Opinion
SUCV2017-0491 BLS 1 138034
08-29-2017
Tremayne Smith-Berry et al., Individually and as Class Representatives v. National Amusements, Inc. et al. [1]
MEMORANDUM AND ORDER ON DEFENDANTS' PARTIAL MOTION TO DISMISS
Edward P. Leibensperger, Justice
This motion presents an issue of apparent first impression, i.e., whether a movie theater company must pay its hourly employees who work on Sunday and certain holidays one and one-half times their regular pay.
BACKGROUND
Plaintiffs bring this action as a putative class action on behalf of hourly employees at Showcase Cinemas movie theaters. The named plaintiffs work as a wait staff employee and bartender, respectively. First Amended Complaint (" FAC" ) ¶ ¶ 5, 6. Both plaintiffs provide food and beverage services to Showcase's patrons. FAC ¶ ¶ 33, 35. The FAC alleges two counts (Counts I and II) of violation of Massachusetts law regarding the handling of service charges or tips. Count III of the FAC alleges violation of the Wage Act, G.L.c. 149, § § 149, 150, for failure to pay plaintiffs for work on Sunday and holidays at the rate of one and one-half times their regular hourly rate. This partial motion to dismiss concerns only Count III.
The FAC asserts the following facts which, for purposes of this motion, I accept as true. Defendants, referred to collectively as " Showcase," operate a chain of movie theaters at eleven locations in Massachusetts. The movie theaters are open for business on Sundays and holidays. Plaintiffs are employed by one or both of the corporate defendants to work in the movie theaters. Showcase regularly requires plaintiffs and other hourly employees to work on Sunday and holidays. Showcase does not pay hourly employees the premium of one and one-half times their regular hourly rate (" premium pay" ) for their work on Sunday and holidays.
When the movie theaters are open for the business of exhibiting motion pictures, they sell food and beverages to patrons for consumption on the premises. FAC ¶ 38. The food items include fresh popped popcorn, chips, candy, ice cream novelties, confectionaries, fountain soft drinks and alcoholic beverages. Id.
ANALYSIS
A. Sunday Pay
The resolution of the issue regarding pay for work on Sunday requires an analysis of the statutory scheme. G.L.c. 136 is commonly referred to as the Sunday closing or " Blue" laws. Zayre Corp. v. Attorney General, 372 Mass. 423, 424, 362 N.E.2d 878 (1977). " The general philosophy of the various enactments and versions of the Sunday law up to and including the present G.L.c. 136 is to begin with a general prohibition of all work, labor and amusements on Sunday and then to engraft on that general prohibition the exemptions which the Legislature deems required by necessity or the general purpose of the statute." Id. at 429. A the time of the decision in Zayre, there were 49 exemptions in c. 136, § 6, thirteen of which concerned the performance of retail sales. Id. at 431-32. The plaintiffs in Zayre were large and small retailers of various goods challenging the constitutionality of exemptions authorizing some retail sale activity on Sunday but not all. Their constitutional challenge failed.
Following Zayre, the Legislature enacted a fiftieth exemption. By St. 1977, c. 722, clause (50) of c. 136, § 6 was enacted into law. That clause provides an exemption from the Sunday closing law for " a store or shop" engaged in the " sale at retail of goods." At the same time, the Legislature imposed the requirement that a " store or shop which qualifies for exemption under this clause [50] or under clause (25) or clause (27) and which employs more than a total of seven persons" pay non-executive employees " at a rate of not less than one and one-half times the employee's regular rate."
There are now 55 exemptions in c. 136, § 6.
Of the 50 exemptions to the Sunday closing law that existed upon the passage by the Legislature of St. 1977, c. 722, there are numerous exemptions for retail activity or the sale of goods or services at retail. Nevertheless, the Legislature designated only three exemptions that would trigger an obligation to pay premium pay for work on Sundays. Only an employee working at an establishment that " qualifies for exemption" under clauses (25), (27) and (50) is entitled to premium pay. G.L.c. 136, § 6(50). For example, the exemption in clause (28) allows the " retail sale of greeting cards and photographic films and the processing of photographic films" on Sunday. G.L.c. 136, § 6(28). Thus, a retail store selling greeting cards " qualifies for exemption" under clause (28), not (50), and is not subject to the premium pay requirement. Likewise, a restaurant, qualified to open on Sunday by clause (42), is not subject to the premium pay requirement. That is because, applying basic principles of statutory construction requiring that (a) the words of a statute should be given their plain meaning, and (b) subsections of a statute should be interpreted harmoniously, it must be concluded that the Legislature intended that a retail business authorized to operate on Sunday by a statutory provision other than clauses (25), (27) and (50), is not required to pay premium pay. If the Legislature intended to require premium pay for all retail activity allowed on Sunday, it would have attached the premium pay requirement explicitly to all the clauses of c. 136, § 6 allowing retail business to operate on Sunday. Instead, the Legislature elected to use the words " qualifies for exemption under this clause " in clause (50) (emphasis added) to limit the application of the premium pay requirement.
