Miami Grove v. Licensing Bd. for City of Boston
| Decision Date | 28 October 1942 |
| Parties | MIAMI GROVE INC. v. LICENSING BOARD FOR THE CITY OF BOSTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
October 9, 1942.
Present: FIELD, C.
J., LUMMUS, QUA DOLAN, & COX, JJ.
License. Common Victualler.
Certiorari. Waiver.
The licensing board of a city, in determining what course of action it should pursue respecting a common victualler's license in view of its findings that lack of proper supervision of the licensed premises and of the conduct of the licensee's business was continuous to the time of hearings by the board and that the licensee was "still conducting" the business in an improper manner, properly considered occurrences on the premises over six months before the issuing of the license and the fact that the licensee previously had been warned officially of misconduct and lack of supervision there.
A licensed common victualler who, after receiving notice from the licensing board to appear before it in the matter of violation of the drug laws on the premises which occurred before the issuance of the license, participated fully in several hearings before the board respecting that matter and also the matter of improper conduct of the business through lack of proper supervision during the term of the license without making any objection as to the conduct of the hearing, waived the absence in the notice of specification of the later improper conduct.
A contention, that the return and an extension of the return of a board in certiorari proceedings did not contain any specific facts to support its conclusions, was untenable, the board's findings of fact as shown by the return and by the extension of the return not being subject to review or revision, and no error of law therein being disclosed.
PETITION, filed in the Superior Court on April 13, 1942, for a writ of certiorari.
The case was heard by Collins, J. N. H. Kolodny, for the petitioner.
G. R. Farnum, for the respondents.
This is a petition for a writ of certiorari brought against the licensing board of the city of Boston to quash the revocation by the respondent members of said board of a license issued by them to the petitioner to carry on business as a common victualler on certain premises in Boston. The petition was filed in the Superior Court and, after hearing, the judge entered an order in effect dismissing the petition.
The relevant facts disclosed by the respondents' return as later extended may be summarized as follows. On December 15, 1941, the license in question was issued for the year 1942 to the petitioner by the respondents, hereinafter referred to as the board, to be exercised on premises located at 388, 388A Tremont Street and 156 Castle Street, in Boston. On March 3 1942, a written complaint or report was made to the board by police authorities, "charging violations of the drug law by sales on the . . . [premises involved] of Marihuana cigarettes between the dates of April 29 and June 4, 1941 four sales by . . . [an] assistant manager in charge, and seven other sales by . . .
[one] in charge of the orchestra." This complaint alleged that these employees of the petitioner "pleaded guilty to said charges before the Federal Court on January 6, 1942, and that jail sentences were thereupon imposed." The complaint also alleged that these employees were indicted by a Suffolk County grand jury for conspiracy on the licensed premises to obstruct justice by intimidating witnesses in a vice case, and that they were found guilty by a jury on October 6, 1941, and sentenced to the house of correction. These facts were unknown to the board when it issued the license in question to the petitioner.
On March 4, 1942, the board notified the petitioner in writing to appear before it at 11 A.M. on March 12, 1942, in the matter of "Police Report for Violation of the Drug Law -- Sales of marihuana cigarettes by employees on licensed premises." The hearing was held at the time fixed. The petitioner was represented by counsel, and was afforded a full and complete hearing, with the right to cross-examine the witnesses who appeared in support of the complaint and to examine such witnesses as it desired to produce. At the conclusion of the hearing the board took the matter under consideration. On March 13 the petitioner's manager of record appeared before the board and requested to be heard. His request was granted and he was fully heard. He availed himself of the opportunity "of testifying to any aspect of the matter and to the conduct of the business and the supervision of the premises." On March 16 the board, "being satisfied that the matters charged in the complaint had been established by satisfactory proof and that the petitioner had conducted and was conducting its business in an improper manner, unanimously voted that its said Common Victualer License be revoked as of March 25, 1942," and notified the petitioner in writing of its action under date of March 16, 1942.
On March 18, 1942 the board granted the petitioner's request for further hearing to enable it to present further evidence and to afford its counsel an opportunity to be further heard. After hearing, the board again took the matter under consideration. On March 20 the board voted to reopen the case and to grant a rehearing thereof on March 23, 1942, at a fixed time. A hearing was had at the time fixed, and opportunity was afforded the petitioner to examine fully and cross-examine the witnesses who testified in support of the complaint "and the character of the management and the conduct and supervision of the business." No objection or complaint was made by the petitioner during the hearing concerning the manner in which it was conducted "in any particular whatsoever." On March 24 the board voted to extend the date upon which the revocation of the license was to become effective to March 30, 1942. On March 30, the board, being satisfied that the matters charged in the complaint had been established by satisfactory proof and that the...
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