Liquor license holders in Massachusetts who have suffered disciplinary penalties by their local license board, such as the Boston Licensing Board or their local Board of Selectmen (i.e. a “Local Licensing Authority”), have the opportunity to appeal such decisions. Appeal may be warranted in cases where the license holder finds the penalty to be unfair. For example, if the penalty is an unduly long suspension or complete cancellation of an establishment’s liquor license. Additionally, appeals may be warranted if the Local Licensing Authority denies the application for a new liquor license outright. In either case, should the licensee or applicant want to have a second shot at the issue, he or she must appeal the Local Licensing Authority’s decisions to the Massachusetts Alcoholic Beverage Control Commission in Boston (the “ABCC”).
The most important thing to know about appealing to the ABCC is that such an appeal must be accomplished within five (5) days of the Local Licensing Board’s decision, and the notice of appeal must state all “materials facts” relative to the appeal. This five (5) days “statute of limitations” is very short and failure to timely file the appeal may bar any such appeal. A bare-bones notice of appeal, which does not attempt to state the “material facts” relevant to the appeal, may also bar the appeal for failure to comply with G.L. c. 138, sec. 67.
In cases where an applicant has been denied a new license, it is also important to note that the notice of appeal should be served on any property owners that abut the property where the license would have been placed. In general, notice of the appeal should also be served on the Local Licensing Authority and any other interested parties.
While an appeal at the ABCC is pending, the underlying decision of the Local Licensing Authority is not stayed, and hearings on the appeal are generally not scheduled for at least four or five weeks after the date of the appeal. Accordingly, if the Local Licensing Authority has imposed immediate discipline, the person seeking the appeal may need to seek a request to stay the imposition of the discipline directly from the Local Licensing Authority or, if that does not prove successful, in court.
Once a hearing is set on the appeal by the ABCC, the ABCC hears the appeal “de novo,” or as if it were the first time the issue had been heard, and it does not simply give the Local Licensing Board the benefit of the doubt. Parties on appeal may call witnesses, subpoena documents or witnesses, and present any evidence it deems necessary to prove its case, including such evidence as “hearsay” which is generally barred by the rules of evidence in Court.
In complicated cases involving the Alcoholic Liquors Act, it is customary to also submit legal briefs at the conclusion of the hearing or at time agreed to by all the parties. Such legal briefs, with citations to similar cases, are often helpful to the Board Members of the ABCC when they consider the evidence heard at the appeal hearing.
Although it seems unfair, one cannot appeal the Local Licensing Authority’s decision to “roll back” a licensee’s hours as a form of discipline. Local Licensing Authorities have taken note of this issue and, should it want to permanently curtail a troubled licensee’s business, all it need do is “roll back” a licensee’s closing hour to nine or ten o’clock at night, which will effectively shut down the business of any night club or other late night establishment
Hiring an attorney for the process may enhance likelihood of success at the appellate level since the attorney may ensure sufficient evidence is put forth to support the basis of the appeal.