MEMORANDUM ‘To: Members ofthe Board of Selectmen of Cohasset From: Martin G. Corry, Esq., Comy & Associates Date: May 28,2019 RE: Opposition o Application for GENERAL ON-PREMISES LICENSE Filed in COHASSET by CHURCH MOUSE LLC for 12 PARKINGWAY. FACTS (CHURCH MOUSE LLC (‘MOUSE”) has filed an application with the COHASSET BOARD OF SELECTMEN (“Bosrd” or “Local Board"). MOUSE seeks a license to sll only alcoho! without food ina 3600 square foot premises consisting of 1800 square feet underground plus 1800 square feet ouside, This 3600 square foot bar is proposed to be given an alcohol license in a professional building hat curently houses only a dentist office as wel as other professional office. This building, located at 12 Parkingway, is located 100% inside a BUSINESS DISTRICT under Cohasset’s zoning law. ‘Upon review of 1) the BOARD's rules for alcoholic beverages licensees in Cohasset, 2) the schedule of annual license fees set by the BOARD, 3) the applicable zoning laws and the lawl use ofa building located 100% inside a business district under Cohasset's zoning law, 4) the provisions ofthe existing lease of the existing tenants now at 12 Parkingway, 4) the application filed by MOUSE, 6) te requirements ofthe Massachusetts Liquor Control Act (chapter 138 of the General Laws), and 7) the controlling court decisions on the legal standard ‘hat must be applied by the BOARD in deciding whether an aleohol license application should be ranted, here are numerous, insurmountable legal defects with MOUSE"S application. The BOARD must DENY this application 1. BOARD'S & ABCC’s Regulations for Alcohol Licensees, I The BOARD'S Fee Schedule for Alcohol Licenses. IIL, The Lawful Use of 12Parkingway Under the Zoning Law. IV, The Landlord's Covenant of Quiet Enjoyment to the Existing Tenants of 12 Parkingway V. MOUSE’S Applicatioa Is Defective and Cannot Be Granted by the BOARD. VI. The BOARD Must Asply the State Law Standard and Decide if MOUSE'S Application “serve the public need” and will be exercised “in such a manner as to protect the common good.”‘VII. ‘The BOARD Must Base Its Decision on The BALLARIN Factors & Must Apply the DONOVAN Analysis. After considering each of these points singly and in combination, iis clear that, MOUSE’S application does NOT meet any public need that currently exists in Cohasset and MOUSE seeks 2 license that will NOT be exercised in a manner so as to protect the common ‘200d, that i, protect Cohasset’ public safety. The BOARD MUST DENY This Applicaton, 1. BOARD'S & ABCC’s Regulations for Alcohol Licensees Together Require MOUSE ; S A, Bails to Disclose Category of License Sought in Violation of ABCC Regulations. ‘The MOUSE application seeks a" 12 GENERAL ON-PREMISES” type license but ‘does NOT specify whether it seeks a license to sell all kinds of alcoholic beverages (beer, wine & hard tiquor) or just beer and wine only. Thisisa fetal defect. An ABCC regulation, that specifies what must be disclosed ina license application, requires that [all applications for licenses and permis. shall be fully answered in desi” 208 CMLR. §2.01(7). A separate ABCC regulation that also controls a license aplication requires that “(all applications shall be made under the penalties of perjury and any false statement contained in any application shall be a cause or ground for refusing to grant the license or permit or for suspending, canceling or revoking a license or permit already granted.” 204 CMR. § 2.01(8). In the MOUSE application, the applicants statement under perjury is BLANK & NOT DATED. This omission violates the ABCC regulation § 2.01(8). This is fatal omission. The MOUSE application as filed violates these 2 ABCC regulations and must be DENIED by the BOARD. ‘This failure to provide complete information and disclose the license MOUSE seeks also creates an ireparable legal defect in the advertisement required to be published about MOUSE's alcohol license application. The BOARD may’ not, and an agent, employee, or representative of the BOARD, cannot fill in the formation that MOUSE alone must provide. The failure to disclose the type and category of license and also to advertise accurately the type and category of license sought by MOUSE violates both ABCC regulations and the state Liquor Control Act, General Laws chapter 138, §15A. The BOARD must DENY this application. Jcoholic Beverages in Violation " : TP‘The MOUSE application tas a “fil inthe blanks form” submitted that is not complete and fails to disclose required information. The filed form fils to disclose tothe BOARD and the public: 1. he date the entity votes were taken; 2, the type of license authorized by the entity for which an pplication may be filed; 3. ‘he category of alcoholic beverages authorized by the entity to be sold in its business, i, all kinds of alcoholic beverages (beer, wine & hard liquor) or just beer and wine only. Each one of these omissions is a fatal defect and taken together, these fatal defects are compounded. Regulation 7 of the BOARD required a proper vote to authorize the business ‘This BOARD regulation is grounded in the state laws that control the operation and legitimate activites of a LLC as well as the requirements of General Las chapter 138, the Liquor Control Act. The MOUSE application as filed violates this BOARD regulation and. these sate laws. The BOARD must DENY the MOUSE application. C. Violates BOARD's ion 10 - Fai Manager of Lawful Business. ‘The MOUSE application seeks a “§ 12 GENERAL ON-PREMISES” type license. Yet, the BOARD's regulation 10 authcrizes only 3 types of licenses: restaurant, tavem and hotel Through Regulation 10, he BOARD validly exercised its lawful discretion to deny in Cohasset the granting of any ‘General On Premises” typeof § 12 pouring license." tis sted law thatthe BOARD (as well asthe ABCC) may regulate aay their lawful Aiscretion. Here trough Regulation 10, the BOARD regulated away its discretion, just like the ‘ABCC has done. See Reslaurant Consultants In.» ABCC, 401 Mas. 167,170 (1987)(“By its regulation, ..the ABCC has ceded whatever discretion itmay have had under the statue), The Supreme Judicial Court has insite us for over 30 years that when a licensing authority, ke the BOARD, says in its regulation that an act "MUST" occu, the licensing authority is bound by their own regulation, Inthe words ofthe Supreme Judicial Cour, the regulation promulgated ‘has the force of law, and the [BOARD] is bound by i. Royce v. Commissioner of Correction, 390 Mass. 425 , 427 (1983). See Northbridge v. Natick, 394 Mass. 70,76 (1985) ‘agency must {ollow its own regulations even ithe fae of inconsistent internal guidelines". htp:// ‘masscases.comicases/so/401/401mass167 html. D. Violates BOARD's Regulation 14, * A separate legal qusto is presented viet the BOARD has the autor to een conser grating “general ‘on premises” type of§ 12 eens anywhere in Cohasset, Mass. Gen Laws. 138, § 12. But at isa efor fot day as this mem assumes argued that he BOARD does have this aaory under cotoing av. But that authority was given away by the BOARD through ts regulations. 3