Upton Connell & Devlin, LLP. Liquor license holders in Massachusetts who have suffered disciplinary penalties by their local license board, such as a city’s Licensing Board or a town’s 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 disputes that there was a violation or finds the penalty to be unfair, for example in the case of an unduly long suspension or cancellation of its liquor license. Appeals may also be warranted where the Local Licensing Authority denied the application for a new liquor license. In either case, should the licensee or applicant want to have a second shot at the issue, they need to 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 written findings in its 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 that 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 also be served on any property owners that abut the property where the license was sought to be 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 automatically stayed as a matter of law, 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 and refuses a request to stay enforcement of that penalty pending appeal to the ABCC, the person seeking the appeal may need to seek a relief in Court to stay the enforcement of the decision until the ABCC resolves the appeal.
Once a hearing is set on the appeal by the ABCC, it is important to note that the ABCC hears the appeal “de novo,” or as if it were the first time the issue had been heard, and 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.
It is customary in complicated cases involving the Alcoholic Liquors Act 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.
Hiring an attorney for the process may enhance likelihood of success at the appellate level because the attorney may ensure that sufficient evidence is put forth to support the basis of the appeal.
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