The PORT RESTAURANT AND BAR, INC. v. ALCOHOLIC BEVERAGES CONTROL COMMISSION & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-996

THE PORT RESTAURANT AND BAR, INC.1

vs.

ALCOHOLIC BEVERAGES CONTROL COMMISSION & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Port Restaurant and Bar, Inc. (The Port), appeals from

a judgment issued by a Superior Court judge affirming the

decision of the Alcoholic Beverages Control Commission (ABCC) to

approve a suspension of The Port's license to sell alcohol

imposed by the Board of Selectmen of Harwich (board).3 We

conclude that the board had the authority to suspend The Port's

license for permitting violations of the Governor's COVID-19

1 Doing business as The Port.

2Larry G. Ballantine, Donald F. Howell, Michael D.
MacAskill, and Edward J. McManus, each in their representative
capacity as a member of the Town of Harwich Selectboard.

3Harwich Town Meeting changed the name of this body to the
Select Board in May 2022, after the license suspension decision
but before the filing of the complaint.
restrictions, even if the board lacked the authority to enforce

those restrictions directly. Concluding that The Port's various

other challenges lack merit, we affirm.

1. Standard of review. "The scope of review of the

[ABCC's] decision, both in the Superior Court and in [the

appellate courts], is defined by G. L. c. 30A, § 14." eVineyard

Retail Sales-Mass., Inc. v. Alcoholic Beverages Control Comm'n,

450 Mass. 825, 828 (2008), quoting Howard Johnson Co. v.

Alcoholic Beverages Control Comm'n, 24 Mass. App. Ct. 487, 490

(1987). "Judicial review of the ABCC's decision is limited to

determining whether the decision was arbitrary and capricious or

whether the ABCC made an error of law." RK&E Corp. v. Alcoholic

Beverages Control Comm'n, 97 Mass. App. Ct. 337, 340 (2020).

"We will uphold the [ABCC's] decision if there is substantial

evidence to support it." Heineken U.S.A., Inc. v. Alcoholic

Beverages Control Comm'n, 62 Mass. App. Ct. 567, 571-572 (2004).

"Pursuant to G. L. c. 30A, § 14 (5), our review is confined to

the administrative record." RK&E Corp., supra.

2. Authority. The board found that The Port violated 204

Code Mass. Regs. § 2.05(2), which states that "[n]o licensee

. . . shall permit any disorder, disturbance or illegality of

any kind to take place in or on the licensed premises."

Specifically, the illegalities were violations of the Governor's

COVID-19 orders regarding on-premises alcohol consumption during

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the pandemic. Because those orders provided for enforcement by

injunction or a civil fine on the request of the Department of

Labor Standards, the Department of Public Health, or a municipal

board of health, The Port argues that the board lacked the

authority to suspend its license for violating the Governor's

COVID-19 orders.

This argument misses the mark. The board did not suspend

The Port's license as a punishment for violating the Governor's

orders, but rather because The Port failed to comply with the

condition of its liquor license to forbid illegalities on the

licensed premises, 204 Code Mass. Regs. § 2.05(2). In DeMello

v. Alcoholic Beverages Control Comm'n, 411 Mass. 1001, 1001

(1991), the Supreme Judicial Court held that a municipal

licensing authority may revoke a liquor license for permitting

drug transactions to occur on the premises and specified that

"[t]he plaintiff need not have been a participant in the illegal

conduct to have violated the regulation." Similarly, in Rum

Runners, Inc. v. Alcoholic Beverages Control Comm'n, 43 Mass.

App. Ct. 248, 251 (1997), we upheld the authority of a municipal

licensing authority to suspend a liquor license where the

bartender observed a drug transaction without calling the

police. Just as a board may suspend a liquor license where drug

transactions -- which the board lacks the authority to punish

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directly -- occur, a board may suspend a liquor license where

the establishment permits violations of the Governor's orders.

We reject The Port's assertion that the Governor's orders

forbade the board from suspending a liquor license where the

establishment permitted violations of the Governor's orders.

The doctrine of expression unius est exclusio alterius, invoked

by The Port, "'requires great caution in its application,' and

'will be disregarded where its application would thwart the

legislative intent made apparent by the entire act (citations

omitted).'" Lyons v. Secretary of the Commonwealth, 490 Mass.

