Law Offices of John P. Connell, P.C.: On April 9, 2013, the Alcoholic Beverages Control Commission (“ABCC”) issued a decision for an unusual case in the matter of Karen A. McGovern d/b/a Puffin’s Restaurant (“Puffin’s”) in which the Law Offices of John P. Connell, P.C. represented Puffin’s in an appeal against the Town of Millbury Board of Selectmen (“Board”). The ABCC disapproved the decision of the Board to revoke Puffin’s All Alcoholic Beverages Restaurant License issued pursuant to M.G.L. Ch. 138, § 12.
To view the ABCC’s decision click here.
On November 28, 2012, the Board informed Puffin’s that it had unanimously voted to revoke Puffin’s license at a hearing held on November 27, 2012. As the basis for this revocation, the Board stated “underutilization” of the license in violation of M.G.L. Ch. 138, § 77.
Under M.G.L. Ch. 138, § 77, a local board may revoke a license “after hearing or a reasonable opportunity therefor … if the licensee ceases to conduct the licensed business.” Puffin’s, however, never “ceased” to conduct its restaurant; rather, Puffin’s reduced the number of hours it operated its restaurant. The Board argued that Puffin’s reduction of its business’s hours of operation could be equated to Puffin’s failure to operate its business for the hours stated on its license, thus showing Puffin’s “ceased” to operate its business within the meaning of M.G.L. Ch. 138, § 77. Yet the ABCC stated, “there was no evidence in [the] case before the [ABCC] demonstrating that the licensee was not using the license at all.”
In addition, the ABCC addressed the constitutionality of the notice provided to Puffin’s by the Board. In this case, the Board had held a hearing regarding the possibility of Puffin’s license being revoked, but the Board failed to provide written notice to Puffin’s that said meeting could result in the revocation of Puffin’s license. Instead, the Board merely informed Puffin’s that it could decide not to renew Puffin’s license should another applicant show greater need for it. Procedural Due Process requires both notice and a hearing: a licensee should be given “adequate notice setting forth the charge which forms the basis” of the local board’s decision and notification of the “time or place of a hearing” to ensure a licensee has an opportunity to defend the claim. Konstantopoulos v. Whately, 384 Mass. 123, 135, 137 (1981). Indeed, the ABCC found that, “[i]n this case from Millbury, the Local Board did not provide the constitutionally required notice of hearing informing the Licensee that she risked the termination of her license by the Local Board.”
The ABCC remanded the matter to the Board with the direction to reinstate Puffin’s license.
CONTRIBUTED BY COURTNEY MCGEE
© Law Offices of John P. Connell, P.C., 2013.