Commonwealth v. Polanco (Lawyers Weekly No. 11-019-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-1217 Appeals Court COMMONWEALTH vs. JORGE POLANCO. No. 16-P-1217. Middlesex. October 11, 2017. – February 20, 2018. Present: Milkey, Massing, & Ditkoff, JJ. Controlled Substances. Practice, Criminal, Speedy trial, Dismissal, Motion to suppress, Required finding. District Court, Arraignment. Constitutional Law, Search and seizure. Search and Seizure, Exigent circumstances. Indictments found and returned in the Superior Court Department on August 7, 2014. A motion to dismiss was heard by Kathe M. Tuttman, J.; a pretrial motion to suppress evidence was heard by her; and the cases were tried before her. Murat Erkan for the defendant. Sandra Weisberger, Assistant District Attorney, for the Commonwealth. DITKOFF, J. The defendant, Jorge Polanco, appeals from his Superior Court convictions of trafficking in heroin, G. L. c. 94C, § 32E(c), and a school zone violation, G. L. c. 94C, § 32J. We must decide whether to consider time spent in District Court when calculating the time to be included for purposes of a speedy trial under Mass.R.Crim.P. 36(b), 378 Mass. 909 (1979), in Superior Court. Consistent with the plain language of the rule, we conclude that the time the charges were pending in District Court should not be included in the calculation. Accordingly, the motion judge properly denied the defendant’s motion to dismiss. Rejecting the defendant’s challenges to the denial of his motion to suppress and the sufficiency of the evidence, we affirm. Background. In April and May of 2013, law enforcement including the Billerica police department were conducting an investigation of a suspected heroin trafficker known as “Johnny,” later identified as the defendant. As part of that investigation, Billerica police conducted controlled narcotics purchases using an informant. When the police approached the sellers in those controlled purchases, the sellers admitted to being “runners” for “Johnny,” whom they identified as the source of the narcotics. One of the runners agreed to cooperate with the investigation. Shortly thereafter, the cooperating runner received a telephone call from “Johnny,” directing him to customers at a house located at 48 Rogers Street.[1] Prior to that day, that residence had not been a target of the investigation, and the police had not yet identified “Johnny” as the defendant. The police followed the runner to the residence. A motor vehicle pulled up outside the residence, and two men exited the vehicle and spoke […]
Pinney v. Commonwealth (Lawyers Weekly No. 10-030-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12197 FREDERICK PINNEY vs. COMMONWEALTH. February 15, 2018. Homicide. Constitutional Law, Double jeopardy. Practice, Criminal, Mistrial, Double jeopardy. Frederick Pinney is charged with murder in the first degree. After his first trial ended in a mistrial, he moved to dismiss the indictment on the basis that the evidence presented was legally insufficient to warrant a conviction, and therefore retrying him would violate the guarantee against double jeopardy. The trial judge denied the motion, and Pinney then filed a petition pursuant to G. L. c. 211, § 3, in the county court, seeking review of that decision. A single justice denied the petition, and Pinney appeals. We affirm. Background. Pinney was indicted in 2014 for the murder of Tayclair Moore. His trial commenced in January, 2016, and lasted several days. At the close of the Commonwealth’s case, Pinney moved for a required finding of not guilty, which the trial judge denied. He renewed the motion orally later that day at the close of all the evidence; the judge took no action on the motion at that time. Pinney renewed the motion again, in writing, several days later while the jury were deliberating; again the judge took no immediate action. After deliberating for several days, the jury reported to the judge that they were deadlocked, leading the judge to give them, the following day, an instruction pursuant to Commonwealth v. Rodriquez, 364 Mass. 87, 101–102 (1973) (Appendix A), and Commonwealth v. Tuey, 8 Cush. 1, 2–3 (1851). Later that day, the foreperson informed the judge that one of the deliberating jurors had discussed the deliberations with the alternate