Mass. Gen. Laws ch. 138, sec. 23 — MA Code / Part I / Title XX / Chapter 138 / Section 23
Nature of licenses and permits; status as property rights; refusal to issue or reissue, revocation, etc.; refund of fee; transfers; death, receivership or bankruptcy of licensee; expiration; pledging for loans
Status: in_force

Section 23. The terms licenses and permits, wherever employed as substantives in this chapter, are used in their technical sense of a license or permit, transferable only as provided in this chapter, and revocable by the granting authority, the commonwealth, acting through the same officers or agents and under the same delegated authority for any violation of this chapter or any regulation adopted by the commission or local licensing authority consistent with the terms of this chapter after opportunity for a hearing. The provisions for the issue of licenses and permits hereunder imply no intention to create rights generally for persons to engage or continue in the transaction of the business authorized by the licenses or permits respectively, but are enacted with a view only to serve the public need and in such a manner as to protect the common good and, to that end, to provide, in the opinion of the licensing authorities, an adequate number of places at which the public may obtain, in the manner and for the kind of use indicated, the different sorts of beverages for the sale of which provision is made. No holder of such a license or permit hereunder shall have any property right in any document or paper evidencing the granting of such license or permit and issued by the licensing authorities, and said authorities, upon the expiration, suspension, revocation, cancellation or forfeiture of such a license or permit shall be entitled upon demand to the immediate possession thereof. The superior court shall have jurisdiction in equity, on petition of the licensing authorities, to enforce this provision. No license issued under section twelve, fourteen or fifteen, and no certificate of fitness issued under section thirty shall authorize the sale of any alcoholic beverages other than those purchased from a licensee under section eighteen, nineteen or 19F or nineteen C or from a holder of a special permit to sell issued under section twenty-two A; provided, that the holder of a license under section twelve or fifteen may sell alcoholic beverages acquired as the result of the purchase of a warehouse receipt for such beverages if the said receipt was purchased from the holder of a license under section eighteen, nineteen, 19F or nineteen C or from a broker registered under chapter one hundred and ten A who is authorized thereunder to deal in warehouse receipts for alcoholic beverages; and provided, further, that nothing contained in this section shall be construed to authorize a licensee under section twelve or fifteen to import alcoholic beverages into the commonwealth except through the holder of a license issued under section eighteen or 19F. Whenever, in the opinion of the local licensing authorities, any applicant for a license under section twelve, fourteen, fifteen or thirty A fails to establish to their satisfaction his compliance with the requirements of this chapter, or any other reasonable requirements which they may from time to time make with respect to licenses under said sections, respectively, or to the conduct of business by any licensee thereunder, said authorities may refuse to issue or reissue to such applicant any such license; and whenever in their opinion any holder of such a license fails to maintain compliance with this chapter or it appears that alcoholic beverages are being or have been sold, served or drunk therein in violation of any provision of this chapter, they may, after hearing or opportunity therefor, modify, suspend, revoke or cancel such license, or may levy a fine in accordance with regulations which shall be promulgated by the alcoholic beverages control commission; provided, however, that no local licensing authority shall require the holder of a license issued under the provisions of section fifteen, for the sale of wines and malt beverages only, to cover such beverages on Sundays or legal holidays. The local licensing authorities shall transfer the amount of any fines to the treasurer and receiver general within thirty days of receipt for deposit into the local aid fund. Each local licensing authority shall submit a quarterly report to the alcoholic beverage control commission identifying the name and address of each person or entity from whom a fine was collected, the amount of the fine, the violation for which the fine was assessed, and the date on which the fine was transferred by the local licensing authority to the treasurer. Whenever the local licensing authorities deny an application for a new license, refuse to issue a license or modify, suspend, revoke or cancel a license, deny an application for transfer of location or between persons or change of a description of the licensed premises, or levy a fine, the licensing authorities shall mail a notice of such action to the applicant or licensee, stating the reasons for such action and shall at the same time mail a copy of such notice to the commission. Whenever, in the opinion of the commission, any holder of a license or permit originally issued by it fails to maintain compliance with the requirements of this chapter, or any other reasonable requirements which it may from time to time make with respect to any such license or permit or to the conduct of business by any such licensee or permittee, it may, after hearing or opportunity therefor, modify, suspend, revoke or cancel such license or permit. In investigating any violation by a licensee, the commission shall endeavor to avoid duplicating similar investigations by local