VAPOR TECHNOLOGY ASSOCIATION, DONNA DIONNE, and RI E-CIG & VAPES, Plaintiffs,
v.
GINA RAIMONDO, in her official capacity as GOVERNOR OF THE STATE OF RHODE ISLAND, RHODE ISLAND DEPARTMENT OF HEALTH, and NICOLE ALEXANDER-SCOTT, MD, in her official capacity as DIRECTOR OF THE RHODE ISLAND DEPARTMENT OF HEALTH, Defendants.
For
Plaintiff: Robert C. Corrente, Esq.; Christopher N. Dawson,
Esq.
Robert
C. Corrente, Esq.; Christopher N. Dawson, Esq.;
DECISION
STERN,
J.
Before
this Court is Vapor Technology Association, Donna Dionne, and
RI E-Cig & Vapes' (collectively, Plaintiffs) Motion
for a Temporary Restraining Order. Gina Raimondo, in her
official capacity as Governor of the State of Rhode Island
(Governor Raimondo), the Rhode Island Department of Health
(DOH), and Nicole Alexander-Scott, MD, in her official
capacity as Director of the Rhode Island Department of Health
(Director Alexander-Scott) (collectively, Defendants) have
objected. Jurisdiction is pursuant to G.L. 1956 §§
42-35-7 and 9-30-1, as well as Super. R. Civ. P. 65(b) (Rule
65).
I.
Facts and Travel
On
September 25, 2019, Governor Raimondo issued Executive Order
19-09 (the Executive Order), entitled "Protecting Rhode
Island Youth Against the Harms of Vaping." Pls.' V.
Compl. Ex. 2. The Executive Order, inter alia,
directed the DOH to "promulgate emergency regulations to
prohibit the sale of flavored [Electronic Nicotine Delivery
Systems]." Id. Accordingly, on October 4, 2019,
the DOH and Director Alexander-Scott issued Emergency
Regulations 216-RICR-50-15-6 (the Emergency Regulations).
Id. Ex. 1. The Emergency Regulations completely ban
"[t]he manufacture, distribution, sale, or offer for
sale of, or the possession with intent to manufacture,
distribute, sell, or offer for sale flavored electronic
nicotine-delivery system products to consumers."
Id. The ban on flavored vaping products includes any
product that has a "distinguishable taste or aroma . . .
including, but not limited to, tastes or aromas relating to
any fruit, mint, menthol, wintergreen, chocolate, vanilla,
honey, candy, cocoa, dessert, alcoholic beverage, herb or
spice." Id. The Emergency Regulations do not
ban the manufacture, distribution, or sale of tobacco
flavored or unflavored vaping products. The Emergency
Regulations took effect immediately upon issuance, will
remain in effect for 120 days, and can then be extended for
an additional 60 days. Id. Ex. 3.
Plaintiffs
filed the instant action on October 23, 2019, challenging the
enforcement of the Emergency Regulations and seeking
declaratory and injunctive relief. See generally V.
Compl. Plaintiffs also filed a Motion for a Temporary
Restraining Order. Plaintiffs allege that the Emergency
Regulations violate the separation of powers doctrine and are
procedurally and substantively invalid under the DOH's
enabling act.[1] Defendants filed an objection and
memoranda in opposition to the Plaintiffs' Motion for a
Temporary Restraining Order. On October 29, 2019, this Court
heard oral argument on the motion. This decision follows.
II.
Standard of Review
The
Plaintiffs seek to have this Court issue a Temporary
Restraining Order to prevent DOH from continuing to
effectuate the Emergency Regulations. The Temporary
Restraining Order would stay enforcement of the Emergency
Regulations for a limited period, and the Court would
schedule a preliminary injunction hearing at the earliest
possible time. See 1 Robert B. Kent, et al.,
Rhode Island Civil and Appellate Procedure § 65:2
(2018-2019 ed.). The decision to extend injunctive relief is
within the discretion of the trial justice. See Hagenberg
v. Avedisian, 879 A.2d 436, 441 (R.I. 2005). In
considering whether to grant a temporary restraining order, a
trial justice must consider:
'"whether the moving party (1) has a reasonable
likelihood of success on the merits, (2) will suffer
irreparable harm without the requested injunctive relief, (3)
has the balance of the equities, including the possible
hardships to each party and to the public interest, tip in
its favor, and (4) has shown that the issuance of a
preliminary injunction will preserve the status
quo."' Vasquez v. Sportsman's Inn,
Inc., 57 A.3d 313, 318 (R.I. 2012) (quoting
Iggy's Doughboys, Inc. v. Giroux, 729 A.2d 701,
705 (R.I. 1999)).