jurors. The judge conducted an individual voir dire of the jurors, determined that the deliberating and alternate jurors had improperly communicated, and concluded that the jurors had engaged in misconduct. On this basis, Pinney filed a motion for a mistrial that the judge allowed. The judge later denied Pinney’s renewed motion for a required finding of not guilty. Pinney subsequently filed a motion to dismiss the indictment, claiming that the evidence was insufficient to warrant a guilty verdict and that double jeopardy principles thus barred any retrial. The trial judge denied that motion as well. Discussion. In certain circumstances, allowing a retrial of a defendant whose first trial has ended in a mistrial would infringe on the defendant’s […]
Commonwealth v. Buckley (Lawyers Weekly No. 10-029-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12344 COMMONWEALTH vs. ROGELIO R. BUCKLEY. Plymouth. October 5, 2017. – February 14, 2018. Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Controlled Substances. Constitutional Law, Search and seizure, Reasonable suspicion, Investigatory stop. Search and Seizure, Threshold police inquiry, Reasonable suspicion, Consent, Motor vehicle. Threshold Police Inquiry. Practice, Criminal, Motion to suppress. Indictments found and returned in the Superior Court Department on April 19, 2013. A pretrial motion to suppress evidence was heard by Cornelius J. Moriarty, II, J., and the cases were tried before Richard J. Chin, J. The Supreme Judicial Court granted an application for direct appellate review. Matthew Malm for the defendant. Mary E. Lee, Assistant District Attorney, for the Commonwealth. The following submitted briefs for amici curiae: Ivan Espinoza-Madrigal, of New York, Oren M. Sellstrom, & Oren N. Nimni for Lawyers’ Committee for Civil Rights and Economic Justice & others. Rebecca Kiley, Committee for Public Counsel Services, & Derege B. Demissie for Committee for Public Counsel Services & another. Jeff Goldman, Vanessa M. Brown, Matthew R. Segal, Rahsaan D. Hall, Jessie J. Rossman, & Carlton E. Williams for American Civil Liberties Union of Massachusetts. Daniel F. Conley, District Attorney, & John P. Zanini, Cailin M. Campbell, & David D. McGowan, Assistant District Attorneys, for District Attorney for the Suffolk District. CYPHER, J. In this appeal we are asked to reconsider one tenet of our search and seizure jurisprudence: that a traffic stop constitutes a “reasonable” “seizure” for purposes of art. 14 of the Massachusetts Declaration of Rights where a police officer has observed a traffic violation, notwithstanding the officer’s underlying motive for conducting the stop. See Commonwealth v. Santana, 420 Mass. 205 (1995). For the sound legal and practical reasons discussed below, we decline to depart from that tenet as the general standard governing the validity of traffic stops under art. 14. We affirm the denial of the defendant’s motion to suppress, and we also affirm the judgment of conviction. Facts. We recount the facts found by the motion judge, supplemented by uncontroverted testimony at the motion hearing. Commonwealth v. Cordero, 477 Mass. 237, 238 (2017). On January 25, 2013, Whitman police Detectives Joseph Bombardier and Eric Campbell were conducting surveillance of a three-unit apartment building out of […]
Ninety Six, LLC v. Wareham Fire District (Lawyers Weekly No. 11-018-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-1111 Appeals Court NINETY SIX, LLC vs. WAREHAM FIRE DISTRICT. No. 16-P-1111. Plymouth. September 12, 2017. – February 14, 2018. Present: Milkey, Hanlon, & Shin, JJ. Municipal Corporations, Water commissioners, Water installation fee. Real Property, Water. Water. Jurisdiction, Water charge. Subdivision Control, Municipal services. Taxation, Real estate tax: assessment. Zoning. Administrative Law, Exhaustion of remedies. Practice, Civil, Review of administrative action, Case stated. Civil action commenced in the Superior Court Department on June 22, 2010. The case was heard by Robert C. Cosgrove, J. David T. Gay for the plaintiff. John Allen Markey, Jr., for the defendant. SHIN, J. This appeal concerns the validity of water betterment assessments imposed by the Wareham fire district (district) on several large parcels of undeveloped land owned by the