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0002

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss SUPERIOR COURT CIVIL ACTION

NO. 14-3126A

JOE'S LOBSTER MART, INC. & another1

vs-

MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH

MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S MOTION FOR

PRELIMINARY INJUNCTION

INTRODUCTION

This action arises out of the defendant's, Massachusetts Department of Public Health

("DPH"), decision to revoke Joe's Lobster Mart, Inc.'s ("Plaintiff) certification for inclusion on

the Interstate Certified Shellfish Shippers' List ("ICSSL") and wholesale seafood dealer's permit

("Permit"). DPtl's decision to revoke Plaintiffs ICSSL certification and Permit was based on

Joseph Vaudo ("Vaudo"), the owner of Joe's Lobster Mart, Inc., having entered guilty pleas to

two misdemeanors "relating to the harvesting, processing, storage, distribution or sale of

seafood" as provided for in 105 Code Mass, Regs. 533.017(E)(3). Plaintiff alleges DPH erred as

a matter of law in revoking Plaintiff's ICSSL certification and Permit.

After a hearing and careful review of the parties' submissions, Plaintiffs motion for

Preliminary Injunction is DENIED.

BACKGROUND

Vaudo is the owner of Joe's Lobster Mart, Inc., in Sandwich, Massachusetts. On March

28,2014, Vaudo pleaded guilty to two misdemeanors - knowingly receiving stolen property

'Joseph Vaudo

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under G- L. c. 266, § 60, and a fishery report violation under G. L. c. 130, § 21 - for allegedly

having received stolen oysters at his place of business, Joe's Lobster Mart, Inc. On April 15,

2014, DPH gave notice of it's intent to revoke Plaintiffs Permit and ICSSL certification based

upon Vaudo's convictions.

DPH's decision to revoke Plaintiff s Pertnit and ICSSL certification was done pursuant to

105 Code Mass. Regs 533.017(E). The pertinent portion of that regulation provides; "The

Department may revoke a permit or approval to operate a facility ... or a dealer's ICSSL

certification, if the facility , . . does not comply with any one or more of the following grounds. . .

Each of the following grounds shall constitute full and adequate grounds to revoke a permit

approval 'or certification ... (3) a criminal conviction of the holder of a permit, approval or

certification, or if the holder of a permit, approval or certifications is a corporation a criminal

conviction of a corporate officer or the owner of the facility ... for a crime relating to the

harvesting, processing, storage, distribution or sale of seafood in connection with the permitted

or certified business.3' 105 Code Mass. Regs. 533.017(E)(3).

Plaintiff appealed DPH's decision to the Division of Administrative Law Appeals

("DALA"), DPI I responded by moving for summary decision. On July 28, 2014, Administrative

Magistrate Kenneth Bresler ("Bresler") granted DPH's request for summary decision, finding no

genuine issue of disputed material fact that Plaintiff had been convicted of a crime "relating to

the ... sale of seafood." 10'5 Code Mass. Regs. 533.017(E)(3). On September 4, 2014, Bresler

held a hearing to allow Plaintiff to allocute to DPH why it should not revoke Plaintiffs ICSSL

certification and Permit. At the hearing. Plaintiff called five witnesses and entered thirty-five

exhibits in support of its position that the permit ought not be revoked.

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On September 9. 2014, DALA fonvarded a recording of the hearing, the exhibits

submitted, and color photocopies of the "chalks" used during the hearing to the DPH

Commissioner's office. DPH Commissioner Cheryl Bartlett (the "Commissioner") reviewed all

of the documentation from the hearing as well as the parties' submissions to DALA for summary

decision. On October 3, 2014, the Commissioner issued DPH's Final Agency Decision and

Order, affiraiing and adopting Bresslers summary decision order, which found that Plaintiff had

violated 105 Code Mass. Regs. 533.017(E)(3) and that, therefore, DPH was justified in revoking

Plaintiffs ICSSL certification and Permit.

On October 3, 2014, this court (Curran, J.) granted Plaintiffs emergency motion for a

temporary restraining order, ordering a complete stay on DPH's revocation of Plaintiff s Permit

and ICSSL certification until the parties could be heard on PlaintlfPs motion for preliminary

injunction. That hearing was held on October 7,2014, at which time both sides presented

submissions and were heard in argument.

Plaintiffs primary contentions are that Bresler and/or the Commissioner erred in: (1)

revoking Plaintiffs ICSSL certification and Permit; (2) not providing Plaintiff with a Tentative

or Proposed Decision prior to issuing tire Final Decision; (3) not providing Plaintiff with a

hearing before the Commissioner herself; and (4) revocation of Plaintiffs ICSSL certification

and Permit as violative of the prohibition against double jeopardy.

