Grendel's Den, Inc. v. Goodwin, s. 80-1653

• Citation: 662 F.2d 88
• Decision Date: 07 April 1981
• Docket Number: Nos. 80-1653,80-1654,s. 80-1653
• Parties: 1981-1 Trade Cases 63,978 GRENDEL'S DEN, INC., Plaintiff, Appellee, v. Herbert N. GOODWIN et al., Defendants, Appellees. Cambridge License Commission et al., Defendants, Appellants. GRENDEL'S DEN, INC., Plaintiff, Appellee, v. Herbert N. GOODWIN et al., Defendants, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 88

662 F.2d 88

1981-1 Trade Cases 63,978

GRENDEL'S DEN, INC., Plaintiff, Appellee, v. Herbert N. GOODWIN et al., Defendants, Appellees.

Cambridge License Commission et al., Defendants, Appellants.

GRENDEL'S DEN, INC., Plaintiff, Appellee, v. Herbert N. GOODWIN et al., Defendants, Appellants.

Nos. 80-1653, 80-1654.

United States Court of Appeals, First Circuit.

Argued Nov. 3, 1980.

Decided April 7, 1981.

Gerald J. Caruso, Asst. Atty. Gen., and Birge Albright, Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Thomas Miller, Asst. Atty. Gen., Boston, Mass., were on brief, for defendants, appellants.

Laurence H. Tribe, Cambridge, Mass., with whom David Rosenberg, Cambridge, Mass., and Ira Karasick, New York City, were on brief, for plaintiff, appellee.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and HOFFMAN, ^* Senior District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Grendel's Den is a restaurant which plaintiff-appellee Grendel's Den, Inc. has operated since 1971 in Harvard Square, Cambridge, Massachusetts. Grendel's and the Holy Cross Armenian Catholic Parish Church occupy buildings that are about ten feet apart. Located back to back on premises that share a common rear property line, both buildings are near a busy motor and pedestrian intersection.

On May 13, 1977, Scorpio's, Inc., a holder of an All Alcoholic Restaurant License, applied to defendant-appellant Cambridge License Commission (CLC) for approval to transfer its license to Grendel's pursuant to a purchase arrangement with the latter. In conformity with state law, notice of the transfer application was published in a local newspaper and mailed to all abutting property owners and to all schools, hospitals, and churches within a 500 foot radius of Grendel's, including the Holy Cross Church. Mass.G.L. c. 138, § 15A. On May 25, 1977, Holy Cross notified the CLC of its objection to the license transfer. ¹

Mass.G.L. c. 138, § 16C provides, in part:

"Premises, except those of an innholder and except such parts of buildings as are located ten or more floors above street level, located within a radius of five hundred feet of a church or school shall not be licensed for the sale of alcoholic beverages if the governing body of such church or school files written objection thereto...." ²

On May 31, 1977, the CLC denied the application for the transfer to Grendel's of Scorpio's license, citing Holy Cross's objection. Grendel's and Scorpio's appealed the CLC's decision to the Massachusetts Alcoholic Beverages Control Commission (MABCC), which on September 8, 1977, following a hearing, sustained the action of the CLC. MABCC noted that "the church's objection under Section 16C was the only basis on which the transfer was denied."

On November 7, 1977, Grendel's instituted this action in the district court against MABCC, CLC and their individual members alleging that section 16C "on its face and as applied" was unconstitutional and violated the Sherman Act. Shortly thereafter, the parties agreed to suspend further proceedings in the case pending the decision of the Massachusetts Supreme Judicial Court in Arno v. Alcoholic Beverages Control Commission, --- Mass. ---, Mass.Adv.Sh. 104, 384 N.E.2d 1223 (1979), which upheld section 16C against state and federal constitutional attack. After the Arno decision was rendered, each party moved for summary judgment on the issues of the statute's facial constitutionality and the applicability of the "state action exemption" to Sherman Act liability. ³ On August 14, 1980, the district court held that section 16C violated the due process clause of the fourteenth amendment and the establishment clause of the first amendment (as applied to the states through the fourteenth amendment); on September 5, 1980, the court entered judgment in favor of plaintiff on these constitutional claims. The district court also denied defendants' motion to dismiss the Sherman Act claim on grounds of state action immunity; the denial of the motion is before us on appeal pursuant to 28 U.S.C. § 1292(b).

I.