plaintiff. The district determined the amount of the assessments pursuant to G. L. c. 40, § 42K, which provides for a method of calculation based on “the total number of existing and potential water units to be served” by the new water mains, with “[p]otential water units . . . calculated on the basis of zoning in effect at the date of assessment.” Construing this language to allow consideration of the full development potential of the land, the district assessed the plaintiff’s property based on the maximum number of lots that could be created from each parcel, including the potential subdivision lots that each parcel could yield under the town of Wareham’s subdivision rules and regulations (subdivision rules). The plaintiff filed suit in Superior Court seeking, among other forms of relief, a declaratory judgment that the district misapplied G. L. c. 40, § 42K, by including potential subdivision lots in its calculation, rather than limiting the assessments to “approval not required” (ANR) lots.[1] After the parties submitted the matter for decision on a case stated basis, the judge found and declared that the “[d]istrict[] followed an appropriate method of calculating betterment assessments under G. L. c. 40, § 42K.”[2] The plaintiff appeals, raising three arguments: (1) that § 42K prohibited the district from assessing betterments on subdivision lots because the subdivision rules were adopted pursuant to the subdivision control law, G. L. c. 41, §§ 81K to 81GG, and not the Zoning Act, G. L. c. 40A; (2) that the enabling statute, G. L. c. 40, § 42G, prohibited the district from assessing betterments on land […]
Public Employee Retirement Administration Commission v. Contributory Retirement Appeal Board, et al. (Lawyers Weekly No. 10-027-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12331 PUBLIC EMPLOYEE RETIREMENT ADMINISTRATION COMMISSION vs. CONTRIBUTORY RETIREMENT APPEAL BOARD & others.[1] Suffolk. November 6, 2017. – February 13, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ. Public Employee Retirement Administration Commission. Contributory Retirement Appeal Board. Retirement. Public Employment, Retirement, Sick leave benefits, Vacation pay, Worker’s compensation. Words, “Regular compensation.” Civil action commenced in the Superior Court Department on May 14, 2015. The case was heard by Peter M. Lauriat, J., on motions for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Judith A. Corrigan, Special Assistant Attorney General, for the plaintiff. Michael Sacco for retirement board of Swampscott. CYPHER, J. The plaintiff, the Public Employee Retirement Administration Commission (PERAC), appeals from a Superior Court judge’s decision affirming a determination by the Contributory Retirement Appeal Board (CRAB) that sick or vacation payments, when used to supplement workers’ compensation payments, are not “regular compensation” as defined in G. L. c. 32, § 1. PERAC argues that CRAB’s decision is incorrect as a matter of law. We disagree, and for the following reasons we affirm the decision of the Superior Court judge. Background. The relevant facts are not in dispute. From September 30, 1985, to July 7, 2012, Robert Vernava worked for the town of Swampscott’s department of public works. On June 13, 2010, Vernava sustained injuries while performing job-related duties. He began receiving workers’ compensation benefits the same day. In addition to the workers’ compensation benefits, under G. L. c. 152, § 69, Vernava also received two hours per week of sick or vacation pay (supplemental pay) in order to maintain his union membership and life insurance.[2] Pursuant to G. L. c. 32, § 7, on February 1, 2012, the town of Swampscott filed an application seeking to retire Vernava involuntarily for accidental disability. On June 28, 2012, the retirement board of Swampscott (board) approved the application and voted to involuntarily retire Vernava due to accidental disability. Vernava received his workers’ compensation benefits and supplemental pay until July 7, 2012. Under G. L. c. 32, § 7 (2), the effective date of an employee’s accidental disability retirement is the latest of the following: (1) “the date the injury was sustained;” (2) “the date […]
Categories: News Tags: 1002718, Administration, Appeal, Board, Commission, Contributory, Employee, Lawyers, Public, Retirement, Weekly