licensing authorities. The commission shall mail a notice to any licensee or permittee of any action by it modifying, suspending, revoking or cancelling such license or permit under the provisions of this paragraph stating the reasons for such action and shall at the same time mail a copy of such notice to the local licensing authority which issued such license or permit. In case of modification, suspension, revocation or cancellation of a license issued by the licensing authorities or of a permit issued by the commission, no abatement or refund of any part of the fee paid therefor shall be made. The licensing authorities empowered to issue any license or permit may order refunded the whole or any part of the fee for such a license or permit in case of an error in the kind of a license or permit issued, or may order the fee paid for such a license or permit refunded to the applicant if he has withdrawn his application prior to the issuance of the license or permit applied for, or to the licensee or permittee if he has surrendered the license or permit issued to him and such licensing authorities are satisfied that no right, power or privilege has been exercised thereunder. Any sums ordered refunded as aforesaid shall be paid from any available funds in the treasury of the commonwealth or municipality as the case may be. Any license issued under this chapter may, upon application pursuant to section fifteen A, be transferred from one location to another or the description of the licensed premises may be changed with the approval of the licensing authorities. No new license fee shall be required; provided, however, the local authorities may in their discretion increase the annual fee already paid by the license holder. The local licensing authorities may transfer a common victualler's or innholder's license issued under chapter one hundred and forty from one location to another if the applicant therefor is also the holder of a license for the sale of alcoholic beverages at the location from which the transfer is sought. If the local licensing authorities of any city or town refuse to grant or fail to act upon an application for a transfer of location of any license as authorized by this section, the applicant therefor may appeal to the commission under section sixty-seven in the same manner as though such authorities had refused to grant or failed to act upon an application for an original license under this chapter, and all the provisions of said section shall apply to such an appeal. Nothing herein contained shall be construed to limit or prevent the transfer from one location to another by local licensing authorities of common victuallers' or innholders' licenses issued under chapter one hundred and forty if the applicant for such a transfer is not the holder of a license for the sale of alcoholic beverages. Any license under this chapter held by an individual, partnership or corporation may be transferred to any individual, partnership or corporation qualified to receive such a license in the first instance, if, in the opinion of the licensing authorities, such transfer is in the public interest. If the local licensing authorities determine that an individual, partnership or corporation is not entitled to a transfer as aforesaid of a license granted by them, the applicant for such transfer may appeal to the commission as if such authorities had refused to grant the license to such individual, partnership or corporation upon an original application therefor, and the decision of the commission upon such appeal shall be final. In the case of the death of an individual holder of any license or permit under this chapter, such license or permit, unless earlier surrendered, revoked or cancelled, shall authorize the executor or administrator of the deceased licensee or permittee to exercise all authority conferred upon such licensee or permittee until the termination thereof. In case of the appointment of a receiver or trustee in bankruptcy or otherwise of a licensee under this chapter, such license, unless earlier surrendered, revoked or cancelled, shall authorize such receiver or trustee to exercise all authority conferred on such licensee until the termination thereof. Every license and permit granted under the provisions of this chapter, unless otherwise provided in such provisions, shall expire on December thirty-first of the year of issue, subject, however, to revocation or cancellation within its term. The commission may accept from any licensee or holder of a certificate of compliance under this chapter an offer in compromise in lieu of suspension of any license or certificate of compliance previously suspended by the commission. A licensee or holder of certificate of compliance may petition the commission to accept such an offer in compromise within twenty days following notice of such suspension. The fine in lieu of suspension, when an offer in compromise is accepted, shall be calculated in accordance with the following formula: Fifty per cent of the per diem gross profit multiplied by the number of license suspension days, gross profit to be determined as gross receipts on alcoholic beverage sales less the invoiced cost of goods sold per diem. No such fine, in any event, shall be less than forty dollars a day. Any sums of money so collected by the commission shall be paid forthwith into the general fund of the state treasury. Any license granted under the provisions of this chapter may be pledged by the licensee for a loan, provided approval of such loan and pledge is given by the local licensing authority and the commission. Such pledge shall not be construed so as to affect the right of such local licensing authority or the commission to suspend, revoke, or otherwise regulate such license, as provided in this chapter.

