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18-P-1077                                            Appeals Court

    BOARD OF HEALTH OF NORTHBRIDGE     vs.   KENNETH R. COUTURE.


                           No. 18-P-1077.

            Worcester.    March 13, 2019. - May 20, 2019.

              Present:   Wolohojian, Blake, & Shin, JJ.


State Sanitary Code. Housing Court, Sanitary code violations.
     Municipal Corporations, Board of health. Public Health.
     Food. Permit. Words, "Food establishment."


     Complaint received and sworn to in the Worcester County
Division of the Housing Court Department on May 28, 2015.

     Following transfer to the civil docket, the case was tried
before Diana H. Horan, J., and entry of judgment was ordered by
her.


    Henry J. Lane for the defendant.
    David J. Doneski for the plaintiff.


    BLAKE, J.     This case involves a violation of the State

sanitary code (code) by the defendant, Kenneth R. Couture, for

operating a business without obtaining a food establishment

permit from the plaintiff, the board of health of Northbridge

(board).    See G. L. c. 111, § 127A; 105 Code Mass. Regs.
                                                                    2


§§ 590.000 (2010).   A judge of the Housing Court entered

judgment pursuant to a jury verdict on special questions.1    The

jury found that Couture violated the code by not obtaining a

permit and that he failed to abide by the board's January 15,

2015, order requiring him to obtain one.   See Solimene v. B.

Grauel & Co., KG, 399 Mass. 790, 800 (1987), quoting

Commonwealth v. Licciardi, 387 Mass. 670, 675 (1982) ("The

answers to the questions or issues submitted are considered a

special verdict consisting of 'a statement of facts the jury

have found from which the judge determines the appropriate

judgment'").   The judge, acting as the finder of fact on the

question of the number of days that Couture was in violation,

imposed a fine of $7,500.   She also ordered him to cease and

desist from serving beverages to the public until he obtained

the proper permit.

     Couture appeals, claiming that the board presented

insufficient evidence he violated the code, the code did not

apply to him, and the fine imposed was not supported by the

evidence.   We affirm.2


     1 This case began with a criminal complaint filed in the
Housing Court. Prior to trial, the judge, with the assent of
the parties, deemed the matter to be a civil action pursuant to
G. L. c. 185C, § 19.

     2 Couture also argues that the board failed to introduce a
certified copy of the applicable local regulations, and
therefore the jury could not determine whether or not he
                                                                    3


     Background.    In 2014, Couture began operating a bowling

alley business in Northbridge (town) known as Sparetime

Recreation.   He bought bottled beverages from a Pepsi

distributor and sold them to his customers.     In addition, he

made coffee on the premises and served it, together with cream

and sugar, to a senior bowling league.

     On September 6, 2014, the town health inspector conducted a

routine inspection of the bowling alley and observed that

Couture was selling soda and bottled juice without a food

establishment permit (permit).   Couture asked the inspector to

leave before she could complete her inspection.    The inspection

report stated that "the owner must apply for and pay for the

annual permit from the [board] to sell food."     Couture had

previously held a permit when he operated the bowling alley from

1998 to 2002, but when he resumed operation in 2014 he did not

obtain a permit.3




violated those regulations. Although the complaint filed by the
board references both the State and local regulations, the
questions submitted to the jury only concerned violations of the
State regulations. Accordingly, the board's failure to
introduce local regulations at trial is immaterial to our
analysis.

     3 Spare Time Enterprises (STE) operated the bowling alley
prior to Couture's resumption of the operation in 2014. STE had
obtained a food permit from the board but returned it when
Couture took over because the permit was not transferable.
                                                                     4


    By letter dated October 1, 2014, the board notified Couture

that he needed to apply for and obtain a permit to continue

selling prepackaged foods and beverages.     The board enclosed an

application, notified Couture that the issue would be discussed

at an upcoming meeting of the board, and requested his

attendance at the meeting.     By letter dated January 15, 2015,

the board notified Couture that an inspection revealed that a

cooler was being used to sell soda, water, and juice, and that

coffee was being served at the bowling alley without a permit.

The letter notified Couture that he was required to obtain a

permit as a "limited retail food establishment" with an annual

permit fee of one hundred dollars.    The letter concluded by

notifying Couture that the board had voted to give him fourteen

days to submit the permit application and that a reinspection

would take place thereafter.    Other than complaining to the

chairman of the board about the one hundred dollar fee, Couture

took no action.   He never applied for a permit.

