This article was taken from The Legalite, Massachusetts’ Leading Publication and Authored by Frank D. Roderick, Town Council for the Town of Weymouth. Some formatting changes have been added. 

Ancient in origin, the office of Constable has been of high power and prestige in the history of the world. In feudal times, the office of Constable was one of high military rank, and eventually ex officio commander in chief of the military forces. He was the highest judge in military offenses and in questions of chivalry and honor. He was the supreme arbitrator in tilts, tournaments and martial displays.

The term High Office of Constable appears in England shortly after the Conquest as the seventh great officer of the Crown, possessing both Civil and Criminal powers. Since the year 1521, the title of High Constable has not been granted except for a special ceremony of state.

The Constable has been a part of our American civilization since the earliest of Colonial times. In each of our original communities, the Constable was one of the earliest offices created, and it was his important duty to keep the king's peace.

The Constable continues today as a public officer possessing extensive powers. See Hartley Vs. Inhabitants of Granville 216 Mass.38. However the duties of Constables have been modified from time to time by custom and statue.

Some Powers and Duties

Constables possess somewhat extensive powers. Blackstone Commentaries 356. There may be a residue of common law power contained in the office of Constable, but not withstanding this, the office is vested with a broad range of statutory power. The statue providing the general powers of Constables goes so far as to give them the powers of sheriffs to require aid in the execution of their duties. M.G.L.c.41, section 94  reads in whole:

"Constables may serve the writs and processes described in section ninety‐two and warrants and processes in criminal cases although their town, parish, religious society or district is a party or interested. They shall have the powers of sheriffs to require aid in their execution of their duties. They shall take due notice of and prosecute all violations of law respecting the observance of the Lord's day, profane swearing and gaming. They serve all warrants and other processes directed to them by the selectmen of their town for notifying town meetings or for other purposes. They may serve by copy, attested by them, demands, notices and citations, and their returns of service thereof shall be prima facie evidence; but this provision shall not exclude the service thereof by other persons."

In conjunction with this, if a citizen neglects or refuses to assist the Constable in the execution of his duties in a criminal case, in the preservation of the peace or in the apprehension or securing of a person for a breach of the peace, or in a case of escape or rescue of persons arrested upon civil process, then that citizen is subject to fine or imprisonment. M.G.L.c.268, section 24.

A Constable possesses a power of entry not generally found in most municipal offices. M.G.L.c.140, section 201 provides in whole:

"A sheriff, Marshall or their deputies, a constable or police officer may at any time enter a billiard, pool or sippio room, bowling alley, skating rink, the licensed premises of a common victualer or room connected therewith, or a grove required to be licensed under section one hundred and eighty‐eight, or any building therein, for the purpose of enforcing any law; and whoever obstructs or hinders the entrance of such officer shall be punished by a fine of not less than five nor more than twenty dollars."

As the powers of the Constable unfold in this memorandum, the words of Chief Justice Rugg take on a significant meaning. He said, in Hartley Vs. Inhabitants of Granville. (supra) "The theory on which the office is now based (apart from the function of serving papers) is that a number of competent men scattered throughout the territory of each of the county towns, charged with such duties, is an important factor in making them safe for residence by law abiding people." The office is to be reserved for only the most competent and responsible of men.

Indeed, Constables possess the awesome power of arrest in certain circumstances. An illustration of the power of arrest is contained in M.G.L.c.271, section 2, which reads;

"Whoever, in a public conveyance or public place, or in a private place upon which he is trespassing, playing at cards, dice or
any other game for money or other property, or bets on the sides or hands of those playing, shall forfeit not more than fifty dollars or be imprisoned for not more than three months; and whoever sets up or permits such a game shall be punished by a fine of not less than fifty nor more than one hundred dollars or by imprisonment for not less than three nor more than twelve months. If discovered in the act, he may be arrested without a warrant by a sheriff, deputy sheriff, constable or any officer qualified to serve criminal process, and held in custody, in jail or otherwise, for not more than twenty‐four hours, Sunday and legal holidays excepted, until complaint may be made against him for such offense.

And again in M.G.L.c.138, section 56, the Constable is given the power of arrest without warrant any person whom he finds in the act of illegally manufacturing, selling or exposing or keeping for sale, storing, transporting, importing or exporting alcoholic beverages or alcohol .

