# Moretti v. Division of Intoxicating Beverages

> Supreme Court of Rhode Island · March 30, 1939 · 62 R.I. 281

URL: https://www.frixlaw.com/law-library/cases/3869319

## Case

- **Full name:** Michael Moretti vs. Division of Intoxicating Beverages; Vincenzo Moretti vs. Same
- **Court:** Supreme Court of Rhode Island
- **Decided:** March 30, 1939
- **Citations:** 62 R.I. 281; 5 A.2d 288; 1939 R.I. LEXIS 28
- **Precedential status:** Published
- **Opinion:** Dissent by Moss
- **Judges:** Flynn, Moss, Capotosto, Baker, Condon
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3869319

## Opinion text

Moss, J.,
dissenting. I am unable to agree with my associates in the interpretation of the statute in question in its amended form. As quoted in the opinion of the court, the important part of sec. 14 is as follows: “Upon the application of any petitioner for a license, or of
any person hereby authorized to protest against the granting of a license . . .
the commission shall have the right to review the decision of any local board . . . .”
The question, then, is what is meant by the words which I have italicized in the above quotation. There are just two
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parts of the statute to which they might refer. One of these is sec. 20 as amended, which reads as follows: “Before granting a license to any person under the provisions of this act the board, body or official to whom application for the same shall be made, shall give notice by advertisement published once a week for at least two weeks in some newspaper published in the city or town where the applicant proposes to carry on business or if there be no newspaper published in a town, then in some newspaper having a general circulation in such city or town; provided, that application for retailers’ class F and class G licenses need not be advertised. The advertisement so published shall contain the name of the applicant and a description by street and number or other plain designation of the particular location for which the license is requested. Said notice shall state that
remonstrants
are entitled to be heard before the granting of such license, and shall name the time and place of such hearing. At such time and place a fair opportunity shall be granted the
remonstrants
to make their
objections
before acting upon said application.” (italics mine)
The other part of the statute to which the words above quoted from sec. 14 might refer is the following from sec. 21 as amended: “Retailers class B and class C licenses under this act shall not be issued to authorize the sale of beverages in any building or place where the owners of the greater part of the land within two hundred feet of such building or place shall file with the body or official having jurisdiction to grant licenses their'
objection
to the granting of such license ....” (italics mine)
It should be noticed that nowhere in the statute is anyone
expressly
“authorized” to “protest” against the granting of a license; but all the members of the court agree that such authority may be inferred from any language, which recognizes a right to protest and that it is recognized in the language above quoted from sec. 21. As to this point the only issue on which there is not a complete agreement is whether
*289
such a right to protest is recognized in the language above quoted from sec. 20.
It is noteworthy that neither the word “protest” nor any form or derivative of it appears in either of these sections, and that this word is given in Webster’s New International Dictionary and at least in some of the other standard dictionaries as one of the synonyms of “remonstrate”. So far as the meanings of the three words are concerned, I can see no reason why it is not as probable that the word “protest” in sec. 14 refers to the word “remonstrants” in sec, 20, as that it refers to the word “objection” in sec. 21.
The majority of the court have found that the reference is exclusively to the word “objection” in sec. 21. But the word “objections” is found in sec. 20 and is there used as referring to objections made by
“remonstrants”.
Therefore, it seems clear to me that the findings of the majority of the court cannot properly be based at all on the phraseology of the three sections in question and must be justified, if at all, on much broader considerations.
But in my judgment the broader considerations are strongly against this finding rather than in favor of it. By the last part of sec. 21, immediately following the part above quoted, it is provided that no class B or class C license shall be issued to authorize the sale of beverages
(i. e.,
alcoholic beverages) “in any building or place within two hundred feet measured by any public way of the premises of any public or parochial school or of a place of public worship.”
If the word “protest” in sec. 14 be interpreted as referring only to the word “objection” in sec. 21, then in my judgment it clearly follows that an appeal to the division of intoxicating beverages from a decision of a local board granting a class B or class C license cannot be taken by
anybody
on the ground that the building or place in which such beverages are to be sold under such license is within two hundred feet, measured by any public way, from a public or parochial school or a place of public worship, unless such an appeal,
*290
based on that ground, can be taken by an owner of land within two hundred feet of such building or place, which to me is doubtful, since that ground and his ownership of such land have no relevancy to each other.
But even if it can be taken by such an owner, I can see no justification for unnecessarily so construing this statute that an owner of such land can, on this ground of proximity to a school or church, protest against the granting of a license, and can take an appeal, if the license is granted notwithstanding his protest, and yet none of the residents of the city or town who attend at such church or whose children attend such school can protest or take such an appeal.