    Discussion.    1.   The regulations.   Chapter X of the code,

as authorized under G. L. c. 111, § 127A (Chapter X), sets forth

"Minimum Sanitation Standards for Food Establishments."     105

Code Mass. Regs. § 590.000 (2010).    Chapter X incorporates the

Federal 1999 Food Code (1999 food code), published by the United

States Department of Health and Human Services, except for

"those provisions . . . which are specifically stricken or
                                                                      5


modified by [Chapter X]."    The definitions set forth in Chapter

X "shall be in addition to or a substitution for the same

definition in [the 1999 food code] section 1-201.10 entitled

Definitions."   105 Code Mass. Regs. § 590.002(B) (2010).

    Chapter X's stated purpose, as adopted from the 1999 food

code, is "to safeguard public health and provide to consumers

food that is safe, unadulterated, and honestly presented."      105

Code Mass. Regs. § 590.002(A) (2010).    1999 food code § 1-

102.10.   To that end, "[a] person may not operate a food

establishment without a valid permit to operate issued by the

regulatory authority."   105 Code Mass. Regs. § 590.002(A).     1999

food code § 8-301.11.    To obtain such a permit, a person must

submit to the board a written application on a form provided by

the board.   105 Code Mass. Regs. § 590.012(B) (2011).

    At the time of this action, Chapter X defined a food

establishment as "an operation that stores, prepares, packages,

serves, vends, or otherwise provides food for human consumption

. . . [s]uch as a restaurant; . . . market; . . . vending

location; [or] institution . . . and . . . [t]hat relinquishes

possession of food to a consumer directly."   105 Code Mass.

Regs. § 590.002(B) (2010).    It included operations that are

"conducted in a mobile, stationary, temporary, or permanent

facility or location; where consumption is on or off the
                                                                       6


premises; and regardless of whether there is a charge for the

food."   105 Code Mass. Regs. § 590.002(B).

    We pause to note that Chapter X was amended in 2018 (2018

regulations).    See 105 Code Mass. Regs. §§ 590.000 (2018).     The

2018 regulations replace "in their entirety" the definitions in

the Federal 2013 Food Code.    105 Code Mass. Regs.

§ 590.001(C)(1) (2018).    In addition, the 2018 regulations

explicitly exclude from the definition of food establishment

"[a]n establishment that offers only prepackaged foods that are

not time/temperature control for safety foods."       105 Code Mass.

Regs. § 590.001(C)(1) (2018).    Couture asserts by means of a

letter submitted pursuant to Mass. R. A. P. 16 (l), as appearing

in 386 Mass. 1247 (1982), that the 2018 regulations, which were

adopted after the briefing in this case, should be applied here.

However, while curative or remedial changes intended to provide

clarification may be applied retroactively, "regulatory[]

changes of substance apply only to events that occur after the

change's effective date."    Figueroa v. Director of the Dep't of

Labor & Workforce Dev., 54 Mass. App. Ct. 64, 70 (2002).       Here,

the 2018 change in the regulation's definition of a food

establishment is substantive in nature, and not merely a

clarification.   Consequently, the new definition cannot be
                                                                    7


applied retroactively to potentially exempt Couture's sales from

regulation in this case.4

     Chapter X does not provide a definition of "food."

Accordingly, in the present case we look to the definition set

forth in the 1999 food code, which defines food as "a raw,

cooked, or processed edible substance, ice, beverage, or

ingredient used or intended for use or for sale in whole or in

part for human consumption[.]"    1999 food code § 1-

201.10(B)(27).   See 105 Code Mass. Regs. § 590.002(B) (2010).

Couture does not contest that he sold food.    Instead, he argues

that he did not operate a food establishment because he was

selling prepackaged items and therefore was not required to

obtain a permit.   To support his argument, he contends that a

literal reading of Chapter X would lead to an "unreasonable" or

"absurd result."   We disagree.

     Here, the evidence supported the jury's finding that

Couture was selling food for human consumption in violation of

State and Federal regulations in effect at the time the

violations occurred.   "In reviewing whether the evidence was


     4 Couture also argues that the 1999 food code's definition
of a food establishment excludes distributors of nonhazardous
food, and that Chapter X does not explicitly strike the 1999
food code's exception. As discussed, where definitions differ,
as they do here, we must apply the definition provided in
Chapter X as in effect at the time of the events in this case.
105 Code Mass. Regs. § 590.002(B) (2010). This argument thus
fails.
                                                                     8


sufficient to support a jury verdict, the appellate court adopts

the view of the evidence most favorable to the plaintiff."

Kitner v. CTW Transp., Inc., 53 Mass. App. Ct. 741, 749 (2002),

citing Young v. Atlantic Richfield Co., 400 Mass. 837, 841

(1987), cert denied, 484 U.S. 1066 (1988).    A jury verdict

should not be disturbed where "a jury could reasonably have

arrived at their verdict from any of the evidence that the

plaintiff presented."    Dartt v. Browning-Ferris Indus., Inc.

