Smith-Berry, et al. v. National Amusements, Inc., et al. (Lawyers Weekly No. 12-123-17)

No. 2017-0491 BLS 1
TREMAYNE SMITH-BERRY and JESSA DAPRATO, individually and as class
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 onehalf
times their regular pay.
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.
1 Cerco LLC, d/b/a Showcase Cinemas and Shari Redstone
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.
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 (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 431-432. 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.2 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.”
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.3 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
2 There are now 55 exemptions in c. 136, § 6.
3 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.
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.4 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.
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.
Given that there is no other statutory obligation to pay Sunday workers premium pay (the
4 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-inmassachusetts/ (Emphasis added).
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 § 6.5 As a result, plaintiffs contend that Showcase’s sale of food and drink items
“qualifies for exemption” under clause (25).
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 (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.
5 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.”
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.6
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.7
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 (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.
6 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.
7 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
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 –
773. 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 771-772.8
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
8 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.
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 (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 defines 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.9
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
9 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.
has definitively held that such operations are “retail” and the premises are a “retail
establishment.” In Commonwealth v. Moriarty, 311 Mass. 116 (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 § 13.10
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.
10 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.
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.
By the Court,
Edward P. Leibensperger
Justice of the Superior Court
Date: August 29, 2017

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