-: SJC 13613.
Cumberland Farms Inc. versus
Town of Braintree Board of Health.
-: Okay.
Attorney Dunlap, whenever you're ready.
-: May it please the court.
Joshua Dunlap on behalf of Cumberland Farms.
This appeal presents two questions of first impression.
First, what is the meaning of the phrase,
"Offer for Sale" in Chapter 270 section 28B?
And second, has a legislature granted Boards of Health,
any express or implied authority
to impose fines via an administrative hearing?
As a preliminary matter, I'd like to make
two points regarding these issues.
First, the Board erred by equating an offer for sale
with a mere display of goods.
(Judges speaking indistinctly)
(people laughing)
-: Oh, thank you.
I think Justice Wendlandt was gonna say, "Come on."
(people laughing)
You seem to have raised an impossibility defense
that they clearly messed up
when they put these products out in the open on shelves.
And you say,
because they're not entered in the POS system,
it's not an offer for sale.
Where is that in the statute?
-: So this is- -: Implied meaning
of "Offer for Sale."
-: This is a question of statutory interpretation.
And the parties agree in the briefs that making...
An offer for sale,
is making goods available in exchange for a price.
The parties were- -: Were the other goods
that were behind the register,
were those offered for sale?
-: We don't have anything in the record
to the extent that they could be swiped
through the POS system. -: How does a
convenience store offer something for sale?
-: They make it available to be purchased.
So it is possible- -: So when they display it
on the shelf, it's your position that
that's not being offered
to the average consumer for sale?
-: There has to be an intent for sale.
That's what an offer is. -: So I go to
the local 711 and I have to figure out
the manager's intent as to
whether or not I could buy Chiclets?
-: It's not a difficult issue, your Honor,
what you'd do is, you'd ask,
"Can I purchase that?"
Or, "I'd like to purchase that."
And they'd say no- -: So, until
I get an answer from the merchant,
it's not being offered?
-: You have to take into account
the whole of the facts that are involved.
Judge: And what is your legal authority
for that proposition?
-: That comes straight from the plain language
of the statute which the parties agree on.
Again, it's making a good available in exchange
for a price. -: Can I ask you
to turn to your second argument?
-: Yes, I'd be happy to, your Honor.
So we do raise an argument regarding
the ability of the Board
to impose a fine via administrative hearing.
Judge: Can I ask a factual question?
-: Yes. -: About this.
I understood that
judge's decision to say that...
I think it was a she,
was relying on the 2018...
Was applying the 2018 regulations because
those were the ones that were in effect
at the time of the violation.
Am I correct on that?
-: So below, the Board only argue
that the 2018 regulations apply.
-: Okay, and is that your view as well?
That it's the 2018 Regs?
Attorney: Yes, that is what we argued in our brief.
-: So I may be misreading the 2018 Regs,
but I thought that the 2018 Regs
provide for $100 fine, not $1,000 fine.
Attorney: They...
That's correct. -: Okay.
Attorney: And that goes to part of the issue.
-: So, then let's assume that
that part of the decision is just incorrect.
That, somehow, someone mistook
that the 2018 Regs permitted $1,000 fine.
And, in fact, it's only $100 fine.
Let's assume that we were to say,
only $100 fine was permitted.
What happens to all your other arguments
if we make that one correction?
Because that would be within the $300
administrative fine limit.
Does everything else go away?
Attorney: It...
No. -: Why not?
-: It illustrates that there would then be two avenues
for the Board to pursue rather than one.
So if it's $1,000, they would be limited
to pursuing criminal disposition.
If it's $100, then they would also be allowed
to pursue non-criminal disposition.
So in other words,
there would be another source for them
to pursue a fine, which underlines in fact,
our argument that there is no implied power.
It is not necessary for the Board
to impose fines administratively,
because now there are two avenues for them to pursue.
And what they did instead was pursue
at an administrative hearing,
that is not authorized by the legislature
or in the Board's own- -: But the legislature
authorized the state agency
to promulgate regulations, right?
-: They did.
