Piona v. Alcoholic Beverages Control Commission

• Decision Date: 17 December 1954
• Citation: Piona v. Alcoholic Beverages Control Commission, 123 N.E.2d 390, 332 Mass. 53 (Mass. 1954)
• Parties: Mario PIONA v. ALCOHOLIC BEVERAGES CONTROL COMMISSION. Mario PIONA v. BOARD OF SELECTMEN OF TOWN OF CANTON.
• Court: Supreme Judicial Court of Massachusetts

Page 390

123 N.E.2d 390

332 Mass. 53

Mario PIONA v. ALCOHOLIC BEVERAGES CONTROL COMMISSION.

Mario PIONA v. BOARD OF SELECTMEN OF TOWN OF CANTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 4, 1954.

Decided Dec. 17, 1954.

Maurice Caro, Boston, Samuel L. Jacobs, Boston, for petitioner.

Harris A. Reynolds, Asst. Atty. Gen., for the Alcoholic Beverages Control Commission.

Eugene Galligan, Town Counsel, for Selectmen of Canton.

Before QUA, C. J., and LUMMUS, WILKINS, WILLIAMS and COUNIHAN, JJ. WILLIAMS, Justice.

The petitioner is the owner and operator of a restaurant at 521 Washington Street in the town of Canton. On January 13, 1953, he applied to the selectmen of the town, who were the local licensing authorities, G.L. (Ter.Ed.) c. 138, § 1, as appearing in St.1933, c. 376, § 2, for an all alcoholic liquor license for the sale of liquors at his restaurant during the year 1953, section 12, as appearing in St.1935, c. 468, § 1, as amended. The license was granted, after hearing, on January 28, subject to the approval of the alcoholic beverages control commission, section 15, as appearing in St. 1933, Ex.Sess., c. 376, § 2, as amended, and was approved by that commission on February 13. No notice of the hearing before the selectmen was given to the Evangelical Congregational Church whose church building was located within 500 feet of the restaurant. A protest against the granting of the license made at the hearing by a deacon of that church, after the license had been voted, was ruled by the board to have been received too late. On March 4 a further complaint in writing was sent to the selectmen by the pastor of the church and on April 1 the board, whose personnel had changed since the granting of the license, voted to cancel the license. No notice was given to the petitioner of any hearing by the board on the cancellation of the license. An appeal to the commission by the petitioner from the action of the board was, after hearing, denied by the commission on August 12.

The petitioner in one case seeks a writ of certiorari against the individual members of the commission to the end that their action in denying the petitioner's appeal from the cancellation of the license be quashed. In the other case he seeks a writ of mandamus against the members of the board of selectmen to obtain the restoration of the cancelled license. The cases were tried together before a judge of the Superior Court on a statement of agreed facts and the return of the commission as extended. They are before us on the respective appeals of the commission and the board from orders that a writ of certiorari issue to quash the action of the commission in denying the petitioner's appeal and that a writ of mandamus issue commanding the board to restore the cancelled license.

The procedure to be followed in granting and cancelling liquor licenses is set forth in G.L. (Ter.Ed.) c. 138, § 15A, as appearing in St.1939, c. 414, as amended by St.1943, c. 542, § 5. Therein it is stated that within 10 days after receipt of an application for a license 'the local licensing authorities shall cause a notice thereof to be published [in a local newspaper] at the expense of the applicant. * * * If any citizen of the city or town within which any such license is issued makes complaint in writing to the commission that such license was granted without such previous publication, and after due hearing it appears that such publication was not made as aforesaid, the commission shall cancel the license and give notice of such cancellation to the authorities issuing the license.' The section further provides that within 3 days after the publication the applicant or someone in his behalf shall 'cause a copy of the published notice to be sent by registered mail to' owners of abutting property and to certain described schools, churches, and hospitals located within 500 feet of the premises where the proposed license is to be exercised. 'If any abutter or the authorities in charge of any such school, church or hospital shall make complaint in writing to the local licensing authorities that such license was granted or transferred hereunder without such notice having been mailed to him or them as required hereby, and after due hearing it appears that such notice was not mailed as aforesaid, the local licensing authorities may cancel the license. Any person who has filed a complaint with the local licensing authorities under this section who is aggrieved by the action of such authorities in refusing to cancel a...