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A national mail-order beer- and wine-of-the-month club, based in Illinois, will not be allowed to sell its products to customers in Massachusetts following the Massachusetts Appeals Court’s decision upholding a ruling by the Alcoholic Beverages Control Commission that pulled the company’s license. In a decision issued Wednesday in the case of BAA Massachusetts Inc. v. Alcoholic Beverages Control Commission (ABCC) (98-P-2086), the Massachusetts Appeals Court found that Beer Across America (BAA) had violated several requirements of its license to sell alcohol to customers in Massachusetts. The ABCC originally revoked the license of Beer Across America in December 1997. Since then, the company had failed a number of attempts to obtain an injunction allowing them to continue selling pending any appeals, said William A. Kelley Jr., ABCC general counsel. The company’s beer and wine, including all its pending orders, have not been sold or delivered in Massachusetts since the original ABCC decision, Kelley said. DETAILS DISTURBING The Massachusetts Appeals Court decision “underscores the requirement that all businesses need to comply with the laws of the commonwealth,” said Kelley, who called the facts of this case “particularly disturbing.” Although he did not have immediately available the number of Massachusetts customers affected by this decision, Kelley described the Beer Across America business as an “emerging and increasingly popular” product for Massachusetts consumers at the time of the commission’s decision. Boston lawyer Evan T. Lawson, who represented BAA, could not be reached for comment as to whether the company plans to appeal the decision. According to the Massachusetts Appeals Court decision, BAA Massachusetts held a license to sell beer and wine for “off-premises consumption” at 50 Terminal Street in Charlestown. “Undisputed evidence established that BBA Massachusetts kept no inventory of alcoholic beverages, no implements of sale of alcoholic beverages, and no telephones at its licensed location,” a site used as a storage space for another company, according to the decision. WHO’S MINDING THE STORE? “While shipments of alcoholic beverages stopped at the licensed location in Charlestown, they were neither inspected by BBA Massachusetts employees nor unloaded at that point,” the court wrote. The company merely paid an employee of the warehouse to sign for deliveries and sent them along to the next destination, the court wrote. When interviewed by the commission in February 1997, the license manager for BAA Massachusetts told the ABCC that she did not know or was not sure of the following information: who pays for deliveries to the company; how it receives payment for the products it sells; how a Massachusetts consumer places an order; and who pays her for her work. “On these subsidiary findings, for which there was substantial evidence, the commission justifiably concluded that BBA Massachusetts had ceased to conduct its licensed business in Massachusetts,” the appeals court wrote. REVERSING AN ABCC DECISION In another part of Wednesday’s ruling, the court reversed the ABCC’s decision revoking the certificate of compliance of Lionstone International allowing it to export alcoholic beverages from Illinois to Massachusetts. Lionstone served as the supplier for BBA Massachusetts. The ABCC had originally revoked Lionstone’s certificate of compliance in November 1997. However, the Massachusetts Appeals Court found that the commission decision was based on an error of law when it concluded that the supplier had violated the Liquor Control Act (G.L. c. 138, Sect. 22) because the carrier it hired for a shipment into Massachusetts was in violation of the statute. ABBC investigators in 1997, conducting a check of the delivery of alcohol of BBA Massachusetts, found that the driver of the truck did not have a Section 22 permit, which requires the trucking business to obtain and carry a permit in order to transport and deliver alcoholic beverages within Massachusetts. The driver had just delivered 1,496 packages of alcoholic beverages from Illinois to Massachusetts. According to court, there is no statutory provision that establishes the supplier’s duty to determine whether the carrier had a permit to transport and deliver alcoholic beverages in accordance with Section 22. Therefore, to treat the carrier’s failure to obtain a permit as a failure of the supplier made the supplier absolutely liable for the omission of an act that it had no obligation to perform under state statutes.

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