Law Offices of John Connell, P.C.: The ABCC has released two recent decisions demonstrating that a licensee who has a suspended or revoked license must still renew the license in November of the same calendar year in order to pursue an appeal at the ABCC for that discipline during the succeeding year.
While it may seem counterintuitive to file an application to renew your liquor license after a Local Board has suspended or even revoked that license, these two ABCC decisions state that without reapplying for the license for the succeeding calendar year, despite the timely appeal from a revocation or suspension during the preceding year, the license is considered null and void, and thus the appeal is moot and will be dismissed for lack of jurisdiction.
In Re: Ramallah, Inc. D/B/A Yaz’s Place, ABCC Decision dated January 5, 2016, the licensee held an all alcoholic beverages licenses issued pursuant to G.L c. 138 §12. On July 28, 2015, the City of Quincy Licensing Authority held a hearing regarding an alleged license violation to have occurred on July 24, 2015. The Local Board found that a violation of M.G.L. c. 138 had occurred, and consequently revoked Yaz’s license by a decision date July 29, 2015.
The Licensee in this case timely appealed the Local Board’s decision to the ABCC and the matter carried into 2016 when there was a hearing before the ABCC scheduled for January 5, 2016. During the time in which the appeal was pending, however, the Licensee failed to file a renewal application for its license in November 2015. On December 31, 2015, therefore, the Local Board filed a Motion to Dismiss the Licensee’s Appeal based on the Licensee’s failure to renew the license. The Licensee admitted to not having filed an application to renew its license for the following calendar year, 2016. In dismissing the appeal, the ABCC held the following:
“If Yaz’s application for renewal had been filed in November 2015, the Licensee would have been in a position to call for determination by the Commission of the substantive issue regarding the revocation. Zelman, supra. But the Licensee admits that it never filed a renewal application for the license for the calendar year 2016. The 2015 license expired with the close of that year. See Zelman, supra. This fact renders the appeal before the Commission as moot, and the Commission is relieved of determining whether the revocation was an appropriate sanction.”
In Re: Remallah, ABCC Decision dated January 5, 2016.
In general M.G.L. c. 138 1 §16A provides licensees with the prima facia right to renew the license every November, subject to certain conditions. The holder of an annual retail license under Sections 12 or 15 who applies during the month of November for renewal shall be prima facia entitled thereto. However, any application may be rejected for cause and subject to appeal under section 67. A licensee whose application for renewal has denied by local licensing authorities, shall be deemed to have been granted such license only until the period for such appeal has expired or until the appeal has been dismissed entirely, in accordance with M.G.L. 138 §16A.
In the other recently released ABCC decision, In Re: Patrick’s Restaurant LLC D/B/A Patrick’s Harborview Restaurant, ABCC Decision dated January 19, 2016, the Licensee held an all alcoholic beverages license pursuant to M.G.L c. 138 §12. A hearing was held on September 14, 2015 with the Town of Marshfield Board of Selectmen, resulting in a unanimous vote to revoke Patrick’s license. The Local Board issued its written decision on September 16, 2015.
Again, the Licensee in this case timely appealed the Local Board’s decision to the ABCC and a hearing was scheduled on appeal for January 19, 2016. While the hearing was pending, however, the Licensee failed to file a renewal application in November 2015. Consequently, the license expired on December 31, 2015 as a result of having not been renewed. On January 13, 2015, the Local Board filed a Motion to Dismiss the Licensee’s Appeal based on failure to renew its license. The ABCC held the following:
“If Patrick’s application for renewal had been filed in November 2015, the Licensee would have been in a position to call for determination by the Commission of the substantive issue regarding the revocation. But the Licensee never filed the renewal application for the license for calendar year 2016. The 2015 license expired with the close of that year. This fact renders the appeal before the Commission as moot, and the Commission is relieved of determining whether the revocation was an appropriate sanction.
Even if the Commission were now to find (or had any time after November, 2015 found) in Licensee’s favor on the appeal, such a finding would not make the corporation a licensee for 2016 or put it in a position where it could by its act acquire prima facie rights for 2016.”
In Re: Patrick’s Restaurant, LLC, ABCC Decision dated January 19, 2016.
These two cases demonstrate that if a retail licensee fails to renew its license in November for a successive year, the license itself expires even if the Licensee has timely appealed a local municipality’s revocation or suspension of that license in the previous year, and the matter is pending appeal in the ABCC.
Additionally, in the past, the ABCC has held as a matter of policy that when it, itself, suspends a state license for a number of months, such as one for a wholesaler, and that licensee fails to renew its license for a subsequent year, the licensee will receive no credit for months suspended during a subsequent calendar year in which the licensee does not have a renewed license on file with the ABCC. See In Re: Gatnik Imports, ABCC Decision dated October 16, 2007.
2016© Law Offices of John P. Connell, P.C.
Contributed by Mandy Driscoll