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COMMONWEALTH OF MASSACHUSETTS: HOUSING COURT EASTERN DIVISION CIVIL ACTION NO. JANET AVILA, and DAVID E, BOUDREAU, SR., Plain v DR. BISOLA OJIKUTU, in her capacity as Executive Director, Boston Public Health Commission, RITA NIEVES, in her former capacity as Interim Director Boston Public Health Commission and as Agent of The Board of Health; KIM JANEY, in her capacity as Acting Mayor, City of Boston; BOSTON PUBLIC HEALTH COMMISSION; BOSTON BOARD OF PUBLIC HEALTH; and CITY OF BOSTON, MASSACHUSETTS, Defendants, LLL VERIFIED COMPLAINT FOR DECLARATORY AND INJUNC RELIEF Plaintiffs, an elderly owner-occupied rental property owner in the City of Boston, and a Constable licensed in the City of Boston, seek preliminary and permanent injunctive relief enjoining the enforcement of, and a declaratory judgment declaring invalid, void, and of no legal effect, the “TEMPORARY ORDER ESTABLISHING AN EVICTION MORATORIUM IN THE CITY OF BOSTON” issued by the Boston Public Health Commission (“BPHC”) on ‘August 31, 2021 (the “Boston Moratorium Order”). A true and correct copy of the Boston Moratorium Order is attached as Exhibit A. INTRODUCTIO! The Boston Moratorium Order is the unfortunate result of political gamesmanship amid a heated mayoral primary campaign, where politicians do things first for political gain and rationalize legality later. In the wake of the U.S. Supreme Court's deci nationwide eviction moratorium previously announced by the U.S. Centers for Disease Control and Prevention (“CDC”), and having received criticism from another mayoral candidate, Acting Mayor Kim Janey directed the Boston Health Commission to establish its own moratorium on evictions. Purporting to draw from various sources of authority, and “notwithstanding” the provisions of Mass. Gen. L. chapters 186 and 239, the Boston Moratorium Order indefinitely forbids any rental property owner from “servfing] or causfing] the service of notice of levy upon an execution, of otherwise enforce a residential eviction upon a resident of Boston while this order is in effect.” Boston Moratorium Order, Exhibit A, § 1. Asa result of the Boston Moratorium Order, Plaintiff Avila, an elderly owner-occupant whose Summary Process case was commenced in 2019 and who is owed in excess of $30,000.00" in back rent, has been unable to levy upon the Execution authorized and issued by this Court and has been deprived of the legal possession of her property. Plaintiff Boudreau has been deprived of the ability to carry out his legal duties when presented with an execution from ' The Boston Moratorium Order is available on the Boston Public hHealth Commission’ website, located at hutps://bphe.ory/onlinenewsroom/Blog/SiteAssets/Lists/Posts/AllPosts/BPHC%20Temporary%2 OEvietion®%20Moratorium%200rder%208%2031%2021%20(003).pd. ? The defendant tenant in the Avila case has refused to apply for rental assistance. this Court ordering him to levy thereon, including by Plaintiff Avila. Plaintiffs have suffered substantial loss of their legal rights and legal income and will continue suffering said losses indefinitely and without any recourse for as long as the Boston Moratorium Order remains in effect Accordingly, Plaintiffs ask the Court to issue preliminary and permanent injunctive relief allowing Plaintiff Avila and all other landlords to levy upon executions for possession issued by this Court and allowing Plaintiff Boudreau and all licensed Constables to carry out their legal obligations to assist in such levies both for Plaintiff Avila in particular and for all property ‘owners in possession of valid executions issued by the Housing Courts within the Commonwealth, and to issue a declaratory judgment that the Boston Moratorium Order is invalid, void, and of no legal effect. PARTIES 1. Plaintiff Janet Avila is the elderly owner of an owner-occupied rental property located at 31 Deering Road, Mattapan, MA 02126. On October 7, 2019, Plaintiff Avila filed a Summary Process Summons and Complaint in Case No. 19-SP-4210 in the Housing Court, Eastern Division, seeking to evict her tenant Veronica Watson for non-payment of rent, On December 18, 2019 an Agreement for Judgment was reached. On March 25, 2021, this Court (Malamut, J.) issued an Order that the tenant had violated the Agreement for Judgment, warranting issuance of a Judgment for Possession, but that the CDC Moratorium then in effect applied. On August 2, 2021, a final judgment for possession issued, along with judgment for $28,828.72 in unpaid rent, costs, and interest. On August 31, 2021, Execution for Possession and Money Judgment issued in the amount of $29,103.77 including post-judgment interest. A true and correct copy of this Execution is attached as Exhibit B. Since issuance of the Execution, Plaintiff Avila has been unable to levy on the execution as a result of the Boston Moratorium Order. 