-: And the agency promulgated
regulations that set forth procedural
requirements, right?
-: Yes. -: And,
one of those regulations
authorizes the local Board of Health
to enforce the anti-flavored tobacco law.
-: To an extent.
"In the same manner as," is the language.
"In the same manner as local rules
and regulations are enforced."
So what we contend, your Honor, is that
that language is a limitation, a recognition
that DPH was not granting a board of authority
any powers that it did not already possess.
So what the Board could do is it could pursue
suspension of a fine by administrative hearing.
That's a necessary power.
So, it's an implied power.
However, for purposes of imposing fines,
they would need to either pursue criminal disposition
or non-criminal disposition depending
upon the size of the fine.
So, that regulation only permits use of
previously authorized means of enforcement,
again, in the same manner as.
And Cumberland Farms, Reading gives the entirety
of that sentence full meaning.
Again, you can utilize an administrative hearing
if there's a permit suspension,
otherwise, at law or in equity,
pursuant to criminal or non-criminal disposition.
-: But what is that
"Or otherwise at law or in equity" mean?
-: That's referring to the criminal process.
So, you can enforce- -: It says,
each Board of Health,
and I'll grant you that it's somewhat ambiguous,
each Board of Health may enforce
the flavored tobacco law,
or otherwise that law or in equity.
-: Correct. Through the criminal process.
So- -: But...
So, the enforcement of the flavored tobacco law
is set forth in these regulations.
-: It does establish certain procedures.
It establishes certain safeguards
regarding these hearing process,
that would apply to permit suspensions.
What it doesn't do is grant any new authority
to a Board of Health to impose a fine
by administrative hearing.
Because the department's- -: Even though the fine
is mandatory under the state statute
and then also under the state regs?
Attorney: Correct. Because there is a
process available to the Board.
-: So the Board of Health can impose a fine
that is not allowed by the state statute.
That is the state statute says,
first defense must pay 1k, right?
-: Correct. -: Okay.
And so you're saying the Board of Health,
the local Board of Health can ignore
that mandatory provision
because it just doesn't have authority
to impose that kind of fine?
Attorney: No. No, that's not correct, your Honor.
-: Okay. So what is your argument?
-: What they can do,
is they can bring a criminal complaint-
-: Which doesn't- -: And pursue that
$1,000 fine through that process.
-: Okay.
So the only way they can enforce
this flavored tobacco law,
is through the criminal complaint?
Attorney: If it's over $1,000, yes.
-: But then- -: Because if it were under-
-: Isn't it always over 1,000?
-: Yes. -: Okay.
-: Except to the extent that
they should have applied $100 fine,
which is what was permitted under the 2018 regulations.
-: But the local regs can't overrule the state law.
-: And we haven't argued...
I was just acknowledging the Justice's question
as to whether or not
there's some conflict between
the $100 allowed in the 2018 regulations
and the $1,000 stated in the department's regulations.
We have not challenged their authority
to pursue $1,000 fine.
But if they do so,
it needs to be through the criminal process.
-: All right, so you're suggesting that
the most logical reading and rational reading
of these regulations is that
the only way the local Board of Health
can help the state agency enforce
the flavored tobacco law,
is by filing a criminal complaint.
-: And that's because we know
that Boards have no inherent authority.
The case law is clear on that.
The Board doesn't challenge that point.
And so it must be expressly
or impliedly granted by the legislature.
-: And you're saying there's no implied grant
by the legislature through the state agency
in the language that I just read.
-: Well, it's imply...
To be implied, it has to be necessary or essential.
That's this court's language.
And it is not necessary to be able
to pursue it. -: Well, that's for
the legislature to authorize
the local Board of Health, right?
-: Yes. -: Here the legislature
has authorized the state agency to promulgate rules.
-: Well, what I would suggest, your Honor,
is that they did not authorize a department
to then turn around and grant additional powers
not already granted to the Board.
So they said that the- -: Why not?
-: The department couldn't- -: Wait, wait.
Can you...
