WEBVTT
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SJC 13613.
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Cumberland Farms Inc. versus
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Town of Braintree Board of Health.
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Okay.
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Attorney Dunlap, whenever you're ready.
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May it please the court.
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Joshua Dunlap on behalf of Cumberland Farms.
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This appeal presents two questions of first impression.
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First, what is the meaning of the phrase,
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"Offer for Sale" in Chapter 270 section 28B?
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And second, has a legislature granted Boards of Health,
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any express or implied authority
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to impose fines via an administrative hearing?
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As a preliminary matter, I'd like to make
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two points regarding these issues.
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First, the Board erred by equating an offer for sale
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with a mere display of goods.
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(Judges speaking indistinctly)
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(people laughing)
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Oh, thank you.
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I think Justice Wendlandt was gonna say, "Come on."
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(people laughing)
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You seem to have raised an impossibility defense
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that they clearly messed up
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when they put these products out in the open on shelves.
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And you say,
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because they're not entered in the POS system,
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it's not an offer for sale.
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Where is that in the statute?
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So this is-
Implied meaning
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of "Offer for Sale."
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This is a question of statutory interpretation.
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And the parties agree in the briefs that making...
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An offer for sale,
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is making goods available in exchange for a price.
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The parties were-
Were the other goods
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that were behind the register,
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were those offered for sale?
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We don't have anything in the record
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to the extent that they could be swiped
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through the POS system.
How does a
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convenience store offer something for sale?
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They make it available to be purchased.
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So it is possible-
So when they display it
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on the shelf, it's your position that
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that's not being offered
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to the average consumer for sale?
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There has to be an intent for sale.
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That's what an offer is.
So I go to
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the local 711 and I have to figure out
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the manager's intent as to
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whether or not I could buy Chiclets?
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It's not a difficult issue, your Honor,
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what you'd do is, you'd ask,
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"Can I purchase that?"
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Or, "I'd like to purchase that."
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And they'd say no-
So, until
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I get an answer from the merchant,
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it's not being offered?
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You have to take into account
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the whole of the facts that are involved.
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And what is your legal authority
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for that proposition?
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That comes straight from the plain language
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of the statute which the parties agree on.
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Again, it's making a good available in exchange
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for a price.
Can I ask you
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to turn to your second argument?
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Yes, I'd be happy to, your Honor.
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So we do raise an argument regarding
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the ability of the Board
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to impose a fine via administrative hearing.
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Can I ask a factual question?
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Yes.
About this.
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I understood that
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judge's decision to say that...
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I think it was a she,
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was relying on the 2018...
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Was applying the 2018 regulations because
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those were the ones that were in effect
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at the time of the violation.
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Am I correct on that?
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So below, the Board only argue
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that the 2018 regulations apply.
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Okay, and is that your view as well?
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That it's the 2018 Regs?
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Yes, that is what we argued in our brief.
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So I may be misreading the 2018 Regs,
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but I thought that the 2018 Regs
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provide for $100 fine, not $1,000 fine.
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They...
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That's correct.
Okay.
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And that goes to part of the issue.
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So, then let's assume that
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that part of the decision is just incorrect.
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That, somehow, someone mistook
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that the 2018 Regs permitted $1,000 fine.
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And, in fact, it's only $100 fine.
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Let's assume that we were to say,
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only $100 fine was permitted.
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What happens to all your other arguments
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if we make that one correction?
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Because that would be within the $300
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administrative fine limit.
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Does everything else go away?
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It...
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No.
Why not?
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It illustrates that there would then be two avenues
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for the Board to pursue rather than one.
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So if it's $1,000, they would be limited
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to pursuing criminal disposition.
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If it's $100, then they would also be allowed
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to pursue non-criminal disposition.
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So in other words,
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there would be another source for them
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to pursue a fine, which underlines in fact,
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our argument that there is no implied power.
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It is not necessary for the Board
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to impose fines administratively,
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because now there are two avenues for them to pursue.
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And what they did instead was pursue
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at an administrative hearing,
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that is not authorized by the legislature
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or in the Board's own-
But the legislature
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authorized the state agency
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to promulgate regulations, right?
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They did.
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And the agency promulgated
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regulations that set forth procedural
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requirements, right?
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Yes.
And,
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one of those regulations
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authorizes the local Board of Health
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to enforce the anti-flavored tobacco law.
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To an extent.
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"In the same manner as," is the language.
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"In the same manner as local rules
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and regulations are enforced."
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So what we contend, your Honor, is that
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that language is a limitation, a recognition
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that DPH was not granting a board of authority
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any powers that it did not already possess.
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So what the Board could do is it could pursue
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suspension of a fine by administrative hearing.
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That's a necessary power.
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So, it's an implied power.
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However, for purposes of imposing fines,
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they would need to either pursue criminal disposition
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or non-criminal disposition depending
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upon the size of the fine.
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So, that regulation only permits use of
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previously authorized means of enforcement,
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again, in the same manner as.
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And Cumberland Farms, Reading gives the entirety
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of that sentence full meaning.
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Again, you can utilize an administrative hearing
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if there's a permit suspension,
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otherwise, at law or in equity,
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pursuant to criminal or non-criminal disposition.
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But what is that
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"Or otherwise at law or in equity" mean?
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That's referring to the criminal process.
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So, you can enforce-
It says,
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each Board of Health,
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and I'll grant you that it's somewhat ambiguous,
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each Board of Health may enforce
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the flavored tobacco law,
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or otherwise that law or in equity.
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Correct. Through the criminal process.
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So-
But...
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So, the enforcement of the flavored tobacco law
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is set forth in these regulations.
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It does establish certain procedures.
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It establishes certain safeguards
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regarding these hearing process,
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that would apply to permit suspensions.
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What it doesn't do is grant any new authority
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to a Board of Health to impose a fine
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by administrative hearing.
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Because the department's-
Even though the fine
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is mandatory under the state statute
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and then also under the state regs?
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Correct. Because there is a
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process available to the Board.
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So the Board of Health can impose a fine
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that is not allowed by the state statute.
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That is the state statute says,
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first defense must pay 1k, right?
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Correct.
Okay.
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And so you're saying the Board of Health,
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the local Board of Health can ignore
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that mandatory provision
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because it just doesn't have authority
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to impose that kind of fine?