2. Plaintiff David E. Boudreau, Sr., is a Constable appointed by the Mayor of the City of Boston pursuant to Mass. Gen. L. c. 41, §91. Among Plaintiff Boudreau’s duties as a licensed Constable is the levying on executions for possession in summary process proceedings. Plaintiff has been requested to levy on the executions for Plaintiff Avila. However, Plaintiff Boudreau is unable to perform this function as a result of the Boston Moratorium Order. Moreover, because of the Boston Moratorium Order, Plaintiff Boudreau has been unable to levy on executions obtained by other rental property owners in Boston, Plaintiff Boudreau has and is continuing to suffer substantial monetary damages as a result of his inability to carry out his duties as a Constable in an amount estimated at approximately $10,000 per month. As a result of the prior moratoriums and the ongoing Boston Moratorium, Plaintiff Boudreau has suffered substantial monetary losses leading to him receiving a notice of foreclosure of his own residence. 3. Defendant Dr. Bisola Ojikutu is Executive Director of the Boston Public Health Commission, as of September 2021 4, Defendant Rita Nieves was Interim Director of the Boston Public Health ‘Commission and Agent of the Board of Health. On August 31, 2021, Defendant Nieves, acting, in these capacities, issued the Boston Moratorium Order. 5. Defendant Kim Janey is Acting Mayor of the City of Boston and in that capacity ‘oversees the Boston Public Health Commission and the Board of Health. On information and belief, Defendant Janey ordered or otherwise instructed Defendant Nieves to issue the Boston Moratorium Order. 6. Defendant Boston Public Health Commission is an agency of the City of Boston that issued the Boston Moratorium Order. Defendant Nieves issued the Boston Moratorium Order in her capacity as Interim Executive Director of the Boston Public Health Commission. 7. Defendant Boston Board of Public Health is an agency of the City of Boston. Defendant Nieves issued the Boston Moratorium Order in her capacity as Agent of the Boston Board of Health. JURISDICTI 8. This Court has jurisdiction under Mass. Gen. L. ¢. 231, §§ 1 and 2 and c. 185C, §§ 2and 3. 9. Venue lies under Mass. Gen. L. ¢. 223 § 9 10. There is an actual controversy between Plaintiffs and Defendants concerning the legality and enforceability of the Boston Moratorium Order. 11, Pursuant to M.G.L. ¢. 231, §§ 1 and 2, this Court has the authority to make a binding declaration of Plaintiffs’ rights “under the common law, charter, statute, municipal ordinance or by-law, or administrative regulation, including determination of any question of construction or validity thereof which may be involved in such determination.” FACTS? 12, On August 26, 2021, the U.S. Supreme Court effectively struck down the Centers for Disease Control and Prevent nn’s (“CDC”) attempt to establish a second nationwide moratorium on evictions for nonpayment of rent. Alabama Ass'n of Realtors v. Dep't of Health & Hum. Servs., 2021 WL 3783142, at *1 (Aug. 26, 2021). * The facts surrounding the COVID-19 pandemic and the various state and federal reactions to the pandemic are well-known and of public record. We focus here only on the facts pertinent to the issues before the Court. 13. On August 30, 2021, then Boston mayoral candidate City Councilor Andrea Campbell crit ‘ized Acting Mayor Kim Janey inaction and “urged Acting Mayor Kim Janey to impose a local moratorium on evictions in Boston, citing the risk of displacing families in the midst of a s Il-raging pandemic and a disproportionate impact on communities of color.” As Federal Eviction Ban ends, a Mayoral Rival Urges Janey to Impose One in Boston, Boston Globe, August 30, 2021.* 14, The next day, Acting Mayor Janey, struggling in the polls, announced the Boston Moratorium Order, while at the same ¢ her administration admitted the Order was legally suspect: ‘And despite the potential for lawsuits challenging the ban, [Boston Housing Chief Sheila] Dillon said, they decided to do what they could now. “We anticipate that there may be some legal challenges to this,” Dillon said. “We felt it was really important to try. We do think evictions are a public health issue.” Janey and Health Officials Ban Evictions in Boston, Even as Moratoriums Come Under Fire, Boston Globe, August 31, 2021.5 15. The Boston Moratorium Order provides in pertinent part as follows: 1. Noowithstanding G. L. 6. 186, G. L. ¢. 239 or any general or special lnw to the contrary no landlo ¢ the service of notice of levy upon an eviction, oF otherwise enforce a residential evietion upon a resident of Boston while this in effect. This Order shall not apply to cases where a Court of competent jurisdiction hay entered a judgment against a tenant which re ey that impair the healt immediately adjacent neighbors. andor owner shall serve or order tes to serious violations of the terms of the ten: and safety of other building residents or * See htips://www.bostonglobe.com/2021/08/30/metro/boston-mayoral-candidate-andrea- campbell-urges-acting-mayor- impose-city-eviction-moratorium/. * See https://www.bostonglobe.com/202.1/08/3 | /metra/boston-announces-eviction-moratorium- effective-immediately/2event=event2, ate The remedies listed in this Order are not exelusive of any other remedies available