Jasper v. Michael A. Dolan, Inc.

• Decision Date: 04 December 1968
• Citation: 355 Mass. 17,242 N.E.2d 540
• Parties: Michael H. JASPER et al. v. MICHAEL A. DOLAN, INC. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 540

242 N.E.2d 540

355 Mass. 17

Michael H. JASPER et al. v. MICHAEL A. DOLAN, INC. et al.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Oct. 10, 1968.

Decided Dec. 4, 1968.

Matthew R. McCann, Worcester, for plaintiffs.

Christy A. Pano, Worcester, for defendants.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, SPIEGEL and REARDON, JJ.

SPALDING, Justice.

By this bill in equity brought under G.L. c. 139, § 16A, the plaintiffs (fourteen voters of the city of Worcester) seek to enjoin the defendants from selling all-alcoholic beverages in a package store at 158 Belmont Street in that city, and to set aside the license that had been granted for those premises. The bill alleged that the license was invalid because (1) the premises were within 500 feet of a church in violation of G.L. c. 138, § 16C, and (2) the exercise of the license on the premises would be illegal under the zoning laws. From a decree dismissing the bill, the plaintiffs appealed. The evidence is reported and the judge made brief findings of fact. Facts found by the judge and by us will be stated hereinafter as occasion may require. Lowell Bar Assn. v. Loeb, 315 Mass. 176, 178, 52 N.E.2d 27.

1. The plaintiffs, who were 'not less than ten legal voters' of the city of Worcester, could invoke the provisions of G.L. c. 139, § 16A, to abate, as a common nuisance, the alleged illegal sale of liquor at 158 Belmont Street. And in deciding that issue the court may determine whether a license has been lawfully issued or transferred. Cleary v. Cardullo's, Inc., 347 Mass. 337, 351, 198 N.E.2d 281. First Church of Christ, Scientist, in Boston, Mass. v. Alcoholic Beverages Control Comm., 349 Mass. 273, 275, fn. 1, 207 N.E.2d 880.

2. In 1966 one of the defendants, Vessio's Market, Inc. (Market) was the holder of a beer and wine package store license for the first floor of a building at 158 Belmont Street. The license was first issued in 1953 and was annually renewed thereafter; it was exercised in conjunction with a self-service food market which the Market conducted on the first floor. These premises were rented to the Market by two other defendants, George and Constance Vessio.

The Vessios were the sole stockholders of Michael A. Dolan, Inc., also a defendant, which owned an all-alcoholic package store license for 30A Ward Street, Worcester. About August 5, 1966, the Dolan corporation applied to the Worcester licensing board for leave to transfer its license from 30A Ward Street to 158 Belmont Street. The local board and the Alcoholic Beverages Control Commission both approved the application and in November, 1966, the beer and wine license for 158 Belmont Street was recalled and the all-alcoholic license was transferred from Ward Street to the Belmont Street premises.

At the time of the transfer, G.L. c. 138, § 16C (as amended through St.1965, c. 629, § 1), read in part as follows: 'Premises, except those of an inn-holder, located within a radius of five hundred feet of a church or school shall not be licensed for the sale of alcoholic beverages; but this provision shall not apply to the transfer of a license from premises located within the said distance to other premises located therein, if it is transferred to a location not less remote from the nearest church or school than its former location.' ¹

The plaintiffs contend that the transfer should not have been permitted, since the Belmont Street premises were within 500 feet of the Calvary Temple, which the judge found had been regularly used as a church since 1964. Although the premises at Ward Street were even closer to another church, the defendants properly do not argue that the transfer was valid under § 16C as a transfer 'from premises located within the said distance to other premises located therein, if it is transferred to a location not less remote from the nearest church or school than its former location.' That phrase has been construed to mean that the right of a licensee to move within 500 feet of a church or school 'is limited to the particular church or school area in which lay his licensed premises prior to the move.' Cleary v. Cardullo's, Inc., 347 Mass. 337, 345, 198 N.E.2d 281, 287.

The defendants rely on the saving clause contained in § 2 of St.1965, c. 629. This reads: 'The provisions of section sixteen C of chapter one hundred and thirty-eight of the General Laws, as amended by section one of this act, shall not apply to premises which, prior to the effective date of this act, or prior to the establishment of a church or school within a radius of five hundred feet thereof, were licensed for the sale of alcoholic beverages.' The defendants contend that § 16C's prohibition against the granting of a license within 500 feet of a church does not apply since the Belmont Street premises were licensed before the Calvary Temple was established in 1964.

The plaintiffs concede that the saving clause would have permitted the continuance of the beer and wine license, since this had existed at the Belmont Street premises since 1953. But they contend that it was not designed to permit a new type of license such as an all-alcoholic license. Otherwise, it is argued, a pree xisting beer and wine package license could be used to justify the issuance of even a tavern or hotel license.

The question, then, is whether the saving clause was intended to save the premises for all types of liquor licenses or only to save particular pree xisting licenses. A somewhat similar question was discussed but not decided in Vaughan v. Max's Mkt. Inc., 343 Mass. 394, 396-397, 179 N.E.2d 226. The saving clause states that § 16C 'shall not apply to premises which * * * were licensed for the sale of alcoholic beverages' (emphasis supplied). And there is nothing in the legislative history which would indicate that the Legislature meant to refer only to existing licenses. Indeed, the legislative history indicates the contrary. Section 16C was first enacted in 1954. Originally Senate Bill No. 148 provided that licensing authorities 'may renew a previously granted license for such premises which is in effect upon February first. nineteen hundred and fifty-four.' It will be noted that this bill referred to the preserving of licenses. However, the bill as it was eventually passed (1954 Senate Bill No. 707) contained a saving clause which referred to premises rather than to licenses. Since this saving clause is essentially the same as the 1965 clause, the legislative history does not support the interpretation urged by the plaintiffs.

The 1965 saving clause does not distinguish between premises with different kinds of licenses; rather it applies to all premises 'licensed for the sale of alcoholic beverages.' The term 'alcoholic beverages' is defined in G.L. c. 138, § 1, as 'any liquid intended for human consumption as a beverage and containing one half of one per cent or more of alcohol by volume at sixty degrees Fahrenheit.' Since the Belmont Street premises were licensed to sell beer and wine, which are 'alcoholic beverages,' the saving clause applies. Therefore, § 16C did not prohibit the transfer of the license to within 500 feet of the Calvary Temple.

3. The plaintiffs further contend that the transfer violated Worcester's zoning ordinance. The Belmont Street premises were located in a residential zone. Section 8 of the ordinance, however, provides that the ordinance was not to affect prior lawful use of a building if the use existed before the ordinance became effective in 1963. Thus, the nonconforming use with respect to the sale of food, beer and wine at the Belmont Street premises was unaffected by the zoning ordinance.

When the Vessios, through the Dolan corporation, applied for the transfer of its liquor license to Belmont Street, they agreed to make certain changes if the transfer was allowed. After the transfer was approved, the Vessios proceeded to carry out these changes. They partitioned the market with an area of fifteen feet by twenty-five feet at the front of the store set off for the sale of all alcoholic beverages. The market and the liquor store had separate entrances. There was a door leading from one store to the other but only employees could use it. George Vessio was the only employee who worked in both stores. Since no permit was obtained from the board of appeals for the construction of the partition or for the use of...