Section 23. The terms licenses and permits, wherever employed as substantives in this chapter, are used in their technical sense of a license or permit, transferable only as provided in this chapter, and revocable by the granting authority, the commonwealth, acting through the same officers or agents and under the same delegated authority for any violation of this chapter or any regulation adopted by the commission or local licensing authority consistent with the terms of this chapter after opportunity for a hearing. The provisions for the issue of licenses and permits hereunder imply no intention to create rights generally for persons to engage or continue in the transaction of the business authorized by the licenses or permits respectively, but are enacted with a view only to serve the public need and in such a manner as to protect the common good and, to that end, to provide, in the opinion of the licensing authorities, an adequate number of places at which the public may obtain, in the manner and for the kind of use indicated, the different sorts of beverages for the sale of which provision is made.

No holder of such a license or permit hereunder shall have any property right in any document or paper evidencing the granting of such license or permit and issued by the licensing authorities, and said authorities, upon the expiration, suspension, revocation, cancellation or forfeiture of such a license or permit shall be entitled upon demand to the immediate possession thereof. The superior court shall have jurisdiction in equity, on petition of the licensing authorities, to enforce this provision.

No license issued under section twelve, fourteen or fifteen, and no certificate of fitness issued under section thirty shall authorize the sale of any alcoholic beverages other than those purchased from a licensee under section eighteen, nineteen or 19F or nineteen C or from a holder of a special permit to sell issued under section twenty-two A; provided, that the holder of a license under section twelve or fifteen may sell alcoholic beverages acquired as the result of the purchase of a warehouse receipt for such beverages if the said receipt was purchased from the holder of a license under section eighteen, nineteen, 19F or nineteen C or from a broker registered under chapter one hundred and ten A who is authorized thereunder to deal in warehouse receipts for alcoholic beverages; and provided, further, that nothing contained in this section shall be construed to authorize a licensee under section twelve or fifteen to import alcoholic beverages into the commonwealth except through the holder of a license issued under section eighteen or 19F.

Whenever, in the opinion of the local licensing authorities, any applicant for a license under section twelve, fourteen, fifteen or thirty A fails to establish to their satisfaction his compliance with the requirements of this chapter, or any other reasonable requirements which they may from time to time make with respect to licenses under said sections, respectively, or to the conduct of business by any licensee thereunder, said authorities may refuse to issue or reissue to such applicant any such license; and whenever in their opinion any holder of such a license fails to maintain compliance with this chapter or it appears that alcoholic beverages are being or have been sold, served or drunk therein in violation of any provision of this chapter, they may, after hearing or opportunity therefor, modify, suspend, revoke or cancel such license, or may levy a fine in accordance with regulations which shall be promulgated by the alcoholic beverages control commission; provided, however, that no local licensing authority shall require the holder of a license issued under the provisions of section fifteen, for the sale of wines and malt beverages only, to cover such beverages on Sundays or legal holidays. The local licensing authorities shall transfer the amount of any fines to the treasurer and receiver general within thirty days of receipt for deposit into the local aid fund. Each local licensing authority shall submit a quarterly report to the alcoholic beverage control commission identifying the name and address of each person or entity from whom a fine was collected, the amount of the fine, the violation for which the fine was assessed, and the date on which the fine was transferred by the local licensing authority to the treasurer. Whenever the local licensing authorities deny an application for a new license, refuse to issue a license or modify, suspend, revoke or cancel a license, deny an application for transfer of location or between persons or change of a description of the licensed premises, or levy a fine, the licensing authorities shall mail a notice of such action to the applicant or licensee, stating the reasons for such action and shall at the same time mail a copy of such notice to the commission.

Whenever, in the opinion of the commission, any holder of a license or permit originally issued by it fails to maintain compliance with the requirements of this chapter, or any other reasonable requirements which it may from time to time make with respect to any such license or permit or to the conduct of business by any such licensee or permittee, it may, after hearing or opportunity therefor, modify, suspend, revoke or cancel such license or permit. In investigating any violation by a licensee, the commission shall endeavor to avoid duplicating similar investigations by local licensing authorities. The commission shall mail a notice to any licensee or permittee of any action by it modifying, suspending, revoking or cancelling such license or permit under the provisions of this paragraph stating the reasons for such action and shall at the same time mail a copy of such notice to the local licensing authority which issued such license or permit.