The Constable, under M.G.L.c.266, section 120, may arrest without a warrant any person who he finds committing a trespass, after notice, upon “a dwelling house, building, boat or improved or enclosed land, wharf or pier of another M.G.L.c.160,  section 220 confers upon the Constable the power of arrest without a warrant in certain cases involving persons unlawfully riding upon a locomotive engine, tender, freight car, caboose or other conveyance not part of a passenger train.

The Constable, may arrest without a warrant, any person who is “keeping a house, room or place resorted to for prostitution or lewdness, “as provided in M.G.L.c.272, section 10.

The Constable has the statutory power of arrest in several other instances, notably, inter alia, under our health laws. He has also the common law and statutory power to arrest in cases involving breach of the peace.

It is significant to note here that the power of the Constable predates the powers vested in our organized police forces, and is independent thereto. It is for this reason that our police offices, both state and local derive much of their power from that of Constables. Hence, M.G.L.c.41, section 98 confers Constabulary powers on our police. “The Chief and other police officers of all cities and towns shall have all the powers and duties of constables except serving and executing civil process.

In some instances the Constable has the power to pre‐empt our local officials. For example, our Chief of Police as keeper of the lockup, as required by M.G.L.c.40, section 37 must make the local lockup accessible to the Constable and if he fails or refuses to do so, he is subject to fine. And, under M.G.L.c.41, section 39 if a person appointed to collect taxes in a town refuses to serve, or if no person is elected or appointed a collector of taxes, the Constables of the town shall be the collector of taxes.

The Constable has the power to enforce our election laws and, under M.G.L.c.56, section 57 has the power to arrest without a warrant violators thereof.

And, even the local drug store is not exempt from the jurisdiction of the Constable, M.G.L. c.138, section 30F provides that the doings and books of the pharmacy be open to the Constable.

Further, The jurisdiction of a constable in ordinary cases, is limited to the Town in which he is (appointed), but for special cases, there are exceptions to this rule. Beard vs. Seavey, 191 Mass. 503. For example, A Constable may arrest on a capias, in a criminal case, outside the town for which he was (appointed) but within the same county, and within the jurisdiction of the court issuing the warrant. Sullivan vs. Wentworth 137 Mass. 233. And also within this context I commend to you M.G.L. c.41, section 95:

A Constable, in the execution of a warrant or writ directed to him, may convey prisoners and property in his custody under such process beyond the limits of his town, either to the justice who issued it or to the jail or house of correction of his county. If a warrant is issued against a person for an alleged crime committed within any town, any constable thereof to whom the warrant is directed may apprehend him in any place in the commonwealth.

In most cases, an applicant for the office of Constable will not be aware of the broad range of powers connected with the office. He will be concerned usually with the service of civil process only. M.G.L. c.41, section 92 provides in parts, a Constable, may within in his town serve any writ or other process in a personal action in which the damages are not laid at a greater sum than eight hundred dollars, and in a replevin in which the subject matter does not exceed in value eight hundred dollars, and any writ or other process under chapter two hundred and thirty‐nine.

A two pronged caveat is in order here. First, while an applicant might be primarily concerned with the civil process aspect of the office, there are cases where a Constable has recklessly invoked his non‐civil powers to the great detriment and embarrassment of both the Appointing Authority and the Court. Secondly, on the question of service of civil process, there is a voluminous body of knowledge required to adequately perform in the manner directed by our statues. I believe that this is what Chief Justice Rugg meant when he referred to competent individuals in the community.

In this memorandum, it would be impossible to exhaust all of the inherent and statutory powers vested in the Constable. It was my purpose to survey the Powers of Constables with the objective of demonstrating that the office is of extremely high significance in the eyes of the law.

Election / Appointment

There is no doubt that a Constable is a municipal officer. M.G.L. c.41, section 1, provides for the election or appointment of Town Officers. It reads in part:

"Every town at its annual meeting shall in every year when the term of any incumbent expires, and except when other provision is made by law, choose by ballot from its registered voters the following Town Officers for the following terms of office one or more Constables for a term of three years, unless the town by vote provides that they should be appointed."

The appointive power appears to be now in the Board of Selectmen, M.G.L. c.41,section 91A provides:

"The selectmen in any town may from time to time appoint for terms not exceeding three years, as many constables as they deem necessary."