under ion thereof applicable federal, state, or law. If to any person or entity or circumstance is determined to be invalid by a cou competent jurisdiction, such judgment shall not affect or impair the validity of the other provisions of this Order or the application thereof to other persons, entities and ny provision of this Ordk or the applies of circumstances, 4, This Order shall take effect immediately and remain in effect umtil rescinded by the Executive Director at the time of such decision, in their discretion, ENFORCEMENT All reasonable efforts will be made t0 se Order may be enforced through any and above, including an order of a court of competent j ity of Boston ire voluntary complianee with this Order, however this | mechanisms afforded by the authorizing statutes on. ‘The Executive Director may seek g compliance with this order isdic the assistance of other sencies in ensuti Exhibit A at 2. 16. — The Boston Public Health Commission and its then Interim Executive Director Defendant Nieves cited several Massachusetts statutes and regulations purportedly authorizing the BPHC to issue the Boston Moratorium Order. Not one of the cited statutes and regulations actually authorizes the Boston Moratorium Order. 17. Nothing contained in the Boston Moratorium Order even makes reference to persons experiencing Covid-19 symptoms or quarantine. 18, Nothing in the Boston Moratorium Order requires any person to quarantine, isolate, or even remain in an apartment in order to benefit from the eviction moratorium. 19, Nothing in the Boston Moratorium Order limits its application in any way to people who have COVID-19, who are at high risk of COVID-19, who are unable to be vaek ated against COVID-19, or have suffered any loss of income as a result of the pandemic. 20. Rather, the Boston Moratorium Order simply imposes a blanket prohibition on virtually any levy upon execution, without any requirement of any link whatsoever to the pandemic or to the supposed health concems that purportedly motivated its issuance. 21. While asserting that “[alll reasonable efforts will be made to secure voluntary compliance with this Order,” the Boston Moratorium Order implicitly threatens property owners who might dare to act further to a lawful judgment and execution issued by this Court: however this Order may be enforced through any and all mechanisms afforded by the authorizing statutes above, including an order of a court of competent jurisdiction. The Executive Director may seek the assistance of other City of Boston agencies in ensuring compliance with this order. 22. Moreover, on or about September 13, 2021, Defendant Ojikutu, now the Executive Director of the BPHC, sent notices to individual licensed Constables that, while purporting to simply notify and request voluntary assistance, implicitly threaten Constables who do not “refrain from assisting” landlords carrying out lawful executions and who do not affirmatively “rat out” any property owner who even contacts them for assistance: While the terms of this Order regulate the conduct of landlords rather than the provision of constable services directly, 1 respectfully request your assistance in implementing this Order by refraining from assisting any landlord in carrying out an execution that would violate this Order, namely any execution issued for nonpayment of rent or any reason other than a serious health or safety violation while this temporary Order remains in effect. I also ask that you notify our office of any requests to levy eviction in violation of the Order at boardofhealth@bphe.org or 617-534- 5855. ‘The implicit threat lies in the fact that Constables are licensed by the City of Boston, and Constables who do not both “refrain from assisting” and affirmatively rat out landlords who contact them will fear that their licenses will not be renewed. The City may also remove a Constable from office “for gross misconduct,” which is left to the discretion of the Mayor. M.G.L. c. 41, §91. The implicit threat is also reflected in the fact that the letter “cc's” the Acting ‘Commissioner of the Boston Police Department and the Suffolk County Sheriff. A true and correct copy of the September 13, 2021 BPHC letter is attached as Exhibit C. 23. In addition to the lack of legal authorization under the statutes and regulations cited by the BPHC, the Boston Moratorium Order is unconstitutional under Article LXXXIX, §§ 6 and 7 of the Massachusetts Constitution because is preempted by the Massachusetts Legislature’s comprehensive regulation of the field of landlord-tenant relations and by its creation of a comprehensive legal framework, including the establishment of the Housing Courts, to carry out its statutory scheme. See generally, M.G.L. chapters 239 and 185C. By comprehensively regulating the entire field of landlord-tenant relations, the Massachusetts Legislature has implicitly denied local municipalities from also imposing their own regulations. 