Heard: March 13, 2019.
Sanitary Code. Housing Court, Sanitary code violations.
Municipal Corporations, Board of health. Public Health. Food.
Permit. Words, "Food establishment."
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.
J. Lane for the defendant.
J. Doneski for the plaintiff.
Present: Wolohojian, Blake, & Shin, JJ.
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. 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.
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
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
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
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.