DISCUSSION

I, Standard and Scope of Review

The standard governing motions for preliminary injunctive relief provides that the court

shall issue an injunction only upon a showing of (1) a substantial likelihood of success on the

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merits, (2) a risk of irreparable harm in the absence of injunctive relief, and (3) that the harm to

the plaintiff absent an injunction outweighs any harm to the defendant in issuing the injunction-

See Packaging Indus. Corp. v. Cheney. 380 Mass. 609, 617 (1980). "Only where the balance

between these risks cuts in favor of the moving party may a preliminary injunction properly

issue." Id. Additionally, where the moving party is seeking injunctive relief against a

governmental body, it must also show that the issuance of an injunction would not adversely

affect the public interest. Landry v. Attorney Gen.. 429 Mass. 336, 343 (1999).

General Laws c. 3OA, § 14(7) gives the court the authority to "set aside or modify [a final

agency decision]"' under limited circumstances- Proper grounds for the court to set aside or

modify a final agency decision exists where the decision is "[b]ased upon an error of law,"

G. L. c. 30A, § 14(7)(c). The scope of the court's review is "highly deferential to the agency on

questions of fact and reasonable inferences drawn therefrom." Flint v. Commissioner of Pub-

Welfare. 412 Mass. 416,420 (1992). The court gives "due weight to the experience, technical

competence and specialized knowledge of the agency, as well as to the discretionary authority

conferred upon ii." Id.

It is through this deferential lens that the court must analyze the controlling question in

this case; whether Plaintiff has shown a substantial likelihood of success on the merits for its

claims that the decision to revoke its ICSSL certification and Permit was grounded upon error of

law.

11. Substantial Likelihood of Success on the Merits

A. The claim that Vaudo's convictions were not for crimes covered bv the Regulations.

Plaintiff claims that the revocation of its ICSSL certification and Permit was error. After

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careful review of Ihe parties' submissions at summary decision. Bresler's Order for Summary

Decision, and the Commissioner's Final Agency Decision, the court finds that the Plaintiff has

failed to establish likelihood of success on the merits.

The core question before Bresler on summary decision was whether Vaudo's guilty pleas

for violation of G. L. c. 266, § 60 and of G. L. c. 130, § 21 were convictions for "crime[s]

relating to the harvesting, processing, storage, distribution or sale of seafood in connection with

the permitted or certified business" justifying the revocation of Plaintiff s ICSSL certification

and Permit. 105 Code Mass. Regs. 533.017(E)(3). Bresler made the following findings with

respect to that question:

The fact that Mr. Vaudo bought oysters at his restaurant demonstrates that he

possessed them with the intent to sell them. Therefore, under the definition, he sold

them.2 Therefore, Mr. Vaudo's crimes "relat[ed] to the . . . sale of seafood in

connectioa with the permitted or certified business." 105 Code Mass. Regs. §

533.017(E)(3).

Finding no genuine issue of disputed material fact that Plaintiff violated 105 Code Mass.

Regs. 533.017(E)(3), Bresler granted DPH's motion for summary decision as a matter of law.

Bresler's findings at summary decision were adopted by the Commissioner according to her

written ruling afi er a review of the record, including review of the allocution hearing.3 The court

gives deference to the fact-finding function of DALA and Bresler as well as the Commissioner's

determination grounded upon it. Bresler concluded in his ruling, and the Commissioner in her

decision agreed :ind accepted, that the crimes Mr. Vaudo was convicted of "relate[] to the .. .

Sell meana to sell, offer or expose for sale, barter, trade, deliver, give away, possess with an intent to sell,

or dispose of in any other commercial manner. 105 C.M.R. 533.006 (underline in original).

3Bresler stilted in his summaiy decision order that lie was finding only that DPHcouW revoke Plaintiffs

ICSSL certification and Permit, and that the Commissioner was to make the aitimate decision of whether or not it

wou/d revoke in thi•; case.

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0007

sale of seafood in connection with the permitted or certified business" in violation of DPH

regulations.

In attacking Bresler's conclusion, Plaintiff attempts to parse out a distinction between

what he contends was its principal Vaudo's actual conduct vis-a-vis the stolen oysters and the

language concerning proscribed activity under the regulation referencing crimes "relating to

harvesting, processing, storage, distribution, or sale" of seafood. In this contention, however, the

Plaintiff is not at all on solid ground. There is no dispute that the license-holder's principal,

Vaudo, came into receipt of the stolen oysters, and that he did so at the location of the business.

