Liquor store owners win partial reprieve from city ‘nips’ ban

Liquor store owners win partial reprieve from city ‘nips’ ban

NEW BEDFORD — “Nips” buyers and the stores that sell the tiny liquor bottles have been granted a partial reprieve from a citywide ban due to take effect Aug 1. But it is not clear if sales will be allowed after that. 

A Bristol County Superior Court judge on Monday ruled that until the case seeking to quash the ban is resolved, the city cannot enforce the regulation adopted by the New Bedford Licensing Board, but the state is not barred from doing so. The decision leaves unresolved the question of whether the local ban on sales of liquor bottles of 100 milliliters or less is likely to be enforced by the Massachusetts Alcoholic Beverages Control Commission.

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The case brought in April by more than a dozen city liquor store operators, who seek to strike down the ban voted unanimously last July, makes a number of claims. Among other points, plaintiffs argue that the board itself was not legally constituted when it voted and that controlling street litter — a main complaint made against nips in board hearings — is outside the board’s authority. 

Judge Raffi N. Yessayan granted the plaintiffs’ motion for a preliminary injunction to stop city enforcement on grounds that they have a chance of ultimately winning on some of their arguments, and that owners would suffer substantial harm if the ban were to go into effect before the case is resolved. He wrote that a decision in the case before the ban is scheduled to go into effect on Aug. 1 is “exceedingly unlikely.”

The eight-page decision noted the store owners’ argument that if the ban is enforced, they would lose one fifth to a half of their gross sales, or between $300,000 and $700,000 in revenue. 

The judge did not grant the liquor retailers’ move to also bar the ABCC from enforcing the ban. He wrote that their claim against the ABCC on procedural grounds was not likely to prevail and that appeals to the ABCC could be pursued later.

Last year, proponents of the “nips” ban placed bags of bottles they found discarded on neighborhood streets on the table in from of licensing board commissioners, from left, Chairman Edmund F. Craig Jr., Commissioner Marcelino “Sonny” G. Almeida and Executive Aide Christine Amaral. Credit: Arthur Hirsch / The New Bedford Light

As of the close of business on Monday, the ABCC had not responded to a request for comment on whether the agency would be likely to enforce a regulation adopted by a local licensing board, or if it has ever done so. 

The lawyer for the plaintiffs, Armand Fernandes Jr., did not return a message. The City Solicitor’s Office, which represents the board in the case, also did not respond to a request for comment. 

After a raucous, standing-room-only hearing at the New Bedford Public Library on July 24, the board voted 3-0 to ban nips after hearing testimony about the empties strewn all over city streets, parks and beaches. Supporters of the ban brought plastic bags of empty bottles they had collected and dropped them on the table in front of board members. 

A crowd of more than 100 people fills a meeting room and flows out into the hallway on the third floor of the New Bedford Public Library at last year’s Licensing Board public hearing. Credit: Arthur Hirsch / The New Bedford Light

New Bedford joined a number of Massachusetts communities that have established bans, including Chelsea, Newton, Falmouth, Wareham, Mashpee and Brewster, according to published news accounts. The closest, Fairhaven, adopted a ban that was scheduled to take effect in January.

The New Bedford prohibition originally was to take effect on Nov. 1. The board met again in a special meeting on Oct. 25 and agreed to extend the effective date to Aug. 1.

In their arguments to strike down the ban, the plaintiffs claim that the Licensing Board did not have the authority to do any of this because it is not set up in accordance with state law and local ordinance. Specifically, that there is no member who is appointed for a six-year term, and the three-member board does not include one member from each of the two “leading political parties.”

According to court documents, two members, Marcelino Almeida and Edmund F. Craig, are registered as “unenrolled,” and Ricard Rezendes is Republican. 

Judge Yessayan wrote that “there are unresolved factual issues which may prove relevant to the legal issue of board authority.”

Email reporter Arthur Hirsch at [email protected].

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