A Constable who is to serve civil process must give a bond to the Town, with sureties approved by the selectmen. Prudence would seem to require that this be the maximum amount required by statue, which is five thousand dollars (update: $7,000.00). Since service by un‐bonded constables is void, the Board might consider that all appointments be conditioned upon the Constable obtaining bond within reasonable time of appointment.

In closing, as a point of human interest, even the colloquial term COP had its origin in the activities surrounding Constable. It means "Constable on Patrol".

Frank D. Rodick, Town Counsel

 
 
The South County Constable Office is responsible for delivering process and papers. SCCO is also accountable for enforcing the decisions of the court. When the court has ruled in favor of the plaintiff against a debtor, but the defendant still does not pay what they owe, there are a number of things a plaintiff can do to claim the money they are owed. In addition to evictions and levies on personal property, the Constable enforces Capias. Capiases are issued through the court and demand that the defendant come to court in order to settle the debts that they owe the plaintiff.

 Within five days of our office receiving a Capias from an individual, business or attorney, the Constable will mail a contempt of court notice, specifying the court, the hearing date, and the docket number for the particular case. Within five days of this initial mailing, the first attempt at telephone contact will be made. The Constable will contact the defendant by telephone or leave a message communicating the nature of the complaint and the importance of showing up to the hearing.

 If the defendant fails to show up at the first hearing, a new hearing date will be set. A second mailing will be issued, restating the nature of the case, the hearing date, the court and the importance of their appearance. A second phone call will also be placed.

 If the defendant fails once again to show up at their hearing, a third and final notice will be issued and mailed. They will be informed that it is the third contempt of court notice issued. The deputy will phone a final time, and make an attempt visit the premise if possible, in an attempt to get the defendant into court. If these three mailings and phone calls should fail, the plaintiff has the option of filing a Capias for physical arrest. Please call the office for an estimate on the cost for a physical arrest. The fee is based on miles traveled, conveyance, and basic Capias fee. Our rates are set by law (MGL c.262, Sect. 8).

 Please be aware, however, that a Physical Arrest will only guarantee that we will get the Defendant into court – we have no control over any judicial decisions or payments once he or she is in court.  Furthermore, if you have a Capias against a business or organization, it will be necessary to go to court and have an individual’s name added to the Capias in order to make a Physical Arrest.  

 
 
There may be someone that you don’t ever want to enter your property again.  Or there may be someone you don’t want to enter your property at all, even once.  In Massachusetts, there is a way to make it a criminal act if a particular person enters your property.  

A no trespass order formally advises the person that you do not want them on your property.

Generally, the public is deemed to have an implied invitation to enter your property. 

They may walk in areas that would be regarded as usual places to approach the house located on a property.  It is perfectly legal for a person to walk up to your front door on the walkway, or even the lawn, and knock on your door to ask you a question, take a survey, or for any lawful reason.  (But, nowadays, some towns may have some limited restrictions on widespread door to-door solicitation or the like.) 

There are a few ways in Massachusetts to make this activity a criminal act, or a criminal trespass.  One is to post conspicuously placed No Trespass signs on your property.  This may be effective, but is probably not the type of message you would like to project to the community at large. Most people don’t mind the occasional door knocker, but seek to bar a select individual, or maybe a few, from even stepping foot on their property, let alone knock on their door.  The other way is to impose the Massachusetts criminal trespass statute.

From Mass General Laws, Chapter 266:

Entry upon private property after being forbidden as trespass; prima facie evidence; penalties; arrest; tenants or occupants excepted.

Section 120. Whoever, without right enters or remains in or upon the dwelling house, buildings, boats or improved or enclosed land, wharf, or pier of another, or enters or remains in a school bus, as defined in section 1 of chapter 90, after having been forbidden so to do by the person who has lawful control of said premises, whether directly or by notice posted thereon, or in violation of a court order pursuant to section thirty-four B of chapter two hundred and eight or section three or four of chapter two hundred and nine A, shall be punished by a fine of not more than one hundred dollars or by imprisonment for not more than thirty days or both such fine and imprisonment. Proof that a court has given notice of such a court order to the alleged offender shall be prima facie evidence that the notice requirement of this section has been met. A person who is found committing such trespass may be arrested by a sheriff, deputy sheriff, constable or police officer and kept in custody in a convenient place, not more than twenty-four hours, Sunday excepted, until a complaint can be made against him for the offence, and he be taken upon a warrant issued upon such complaint.

