from Coffee Shop, LLC v. Alcoholic Beverage Control Commthe Massachusetts Appeals Court (Justices William Mead, Sabita Singh and Paul Hart-Smith) ruled on Monday:
At 7:10 PM on Saturday, September 29, 2018, members of the Cambridge Police and Fire Departments arrived at Plaintiff’s business for an enforcement matter regarding its use of candles. After observing five to ten lit candles in glasses on the bar and tables, the officers spoke to Courtney and Dietrich. [then-owners of Coffeeshop, a wine bar]who each recorded most of the conversation.
Officers instructed Courtney and Dietrich to turn off the lights. Courtney refuses and demands that the men show her the text of the laws that violate the plaintiff’s use of candles. The officers attempted to read aloud a law which expressly governed the use of candles; Courtney interrupts them and says that the law in question is not applicable, which the following argument is correct.
As the conversation continued, the group moved out. One of the officers then called a supervisor, who arrived on the premises at 7:35 PM, while Courtney spoke with the two officers, other officers returned to the premises to lock down the establishment. Once an official asked an employee to turn down the music, Kourtney relented and blew out the candles “in protest.” After she blew out the candles, Courtney asked the officers for their business cards or identification. As they were leaving, at approximately 7:53 p.m., Courtney said, “You’re going to live to regret this.”
On October 12, 2018, the Cambridge Licensing Commission (Board) issued a Notice of Disciplinary Hearing regarding the incident, charging Plaintiff with (1) a fire safety violation, (2) obstructing an investigation, (3) a witness Intimidation and (4) Intimidation of a public official. The Board found Plaintiff in violation of all charges against him and ultimately imposed a 5-day suspension. Petitioner appealed.
After a hearing that lasted six days, testified from nine witnesses, and included a total of fifteen exhibits, the ABCC reversed the finding of infringement on the first charge. It was decided that the Board had alleged and that the plaintiff had violated “a part of the law relating to the use of candles in portable cooking equipment” and that it was “non-controversial candles.” [plaintiff’s] The establishment was not used for portable eating equipment.” Accordingly, such a violation could not stand. However, the ABCC affirmed the Board’s findings that, as interfering with an investigation or violation of law enforcement, a witness Intimidation, and intimidation. Officials, ultimately upholding the three-day suspension associated with these violations. A Supreme Court judge affirmed….
The obstruction charge was based on the owner’s argument with officials about the validity of the enforcement action. The ABCC found that substantial evidence supported the claim that Courtney specifically restrained an “authorized agent.” [the] local licensing authorities in the performance of their duties, “in violation of GL c. 138, § 63A, and related local board rules. The ABCC noted that officials were “undoubtedly obstructed and delayed.” [in their] Research… using candles for at least five minutes as Courtney and Dietrich “argued” with them….
[But a]Although the owners of the establishment challenged the officers’ orders to enforce the grounds, there is no evidence that they prevented any of the officers from entering the business or denied the information requested from them. In fact, during the exchange, the officers did not require any “information as required” for the proper enforcement of “GL c. 138, § 63A; in contrast, the owners were seeking information from the officers about the law that they claimed to enforce the .The allegation of obstruction cannot be sustained….
The charges of threats and intimidation were based on Courtney’s official statement, “You will live to regret this.” On the video, Kourtney says, “[Y]You guys are going to regret acting this way; That’s not how it works.” However, ABCC believed the officers’ testimony that Courtney said, “You’re going to live to regret it,” even though none of the recordings were found because “[t]There is nothing to indicate that every word spoken was captured by the recording. “We note, however, that nothing in the record indicates that the witness heard Courtney express such emotion more than once and that the video recording is consistent with the witness’ testimony. The time when the officers heard Courtney explained.
The ABCC found that this constituted intimidation in the sense that it meant that Courtney would make a complaint against the officers, which would result in economic loss to them because it would jeopardize their professional careers. Likewise, the ABCC found that the statement also constituted a threat to commit a crime, specifically witness intimidation, in the sense that it implied that Courtney would file a complaint against the officers for their enforcement action, so they will cause economic damage by threatening their careers. The ABCC further noted that Courtney “pursued threats of retaliation against her employer by filing a complaint against them arising in part from their investigation…, which only lends credence to the fact that she made her statement.” Which means she… [planned] Revenge.”
It is undisputed that Courtney’s statement was taken as nothing more than an intention to file a complaint against the conduct of government officials. No matter how offensive, the statement does not constitute an “actual threat” that would deprive it of First Amendment protection. The right of an individual to file a complaint against his government cannot be denied under the theory that a legal complaint somehow threatens a government official. The statement released here is an excellent example of protected speech. Accusations of threats and intimidation cannot be tolerated….
