Tri-nel Management v. BD of Health of Barnstable

• Decision Date: 07 November 2000
• Docket Number: TRI-NEL
• Citation: 433 Mass. 217,741 N.E.2d 37
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: (Mass. 2001) MANAGEMENT, INC., <A HREF="#fr1-1" name="fn1-1">1 & others <A HREF="#fr1-2" name="fn1-2">2 vs. BOARD OF HEALTH OF BARNSTABLE & another. <A HREF="#fr1-3" name="fn1-3">3 Docket No.: 08307

741 N.E.2d 37 (Mass. 2001)

TRI-NEL MANAGEMENT, INC.,¹ & others² vs.BOARD OF HEALTH OF BARNSTABLE & another.³

Docket No.: 08307

Massachusetts Supreme Court

November 7, 2000

January 19, 2001

County: Barnstable.

Present: Marshall, C.J., Abrams, Greaney, Ireland, Spina, Cowin, & Sosman, JJ

Summary:

Tobacco Smoke.Practice, Civil, Preliminary injunction.Injunction.Administrative Law, Regulations.Regulation.Board of Health.Municipal Corporations, Board of health, Charter.Constitutional Law, Home Rule Amendment, Separation of powers.

Civil action commenced in the Superior Court Department on March 27, 2000.

The case was heard by Gary A. Nickerson, J.

The Supreme Judicial Court granted an application for direct appellate review.

Edward W. Kirk for the plaintiffs.

Robert D. Smith, Town Attorney(Ruth J. Weil with him) for the defendants.

The following submitted briefs for amici curiae:

Thomas F. Reilly, Attorney General, & William W. Porter, Assistant Attorney General, for the Attorney General.

Cheryl Anne Sbarra & Christopher N. Banthin for Massachusetts Association of Health Boards & another.

William J. Lundregan, III, City Solicitor, for city of Salem.

COWIN, J.

We are asked in this appeal to decide whether the board of health of Barnstable (board) has the authority to issue a municipal regulation prohibiting smoking "in all food service establishments, lounges and bars."We hold that it does.

1. Background.

We summarize the relevant facts from the uncontested documentary materials in the record.In 1995, the board began considering whether to impose regulations curbing the harmful effects of environmental tobacco smoke (ETS).After several public hearings and consideration of the issue between 1995 and 1996, the board adopted a regulation prohibiting smoking in public places, excluding restaurants and bars.Sometime in the latter part of 1997, the board began considering the possibility of regulating ETS in restaurants and bars.To this end, between 1997 and the spring of 1999, the board held several public meetings, reviewed studies on ETS, contacted environmental health authorities on the issue, and consulted with local restaurant businesses.Following these efforts, the board concluded "only two options would adequately protect public health: 1) either a complete ban on smoking in restaurants and bars; or 2) allowing restaurants and bars to construct enclosed smoking areas."

The board drafted a proposed regulation prohibiting smoking in restaurants and bars except in limited, separately enclosed and ventilated seating areas.When the local restaurant industry indicated at a public hearing that it opposed the concept of separate smoking areas, the board redrafted the proposed regulation to impose the current absolute ban on smoking "in all food service establishments, lounges and bars."⁴Following a public hearing on the proposed ban, the board, pursuant to G. L. c. 111, § 31, adopted the regulation on February 10, 2000.Prior to the regulation's effective date (April 3, 2000), Tri-Nel Management, Inc., doing business as The Windjammer Lounge, and certain named investors, stockholders, employees, and operators of the business (the plaintiffs) sought a preliminary injunction in the Superior Court, requesting the court to enjoin enforcement of the regulation.⁵Denying the plaintiffs' request for a preliminary injunction, a Superior Court judge determined that (1)the plaintiffs had failed to demonstrate a reasonable likelihood of success on the merits; (2)the plaintiffs also failed to show irreparable harm; and (3) issuance of the injunction would not serve the public interest.The plaintiffs appealed.We granted the plaintiffs' application for direct appellate review.

2.Discussion.To succeed in an action for a preliminary injunction, a plaintiff must show (1) a likelihood of success on the merits; (2) that irreparable harm will result from denial of the injunction; and (3) that, in light of the plaintiff's likelihood of success on the merits, the risk of irreparable harm to the plaintiff outweighs the potential harm to the defendant in granting the injunction.Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 617(1980).When, as here, a party seeks to enjoin governmental action, the court also considers whether the relief sought will adversely affect the public.Commonwealth v. Mass. CRINC, 392 Mass. 79, 89(1984), and cases cited.Biotti v. Selectmen of Manchester, 25 Mass. App. Ct. 637, 640(1988).In reviewing an order on a preliminary injunction, we must determine whether the judge abused his discretion.Because no testimony was taken in the Superior Court hearing there is no credibility or factual issue on which we would defer to the judge.Packaging Indus. Group, Inc. v. Cheney, supra at 615-616.

