Com. v. Racine

• Decision Date: 31 May 1977
• Parties: COMMONWEALTH v. Joseph L. RACINE, Jr. Supreme Judicial Court of Massachusetts, Worcester
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 500

363 N.E.2d 500

372 Mass. 631

COMMONWEALTH v. Joseph L. RACINE, Jr.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Feb. 7, 1977.

Decided May 31, 1977.

Milton H. Raphaelson, Worcester, for the defendant.

Robert A. Stolzberg, Sp. Asst. Atty. Gen., for the Commonwealth.

Before HENNESSEY, C.J., and KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

On March 18, 1975, two complaints in the Central District Court of Worcester charged the defendant with failure to comply with an order from the director of the Lead Poisoning Prevention program directing the defendant to remove or cover lead paint found in two units of residential premises owned by him in which a child or children under six years of age resided. See G.L. c. 111, §§ 197, 198. He was found guilty on April 8, 1975, and thereupon took an appeal in both cases to the Superior Court.

The defendant filed in the Superior Court a motion to dismiss the complaints. He based his motion on the contention that the administrative regulations which define the offense for which he was charged were promulgated 'in excess of the authority' granted by the Legislature, and, hence, invalid. The motion was denied. The defendant also excepted to the introduction in evidence of these regulations, namely, the State Sanitary Code (code) and Regulations for Lead Poisoning Prevention and Control. The defendant was found guilty by the trial judge in a jury waived proceeding. He was fined $250 on one complaint. The other was filed. The defendant appealed to the Appeals Court and we transferred the case here on our own motion. The case is before us on the defendant's bill of exceptions. We affirm.

In 1971, the Legislature enacted St.1971, c. 1081, an emergency act, entitled 'An Act providing for a comprehensive program of lead paint poisoning prevention and control.' Among its various provisions, which are now codified in G.L. c. 111, §§ 190--199, the act requires the Department of Public Health to 'establish a statewide program for the prevention, screening, diagnosis and treatment of lead poisoning, including elimination of the sources of such poisoning . . ..' G.L. c. 111, § 190. The statute also authorized the appointment of a lead poisoning control director and required him, inter alia, to establish a program for the early diagnosis of cases of lead poisoning, G.L. c. 111, § 193, and a program for the 'detection of sources of lead poisoning.' G.L. c. 111, § 194, as amended by St.1974, c. 449, § 1. The last two mentioned sections require the director to devote considerable effort to the detection and diagnosis of lead poisoning in children under six years of age.

Consistent with this, G.L. c. 111, § 197, requires the owner of residential property to take affirmative measures ¹ to eliminate any sources of lead paint poisoning in any residential premises where a child under six is either residing or will reside due to a change in occupancy of those premises. ²

General Laws c. 111, § 198, as amended by St.1974, c. 449, § 2, provides that violations of § 197 'may be treated by any party as a violation of the state sanitary code and all procedures and remedies applicable to such violations of said sanitary code shall be available to correct, deter or punish violations of said . . . (section).' The same section vests the director with all powers and authority granted to local boards of health (G.L. c. 111, §§ 127A--127K) to enforce said provision. The effect of this provision is, as the defendant concedes, to empower the director of the lead paint program to act under G.L. c. 111, § 127A, and promulgate 'rules and regulations as, in its opinion, may be necessary . . . provided, such rules and regulations do not conflict with the laws of the commonwealth or the provisions of the code.' The dispute in this case is not whether the power exists but whether it has been rightfully exercised.

Pursuant to this power the director promulgated Regulations For Lead Poisoning Prevention and Control on April 6, 1973, October 16, 1974, December 3, 1974, and on April 18, 1975. The regulation applicable at the time of trial was regulation 5.5, promulgated on October 16, 1974, which is identical to the current regulation 5.9(a), promulgated on April 18, 1975. The regulation provides that the director and local boards of health may treat lead paint violations as violations of the State Sanitary Code, and further provides: 'Any person who shall fail to comply with any order issued pursuant to the provisions of this code shall upon conviction be fined not less than ten nor more than five hundred dollars. Each day's failure to comply with an order shall constitute a separate violation.' The regulation then cites article I, regulation 10.2 of the code as the source of its authority. That provision is identical to that contained in the lead paint regulation 5.5(a) (currently 5.9(a)). It is this definition of the term 'separate violation' which is one basis of the defendant's bill of exceptions.