III
Analysis
A
Irreparable
Harm
"A
party seeking a [temporary restraining order] 'must
demonstrate that it stands to suffer some irreparable harm
that is presently threatened or imminent and for which no
adequate legal remedy exists to restore that plaintiff to its
rightful position.'" National Lumber &
Building Materials Co. v. Langevin, 798 A.2d 429, 434
(R.I. 2002) (quoting Fund for Community Progress v.
United Way of Southeastern New England, 695 A.2d 517,
523 (R.I. 1997)). "Irreparable injury must be either
'presently threatened' or 'imminent';
injuries that are prospective only and might never occur
cannot form the basis of a permanent injunction."
Id. (quoting Rhode Island Turnpike & Bridge
Authority v. Cohen, 433 A.2d 179, 182 (R.I.
1981)). "Irreparable harm is measured in terms
of the harm arising during the interim between the request
for an injunction and the final disposition of the case on
the merits." 42 Am. Jur. 2d Injunctions §
35 (Nov. 2019 Update).
In
Rhode Island, the vaping-products industry accounts for $54
million in annual economic output, generates jobs for
approximately 460 individuals, and includes 2 vaping-products
manufacturers, 1 vaping-liquid manufacturer, and 43 retail
vape shops. V. Compl. ¶ 31. The Plaintiffs assert that
they will suffer irreparable harm in the absence of
injunctive relief because the Emergency Regulations ban the
sale of flavored vaping products, which are responsible for
the bulk of the Plaintiffs' income. Id. ¶
6. Plaintiffs further allege that the Emergency Regulations
threatens forced closure of their businesses and lay-off of
employees. Id.; see also V. Compl. Ex. 24
(averring that Donna Dionne has been forced to close her
Coventry store, that sales at her Warwick store are down 78
percent, that she has been forced to lay off seven out of her
eight employees, and that if the ban remains in place the
greatly reduced business at her Warwick store will force her
to shut that store as well).
Our
Supreme Court has recognized that the inability to conduct
business and the loss of good will to a business constitutes
irreparable harm for which there is no adequate remedy at
law. Leone v. Town of New Shoreham, 534 A.2d 871,
874 (R.I. 1987) (holding the plaintiff demonstrated
irreparable harm where town denied her license to operate
moped business because "[i]nability to conduct business
during the [] summer season would have meant loss of good
will to the business from inability to serve returning
customers"). Here, Plaintiffs have demonstrated through
Donna Dionne's affidavit that the Emergency Regulations
have rendered her unable to conduct the majority of her
business and have resulted in loss of good will to her retail
vaping stores. The Plaintiffs could not have mitigated this
harm because unlike the non-emergency rulemaking
process-where there is notice, public hearings, and a
business impact analysis-the emergency rulemaking that
occurred in this case gave little time for the Plaintiffs to
prepare. In a very real sense the Plaintiffs will lose their
business, their customers, their employees, and possibly
their inventory.
Moreover,
the Court is not persuaded by Defendants' position that a
three-week delay in filing suit challenging the Emergency
Regulation and seeking a Temporary Restraining Order negates
the irreparable harm. While it is recognized that a
plaintiff's delay in seeking a temporary restraining
order may indicate the absence of an immediate threat, the
delay must be months or years, not merely weeks. See
Nickerson-Malpher v. Baldacci, 560 F.Supp.2d 72 (D. Me.
2008) (finding no irreparable harm for alleged unlawful
seizure of plaintiff's property where seizure occurred
over one and one-half years prior to the motion for temporary
restraining order); RCM Technologies, Inc. v. Beacon Hill
Staffing Group, LLC, 502 F.Supp.2d 70, 74 (D.D.C. 2007)
(finding no irreparable harm for alleged violation of
non-competition agreement where plaintiff waited twelve
months to seek a temporary restraining order). Accordingly,
this Court finds that Plaintiffs have succeeded in showing
irreparable harm.
B.
Status Quo
The
next factor is whether the issuance of injunctive relief will
preserve the parties' respective positions pending a
final resolution.
'"[T]he office of a preliminary injunction is not
ordinarily to achieve a final and formal determination of the
rights of the parties or of the merits of the controversy,
but is merely to hold matters approximately in status quo,
and in the meantime to prevent the doing of any acts whereby
the rights in question may be irreparably injured or
endangered."' Fund for Community Progress,
695 A.2d at 521 (quoting Coolbeth v. Berberian, 112
R.I. 558, 564, 313 A.2d 656, 659 (1974)).
Our
Supreme Court has recognized that the "status quo is the
last peaceable status prior to the controversy."
E.M.B. Associates, Inc. v. Sugarman, 118 R.I. 105,
108, 372 A.2d 508, 509 (1977). Here, the status quo would be
allowing sales of flavored vaping products because that was
the condition that existed prior to the enactment of the
Emergency Regulations and the initiation of the instant
dispute. As such, this Court finds that issuance of a
Temporary Restraining Order would preserve the status quo.
C.
Balancing ...