560, 576 (2022). Here, the purpose of the Governor's orders was

to reduce the spread of COVID-19 by obtaining compliance with

his limitations on gatherings, not to prohibit localities from

inducing local establishments to comply with his orders. As the

Supreme Judicial Court has held, the doctrine may not be used to

"thwart the [Governor's] purpose by converting a . . . mandate

into a matter of fiscal choice." Attorney Gen. v. Milton, 495

Mass. 183, 193 (2025).

Finally, we are unpersuaded that the Governor's August 2020

order, which specifically stated that the ABCC or a local

licensing authority could suspend a liquor license for

permitting a violation of the order, demonstrates that the

Governor intended to forbid such action in his prior orders. As

the Supreme Judicial Court warned, a subsequent amendment

4
granting authority "certainly should be given no weight as

'demonstrating' that no such authority existed before its

enactment. To conclude otherwise might discourage the

Legislature from eliminating uncertainties in existing

legislation for fear that courts might construe its action as an

admission that theretofore an agency lacked authority to act in

a questioned area." Massachusetts Respiratory Hosp. v.

Department of Pub. Welfare, 414 Mass. 330, 333 n.4 (1993).

Accord Sanitoy, Inc. v. Ilco Unican Corp., 413 Mass. 627, 633

(1992), quoting Massachusetts Wholesalers of Malt Beverages,

Inc. v. Attorney Gen., 409 Mass. 336, 344 (1991) ("What the

. . . legislation involved in this case means cannot rationally

be influenced by [subsequent] legislation").

3. Substantial evidence. The Port argues that "the

administrative record before the ABCC does not prove any

violations were committed by The Port and the administrative

record does not support the ABCC decision to approve the action

taken by the Harwich Board in suspending The Port's alcohol

license for three (3) days." The Port, however, failed to order

a transcript of the evidence before the ABCC. "That a

transcript must be submitted to support a claim that the

evidence was insufficient is not some hypertechnical

requirement, but a reflection of the fact that resolution of

such a claim requires the reviewing court to see the entirety of

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the evidence that was presented." Covell v. Department of Soc.

Servs., 439 Mass. 766, 782 (2003). We cannot assume, as The

Port appears to want us to do, that the exhibits submitted to

the ABCC reflect the evidence at the hearing.

For the same reason, The Port's challenge to the three day

sanction fails. The Port claims that "not a single member of

the Harwich Board appeared to defend or other[wise] justify

their actions." The witness list for the hearing, however,

includes the chair of the board, and his appearance as a witness

appears in the administrative record. Without a transcript, we

have no way to determine whether the board chair testified or

whether the town established the reasonableness of its sanction

some other way. See United Steelworkers of Am. v. Commonwealth

Employee Relations Bd., 74 Mass. App. Ct. 656, 661 (2009).

4. Duplicative investigations. General Laws c. 138,

§ 23A, states that, "[i]n investigating any violation by a

licensee, the commission shall endeavor to avoid duplicating

similar investigations by local licensing authorities."

Contrary to The Port's argument, there is no evidence in the

record provided to us that the ABCC duplicated any town

investigation. The town investigated The Port in May 2020, and

the ABCC investigated The Port in July 2020. Moreover, the

statute does not prohibit duplicative investigations; it merely

requires the ABCC to "endeavor to avoid" them. G. L. c. 138,

6
§ 23A. Nothing in the record we have been provided explores how

the ABCC decided to proceed or establishes that the ABCC made no

efforts to avoid duplicative investigations. Again, the absence

of a transcript makes it impossible to determine whether the

statute was violated, much less whether any violation of the

statute would support the extraordinary remedy of requiring that

the board's suspension be reversed. See Covell, 439 Mass. at

782.

5. Findings. General Laws c. 138, § 67, par. 3 states,

"If the commission approves the action of the local licensing

authorities it shall issue notice to them to that effect, but if

the commission disapproves of their action it shall issue a

decision in writing advising said local authorities of the

reasons why it does not approve." The Supreme Judicial Court,

in considering the interplay between this statute and G. L.

c. 30A, § 11 (8), has held that the effect is "to permit the

[ABCC] to indicate its approval of an action of the local

licensing authority by affirming that decision without

needlessly restating the underlying grounds," in which case the

"affirmance will, of course, be taken as embodying the findings

and conclusions of the local authority." Olde Towne Liquor

Store, Inc. v. Alcoholic Beverages Control Comm'n, 372 Mass.