Commonwealth v. Dabney (Lawyers Weekly No. 10-028-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12349 COMMONWEALTH vs. KENYA DABNEY. Suffolk. November 6, 2017. – February 13, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ. Trafficking. Deriving Support from Prostitution. Rape. Assault and Battery. Jury and Jurors. Practice, Criminal, Jury and jurors, Voir dire, Instructions to jury. Evidence, Impeachment of credibility. Witness, Impeachment. Indictments found and returned in the Superior Court Department on February 4, 2015. The cases were tried before Linda E. Giles, J. The Supreme Judicial Court granted an application for direct appellate review. David Rangaviz, Committee for Public Counsel Services, for the defendant. Nicholas Brandt, Assistant District Attorney, for the Commonwealth. Emma Quinn-Judge & Zoraida Fernandez, for Massachusetts Association of Criminal Defense Lawyers & others, amici curiae, submitted a brief. GAZIANO, J. The defendant was convicted by a Superior Court jury of human trafficking, deriving support from prostitution, rape, and two counts of assault and battery. On appeal, he argues that, during voir dire, the judge improperly prevented his attorney from asking members of the venire whether they would expect an innocent defendant to testify. He also contends that the evidence presented was insufficient to sustain a conviction of human trafficking, and that the judge’s instruction to the jury regarding the human trafficking charge was inadequate. The defendant claims further that the judge erred in allowing the introduction of certain records and then retroactively ordering them to be redacted, which prevented defense counsel from using the records for impeachment purposes. We conclude that the judge did not abuse her discretion in limiting defense counsel’s questioning during voir dire, the evidence against the defendant was legally sufficient, the jury instructions were proper, and there was no abuse of discretion in the judge’s evidentiary ruling. Accordingly, we affirm the convictions.[1] Background. a. Facts. We recite the facts the jury could have found, reserving certain details for later discussion. Commonwealth’s case. The victim and the defendant met in approximately June, 2014, and started dating a few months later. The two began living together in a house in Chelsea belonging to “Uncle Otis,” a friend of the defendant; they also sometimes stayed in a house in Revere. Around the time the victim and the defendant started dating, the defendant encouraged the victim to begin prostituting herself. He told her […]
Commonwealth v. Ortiz (Lawyers Weekly No. 10-026-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12273 COMMONWEALTH vs. ANTHONY C. ORTIZ. Hampden. October 3, 2017. – February 12, 2018. Present (Sitting at Greenfield): Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Constitutional Law, Search and seizure. Search and Seizure, Motor vehicle, Consent, Fruits of illegal search. Consent. Evidence, Result of illegal search. Indictments found and returned in the Superior Court Department on March 25, 2015. A pretrial motion to suppress evidence was heard by Edward J. McDonough, Jr., J. An application for leave to prosecute an interlocutory appeal was allowed by Hines, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Cynthia Cullen Payne, Assistant District Attorney (Bethany Lynch, Assistant District Attorney, also present) for the Commonwealth. Patrick Levin, Committee for Public Counsel Services, for the defendant. GANTS, C.J. In this case we must decide whether a driver’s consent to allow the police to search for narcotics or firearms “in the vehicle” authorizes a police officer to search under the hood of the vehicle and, as part of that search, to remove the vehicle’s air filter. We hold that it does not. A typical reasonable person would understand the scope of such consent to be limited to a search of the interior of the vehicle, including the trunk. Because the police here exceeded this scope by searching under the hood and removing the air filter, and because the search was not otherwise supported by probable cause and was not a lawful inventory search, the Superior Court judge’s order granting the defendant’s motion to suppress is affirmed. Background. We summarize the facts as found by the motion judge, supplemented by uncontroverted evidence that the judge explicitly or implicitly credited. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). On January 23, 2015, Officer Jared Hamel and Detective Boyle[1] of the Holyoke police department were on patrol in an unmarked police cruiser when they heard loud music coming from a vehicle. The officers determined that the loud music posed a public safety hazard under a local ordinance that prohibits excessively loud music in a motor vehicle. Officer Hamel activated the […]
