DECISION

This was an informational hearing to approve or disapprove the application of Trackside Restaurant of Oxford, Inc. for an original, annual, all alcoholic beverages general on premise license.

FACTS

An application signed by John Sneade was filed. John Sneade applied to be the manager of Trackside. The five-page application indicated that John Sneade would be the manager, president and treasurer and the owner of 50 shares of stock. Leslie Sneade would be the clerk and the owner of 50 shares of stock.

Pursuant to section 12 of Chapter 138 of the General Laws, the Commission reviewed the application and held an informational hearing to decide whether to approve this application. The Commission took administrative notice of the file of the applicant and the file of Margaret’s Restaurant, Inc., Oxford, MA. In a Commission decision dated October 18, 2005, the Commission found John Sneade committed substantial violations of M.G.L. Ch. 138 involving his undisclosed acquisition and operation of a license held by Margaret’s Restaurant, Inc. that had been owned by Robert Hokanson, Sr. In Re: Margaret’s Restaurant, Inc. dba Hokey’s, Oxford (ABCC Decision dated October 18, 2005).

Based on the information presented at the hearing, the Commission concludes that John Sneade is unfit to hold an interest in an alcoholic beverages license in Massachusetts due to his past adjudicated illegalities. For the reasons stated below, the Commission disapproves the application.

DISCUSSION

In reviewing the authority of the Commission, the Supreme Judicial Court has held that

[t]he powers of the States in dealing with the regulation of the sale of intoxicating liquors are very broad. What they may wholly prohibit, they may permit only on terms and conditions prescribed by the Legislature. Supreme Malt Products Co., Inc., v. Alcoholic Beverages Control Commission 334 Mass. ----, 133 N.E.2d 775; Ziffrin, Inc. v. Reeves, 308 U.S. 132, 138-139, 60 S.Ct. 163, 84 L.Ed. 128; Carter v. Virginia, 321 U.S. 131, 137-143, 64 S.Ct. 464, 88 L.Ed. 605. In dealing with a trade, which, because of its great potential evils, can be wholly prohibited, a wide power is given to the Legislature with respect to the delegation of discretionary powers. Particularly in view of the extent to which the policy of c. 138, and the basis for action under it, have been specified, as already indicated, there is no invalid delegation of authority to the commission in leaving to it, as was done in § 15, the power to approve or disapprove applicants for licenses. See Butler v. East Bridgewater, 330 Mass. 33, 36-37, 110 N.E.2d 922.

Connolly v. Alcoholic Beverages Control Commission, 334 Mass. 613, 619, 138 N.E.2d 131, 135-136 (1956).

The SJC further held that “[t]he legislative history of [the Commission’s enabling act], and of G.L.(Ter.Ed.) Ch. 138, as amended, clearly shows that the powers of the commission were not intended to be perfunctory or limited. In the very respect here in issue, the approval or disapproval of the action of local licensing authorities, that history [footnote omitted] indicates that the commission was charged with important responsibilities and that it was not to be narrowly restricted in performing them.” Connolly v. Alcoholic Beverages Control Commission, 334 Mass. 613, 617, 138 N.E.2d 131, 134 (1956).

The Appeals Court has discussed the statutory standard to grant a license and the factors that a licensing authority may properly consider in its decision whether to grant or deny a license application. In Ballarin Inc., v. Licensing Board of Boston, 49 Mass. App. Ct. 506, 730 N.E.2d 904 (2000), the Appeals Court held that

The statute authorizing the issuance of liquor licenses speaks in terms of serving "the public need and in such a manner as to protect the common good and, to that end, to provide, in the opinion of the licensing authorities, an adequate number of places at which the public may obtain, in the manner and for the kind of use indicated, the different sorts of beverages for the sale of which provision is made."

G.L. c. 138, § 23, as amended by St. 1965, c. 399.

Need, in the literal sense of requirement, is not what the statute is about. Rather, the test includes an assessment of public want and the appropriateness of a liquor license at a particular location. For example, one might hesitate to authorize a license for a bar across the street from a public school. Connolly v. Alcoholic Bevs. Control Commn., 334 Mass. 613, 617-618, 138 N.E.2d 131 (1956). Consideration of the number of existing dispensaries in a locality is a proper concern, Victoria, Inc. v. Alcoholic Bevs. Control Commn., 33 Mass. App. Ct. 507, 514, 602 N.E.2d 578 (1992), as are the views of the inhabitants of the locality in which a license is sought. Beacon Hill Civic Assn. v. Ristorante Toscano, Inc., 422 Mass. 318, 322 n.4, 662 N.E.2d 1015 (1996). In making its discretionary determination, a licensing authority may take into account a wide range of factors -- such as traffic, noise, size, the sort of operation that carries the license, and the reputation of the applicant. [emphasis added]. See Connolly v. Alcoholic Bevs. Control Commn., 334 Mass. at 617-618; Great Atlantic & Pac. Tea Co. v. Board of License Commrs. of Springfield, 387 Mass. 833, 837, 444 N.E.2d 364 (1983); Beacon Hill Civic Assn. v. Ristorante Toscano, Inc., 422 Mass. at 322 n. 4; Hub Nautical Supply Co. v. Alcoholic Bevs. Control Commn., 11 Mass. App. Ct. 770, 772-774, 419 N.E.2d 1065 (1981).

Ballarin Inc., v. Licensing Board of Boston, 49 Mass. App. Ct. 506, 510-512, 730 N.E.2d 904, 908-909 (2000).

At this hearing before the Commission, regarding his undisclosed acquisition and operation of the license held by Margaret’s Restaurant Inc., John Sneade testified that in 2001 he knew that taxes were owed to the Commonwealth and that the I.R.S. was holding him responsible for the taxes. Mr. Sneade also testified that he signed the checks and did the bookkeeping. He paid $84,700 to the Department of Revenue. He testified that he signed Robert Hokanson’s name on the corporate documents. Mr. Sneade’s testimony was not inconsistent with his testimony given before the Commission in July 2005 that resulted in the Commission decision of October 15, 2005 which revoked that license for various violations of chapter 138. In Re: Margaret’s Restaurant, Inc. dba Hokey’s, Oxford (ABCC Decision dated October 18, 2005).

In that decision, the Commission found that the only disclosed and approved individual, Robert F. Hokanson, Sr., had transferred all his benefical interest to John Sneade without local board and ABCC approval and revoked the license for this violation. The Commission then expressly warned that licensee and the Sneades that “any future applications will be reviewed pointedly given the conduct of the Sneades in this application.”

CONCLUSION

Based on the information presented at the hearing, the Commission concludes that John Sneade is unfit to hold an interest in an alcoholic beverages license in Massachusetts due to his past adjudicated illegalities. The Commission disapproves the application.

ALCOHOLIC BEVERAGES CONTROL COMMISSION

Suzanne Iannella, Commissioner __________________________________________

Eddie J. Jenkins, Chairman _______________________________________________

Dated at Boston, Massachusetts this 28th day of June 2006.

You have the right to appeal this decision to the Superior Court under the provisions of Chapter 30A of the Massachusetts General Laws within thirty days of receipt of this decision.