152, 156 (1977). Here, the ABCC approved the board's action and

thus, by the plain terms of the statute, it could rely on the

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board's findings and conclusions. Accordingly, The Port's

invocation of G. L. c. 30A, § 11 (8), which requires that every

agency decision "shall be accompanied by a statement of reasons

for the decision, including determination of each issue of fact

or law necessary to the decision," is unavailing.

In any event, the ABCC's decision complied with the

requirements of G. L. c. 30A, § 11 (8). "An agency must make

all findings necessary to its decision . . . , but need not make

detailed findings of all evidence presented to it, as long as

its findings are sufficiently specific to allow us to review its

decision." Hingham v. Department of Telecomm. & Energy, 433

Mass. 198, 207 (2001). Contrary to The Port's contention that

"[t]he Decision makes no factual findings," the ABCC made

twenty-six factual findings, comprising nearly three pages of

text, which contain all factual findings necessary to establish

that The Port violated 204 Code Mass. Regs. § 2.05(2). The ABCC

also stated all issues of law "necessary to the decision."

G. L. c. 30A, § 11 (8). Although it would have been preferable

for the ABCC to specifically address The Port's legal defenses

of lack of authority and duplicative investigations, we discern

no prejudice to The Port as those defenses lacked merit. See

Weinberg v. Board of Registration in Med., 443 Mass. 679, 687

(2005) ("The board is not required to address each and every

legal issue, theory, and case citation relied on by the

8
respondent"). "Overall, [the] decision is sufficiently robust

for us to undertake a meaningful review and conclude that it was

supported by substantial evidence." Zoning Bd. of Appeals of

Milton v. HD/MW Randolph Ave., LLC, 490 Mass. 257, 268 (2022).

6. Timeliness. It is beyond question that the ABCC failed

to comply with the requirement of G. L. c. 138, § 67, par. 2,

that "[t]he decision of the commission shall be made not later

than thirty days after the completion of the hearing." Where,

as here, the statute is silent regarding the consequences of

failing to meet the deadline, we cannot presume that dismissal

of the appeal is the proper remedy. See U.S. Bank Trust, N.A.

v. Johnson, 96 Mass. App. Ct. 291, 295 (2019); Plymouth v.

Power, 97 Mass. App. Ct. 532, 536-537 (2020). Many similar

deadlines are regarded as directory, rather than mandatory.

See, e.g., Connors v. Annino, 460 Mass. 790, 793 n.7 (2011);

Burnham v. Hadley, 58 Mass. App. Ct. 479, 481 n.4 (2003); Box

Pond Ass'n v. Energy Facilities Siting Bd., 435 Mass. 408, 415

n.7 (2001).

In any event, if the deadline were mandatory, that deadline

would merely deprive the ABCC of the authority to disapprove the

board's decision. The Port provides no reason why the

consequence of the ABCC's tardiness should be the reversal of

the board's decision. Moreover, "[o]ur review of the

commission's decision is governed by G. L. c. 30A, § 14 (7),

9
which requires us to determine whether a party's substantial

rights were prejudiced." 15 LaGrange St. Corp. v. Massachusetts

Comm'n Against Discrimination, 99 Mass. App. Ct. 563, 567

(2021). The Port provides no explanation how it was prejudiced

by the ABCC's tardiness, which had the effect of delaying the

suspension of The Port's liquor license for over one year.4

Judgment affirmed.

By the Court (Blake, C.J.,
Ditkoff & Brennan, JJ.5),

Clerk

Entered: July 31, 2025.

4 The Port argues for the first time in its reply brief that
judicial deference to administrative agencies is
unconstitutional. "This argument, never raised at trial and
asserted for the first time in the . . . reply brief, is
waived." Parsons v. Ameri, 97 Mass. App. Ct. 96, 108 n.12
(2020).

5 The panelists are listed in order of seniority.

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