LaPointe v. License Bd. of Worcester

• Decision Date: 14 June 1983
• Citation: 389 Mass. 454,451 N.E.2d 112
• Parties: Adrien J. LaPOINTE v. LICENSE BOARD OF WORCESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 112

451 N.E.2d 112

389 Mass. 454

Adrien J. LaPOINTE v. LICENSE BOARD OF WORCESTER.

Supreme Judicial Court of Massachusetts,

Worcester.

Argued Feb. 8, 1983.

Decided June 14, 1983.

Thomas J. Donahue, Jr., Worcester (Shirley A. Doyle, Worcester, with him), for plaintiff.

William F. Scannell, Jr., Asst. City Sol. (Robert J. Hennigan, Jr., Worcester, with him), for defendant.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.

LIACOS, Justice.

The plaintiff, Adrien J. LaPointe, commenced this action in the Superior Court pursuant to G.L. c. 249, § 4, seeking judicial review of the decision of the License Board of Worcester (board) to revoke his license to deal in junk, old metals, and secondhand articles. G.L. c. 140, § 54. He also sought a declaration of rights declaring G.L. c. 140, § 54, and c. 12 of the Revised Ordinances of the City of Worcester (1974) (Revised Ordinances) unconstitutional for vagueness. He also sought to overturn the decision of the board because of its failure to provide him procedural due process. After a hearing, a judge of the Superior Court affirmed the board's action and found the challenged statute and ordinance to be valid as permissible exercises of the police power. LaPointe filed a timely notice of appeal. We transferred the case to this court on our own motion, and now affirm.

On February 9, 1981, LaPointe, who was a licensed dealer in junk, old metals, and secondhand articles, received a letter from the board stating that a hearing would be held before them on February 19, 1981, pertaining to his license. The letter did not indicate the reason for the hearing. LaPointe was informed at the hearing that the subject of the inquiry was the purchase by his wife, Luan LaPointe, of certain rings which were alleged to have been stolen by one Kevin Johnson. A statement which Johnson made to the police concerning the purchase was also read. The police previously had taken the matter up with LaPointe shortly after the purchase in November, 1980.

LaPointe sought a continuance of the hearing. The board granted him a continuance of one week, to February 26, 1981. LaPointe objected, stating that he could not attend on that date due to his prior plan to attend a coin show in Washington, D.C. He asked for a continuance of two weeks. The board refused to extend further the date for hearing. On February 26, 1981, LaPointe's wife, Luan, appeared at the hearing with counsel. Evidence was presented by an officer of the Worcester police department who read a statement by Johnson concerning the sale of stolen rings by Johnson to LaPointe's wife. In that statement Johnson stated that he sold certain stolen rings to Luan LaPointe on November 18, 1980. Luan LaPointe testified that Johnson wanted to sell her six or seven rings, but that she only bought three of them. She denied knowledge that the rings were stolen. She testified that her records indicated that Johnson also had sold her "scrap gold" on October 2, 1980.

On March 3, 1981, the board notified LaPointe of the revocation of his license based on two grounds: (1) failing to keep proper and complete records, and (2) purchasing stolen merchandise which, with reasonably proper investigation, could have been determined to be stolen. ¹

LaPointe then filed this action in the Superior Court. A hearing was held on May 20, 1982. Testimony indicated that LaPointe's wife had purchased certain articles of jewelry from Kevin Johnson and had failed to describe adequately the articles as required by c. 12 of the Revised Ordinances. The judge made findings of fact, affirmed the board's action, and held the challenged statute and ordinance to be constitutional. ²

We consider LaPointe's claims of error. LaPointe argues that c. 12 of the Revised Ordinances violates G.L. c. 214, § 1B, as well as the Fourth and Fifth Amendments to the United States Constitution. These issues were never raised below. As a consequence, they are not properly before us. International Fidelity Ins. Co. v. Wilson, 387 Mass. 841, 851, 443 N.E.2d 1308 (1983).

LaPointe presents several arguments to the effect that he was denied due process of law. At the outset, he argues that he received insufficient notice of the proceedings. ³ Additionally, he claims that the board should have granted him a continuance of two weeks, and that the board should have provided him with any statements or documents which were to be used against him at the hearing. We reject both claims. ⁴

