Smith-Berry, et al. v. National Amusements, Inc., et al. (Lawyers Weekly No. 09-017-17)

No. 2017-0491 BLS 1
TREMAYNE SMITH-BERRY and JESSA DAPRATO, individually and as class
Both plaintiffs and defendants ask the court to reconsider its decision dated August 29,
2017 (“Decision”), allowing, in part, and denying, in part, defendants’ motion to dismiss Count
III of the First Amended Complaint.
Plaintiffs re-argue their position that workers at Showcase Cinemas are entitled to be
compensated at one and half times their regular pay (‘premium pay”) when they work on
Sundays. After review of the argument, plaintiffs’ motion to reconsider is DENIED for the
reasons stated in the Decision.
Defendants, referred to collectively in the Decision and here as “Showcase”, move to
reconsider that portion of the Decision that denied complete dismissal of Count III. In the
Decision, I held that application of G.L. c. 136, § 13 required that Showcase pay premium pay to
workers for work performed on three holidays: New Year’s Day, Columbus Day and Veteran’s
Day (the “Holidays”). This somewhat odd result was directed by the decision of the Appeals
Court in Drive-O-Rama, Inc. v. Attorney General, 63 Mass. App. Ct. 769 (2005) concerning
1 Cerco LLC, d/b/a Showcase Cinemas and Shari Redstone
retail establishments.
Showcase now argues that its operation on the Holidays is governed by a different section
of the General Laws that does not require premium pay. For the reasons stated below, I agree.
Section 13 of c. 136 applies to a retail establishment that operates on the Holidays “under
the exemption granted by this section.” Showcase now points out that movie theaters operate on
the Holidays pursuant to another section of c. 136; i.e., § 14. Section 14 was enacted by the
Legislature on the same day as § 13, and states that “[n]otwithstanding any provision of this
chapter to the contrary” the activities of “sport, fair, exposition, play, entertainment or public
diversion” may be conducted on any legal holiday. “[A]ny labor, business or work necessary or
incidental thereto may be performed on any legal holiday . . . .” Section 14, unlike § 13, does not
require premium pay for employees working on any legal holiday.
As referenced in the Decision, a movie theater may be viewed as a retail establishment.
At the same time, the operation of a movie theater is also a business providing “entertainment or
public diversion” as described in § 14. That conclusion is consistent with the plain meaning of
the words in § 14. Moreover, the conclusion is bolstered by the Legislature’s specific reference to
“exhibition of motion pictures by a movie theater” in Clause 8A of § 4 of c. 136. Clause 8A
exempts movie theaters from certain licensing requirements that otherwise would have applied to
a business providing “entertainment or public diversion.” By implication, the Legislature
recognized that movie theaters are businesses providing “entertainment or public diversion.”
Because § 13 and § 14 were enacted together in St. 1962, c. 616, § 2, I conclude that the
Legislature intended that “retail establishments” and businesses providing “entertainment or
public diversion” should be treated differently when it comes to the obligation to provide
premium pay for work on the Holidays. That is made abundantly clear by the Legislature’s
language in § 14 providing “[n]otwithstanding any provision of this chapter to the contrary” a
provider of “entertainment or public diversion” is governed by § 14.
“It is a basic canon of statutory interpretation that ‘general statutory language must yield
to that which is more specific.’” TBI Inc. v. Board of Health of North Andover, 431 Mass. 9, 18
(2000), quoting Risk Mgt. Found. Of Harvard Med. Insts., Inc. v. Commissioner of Ins., 407
Mass. 498, 505 (1990). Applying that canon here, I conclude that the inclusion of movie theaters
in § 14 by virtue of being a business providing “entertainment or public diversion” is a more
specific reference to the business of movie theaters than the generic “retail establishment.” That
means that movie theaters are governed by § 14, not § 13. Because § 14 does not require
premium pay for work on the Holidays, Plaintiffs Count III must be dismissed in its entirety.
Defendants’ motion for reconsideration is ALLOWED. Count III is dismissed.
By the Court,
Edward P. Leibensperger
Justice of the Superior Court
October 6, 2017

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