Vaspourakan, Ltd. v. Alcoholic Beverages Control Com'n

• Decision Date: 21 December 1987
• Citation: 401 Mass. 347,516 N.E.2d 1153
• Parties: VASPOURAKAN, LTD. v. ALCOHOLIC BEVERAGES CONTROL COMMISSION et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1153

516 N.E.2d 1153

401 Mass. 347

VASPOURAKAN, LTD. v. ALCOHOLIC BEVERAGES CONTROL COMMISSION et al.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 10, 1987.

Decided Dec. 21, 1987.

David Berman Lynn, for plaintiff.

Charles E. Walker, Jr., Asst. Atty. Gen., for Alcoholic Beverage Control Com'n.

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

ABRAMS, Justice.

This is an appeal from a Superior Court judgment affirming a decision of the Alcoholic Beverages Control Commission (commission) in which the commission affirmed a decision of the Boston Licensing Board (board) revoking the liquor license of the plaintiff, Vaspourakan, Ltd., doing business as "Cache" (licensee). The commission concluded that the licensee "made distinctions and discriminated on account of race, relative to the admission of persons to [its] licensed premises" in violation of G.L. c. 272, § 98, and rule 14 ¹ of the board's rules and regulations.

The licensee commenced an action in the Superior Court for judicial review of the commission's action pursuant to G.L. c. 30A, § 14. A Superior Court judge denied the licensee's application for a preliminary injunction staying the enforcement of the commission's decision. ² The licensee moved for summary judgment. The licensee's motion for summary judgment was denied and summary judgment was entered for the commission pursuant to Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). The Superior Court judge entered a memorandum of decision in which he concluded that the commission's findings and decision were "supported by substantial evidence, and that the evidence before the Commission supported its adoption of the Board's findings" He also determined "that the findings support the legal conclusion that the [licensee] engaged in discriminatory practices and that ... the Commission was within its discretion in affirming the sanction imposed." The licensee appealed, arguing that (1) the commission's decision is not supported by substantial evidence; (2) the commission failed to make a required finding of intent to discriminate; (3) the notice of the charges brought was deficient; (4) the commission improperly adopted the findings and determinations of the board without deciding all issues of law and fact de novo; and (5) the sanction imposed--revocation of the liquor license-- is grossly disproportionate to sanctions imposed in similar cases. We transferred the case to this court on our own motion. We affirm the judgment of the Superior Court.

We summarize the evidence. In 1983, the licensee operated a nightclub located at 1192-1198 Commonwealth Avenue in Allston. As a result of complaints of "selective discrimination" against blacks in its admissions policies, fifteen members of the "Community Disorders Unit" of the Boston police department conducted a series of investigations at the licensee's place of business at various times over the period between April 17 and May 2, 1983.

On several occasions during this investigation, plainclothes officers and detectives approached, entered, or attempted to enter the licensee's premises. On one of the nights of the investigation, three officers, two black males and one white female, were denied entry when they failed to produce a second form of photographic identification in addition to their valid Massachusetts driver's licenses. While they were detained at the door, the officers observed several white patrons enter without having to produce any identification. On another occasion, three plainclothes officers, all white, entered the licensee's premises without being detained or asked for any form of identification. One of those officers said that "the only people who were turned away on that evening were black people."

On each of the nights of the investigation, the police observed between 100 and 250 patrons enter the licensee's establishment. On four of these nights the police interviewed black individuals who were denied admission as to the reasons given to them for their exclusion. The reasons reported included improper attire, failure to produce two forms of identification, and lack of a "VIP" card issued by the licensee. However, the officers witnessed white patrons enter the premises on the same evenings who were dressed more casually than the blacks turned away, and who were not required to present any form of identification.

On Sunday night, April 17, 1983, one Charles Griffin, a forty-three year old black man from Cambridge, attempted to enter the licensee's premises. The licensee's doorman informed him that "he would not be allowed to get in because he did not have a VIP card." Griffin asked how he might obtain such a card. The doorman responded that the club was closing in six months, and that a card therefore would serve no useful purpose to Griffin. An employee of the licensee conceded at the board hearing that Griffin did not look underage. Two weeks later, Lester Hayes, another black man, was denied admission to the licensee's premises for lack of a "VIP" card. The doorman referred Hayes to Sarkis Kavlakian, the owner, who told Hayes, "Come back Wednesday to get your V.I.P. card." Kavlakian admitted at the board hearing that he tells patrons to come back on Wednesday to get a VIP card if he wants to get rid of them. There is no one at the club during the day on Wednesdays to issue VIP cards.