Yes, explain to me why
the state agency cannot authorize
the local Board of Health to help police tobacco laws?
-: They were authorized to adopt procedures
to implement the law.
And Commonwealth versus maker makes it very clear that
that language is not to be read broadly
to confer unfettered authority.
So what I would suggest, your Honor, is that
what they did is they went ahead
and authorized Boards
to enforce the tobacco regulations via,
and again, the language,
but the same manner that local rules
and regulations are enforced.
So what the department was doing was it was recognizing
that there was a preexisting standard
for how Boards are to impose fines.
And if it's over $1,000,
that has to be through criminal process.
So the department did not purport in its regulations
to give additional powers.
And I might suggest, your Honor,
it's important to note that Boards
were conducting these administrative hearings
to impose fines on an ad hoc basis
even before the Department adopted its regulations.
But the Board makes no effort
to identify any statutory grant
other than the department's regulation.
So what's clear is that the DPH regulations
are just a post hoc justification
for an ultra vires act that the Boards
were just adopting, you know, applying fines
by administrative hearing without having
ever been authorized.
And now after the fact they say,
"Oh well, the DPH regulations
are what give us that authority."
But they do not.
Again, they're constrained to
"in the same manner as" local rules
and regulations are enforced.
And that has to be read against
this court's very clear construct
about how a Board gets any authority at all.
And that's from the legislature directly,
either expressly or impliedly.
And that is by necessity.
And there's no necessity here,
because there are other procedures
available to the Board.
You know, I would suggest your Honors
that Burlington Sand and Gravel and Maroney
are both very helpful guides for this court
because in those cases, the Board attempted
to impose a fine via some means
other than criminal process
or non-criminal disposition.
In those cases, they attempted
to collect a fine via a counterclaim.
And the courts...
The Court of Appeal looked at this very issue
and said,
"Is the power to impose a fine administratively
necessarily implied?"
And the court said, no, it wasn't,
because the town can utilize
these other available procedures.
So I think both Burlington Sand and Gravel
and Maroney are very, very helpful cases.
-: How about deference?
We've got sort of somewhat poorly drafted language
and the agency obviously thinks that
this is permissible and appropriate
and we owe deference to reasonable interpretations here.
Is it really an unreasonable interpretation
that they can't impose fines without
going through the criminal process?
-: Well, I think your Honor, you should...
You can measure your deference
and one of the factors that you consider
is whether or not it was an interpretation
that was offered contemporaneously.
This is just the department coming in
after the fact and offering
this interpretation for the first time
in an amicus brief before this court.
The department had never previously suggested,
had never weighed in one way or the other
on what this language meant.
And I would suggest, your Honor,
that giving it the reading that the department suggests
runs contrary to all of this court's clear precedent
about how a Board of Health is authorized
to undertake any action whatsoever.
-: Counsel, before you leave,
related to Justice Kafker's question,
is that the substantial evidence
issue back to the first issue.
Attorney: Yes.
-: There was evidence,
and I know you say it was just a lay person's view,
but there was testimony from an employee of Cumberland Farms
that it was a mess up.
And so Justice Wendlandt asked you,
how else would you prove all this?
And you said,
well, if there were an employee to come in and say...
So it's not just maybe the technical definition
you're looking about whether you could do this
under the POS system.
You have an employee
and under the substantial evidence framework,
why couldn't they rely on that testimony
for the issue of whether it was offered for sale?
-: So an important point, your Honor,
and it's a fact finder's decision as to
whether or not a violation has occurred.
But it is a question of law as to whether or not
particular conduct is in fact a violation.
And so a layman cannot admit to that legal conclusion.
And the example that I would give is this,
a fact finder determines whether a statement is fraudulent.
But a layperson cannot admit that a true statement is fraud.
That's a question of law.
That's what happened here.
He admitted that conduct, which we contend to,
did not violate the statute, was put up for sale.
That goes to the question of law
that this court needs to decide.
It's not a matter of admission.
Thank you. -: Okay. Thank you.
Attorney Smerage.
-: Good morning, Chief Justice, Associate Justices.