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No. No, that's not correct, your Honor.
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Okay. So what is your argument?
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What they can do,
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is they can bring a criminal complaint-
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Which doesn't-
And pursue that
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$1,000 fine through that process.
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Okay.
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So the only way they can enforce
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this flavored tobacco law,
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is through the criminal complaint?
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If it's over $1,000, yes.
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But then-
Because if it were under-
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Isn't it always over 1,000?
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Yes.
Okay.
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Except to the extent that
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they should have applied $100 fine,
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which is what was permitted under the 2018 regulations.
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But the local regs can't overrule the state law.
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And we haven't argued...
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I was just acknowledging the Justice's question
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as to whether or not
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there's some conflict between
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the $100 allowed in the 2018 regulations
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and the $1,000 stated in the department's regulations.
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We have not challenged their authority
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to pursue $1,000 fine.
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But if they do so,
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it needs to be through the criminal process.
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All right, so you're suggesting that
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the most logical reading and rational reading
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of these regulations is that
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the only way the local Board of Health
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can help the state agency enforce
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the flavored tobacco law,
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is by filing a criminal complaint.
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And that's because we know
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that Boards have no inherent authority.
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The case law is clear on that.
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The Board doesn't challenge that point.
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And so it must be expressly
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or impliedly granted by the legislature.
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And you're saying there's no implied grant
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by the legislature through the state agency
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in the language that I just read.
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Well, it's imply...
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To be implied, it has to be necessary or essential.
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That's this court's language.
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And it is not necessary to be able
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to pursue it.
Well, that's for
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the legislature to authorize
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the local Board of Health, right?
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Yes.
Here the legislature
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has authorized the state agency to promulgate rules.
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Well, what I would suggest, your Honor,
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is that they did not authorize a department
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to then turn around and grant additional powers
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not already granted to the Board.
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So they said that the-
Why not?
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The department couldn't-
Wait, wait.
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Can you...
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Yes, explain to me why
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the state agency cannot authorize
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the local Board of Health to help police tobacco laws?
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They were authorized to adopt procedures
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to implement the law.
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And Commonwealth versus maker makes it very clear that
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that language is not to be read broadly
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to confer unfettered authority.
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So what I would suggest, your Honor, is that
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what they did is they went ahead
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and authorized Boards
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to enforce the tobacco regulations via,
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and again, the language,
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but the same manner that local rules
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and regulations are enforced.
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So what the department was doing was it was recognizing
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that there was a preexisting standard
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for how Boards are to impose fines.
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And if it's over $1,000,
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that has to be through criminal process.
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So the department did not purport in its regulations
276
00:11:35.400 --> 00:11:37.560
to give additional powers.
277
00:11:37.560 --> 00:11:38.970
And I might suggest, your Honor,
278
00:11:38.970 --> 00:11:41.280
it's important to note that Boards
279
00:11:41.280 --> 00:11:45.210
were conducting these administrative hearings
280
00:11:45.210 --> 00:11:47.430
to impose fines on an ad hoc basis
281
00:11:47.430 --> 00:11:50.880
even before the Department adopted its regulations.
282
00:11:50.880 --> 00:11:52.440
But the Board makes no effort
283
00:11:52.440 --> 00:11:54.805
to identify any statutory grant
284
00:11:54.805 --> 00:11:56.850
other than the department's regulation.
285
00:11:56.850 --> 00:12:00.030
So what's clear is that the DPH regulations
286
00:12:00.030 --> 00:12:02.670
are just a post hoc justification
287
00:12:02.670 --> 00:12:06.060
for an ultra vires act that the Boards
288
00:12:06.060 --> 00:12:10.160
were just adopting, you know, applying fines
289
00:12:10.160 --> 00:12:12.330
by administrative hearing without having
290
00:12:12.330 --> 00:12:13.440
ever been authorized.
291
00:12:13.440 --> 00:12:14.707
And now after the fact they say,
292
00:12:14.707 --> 00:12:17.520
"Oh well, the DPH regulations
293
00:12:17.520 --> 00:12:19.260
are what give us that authority."
294
00:12:19.260 --> 00:12:20.160
But they do not.
295
00:12:20.160 --> 00:12:22.207
Again, they're constrained to
296
00:12:22.207 --> 00:12:24.960
"in the same manner as" local rules
297
00:12:24.960 --> 00:12:26.100
and regulations are enforced.
298
00:12:26.100 --> 00:12:27.390
And that has to be read against
299
00:12:27.390 --> 00:12:29.670
this court's very clear construct
300
00:12:29.670 --> 00:12:33.900
about how a Board gets any authority at all.
301
00:12:33.900 --> 00:12:36.150
And that's from the legislature directly,
302
00:12:36.150 --> 00:12:38.190
either expressly or impliedly.
303
00:12:38.190 --> 00:12:39.840
And that is by necessity.
304
00:12:39.840 --> 00:12:41.610
And there's no necessity here,
305
00:12:41.610 --> 00:12:43.110
because there are other procedures
306
00:12:43.110 --> 00:12:44.313
available to the Board.
307
00:12:47.910 --> 00:12:49.650
You know, I would suggest your Honors
308
00:12:49.650 --> 00:12:52.410
that Burlington Sand and Gravel and Maroney
309
00:12:52.410 --> 00:12:55.620
are both very helpful guides for this court
310
00:12:55.620 --> 00:12:58.950
because in those cases, the Board attempted
311
00:12:58.950 --> 00:13:01.770
to impose a fine via some means
312
00:13:01.770 --> 00:13:03.210
other than criminal process
313
00:13:03.210 --> 00:13:06.060
or non-criminal disposition.
314
00:13:06.060 --> 00:13:07.530
In those cases, they attempted
315
00:13:07.530 --> 00:13:10.313
to collect a fine via a counterclaim.
316
00:13:10.313 --> 00:13:12.600
And the courts...
317
00:13:12.600 --> 00:13:14.550
The Court of Appeal looked at this very issue
318
00:13:14.550 --> 00:13:15.383
and said,
319
00:13:15.383 --> 00:13:19.380
"Is the power to impose a fine administratively
320
00:13:19.380 --> 00:13:21.030
necessarily implied?"