Shortly after the police investigation, the Boston Licensing Board conducted hearings to determine whether the licensee did, in fact, discriminate against black persons in its admissions policy. After reviewing the testimony of twenty-two witnesses, six police reports, and other documentary evidence, the board rendered a "Decision and Statement of Reasons," including eighteen detailed subsidiary findings, wherein it voted to revoke the licensee's liquor license. The board expressly found "a deliberate pattern" of discrimination. The licensee appealed the board's decision to the commission pursuant to G.L. c. 138, § 67. After a hearing, the commission affirmed the action of the board. In its decision, the commission upheld the board's revocation of the plaintiff's license and incorporated by reference the board's statement of reasons.

1. Substantial evidence. The licensee argues that the decision of the commission must be reversed under G.L. c. 30A, § 14(7) (1986 ed.), because there is no evidence that the black individuals who were excluded were denied admission due to their race. The licensee argues that the record shows that all the alleged incidents of discrimination occurred on Sunday, the club's busiest night, that overcrowding was a problem at the club, and that the alleged incidents of discrimination constituted nothing more than the licensee's legitimate, race-neutral efforts to restrict entry to "preferred customers" who held "VIP" cards. We do not agree.

The evidence warrants the finding that the licensee on more than one occasion detained blacks at the door and forced them to produce more forms of identification than whites entering at the same time. The evidence also warrants the finding that the licensee excluded blacks allegedly because of their attire, even though they were dressed as well as, or better than, whites admitted at the same time. The commission considered evidence that the licensee at times admitted blacks to the licensee's premises and excluded whites. The commission concluded that the licensee limited the number of blacks it admitted, and excluded other blacks on the basis of race. ³ Based on the evidence, the commission could conclude that the licensee's proffered excuses were merely pretexts and that the licensee was discriminating against some persons because of race.

The licensee asserts that the evidence does not meet the substantial evidence standard. Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." G.L. c. 30A, § 1(6) (1986 ed.). New Boston Garden Corp. v. Board of Assessors of Boston, 383 Mass. 456, 466, 420 N.E.2d 298 (1981). Although we must consider the entire record and take into account whatever detracts from the weight of the evidence, Cohen v. Board of Registration in Pharmacy, 350 Mass. 246, 253, 214 N.E.2d 63 (1966), we do not make a de novo determination of the facts or draw different inferences from the facts found by the agency. Southern Worcester County Regional Vocational School Dist. v. Labor Relations Comm'n, 386 Mass. 414, 419-420, 436 N.E.2d 380 (1982). "A court may not displace an administrative board's choice between two fairly conflicting views, even though the court might justifiably have made a different choice had the matter been before it de novo." Id. See School Comm. of Wellesley v. Labor Relations Comm'n, 376 Mass. 112, 120, 379 N.E.2d 1077 (1978); Labor Relations Comm'n v. University Hosp., Inc., 359 Mass. 516, 521, 269 N.E.2d 682 (1971). See also Smith College v. Massachusetts Comm'n Against Discrimination, 376 Mass. 221, 224-225, 380 N.E.2d 121 (1978). Credibility of witnesses is for the agencies, see Southern Worcester County Regional Vocational School Dist. v. Labor Relations Comm'n, supra 386 Mass. at 420-421, 436 N.E.2d 380, and the agency has the benefit of observing the witnesses in judging credibility. See id.; Olde Towne Liquor Store, Inc. v. Alcoholic Beverages Control Comm'n, 372 Mass. 152, 154, 360 N.E.2d 1057 (1977). Further, the agency need not view each piece of evidence in isolation, but may consider all the evidence bearing on the licensee's conduct. The agency also is entitled to draw inferences from the evidence it finds credible. There was no error in concluding that there was substantial evidence of racial discrimination.

The licensee next suggests that because the anti-discrimination statute, G.L. c. 272, § 98, is a criminal statute, it is unclear what standard the commission was required to employ and that the commission did not clearly state what...