May it please the court.
Roger Smerage on behalf of the town
of Braintree Board of Health.
-: Can you take us through the statutory authority
all the way to the fine in track?
In a linear fashion,
how we get from point A to point Z?
Attorney: It's pretty simple, your Honor.
-: Okay.
-: Section 28B says you can't offer
a flavored tobacco product for sale.
And then it's 28G,
no, excuse me,
28E says the fines that are in section 6 apply.
Those fines in section 6 are mandatory.
And then section 28G says...
Judge: And those fines are $1,000?
-: $1,000 for a first offense.
That's mandatory.
It's not a ceiling, it's not up to,
it's $1,000 flat.
And then 28G authorizes the Department of Public Health
to promulgate procedures, rules and regulations.
-: To implement. -: And to implement.
Judge: But not to enforce.
It doesn't say enforce.
-: Well, I think enforce is part
of implementing a statute, your Honor.
-: I mean perhaps,
do you have some authority for that?
-: I think that's just plain language
what implement means, I think to hold-
Judge: Can we continue down my road first?
-: I'll defer to the Justices,
however you wanna order your questions.
Judge: Oh, no, absolutely.
Absolutely.
-: I've got from 28B to 28E to 28G.
Continue the journey.
-: Yeah, from there you go to the regulations
that DPH did promulgate,
and they set out the procedure.
And the language that Justice Wendlandt identified
during my brother's argument,
they say that local Boards of Health
may enforce this regulation
and then there's the comma followed by the
or otherwise language
regarding other procedures at law or equity.
And while I acknowledge
that maybe the language wasn't perfect,
and if there is any ambiguity,
deference is accorded to
the Department of Public Health's interpretation,
it says that local Boards of Health
may enforce this regulation.
And implicit in that is that includes the fines,
including the mandatory fines,
that are restated in the regulation.
So I think that's the path.
It's not a far one.
-: So, yeah.
Why can't they enforce the fine
through the criminal process
that they're already authorized to do?
-: They can,
but I don't think they're required to, your Honor.
Judge: Why not?
-: Because the regulation says that they're not required to.
Judge: No, it says that they can enforce it.
Attorney: Yes.
-: And the only mechanism, according to the cases
that your opposing counsel has said
are through the criminal complaint, basically.
-: That would then rid the entire procedural part
of the regulation out of the regulation.
It would cast aside
sections 45 and 55- -: Well, no.
Those procedures would be available
for the state agency to enforce the law.
But when it deputizes the local Board of Health,
the local Board of Health process,
and I'll look this up,
apparently is only through the criminal complaint.
-: I would respectfully disagree.
'Cause there are parts of 45 and 55,
that refer to the Board of Health
and its decision making.
I don't have...
I mean, I can get the language out in front of me
if we want to go through it,
but I believe there are parts of it that say
the local Board or the department.
-: May I ask you a question?
And maybe I just don't understand the relationship
of all of these statutes but,
in chapter 111, section 239,
it says that the...
And this pertains to the promulgation of regulations
by the Department of Public Health.
It said that department can...
"That the section does not limit,"
I'm just reading now,
"Shall not limit the right
of an appropriate authority in a city or town
to adopt rules and regulations as may be necessary.
Provided, however, that such a rule
or regulation shall not conflict
with regulations promulgated by the department,
or state or federal law."
Why is a rule
that would allow the Board of Health
to enforce a fine,
or collect a fine,
other than as
provided by the statutes which require that it go
through a criminal process above $1,000
or a civil process below 1,000...
Below is it up to 300?
Attorney: $300 under the non-criminal disposition?
-: Right. Non-criminal disposition statute.
Why doesn't your interpretation of what the,
of what the Department of Health
and then in turn the Board did,
why is that not in conflict with state law?
-: Because there's nothing in Section 28
or the larger Act modernizing tobacco control
of which chapter 111, section 239 was a part.