In 2003, the Legislature enacted exemption (52) applicable to the retail sale of alcoholic beverages not to be drunk on the premises. Retail stores operating under that exemption must pay premium pay for Sunday work.
The Attorney General appears to agree that only " [ c ] ertain retail establishments that operate on Sundays are subject to" the premium pay obligation. Massachusetts Attorney General, Working on Sundays and Holidays (" Blue Laws " ), www.mass/gov/ago/doing-business-in-massachusetts/workplace.gov . (Emphasis added.)
The operation of movie theaters on Sunday and holidays is authorized by a separate section of the General Laws. Under G.L.c. 140, § 181, local authorities may grant a license to a movie theater " for the exhibition of motion pictures . . . seven days per week." The Sunday closing laws in c. 136 specifically recognize that the " exhibition of motion pictures by a movie theater" on Sunday and holidays is governed by c. 140, § 181, and not by c. 136. See G.L.c. 136, § 4(8A). Consistent with that statutory structure, the operation of a movie theater is not mentioned in any of the 55 exemptions authorized by c. 136, § 6. In short, the operation of a movie theater on Sunday does not " qualify for exemption" under clauses (25), (27) or (50) of c. 136.
Given that there is no other statutory obligation to pay Sunday workers premium pay (the statute allowing movie theaters to obtain a license for seven days per week does not impose a premium pay obligation), Showcase succeeds on its argument that its operation as a movie theater does not trigger the requirement to pay premium pay for work on Sunday.
But what is the effect of Showcase's practice of selling food, snacks, confections, and alcoholic beverages to movie goers for consumption on the premises? Plaintiffs argue that such sales are " the retail sale of . . . soft drinks, confectioneries . . . dairy products" that come within clause (25) of § 6. As result, plaintiffs contend that Showcase's sale of food and drink items " qualifies for exemptions" under clause (25).
Clause (25) of G.L.c. 136, § 6 provides an exemption for " [t]he retail sale of tobacco products, soft drinks, confectioneries, baby foods, fresh fruit and fresh vegetable, dairy products and eggs, and the retail sale of poultry by the person who raises the same."
Plaintiffs fail to recognize that Showcase's sale of food and drink items is for consumption on the premises. Therefore, it is " [t]he conduct of the business of . . . [a] common victualler," Such business qualifies for exemption under G.L.c. 136, § 6(42), not clause (25). As alleged in the FAC, plaintiffs serve food and drink to patrons of the movie theater to be consumed on the premises. While there is no statutory definition of " common victualler" the meaning is well established. " The words 'common victualler,' in Massachusetts, by long usage, have come to mean the keeper of a restaurant or public eating house . . . [providing] suitable food for all purchasers " who resort to the place where the business is carried on, for such refreshment as is to be consumed upon the premises." Commonwealth v. Meckel, 221 Mass. 70, 72, 108 N.E. 917 (1915). See also, Town of Wellesley v. Javamine, Inc., 21 Mass. L. Rptr. 12, *3 (Mass. Superior Ct. 2006) (citing Meckel ). Thus, as a common victualler, Showcase qualifies to do business under clause 42 of c. 136, § 6 and is not subject to the premium pay requirement. Further, all of Showcase's commercial activity on Sunday " qualifies for exemption" under statutory provisions other than clauses (25), (27) and (50) of c. 136, § 6. That being so, there is no statutory obligation to pay workers premium pay as a result of working on Sunday.
Of course, if a worker is employed for a work week longer than forty hours there is a separate obligation to pay at a rate of time and one-half. G.L.c. 151, § 1A.
B. Holiday Pay
The FAC alleges that plaintiffs are required to work " on holidays, including one or more of the holidays listed in M.G.L.c. 136, § 13." FAC ¶ 44. They do not receive premium pay for such work. FAC ¶ 45. Thus, they sue to recover.
Section 13 of c. 136 is in two paragraphs. In the first paragraph the statute says, in essence, that the Sunday closing laws in c. 136, § § 5 to 11 apply to legal holidays. Thus, because a movie theater does not have to pay premium pay on Sunday, as concluded above, it does not have to pay premium pay on most legal holidays.
Certain dates are excepted from coverage as legal holidays. For example, March 17 and the third Monday in April are not subject to legal holiday pay governed by the Sunday pay obligations.
In the second paragraph of § 13, however, it is mandated that " [a]ny retail establishment" pay employees time and one-half for work performed on three dates: January 1, the second Monday of October and November 11. It is also mandated that the employer shall not force an employee to work on those dates.
