Com. v. Blackgammon's, Inc.

• Decision Date: 18 February 1981
• Parties: COMMONWEALTH v. BLACKGAMMON'S, INC. et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 377

417 N.E.2d 377

382 Mass. 610

COMMONWEALTH v. BLACKGAMMON'S, INC. et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued June 9, 1980.

Decided Feb. 18, 1981.

Richard B. Michaud, Boston, for defendants.

Matthew L. McGrath, III, Legal Asst. to the Dist. Atty., West Roxbury (Michael J. Traft, Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

QUIRICO, Justice.

The defendants are charged with operating places of business in the city of Boston without first obtaining licenses allegedly required therefor by various provisions of the General Laws, city ordinances, and regulations of the Licensing Board for the City of Boston. The cases are before us on an interlocutory report posing a number of questions concerning the constitutionality, validity and applicability of the statutes, ordinances and regulations involved. The report was originally made to the Appeals Court and was then transferred to this court on our motion.

The complaints involved in this case are the following:

(1) No. 790380, charging Union Station, Inc. (Union Station), with offering entertainment by means of a "juke box", recorded music, and dancing for a fee, on Sunday, November 12, 1978, without having a license therefor as required by G.L. c. 136, §§ 3 and 4;

(2) No. 790384, charging Union Station with keeping a place for the retail sale of soft drinks on November 24, 1978, without having a license therefor as required by the City of Boston Code, Ordinances, Title 14, §§ 426-430 (1975), adopted pursuant to G.L. c. 140, §§ 21A-21C;

(3) No. 790551, charging Blackgammon's, Inc. (Blackgammon's), with keeping a table for playing pool for a fee on October 9, 1978, without having a license therefor as required by G.L. c. 140, § 178; and (4) No. 790602, charging Blackgammon's with offering entertainment by means of a "juke box", recorded music and dancing for a fee, on October 9, 1978, a weekday, without having a license therefor as required by the City of Boston Code, Ordinances, Title 14, §§ 426-430 (1975).

When these complaints first came to trial in the Municipal Court of the City of Boston, the defendants filed motions that the complaints be dismissed on the grounds that the various statutes, ordinances and regulations on which they were based were either unconstitutional, invalid or inapplicable. On February 9, 1979, the judge, in an opinion giving his reasons therefore, denied the motions as to these four complaints, ² and found the defendants guilty of the offenses charged. The defendants then appealed for a trial in the same court before a jury of six persons. G.L. c. 218, § 27A, as appearing in St. 1978, c. 478, § 189. In the jury session the defendants renewed their earlier motions to dismiss the complaints, or filed new motions to that effect. ³ The jury session judge held an evidentiary hearing on these motions on March 30, 1979, but he made no decision thereon. He has instead held them under advisement pending the disposition of his interlocutory report of questions thereon to the Appeals Court. The report was entered in the Appeals Court on August 8, 1979, and transferred to this court on April 28, 1980. See G.L. c. 218, § 27A (d), as amended by St. 1979, c. 344, § 3; and Mass.R.Crim.P. 34, 378 Mass. --- (1979).

The report states that "(t)here (are) now pending in the jury session of (the Boston Municipal Court) over 300 cases waiting trial by jury arising out of the same chain of circumstances alleged in the above-captioned cases." In view of these statistics, this is an appropriate situation for an interlocutory report. Commonwealth v. Vaden, 373 Mass. 397, 399-401, 367 N.E.2d 621 (1977). Commonwealth v. Henry's Drywall Co., 362 Mass. 552, 554-557, 289 N.E.2d 852 (1972).

The interlocutory report places before us a series of six questions arising from the defendants' facial attack on the various statutes, ordinances, and regulations bearing on the licenses which were allegedly required to be obtained by the defendants. Although the judge held an evidentiary hearing on the motions to dismiss the complaints in question, we do not have the benefit of any findings of facts or statement of agreed facts with the report as originally filed, except for the following language in the report: "It is agreed between the parties, the Commonwealth and all the defendants, that the following facts are not disputed. The defendants operate places of entertainment in downtown Boston, including Sundays. The hours of operation began in the late evening hours and usually concluded at 6:00 A.M. Patrons enter the establishments after paying an admission fee. A number of activities are provided, including coin-operated pool tables and pinball machines, both for hire, juke boxes, and other recorded music, dancing and moving pictures. In addition, the patrons may purchase ice, soft drinks and other refreshments from the vending machines located on the premises.