Commonwealth v. Kennedy (Lawyers Weekly No. 10-025-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12345 COMMONWEALTH vs. CHRISTOPHER J. KENNEDY. Hampshire. October 3, 2017. – February 9, 2018. Present (Sitting at Greenfield): Gants, C.J., Gaziano, Lowy, Budd, & Kafker, JJ. Indecent Assault and Battery. Indecent Exposure. Assault and Battery. Mistake. Practice, Criminal, Instructions to jury, Jury and jurors, Voir dire, Challenge to jurors. Jury and Jurors. Evidence, First complaint. Indictments found and returned in the Superior Court Department on October 15, 2014. The cases were tried before Daniel A. Ford, J. The Supreme Judicial Court granted an application for direct appellate review. Merritt Schnipper for the defendant. Cynthia M. Von Flatern, Assistant District Attorney, for the Commonwealth. The following submitted briefs for amici curiae: David Rangaviz, Committee for Public Counsel Services, for Committee for Public Counsel Services. Thomas J. Carey for Kari Hong & others. Wendy J. Murphy for Women’s and Children’s Advocacy Project at New England Law|Boston. GAZIANO, J. A Superior Court jury convicted the defendant of indecent assault and battery on a person over fourteen, G. L. c. 265, § 13 H, assault and battery, G. L. c. 265, § 13 A (a), and indecent exposure, G. L. c. 272, § 53. The charges stemmed from an encounter between the victim, M.M., and the defendant, a State trooper, who met on a dating Web site and exchanged flirtatious messages. They arranged to meet in person for coffee, and M.M. agreed to the defendant’s suggestion that they finish their conversation at her apartment. Once inside, the defendant exposed himself to M.M. She immediately informed the defendant that he had the wrong idea, and repeatedly told him, “No.” Despite M.M.’s requests to stop, the defendant advanced toward her, grabbed her wrist, and forced her to touch his penis. She told him, “No means no,” and that he had to leave. He then apologized and left the apartment. At trial, the defendant requested a jury instruction on mistake of fact, asserting that he honestly and reasonably had believed that M.M. had consented to the contact leading to the charges, and would not have been offended by his act of exposing himself. The request was denied. The defendant appeals from the denial and from the admission of what he asserted was unnecessary first complaint evidence. We conclude that the trial judge did not err in declining to give an […]
Shea v. Cameron (Lawyers Weekly No. 11-016-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-1479 Appeals Court SUSAN SHEA vs. MICHAEL CAMERON. No. 16-P-1479. Essex. October 4, 2017. – February 9, 2018. Present: Agnes, Sacks, & Lemire, JJ. Practice, Civil, Report, Summary judgment, Stipulation, Fraud. Divorce and Separation, Annulment, Jurisdiction. Probate Court, Divorce. Jurisdiction, Divorce proceedings. Fraud. Emotional Distress. Undue Influence. Unjust Enrichment. Civil action commenced in the Superior Court Department on July 24, 2014. The case was heard by Timothy Q. Feeley, J., on a motion for summary judgment, and the case was reported by him to the Appeals Court. John Taylor for the plaintiff. Mikalen E. Howe (Alan K. Posner also present) for the defendant. LEMIRE, J. This appeal concerns whether a defendant’s alleged fraudulent inducement to marry constitutes a valid civil cause of action. The plaintiff, Susan Shea, and the defendant, Michael Cameron, were married before receiving a judgment of annulment which incorporated their joint stipulation of Cameron’s fraud. Following the annulment, Shea filed a civil action relating to Cameron’s marriage fraud in Superior Court. Cameron filed counterclaims alleging fraud by