Posts tagged "Commission"

Spencer v. Civil Service Commission, et al. (Lawyers Weekly No. 10-046-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12326   LUIS S. SPENCER  vs.  CIVIL SERVICE COMMISSION & another.[1]       Suffolk.     December 4, 2017. – March 27, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.     Commissioner of Correction.  Public Employment, Resignation.  Civil Service, Decision of Civil Service Commission, Termination of employment, Findings by commission.  Jurisdiction, Civil Service Commission.  Words, “Termination of his service.”       Civil action commenced in the Superior Court Department on December 8, 2015.   The case was heard by Robert N. Tochka, J., on motions for judgment on the pleadings.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     David A. Russcol (Monica R. Shah also present) for the plaintiff. Jesse M. Boodoo, Assistant Attorney General, for the defendants.     KAFKER, J.  The issue presented is whether Luis S. Spencer, who resigned under pressure as Commissioner of Correction (commissioner) in the midst of a public investigation of his oversight of Bridgewater State Hospital, has a right, pursuant to G. L. c. 30, § 46D, to revert to a tenured civil service correction officer II position he last held in 1992.  Upon his resignation and the denial of his request to revert, Spencer filed an appeal with the Civil Service Commission (commission).  The commission concluded that the right to revert to a civil service position applies only to involuntary terminations, not voluntary resignations, and because Spencer voluntarily resigned, no “termination of his service” had occurred within the meaning of G. L. c. 30, § 46D.  Spencer brought a complaint against the commission and the Department of Correction (department), seeking judicial review of the commission’s decision.  A judge in the Superior Court affirmed the commission’s decision.  Spencer appealed, and we transferred his appeal to this court on our own motion.  We conclude that § 46D does not provide a right to revert in these circumstances and that the commission’s interpretation of this ambiguous statutory language is reasonable, as it applies the same rules for reversion to managers as it does to all other civil service employees and avoids the type of manipulation of retirement benefits at issue here.  Accordingly, we affirm the decision of the commission. Background.  a.  Statutory framework.  Under the Commonwealth’s civil service statutory scheme, a number of rank and file and lower level management positions, particularly in public safety, are […]

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Posted by Massachusetts Legal Resources - March 27, 2018 at 6:20 pm

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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 […]

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Posted by Massachusetts Legal Resources - February 13, 2018 at 9:00 pm

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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 […]

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Posted by Massachusetts Legal Resources - February 9, 2018 at 8:23 pm

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FBT Everett Realty, LLC v. Massachusetts Gaming Commission (Lawyers Weekly No. 09-042-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2016-3481 BLS 1 FBT EVERETT REALTY, LLC vs. MASSACHUSETTS GAMING COMMISSION MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS AMENDED COMPLAINT This is a claim for damages by plaintiff, FBT Everett Realty, LLC (“FBT”), arising from an alleged taking of property by the Massachusetts Gaming Commission (“Commission”). FBT’s amended complaint asserts three counts: Count II (“Per Se Taking”), Count III (“Regulatory Taking”), Count IV (“Impairment of a Contract Right”).1 All three counts claim that as a result of conduct by the Commission, FBT is entitled to compensation under either the Massachusetts Declaration of Rights or the United States Constitution, or both. The Commission moves to dismiss pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6). BACKGROUND The amended complaint alleges the following facts, accepted for this motion as true. FBT was the owner of a parcel of land (the “parcel”) in Everett, Massachusetts. On December 19, 2012, FBT entered into an Option Agreement with Wynn MA, LLC concerning the possible sale of the parcel to Wynn. Wynn anticipated applying for approval from the 1 Count I of the amended complaint has been dismissed, as described in the Background section of this memorandum. 1 Commission to build and operate a casino gambling facility on the parcel. Under the Option Agreement, Wynn agreed to pay FBT $ 100,000 per month for the right to purchase the parcel for $ 75 million in the event that Wynn was awarded the Category 1 destination resort casino license. The Option Agreement granted to Wynn “the option, but not the obligation, to purchase [the parcel]” from FBT. Amended Complaint, Ex A. In connection with Wynn’s application to the Commission, FBT agreed to “reasonably cooperate with [Wynn] with respect to any information it reasonably requires to complete the Casino Application and respond to any such inquiries throughout the licensing process.” Id. In November 2011, the Legislature enacted the Massachusetts Gaming Act, which is codified at G.L. c. 23K. The Act establishes the Commission as the agency to implement and regulate casino gambling. The Act, and the regulations promulgated thereunder, establish a two phase application process for a Category 1 license. The first phase is known as the “Request for Application Phase 1.” In this phase, the applicant is required to make disclosures regarding itself and affiliates. The Investigations and Enforcement Bureau (“IEB”) of the Commission then conducts an investigation of the applicant and provides findings and recommendations to the Commission regarding the suitability of the applicant and its affiliates and business associates. Only those applicants found suitable to receive a license may proceed to the second phase of the process, known as Request for Application Phase 2, […]

