Woonsocket Prescription Center, Inc. v. Michaelson, Civ. A. No. 760275.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
Citation417 F. Supp. 1250
Docket NumberCiv. A. No. 760275.
Decision Date27 July 1976


Michael A. Silverstein, Max Wistow, Merrill W. Sherman, Providence, R. I., for plaintiffs.

Allen P. Rubine, Asst. Atty. Gen., Providence, R. I., for defendants.


PETTINE, Chief Judge.

Plaintiffs, a prescription drug store ("WPC") and one of its employees, Paul Champagne, bring this action seeking declaratory and injunctive relief to enjoin the operation of Rhode Island's Sunday closing laws, as recently amended, R.I.G.L. §§ 5-23-1 through 5-23-6, 11-40-1, 25-1-6, as violative of rights guaranteed to them by the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution. Sued in their official capacity, the defendants are state and local officials who are charged with enforcing the various provisions of Rhode Island's Sunday closing statutory scheme.

Subject-matter jurisdiction appears to be properly premised on 28 U.S.C. §§ 1331, 2201. See Panzarella v. Boyle, 406 F.Supp. 787 (D.R.I.1975). Since plaintiffs challenge statutes of statewide applicability, only a three-judge court may pass upon their request for preliminary and permanent injunctive relief. 28 U.S.C. §§ 2281, 2284. Neither side contends that the merits of plaintiffs' challenge have been squarely resolved by a prior decision of the United States Supreme Court. Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973); Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Doe v. Israel, 482 F.2d 156, 158 (1st Cir. 1973), cert. denied, 416 U.S. 993, 94 S.Ct. 2406, 40 L.Ed.2d 772. The matter is presently before the Court to resolve plaintiffs' request that the Court grant a temporary restraining order and convene a three-judge panel. The following findings of fact are made on the basis of the verified complaint and evidence adduced at a hearing in this matter on July 23, 1976.


WPC is the largest pharmacy in the City of Woonsocket and is located across the street from the Woonsocket Hospital. It has been open seven days a week since December, 1972, having been duly licensed in accordance with the pre-amendment Sunday closing scheme. On an average Sunday, WPC grosses approximately $2,200 in sales and fills approximately 140 prescriptions. Approximately two-thirds of these are refills of prescriptions currently on file at WPC. WPC contends that many of these refills are of an emergency nature and that its closing on Sundays will require present customers to obtain new prescriptions to be filled and put on file at one of its competitors. The remaining third are new prescriptions. WPC contends that most of these are prescribed by physicians on Sundays to be filled immediately. With WPC closed on Sundays, potential customers will be lost as they fill and file the new prescriptions at one of WPC's open competitors. Since approximately 78% of all new prescriptions, in WPC's recent experience, are refillable, WPC contends that it will lose substantial repeat business as new prescriptions are filled elsewhere on Sundays, and as present customers discover that it is more convenient to refill and refile their prescriptions at pharmacies open on Sundays. In addition to this long range impact on its business, WPC claims that it will sustain the more immediate loss of sales presently made on Sunday of nonprescription items to the general public and of pharmaceutical products to nearby Woonsocket Hospital when patient demand exceeds the Hospital's own supply.

Until July 1, 1976, WPC had been operating on Sundays under a license obtained pursuant to the former R.I.G.L. § 5-23-2, which authorized town councils to grant licenses "for the sale by retail dealers . . of prescriptions, patent medicines, drugs, hospital supplies," and other items typically sold in a drugstore. Effective July 1, 1976, R.I.G.L. §§ 5-23-1 through 5-23-5 were amended to eliminate the commodity exemption to the general prohibition of Sunday work which is contained in R.I.G.L. §§ 11-40-11 and 25-1-6.2 Instead of an exemption based upon the type of items sold, § 5-23-2 now authorizes Sunday licenses to be granted to all retail establishments,3 regardless of commodities sold,

"at which in each calendar week of full time operation of the three 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 11-40 entitled `Sunday laws' and chapter 25-1 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."