It is true that in the opinion of the majority of the court it is stated that “any person who objects to the local board that the proposed licensed premises are within two hundred feet of a school or a church is also authorized by the statute to protest against the granting of a license.” But I cannot see how that statement can be reconciled with the view of the majority that under sec. 14 only persons expressly authorized by the statute to protest can appeal and that the only persons who are thus authorized to protest are those who by sec. 21 are authorized to file their objections to the granting of a license.
Moreover, it is, to my mind, much more reasonable to hold that any persons whose rights to remonstrate by presenting objections against the granting of a certain license are recognized by sec. 20 and who have thus remonstrated to the local board on any relevant ground, including this particular ground of the proximity of the place, where liquor is to be sold under the license, to a school or church, may appeal from an adverse decision by the local board. Besides this particular ground, it seems to me that there are other grounds of objection which are at least equally serious, in the interest of temperance and the proper control of the traffic in alcoholic beverages.
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Such a holding would obviate any necessity of giving a strained construction to the language of secs. 14 and 21 in order to enable anyone having an interest in preventing the selling of intoxicating beverages within two hundred feet of a school or church to object to the granting of a license for such selling.
It would also prevent what seems to me a very regrettable result which will follow from the decision of the court in these cases. That result will be that an owner of property within two hundred feet of the location for which a license is sought, though he may not be a resident of the town or city and may have no interest whatever, on grounds of morals, health, or the effect on young people or of common decency, in opposing the granting of a license, will have a right to protest against the granting of the license. He will also, if it is granted, have a right to take an appeal to the state division from the decision of the local board. But a citizen of the town or city, who, with a wife and their family of adolescent children, resides near the location where liquor would be sold under the license, if granted, and who has conclusive evidence that the applicant is a man who cannot be trusted to act under the license in a decent manner, will not be able to take an appeal to the state division if the local board ignores his remonstrances and his objections and his evidence and grants the petition for a license.
In my judgment such a result should be avoided, by-any interpretation of the statute that is reasonable in view of the following provision in sec. 81 of the statute: “This act shall be construed liberally in aid of its declared purpose which declared purpose is the promotion of temperance and for the reasonable control of the traffic in alcoholic beverages.” In my judgment there is such an interpretation which is clearly reasonable, especially in view of the provision just quoted, and which will avoid the above result and produce a result that will accomplish the above-declared purpose.
*292
It is provided in sec. 14, as amended, that the state division, upon the application “of any person hereby authorized to protest against the granting of a license”, shall have the right to review the decision of any local board, granting such license. It is provided in sec. 20 that before granting any such license as is involved in each of these cases, the local board shall give notice of the application for such license by publishing notice thereof in a newspaper published in the city or town, or if there is no such newspaper, then in one having general.circulation therein. It is there provided also that such notice shall state that remonstrants are entitled to be heard before the granting of the licenses and shall state the time and place of the hearing. It is then provided in the section that at such time and place “a fair opportunity shall be granted the remonstrants to make their objections” before the application is acted upon.
In view of the fact that the notice is required to be given in a newspaper that has at least a general circulation in the city or town, it seems to me that the implication is clear that any citizen and resident of the city or town would have the right to remonstrate. It also seems to me that the section should be construed as requiring each remonstrance to be based on an objection or objections with which the remonstrant is concerned, and should be given the same effect, in connection with sec. 14, as if in sec. 20 the words “persons wishing to protest” were substituted for the word “remonstrants”, and the words “grounds for protests” were substituted for the word “objections”.
The result of this interpretation would be that by sec. 14 any citizen and resident of the city or town who had remonstrated or protested to the local board against the granting of a petition for such a license as those involved in the instant cases, and had stated his objections to the granting of such petition, and had thus made himself a party to the proceedings, would be entitled to take an appeal to the state division from a decision of the local board granting
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the petition; and the division would then have the right to review the decision.
Sisson & Fletcher,
for petitioners.
Hoyt W. Lark, Hart, Gainer & Carr, William G. Troy,
for respondents and remonstrants.
In the instant cases these conditions were satisfied by the remonstrants who applied to the division for a review of the decisions of the local board; and therefore it is my opinion that the division had a right to review such decisions. It is my opinion also that, upon the evidence before the division, it was justified in its decisions, reversing the decisions of the local board and ordering that the licenses should expire on March 31, 1939.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3869319. Public record. Not legal advice.