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Posted by Massachusetts Legal Resources - December 6, 2017 at 2:35 am

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Craft Beer Build, LLC v. Alcoholic Beverages Control Commission (Lawyers Weekly No. 09-022-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 16-809-D ________________________ CRAFT BEER GUILD, LLC d/b/a CRAFT BREWERS GUILD, Plaintiff, vs. ALCOHOLIC BEVERAGES CONTROL COMMISSION Defendant. ________________________ MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS The plaintiff Craft Beer Guild, LLC d/b/a/ Craft Brewers Guild (“Craft”) is appealing an adjudicatory decision, dated February 12, 2016 (“Decision”) of the Alcoholic Beverages Control Commission (“ABCC” or “Commission”) under G. L. c. 30A, § 14. After the ABCC filed the Administrative Record (A.R.) and a Supplemental Administrative Record (S.A.R.) on September 22, 2016, Craft filed its “Plaintiff Craft Beer Guild, LLC d/b/a/ Craft Brewers Guild’s Motion for Judgment on the Pleadings” (“Motion”) on June 29, 2017, pursuant to Superior Court Standing Order 1-96 as amended.1 After a hearing on the Motion on September 12, 2017, at which the Court heard from both parties, the Court DENIES THE MOTION. 1 Craft has not helped its cause by filing a brief with what appears to be less than 12-point font, in violation of Superior Court Rule 9A(a)(5). As predicted in the Court’s endorsement of March 20, 2017, this added verbiage has only resulted in diverting focus and attention from Craft’s strongest arguments. 2 BACKGROUND Craft is a wholesaler of alcoholic beverages licensed under G.L. c. 138, § 18. It distributes about 200 craft beer brands to, among others, retailers such as restaurants and bars licensed under G.L. c. 138, § 12 for consumption of alcohol. In October 2014, one of the owners of a Crafts-distributed brand tweated allegations that its brand had been removed from the tap at Boston location because Massachusetts suppliers and wholesalers were making unlawful payments to retail licensees in exchange for those retailers carrying Craft brands. The Commission began an investigation, which lasted about seven months and resulted in a Violation Report. The Violation Report led to administrative charges against Craft for violation of the price discrimination law (G.L. c. 138, § 25A(a)) and of 204 Code Mass. Regs. § 2.04(1), quoted below. The ABCC had not previously brought such a proceeding against any licensee under § 2.08. During the proceedings, Craft stipulated to the facts in the Violation Report. After adjudicatory hearings, the ABCC found that Craft violated 204 CMR 2.08 and G.L. c. 138, § 25A. Based on the stipulated facts, the Commission found that in 2013 and 2014, Craft negotiated and implemented a series of schemes between itself, numerous retail licensees and certain third-party management companies that managed the retail licensees. Craft negotiated payment arrangements with the third-party management companies in exchange for tap lines committed to Craft brands at retail licensees that those companies managed. Generally, the payments were either […]

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Posted by Massachusetts Legal Resources - October 31, 2017 at 6:39 pm

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Brown v. Woods Mullen Shelter/Boston Public Health Commission (Lawyers Weekly No. 09-001-17)