Whether he did or did not at some point subsequent dispose of those oysters prior to any actual

sale, as he contends, does not alter that fact. Plainly, both of the crimes to which Vaudo elected

to plead guilty fil within the defmition encompassed under 105 CMR 533.017(E)(3). Plaintiff

has no substantial likelihood of proving otherwise.

B. The failure to issue a tentative or proposed decision.

Plaintiff alleges that the Commissioner eired in not issuing a Tentative or Proposed

Decision in violation of G. L. c. 3 OA. § 11(7). Plaintiffs claim is unpersuasive.

General ] .aws c. 3OA, § 11(7) provides in pertinent part:

If a majority of the officials of the agency who are to render the final decision have

neither hoard nor read the evidence, such decision, if adverse to any party other than

the agency, shall be made only after (a) a tentative or proposed decision is delivered

or mailed to the parties containing a statement of reasons and including determination

of each issue of fact or law necessary to the tentative or proposed decision .. .

G. L. c. 30A, § 11 (7). That statute requires that a tentative or proposed decision be sent

only where "a majority of the officials of the agency who are to render die final decision

have neither heard nor read the evidence . . . " I d . ( e m p h a s i s a d d e d ) . T h e C o m m i s s i o n e r

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explicitly stated in her Final Decision:

On September 9,2014, the Division of Administrative Law Appeals forwarded to the

Commissioner's office: the exhibits from the [allocution] Hearing; a recording of the

[allocution] Hearing; color photocopies of photographs that were used as "chalks"

during the [allocution] Healing; and, the Opposition of the Petitioner to the

Respondent's Proposed Findings of Fact. In addition to these materials, the

Department reviewed: the Petitioner's Motion for Summary Decision (with exhibits);

the Respo adents' Opposition to the Petitioner's Moti on for Summary Decision (with

exhibits); the Respondents' Objections to the Magistrate's Order and recommended

decision; andj the Petitioner's Response to Respondents' Objections. After

consideration of all of the testimony and materials in this matter, the Department

affirms and adopts the Magistrate's Order allowing the Petitioner's Motion for

Summary Decision.

(emphasis added).

The Commissioner, the agency official responsible for rendering the final decision

in this case7 reviewed the entire record prior to issuing her Final Decision. Thus, DPH

was not required to issue a tentative or proposed decision under the plain language of

G. L. c. 3OA, § 11(7).

C. Failure to have been afforded a hearing before DPH Commissioner Bartlett.

Plaintiff idleges that it was entitled to a hearing before the Commissioner, as she is the

"relevant decision maker" in the case, and contends that the denial of that hearing is a violation

of Plaintiffs due process rights. Plaintiffs claim is unpersuasive.

In suppoit of Plaintiff s contention that it was entitled to a hearing before the

Commissioner, Plaintiff cites to Morris v. Board of Reg, in Med.. 405 Mass. 103,109(1989).

That case is inapposite. Morris involved a final agency decision by a board which explicitly

replaced the heanng officer's factual findings with its own. Here, the Commissioner is not

substituting, disregarding, or contradicting any of Bresler's factual findings. Plaintiff has cited

no authority on point for the proposition that they are entitled to a hearing in front of the

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Commissioner.4

Moreover, each step in the process which led to revoking Plaintiff s ICSSL certification

and Permit was done pursuant to applicable law and regulations. General Laws c. 130, § 80

authorizes DPH to promulgate and enforce regulations with respect to wholesale or retail seafood

dealer permits. DPH's regulations are codified in 105 Code Mass. Regs. 533.000 et seq.

Plaintiff was sent notice on April 15, 2014 that its ICSSL certification and Permit were

being revoked for a violation of 105 Code Mass. Regs. 533.017(E)(3) based on Plaintiff s

criminal convictions. Pursuant to 105 Code Mass. Regs. 533.017(H)(3) Plaintiff was afforded a

hearing. The hearing procedure employed was in conformity with G. L. c. 3OA. and 801 Code

Mass. Regs. 1.01 et seq as stated in 105 Code Mass. Regs. 533.017(H)(2).

Under 801 Code Mass. Regs. 1.01(7)(h), a party may file a motion for summary decision

where it is "of the opinion there is no genuine issue of fact relating to all or part of a claim or

defense and he is entitled to prevail as a matter of law ..." 801 Code Mass. Regs. L01(7)(h).

A presiding officer's order on summary decision is an "initial decision" under 801 Code Mass.

