State sets rare antiscalping hearing
The Romney administration is jumping into the controversy over ticket scalping, but doing so in a way that will leave any final decision to the incoming administration of Governor-elect Deval Patrick .
The Department of Public Safety, which has never disciplined any of the ticket resellers it regulates, has scheduled a hearing on whether a Kenmore Square ticket agency violated the antiscalping law last August when it tried to sell a $130 Green Monster ticket for a Red Sox game for $825.
The hearing is set for March 8, long after Mitt Romney is gone and Patrick has taken over.
The complaint against Higs Cityside Tickets Inc. on Commonwealth Avenue was filed by Dorchester consumer activist Colman Herman , who has filed complaints and lawsuits against a number of ticket resellers. He has pestered Public Safety for months to take action and was surprised when they scheduled the hearing.
"I'm trying to force them to do their job," Herman said.
Lawmakers on Beacon Hill say they plan to revamp the state's ticketing laws, but even as they move closer to filing legislation, the antiscalping law has become the focus of several lawsuits. The New England Patriots and San Francisco ticket reseller StubHub Inc. have sued one another , each claiming the other is violating the antiscalping law. Herman has sued Admit One Ticket Agency of Weymouth, alleging violations of the law.
The Public Safety hearing scheduled for March would be the first time a state agency has attempted to enforce the law in over a decade. Kelly Nantel , a Public Safety spokeswoman, said the agency typically resolves consumer complaints about ticket resellers without a hearing, but one was required this time because the case involves more substantive issues.
The state's antiscalping law, which dates to 1924, doesn't prohibit ticket purchases above face value, but it requires anyone in the business of reselling tickets in Massachusetts to obtain a license from Public Safety and limits markups to $2 above face value plus certain service charges.
Nantel has said Public Safety has never disciplined or audited the books of any of the ticket resellers it licenses.
Herman has filed a series of complaints with Public Safety. In addition to the complaint against Higs Cityside, Herman has filed complaints against StubHub and two individuals who he alleges have been selling tickets illegally on the street. The agency referred the complaints against the individuals to local law enforcement officials, saying it lacks jurisdiction over nonlicensed individual ticket sellers. It has taken no action on the StubHub complaint.
Robert L. Allen Jr. , a lawyer representing Higs Cityside, said in a letter to Public Safety that his client had not violated the state's antiscalping law.
"Clearly there are some flaws within these statutes, which I understand that the Legislature may be addressing; however, until such time, we believe that the statutes allow us to resell tickets to events licensed in the City of Boston in our current operating manner," he wrote.
In a telephone interview, Allen declined to go into details, but said he is likely to adopt the same defense Ace Ticket Worldwide used in a lawsuit last year. Ace argued that Boston events are exempt from the antiscalping law because they are licensed by the city under a separate statute not covered by the antiscalping law.
Public Safety has also received correspondence from StubHub in response to Herman's complaint. The correspondence, which indicates StubHub chief executive Jeff Fluhr met with Herman recently in Boston, asserts that the California company doesn't violate the antiscalping law because it never buys and sells tickets itself. The company said its customers are the ones who buy and sell tickets using its online marketplace.
"We are not involved in the actual transactions between buyers and sellers," Brett Robertson , the company's general counsel, said in one letter.
In a second letter, Robertson said StubHub requires its customers to warrant that their actions will be in compliance with all local laws. "As a practical matter, StubHub does not have the ability to police all those using its service and determine whether each sale of a ticket complies with, or falls within one of the many exceptions to, Massachusetts law," Robertson said.
Bruce Mohl can be reached at mohl@globe.com. 