321
00:13:21.030 --> 00:13:22.470
And the court said, no, it wasn't,
322
00:13:22.470 --> 00:13:25.230
because the town can utilize
323
00:13:25.230 --> 00:13:27.210
these other available procedures.
324
00:13:27.210 --> 00:13:29.340
So I think both Burlington Sand and Gravel
325
00:13:29.340 --> 00:13:31.215
and Maroney are very, very helpful cases.
326
00:13:31.215 --> 00:13:33.120
How about deference?
327
00:13:33.120 --> 00:13:38.120
We've got sort of somewhat poorly drafted language
328
00:13:39.900 --> 00:13:43.110
and the agency obviously thinks that
329
00:13:43.110 --> 00:13:45.160
this is permissible and appropriate
330
00:13:46.440 --> 00:13:49.400
and we owe deference to reasonable interpretations here.
331
00:13:49.400 --> 00:13:51.540
Is it really an unreasonable interpretation
332
00:13:51.540 --> 00:13:54.990
that they can't impose fines without
333
00:13:54.990 --> 00:13:56.790
going through the criminal process?
334
00:13:56.790 --> 00:13:58.590
Well, I think your Honor, you should...
335
00:13:58.590 --> 00:14:00.210
You can measure your deference
336
00:14:00.210 --> 00:14:02.310
and one of the factors that you consider
337
00:14:02.310 --> 00:14:04.980
is whether or not it was an interpretation
338
00:14:04.980 --> 00:14:07.800
that was offered contemporaneously.
339
00:14:07.800 --> 00:14:10.200
This is just the department coming in
340
00:14:10.200 --> 00:14:11.340
after the fact and offering
341
00:14:11.340 --> 00:14:13.770
this interpretation for the first time
342
00:14:13.770 --> 00:14:16.290
in an amicus brief before this court.
343
00:14:16.290 --> 00:14:18.780
The department had never previously suggested,
344
00:14:18.780 --> 00:14:20.730
had never weighed in one way or the other
345
00:14:20.730 --> 00:14:21.960
on what this language meant.
346
00:14:21.960 --> 00:14:23.460
And I would suggest, your Honor,
347
00:14:23.460 --> 00:14:26.790
that giving it the reading that the department suggests
348
00:14:26.790 --> 00:14:30.150
runs contrary to all of this court's clear precedent
349
00:14:30.150 --> 00:14:33.060
about how a Board of Health is authorized
350
00:14:33.060 --> 00:14:36.540
to undertake any action whatsoever.
351
00:14:36.540 --> 00:14:37.680
Counsel, before you leave,
352
00:14:37.680 --> 00:14:39.480
related to Justice Kafker's question,
353
00:14:39.480 --> 00:14:41.460
is that the substantial evidence
354
00:14:41.460 --> 00:14:43.320
issue back to the first issue.
355
00:14:43.320 --> 00:14:44.153
Yes.
356
00:14:44.153 --> 00:14:45.030
There was evidence,
357
00:14:45.030 --> 00:14:48.810
and I know you say it was just a lay person's view,
358
00:14:48.810 --> 00:14:51.960
but there was testimony from an employee of Cumberland Farms
359
00:14:51.960 --> 00:14:53.370
that it was a mess up.
360
00:14:53.370 --> 00:14:55.110
And so Justice Wendlandt asked you,
361
00:14:55.110 --> 00:14:56.700
how else would you prove all this?
362
00:14:56.700 --> 00:14:57.570
And you said,
363
00:14:57.570 --> 00:15:00.990
well, if there were an employee to come in and say...
364
00:15:00.990 --> 00:15:03.600
So it's not just maybe the technical definition
365
00:15:03.600 --> 00:15:05.580
you're looking about whether you could do this
366
00:15:05.580 --> 00:15:07.020
under the POS system.
367
00:15:07.020 --> 00:15:08.820
You have an employee
368
00:15:08.820 --> 00:15:11.640
and under the substantial evidence framework,
369
00:15:11.640 --> 00:15:15.720
why couldn't they rely on that testimony
370
00:15:15.720 --> 00:15:18.630
for the issue of whether it was offered for sale?
371
00:15:18.630 --> 00:15:20.550
So an important point, your Honor,
372
00:15:20.550 --> 00:15:24.630
and it's a fact finder's decision as to
373
00:15:24.630 --> 00:15:26.880
whether or not a violation has occurred.
374
00:15:26.880 --> 00:15:29.940
But it is a question of law as to whether or not
375
00:15:29.940 --> 00:15:33.690
particular conduct is in fact a violation.
376
00:15:33.690 --> 00:15:37.050
And so a layman cannot admit to that legal conclusion.
377
00:15:37.050 --> 00:15:39.150
And the example that I would give is this,
378
00:15:40.140 --> 00:15:44.130
a fact finder determines whether a statement is fraudulent.
379
00:15:44.130 --> 00:15:48.630
But a layperson cannot admit that a true statement is fraud.
380
00:15:48.630 --> 00:15:50.190
That's a question of law.
381
00:15:50.190 --> 00:15:51.450
That's what happened here.
382
00:15:51.450 --> 00:15:54.240
He admitted that conduct, which we contend to,
383
00:15:54.240 --> 00:15:56.700
did not violate the statute, was put up for sale.
384
00:15:56.700 --> 00:15:58.350
That goes to the question of law
385
00:15:58.350 --> 00:15:59.610
that this court needs to decide.
386
00:15:59.610 --> 00:16:01.560
It's not a matter of admission.
387
00:16:01.560 --> 00:16:03.060
Thank you.
Okay. Thank you.
388
00:16:06.900 --> 00:16:08.080
Attorney Smerage.
389
00:16:10.860 --> 00:16:13.200
Good morning, Chief Justice, Associate Justices.
390
00:16:13.200 --> 00:16:14.700
May it please the court.
391
00:16:14.700 --> 00:16:16.560
Roger Smerage on behalf of the town
392
00:16:16.560 --> 00:16:18.060
of Braintree Board of Health.
393
00:16:18.060 --> 00:16:20.520
Can you take us through the statutory authority
394
00:16:20.520 --> 00:16:23.970
all the way to the fine in track?