The Tenants or Occupants Exception

As a landlord, you cannot serve a No Trespass on a tenant or occupant that occupies your premises. In these cases, you must go through the eviction process. However, a former tenant may be issued a No Trespass order.

One other important issue, especially for landlords, is a tenant may INVITE a person that you have placed a no trespass on to visit. The invitee may enter the property and go directly to the address invited to. They may not enter other property or loiter on the property.

Another exemption from Trespassing is Constables or Police Officers that are serving process and emergency workers (Police, Fire and EMS) that are responding to emergencies.

Proof of Service

In order to enforce a no trespass order, you must be able to prove it was served upon them. Certified mail with return receipt is one way to do this. The return receipt will show that the person received something in the mail from you and it might not even be signed by the intended person.

In order to provide rock solid proof, have a bonded Constable serve the paper. A bonded Constable’s return of service is proof positive it was lawfully served.

In some communities a police officer may serve a person a no trespass order on behalf of the property owner. This is rare and only when all persons are present. The notice should be in writing or at minimum documented in the police log. You can request a copy of the log entry under the Massachusetts Public Record Laws (not FOIA). There may, or may not be a fee for the record.

You may download a No Trespass Form on this website.

 
SUBPOENAS 10/09/2011
 
What is a subpoena?

A subpoena (pronounced “suh-pee-nah”) is an official notice that requires a person to come to court to testify and be a witness. The subpoena can also require the person to bring certain documents. For example, in a child support case, you may want to use the opposing party’s bank records to prove that he can afford his share of the cost of supporting your child. If you cannot get copies of those records yourself, you may choose to subpoena the bank records. The bank would then have to come to court with the documents you requested.

How can a subpoena help me?

Sometimes you need the testimony of someone who would not voluntarily come to court. Sometimes documents you do not have access to may strengthen your case. Serving a subpoena may provide the evidence you need to make a strong case in court.

How do I serve a subpoena?

You can use a deputy sheriff or constable to serve the subpoena. You do not need to be a lawyer or a public official to serve a subpoena. You can ask a friend to do it. Using a constable ensures that it will be done properly, and the process will be easier. But it will cost money.  If you have a friend who will be serving the subpoena, he or she needs to serve it correctly so you can be sure that your witness will come to court.

Here are the steps:

  1. Download the subpoena form. We have a blank subpoena form that you can download and complete on the computer or print out and fill in by hand. 
  2. Figure out how much the “witness fee” will be in your case.   The witness fee in Massachusetts is $6.00 for each day that the witness attends court plus a travel expense of 10 cents per mile to and from the witness’ home and the court. If the witness has a place of business or employment in the city or town where the court is located, then the 10 cents per mile is measured from where the witness works to the court.  The witness fee and travel expense for one day’s attendance at court must be given to the witness in advance. You can estimate the mileage. 
  • You may not need the person you are serving with a subpoena to go to court. If what you really want is a document like pay records, you can ask the person to send a “certified true and complete copy” of the document instead. When you serve the subpoena, you can attach a letter that tells the person how to send documents instead of going to court. There are things that the person has to do if he or she wants to send the document instead of going to court. 
3.       Look up the address of the person you want to subpoena.  If you want wage records, look up the other parent's work place in the phone book. Call them and get the address, and find out who is in charge of the payroll records (also called the “Keeper of the Records.”)

4.       Using the address and the name, fill out the subpoena form. When you fill out the form, include:
  • what you are requesting
  • the person you are requesting it from
  • the  court that person needs to go to,
  • when that person needs to be there, and
  • the name of your case (Your Name vs. Other Party
The subpoena must be notarized. 

Take your filled out subpoena to any notary public. We have notaries available and take care of this for you. Often you can find a notary in the City or Town Hall and your local bank. The notary should notarize the subpoena with her stamp for free or for a few dollars.

Make two photocopies of the notarized subpoena form and the affidavit of service that is attached to the subpoena.

The best way to any document properly served is to hire a Bonded Constable or Deputy Sheriff that is experienced in proper and lawful service.