In Drive-O-Rama, Inc. v. Attorney General, 63 Mass.App.Ct. 769, 829 N.E.2d 1153 (2005), the Appeals Court distinguished between the statutory authority to operate on Sunday and the statutory authority to open for business on the enumerated legal holidays in the second paragraph of § 13. The Court held that the second paragraph of § 13 requires premium pay for work in " any retail establishment" on New Year's Day, Columbus Day and Veteran's Day, regardless of whether the employer is, or is not, subject to premium pay requirements for workers on Sunday. Id. at 772-73. The establishment (Mill Stores) in Drive-O-Rama, Inc. operated a retail store on Sundays and legal holidays. Mill. Stores was open on Sundays because it qualified for exemption from the Sunday closing laws under clause (29) of c. 136, § 6. Id. at 771. Because stores operating under clause (29) are not subject to the premium pay requirement, Mill Stores argued that it should not be obligated to pay premium pay on New Year's Day, Columbus Day and Veteran's Day. The Appeals Court held that the statutory authority to operate on those enumerated holidays derived solely from G.L.c. 136, § 13, and not from the Sunday closing laws. Accordingly, Mill Stores was obligated to pay premium pay on those enumerated holidays even though it operated on Sundays and other holidays without the obligation for premium pay. Id. at 771-72.
It is noted that the only issue before the Court in Drive-O-Rama was whether § 13 required premium pay. The Court, however, in analyzing that issue accepted, without discussion, that the employer was not obligated to pay premium pay on Sundays or other holidays.
The somewhat odd result of Drive-O-Rama (requiring premium pay on three dates but not Sundays and other holidays) applies directly to the present case. As concluded above, Showcase, like Mill Stores, is not obligated for premium pay under the Sunday closing laws. If Showcase is a " retail establishment," however, it, like Mill Stores, is obligated to pay premium pay to workers on New Year's Day, Columbus Day and Veteran's Day.
According to the FAC, Showcase is engaged in two lines of business--the sale of movie tickets and the sale of food and alcohol for consumption on the premises. Plaintiffs do not explicitly plead in the FAC that Showcase is a retail establishment. The word " retail" is not used in the FAC. Instead, plaintiffs argue in their memorandum that the descriptions of Showcase's lines of business in the FAC are sufficient to state a claim that Showcase is a " retail establishment." The issue, therefore, is whether either the sale of movie tickets or the sale of food and alcohol for consumption on the premises makes Showcase a " retail establishment."
There is no definition in c. 136 of " retail establishment" or " retail." Absent a definition, statutory language should be given effect consistent with its plain meaning. Sullivan v. Brookline, 435 Mass. 353, 360, 758 N.E.2d 110 (2001). Black's Law Dictionary (rev. 9th ed. 2009) defines " retail" as " [t]he sale of goods or commodities to ultimate consumers, as opposed to the sale for further distribution or processing." " Goods" is defined as " [t]angible or movable personal property other than money." Similarly, the American Heritage Dictionary defines " retail" as " [t]he sale of goods or commodities in small quantities to the consumer." Am. Heritage Dictionary 1186 (4th ed. 2002). Both of these sources suggest that the term " retail" is to be given a broad definition. There is no limitation placed on the kinds of goods or commodities that can be sold, nor does the definitions distinguish food and beverages from other types of retail items that can be sold.
Plaintiffs note that Massachusetts sales tax law defines " retail sale" broadly to include " a sale of services or tangible personal property or both for any purpose other than resale in the regular course of business." G.L.c. 64H, § 1. A " retail establishment" includes " any premises in which the business of selling services or tangible personal property is conducted, or, in or from which any retail sales are made." Id. The definition of " retail sale," however, does not include " sales of tickets for admissions to places of amusement and sports." Id. Reliance on these definitions is made unnecessary by the holding of the Supreme Judicial Court in Moriarty, discussed infra.
With respect to Showcase's operation as a restaurant (common victualler) or tavern (provider of alcoholic beverages for consumption on the premises), the Supreme Judicial Court has definitively held that such operations are " retail" and the premises are a " retail establishment." In Commonwealth v. Moriarty, 311 Mass. 116, 40 N.E.2d 307 (1942), the Court determined that a tavern was a " retail store" within the statute (then existing) requiring that " retail stores" be closed between 7 a.m. and 1 p.m. on Columbus Day. Id. at 121. The Court considered the argument that the sale of food for consumption on the premises is not a sale at retail. The argument was rejected. Id. at 123 (" The [tavern], therefore, is not aided by any analogy of a tavern to a restaurant" ). Moriarty is direct precedent for holding that Showcase's food and beverage sales make it a " retail establishment" for purposes of the second paragraph of § 13. Consequently, plaintiffs' claims for payment of premium pay for work on New Year's Day, Columbus Day and Veteran's Day may not, under the authority of Drive-O-Rama and Moriarty, be dismissed.
Because Showcase is a " retail establishment" for purposes of § 13 as a result of its sales of food and alcohol, it is unnecessary to decide on this record whether the sale by Showcase of movie tickets also makes Showcase a " retail establishment" under that statute.
CONCLUSION
For the reasons stated, defendants' motion to dismiss Count III of the FAC (Paper No. 14) is allowed, in part, and denied, in part. The motion is allowed with respect to claims for premium pay for work performed on Sundays and holidays other than New Year's Day, Columbus Day and Veteran's Day. The motion is denied with respect to claims for premium pay for work performed on those three enumerated holidays.