The defendant's other argument, also covered by his bill of exceptions, has for its basis lead paint regulation 11 (currently the same as at the time of trial). That regulation states that violations of § 197 'produce immediate danger of lead poisoning and constitute emergency matters pursuant to . . . (§ 198) and within the meaning of the State Sanitary Code, article I, section 5.1 ³ . . .. Therefore, . . . enforcement agencies shall follow the time limitations established in regulations 12 and 15--17.' These regulations require the agency to report a finding of a high level of lead to the owner and affected tenants (as well as various other parties) informing them that the level of lead is considered a violation of the State Sanitary Code 'which may endanger or materially impair the health of occupants, especially children' (regulation 15.3). These regulations also empower the director in that situation to issue an order requiring proper remedial measures (ibid.). If that order is not complied with in seven days, the director is authorized to institute judicial proceedings to obtain compliance (regulation 17.1). ⁴

1. The defendant's first contention is that neither G.L. c. 111, §§ 197, 198, nor § 127A, specifically authorizes daily penalties for failure to obey orders to correct conditions which are in violation of the statute and that the 'creation' thereof in the regulation constitutes the improper exercise of a legislative power by an administrative agency.

To support his proposition that the creation of such penalties is beyond the permissible scope of the legislative grant of power the defendant relies on Commonwealth v. Diaz, 326 Mass. 525, 95 N.E.2d 666 (1950). In Diaz we struck down a regulation providing a flat penalty for violations of traffic control regulations at Logan airport. We did so on the ground that the imposition of the same penalties for all offenses was not consistent with the implicit legislative intent to have the seriousness of the penalty commensurate with the seriousness of the violation. We reaffirmed in Diaz, however, the established principle that the Legislature may delegate to a board or an individual officer the working out of the details of a policy adopted by the Legislature. Id. at 527, 95 N.E.2d 666. If the regulations are within the ambit of the enabling statute, they will be considered valid. Diaz also recognized that the Legislature may delegate to a nonlegislative body the authority under proper statutory guidelines to define more precisely by regulation the nature of an offense and to fix penalties within set limits. ⁵

The defendant's argument that the regulation at issue is outside the statutory limits is based on the proposition that the Legislature did not specifically provide for daily penalties in § 197 or § 198, and that this is an implicit rejection of such a penalty. As evidence that the Legislature would have so provided if it had in fact so intended, the defendant directs our attention to G.L. c. 111, § 150A, and to G.L. c. 131, § 40, which include such specific legislative provisions.

The circumstances pertaining to the enactment of the last two statutes are distinguishable from those of the statute here involved. Neither G.L. c. 111, § 150A, nor G.L. c. 131, § 40, had at the time of its enactment an available body of administrative regulations concerning the area of the statutory enactment which the Legislature could use as a reference for the enforcement scheme. Here, at the time St.1971, c. 1081, was enacted, there was such an existing body of administrative regulations in the State Sanitary Code. We assume that the Legislature was aware of the contents of that code, including its provision for daily offenses, when it enacted c. 1081 (now G.L. c. 111, §§ 190--199). The contents of that code are substantial evidence that the legislative reference to it in § 198 included therein an authority similarly to define offenses under the lead paint statute.

In enacting § 198, and making specific reference to the code, which had been adopted two years prior, the Legislature is presumed to have been familiar with its contents. Mathewson v. Contributory Retirement Appeal Bd., 335 Mass. 610, 614, 141 N.E.2d 522 (1957). Since such daily penalties were in the code as it existed at the time of enactment of §§ 197, 198, the legislative intent must be ascertained on the basis of a presumed legislative knowledge of the code provisions, and the Legislature's intent as indicated in the statute, to make those provisions part of the enforcement scheme.

Viewed in this light, we believe that in making reference to the provision of the code the Legislature was cognizant of the provision for daily penalties contained in article I, regulation 10.2, and was indicating that such penalties should be part of the scheme of enforcement for the lead paint law. We note further, while it is by no means conclusive, the director's ...