395
00:16:23.970 --> 00:16:25.500
In a linear fashion,
396
00:16:25.500 --> 00:16:27.960
how we get from point A to point Z?
397
00:16:27.960 --> 00:16:29.790
It's pretty simple, your Honor.
398
00:16:29.790 --> 00:16:30.623
Okay.
399
00:16:30.623 --> 00:16:33.540
Section 28B says you can't offer
400
00:16:33.540 --> 00:16:35.403
a flavored tobacco product for sale.
401
00:16:36.300 --> 00:16:39.183
And then it's 28G,
402
00:16:40.080 --> 00:16:40.913
no, excuse me,
403
00:16:40.913 --> 00:16:44.700
28E says the fines that are in section 6 apply.
404
00:16:44.700 --> 00:16:47.550
Those fines in section 6 are mandatory.
405
00:16:47.550 --> 00:16:49.560
And then section 28G says...
406
00:16:49.560 --> 00:16:51.477
And those fines are $1,000?
407
00:16:51.477 --> 00:16:53.190
$1,000 for a first offense.
408
00:16:53.190 --> 00:16:54.700
That's mandatory.
409
00:16:54.700 --> 00:16:57.390
It's not a ceiling, it's not up to,
410
00:16:57.390 --> 00:17:00.240
it's $1,000 flat.
411
00:17:00.240 --> 00:17:04.710
And then 28G authorizes the Department of Public Health
412
00:17:04.710 --> 00:17:08.610
to promulgate procedures, rules and regulations.
413
00:17:08.610 --> 00:17:10.890
To implement.
And to implement.
414
00:17:10.890 --> 00:17:12.060
But not to enforce.
415
00:17:12.060 --> 00:17:13.950
It doesn't say enforce.
416
00:17:13.950 --> 00:17:15.690
Well, I think enforce is part
417
00:17:15.690 --> 00:17:17.460
of implementing a statute, your Honor.
418
00:17:17.460 --> 00:17:18.990
I mean perhaps,
419
00:17:18.990 --> 00:17:21.409
do you have some authority for that?
420
00:17:21.409 --> 00:17:23.760
I think that's just plain language
421
00:17:23.760 --> 00:17:26.920
what implement means, I think to hold-
422
00:17:26.920 --> 00:17:29.343
Can we continue down my road first?
423
00:17:30.870 --> 00:17:32.160
I'll defer to the Justices,
424
00:17:32.160 --> 00:17:34.170
however you wanna order your questions.
425
00:17:34.170 --> 00:17:35.003
Oh, no, absolutely.
426
00:17:35.003 --> 00:17:36.278
Absolutely.
427
00:17:36.278 --> 00:17:39.240
I've got from 28B to 28E to 28G.
428
00:17:39.240 --> 00:17:40.320
Continue the journey.
429
00:17:40.320 --> 00:17:42.750
Yeah, from there you go to the regulations
430
00:17:42.750 --> 00:17:44.400
that DPH did promulgate,
431
00:17:44.400 --> 00:17:46.563
and they set out the procedure.
432
00:17:47.850 --> 00:17:50.310
And the language that Justice Wendlandt identified
433
00:17:50.310 --> 00:17:51.780
during my brother's argument,
434
00:17:51.780 --> 00:17:53.910
they say that local Boards of Health
435
00:17:53.910 --> 00:17:55.920
may enforce this regulation
436
00:17:55.920 --> 00:17:58.140
and then there's the comma followed by the
437
00:17:58.140 --> 00:17:59.850
or otherwise language
438
00:17:59.850 --> 00:18:03.630
regarding other procedures at law or equity.
439
00:18:03.630 --> 00:18:05.190
And while I acknowledge
440
00:18:05.190 --> 00:18:07.740
that maybe the language wasn't perfect,
441
00:18:07.740 --> 00:18:09.630
and if there is any ambiguity,
442
00:18:09.630 --> 00:18:10.710
deference is accorded to
443
00:18:10.710 --> 00:18:13.860
the Department of Public Health's interpretation,
444
00:18:13.860 --> 00:18:15.720
it says that local Boards of Health
445
00:18:15.720 --> 00:18:17.910
may enforce this regulation.
446
00:18:17.910 --> 00:18:20.700
And implicit in that is that includes the fines,
447
00:18:20.700 --> 00:18:21.930
including the mandatory fines,
448
00:18:21.930 --> 00:18:24.063
that are restated in the regulation.
449
00:18:25.050 --> 00:18:26.243
So I think that's the path.
450
00:18:26.243 --> 00:18:27.390
It's not a far one.
451
00:18:27.390 --> 00:18:28.223
So, yeah.
452
00:18:28.223 --> 00:18:29.730
Why can't they enforce the fine
453
00:18:29.730 --> 00:18:31.140
through the criminal process
454
00:18:31.140 --> 00:18:34.080
that they're already authorized to do?
455
00:18:34.080 --> 00:18:34.913
They can,
456
00:18:34.913 --> 00:18:36.382
but I don't think they're required to, your Honor.
457
00:18:36.382 --> 00:18:37.215
Why not?
458
00:18:37.215 --> 00:18:39.660
Because the regulation says that they're not required to.
459
00:18:39.660 --> 00:18:42.060
No, it says that they can enforce it.
460
00:18:42.060 --> 00:18:42.893
Yes.
461
00:18:42.893 --> 00:18:45.840
And the only mechanism, according to the cases
462
00:18:45.840 --> 00:18:47.591
that your opposing counsel has said
463
00:18:47.591 --> 00:18:50.850
are through the criminal complaint, basically.
464
00:18:50.850 --> 00:18:53.670
That would then rid the entire procedural part
465
00:18:53.670 --> 00:18:55.470
of the regulation out of the regulation.
466
00:18:55.470 --> 00:18:56.430
It would cast aside
467
00:18:56.430 --> 00:18:57.720
sections 45 and 55-
Well, no.
468
00:18:57.720 --> 00:18:59.550
Those procedures would be available
469
00:18:59.550 --> 00:19:04.200
for the state agency to enforce the law.
470
00:19:04.200 --> 00:19:08.373
But when it deputizes the local Board of Health,
471
00:19:10.020 --> 00:19:13.410
the local Board of Health process,
472
00:19:13.410 --> 00:19:14.400
and I'll look this up,
473
00:19:14.400 --> 00:19:16.500
apparently is only through the criminal complaint.