COMMONWEALTH OF MASSACHUSETTS   SUFFOLK, ss                                                                                                                                    SUPERIOR COURT 16-805-C                                                                         JASON BROWN                                                                                v.                                                      WOODS MULLEN SHELTER/                                        BOSTON PUBLIC HEALTH COMMISSION                                        MEMORANDUM OF DECISION AND ORDER ON                            DEFENDANT’S MOTION FOR SUMMARY JUDGMENT     Plaintiff Jason Brown, appearing pro se, has brought what appears to be a three-claim complaint against the owner-operator of the Woods Mullen Shelter, a public homeless shelter located in Boston.  All claims arise out of the plaintiff’s expulsion from the shelter on August 10, 2014, when Woods Mullen staff informed Mr. Brown that he would not be permitted to enter the facility as a resident with even medically prescribed marijuana.[1]  As a matter of policy, the Boston Public Health Commission (which manages the shelter) does not allow marijuana or other controlled substances – whether for medical reasons or otherwise – onto its property.  According to Commission Director of Emergency Shelter Services Elizabeth Henderson, “[t]he Commission is constantly striving to monitor and remove substances from the shelter, whether that is [sic] marijuana, alcohol, drugs, unmarked prescription drugs and other similar substances.  The Commission treats marijuana of any nature as it does alcohol and prohibits it from its shelters.”  (Henderson Aff. at para. 6)(emphasis supplied).[2]  Plaintiff refused to leave the shelter, and shelter staff summoned the Boston Police.  When efforts by the police to escort plaintiff off of the site were unsuccessful, Mr. Brown was arrested for trespassing. Plaintiff has brought claims for negligence, negligent infliction of emotional distress and unspecified “civil rights” violations.  These claims are addressed exclusively to Mr. Brown’s expulsion from the Woods Mullen Shelter by the Boston Public Health Commission, and do not reach his arrest at the hands of the Boston Police Department.[3]  The defendant has moved for summary judgment on all counts.  The Court conducted a hearing in respect to this motion on August 28, 2017, at which hearing the plaintiff and counsel for Woods Mullen Shelter/Boston Public Health Commission appeared and presented arguments.  For the reasons which follow, the defendant’s Motion for Summary Judgment shall be ALLOWED IN PART and DENIED IN PART. DISCUSSION The defendant’s first contention is that the Complaint’s claims for negligence and negligent infliction of emotional distress are barred by the plaintiff’s failure to make proper presentment of such claims to the Commission’s chief executive.  The Court agrees. Under G.L. c. 258, _ 4, a tort claim against a public employer must be presented to its “executive officer,” defined in G.L. c. 258, _ 1 as its “nominal chief executive officer or board,” within two years after the cause of action arose.  In the case of the Boston Public Health Commission, the chief executive […]

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Posted by Massachusetts Legal Resources - September 27, 2017 at 6:54 pm

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Massachusetts Fine Wines & Spirits, LLC v. Alcoholic Beverages Control Commission (Lawyers Weekly No. 12-094-17)

                                      COMMONWEALTH OF MASSACHUSETTS   SUFFOLK, ss.                                                                            SUPERIOR COURT                       CIVIL ACTION 2017–003120-C   MASSACHUSETTS FINE WINES & SPIRITS, LLC[1]   vs.   ALCOHOLIC BEVERAGES CONTROL COMMISSION   MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS   This is an action for judicial review, pursuant to G.L. c. 30A, § 14, of a decision of the Alcoholic Beverages Control Commission (“ABCC” or the “Commission”) finding that the plaintiff, Massachusetts Fine Wines and Spirits, LLC d/b/a Total Wine & More (“Total Wine”), sold certain alcoholic beverage products at a retail price below their “invoiced cost” in violation of 204 Code Mass. Regs. § 2.04(1).  The matter is before the Court on the parties’ Cross-Motions for Judgment on the Pleadings.  For the reasons set forth below, the Commission’s motion is DENIED and Total Wine’s motion is ALLOWED. BACKGROUND   The material facts revealed in the administrative record are largely undisputed, and are as follows.    Total Wine is a national alcoholic beverage retailer, and the holder of a retail license for the sale of alcoholic beverages to be consumed off of the premises under G.L. c. 138, § 15.  This case concerns two of Total Wine’s Massachusetts stores, which are located in Natick and Everett.   Total Wine purchases alcoholic beverage products for its Natick and Everett stores from wholesalers Horizon Beverage Company (“Horizon”) and Martignetti Companies (“Martignetti”).  Horizon and Martignetti offer merchant customers like Total Wine a 1% discount for prompt payment (the “prompt payment discount”), and additional discounts based on the total quantity of a particular product purchased during a specified period of time (commonly referred to as the “promotional period”). The latter is known in industry parlance as a cumulative quantity discount (“CQD”), and the nature of this discount and its impact on downstream retail pricing lie at the heart of the present dispute. When wholesalers like Horizon and Martignetti deliver alcoholic beverage products to retailers, Commission regulations require them to “carry an invoice or sales slip, stating the names and addresses of the purchaser and seller, the date and the amount of the purchase, and also itemizing the number of the various kinds of containers and the kinds, quantities and brands of alcoholic beverages or alcohol.”  204 Code Mass. Regs. § 2.05(3).  Horizon’s and Martignetti’s delivery personnel typically present these invoices (hereinafter, the “original invoice”) to Total Wine at the time of product delivery.  The wholesalers’ original invoices state that a 1% prompt payment discount applies to the product order if the invoice is paid in full within 10 days.  These original invoices are silent, however, as to the CQD.   Total Wine’s policy is to pay the total cost stated on […]

