From Coffeeshop, LLC v. Alcoholic Beverage Control Comm’nthe Massachusetts Court of Appeals ruled on Monday (Judges William Meade, Sabita Singh and Paul Hart Smyth):
At 7.10pm on Saturday, September 29, 2018, members of the Cambridge Police and Fire Department responded to the plaintiff’s business on a law enforcement matter regarding the use of candles. After observing five to 10 lit glass votive candles on the counter and tables, officials spoke with Courtney and Dietrich [then-owners of Coffeeshop, a wine bar]each of which recorded the majority of the interaction.
The officers instructed Courtney and Dietrich to blow out the candles. Courtney refused and asked the men to show her the text of the laws violated by the plaintiff’s use of candles. Officials attempted to read aloud a law supposedly regulating the use of candles; Courtney interrupted them and said that the law in question was unenforceable, which, as discussed below, is correct.
As the conversation continued, the group moved outside. One of the officials then called a supervisor, who arrived on scene at 7:35 p.m. While Courtney spoke with two officials, the other officials went back inside the premises to shut down the establishment. Once an official asked an employee to turn off the music, Courtney relented and blew out the candles “in protest.” After blowing out the candles, Courtney asked the officials for their business cards or identification. As they left, around 7.53pm, Courtney stated “you’ll live to regret this”.
On 12 October 2018, the Cambridge Licensing Commission (council) issued a disciplinary hearing notice in relation to the incident, charging the complainant with (1) fire safety breach, (2) obstructing an investigation, (3) intimidation of a witness and (4) threat to a public official. The board found the plaintiff in violation of all charges against him and ultimately imposed a five-day suspension. The plaintiff appealed.
After a six-day hearing, which featured testimony from nine witnesses and a total of seventy-five documents, the ABCC reversed the violation finding on the first charge. It ruled that the council had charged and violated the plaintiff for “a section of the law relating to the use of candles with portable cooking equipment”, and it was “undisputed that the candles at [plaintiff’s] establishment were not used for portable cooking equipment.” Consequently, this violation could not stand. However, the ABCC upheld the committee’s findings regarding violations of interference with an investigation or law enforcement, intimidation of a witness and threaten an officer, ultimately upholding a three-day suspension in connection with those violations. A Superior Court judge said….
The obstruction charge was based on the owners’ discussion with officers regarding the validity of the enforcement action. The ABCC found that substantial evidence supported the claim that Courtney specifically obstructed an “authorized agent of [the] local licensing authorities in the exercise of their duties,” in violation of GL c. 138, § 63A, and a corresponding local council rule. The ABCC noted that the officials were “undoubtedly obstructed and retarded [in their] investigation… into the use of candles” for at least thirty-five minutes while Courtney and Dietrich “argued” with them…
[But a]Although the business owners disputed the officials’ reasons for the execution order, there is no evidence that they prevented any officials from entering the business or denied them the requested information. In fact, during the exchange, the officials did not seek any “information necessary for the correct application of” LG c. 138, § 63A; instead, owners asked officials for information about the law they claimed to enforce. The charge of obstruction cannot be sustained….
The charges of intimidation and threats were based on Courtney’s statement to officials: “you will live to regret this.” In the video, Courtney states: “[Y]you guys will regret acting this way; that’s not how it works.” However, the ABCC credited officials’ testimony that Courtney said, “you’ll live to regret this,” even though it was not found in any recording, because “[t]there is nothing to indicate that every word uttered was captured on the recordings.” We note, however, that nothing in the record indicates that the witnesses heard Courtney express this sentiment more than once and that the video recording conforms to the testimony of the witness regarding the moment officials heard Courtney make the statement.
The ABCC found that this constituted intimidation in the sense that it implied that Courtney would make a complaint against the officials, which in turn would cause them economic harm because it would jeopardize their professional careers. Similarly, the ABCC found that the statement also constituted a threat to commit a criminal offence, specifically witness intimidation, in the sense that it implied that Courtney would retaliate against the officials for their coercive action by filing a complaint, thereby causing them economic damage, jeopardizing their careers. The ABCC further noted that Courtney “followed up on her threat to retaliate against their employment by filing a complaint against them in part arising out of their investigation…, which only lends credence to the fact that she intended that the statement of she meant that she… [planned] for revenge.”
There is no doubt that Courtney’s statement was interpreted as nothing more than an intention to file a complaint against the conduct of government officials. No matter how aggressive the tone, the statement does not constitute a “real threat” that could deprive her of First Amendment protection. An individual’s right to file a complaint against his or her government may not be denied on the theory that the legitimate complaint somehow threatens or intimidates a government official; the statement in question here is a classic example of protected speech. The charges of intimidation and threats cannot be accepted….