I mean you gotta remember this was
comprehensive legislation that included that statute,
the addition of section 28 to chapter 270,
as well as the increasing of the fines
in section 6 from their prior pre-Act levels,
which were 100, 200 and 300,
and thus would've been subject to the non-
-: I'm not saying that the lump...
That the amount of the fine is in conflict.
I'm saying the root of the mechanism of enforcing it.
Attorney: Yeah.
-: How is it that your interpretation of giving
you know, a mechanism that just allows
the Board to directly do it as opposed to
filing some process either civil or criminal?
Why is that new process
not in conflict with state law?
-: Because there's nothing in Section 28
or any other general law that I'm aware of
that prohibits it.
And the analysis when you're looking at
the regulations is...
The first step is, is it preclude...
Is what the regulation does precluded by the law?
And here, it's not.
And I would suggest that because the...
And my brother cited Maroney- -: Because even though...
Sorry.
-: If I may. -: Yes, of course.
-: My brother cited Maroney.
In that case,
in addition to the zoning bylaw issue,
which section 7 of the Zoning Act
does specifically say what the processes are
for enforcing a fine in violation
of the zoning bylaw.
It also refers to the state building code,
'cause there were building code violations there.
And the statute that authorizes enforcement
of the building code violations,
which is 148A, section 2 as discussed in Maroney,
that also specifically sets out
what the enforcement mechanism is.
Here, in section 28, the legislature
was silent on the enforcement mechanism.
It left it to the department as part of those procedures,
not just regulations but procedures,
that it was authorized
to promulgate to implement the statute.
It left it to the DPH.
And given that- -: So, how do we
understand that the silence
is leaving an open door for them
to come up with another mechanism as opposed
to simply an indication that the Boards
are to use the existing mechanism?
-: I think if the legislature wanted to say
that they were to use
and had to use the existing mechanism,
the legislature would've said so,
like it did in the building code statute
that's referenced in Maroney.
The second thing, and as this court recognized
in Tri-Nel Management versus
the Board of Health of Barnstable
the 2003, I think, or 2001 decision,
which this court recognized the authority
that Chapter 111 grants the local Boards of Health
to regulate tobacco use.
The legislature when it was enacting the Act
modernizing tobacco control in 2019
was operating within that preexisting context
that this court had already laid out
and that the legislature had laid out
by enacting 111 section 31, which authorizes
local Boards of Health to implement local regulations
concerning the public health.
In Tri-Nel Management, this court said that
that statute recognizes that
it's not just state regulation and enforcement,
it can go down to the local level.
And with that background in mind,
the legislature, when enacting the Act in 2019 said,
"We're gonna leave it to DPH.
Here's the authorization in 28G,
DPH you decide whether you're gonna do all the enforcing,
whether local Boards of Health are gonna do the enforcing,
whether you're gonna work together
and if so through what procedures."
-: But what do we do with the statute that says
that it's a non-criminal disposition to $300?
Chapter 40, section 21.
-: 21D, your Honor? -: Yeah.
-: So we have that,
which is a specific statute,
which may to your brother's point,
have more force than this implicit right
to go all the way up to the statutory authority
that the Board of Health...
That the DPH has.
-: Again, the legislature has to...
Has to be assumed that the legislature
was acting with that statute in mind
when it also, as part of the Act,
increased the fines.
The legislature knew it was taking the fines
out of the non-criminal disposition realm.
And so given that in conjunction
with 28G authorizing DPH to now take the reins
and promulgate the procedures,
that's where you get that authorization.
-: So they passed it knowing that there was
this bar and- -: Yeah.
-: We assume they know what their statutes
when they passed the- -: Exactly, your Honor.
-: Do you agree that the 2018 regulations
were the ones that should pertain to this case?
-: Not in the way I think that you're asking it, your Honor.
The DPH regulations are what pertain to this case.
The DPH regulations would apply
even if a local Board of Health
did not have a tobacco regulation
under 111, section 31.
It's a state law, it's a state mandate,
and the DPH issued its regulations
and those are what control.
The local regulations can supplement that
to the extent that they don't conflict under 665, 057.
