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Board of Health of Northbridge v. Couture

Appeals Court of Massachusetts, Worcester

May 20, 2019

BOARD OF HEALTH OF NORTHBRIDGE
v.
KENNETH R. COUTURE.

          Heard: March 13, 2019.

         State Sanitary Code. Housing Court, Sanitary code violations. Municipal Corporations, Board of health. Public Health. Food. Permit. Words, "Food establishment."

         Complaint received and sworn to in the Worcester County Division of the Housing Court Department on May 28, 2015. Following transfer to the civil docket, the case was tried before Diana H. Horan, J., and entry of judgment was ordered by her.

          Henry J. Lane for the defendant.

          David J. Doneski for the plaintiff.

          Present: Wolohojian, Blake, & Shin, JJ.

          BLAKE, J.

         This case involves a violation of the State sanitary code (code) by the defendant, Kenneth R. Couture, for operating a business without obtaining a food establishment permit from the plaintiff, the board of health of Northbridge (board). See G. L. c. 111, § 127A; 105 Code Mass. Regs. §§ 590.000 (2010). A judge of the Housing Court entered judgment pursuant to a jury verdict on special questions.[1] The jury found that Couture violated the code by not obtaining a permit and that he failed to abide by the board's January 15, 2015, order requiring him to obtain one. See Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 800 (1987), quoting Commonwealth v. Licciardi, 387 Mass. 670, 675 (1982) ("The answers to the questions or issues submitted are considered a special verdict consisting of 'a statement of facts the jury have found from which the judge determines the appropriate judgment'"). The judge, acting as the finder of fact on the question of the number of days that Couture was in violation, imposed a fine of $7, 500. She also ordered him to cease and desist from serving beverages to the public until he obtained the proper permit.

         Couture appeals, claiming that the board presented insufficient evidence he violated the code, the code did not apply to him, and the fine imposed was not supported by the evidence. We affirm.[2]

          Background.

In 2014, Couture began operating a bowling alley business in Northbridge (town) known as Sparetime Recreation. He bought bottled beverages from a Pepsi distributor and sold them to his customers. In addition, he made coffee on the premises and served it, together with cream and sugar, to a senior bowling league.

         On September 6, 2014, the town health inspector conducted a routine inspection of the bowling alley and observed that Couture was selling soda and bottled juice without a food establishment permit (permit). Couture asked the inspector to leave before she could complete her inspection. The inspection report stated that "the owner must apply for and pay for the annual permit from the [board] to sell food." Couture had previously held a permit when he operated the bowling alley from 1998 to 2002, but when he resumed operation in 2014 he did not obtain a permit.[3]

         By letter dated October 1, 2014, the board notified Couture that he needed to apply for and obtain a permit to continue selling prepackaged foods and beverages. The board enclosed an application, notified Couture that the issue would be discussed at an upcoming meeting of the board, and requested his attendance at the meeting. By letter dated January 15, 2015, the board notified Couture that an inspection revealed that a cooler was being used to sell soda, water, and juice, and that coffee was being served at the bowling alley without a permit. The letter notified Couture that he was required to obtain a permit as a "limited retail food establishment" with an annual permit fee of one hundred dollars. The letter concluded by notifying Couture that the board had voted to give him fourteen days to submit the permit application and that a reinspection would take place thereafter. Other than complaining to the chairman of the board about the one hundred dollar fee, Couture took no action. He never applied for a permit.

         D ...


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