Number 15. October 30, 1968

Number 15. October 30, 1968 HON. CHARLES H. McNAMARA Commissioner ofAgriculture State Office Building 100 Cambridge Street Boston, Massachusetts 02202 Dear Commissioner McNamara: You have asked my opinion as to whether, upon a request by a certain greyhound association (the "Association"), you must notify it of applications to you for the certificate of approval (a "Certificate") under G.L. c. 128A, § 3, which an applicant for a racing license at a state and/or county fair must submit to the State Racing Commission. You also ask whether you must comply with a request of the Association that you hold an adjudicatory proceeding under the Administrative Procedure Act (G.L. c. 30A) upon each application for a Certificate and that you allow the Association to appear, participate and be heard. For purposes of this opinion, I will assume, without deciding, that the application for a Certificate under G.L. c. 128A, § 3 must be determined in an adjudicatory proceeding under G.L. c. 30A, § 1(1), since I am of the opinion that even in that event the Association has no right to notice or to appear, participate or be heard. 1 Under G.L. c. 128A, § 3, as amended through St. 1967, c. 14, an applicant for a license to conduct a horse or dog racing meeting in connection with a state or county fair must present to the State Racing Commission a certificate from the Commissioner of Agriculture that "(1) such fair is a state or county fair as defined in section one, (2) such fair has been operating for each of the five consecutive years immediately preceding the date of filing such application and had received for each of said five consecutive years assistance from the agricultural purposes fund, (3) such fair is properly qualified [in certain specified respects] , and (4) the location where such racing meeting is to be held is annually approved by him and by the board of agriculture .... In determining whether a fair is properly qualified under this paragraph, the commissioner of agriculture shall consider the number of days such fair has operated each previous year, the area of the land used for fair purposes, the number of entries in agricultural show events in previous years, the number and value of prizes offered in such events and whether or not the granting of a racing license would tend to promote the agricultural purposes of the fair." Assuming, then, for the purposes of this opinion only, that a Certificate may be issued only after an adjudicatory hearing under G.L. c. 30A (a question, as noted earlier, that I do not now decide), the question of whether the Association has a right to notice, appearance and participation in such a hearing depends on whether the Association is to be regarded as a "party" to the proceeding, within the meaning of G.L. c. 30A, § 1(3), which defines a "party to an adjudicatory proceeding" as: 'it is equally clear that if G.L. c. 30A were not applicable, no other provision of law would grant to the Association the right to notice, appearance, participation or hearing. P.D. 12 63 "(a) the specifically named persons whose legal rights, duties or privileges are being determined in the proceeding; and (b) any other person who as a matter of constitutional right or by any provisions of the General Laws is entitled to participate fully in the proceeding, and who upon notice as required in paragraph (1) of section eleven makes an appearance, and (c) any other person allowed by the agency to intervene." Under G.L. c. 30A, § 1 1(1), only a "party" is entitled to notice of the hearing; under G.L. c. 30A, § 10, only a "party" is entitled to "an opportunity for full and fair hearing;" and under G.L. c. 30A, § 1 1(3), only a "party" has a "right to call and examine witnesses, to introduce exhibits, to cross-examine witnesses who testify, and to submit rebuttal evidence." Although the exact nature and function of the Association does not appear in the information that you have furnished to me, I assume that it is a potential competitor of one or more potential applicants for Certificates. Yet even on this assumption it does not come within the definition of a "party" in § 1(3) of the Administrative Procedure Act quoted above. First, "the specifically named" person whose legal rights, duties or privileges are being determined in the proceeding to obtain a Certificate is the applicant only. Second, no provision is made in the pertinent statute, G.L. c. 128A, § 3, for participation by any person other than the applicant. And finally, I am of the opinion that a potential competitor of the applicant has no "constitutional right ... to participate ... in the proceeding." 2 An application to you for a Certificate is only the first step in a longer process that may culminate in the issuance of a license by the State Racing Commission. You merely make certain preliminary determinations under G.L. c. 128A, § 3, which are related to the agricultural aspects of the proposed fair. If your determinations are favorable, they merely enable the applicant to take the next step of seeking a license from the State Racing Commission. They do not confer any operating right on the applicant nor do they deny or abridge rights of any other person. The possibility that the granting of a license to the applicant by the State Racing Commission may create possible competition with other racing activities is not one of the matters that have been committed to you for consideration. Questions as to such competition fall instead within the jurisdiction of the State Racing Commissioners who upon an application for a racing license must conduct an adjudicatory proceeding. See Bay State Harness Horse Racing & Breeding Assn. Inc. v. State Racing Commn., 342 Mass. 694, 701. The Commissioners may of course allow other persons to intervene in the proceeding before them. I regard as inapplicable in the present situation such cases as South Shore National Bank v. Board of Bank Incorporation, 351 Mass. 363, 367-368, and Westland Housing Corp. v. Commissioners of Insurance, 352 Mass. 374, 383-384. Each of these cases presented the issue whether the plaintiff had a sufficiently direct interest to have standing to seek judicial review of administrative action. None of them involved the question of whether the plaintiff was as a matter of constitutional right entitled to participate in the hearings of the administrative agency. In any event, I regard as more applicable certain cases which have denied standing to certain persons who have sought judicial review of administrative 2The situation where a person has in fact been permitted to intervene as a party is not pre- sented by your request. See G.L. c. 30A, § 10; Wilmington v. Department of Public Utilities, 340 Mass. 432, 437. 64 P.D. 12 action. See Circle Lounge & Grill, Inc. v. Board ofAppeal of Boston , 324 Mass. 427, 429-430; Springfield Hotel Assn. Inc. v. Alcoholic Beverages Control Commission, 388 Mass. 699, 701; Shaker Community, Inc. v. State Racing Commn., 346 Mass. 213, 215-216. In summary then, I conclude that the Association has no right to notice of, or to appear or participate in, hearings upon applications by other persons for Certificates. Very truly yours, ELLIOT L. RICHARDSON A ttorney General