Shea regarding entry of the stipulation and annulment. Cameron moved for summary judgment on all of Shea’s claims. After granting Cameron’s motion for summary judgment, the judge reported his order to this court pursuant to Mass.R.Civ.P. 64(a), as amended, 423 Mass. 1403 (1996), and stayed Cameron’s counterclaims. We affirm. Background. Shea began a consensual romantic relationship with Cameron in June, 2005. By October, 2005, Cameron had moved into Shea’s home, and soon thereafter, the two became engaged. Shea and Cameron married on September 22, 2007. In 2010, Shea transferred title to her home from herself individually to Shea and Cameron as joint tenants and Cameron was added to the mortgage. Over the course of their relationship, Shea and Cameron exchanged money, shared bank accounts, and worked together professionally. In 2011, Shea discovered that Cameron was having an affair and subsequently filed for divorce on the grounds of irretrievable breakdown. On April 30, 2012, Shea withdrew her complaint for divorce and filed a complaint for annulment. At a deposition related to the annulment proceeding, Cameron admitted to being “unable to love [Shea] very early in the marriage” and that he did not ever believe that Shea was his “one true love.” On June 7, 2013, Shea and […]
Sajjan Enterprises, LLC v. Alcoholic Beverages Control Commission (Lawyers Weekly No. 09-012-18)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 16-02564 SAJJAN ENTERPRISES, LLC d/b/a COHASSET WINE AND SPIRITS vs. ALCOHOLIC BEVERAGES CONTROL COMMISSION MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS In this action, plaintiff Sajjan Enterprises, LLC (“Sajjan”) seeks judicial review under G.L. c. 30A, §14, of a decision of defendant Alcoholic Beverages Control Commission (“ABCC”) dismissing as moot Sajjan’s appeal from the denial by the Town of Cohasset Board of Selectmen (“the Board”) of Sajjan’s application to transfer its liquor license from a location where Sajjan had previously operated to a new location. Before the Court are cross-motions for judgment on the pleadings under Rule 12(c), Mass. R. Civ. P. Sajjan seeks an order reversing the ABCC’s decision and remanding this matter to it for further consideration. The ABCC seeks affirmation of its determination. In consideration of the parties’ memoranda of law and oral arguments, and for the reasons that follow, Sajjan’s motion for judgment on the pleadings is ALLOWED, the ABCC’s cross-motion for judgment on the pleadings is DENIED, and the matter is REMANDED to the ABCC for further consideration in accordance with this decision. 2 FACTS Claims for judicial review of administrative agency proceedings are resolved through motions for judgment on the pleadings under Mass. R. Civ. P. 12(c). See Massachusetts Superior Court Standing Order 1-96, §4. The Court’s “review shall be confined to the record.” Id. at §5. “Such record ‘shall consist of … the entire proceedings.’” Id. at §2, quoting G. L. c. 30A, §14. The record of the proceedings in this matter shows the following facts: Sajjan is a Massachusetts limited liability corporation that held an all-alcohol retail package store license, Alcoholic Beverage License Number 023800015 (the “License”), for the premises located at 27-29 South Main Street, Cohasset (the “Main Street Premises”), where Sajjan operated Cohasset Wine and Spirits. The License was first issued in September 2013 and was valid through December 2014. In October 2014, Sajjan’s lease for the Main Street Premises ended and was not renewed. On November 20, 2014, Sajjan signed a Purchase and Sale Agreement to purchase 807 Chief Justice Cushing Highway in Cohasset (the “Cushing Highway Premises”). Sajjan intended to operate Cohasset Wine and Spirits at this location, and the purchase and sale was contingent on Sajjan’s obtaining a transfer of the License from the Main Street Premises. On November 24, 2014, the Sajjan filed an application with the Board seeking renewal of the License for 2015. Even though Sajjan was not operating out of the Main Street Premises any longer, the Board approved the renewal. On that same day, Sajjan filed an application to the Board to change the location of […]
Categories: News Tags: 0901218, Alcoholic, Beverages, Commission, Control, Enterprises, Lawyers, Sajjan, Weekly