474
00:19:16.500 --> 00:19:18.120
I would respectfully disagree.
475
00:19:18.120 --> 00:19:20.220
'Cause there are parts of 45 and 55,
476
00:19:20.220 --> 00:19:22.470
that refer to the Board of Health
477
00:19:22.470 --> 00:19:24.780
and its decision making.
478
00:19:24.780 --> 00:19:25.613
I don't have...
479
00:19:25.613 --> 00:19:27.120
I mean, I can get the language out in front of me
480
00:19:27.120 --> 00:19:28.470
if we want to go through it,
481
00:19:28.470 --> 00:19:30.519
but I believe there are parts of it that say
482
00:19:30.519 --> 00:19:33.243
the local Board or the department.
483
00:19:35.730 --> 00:19:37.560
May I ask you a question?
484
00:19:37.560 --> 00:19:39.840
And maybe I just don't understand the relationship
485
00:19:39.840 --> 00:19:42.030
of all of these statutes but,
486
00:19:42.030 --> 00:19:45.213
in chapter 111, section 239,
487
00:19:47.670 --> 00:19:50.390
it says that the...
488
00:19:52.770 --> 00:19:56.070
And this pertains to the promulgation of regulations
489
00:19:56.070 --> 00:19:58.080
by the Department of Public Health.
490
00:19:58.080 --> 00:20:00.487
It said that department can...
491
00:20:00.487 --> 00:20:01.980
"That the section does not limit,"
492
00:20:01.980 --> 00:20:03.157
I'm just reading now,
493
00:20:03.157 --> 00:20:04.830
"Shall not limit the right
494
00:20:04.830 --> 00:20:07.020
of an appropriate authority in a city or town
495
00:20:07.020 --> 00:20:09.780
to adopt rules and regulations as may be necessary.
496
00:20:09.780 --> 00:20:12.240
Provided, however, that such a rule
497
00:20:12.240 --> 00:20:14.160
or regulation shall not conflict
498
00:20:14.160 --> 00:20:17.640
with regulations promulgated by the department,
499
00:20:17.640 --> 00:20:20.487
or state or federal law."
500
00:20:21.390 --> 00:20:26.100
Why is a rule
501
00:20:26.100 --> 00:20:30.000
that would allow the Board of Health
502
00:20:30.000 --> 00:20:32.692
to enforce a fine,
503
00:20:32.692 --> 00:20:34.473
or collect a fine,
504
00:20:36.420 --> 00:20:37.320
other than as
505
00:20:37.320 --> 00:20:41.370
provided by the statutes which require that it go
506
00:20:41.370 --> 00:20:44.070
through a criminal process above $1,000
507
00:20:44.070 --> 00:20:46.140
or a civil process below 1,000...
508
00:20:46.140 --> 00:20:47.767
Below is it up to 300?
509
00:20:47.767 --> 00:20:49.650
$300 under the non-criminal disposition?
510
00:20:49.650 --> 00:20:52.470
Right. Non-criminal disposition statute.
511
00:20:52.470 --> 00:20:55.533
Why doesn't your interpretation of what the,
512
00:20:56.730 --> 00:20:58.260
of what the Department of Health
513
00:20:58.260 --> 00:21:00.990
and then in turn the Board did,
514
00:21:00.990 --> 00:21:04.413
why is that not in conflict with state law?
515
00:21:05.640 --> 00:21:08.070
Because there's nothing in Section 28
516
00:21:08.070 --> 00:21:11.640
or the larger Act modernizing tobacco control
517
00:21:11.640 --> 00:21:15.480
of which chapter 111, section 239 was a part.
518
00:21:15.480 --> 00:21:17.070
I mean you gotta remember this was
519
00:21:17.070 --> 00:21:19.950
comprehensive legislation that included that statute,
520
00:21:19.950 --> 00:21:22.860
the addition of section 28 to chapter 270,
521
00:21:22.860 --> 00:21:25.410
as well as the increasing of the fines
522
00:21:25.410 --> 00:21:30.410
in section 6 from their prior pre-Act levels,
523
00:21:31.710 --> 00:21:34.170
which were 100, 200 and 300,
524
00:21:34.170 --> 00:21:36.450
and thus would've been subject to the non-
525
00:21:36.450 --> 00:21:38.250
I'm not saying that the lump...
526
00:21:38.250 --> 00:21:40.680
That the amount of the fine is in conflict.
527
00:21:40.680 --> 00:21:44.408
I'm saying the root of the mechanism of enforcing it.
528
00:21:44.408 --> 00:21:45.588
Yeah.
529
00:21:45.588 --> 00:21:49.200
How is it that your interpretation of giving
530
00:21:49.200 --> 00:21:51.450
you know, a mechanism that just allows
531
00:21:51.450 --> 00:21:53.640
the Board to directly do it as opposed to
532
00:21:53.640 --> 00:21:57.270
filing some process either civil or criminal?
533
00:21:57.270 --> 00:22:00.210
Why is that new process
534
00:22:00.210 --> 00:22:02.910
not in conflict with state law?
535
00:22:02.910 --> 00:22:05.310
Because there's nothing in Section 28
536
00:22:05.310 --> 00:22:08.100
or any other general law that I'm aware of
537
00:22:08.100 --> 00:22:09.240
that prohibits it.
538
00:22:09.240 --> 00:22:10.770
And the analysis when you're looking at
539
00:22:10.770 --> 00:22:12.570
the regulations is...
540
00:22:12.570 --> 00:22:15.120
The first step is, is it preclude...
541
00:22:15.120 --> 00:22:18.090
Is what the regulation does precluded by the law?
542
00:22:18.090 --> 00:22:19.293
And here, it's not.
543
00:22:20.400 --> 00:22:24.870
And I would suggest that because the...
544
00:22:24.870 --> 00:22:27.390
And my brother cited Maroney-
Because even though...
545
00:22:27.390 --> 00:22:28.311
Sorry.
546
00:22:28.311 --> 00:22:29.530
If I may.
Yes, of course.
547
00:22:29.530 --> 00:22:30.480
My brother cited Maroney.
