State unlikely to enforce city’s paused ban on ‘nip’ bottles

NEW BEDFORD — The state’s alcohol control agency seems not to make a practice of enforcing local regulations, so it appears that city liquor stores will be free to sell tiny liquor bottles, or “nips,” after Aug. 1, when a citywide ban was due to take effect.

A Bristol County Superior Court judge on Monday temporarily barred the city from enforcing the ban, but did not restrain the Massachusetts Alcoholic Beverages Control Commission from doing so. On Tuesday, a spokesman for the ABCC said that he knows of no occasion when the agency enforced a local regulation after the local authority was blocked by a court in this way.

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Andrew Napolitano offered no other comment, other than to say that the agency is “reviewing the court decision.”

Same goes for New Bedford’s city solicitor, which represents the Licensing Board in the court proceedings, said Jonathan Darling, spokesperson for the city. Mayor Jon Mitchell strongly supported the regulation on the liquor bottles under 100 milliliters.

“The Licensing Board’s goal in unanimously voting in favor of the ‘nip’ ban was to cut down on litter and vagrancy issues, and both are still problems today, two months before the ban was set to take effect,” Darling said Tuesday. 

The preliminary injunction against enforcing the ban, along with the eight-page opinion by Judge Raffi N. Yessayan, came in a case brought in April by a group of local liquor store owners. They are seeking to permanently strike down the regulation approved by the New Bedford Licensing Board in July. The injunction stops city enforcement until the case is resolved, which the judge said is “exceedingly unlikely” to happen before Aug. 1. 

As the judge found that the plaintiffs have a reasonable chance of winning on their main arguments, and as they would suffer economic losses with the ban in effect, he granted a portion of their motion for the injunction. Yessayan did not agree to the move to stop the ABCC from enforcing the ban, but now it does not appear likely that the agency would do that. 

The judge wrote that the plaintiffs’ claim against the ABCC on procedural grounds would probably not succeed, and that appeals to the ABCC could be pursued later. 

The decision cited 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 also mentioned an affidavit introduced in the case by a plaintiff who also owns a store in Fairhaven, where a ban went into effect in January. The owner reported that total store sales fell 14%, while profits were down 20%.

Several of the liquor store owners who brought the suit referred requests for comment to their lawyer, Armand Fernandes Jr.. Fernandes declined to offer comments for this story.  

Matt Patel, owner of Silva’s Discount Liquors, said he was still sorting out how to proceed after Aug. 1. 

“Right now we haven’t decided anything,” Patel said. “If the state does it, we will stop,” he said, meaning they’ll stop selling the little bottles if the state enforces the prohibition. 

The three-member local board voted unanimously last July to ban nips after hearing testimony about discarded bottles littering city streets, parks and beaches. At the packed session in a meeting room at the New Bedford Public Library, supporters of the ban presented plastic bags full of empty bottles they had collected, leaving them on the table in front of board members. 

The prohibition originally was to take effect on Nov. 1. In response to a clamor from store owners and many city councilors, the board met again in a special meeting on Oct. 25 and agreed to extend the effective date of the ban to Aug. 1.

In trying to strike down the ban, the plaintiffs make several arguments. They claim that controlling street litter — a main complaint made against nips in board hearings — is outside the board’s authority. 

The plaintiffs also claim that the Licensing Board did not have the authority to establish the prohibition because when it voted, it was not set up in accordance with state law and local ordinance. Specifically, they argue 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.

City Council President Naomi R.A. Carney, who opposed the regulation last year, said she was pleased with the decision. She said the rule was enacted “with no discussion with city councilors. We are the lawmakers of the city. We were just blindsided.”

Carney, an at-large councilor, said the Licensing Board made a “really hasty decision. We needed some time to look at another way to handle this.”

Ward 1 City Councilor Leo Choquette, who was not in office when the ban was adopted, said he thought “the judge made the right call in putting a stop to this. I feel strongly for the owners of the stores.”

He called the ban a government “overreach” that would not necessarily prevent litter from discarded nips, as they’re also sold in surrounding towns. Those could be dumped in New Bedford just the same as bottles purchased in the city.

At-Large Councilor Linda Morad said it’s the sort of rule-making that doesn’t work town-by-town, as you end up “limiting business in one community and benefitting it in another … Those kind of things need to be regulated on a statewide basis.”

Email reporter Arthur Hirsch at [email protected].

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