The lawyer in an 8-year-old case of former business owners against Cambridge and its License Commission seemed to satisfy Appeals Court judges on Monday and perhaps pave the way for a trial.

In the case, the former owners of defunct businesses such as River Gods, T.T. the Bear’s Place, Emma’s Pizza, Sandrine’s Bistro, Lanes & Games and McCabe’s sued the city for convincing them to waste money on buying existing liquor licenses and other expenses that were unnecessary, leaving them stranded when the city acknowledged years later that its rules didn’t comply with state law. That made the licenses worthless.

In addition to creating a false scarcity for liquor licenses when legally there was no cap on how many could be issued, city staffers directed businesses to pay into a Cambridge Licensee Advisory Board it created so they could consider “membership when scheduling hearings and determining disciplinary outcomes,” said the business owners’ lawyer, Kim Courtney, in an October filing with the Appeals Court in Boston.

In the city’s scathing answer brief filed in November, assistant city solicitor Diane Pires says Courtney reverses the meaning of precedents and scrambles to reargue a case instead of doing what was asked – essentially, tidying up the record. The filing should be stricken and the case dropped because “there is no evidence in the record to support any assertion [that staff] acted outside of the scope of their employment,” and so they have immunity for their actions, Pires writes.

It didn’t seem so simple to the Boston appeals judges. “The court said I don’t know if they were working under their official capacity or not, there’s a material fact in dispute and I can’t resolve it, we need to have a trial,” judges Kenneth Desmond Jr. said to Pires.

Pires pushed back that the Superior Court’s judge Heidi Brieger had simply gotten it wrong, because if “an employee is acting in the scope of their employment, even if they’re negligent, they would be [legally] immune” and the burden was on those bringing the lawsuit to prove bad faith or malice. Courtney didn’t do that, Pires said.

“Even though I’m a corrupt official, I’m being corrupt under my guise of being an official, so therefore I can’t be tried,” Desmond summed up.

The plaintiffs’ case

When Pires’ time ran out and Courtney presented – the entire hearing lasted little more than a half-hour – Desmond was mostly quiet and judge Chauncey Wood took over the questioning. He seemed at least as skeptical with Courtney as Desmond had been with Pires. When Courtney began her remarks with a complaint about how Cambridge’s Law Department has conducted its case, Wood cut her off. When she talked about why the business owners’ case was valid, he redirected her to the demands of the court for specific citations rather than references to records that are “500 pages long.”

“Give us one record citation to one example,” Wood said. “I cannot conceive of how – and the defendants make this point – this could possibly not be within the scope of their employment.”

Brieger, the judge noted, had already shut down much of Courtney’s case, leaving only that one question of negligence in an individual capacity. Even if staff “go rogue” – Courtney’s term – by passing a “crazy law that is blatantly inconsistent” with precedent, that doesn’t address how license commissioners are acting outside their scope of employment.

Because the City Council lifted the license cap in 1981 and the commission went its own way until July 2016 to act with certain businesses as though a cap stayed in place, Courtney said, “we are talking about a license commission that treated themselves as license brokers. We’re talking about a license commission that established a nonprofit entity to transfer disciplinary matters from a public license commission to a private entity.”

Wood reverted to the other critique: The Appeals Court didn’t want conclusory allegations suitable for a trial. “It is absolutely your burden to produce a genuine dispute of material fact which is based on specific record evidence that is beyond a conclusory allegation,” Wood said, and Courtney hadn’t conducted discovery or depositions to get any.

That wasn’t her burden, Courtney said, when the mere existence of the Cambridge Licensee Advisory Board does that work. And the practice of the commissioners and staff.

“It’s not in their official capacity to require hundreds of thousands of dollars to purchase a free license,” Courtney said. 

Wood’s rapid responses died off.

There was a long silence.

In the silence, Courtney continued, “Just because an employee is on the clock or using municipal resources does not place egregious unauthorized actions within the scope of employment. Conduct must be motivated at least in part by a legitimate purpose to serve the employer.”

“The record proves that the defendants’ actions serve no legitimate municipal purpose. They bypassed the law to manufacture a phantom quota,” Courtney said. “The defendants cannot use their municipal titles to transmute this unauthorized legislative usurpation into legitimate municipal work.”

She described the commission and other staff of “engaging in illegal acts” that were “grossly beyond the scope of any duties that could possibly have been outlined in their employment agreements.”

“The defendants seek to improperly shift this burden by critiquing our litigation strategy. Our independent research and investigation uncovered thousands of pages of the city’s own public records that fully expose their rogue scheme and definitively prove this case is ready for a jury,” Courtney said.

The judges took the matter under advisement.

Investigating the commission

Courtney has her own grievances with Cambridge. After the License Commission blocked her attempts in March 2014 to open a charcuterie and wine bar in Mid-Cambridge, she and partner Xavier Dietrich began watching and investigating commission actions. They were around when a new commission chair began undoing practices from the leader in place when they arrived – but those corrections shocked business owners who had been relying on the sale of now-worthless licenses for their retirements.

City councillor were shocked too. The business owners were “individuals who played by the rules over the years and did what they were told to do and invested substantial [amounts of money because of rules] promulgated by the city,” one councillor said.

“If what the folks are telling us is true,” councillor Marc McGovern said at the time, “and the city unintentionally or whatever gave them the wrong information and it cost them hundreds of thousands of dollars … They were duped, and that is a huge problem … And it does put the responsibility squarely on us.”

No city actions have tried to compensate the business owners, though.

Timing around tea lights

Courtney and Dietrich finally opened their charcuterie in North Cambridge at the end of 2016, calling it UpperWest and getting raves from The Boston Globe. 

Courtney, also a lawyer, worked with fellow business owners and filed their lawsuit, called Linnane vs. City of Cambridge, on July 6, 2018. 

Fire inspectors appeared at UpperWest less than a month later on Aug. 3, 2018, to say the tea light candles being set out by Courtney and Dietrich were a danger and against the law. (The law to which they pointed, though, was based on portable cooking equipment such as propane.)

Eventually, Courtney and Dietrich left Cambridge. But the lawsuit continued on, and now may be headed for trial.