548
00:22:30.480 --> 00:22:31.313
In that case,
549
00:22:31.313 --> 00:22:33.990
in addition to the zoning bylaw issue,
550
00:22:33.990 --> 00:22:36.510
which section 7 of the Zoning Act
551
00:22:36.510 --> 00:22:40.230
does specifically say what the processes are
552
00:22:40.230 --> 00:22:43.320
for enforcing a fine in violation
553
00:22:43.320 --> 00:22:45.270
of the zoning bylaw.
554
00:22:45.270 --> 00:22:47.580
It also refers to the state building code,
555
00:22:47.580 --> 00:22:50.010
'cause there were building code violations there.
556
00:22:50.010 --> 00:22:53.460
And the statute that authorizes enforcement
557
00:22:53.460 --> 00:22:57.390
of the building code violations,
558
00:22:57.390 --> 00:23:00.540
which is 148A, section 2 as discussed in Maroney,
559
00:23:00.540 --> 00:23:02.550
that also specifically sets out
560
00:23:02.550 --> 00:23:04.710
what the enforcement mechanism is.
561
00:23:04.710 --> 00:23:07.140
Here, in section 28, the legislature
562
00:23:07.140 --> 00:23:09.150
was silent on the enforcement mechanism.
563
00:23:09.150 --> 00:23:13.020
It left it to the department as part of those procedures,
564
00:23:13.020 --> 00:23:14.580
not just regulations but procedures,
565
00:23:14.580 --> 00:23:16.080
that it was authorized
566
00:23:16.080 --> 00:23:18.483
to promulgate to implement the statute.
567
00:23:19.410 --> 00:23:21.322
It left it to the DPH.
568
00:23:21.322 --> 00:23:23.767
And given that-
So, how do we
569
00:23:23.767 --> 00:23:26.959
understand that the silence
570
00:23:26.959 --> 00:23:29.640
is leaving an open door for them
571
00:23:29.640 --> 00:23:32.400
to come up with another mechanism as opposed
572
00:23:32.400 --> 00:23:36.570
to simply an indication that the Boards
573
00:23:36.570 --> 00:23:38.670
are to use the existing mechanism?
574
00:23:38.670 --> 00:23:39.910
I think if the legislature wanted to say
575
00:23:39.910 --> 00:23:42.540
that they were to use
576
00:23:42.540 --> 00:23:44.970
and had to use the existing mechanism,
577
00:23:44.970 --> 00:23:46.350
the legislature would've said so,
578
00:23:46.350 --> 00:23:48.510
like it did in the building code statute
579
00:23:48.510 --> 00:23:50.250
that's referenced in Maroney.
580
00:23:50.250 --> 00:23:52.860
The second thing, and as this court recognized
581
00:23:52.860 --> 00:23:55.800
in Tri-Nel Management versus
582
00:23:55.800 --> 00:23:57.540
the Board of Health of Barnstable
583
00:23:57.540 --> 00:24:00.480
the 2003, I think, or 2001 decision,
584
00:24:00.480 --> 00:24:03.360
which this court recognized the authority
585
00:24:03.360 --> 00:24:05.760
that Chapter 111 grants the local Boards of Health
586
00:24:05.760 --> 00:24:09.093
to regulate tobacco use.
587
00:24:10.260 --> 00:24:13.980
The legislature when it was enacting the Act
588
00:24:13.980 --> 00:24:17.280
modernizing tobacco control in 2019
589
00:24:17.280 --> 00:24:19.980
was operating within that preexisting context
590
00:24:19.980 --> 00:24:22.380
that this court had already laid out
591
00:24:22.380 --> 00:24:24.750
and that the legislature had laid out
592
00:24:24.750 --> 00:24:29.305
by enacting 111 section 31, which authorizes
593
00:24:29.305 --> 00:24:33.060
local Boards of Health to implement local regulations
594
00:24:33.060 --> 00:24:34.380
concerning the public health.
595
00:24:34.380 --> 00:24:37.980
In Tri-Nel Management, this court said that
596
00:24:37.980 --> 00:24:41.670
that statute recognizes that
597
00:24:41.670 --> 00:24:45.240
it's not just state regulation and enforcement,
598
00:24:45.240 --> 00:24:47.490
it can go down to the local level.
599
00:24:47.490 --> 00:24:49.830
And with that background in mind,
600
00:24:49.830 --> 00:24:53.497
the legislature, when enacting the Act in 2019 said,
601
00:24:53.497 --> 00:24:55.200
"We're gonna leave it to DPH.
602
00:24:55.200 --> 00:24:58.140
Here's the authorization in 28G,
603
00:24:58.140 --> 00:25:02.190
DPH you decide whether you're gonna do all the enforcing,
604
00:25:02.190 --> 00:25:05.850
whether local Boards of Health are gonna do the enforcing,
605
00:25:05.850 --> 00:25:07.920
whether you're gonna work together
606
00:25:07.920 --> 00:25:09.720
and if so through what procedures."
607
00:25:09.720 --> 00:25:11.700
But what do we do with the statute that says
608
00:25:11.700 --> 00:25:15.496
that it's a non-criminal disposition to $300?
609
00:25:15.496 --> 00:25:18.810
Chapter 40, section 21.
610
00:25:18.810 --> 00:25:19.710
21D, your Honor?
Yeah.
611
00:25:19.710 --> 00:25:21.330
Yeah.
So we have that,
612
00:25:21.330 --> 00:25:23.580
which is a specific statute,
613
00:25:23.580 --> 00:25:26.913
which may to your brother's point,
614
00:25:30.840 --> 00:25:34.800
have more force than this implicit right
615
00:25:34.800 --> 00:25:38.550
to go all the way up to the statutory authority
616
00:25:38.550 --> 00:25:39.390
that the Board of Health...
617
00:25:39.390 --> 00:25:42.840
That the DPH has.
618
00:25:42.840 --> 00:25:46.370
Again, the legislature has to...
619
00:25:47.370 --> 00:25:48.600
Has to be assumed that the legislature
620
00:25:48.600 --> 00:25:52.200
was acting with that statute in mind
621
00:25:52.200 --> 00:25:54.330
when it also, as part of the Act,
622
00:25:54.330 --> 00:25:56.310
increased the fines.
