DocketNumber: No. 97-P-2272
Citation Numbers: 47 Mass. App. Ct. 712
Judges: Gillerman
Filed Date: 9/13/1999
Status: Precedential
Modified Date: 6/25/2022
The plaintiff has appealed the decision of the Superior Court affirming the decision of the State Lottery Commission (commission) which, after an adjudicatory hearing, reversed its own earlier administrative decision “to grant” a Keno license to the plaintiff. Our task is to review the administrative record that culminated in the final decision of the commission. We start with a brief description of the statutory background regarding Keno licenses which the commission was authorized to issue to licensed lottery agents, of which the plaintiff was one.
The 1993 Act was amended in 1995, see St. 1995, c. 38, § 293 (1995 Act). The Legislature deleted the “full implementation” clause and it deleted the clause that a license “shall be available” to any qualified lottery agent, substituting the words, “[a] license . . . shall be granted” to any qualifying lottery agent. More important, the 1995 Act introduced the condition that “not less than twenty-one days before issuing any such license” the commission must publish notice of the pending application. If the local licensing authority objects to the application, then “[n]o . . . license shall be issued” unless, after an adjudicatory hearing in accordance with G. L. c. 30A, the chairman of the commission determines that issuance of the license would be in the public interest notwithstanding the objection of the local licensing authority. Of equal importance is subparagraph (a) which provides, in part, that the 1995 Act “does not authorize the revocation of any license granted before” July 1, 1995, the effective date of the 1995 Act (the proviso).
The Keno statute was again the subject of Legislative action in 1996. See G. L. c. 10, § 27A, inserted by St. 1996, c. 94, effective January 1, 1996 (1996 Act). The 1996 Act repealed the 1993 and 1995 Acts but restored the language of the 1993 Act by making Keno licenses “available” to qualified applicants “upon the full implementation” of Keno. The 1996 Act also preserved the requirement of the 1995 Act that “[n]o such license shall be issued” over the written objection of local licensing authorities unless, after an adjudicatory hearing, the license is approved by the chairman of the commission. Finally, the 1996 Act carried forward the proviso that first appeared in the 1995 Act and which is the subject of this appeal: “provided, however, that this subsection [regarding the availability of a license to a qualified lottery sales agent] shall not authorize the
The material facts appearing in the administrative record are not in dispute. On December 14, 1995, more than one year after the plaintiff’s application was filed, the Boston Licensing Board (board), responding to the commission’s public notice, under the 1995 Act, of the plaintiff’s application for a Keno license, notified the commission that it objected to the applications for a Keno license by all lottery agents engaged in the business of a retail package liquor store, including specifically the application of the plaintiff. The board, by letter to the commission, later referred to the fact that “a business which features Keno may encourage loitering and lingering of patrons inside and outside the licensed premises . . . In the [bjoard’s opinion the addition of Keno in these premises will only lead to further problems of a public nuisance nature.”
On April 24, 1996, the commission, now acting under the 1996 Act, held the required adjudicatory hearing on the appeal of the board from “the decision of the . . . [cjommission to grant a Keno license to [the plaintiff].”
On September 26, 1996, the commission published its decision. The commission ruled that the board had expressed “valid reasons for objecting to the issuance of a Keno license” (emphasis added) to the plaintiff, that the issuance of a Keno license to the plaintiff “is not in the public interest,” and that the commission’s “decision to grant a Keno license to [the plaintiff] is reversed.”
The plaintiff filed its complaint on October 29, 1996, almost two years after the filing of its application.
The plaintiff argues that the commission’s decision, was erroneous as matter of law and deprived the plaintiff of property without due process of law.
It is undisputed that Keno was never in operation on the plaintiff’s premises and there is nothing in the record which would support the conclusion that the commission had issued a license to the plaintiff or that the plaintiff had received a license from the commission. Indeed, the plaintiff’s representative acknowledged at the hearing that the plaintiff understood that he never operated Keno because “all licenses” had been “postponed” — but that he was “on the list.”
It is true that the commission’s decision refers to the fact that, at some unidentified time, it voted “to grant” a Keno license to the plaintiff. Nevertheless, in the circumstances of this case, where the commission took steps to prevent the operation of Keno at the plaintiff’s premises (by withholding certain Keno equipment), the decision “to grant” the plaintiff a license was never actually executed by the issuance of a license. Moreover, the commission was not bound to issue a Keno license to the plaintiff in 1994 under the provisions of the 1993 Act. In this connection we emphasize that the 1993 Act contemplated the issuance of a license. The 1993 Act states that a “license to operate the game known as Keno” was available to qualifying lottery agents. However, that availability was conditioned upon the “full implementation” of the Keno game. The record is barren of any suggestion that the Keno game was fully implemented at any time prior to the hearing before the commission. In fact, the plaintiff’s representative testified that the implementation had been suspended, and continued to be suspended. The approval of the plaintiff’s application, if that had occurred prior to the effective date of the 1995 Act, would not be the equivalent of the issuance of a license because the Keno game had not then been fully implemented. After July 1, 1995, the effective date of the 1995 Act, the board, as we have said, interposed its objections to the plaintiff’s application.
The plaintiff also argues that it was deprived of substantive due process by the commission’s decision. However, the plaintiff was never granted a license, nor did it, under the 1996 Act, have an unconditional right to a license, as discussed above. For that reason, the plaintiff did not have any protected property interest, without which there can be no violation of its constitutional rights. See Roslindale Motor Sales, Inc. v. Police Commr. of Boston, 405 Mass. 79, 82 (1989).
There was no error in the commission’s decision.
Judgment affirmed.
Section 387 provided, in part, that a Keno license “shall not be issued” to any person, business, or corporation owing a financial obligation to the Commonwealth or who has been convicted of a felony.
The 1995 Act was applicable for the period July 1, 1995, through December 31, 1995, and replaced the 1993 Act during that period.
The quoted phrase appears in the commission’s final decision.
We note also that the plaintiff acquiesced in the hearing on the board’s objection to the plaintiff’s application for a license. At the adjudicatory hearing on April 24, 1996, the plaintiff made no argument (as it does in this court) that the 1993 Act, not the 1996 Act, governs its application. It is settled law that “[a] party is not entitled to raise arguments on appeal that he could have raised, but did not raise, before the administrative agency.” See Foxboro Harness, Inc. v. State Racing Commn., 42 Mass. App. Ct. 82, 85 (1997), quoting from Albert v. Municipal Ct. of Boston, 388 Mass. 491, 493 (1983), and cases cited.