"It is agreed that Blackgammon('s), one of the defendants, had applied in March, 1978 to the Licensing Board of the City of Boston for an entertainment license, which application was denied by the Licensing Board.

"None of the defendants (has) applied for an entertainment license since the enactment of the new ordinances (Ordinances, Title 14, §§ 426 through 430).

"The complaints allege that these businesses are being operated without several licenses required by law. It is the constitutionality of these requirements that is the subject matter of this report."

On March 31, 1980, the reporting judge allowed a motion of the defendants to enlarge the "record on appeal" by including therein the transcript of the hearing which he had held on March 30, 1979, on the motions to dismiss the complaints. Much of that transcript consists of an offer of proof of testimony and exhibits. The judge made no findings based on the proffered testimony and exhibits, and we make none. A small portion of the transcript records an oral stipulation of counsel to the effect "that neither Defendant had any license issued by the City of Boston or any of its agencies, and that the facts alleged in the various complaints are true ... that Union Station actually did show movie pictures every day, and that both Defendants operated or had available for use coin-operated pool tables as part of an arcade consisting of a large number of coin-operated machines." ⁴

This case is thus before us solely on the judge's interlocutory report which poses six specific questions in three groups by subject matter, and we limit this opinion to an attempt to answer the specific questions asked. The criminal complaints in question have not been tried, with the result that there is nothing before us by way of an appeal. With that statement of the proceedings to date, we turn to a consideration of the legal issues tendered.

1. Standing of the defendants. Notwithstanding the fact that the judge reported no question on the standing of the defendants to attack the constitutionality of the several statutes and ordinances involved in this case, both parties have argued this issue in their briefs. The Commonwealth contends that the defendants lack standing because of their failure, neglect, or refusal to apply for the licenses in question. The defendants counter with the argument that they have standing to mount a facial attack on the statutes without first submitting thereto by applying for licenses. There is no indication in the report or the accompanying record and transcript that this issue was raised before the judge who reported the interlocutory questions, and if it was, he did not report any question thereon. Therefore, this issue is not properly before us. Nevertheless, without intimating any opinion on that issue, ⁵ we pass to a consideration of the questions actually placed before us by the interlocutory report.

2. Pool table license. Complaint No. 790551 charges that on October 9, 1978, Blackgammon's kept "a table for the purpose of playing at pool for hire, gain or reward," without having a license therefor. General Laws c. 140, § 177, as amended by St. 1964, c. 284, authorizes the licensing board of Boston and prescribed officials in other municipalities, to issue a license "to keep a billiard, pool or sippio table or a bowling alley for hire, gain or reward, upon such terms and conditions as they deem proper, to be used for amusement merely and not for the purpose of gaming for money or for property." It then prescribes procedures to be followed by the licensing authority in issuing such licenses. Section 178 imposes a fine on any person who "without such license keeps or suffers to be kept ... a table for the purpose of playing at billiards, pool or sippio, or a bowling alley for hire, gain or reward."

The questions reported by the judge as to the pool table are the following:

"1. Does the fact that the pool tables located in the (defendant's premises) may be coin-operated, remove them from the purview of G.L. Chap. 140, sec. 177?

"2. Are such coin-operated pool tables subject to the licensing provisions of G.L. Chap. 140, sec. 177A and/or ... sec. 181?"

For the reasons stated below, we answer the first question in the negative.

The licensing of pool tables and bowling alleys for hire was first delegated to cities and towns by St. 1857, c. 194. That delegation has continued to this day in language which is basically similar to that now contained in G.L. c. 140, §§ 177 and 178. ⁶ In Commonwealth v. Kinsley, 133 Mass. 578, 579 (1882), where the defendant was convicted of keeping a pool table for hire after his license to do so had been revoked, the court stated: "The keeping of a pool table for hire is one of many things affecting the public morals, which the Legislature can either absolutely prohibit or can regulate, and one common form of regulation is by requiring a license." In Marchesi v. Selectmen of...