Yerardi's Moody Street Restaurant & Lounge, Inc. v. Board of Selectmen of Town of Randolph

• Decision Date: 03 May 1989
• Docket Number: No. 88-2242,88-2242
• Citation: 878 F.2d 16
• Parties: YERARDI'S MOODY STREET RESTAURANT & LOUNGE, INC., Plaintiff, Appellee, v. BOARD OF SELECTMEN OF the TOWN OF RANDOLPH, Defendant, Appellee. Appeal of Joseph J. SEMENSI, Paul J. Connors and Maureen A. Dunn, Defendants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 16

878 F.2d 16

YERARDI'S MOODY STREET RESTAURANT & LOUNGE, INC., Plaintiff, Appellee, v. BOARD OF SELECTMEN OF the TOWN OF RANDOLPH, Defendant, Appellee.

Appeal of Joseph J. SEMENSI, Paul J. Connors and Maureen A.

Dunn, Defendants.

No. 88-2242.

United States Court of Appeals, First Circuit.

Heard May 3, 1989.

Decided June 22, 1989.

John Foskett with whom Paul R. DeRensis and Deutsch Williams Brooks DeRensis Holland & Drachman, P.C., Boston, Mass., were on brief, for appellants.

Susan A. Jackson with whom Michael W. Reilly and Pichette, Reilly & Jackson, Boston, Mass., were on brief, for plaintiff, appellee.

Before BOWNES and BREYER, Circuit Judges, and GRAY, ^* Senior District Judge.

BOWNES, Circuit Judge.

This civil rights case is before us on interlocutory appeal from the district court's denial of the individual defendants' motion for summary judgment on the issue of qualified immunity. The case arises out of actions by defendants--the Board of Selectmen of the Town of Randolph and three board members, Joseph Semensi, Paul Connors and Maureen Dunn ¹--with respect to liquor licensing decisions involving plaintiff, Yerardi's Moody Street Restaurant & Lounge, Inc. (Yerardi's). For the reasons set forth below, we find the individual defendants are entitled to qualified immunity and reverse the district court's ruling.

FACTS

Before reciting the facts that bear on this particular case, we describe the framework within which local liquor licensing boards must work. Under Massachusetts the hours of a licensee during the periods from 8 A.M. to 11 A.M. and from 11 P.M. to the statutorily mandated closing time (2 A.M. as to restaurants) are a matter solely of local control, subject only to judicial review of a local authority's failure to give a proper hearing. The local authorities may decrease hours when there is a "public need for such decrease." G.L. c. 138, Sec. 12. We discern a legislative intention to permit unreviewable policy considerations to govern the availability of "extra" hours of licensees.

                law, the Board of Selectmen of the town is the "Local licensing authorit[y]" for alcoholic liquors when no special licensing board has been created.  Mass.Gen.L. ch. 138, Sec. 1.  The local licensing authority has the power, within certain limits, to set the hours for the sale of alcoholic beverages by taverns and restaurants.  Mass.Gen.L. ch. 138, Sec. 12, para. 6.  Under that provision, the hours for the sale of alcoholic beverages may be set "either generally or specifically for each licensee."    Id.  But, sales must be allowed between the hours of 11 a.m. and 11 p.m. and cannot be allowed, in restaurants, from 2 a.m. to 8 a.m.  Id.  As to a local licensing authority's decision with respect to the remaining hours, the Massachusetts Supreme Judicial Court has stated that
                

Casa Loma, Inc. v. Alcoholic Beverages Control Comm'n, 377 Mass. 231, 385 N.E.2d 976, 978 (1979); see also Yerardi's Moody St. Restaurant & Lounge, Inc. v. Board of Selectmen of Randolph, 19 Mass.App. 296, 473 N.E.2d 1154, 1156-57 (Yerardi's I ), further review denied, 394 Mass. 1103, 477 N.E.2d 595 (1985).

Before considering the facts, we stake out the scope of our factual review. We recently stated that

we have jurisdiction to review a district court's denial of qualified immunity on grounds that a genuine issue of material fact exists as to the factual predicate of a qualified immunity claim. In such a review, we must examine the discovered facts regarding defendants' conduct relevant to the immunity claim and, applying normal summary judgment principles, determine whether a genuine issue does or does not exist concerning qualified immunity.

Unwin v. Campbell, 863 F.2d 124, 132 (1st Cir.1988); see also Rodriguez v. Comas, 875 F.2d 979, 981 (1st Cir.1989) (we "review[ ] the entire record developed on summary judgment.") (footnote omitted). Under normal summary judgment principles,

[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); see also Shinberg v. Bruk, 875 F.2d 973, 974 (1st Cir.1989) ("we are mindful of our duty to review the record in the light most favorable to the party opposing the motion for summary judgment."); Raskiewicz v. Town of New Boston, 754 F.2d 38, 44 (1st Cir.), cert. denied, 474 U.S. 845, 106 S.Ct. 135, 88 L.Ed.2d 111 (1985).

