City of Warwick v. Almac's, Inc.

• Decision Date: 19 March 1982
• Docket Number: No. 81-180-A,81-180-A
• Citation: 442 A.2d 1265
• Parties: CITY OF WARWICK v. ALMAC'S, INC. ppeal.
• Court: Rhode Island Supreme Court

Page 1265

442 A.2d 1265

CITY OF WARWICK v. ALMAC'S, INC.

No. 81-180-Appeal.

Supreme Court of Rhode Island.

March 19, 1982.

Dennis J. Roberts, II, Atty. Gen., Stephen Lichatin, III, Asst. Atty. Gen., William J. Toohey, City Sol., David D. Prior, Asst. City Sol., Warwick, for plaintiff.

Armstrong, Gibbons, Lodge & Kinder, Joseph G. Kinder, Wayne M. Kezirian, Selya & Iannuccillo, Anthony G. Iannuccillo, Richard L. Patz, Abedon, Michaelson, Stanzler, Biener, Skolnik & Lipsey, Lynette Labinger, Edwards & Angell, John B. Rosenquest, III, E. Howland Bowen, Providence, Alan T. Dworkin, Ltd., Charles M. Koutsogiane, Robert M. Brady, Cranston, Tillinghast, Collins & Graham, Mark A. Pfeiffer, Providence, Revens & DeLuca, Ltd., John C. Revens, Jr., Warwick, for defendant.

OPINION

BEVILACQUA, Chief Justice.

This is an appeal from a Superior Court judgment dismissing a complaint brought by the plaintiffs, the State of Rhode Island and the city of Warwick (the city), against the defendants, certain retail establishments ¹ located in the city of Warwick. The plaintiffs sought to enjoin the defendants from selling products on Sunday other than those for which their Sunday sales licenses were issued. The plaintiffs argue that the trial justice erred in dismissing the complaint and in holding that G.L.1956 (1976 Reenactment) § 5-23-2, as amended by P.L.1976, ch. 169, § 1, which authorizes the issuance of Sunday sales licenses only to certain "small" retail establishments, violated the defendants' constitutional rights to equal protection and due process. Two defendants cross-appeal from the denial of the defendants' motion to dismiss the action, contending that the statute sued upon, § 5-23-6(C), as enacted by P.L.1976, ch. 169, § 2, does not provide for injunctive relief under the circumstances of this case.

General Laws 1956 (1981 Reenactment) § 11-40-1, ² commonly referred to as "the blue law," is a general prohibition of activity on Sunday, other than acts of "necessity and charity," in the absence of a valid license or permit authorizing such activity. The issuance of licenses authorizing retail establishments to open on Sunday is governed by § 5-23-2. That section, which originally exempted from the Sunday prohibition the sale of certain commodities, was amended to provide for an exemption based on the size of the business involved rather than on the type of merchandise sold. Section 5-23-2 authorizes the granting of Sunday sales licenses to those retail establishments

"at which in each calendar week of full time operation of the three (3) calendar months immediately preceding the date of application for such license, no more than an average of eighty (80) hours of employment per day is provided in the aggregate for all employees on the premises of such retail establishment including hours worked by employees of concessionaires, which average and aggregate shall be maintained during the term of the license; computation of hours of employment shall also include time spent in the performance of work by the owner or proprietor and members of his family. Said business shall be exempt from the provisions of chapter 40 of title 11 entitled "Sunday laws" and chapter 1 of title 25 entitled "Holidays and days of special observance," and may sell any and all items sold in the ordinary course of business with the exception of alcoholic beverages, provided, however, that all retail establishments may open for any purpose except for the sale of alcoholic beverages without obtaining a license on those Sundays between Thanksgiving day and Christmas day."

The statute further provides that Sunday work shall be strictly voluntary and that employees must be paid for Sunday work at a rate of no less than time and a half their regular rate. The final paragraph of § 5-23-2 provides for a limited commodity-based exemption, as follows:

"Retail establishments engaged in the preparation and/or sale of bakery products shall be licensed prior to the sale thereof in accordance with this section, provided however that the average hours of employment, time and one half and voluntary work provisions shall not apply. Retail establishments engaged in the sale of plants, shrubs, trees, fertilizer, seeds, bulbs, and gardening accessories, including any concession operated by or on the premises of a larger establishment, shall be licensed, prior to the sale thereof in accordance with this section, provided, however, that the average hours of employment provision shall not apply."