You can ask a friend to serve the subpoena, but your friend must be:

1.       over eighteen, and
    1. not a witness for your case, and
    2. not related to the person you are serving.
2.     Must tender the “Witness fee”
3.     Your friend can give the subpoena to the witness (the person in charge of payroll) or the receptionist or the owner of the business. When your friend serves the subpoena she needs to:
4.    tell the person she is serving that she is giving them a subpoena;
  • Give the person she is serving the original notarized subpoena form;
  • Give the person she is serving one of the copies of the affidavit of service your friend has filled in saying that she has served the subpoena; and
  • Give the person she is serving the witness fee.
5.       Bring the second copy of the subpoena and the original affidavit of service with you when you go to court.  You may need to show that the witness was properly subpoenaed

It costs money to serve a subpoena. Costs include a witness fee and a service fee if you use a deputy sheriff or constable. If you cannot afford the costs, you can ask the state to pay the service and witness fees. 

 

 
 
The Notice to Quit
Tenants under a leaseIf you want to evict a tenant under a lease for a reason other than nonpayment, such as, having unauthorized sub-tenants, or property damage, the lease will generally tell you what type of Notice to Quit you must you use and when to serve it. If you are evicting a tenant for nonpayment, you must send a 14 day Notice to Quit (MGL c. 186 § 11). But if the tenant pays all the monies due, plus costs, interest and your court filing fees by the date the Answer is due in court, the tenant has an absolute right to stop the eviction.

Tenants at will
If you are evicting for a reason other than nonpayment, or for no reason, you must give the tenant a 30 day Notice to Quit, If the eviction is for nonpayment, you must give a 14 day Notice to Quit, But if the tenant pays the amount claimed due, plus costs, interest and your court filing fees in 10 days, and if this is only the second Notice to Quit for nonpayment within 12 months, the tenant has an absolute right to stop the eviction. If you do not place notice of this fact in the Notice to Quit, the tenant has a right to stop the eviction by paying the above sums not later than the date his Answer is due in court (MGL c. 186  § 12).
          Forms from this website
Service
A Notice to Quit can be served by a Constable, certified mail, or adult aged person and even the landlord. HOWEVER, you must be able to prove service. If the service of the Notice to Quit is called into question at future court hearing, you might have to start all over again. To avoid this potential and costly problem, we recommend a qualified, experienced and bonded Constable serve the notice. This way you are provided with a proof of service recognized by the courts.

Summons and Complaint
When the notice period ends, you or your lawyer must serve a Summary Process Summons and Complaint on the tenant. This officially brings the tenant under the court's power and informs him or her of the trial date, the place of the hearing, the reasons for eviction and how much money, if any, you claim the tenant owes you.

Answer
This is the tenant’s written response sent to you in which he or she states why he or she should not be evicted and what, if any, counterclaims for money damages he or she has against you such as violations of the State Sanitary Code, retaliation, or faulty eviction procedures.TrialIf you cannot reach an agreement with the tenant resolving the reasons for eviction, there will be a trial. At this hearing, the tenant and you or your lawyer present your witnesses and documents and a judge or jury decides if you win or if the tenant wins and how much money, if any, the tenant must pay or how much, if any, you must pay the tenant.

Appeal
Either party may appeal within 10 days of entry of the judgment, if dissatisfied with the outcome of the trial, by filing a Notice of Appeal (MGL c. 239, §§ 3, 5 and MGL c. 231, § 97). But, as a condition of the tenant’s appeal, s/he must post an appeal bond in an amount determined by the court. Or, the court may waive the bond if the tenant can show s/he is indigent and has a real defense. If the bond is waived by the court, the tenant must still pay the rent which comes due during the appeal. If the court will not waive the bond, the tenant must pay past due rent and rent accruing as the appeal progresses, if the tenant wants to stay in the apartment during the appeal. The tenant cannot be physically evicted until the appeal has been dismissed or decided. Appeals are fraught with procedural pitfalls and should be undertaken with a knowledgeable attorney.

Execution
The Execution is the court’s order requiring the tenant to move from the apartment. After the appeal is decided or dismissed, Execution will be issued, but not before then. The Execution must be used within three months of its issuance or it expires. If you accept the full amount of the rent awarded by the court in a nonpayment case, you effectively waive your right to remove the tenant and you have created a new tenancy.

Physical move out
To physically remove the tenant from your apartment, you must hire a constable and a moving company, if the tenant has refused your request to go. The constable must give the tenant 48 hours notice that s/he is coming with the truck. On the date set, the constable goes to the property, physically removes the tenant and her goods, orders the movers to store them in a storage facility, at your expense initially, and gives the keys to you. That ends the eviction process.