The Board of Selectmen of the Town of Randolph (Board) is the local licensing authority for Randolph. In 1980, Yerardi's purchased an establishment known as Capuchino's, which held a 2 a.m. liquor license. At about the same time, defendants Dunn and Connors were involved in altercations in the restaurant's parking lot. ² In August of 1980, Yerardi's requested a transfer of the 2 a.m. liquor license from Capuchino's to itself. The Board held a hearing but decided to defer a decision pending further investigation. Two weeks later, the hearing was continued. At the end of that hearing, Connors moved that the license be transferred, but with a 1 a.m. closing time. Sullivan seconded the motion A year later, in August of 1981, Yerardi's requested an extension of its closing time to 2 a.m. Yerardi's presented evidence that: (1) other establishments in the vicinity had 2 a.m. licenses; (2) it was suffering financial hardship by having to close earlier; and (3) there had been relatively few incidents requiring police intervention since the transfer of the license. The request was denied by a vote of 3-2, with the defendants casting the three votes against extension. Yerardi's requested a statement of reasons for the denial; the Board declined to give one after its attorney stated that it was not required to do so under Mass.Gen.L. ch. 138, Sec. 23.

                which passed by a vote of 2-1. 3   Defendant Dunn cast the dissenting vote;  earlier in the hearing she had moved that the Board delay a decision until further investigation was completed
                

On April 12, 1982, Yerardi's again requested an extension of its closing time. At this hearing, Yerardi's presented evidence that: (1) it ran the business in a responsible manner; (2) the other establishments in the vicinity had 2 a.m. licenses; and (3) the Chief of Police, Safety Officer and Building Inspector were not opposed to the extension. The extension was denied by a vote of 3-2, with the defendants casting the three votes against extension. The Board did not state the reasons for its action.

A month later, Yerardi's filed suit in Massachusetts Superior Court seeking review of the Board's decision denying extension. An affidavit by defendants stated some but not all of the reasons for their action. ⁴ The superior court granted the Board's motion for summary judgment on the basis that its decision was not arbitrary or capricious. The Massachusetts Appeals Court reversed. The court decided that

the board ought to reconsider Yerardi's application. By no means are we saying that the board should find for Yerardi. It may well be, for example, that a combination of "unreviewable policy considerations" with reasons that the board members did not disclose will amply justify their negative decision. The question is open on remand.

Yerardi's I, 473 N.E.2d at 1158.

After remand but prior to the Board's decision, Yerardi's filed the present action in federal district court pursuant to 42 U.S.C. Secs. 1983, 1985. Yerardi's complaint contained four counts. Count I alleged a violation of plaintiff's right to due process. Count II alleged a violation of plaintiff's right to equal protection. Count III alleged a conspiracy to deprive plaintiff of its rights under state and federal law. Count IV alleged a conspiracy to single out plaintiff for unequal and discriminatory treatment.

On remand from the state appellate court, the Board held a hearing on May 6, 1985 but decided to postpone its decision for a month. On June 3, 1985, the Board voted 3-2 to extend Yerardi's license to 2 a.m.; the dissenting votes were cast by Connors and Dunn. At some time in 1985 prior to this vote, defendant Semensi was involved in an incident in which he was forced to relinquish a bottle of liquor he attempted to bring into Yerardi's.

In April 1986, the Board held a hearing to consider the transfer of all licenses held by Yerardi's, not just its liquor license, to Lombardo's, another establishment in the same vicinity. It was proposed that the licenses be transferred without cutting back the closing time to 1 a.m. Lombardo's stated that the premises would remain closed until it found a lessee, at which point a transfer of the licenses to the lessee would be sought. The Board expressed concern about the effect of the pending federal litigation on the transfer to Lombardo's. Mr. Yerardi, who is an attorney, stated that the suit "has nothing to do with this license," but rather, the "litigation has to do with past practice by the Board." Two weeks later, the Board unanimously The district court dismissed all of plaintiff's claims except for its Sec. 1983 claim of a violation of its right to equal protection. Discovery proceeded and produced evidence concerning other Board actions with respect to liquor licenses. Before discussing this evidence, we must first decide the issue of what time frame is appropriate for the comparison of other Board actions to the actions taken in plaintiff's case. The district court did not address this issue. Both sides agree that the relevant period begins in 1980 when the transfer to Yerardi's was approved. The period ends, we believe, when Yerardi's received the relief it sought--a 2 a.m. license in 1985--because thereafter it was no longer being treated...