Himigri Enterprises, Inc. v. Green, 100719 MASUP, 1981CV00366

Docket Nº:1981CV00366
Opinion Judge:Janice W. Howe, Justice of the Superior Court
Party Name:HIMIGRI ENTERPRISES, INC. dba K2 Beer and Wine et al.[1] v. Brian GREEN et al.[2]
Case Date:October 07, 2019
Court:Superior Court of Massachusetts
 
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HIMIGRI ENTERPRISES, INC. dba K2 Beer and Wine et al.1

v.

Brian GREEN et al.2

No. 1981CV00366

Superior Court of Massachusetts, Middlesex

October 7, 2019

DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS THE FIRST AMENDED COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

Janice W. Howe, Justice of the Superior Court

The plaintiffs, Himigri Enterprises, Inc., Goha, LLC, Bikas Pradham, and three individual registered voters, Ghulam Abbas, Faisal Abbas, and Hajuri Singh, filed a complaint against the defendants, who are all members of the City of Somerville Board of Health (collectively, the "Board"), challenging the Board’s December 13, 2018, adoption of a public health regulation concerning the sale of flavored e-cigarettes and combustible cigarettes (the "Regulation"). The complaint asserts violations of G.L.c. 30A, § 14 ("Administrative Procedures Act" or "APA"), G.L.c. 30A, § § 18-25 ("Open Meeting Law" or "OML"), seeks declaratory judgment pursuant to G.L.c. 231A, certiorari review pursuant to G.L.c. 249, § 4, as well as injunctive relief preventing the Regulation from taking effect. A request for preliminary injunctive relief (Count II) was previously denied by this court (Hogan, J.) on June 14, 2019.

The Board now moves to dismiss all but Count IV (declaratory judgment) of the first amended complaint pursuant to Mass.R.Civ.P. 12(b)(1) and 12(b)(6). The Board argues that this court lacks subject matter jurisdiction over the plaintiffs’ claims under the APA, the OML and the certiorari statutes; or, in the alternative, that the plaintiffs fail to state a valid claim under the Open Meeting Law. For the below reasons, defendants’ motion to dismiss Counts I, II, III, and V of the first amended complaint is ALLOWED.

BACKGROUND

The following facts are taken from the allegations of the first amended complaint. In addition, the court takes judicial notice of certain documents referenced or relied on in the complaint. See Harhen v. Brown, 431 Mass. 838, 839-40 (2000). In particular, this court takes judicial notice of the information posted by the City for members of the public related to the December 13, 2018, "Public Hearing" concerning the Regulation. The plaintiffs allege in their complaint that such information failed to satisfy the Open Meeting Law and attached the same to their complaint. See id.

The Board is a municipal board of health with one stated purpose: "To promote public health in Somerville."

The plaintiffs are either registered Somerville voters, or owners and operators of convenient stores that have traditionally sold tobacco products, including flavored tobacco products, alongside food, drinks, lottery tickets, and other sundries.

On November 28, 2018, and December 5, 2018, the Board published "Legal Notices" in The Somerville Times newspaper notifying the public of a December 13, 2018, public "Hearing" concerning a "Hearing on Tobacco and E-cigarette Regulations." Through its website, the Board published notice of the same "Hearing on Tobacco and E-cigarette Regulations" to be held on December 13, 2018 ("Hearing Notice"). The online Hearing Notice invited "public testimony" on proposals to "(1) remove the menthol exemption in the flavor restriction moving all menthol products to adult-only tobacco retailers; (2) consider ‘tobacco’ a flavor for e-cigs; and (3) ban the sale of electronic cigarettes at all retailers except for qualifying retail tobacco stores/vape shops." The complaint is silent as to the date of the online publication, though it appears undisputed that it was in advance of the December 13, 2018, hearing.

On December 7, 2018, the City of Somerville Health and Human Services Department posted a notice of a meeting of the Board to be held on December 13, 2018 ("Meeting Notice").

The Meeting Notice was dated December 6, 2018, and was posted to the City of Somerville’s "bulletin board." The Meeting Notice consisted of a document entitled "Memorandum" that disclosed that a meeting of the Board would take place on December 13, 2018, at 5:30 p.m., and the location of the meeting. The Meeting Notice listed an "Agenda" that included the following: "Public Hearing- Proposed Regulations on Restricting the Sale of Tobacco Products."

The Board held a meeting on December 18, 2018 ("December Meeting"). During the public hearing portion of the meeting, the Board heard thirty minutes of testimony from the Somerville Department of Health and Human Services in favor of the Regulation. The Board then allowed comments by affected...

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