The tenant must now go to the storage company for her property. Because the warehouse has a lien on the property for its unpaid fees, if the tenant does not retrieve the property within six months, the warehouse may sell it. You may sue the tenant for your costs of the eviction (MGL c. 239, § 4).

Stay of execution
If the eviction was a no-fault eviction and if the tenant cannot find a new apartment, s/he may ask the judge for a stay of execution of up to six months, or if s/he is elderly or handicapped, up to one year. If the eviction was for nonpayment, technically, the judge has no power to grant a stay. However, if in a nonpayment case, the tenant’s award on his counterclaims was less than the amount of rent awarded to you, the tenant can avoid eviction by paying the difference, with interest and court costs in seven (7) days (MGL c. 239 § 8A).

Documentation
When the tenant is leaving, you should view the apartment, take pictures and review the Statement of Condition, if any, so as to definitively verify the condition of the apartment on the date of move out. This will establish what was damaged by the tenant during his time in the apartment and should avoid a later problem with security deposit deductions and possible litigation.

This provides general information about Massachusetts eviction procedures. It is not designed to address all questions in detail and anyone intending to evict another is encouraged to seek further guidance by contacting a qualified attorney.

Next Topic will be about the options on a physical move out. The "Talk-Out" and the Physical Move-Out.
 
 
Chapter 393 of the Acts of 2010 changed MGL 239, § 4, the section that covers Executions (physical move out). The change was to add a sentence at the end:

(a) If an officer, serving an execution issued on a judgment for the plaintiff for possession of land or tenements, removes personal property, belonging to a person other than the plaintiff, from the land or tenements, he shall forthwith cause it to be stored for the benefit of the owners thereof. Such property shall be stored with the licensed public warehouser identified in the notice provided to the defendant pursuant to section 3, except that the officer shall store the property with a warehouser or other storage facility of the defendant’s choosing if the defendant notifies the officer of his choice in writing at or before the time of removal of the property. The officer shall file with the court that issued the summary process judgment and provide to the defendant in hand, or if the defendant is not present at the time of execution by receipted mail to the defendant’s last and best known address, a receipt containing a description of the goods removed or of the packages containing them, as well as name and signature of the officer.  For the purposes of this section, the term “warehouser or other storage facility” shall mean a public warehouse licensed and bonded pursuant to section 1 of chapter 105, located in the commonwealth and within a 20 mile radius of the land or tenements from which the personal property is removed.

This addition makes 2 changes. First, it limits the locations that a defendant may request the officer serving the execution bring their goods to those within a 20 mile radius from where the property is being removed.  Second, if the defendant requests that the property be stored in a location other than that identified in the notice of execution, it must be a warehouse licensed by the Department of Public Safety.   

I.  20 mile radius
This new language only applies when the defendant makes a request that the property be stored at a particular location.  It does not apply to the situation in which the defendant does not make any request.  In this latter instance, the property may be stored at any DPS licensed warehouse, regardless of the location, as long as it is identified in the notice of execution provided to the defendant.   By way of explanation, the specific term that was defined by the new statutory language is “warehouser or other storage facility.”  That term only appears in one place in G.L. c. 239, §4(a); that being the section that pertains to the location that a defendant can request that their property be stored in lieu of that identified in the notice of execution.  The defined term does not appear in the preceding portion of the statute requiring that the property be stored with the licensed public warehouse identified in the notice of execution.  Accordingly, the 20 mile limitation imposed by the new definition does not apply to licensed public warehouses referenced in this portion of the law.  This particularly important to us, many of communities are 20 miles or more to the nearest licensed warehouse.

II.  Permissible locations for storage requests    
Second, if the defendant requests that the property be stored in a location other than that identified in the notice of execution, it must be a warehouse licensed by the Department of Public Safety.  That means that a defendant may not request that property be taken to such places as a self storage warehouse, or a private individual’s (friend, relative, etc.) property.  The property must be stored in a licensed warehouse.

The Department of Public Safety provided most of this information. Please also note that at the time of this entry, two bills have been filed to change this law again. The purpose of the bills is to include a provision for when there is no licensed warehouse within the 20 mile radius that the nearest licensed warehouse must be used.