623
00:25:56.310 --> 00:25:59.250
The legislature knew it was taking the fines
624
00:25:59.250 --> 00:26:02.010
out of the non-criminal disposition realm.
625
00:26:02.010 --> 00:26:05.130
And so given that in conjunction
626
00:26:05.130 --> 00:26:09.550
with 28G authorizing DPH to now take the reins
627
00:26:09.550 --> 00:26:11.910
and promulgate the procedures,
628
00:26:11.910 --> 00:26:13.740
that's where you get that authorization.
629
00:26:13.740 --> 00:26:15.360
So they passed it knowing that there was
630
00:26:15.360 --> 00:26:17.160
this bar and-
Yeah.
631
00:26:17.160 --> 00:26:18.600
We assume they know what their statutes
632
00:26:18.600 --> 00:26:21.000
when they passed the-
Exactly, your Honor.
633
00:26:21.000 --> 00:26:24.660
Do you agree that the 2018 regulations
634
00:26:24.660 --> 00:26:28.233
were the ones that should pertain to this case?
635
00:26:29.460 --> 00:26:32.370
Not in the way I think that you're asking it, your Honor.
636
00:26:32.370 --> 00:26:36.060
The DPH regulations are what pertain to this case.
637
00:26:36.060 --> 00:26:37.920
The DPH regulations would apply
638
00:26:37.920 --> 00:26:39.480
even if a local Board of Health
639
00:26:39.480 --> 00:26:41.820
did not have a tobacco regulation
640
00:26:41.820 --> 00:26:43.817
under 111, section 31.
641
00:26:43.817 --> 00:26:46.410
It's a state law, it's a state mandate,
642
00:26:46.410 --> 00:26:49.110
and the DPH issued its regulations
643
00:26:49.110 --> 00:26:51.150
and those are what control.
644
00:26:51.150 --> 00:26:54.060
The local regulations can supplement that
645
00:26:54.060 --> 00:26:58.713
to the extent that they don't conflict under 665, 057.
646
00:26:59.910 --> 00:27:02.430
But to your point earlier, your Honor,
647
00:27:02.430 --> 00:27:04.620
if the local Board of Health here,
648
00:27:04.620 --> 00:27:07.650
tried to implement $100 fine for a first offense,
649
00:27:07.650 --> 00:27:08.970
that would be a conflict
650
00:27:08.970 --> 00:27:11.220
with the state law and the state regulation.
651
00:27:11.220 --> 00:27:12.653
Okay.
So it had to be 1,000.
652
00:27:12.653 --> 00:27:14.220
It has to be at the time of the offense.
653
00:27:14.220 --> 00:27:15.330
Correct?
654
00:27:15.330 --> 00:27:18.840
The substantive portions, yes.
655
00:27:18.840 --> 00:27:19.943
And the time of the offense,
656
00:27:19.943 --> 00:27:21.900
the DPH regulations have been in effect
657
00:27:21.900 --> 00:27:24.270
for over three years.
658
00:27:24.270 --> 00:27:25.530
That's the two thou...
659
00:27:25.530 --> 00:27:27.540
Sure, but what I'm really just trying
660
00:27:27.540 --> 00:27:29.880
to find out is why was this not supposed
661
00:27:29.880 --> 00:27:33.300
to be $100 rather than $1,000 fine?
662
00:27:33.300 --> 00:27:37.260
Because in 2019 the state legislature said
663
00:27:37.260 --> 00:27:38.910
it's $1,000 fine.
664
00:27:38.910 --> 00:27:40.410
That's the Act.
665
00:27:40.410 --> 00:27:41.820
That supersedes everything.
666
00:27:41.820 --> 00:27:45.360
So any enforcement action, any violation,
667
00:27:45.360 --> 00:27:47.250
whether it's brought by a Board of Health
668
00:27:47.250 --> 00:27:50.190
or the DPH, it's bottom line $1,000?
669
00:27:50.190 --> 00:27:51.630
For a first offense.
For first offense.
670
00:27:51.630 --> 00:27:53.640
Even if the local Board has a regulation
671
00:27:53.640 --> 00:27:56.280
that says something less or more,
672
00:27:56.280 --> 00:27:59.520
either way because of the mandatory nature of the fine,
673
00:27:59.520 --> 00:28:02.880
a different fine set forth in a local regulation
674
00:28:02.880 --> 00:28:04.980
would conflict with the DPH regulation
675
00:28:04.980 --> 00:28:06.840
and therefore be preemptive.
676
00:28:06.840 --> 00:28:10.860
That conflict preemption was the exact reason why
677
00:28:10.860 --> 00:28:13.050
the superior court judge here tossed out
678
00:28:13.050 --> 00:28:14.910
the suspension of the sales permit.
679
00:28:14.910 --> 00:28:19.470
Because there, that was under the then in effect
680
00:28:19.470 --> 00:28:23.381
local regulation and the state regulation.
681
00:28:23.381 --> 00:28:25.230
Are you conceding that was correct?
682
00:28:25.230 --> 00:28:27.450
We have not taken a cross appeal from that, your Honor.
683
00:28:27.450 --> 00:28:30.111
But are you conceding it was correct?
684
00:28:30.111 --> 00:28:31.290
Yes.
Okay.
685
00:28:31.290 --> 00:28:33.863
I mean, otherwise we would've taken a cross appeal.
686
00:28:34.980 --> 00:28:39.840
You're saying that the local town can't do more
687
00:28:39.840 --> 00:28:42.930
than what the state has authorized.
688
00:28:42.930 --> 00:28:45.990
If it's a mandatory penalty?
689
00:28:45.990 --> 00:28:46.823
That's correct.
690
00:28:46.823 --> 00:28:48.690
I don't think the local town
691
00:28:48.690 --> 00:28:51.153
can deviate from a mandatory penalty.
692
00:28:57.570 --> 00:29:00.360
If there are no other questions on the regulatory aspect,
693
00:29:00.360 --> 00:29:03.513
I do wanna briefly touch base on the evidentiary portion.
694
00:29:04.920 --> 00:29:08.490
And here, the question came up of intent.
