Vapor Technology Association v. Raimondo

          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 ...