The sanctions for violation of § 5-23-2 are set forth in § 5-23-6, which provides:

"(A) Upon complaint filed with the director of labor by any employee that he is being required to work on the days set forth in § 5-23-1 and on Sundays as a condition of continued employment by any licensee, the director shall cause the same to be investigated, and if satisfied that a probable violation has occurred shall issue a complaint against the licensee with a notice for hearing. The hearing shall be held before a hearing officer of the department of labor. If the director concludes on the basis of the hearing record that such violation has occurred, he shall issue a cease and desist order to the licensee. Upon the second such complaint from any employee of the same retail establishment, which, after investigation, the director of labor deems to be valid, he shall refer the same to the attorney general for appropriate action as provided in subsection (C). The director shall issue regulations in conformity with law and preserving the rights of due process of all parties to implement the provisions of this subparagraph (A).

"(B) Every such licensed or unlicensed person, firm or corporation, including officers and officials thereof, who shall violate any of the provisions of such license or the provisions of this chapter, except as set forth in subparagraph (A) of this section, shall be fined not exceeding five hundred dollars ($500) for the first offense and not exceeding one thousand dollars ($1,000) for each additional offense.

"(C) Except as otherwise provided in subparagraphs (A) and (B) of this section, suit for violation of the provisions of this chapter, praying for injunctive or other relief, criminal or civil, may be instituted in the superior court by any city or town or by the attorney general."

According to the agreed statement of facts, the City of Warwick Board of Public Safety (the board) routinely and without limitation grants and issues Sunday sales licenses to those retailers that satisfy the eighty-hour-aggregate-average-of-employment limitation (small retailers). The products sold by small retailers include products similar to, and sometimes identical to, products sold by retailers that exceed the eighty-hour limitation (large retailers).

Nine of the ten defendants are large retailers that obtained Sunday sales licenses from the board based upon affidavits in which they stated that they engaged in the sale of bakery and/or gardening products. The remaining defendant, Lee's Superstore, Inc. (Lee's), obtained a license after submitting an affidavit in which it stated that it met the eighty-hour limitation. Following the issuance of such licenses and prior to February 1, 1981, the board sent letters to all defendants notifying them that their licenses permitted the sale of only the bakery and/or gardening products described in the final paragraph of § 5-23-2. On Sunday, February 1, 1981, and on Sunday, February 8, 1981, defendants opened for business, selling products other than such bakery and/or gardening goods.

On February 10, 1981, plaintiffs filed an amended complaint, seeking both preliminary and permanent injunctions against defendants pursuant to § 5-23-6(C). A consolidated hearing on the merits was held, at which hearing the Attorney General intervened as a party plaintiff.

Following this hearing, the trial justice denied plaintiff's prayer for injunctive relief and dismissed the complaint on the basis that the size classification established in § 5-23-2 was unconstitutional, stating:

"(T)here is no rational connection between the exclusion of the large retail store classification and the stated purpose of promoting peace, recreation and tranquility. The distinction is arbitrary. It is discriminatory. It creates an unfair advantage to the small retailer who is in active competition with the large retailer. By dividing the classification into large and small retailer, that classification denies to those Defendants equal protection and due process."

State Sunday closing laws have undergone repeated constitutional challenges in recent years. In a series of landmark cases in 1961, the Supreme Court of the United States considered whether the closing laws of three states violated the equal-protection clause. See Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961); Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536 (1961); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551 (1961). In those cases, the Court found that the purpose of modern Sunday closing laws was to promote a common day of rest and relaxation and held that promotion of this objective was a valid exercise of the state's power to protect the health, safety, recreation, and general welfare of its citizens. E.g., McGowan v. Maryland, 366 U.S. at 444-45, 81 S.Ct. at 1115, 6 L.Ed.2d at 410. Although noting that the challenged statutory schemes were riddled with exemptions based on the commodity and/or type of activity involved, in each case the Court held that the scheme withstood the minimal judicial scrutiny given to an equal-protection challenge to police-power legislation. In McGowan the Court set forth the standard of review to be applied in these cases:

"(T)he Fourteenth Amendment permits the States a wide scope of...