSEY and KAPLAN, JJ. BRAUCHER, Justice.

Following the decision in California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), the Boston Licensing Board (board) promulgated rules and regulations similar to those upheld in the LaRue case, governing sexually explicit conduct in establishments licensed by the board to sell liquor. The Alcoholic Beverages Control Commission (commission) decided that the board was not authorized to make such rules and regulations. We hold that the challenged authority exists under G.L. c. 138, § 23, ¹ as amended through St.1971, c. 477, § 3.

The board brought this bill for declaratory relief in the Superior Court, and the judge reported it without decision to the Appeals Court on the pleadings and a statement of agreed facts. The case was transferred to this court under G.L. c. 211A, § 10(A). We summarize the agreed facts.

On December 20, 1972, the board issued the regulations set forth in the margin. ² On January 12, 1973, the board held a public hearing to receive comments on the regulations, and it subsequently promulgated the regulations. On February 7, 1973, the board held a hearing to determine whether a licensee, the United Food Corporation of Boston, had violated the regulations, found a violation, and imposed a three-day suspension of the licensee's alcoholic beverage license. The licensee appealed to the commission, which issued a decision directing the board to vacate the suspension, declaring that the regulations were without force and effect, and requiring that they be 'properly voided' by the board and that 'proper notice' be sent to all licensees. No petition for judicial review of that decision has been filed. The commission has not issued regulations of this type and does not intent to.

1. Declaratory relief. The decision of the commission was subject to judicial review under G.L. c. 30A, § 14. Kneeland Liquor, Inc. v. Alcoholic Beverages Control Commn. 345 Mass. 228, 229, 186 N.E.2d 593 (1962). The commission argues that it is not appropriate to grant declaratory relief to a party which has ignored its statutory right of direct review, citing G.L. c. 231A, § 3, and Goldman v. Planning Bd. of Burlington, 347 Mass. 320, 326, 197 N.E.2d 789 (1964). We agree that the present case would not be an appropriate vehicle for review of the license suspension or of the commission's order that the suspension be vacated. But we think that judicial review of the board's regulations by a bill for declaratory relief is not precluded. G.L. c. 231A, § 2. Cf. Paquette v. Fall River, 338 Mass. 368, 377, 155 N.E.2d 775 (1959); Westland Housing Corp. v. Commissioner of Ins., 352 Mass. 374, 380--383, 225 N.E.2d 782 (1967); Cambridge Elec. Light Co. v. Department of Pub. Util., --- Mass. ---, ---, 295 N.E.2d 876 (1973). ^a

2. Intervention by the licensee. The licensee whose suspension had been ordered vacated sought to intervene in the action in the Superior Court. Leave to intervene was denied, and the licensee filed a bill of exceptions, included by the judge in his report. Since the decision in this case will not affect the vacated suspension, and since we do not pass on the constitutional rights of licensees subject to the regulations in question, we hold that there was no abuse of discretion in denying the petition for intervention. See Dillaway v. Burton, 256 Mass. 568, 576--577, 153 N.E. 13 (1926); Check v. Kaplan, 280 Mass. 170, 178, 182 N.E. 305 (1932). Cf. Mass. R.Civ.P. 24, --- Mass. --- (1974). A decision on the allocation of powers between the board and the commission can properly be made without the participation of all the licensees and others who may be indirectly affected. See Brookline v. County Commrs. of the County of Norfolk, Mass, (1975). ^b

3. Constitutional issues. The constitutional climate in which the statutes and regulations must operate is of course an important part of the context in which they must be interpreted. We therefore take note of the fact that the United States Constitution, as interpreted by the Supreme Court, leaves some room for the regulation of sexually explicit conduct in establishments licensed to sell alcoholic beverages. California v. LaRue, 40. U.S. 109, 118--119, 9o S.Ct. 390, 34 L.Ed.2d 342 (1972). Cf. Paladino v. Omaha, 471 F.2d 812, 814 (8th Cir. 1972); Oberhelman v. Schultze, 371 F.Supp. 1089, 1091 (D.Minn.1974), affd. without opinion, 505 F.2d 736 (8th Cir. 1974); Manos v. Green Bay, 372 F.Supp. 40, 46--47 (E.D.Wis.1974); Clark v. Fremont, 377 F.Supp. 327, 342 (D.Neb.1974); Cheetah Enterprises, Inc. v. County of Lake, 22 Ill.App.3d 306, 312--313, 317 N.E.2d 129 (1974); Salem v. Liquor Control Commn. 34 Ohio St.2d 244, 248--249, 298 N.E.2d 138 (1973); Seattle v. Hinkley, 83 Wash.2d 205, 206--208, 517 P.2d 592 (1973). Constitutional limitations seem to have been applied more restrictively, at least in some courts, to regulation of similar conduct not associated with alcoholic beverages. Compare Starshock, Inc. v. Shusted, 370 F.Supp. 506 (D.N.J.1974), reversed without opinion 493 F.2d 1401 (3d Cir. 1974) (nude dancing after liquor license revoked); Salem Inn, Inc. v. Frank, 501 F.2d 18, 20--21 (2d Cir. 1974), probable jurisdiction noted sub nom., Doran v. Salem Inn, Inc., 419 U.S. 1119, 95 S.Ct. 801, 42 L.Ed.2d 819 (1975) ('topless' dancing prohibited in any 'public place'), with Crownover v. Musick, 9 Cal.3d 405, 427--428, 107 Cal.Rptr. 681, 509 P.2d 497 (1973) (valid regulation of nude conduct in public places), cert. den. sub nom., Reynolds v Sacramento, 415 U.S. 931, 94 S.Ct. 1443, 39 L.Ed.2d 489 (1974); Wayside Restaurant, Inc. v. Virginia Beach, 215 Va. 231, 237 (1974) ^c (regulation of nudity in public places valid as applied to licensees selling beer and wine).