Due process requires that, in any proceeding to be accorded finality, notice must be given that is reasonably calculated to apprise an interested party of the proceeding and to afford him an opportunity to present his case. Konstantopoulos v. Whately, 384 Mass. 123, ---- - ----, 424 N.E.2d 210 (1981) 1669, 1679-1680. The letter of February 9, 1981, may have been constitutionally deficient since it gave no notice of grounds on which the board intended to proceed. That deficiency, however, was cured at the first meeting with the board on February 19 when LaPointe, with his counsel present, received precise notice of the subject matter of the proceedings. At that time, the board provided LaPointe with an adequate notice and adequate time in which to prepare for the hearing. It was under no constitutional obligation to hold the hearing on a date which would not conflict with LaPointe's personal schedule. ⁵ Nor was the board required to turn over the statements and documents which were to be introduced at the hearing. Due process requires notice of the grounds on which the board might act rather than the evidentiary support for those grounds. Cf. United States v. Agurs, 427 U.S. 97, 112 n. 20, 96 S.Ct. 2392, 2401 n. 20, 49 L.Ed.2d 342 (1976); Foster from Gloucester, Inc. v. City Council of Gloucester, 10 Mass.App.Ct. 284, 289-290, 293, 407 N.E.2d 363 (1980). It also appears that Johnson's statement was brought to the attention of LaPointe and his counsel at the initial hearing. LaPointe received what process was due.

Next, LaPointe argues that the chairman of the board exhibited bias and improperly acted as a prosecutor by directing questions at Luan LaPointe. A transcript of the hearing reveals that the chairman of the board did question Luan LaPointe and expressed skepticism concerning several of her answers. These actions by the chairman did not deprive LaPointe of a fair hearing.

There is every presumption in favor of the honesty and sufficiency of the motives actuating public officers in actions ostensibly taken for the general welfare. Foster from Gloucester, Inc. v. City Council of Gloucester, supra at 293-294, 407 N.E.2d 363. The questioning of a witness by one member of the board and a statement of his views concerning the evidence does not constitute a denial of procedural due process. Even in a trial before a jury, a judge may question a witness. Commonwealth v. Fiore, 364 Mass. 819, 827, 308 N.E.2d 902 (1974). Proposed Mass.R.Evid. 614(b). Such questions may be particularly appropriate in an administrative hearing because they afford a party an opportunity to respond to the concerns of the decision maker. Further, LaPointe was permitted to cross-examine witnesses, conduct direct examination of his own witnesses, and argue the merits of his case to the board.

LaPointe also argues that the decision of the board rested on inadmissible hearsay. The mere admission of hearsay before an administrative board is not a denial of procedural due process. See Moran v. School Comm. of Littleton, 317 Mass. 591, 595-598, 59 N.E.2d 279 (1945); Boylston-Washington, Inc. v. Alcoholic Beverages Control Comm'n, 8 Mass.App.Ct. 396, 400, 394 N.E.2d 996 (1979). Cf. G.L. c. 30A, § 11(2). There was substantial evidence even apart from the hearsay statements of Johnson to support the board's decision. The fact that LaPointe failed to compile adequate records is undisputed. The listing of the rings as "scrap gold" clearly did not meet the explicit requirements of c. 12 of the Revised Ordinances. Luan LaPointe also testified that Johnson arrived with seven rings and that he previously had sold certain gold items to her. The circumstances of the sale were sufficient to support the board's finding that she purchased stolen merchandise which, with reasonably proper investigation, could have been determined to be stolen.

LaPointe next argues that the judge erred by excluding evidence that the board stayed any action concerning the revocation of two other licenses pending the resolution of criminal complaints lodged against those licensees. LaPointe contends that this evidence demonstrated that he was singled out for inequitable treatment. We disagree.

First, at the time of the hearing before the board, no criminal complaints had been lodged against either LaPointe or his wife. Thus, the board had little reason to stay its proceedings. Second, LaPointe's assumption that the board would have been bound by the outcome of the criminal complaints is erroneous. See Commissioners of Civil Serv. v. Municipal Court of the Brighton Dist., 369 Mass. 166, 173-174, 338 N.E.2d 829 (1975), cert. denied sub nom. Patuto v. Commissioners of Civil Serv. of Mass., 429 U.S. 845, 97 S.Ct. 125, 50 L.Ed.2d 116 (1976); Commissioners of Civil Serv. v. Municipal Court of the City of Boston, 359 Mass. 211, 213 n. 1, 268 N.E.2d 346 (1971). Third, one of the complaints appears to have been placed on file. Such a disposition is not the equivalent of a finding of not guilty. Accord Commonwealth v. Bianco, 388 Mass. 358, 364-365, 446 N.E.2d 1041 (1983). There was no error.

LaPointe's last claim is that G.L. c. 140, § 54, which authorizes cities and towns to promulgate ordinances for the licensing and regulation of junk dealers, is vague and overbroad. He argues that it impermissibly delegates to the board, without any standards, absolute discretion over the licensing and regulation of junk dealers. We limit our discussion to whether ...