Regs. 1.01 (1 l)(b). When the presiding officer issues an order on a motion for summary decision,

that order must be mailed to the parties, filed with the Agency, and comply with G. L. c. 30A,

§ 11(8). 801 Code Mass. Regs. L01(ll)(b), General Laws c. 3OA, § 11 (8) requires that the

decision ''be accompanied by a statement of reasons for the decision, including determination of

each issue of fact or law necessary to the decision ... " G. L. c. 30A, § 11 (8).

After receiving the initial decision from the presiding officer, an Agency may then issue a

indeed, in circumstances in which Plaintiff was afforded a full hearing before the authorized adjudicative

official including an opportunity to allocute through presentation of witnesses and exhibirs, and where the record of

those proceedings were delivered to and reviewed by the deciding authority, requiring a repetition of that hearing

process is neither appealing in logic nor required under the applicable regulatory framework.

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0010

"final decision" pursuant to 801 Code Mass. Regs. 1.01(1 l)(d). Final decisions must comply

w i t h G . L . c . 3 0 A - § 1 1 ( 8 ) a n d s h a l l " i n c o r p o r a t e b y r e f e r e n c e t h o s e p o r t i o n s o f a n i n i t i a l . . .

decision that are affirmed and adopted ..." 801 Code Mass. Regs. 1.01(1 l)(d)-

Here, Plaintiff was afforded the requisite steps in the revocation process, and both Bresler

and the Commissioner complied with the statutory and regulatory requirements in issuing their

decisions. Nothing in the regulations, general laws, or applicable case law supports Plaintiff s

contention that it was entitled to a further hearing before the Commissioner. As referenced

earlier, to permit the Plaintiff to replicate presentation of its case before the Commissioner would

undermine the role of presiding officer as finder of fact and the purpose of the "initial decision"

provided for in the regulations.

D. Vaudo's double jeopardy claim.

Vaudo contends that revocation of his ICSSL certification and Permit, coupled with his

criminal convictions under G. L. c. 266, § 60, and G. L. c. 130. § 21, constitutes a violation of the

prohibition against double jeopardy contained in the Fifth Amendment to the United States

Constitution and recognized' by Massachusetts common law. Vaudo's claim is without merit.

Double jeopardy protects against, inter alia, "multiple punishments for the same offense."

Luk v. Commonwealth, 421 Mass. 415, 419 (1995). Where a license is revoked for public safety

purposes, however, that revocation is remedial and therefore does not function as a "punishment"

for purposes of double jeopardy. Id- at 426 (revocation of driver's license is considered remedial

under double jeopardy clause); see also Kvitka v. Board of Registration in Med.. 407 Mass. 140,

146 n.4 (1990) (revocation of aphysician's license is considered remedial under double jeopardy

clause) .

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0011

Here, the stated purpose of the regulatory and licensure framework promulgated by DPH

is to "promote consistency with federal standards, rules, and regulations and to establish

mLnimum standards for those persons engaged in the retail sale and wholesale manufacture

and/or distributioa of seafood and to insure the safe and sanitary handling, processing, and

distribution of seafood products" 105 Code Mass. Regs. 533.001 (emphasis added). The

revocation of Vaudo's ICSSL certification and Permit in this case was done for public safety

purposes and thus was remedial in nature and does not violate the prohibition against double

jeopardy.

Plaintiff has failed to show a substantial likelihood of success on the merits of any of its

claims. Because Plaintiff has not made the initial necessary showing, the court need not delve

into the balancing of harms portion of the preliminary injunction analysis.5

5The court acknowledges that the possible harm to the Plaintiff by denying injunctive

relief prior to fu] I determination of its complaint for judicial review is hardly insignificant, as it

includes the shut-down of an ongoing business of long-standing and also affects the livelihood of

its employees. The DPH ripostes that there is a significant harm posed by any issuance of the

injunction which relates to the critical task of ensuring food safety and to public health concerns.

It also argues thot the public interest factor implicated in the analysis here likewise weighs in its

favor. Given the plain lack of likelihood of success on the merits of Plaintiff s claim however,

its application for equitable relief cannot succeed even taking account of the issue of harm it

raises. See Tri-Nel Mgrnt. Inc. v. Board of Health of Barnstable. 433 Mass. 217, 277 (2001)

("That the plaintiffs failed to establish a likelihood of success on the merits of their claim is

sufficient to deny injunctive relief.").

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@012

ORDER

For the foregoing reasons, Plaintiffs motion for Preliminary Injunction is

DENIED. A fourteen-day STAY of the revocation of Plaintiff's ICSSL certification and Permit

is ORDERED from this date, as requested by Plaintiff in its alternative request for relief, to

allow Plaintiff to dispose of its current seafood inventory.

Justice of the Superior Court

Dated this 20th day of October, 2014

11