Section 16C in its current form is essentially the third version of a provision first enacted in 1954. The first version, inserted by Mass.St.1954, c. 569, § 1, was a categorical ban on the licensing of premises (other than those of an innholder) located within 500 feet of a church or school. A 1968 amendment permitted licensed premises within the 500 foot radius "if the governing body of such church or school assents in writing." Finally, Mass.St.1970, c. 192, § 1, substituted the present language, prohibiting licensing within the 500 foot zone "if the governing body of such church or school files written objection thereto...." See Arno, supra, --- Mass. at ---, 1979 Mass.Adv.Sh. at 109, 384 N.E.2d at 1226-27.

In evaluating section 16C, the district court proceeded from the premise that the first version of the law was plainly valid: "It is well established that a state, acting under the power granted by the Twenty-first Amendment, may constitutionally ban the sale of liquor within a specified radius of a church." 495 F.Supp. at 763. The court nevertheless believed that the current version of section 16C contravened guarantees of due process by effectuating an improper delegation of legislative power to private entities. In so holding, the district court relied on three Supreme Court cases dealing with the delegation of legislative authority. ⁴

In Eubank v. Richmond, 226 U.S. 137, 33 S.Ct. 76, 57 L.Ed. 156 (1912), the Court

invalidated a city ordinance that empowered owners of two-thirds of the property abutting on any street to establish, within a specified range, a building set-back line for that street. Fines were imposed on persons constructing new buildings that did not respect the set-back line thus established. The Court considered "the question in the case" to be whether the ordinance was "a valid exercise of the police power." Id., at 142, 33 S.Ct. at 76. It concluded that, because private property owners were given the power to control the use of property owned by others, thus giving rise to a zoning plan with little consistency from block to block, the ordinance was not a reasonable exercise of police power such as would support restrictions on land use:

"One set of owners determine not only the extent of use but the kind of use which another set of owners may make of their property. In what way is the public safety, convenience or welfare served by conferring such power?"

Id., at 143, 33 S.Ct. at 77.

Five years later, however, in Thomas Cusack Co. v. Chicago, 242 U.S. 526, 37 S.Ct. 190, 61 L.Ed. 472 (1917), the Court upheld a city ordinance that prohibited the construction of billboards in residential areas without the consent of the owners of a majority of frontage property on the block in which the billboard was to be erected. The ordinance was within the city's police power because regulation of billboards had been shown to be "in the interest of the safety, morality, health and decency of the community." Id., at 530, 37 S.Ct. at 191. The Court labelled "palpably frivolous" the claim that the ordinance's validity was impaired by the provision permitting modification of the billboard prohibition upon the consent of private property owners:

"The plaintiff in error cannot be injured, but obviously may be benefited by this provision, for without it the prohibition of the erection of such billboards in such residence sections is absolute. He who is injured by the operation of a law or ordinance cannot be said to be deprived by it of either constitutional right or of property."

Id., at 530, 37 S.Ct. at 191.

The last of the three cases, Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210 (1928), concerned a comprehensive zoning ordinance which included among the permitted uses in a certain residential district "a philanthropic home for children or for old people ... when the written consent shall have been obtained of the owners of two-thirds of the property within four hundred feet of the proposed building." Reiterating that zoning restrictions interfering "with the general rights of the land owner by restricting the character of his use ... cannot be imposed if (they do) not bear a substantial relation to the public health, safety, morals, or general welfare," id., at 121, 49 S.Ct. at 51. The Court held that the ordinance exceeded the city's police powers:

"The facts disclosed by the record make it clear that the exclusion of the new home from the first district is not indispensable to the general zoning plan. And there is no legislative determination that the proposed building and use would be inconsistent with public health, safety, morals or general welfare. The enactment itself plainly implies the contrary. The grant of permission for such building and use, although purporting to be subject to such consents, shows that the legislative body found that the construction and maintenance of the new home was in harmony with the public interest and with the general scope and plan of the zoning ordinance."

Id., at 121, 49 S.Ct. at 51. ⁵

A primary concern expressed by the Court in the above cases was the relation of the contested ordinances to matters properly the subject of state or municipal regulation under the "police power." Only in Cusack, where the facts were sufficient to warrant the conclusion that the billboards "would or were liable to endanger the safety and decency" of residential neighborhoods, Roberge, 278 U.S. at 122, 49 S.Ct. at 52, was such a relation found; in that situation, the consent of those who might otherwise be harmed by the questionable use could lawfully be required. In the instant case, the power of the state under the twenty-first amendment to regulate the dispensation of liquor is both unquestioned and broad. See California v. LaRue, 409 U.S. 109, 115, 93 S.Ct. 390, 395, 34 L.Ed.2d 342 (1972); Ziffrin v. Reeves, 308...