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Posted by Massachusetts Legal Resources - July 31, 2017 at 7:10 pm

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Cave Corporation v. Conservation Commission of Attleboro (Lawyers Weekly No. 11-088-17)

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-944                                        Appeals Court   CAVE CORPORATION  vs.  CONSERVATION COMMISSION OF ATTLEBORO.     No. 16-P-944.   Plymouth.     April 6, 2017. – July 14, 2017.   Present:  Green, Blake, & Lemire, JJ.     Municipal Corporations, Conservation commission, By-laws and ordinances.  Wetlands Protection Act.       Civil action commenced in the Superior Court Department on January 9, 2015.   The case was heard by Richard J. Chin, J., on a motion for judgment on the pleadings, and a motion for clarification or reconsideration was considered by him.     Matthew Watsky for the plaintiff. Rebekah Lacey for the defendant.     GREEN, J.  When a municipal conservation commission fails to act timely on a notice of intent for work affecting wetlands, the applicant is entitled to seek relief from the Department of Environmental Protection (DEP).  G. L. c. 131, § 40.  If, on the applicant’s request for relief, the DEP thereafter issues a superseding order of conditions authorizing the work described in the notice of intent, the superseding order controls the work under the Wetlands Protection Act (act), G. L. c. 131, § 40, notwithstanding any more restrictive provisions of an otherwise applicable municipal wetlands ordinance or by-law.  See Oyster Creek Preservation, Inc. v. Conservation Commn. of Harwich, 449 Mass. 859, 865 (2007).  Cave Corporation (Cave), the plaintiff in the present case, contends that such a superseding order operated to divest the conservation commission of Attleboro (commission) of all authority to regulate activity on the land subject to the superseding order, even if the same land is also the subject of a separate notice of intent on which the commission acted timely.[1]  A judge of the Superior Court disagreed, and we affirm. Background.  The Attleboro city council adopted the Attleboro wetlands protection ordinance (ordinance) on October 2, 2001, and the commission, acting pursuant to authority delegated by the ordinance, promulgated rules and regulations thereafter.  Section 18-1.1 of the ordinance recites as its purpose: “to protect the wetlands, water resources, and adjoining land areas in Attleboro by controlling activities deemed by the Conservation Commission likely to have a significant or cumulative effect upon resource area values, including but not limited to the following:  public or private water supply, groundwater, flood control, erosion and sedimentation control, storm damage prevention including coastal storm flowage, water quality, water pollution control, fisheries, wildlife habitat, rare species habitat including rare plant species, agriculture, […]

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Posted by Massachusetts Legal Resources - July 14, 2017 at 7:19 pm

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FBT Everett Realty, LLC v. Massachusetts Gaming Commission (Lawyers Weekly No. 12-082-17)

  COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT CIVIL ACTION 2016-03481-BLS1 FBT EVERETT REALTY, LLC vs. MASSACHUSETTS GAMING COMMISSION MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS FBT EVERETT, LLC’S COMPLAINT PURSUANT TO MASS. R CIV. P. 12(b)(1) AND 12(b)(6) Plaintiff FBT Everett Realty, LLC (FBT) entered into an Option Agreement with Wynn MA, LLC (Wynn), an affiliate of Wynn Resorts, pursuant to which Wynn acquired the option to purchase a parcel of land in Everett, Massachusetts owned by FBT (the Everett Parcel), if Wynn was awarded a casino license by the defendant Massachusetts Gaming Commission (the Commission).  In this action, FTP alleges that it suffered losses as result of the Commission’s tortious interference with that Option Agreement.  Its Complaint pleads a single count of intentional interference with contract in which it claims that, as a result of unlawful pressure exerted on Wynn by the Commission, Wynn insisted that FBT renegotiate the purchase price of the Everett Parcel, reducing that purchase price from $ 75 million to $ 35 million.  The case is now before the court on the Commission’s motion to dismiss FBT’s complaint pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6).  In particular, the Commission contends that it is a “public employer” under § 1 of the Massachusetts Tort Claims Act (G. L. c. 258, §§ 1 et seq., the MTCA), and, therefore, under § 10(c) it is immune from suits for intentional torts, including intentional interference with contractual relations.  For the reasons that follow, the motion is 2   ALLOWED.1 1 Because theCourt concludes that the Commission is immune from suit under G. L. c. 258, § 10(c), the Court does not address the Commission’s contention that, even if the Commission were subject to such claims, the complaint fails to plead a claim for intentional interference with contractual relations on which relief may be granted. BACKGROUND The following facts are drawn from the allegations in the Complaint (assumed to be true for the purposes of this motion), the Gaming Act,the regulations promulgated pursuant thereto, and the materials attached to the Complaint. The Gaming Act and its Regulations In November 2011, the Legislature enacted the Gaming Act, which is codified at G. L. c. 23K.  The Gaming Act permits casino gambling in the Commonwealth and establishes a system for regulating it.  The Act establishes the Commission as the agency to implement casino gambling pursuant to the Act’s terms and regulate it.  G. L. c. 23K, §§ 3(a) and 5.  Among other things, the Act empowers the Commission to award a license to operate a casino with gaming tables and slot machines (the Category 1 Licenses) in each of three regions of the Commonwealth (Regions A, […]

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Posted by Massachusetts Legal Resources - July 4, 2017 at 1:43 am

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Aqua King Fishery, LLC v. Conservation Commission of Provincetown (Lawyers Weekly No. 11-081-17)

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-1366                                        Appeals Court   AQUA KING FISHERY, LLC  vs.  CONSERVATION COMMISSION OF PROVINCETOWN.     No. 16-P-1366.   Barnstable.     April 13, 2017. – June 16, 2017.   Present:  Kafker, C.J., Grainger, & Kinder, JJ.     Shellfish.  Municipal Corporations, By-laws and ordinances, Conservation commission, Shellfish.  Wetlands Protection Act.  Fisheries.       Civil action commenced in the Superior Court Department on February 13, 2015.   Motions for judgment on the pleadings and a special motion to dismiss counterclaims were heard by Gary A Nickerson, J.     Stephen M. Ouellette for the plaintiff. Gregg J. Corbo for the defendant.     GRAINGER, J.  Aqua King Fishery, LLC (Aqua King), the owner of the commercial fishing vessel Sentinel, appeals from a judgment of the Superior Court entered pursuant to an order denying, in part, its motion for judgment on the pleadings.  At issue is Aqua King’s failure to obtain a permit from the conservation commission of Provincetown (commission) for the use of hydraulic dredge fishing gear in its commercial sea clam fishing operation on areas of the ocean floor near Provincetown’s shore.  Aqua King contends that the activity at issue is controlled by the Division of Marine Fisheries (DMF) and is thus exempt from municipal and other State regulations.  Aqua King consequently sought to reverse the enforcement order issued by the commission.[1]  Aqua King also appeals from the judge’s partial allowance of the commission’s cross motion for judgment on the pleadings with respect to its counterclaim  based on an asserted violation of § 40 of the Wetlands Protection Act, G. L. c. 131 (WPA).[2] In its cross appeal, the commission, Provincetown’s local authority enforcing the WPA and regulations of the Department of Environmental Protection (DEP), appeals from the judge’s rulings that (1) denied its motion for judgment on the pleadings insofar as he concluded that article 8 of the Provincetown wetlands by-law was unenforceable, and (2) denied its request for imposition of a $ 25,000 fine, the maximum penalty allowed under the WPA. We address the judge’s rulings in the context of the limited scope of judicial review applicable to an agency decision challenged, as is the case here, by a petition for certiorari pursuant to G. L. c. 249, § 4.[3]  Judicial review of an agency decision in the nature of certiorari “allows a court to ‘correct only a substantial error of law, […]

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Posted by Massachusetts Legal Resources - June 16, 2017 at 3:05 pm

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