The Alcoholic Beverages Control Commission (commission) charged Shamrock Liquors, Inc. (Shamrock), with a violation, among other statutory provisions and regulations, of G.L.c. 138, § 23 (as amended through St. 1976, c. 514), the text of which, so far as material, we set out in the margin.
As soon as the issue of a § 23 violation was raised at the adjudicatory proceeding, Robert Kutner, a lawyer representing Shamrock, announced that the "chapter 138, section 23 charge of illegality will be admitted." He then proceeded to enumerate other charges which Shamrock proposed to contest. As Mr. Kutner was telling the commission what Shamrock conceded and what it proposed to resist, another lawyer, Kevin Sullivan, interjected with a request for a five-minute recess. Mr. Sullivan represented another defendant
In its statement of reasons, the commission found that "the licensee admitted to the facts needed to establish a violation of [c]hapter 138, [s]ection 23."
On appeal, Shamrock argues that the statements before the commission concerning a violation of G.L.c. 138, § 23, were perhaps admissions that there existed facts to warrant a finding adverse to Shamrock, but that the commission was bound to review the facts to see if they added up to an infraction under the statute. We
Shamrock's other contention is that G.L.c. 138, § 23, proscribes sale of alcoholic beverages not obtained from a licensed wholesaler, importer, manufacturer or holder of a special permit and that the evidence supported only a finding that there was a transfer in a vehicle licensed to Shamrock of cargo from an improperly licensed source; i.e., there was no specific evidence of subsequent sale of the beverages. Since a party cannot prevail here on an argument not made before an administrative agency, Fioravanti v. State Racing Commn., 6 Mass.App.Ct. 299, 304 (1978), Shamrock's concession of violation of § 23 effectively forecloses it from making the argument before us. We do not need to decide, therefore, whether G.L.c. 138, § 30H, which provides that possession on the licensed premises of any alcoholic beverages "not authorized to be sold" shall be "prima facie evidence that such beverage or alcohol is kept for sale in violation of this