But to your point earlier, your Honor,
if the local Board of Health here,
tried to implement $100 fine for a first offense,
that would be a conflict
with the state law and the state regulation.
-: Okay. -: So it had to be 1,000.
-: It has to be at the time of the offense.
Correct?
-: The substantive portions, yes.
And the time of the offense,
the DPH regulations have been in effect
for over three years.
-: That's the two thou...
Sure, but what I'm really just trying
to find out is why was this not supposed
to be $100 rather than $1,000 fine?
-: Because in 2019 the state legislature said
it's $1,000 fine.
That's the Act.
That supersedes everything.
-: So any enforcement action, any violation,
whether it's brought by a Board of Health
or the DPH, it's bottom line $1,000?
-: For a first offense. -: For first offense.
-: Even if the local Board has a regulation
that says something less or more,
either way because of the mandatory nature of the fine,
a different fine set forth in a local regulation
would conflict with the DPH regulation
and therefore be preemptive.
That conflict preemption was the exact reason why
the superior court judge here tossed out
the suspension of the sales permit.
Because there, that was under the then in effect
local regulation and the state regulation.
Judge: Are you conceding that was correct?
-: We have not taken a cross appeal from that, your Honor.
Judge: But are you conceding it was correct?
-: Yes. -: Okay.
-: I mean, otherwise we would've taken a cross appeal.
-: You're saying that the local town can't do more
than what the state has authorized.
-: If it's a mandatory penalty?
That's correct.
I don't think the local town
can deviate from a mandatory penalty.
If there are no other questions on the regulatory aspect,
I do wanna briefly touch base on the evidentiary portion.
And here, the question came up of intent.
We addressed this in the brief a little bit,
but to your point, Justice Wendlandt,
the consumer has no way of knowing
that the store's purchase of sale technology
is gonna block this item.
If that testimony is even credit...
Excuse me, credited.
And again, it's up to the local Board
to decide what amount of credibility
to give to that testimony.
But the consumer has no way of knowing that.
They see the shelf behind the register,
which again is a DPH regulation,
to sell tobacco products, to offer them to sale,
they have to be on that shelf behind the register.
So the consumer walks into the store
and sees an open box of flavored tobacco product
on that shelf with all the other products for sale.
The consumer is unquestionably left to believe that
that is available for purchase.
The consumer doesn't have to, you know, ask,
the consumer doesn't have to initiate
any form of transaction.
The statute doesn't require any of that.
So I think the arguments that have been presented
with respect to the evidence are dubious.
But even if there was some reasonable doubt,
under the Pacheco case,
the Conservation Commission versus Pacheco case,
the court can't substitute
his judgment for the Board of Health.
And if there's a reasonably conflicting view
between two outcomes based on reasonable evidence,
which there is no doubt there was-
-: Can I ask you in your last 30 seconds to address
the lack of written findings here?
-: There was no lack of written findings, your Honor.
The town solicitor's letter was the decision,
and, I will take this opportunity to differentiate.
The regulation say there needs to be an order,
there needs to be a hearing,
or if it's with a suspension, if it's justifying,
then it's a request for a hearing if the retailer makes it.
And then there's a decision.
So the order was the notice of violations,
the hearing occurred, there's no question about that.
And then the decision that the regulations referred to
in this case happened to be
the then town solicitor's letter,
which was prompted because the morning after the hearing,
Cumberland Farms' General counsel
submitted a letter to the town saying,
"We object to this whole thing.
We're appealing, we're taking all of our rights."
And the town solicitor responded to that.
And in that letter included the reasoning
for the Board's decision.
And included in that letter also,
a statement reflecting
that the regulations allow for judicial review.
That judicial review happened here.
Cumberland Farms got the suspension
of the sales permit reversed
because of that judicial review.
And given that there was notice,
and opportunity to be heard,
and an opportunity for judicial review,
all elements of due process were satisfied.
Given that as this court held recently,
in the Six Brothers case,
the ability to sell tobacco products
is not a fundamental right.
Judge: Okay.
-: If there are no other questions,
the town will rest on its brief.