695
00:29:08.490 --> 00:29:10.050
We addressed this in the brief a little bit,
696
00:29:10.050 --> 00:29:12.450
but to your point, Justice Wendlandt,
697
00:29:12.450 --> 00:29:15.210
the consumer has no way of knowing
698
00:29:15.210 --> 00:29:18.930
that the store's purchase of sale technology
699
00:29:18.930 --> 00:29:21.870
is gonna block this item.
700
00:29:21.870 --> 00:29:24.710
If that testimony is even credit...
701
00:29:24.710 --> 00:29:26.070
Excuse me, credited.
702
00:29:26.070 --> 00:29:28.110
And again, it's up to the local Board
703
00:29:28.110 --> 00:29:30.390
to decide what amount of credibility
704
00:29:30.390 --> 00:29:33.660
to give to that testimony.
705
00:29:33.660 --> 00:29:35.460
But the consumer has no way of knowing that.
706
00:29:35.460 --> 00:29:38.040
They see the shelf behind the register,
707
00:29:38.040 --> 00:29:39.780
which again is a DPH regulation,
708
00:29:39.780 --> 00:29:43.200
to sell tobacco products, to offer them to sale,
709
00:29:43.200 --> 00:29:46.140
they have to be on that shelf behind the register.
710
00:29:46.140 --> 00:29:47.670
So the consumer walks into the store
711
00:29:47.670 --> 00:29:52.170
and sees an open box of flavored tobacco product
712
00:29:52.170 --> 00:29:55.380
on that shelf with all the other products for sale.
713
00:29:55.380 --> 00:29:59.160
The consumer is unquestionably left to believe that
714
00:29:59.160 --> 00:30:02.130
that is available for purchase.
715
00:30:02.130 --> 00:30:04.950
The consumer doesn't have to, you know, ask,
716
00:30:04.950 --> 00:30:07.350
the consumer doesn't have to initiate
717
00:30:07.350 --> 00:30:08.730
any form of transaction.
718
00:30:08.730 --> 00:30:10.730
The statute doesn't require any of that.
719
00:30:12.630 --> 00:30:16.020
So I think the arguments that have been presented
720
00:30:16.020 --> 00:30:19.740
with respect to the evidence are dubious.
721
00:30:19.740 --> 00:30:23.910
But even if there was some reasonable doubt,
722
00:30:23.910 --> 00:30:25.350
under the Pacheco case,
723
00:30:25.350 --> 00:30:28.170
the Conservation Commission versus Pacheco case,
724
00:30:28.170 --> 00:30:29.310
the court can't substitute
725
00:30:29.310 --> 00:30:30.480
his judgment for the Board of Health.
726
00:30:30.480 --> 00:30:32.190
And if there's a reasonably conflicting view
727
00:30:32.190 --> 00:30:35.670
between two outcomes based on reasonable evidence,
728
00:30:35.670 --> 00:30:37.410
which there is no doubt there was-
729
00:30:37.410 --> 00:30:39.720
Can I ask you in your last 30 seconds to address
730
00:30:39.720 --> 00:30:41.940
the lack of written findings here?
731
00:30:41.940 --> 00:30:44.760
There was no lack of written findings, your Honor.
732
00:30:44.760 --> 00:30:47.640
The town solicitor's letter was the decision,
733
00:30:47.640 --> 00:30:50.610
and, I will take this opportunity to differentiate.
734
00:30:50.610 --> 00:30:53.610
The regulation say there needs to be an order,
735
00:30:53.610 --> 00:30:55.230
there needs to be a hearing,
736
00:30:55.230 --> 00:30:59.820
or if it's with a suspension, if it's justifying,
737
00:30:59.820 --> 00:31:03.630
then it's a request for a hearing if the retailer makes it.
738
00:31:03.630 --> 00:31:05.370
And then there's a decision.
739
00:31:05.370 --> 00:31:07.740
So the order was the notice of violations,
740
00:31:07.740 --> 00:31:09.780
the hearing occurred, there's no question about that.
741
00:31:09.780 --> 00:31:13.320
And then the decision that the regulations referred to
742
00:31:13.320 --> 00:31:14.490
in this case happened to be
743
00:31:14.490 --> 00:31:17.040
the then town solicitor's letter,
744
00:31:17.040 --> 00:31:21.210
which was prompted because the morning after the hearing,
745
00:31:21.210 --> 00:31:23.640
Cumberland Farms' General counsel
746
00:31:23.640 --> 00:31:25.567
submitted a letter to the town saying,
747
00:31:25.567 --> 00:31:26.910
"We object to this whole thing.
748
00:31:26.910 --> 00:31:30.270
We're appealing, we're taking all of our rights."
749
00:31:30.270 --> 00:31:33.297
And the town solicitor responded to that.
750
00:31:33.297 --> 00:31:37.020
And in that letter included the reasoning
751
00:31:37.020 --> 00:31:38.730
for the Board's decision.
752
00:31:38.730 --> 00:31:41.160
And included in that letter also,
753
00:31:41.160 --> 00:31:42.390
a statement reflecting
754
00:31:42.390 --> 00:31:44.970
that the regulations allow for judicial review.
755
00:31:44.970 --> 00:31:47.100
That judicial review happened here.
756
00:31:47.100 --> 00:31:48.720
Cumberland Farms got the suspension
757
00:31:48.720 --> 00:31:50.490
of the sales permit reversed
758
00:31:50.490 --> 00:31:52.050
because of that judicial review.
759
00:31:52.050 --> 00:31:53.760
And given that there was notice,
760
00:31:53.760 --> 00:31:55.200
and opportunity to be heard,
761
00:31:55.200 --> 00:31:57.720
and an opportunity for judicial review,
762
00:31:57.720 --> 00:32:00.540
all elements of due process were satisfied.
763
00:32:00.540 --> 00:32:02.790
Given that as this court held recently,
764
00:32:02.790 --> 00:32:04.320
in the Six Brothers case,
765
00:32:04.320 --> 00:32:06.270
the ability to sell tobacco products
766
00:32:06.270 --> 00:32:07.773
is not a fundamental right.
767
00:32:09.510 --> 00:32:10.343
Okay.
768
00:32:10.343 --> 00:32:11.250
If there are no other questions,
769
00:32:11.250 --> 00:32:12.873
the town will rest on its brief.