In case of modification, suspension, revocation or cancellation of a license issued by the licensing authorities or of a permit issued by the commission, no abatement or refund of any part of the fee paid therefor shall be made.

The licensing authorities empowered to issue any license or permit may order refunded the whole or any part of the fee for such a license or permit in case of an error in the kind of a license or permit issued, or may order the fee paid for such a license or permit refunded to the applicant if he has withdrawn his application prior to the issuance of the license or permit applied for, or to the licensee or permittee if he has surrendered the license or permit issued to him and such licensing authorities are satisfied that no right, power or privilege has been exercised thereunder. Any sums ordered refunded as aforesaid shall be paid from any available funds in the treasury of the commonwealth or municipality as the case may be.

Any license issued under this chapter may, upon application pursuant to section fifteen A, be transferred from one location to another or the description of the licensed premises may be changed with the approval of the licensing authorities. No new license fee shall be required; provided, however, the local authorities may in their discretion increase the annual fee already paid by the license holder. The local licensing authorities may transfer a common victualler's or innholder's license issued under chapter one hundred and forty from one location to another if the applicant therefor is also the holder of a license for the sale of alcoholic beverages at the location from which the transfer is sought. If the local licensing authorities of any city or town refuse to grant or fail to act upon an application for a transfer of location of any license as authorized by this section, the applicant therefor may appeal to the commission under section sixty-seven in the same manner as though such authorities had refused to grant or failed to act upon an application for an original license under this chapter, and all the provisions of said section shall apply to such an appeal. Nothing herein contained shall be construed to limit or prevent the transfer from one location to another by local licensing authorities of common victuallers' or innholders' licenses issued under chapter one hundred and forty if the applicant for such a transfer is not the holder of a license for the sale of alcoholic beverages.

Any license under this chapter held by an individual, partnership or corporation may be transferred to any individual, partnership or corporation qualified to receive such a license in the first instance, if, in the opinion of the licensing authorities, such transfer is in the public interest. If the local licensing authorities determine that an individual, partnership or corporation is not entitled to a transfer as aforesaid of a license granted by them, the applicant for such transfer may appeal to the commission as if such authorities had refused to grant the license to such individual, partnership or corporation upon an original application therefor, and the decision of the commission upon such appeal shall be final.

In the case of the death of an individual holder of any license or permit under this chapter, such license or permit, unless earlier surrendered, revoked or cancelled, shall authorize the executor or administrator of the deceased licensee or permittee to exercise all authority conferred upon such licensee or permittee until the termination thereof. In case of the appointment of a receiver or trustee in bankruptcy or otherwise of a licensee under this chapter, such license, unless earlier surrendered, revoked or cancelled, shall authorize such receiver or trustee to exercise all authority conferred on such licensee until the termination thereof.

Every license and permit granted under the provisions of this chapter, unless otherwise provided in such provisions, shall expire on December thirty-first of the year of issue, subject, however, to revocation or cancellation within its term.

The commission may accept from any licensee or holder of a certificate of compliance under this chapter an offer in compromise in lieu of suspension of any license or certificate of compliance previously suspended by the commission. A licensee or holder of certificate of compliance may petition the commission to accept such an offer in compromise within twenty days following notice of such suspension. The fine in lieu of suspension, when an offer in compromise is accepted, shall be calculated in accordance with the following formula: Fifty per cent of the per diem gross profit multiplied by the number of license suspension days, gross profit to be determined as gross receipts on alcoholic beverage sales less the invoiced cost of goods sold per diem. No such fine, in any event, shall be less than forty dollars a day. Any sums of money so collected by the commission shall be paid forthwith into the general fund of the state treasury.

Any license granted under the provisions of this chapter may be pledged by the licensee for a loan, provided approval of such loan and pledge is given by the local licensing authority and the commission. Such pledge shall not be construed so as to affect the right of such local licensing authority or the commission to suspend, revoke, or otherwise regulate such license, as provided in this chapter.