We note initially that "in the absence of a contrary statutory direction, a court reviewing a regulation is not concerned with whether there was substantial evidence in a record before the agency, but rather . . . whether, based solely on the record made in court, the adoption of the agency regulation was illegal, arbitrary, or capricious"(emphasis supplied).Massachusetts State Pharmaceutical Ass'n v. Rate Setting Comm'n, 387 Mass. 122, 126(1982).Accordingly, it is the record of the preliminary injunction proceeding with which we are concerned.

The plaintiffs present several arguments supporting their claim of a likelihood of success on the merits.They contend that the board's regulation exceeds the authority granted by G. L. c. 111, § 31.We disagree.General Laws c. 111, § 31, authorizes local boards of health to "make reasonable health regulations."G. L. c. 111, § 31.We have previously recognized that the "statutory language itself is the principle source of insight into the legislative purpose."Hoffman v. Howmedica, Inc., 373 Mass. 32, 37(1977).Through the plain language of G. L. c. 111, § 31, the Legislature has delegated boards of health the power to adopt reasonable health regulations.

The plaintiffs next argue that the board's regulation is not reasonable because the amount of ETS exposure at restaurants and bars would not be sufficient to cause adverse health effects in general.In deciding whether a health regulation adopted under G. L. c. 111, § 31, is reasonable, this court accords the regulation the same deference granted to a legislative enactment.Druzik v. Board of Health of Haverhill, 324 Mass. 129, 138(1949).Health regulations have a strong presumption of validity, and, when assessing a regulation's "reasonableness," all rational presumptions are made in favor of the validity of the regulation.Id.A court may invalidate the regulation only when there is no rational relation between the regulation and its stated public health purpose.Id. at 138-139.Hamel v. Board of Health of Edgartown, 40 Mass. App. Ct. 420, 423(1996).⁶

Reviewing the record in this case, we note that the plaintiffs did not offer any evidence in support of their contention that the ill effects of ETS exposure will not result from only limited contact.By contrast, the board has placed in the record four reports interpreting and summarizing scientific studies that identify ETS exposure as a cause of numerous negative health effects.⁷Further, given the subject matter, the board's expertise and experience in this area is given great deference by our courts.Massachusetts Inst. of Tech. v. Department of Pub. Utils., 425 Mass. 856, 867-868(1997).Given the absence of any evidence from the plaintiffs, the scientific studies on the ill effects of ETS exposure generally and the board's expertise in this subject matter, we conclude that the board's regulation is within the standard of reasonableness.Druzik v. Board of Health of Haverhill, supra at 138.

The plaintiffs also maintain that G. L. c. 111, § 31, limits the authority of boards of health to adopt regulations to specific subject matters enumerated in other sections of G. L. c. 111.For this proposition, the plaintiffs cite our decision in Commonwealth v. Drew, 208 Mass. 493(1911).The Drew opinion, however, was issued in 1911, approximately nine years before the enactment of G. L. c. 111, § 31, and interpreted a different statute, Rev. L. c. 75, § 65(1902), which gave more limited power to boards of health.CompareCommonwealth v. Drew, supra at 495(analyzing Rev. L. c. 75, § 65[1902]) with St. 1920, c. 591, § 17, enacting predecessor to G. L. c. 111, § 31, as amended bySt. 1937, c. 285.⁸Section 31 was "passed as legislation of broad and general scope . . . which is 'not subject to the limitations of earlier rule making powers of boards of health.'"Board of Health of Woburn v. Sousa, 338 Mass. 547, 551-552(1959), quotingBrielman v. Commissioner of Pub. Health of Pittsfield, 301 Mass. 407, 409(1938).We have said that, when the Legislature enacted G. L. c. 111, § 31, it created "a comprehensive, separate, additional source of authority for health regulations."Board of Health of Woburn v. Sousa, supra at 550.Since the enactment of G. L. c. 111, § 31, we have repeatedly observed that this statute has granted boards of health plenary power to issue reasonable, general health regulations.Independence Park, Inc. v. Board of Health of Barnstable, 403 Mass. 477, 480(1988);United Reis Homes, Inc. v. Planning Bd. of Natick, 359 Mass. 621, 623(1971).Moreover, we have previously recognized the ill effects of tobacco use, particularly when it involves minors, as a legitimate municipal health concern justifying municipal regulation of tobacco products.Patton v. Marlborough, 415 Mass. 750, 751-752(1993)(upholding board of health regulation limiting operation of cigarette vending machines to certain locations where access by minors prohibited);Take Five Vending, Ltd. v. Provincetown, 415 Mass. 741, 748-749(1993)(upholding bylaw forbidding sale of cigarettes from vending machines).

The plaintiffs further argue...