(Mass.), 427 Mass. 1, 16 (1998), citing Labonte v. Hutchins &

Wheeler, 424 Mass. 813, 821 (1997).    Indeed, the application of

the regulation in this case accomplishes its intended purpose of

safeguarding public health.

    2.   The fine.     Chapter X provides that any person found to

have violated the regulations "shall . . . be fined not more

than $100 for the first offense and not more than $500 for a

subsequent offense."    105 Code Mass. Regs. § 590.019 (2000).   It

further states that a person found to have violated an order

issued in accordance with the regulations shall be fined in the

same amount, except that "[e]ach day's failure to comply with an

order shall constitute a separate offense."     105 Code Mass.

Regs. § 590.019 (2000).    To do otherwise would "render the

[regulation] ineffective to the point where [an individual in

violation] might find it more viable to accept the fine rather

than correct the condition.    Such a result would be at odds with
                                                                    9


the statutory mandate to construe" the regulation's stated

purpose of safeguarding public health.    Commonwealth v. Racine,

372 Mass. 631, 637 (1977).   The "substantial magnitude" of the

penalty provision "is a strong indication of the degree and

extent to which the [board] felt that violations . . . should be

punished."   Id. at 638.

     Couture argues, in essence, that the judge abused her

discretion in assessing a fine of $7,500 because there was no

evidence to support the claim of noncompliance with the

regulations or, in the alternative, the evidence established

violations on no more than two days.     Accordingly, Couture

claims the fine is arbitrary.5   His first argument, that the

evidence did not support a finding of noncompliance, is premised

on an incorrect reading of the regulations as discussed supra.

     As to the number of days of the violation, the evidence

permitted a finding that Couture was subject to fines in the



     5 Here, with the agreement of the parties, the judge acted
as the finder of fact to establish the number of days that
Couture was in violation. The jury were instructed: "Pursuant
to the State Sanitary Code, 105 CMR 590.019, the court may
impose, depending on your verdict, certain consequences, but
that will ultimately be up to me. You are simply to determine
whether or not there has been a violation of those sections of
the code." We note that even if the question of the number of
days of the violation was a question that should have been
decided by the jury, the issue is waived; Couture has not raised
the issue on appeal, nor did he object below. Equally
important, on this record there was no prejudice as the fine was
well below the maximum possible penalty.
                                                                     10


amount of up to $600 for violating the regulations on two

separate instances as set forth in the inspection reports from

September 6, 2014, and November 22, 2014, as well as fines in an

amount between $28,700 and $143,100 for violating the board's

order for 287 days beginning January 30, 2015 (the compliance

deadline set forth in the board's order) and November 13, 2015

(the first day of trial).

     Indeed, Couture testified about the ongoing sale of

beverages and service of coffee.     He stated, "We buy Pepsi,"

and, "During the day we give free coffee to the ladies -- the

senior leagues."   He sold water, as he explained, because "the

water from the town is -- it's very rusty tasting, so the

customers are looking for . . . clean water."

    The primary purpose of code enforcement, as is the case

here, is to protect the public health and safety, rather than to

punish past violations.     See Commonwealth v. Hadley, 351 Mass.

439, 444 (1966).   The judge had a full range of sanctions

available to her, including fines.    See Housing Court Standing

Order 1-04, note 26 (2004).     Couture's claim that the fine is

arbitrary is belied by the record.     Indeed, the fine imposed by

the judge was well below the lowest range of fines proposed by
                                                                11


the board and authorized by law.6   As such, we conclude that the

judge did not abuse her discretion.7,8

                                    Judgment affirmed.




     6 We note that Chapter X provides for fines for violations
of either the regulations or of the board's order in amounts not
more than $100 and $500 for first and subsequent violations,
respectively. 105 Code Mass. Regs. § 590.019 (2000). The
regulation proscribes no minimum amount. The highest fine for
the two violations in this case is $600, and for 287 separate
violations of the board's order, $143,100. Even if the minimum
fine was zero dollars, on this record, we cannot say that the
judge abused her discretion in imposing a $7,500 fine as that
amount was reasonable, particularly given that it is far below
the highest possible fine.

     7 An abuse of discretion occurs where "the judge made a
clear error of judgment in weighing the factors relevant to the
decision . . . such that the decision falls outside the range of
reasonable alternatives" (quotations and citation omitted).
L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). "A
decision is arbitrary or capricious such that it constitutes an
abuse of discretion where it 'lacks any rational explanation
that reasonable persons might support.'" Frawley v. Police
Comm'r of Cambridge, 473 Mass. 716, 729 (2016), quoting Doe v.
Superintendent of Sch. of Stoughton, 437 Mass. 1, 6 (2002).

     8 The board's request for appellate fees and costs is
denied.