We do not think, however, that we should pass on the commission's claim that the board's regulations violate the First and Fourteenth Amendments to the Constitution of the United States and art. 16 of the Declaration of Rights of the Constitution of the Commonwealth. Ordinarily constitutional questions may only be litigated by persons whose interests are affected. See Commonwealth v. Brunelle, --- Mass. ---, --- - --- ^d, 277 N.E.2d 826, (1972) and cases cited; cf. School Comm. of Springfield v. Board of Educ. --- Mass. ---, --- - --- ^e, 287 N.E.2d 438 (1972). The commission's constitutional rights are not in issue. Like the Supreme Court in the LaRue case, we think we should reserve for another day the question whether some specific application of the regulations may engender problems of constitutional dimension. See 409 U.S. at 119 n. 5, 93 S.Ct. 390 (1972). Similarly, we think we should not now pass on such questions as whether their possible application in one hypothetical case would render them over-broad and hence invalid in another hypothetical case, how far they are severable, or whether they are underinclusive so as to discriminate unfairly.

4. The board's authority. The regulations are made applicable to licenses for the sale of alcoholic beverages to be served and drunk on the premises granted pursuant to G.L. c. 138, §§ 1 and 12, as amended. Such licenses are granted by the board, 'subject to the prior approval of the commission.' See Webster v. Alcoholic Beverages Control Commn., 295 Mass. 572, 575, 4 N.E.2d 302 (1936); Coyne v. Alcoholic Beverages Control Commn., 312 Mass. 224, 228--229, 44 N.E.2d 692 (1942). License fees and hours of operation are fixed by the board within statutory limits. The 'licensing authorities,' defined in G.L. c. 138, § 1, as either the board of the commission or both, may 'modify, suspend, revoke or cancel' a license. G.L. c. 138, § 64, as amended through St.1964, c. 64. Any person aggrieved by a decision of the board may appeal to the commission, but if the commission disapproves the board's action it can only recommend the action to be taken by the board. Except in certain cases of reappeal to the commission, the board is not bound to follow the recommendation of the commission. G.L. c. 138, § 67, as amended through St.1971, c. 477, § 4. Largess v. Nore's Inc., 341 Mass. 438, 442, 170 N.E.2d 361 (1960); Dixie's Bar, Inc. v. Boston Licensing Bd., 357 Mass. 699, 702, 259 N.E.2d 777 (1970).

The commission has comprehensive powers of supervision over licensees. Connolly v. Alcoholic Beverages Control Commn., 334 Mass. 613, 617, 138 N.E.2d 131 (1956). It may make regulations for 'clarifying, carrying out, enforcing and preventing violation of' statutory provisions for the 'method of carrying on the business of any licensee,' and 'for the proper and orderly conduct of the licensed business.' G.L. c. 138, § 24, as appearing in St.1971, c. 478. Licenses are also revocable for violation of 'any regulation adopted by the commission or local licensing authority' (emphasis supplied), and local licensing authorities are to make 'reasonable requirements' with respect to 'the conduct of business by any licensee.' G.L. c. 138, § 23, quoted in part in fn. 1, supra.

The only relevant regulation of the commission which has been brought to our attention is its Regulation 21: 'No licensee for the sale of alcoholic beverages shall permit any disorder, disturbance or illegality of any kind to take place in or on the licensed premises. The licensee shall be responsible therefor, whether present or not.' It is not contended that the board's regulations are inconsistent with that rule or repugnant to it. Cf. ...