Section 5-23-2 further provides that this provision, hereinafter referred to as the "maximum hours limitation," does not apply to "retail establishments engaged in the preparation and/or sale of bakery products . . . or 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." In addition, § 5-23-2 permits all retail establishments, regardless of aggregate daily hours of employment, to "open for any purpose except for the sale of alcoholic beverages without obtaining a license on those Sundays between Thanksgiving Day and Christmas Day."4

WPC does not meet the maximum hours limitation nor any of the exceptions thereto and thus is not eligible to obtain a license to operate on Sundays under the amended scheme. Upon advice of the Woonsocket city solicitor and the office of the Rhode Island Attorney General that its license to operate on Sundays under the former § 5-23-2 was no longer valid and that continued Sunday operation would subject it to criminal prosecution under the new law, R.I.G.L. § 5-23-6,5 WPC filed the within action and ceased Sunday operations as of July 18, 1976. In view of the foregoing circumstances, the Court concludes that WPC has demonstrated both injury in fact and threat of prosecution under chapter 5-23 sufficient to meet the "standing" and "ripeness" requirements for a justiciable controversy. See Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Roe v. Wade, 410 U.S. 113, 124, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). See also Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975).

The Court does not reach similar conclusions as to WPC's constitutional challenge to R.I.G.L. §§ 11-40-1 and 25-1-6 or to plaintiff Champagne's suit in its entirety. The complaint contains no allegation that plaintiff Champagne has engaged or proposes to engage in any conduct in violation of the Sunday closing laws, a completely understandable omission in view of WPC's cessation of Sunday operations, nor can any threat or genuine fear of prosecution of Champagne be fairly discerned from the allegations of the complaint. See note 7, infra.

The Court is similarly unimpressed with WPC's attack on R.I.G.L. § 11-40-1. The annotations to this relic of Rhode Island's colonial heritage, cf. Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 627, 81 S.Ct. 1122, 6 L.Ed.2d 536 (1961), reveal that the Rhode Island Supreme Court has not passed upon chapter 11-40 in any respect since 1928. There is nothing in the record to suggest that § 11-40-1 has been used in modern times to prosecute "Sabbath-breakers", see Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), or is relied upon by the defendants as a source for their threatened prosecution of WPC. Cf. Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Unlike many states, which have "modified, deleted from and added to their Sunday statutes . . . evolving from the wholly religious sanctions that originally were enacted," McGowan v. Maryland, 366 U.S. 420, 435, 81 S.Ct. 1101, 1110, 6 L.Ed.2d 393 (1961), Rhode Island appears to have devoted its attention to supplanting § 11-40-1 with chapters 5-23 and 25-1, both amended this session, and both reflecting modern considerations in mandating premium wages for Sunday work and in facilitating effective enforcement by authorizing the issuance of injunctions to prevent future abuses and the imposition of substantial fines to remove the profit motive encouraging violation. Thus, WPC's challenge to § 11-40-1 satisfies neither the "standing" nor "ripeness" components for a justiciable issue. Rodos v. Michaelson, 527 F.2d 582, 584 (1st Cir. 1976). See note 7, infra.

WPC also attacks the allegedly standardless discretion which R.I.G.L. § 25-1-6, as amended in 1976, vests in the State Director of Labor in granting permits for Sunday work. See note 2, supra. The complaint, however, contains neither allegation that WPC has ever applied for such a permit nor that following the application procedure would in any event be futile.6 This aspect of WPC's complaint is not "ripe" for adjudication.7 See Raper v. Lucey, 488 F.2d 748, 751 n. 3 (1st Cir. 1973) (re: 42 U.S.C. § 1983); Panzarella v. Boyle, supra at 794.


This Court has often explored the criteria for issuance of a temporary restraining order. See, e. g., Palmigiano v. Travisono, 317 F.Supp. 776 (D.R.I.1970). In this case WPC has demonstrated that it will suffer irreparable injury if it cannot open on Sundays and that only injunctive relief will preserve the status quo. In balancing the harm to the parties, the Court notes that WPC has not...

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