Number 18 November 6, 1973

Number 18 November 6, 1973 Harold F. Kowal, Esquire Special Counsel Alcoholic Beverages Control Commission Leverett Saltonstall Building 100 Cambridge Street Boston, Massachusetts 02202 Dear Sir: You have requested an opinion whether in accordance with G. L. c. 138, § 17 there are any seasonal liquor licenses available in the town of Carver. General Laws, c. 138, § 17 delineates the procedure for the granting of seasonal licenses. After consideration of the statute, the es- timate of population increase filed by the local licensing authority with your Commission, and the circumstances under which the estimate was made, I am of the opinion that the estimate is improper and not in ac- cordance with the statutory provisions. General Laws, c. 138, § 17 provides, in pertinent part: "The local licensing authorities of any city or town, except the city of Boston, may make an estimate prior to March the first in any year of any temporary increased resident popula- tion in such city or town as of July the tenth following, and one additional license under section fifteen [of Chapter 138], to be effective from April the first to November the thirtieth only, may be granted by said authorities for each unit of five thousand or additional fraction thereof of such population as so estimated, . . . provided, that not more than one additional license shall be granted under this paragraph to the same per- son or for the same premises in any one year; and provided, further, that the local licensing authorities of any city or town, except the city of Boston, may grant, in addition to and irrespective of any limitation of the number of licenses con- tained in this section, seasonal licenses under section twelve [of Chapter 138], to be effective from April the first to November the thirtieth only, ... to the amount or number that such authorities deem to be in the public interest. Every estimate hereunder of temporary resident population shall be made and voted upon by the local licensing authorities at a meeting of said authorities called for the purpose after due notice to each of the members thereof of the time, place and purpose of said meeting and after investigation and ascer- tainment by them of all the facts and after co-operative dis- cussion and deliberation. A copy of such an estimate, signed by a majority of the members of said authorities, stating under the penalties of perjury that all the foregoing require- ments have been complied with and that the estimate is true to the best of their knowledge and belief, shall be forwarded forthwith to the commission." P.D. 12 79 Pursuant to G. L. c. 138. § 17. the local licensing authority of Carver, the Board of Selectmen, held a meeting on February 13, 1973, and esti- mated that the temporary increased resident population as of July 10, 1973 would be 9000. However, it appears from the facts presented that (1) one member of the Board was not notified by any person or any member of the Board that the matter of estimating temporary resident population for purposes of G. L. c. 138, § 17 would be discussed; (2) there was no investigation and ascertainment of the facts of any tempor- ary resident population increase in the town of Carver as of July 10th, as required by Section 17; (3) there was no cooperative discussion and de- liberation of any kind whatever during the meeting of the facts upon which the temporary resident population increase estimate was based. The validity of the estimate and the availability of any seasonal licenses pursuant to the statutory authorization is dependent upon a fac- tual determination whether the statutory provisions were complied with. Pettengell v. Alcoholic Beverages Control Commission, 295 Mass. 473. Therefore, for the reasons stated above, the statute was not complied with, the estimate of temporary resident population was made in contra- vention of the statute, and is invalid and not binding upon the town of Carver or upon the Alcoholic Beverages Control Commission. For these reasons, I am of the opinion that no seasonal licenses are available in the town of Carver in accordance with G. L. c. 138, § 17. Very truly yours, ROBERT H. QUINN Attorney General