Shamrock Liquors, Inc. v. Alcoholic Beverages Control Commission
| Decision Date | 02 April 1979 |
| Citation | 7 Mass.App.Ct. 333,387 N.E.2d 204 |
| Parties | SHAMROCK LIQUORS, INC. v. ALCOHOLIC BEVERAGES CONTROL COMMISSION. |
| Court | Appeals Court of Massachusetts |
John D. Hodges, Jr., Everett, for plaintiff.
Thomas Miller, Asst. Atty. Gen., for defendant.
Before BROWN, GREANEY and KASS, JJ.
The Alcoholic Beverages Control Commission (commission) charged Shamrock Liquors, Inc. (Shamrock), with a violation, among other statutory provisions and regulations, of G.L. c. 138, § 23 (), the text of which, so far as material, we set out in the margin. 1 Shamrock appealed to the Superior Court under G.L. c. 30A, § 14, from an adverse finding of the commission and a consequent five day suspension of Shamrock's liquor license. The motion judge entered summary judgment in favor of the commission and we affirm.
As soon as the issue of a section 23 violation was raised at the adjudicatory proceeding, Robert Kutner, a lawyer representing Shamrock, announced that the "chapter 138, section 23 charge of illegality will be admitted." He then proceeded to enumerate other charges which Shamrock proposed to contest. As Mr. Kutner was telling the commission what Shamrock conceded and what it proposed to resist, another lawyer, Kevin Sullivan, interjected with a request for a five minute recess. Mr. Sullivan represented another defendant 2 and was apparently anxious that he and his colleague might be running up the white flag too soon on the section 23 charge. After a huddle 3 between the lawyers, Mr. Sullivan said, "Yes, we admit that there are sufficient facts to go ahead with section 23." Shortly before the end of the hearing before the commission, Mr. Sullivan said, "On this section 23 charge we admitted that there were sufficient facts."
In its statement of reasons, the commission found that "the licensee admitted to the facts needed to establish a violation of (c)hapter 138, (s)ection 23."
On appeal, Shamrock argues that the statements before the commission concerning a violation of G.L. c. 138, § 23, were perhaps admissions that there existed facts to warrant a finding adverse to Shamrock, but that the commission was bound to review the facts to see if they added up to an infraction under the statute. We disagree. Considered in terms of timing and context, the statements by Messrs. Kutner and Sullivan quoted above, amounted to a stipulation by Shamrock that it had violated G.L. c. 138, § 23. It is obvious the commission so regarded the statements and did not press with proof on an issue that counsel said was not contested. The situation is distinguishable from those cases where an admission by a party during the course of testimony at trial is not determinative of issues of law. Compare Gow v. Buckminster Hotel, Inc., 336 Mass. 606, 608, 146 N.E.2d 924 (1958); Wasserman v. Tonelli, 343 Mass. 253, 257, 178 N.E.2d 477 (1961). While it would have been desirable to secure from Shamrock an express stipulation of culpability on the section 23 violation, we recognize that administrative agencies frequently conduct their affairs with less formality than a court. Parsons v. Board of Zoning Appeals, 140 Conn. 290, 292, 99 A.2d 149 (1953). See F.C.C. v. Pottsville Broadcasting Co., 309 U.S. 134, 142-144, 60 S.Ct. 437, 84 L.Ed. 656 (1940). Parties cannot steer administrative agencies into error and complain of it on judicial review. Cf. Norway Cafe, Inc. v. Alcoholic Beverages Control Commn., --- Mass.App. ---, --- - --- A, 386 N.E.2d 32 (1979).
Shamrock's other contention is that G.L. c. 138, § 23, proscribes Sale of alcoholic beverages not obtained from a licensed wholesaler, importer, manufacturer or holder of a special permit and that the evidence supported only a finding that there was a transfer in a vehicle licensed to...
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