24. The Boston Moratorium Order is also implicitly preempted by the Massachusetts Legislature's specific consideration of the impact of the COVID-19 pandemic on the field of landlord-tenant relations and the authority of the Housing Courts. After the pandemic began, the Legislature imposed a statewide moratorium on “non-essential” evictions by enacting chapter 65 of the Acts of 2020 (“Chapter 65”): Notwithstanding chapter 186 or 239 of the General Laws or any general or special law, rule, regulation, or order to the contrary, a court having jurisdiction over an action for summary process pursuant to said chapter 239, including the Boston municipal court department, shal! not, in an non-essential eviction for a residential dwelling unit or small business premises unit: (i) accept for filing a writ, summons or complaint; (ii) enter a judgment or default judgment for a plaintiff for possession or a residential dwelling unit or small business premises unit, (iii) issue an execution for possession of a residential dwelling unit or small business premises "nit; (iv) deny, upon the request of a defendant, a stay of execution, or upon the request by a party, a continuance of a summary process case: or (v) schedule a court event, including a summary process trial. St. 2020, c. 65, § 3(b). 25. Chapter 65 also prohibited the levy and enforcement of any execution for possession (also known as move-out orders) for both residential and commercial propertis providing as follows: “A sheriff, deputy sheriff, constable or other person shall not enforce or levy upon an execution for possession for a non-essential eviction of a residential dwelling unit or small business premises unit.” See Chapter 65, §3(d), 26. Chapter 65 further prohibited residential rental property owners from exercising basic contractual rights through a total prohibition against the termination of any tenancy and the sending of “any notice, including a notice to quit, requesting or demanding that a tenant of a residential dwelling unit vacate the premises.” See Act, § 3(a) (“Notwithstanding chapter 186 or chapter 239 of the General Laws or any other general or special law, rule, regulation or order to the contrary, a landlord or owner of a property shall not, for the purposes of a non-essential eviction for a residential dwelling unit: (i) terminate a tenancy; or (ii) send any notice, including a notice to quit, requesting or demanding that a tenant of a residential dwelling unit vacate the premises.”). 27. These provisions of Chapter 65 were initially set to expire on August 18, 2020, or 45 days after the expiration of the COVID-19 State of Emergency issued by Governor Baker on March 10, 2020. However, Chapter 65 gave the Governor the authority to extend the moratorium provisions for 90-day incremental periods, but no later than 45 days after the State of Emergency was lifted. On or about July 22, 2020, the Governor formally extended the term of Chapter 65 through October 18, 2020. 28. On December 30, 2020, the Massachusetts Legislature enacted An Act Providing {for Eviction Protections During the Covid-19 Pandemic Emergency, Chapter 257 of the Acts of 2020 (“Chapter 257°). St. 2020, ¢. 257.6 . 29. Chapter 257 was enacted after consideration of the progress made in combatting the COVID-19 pandemic and the changes in the economic outlook as COVID-19 lockdowns and public health measures abated. 30. While Chapter 65 imposed a virtually comprehensive ban on landlord’s right to serve notices to quit, to prosecute summary process actions, and on the right to obtain judgments and executions for possession for all “non-essential” evictions, Chapter 257 took a much narrower approach, focused only on evictions based on non-payment of rent, only where such non-payment was due to or exacerbated by a COVID-19 financial hardship, only where the tenant had applied for short-term rental assistance, and only until any such application had been approved or denied: (b) Notwithstanding chapter 239 of the General Laws or any other general or special law, rule, regulation or order to the contrary, during the COVID-19 emergency, a court having jurisdiction over an action for summary process under said chapter 239, including the Boston municipal court department, shall grant a continuance for a period as the court may deem just and reasonable if, either at the time the answer is timely filed or on the date the trial is scheduled to commence: (i) the tenancy is being terminated solely for non-payment of rent for a residential dwelling unit; ) the non-payment of rent was due to a financial hardship related to or exacerbated by the COVID-19 emergency; and the defendant demonstrates, to the satisfaction of the court, a pending application for short-term emergency rental assistance; provided, however, notwithstanding this subsection, the court may consider any meritorious counterclaim brought in said action for summary process; provided further, that the court shall issue a stay of execution on a judgment for possession if the requirements in clauses (i) to (iii), inclusive, are met; and provided further, that the court shall not enter a judgment or issue an execution before the application has been approved or denied. St. 2020, . 257 §2(b) (emphasis added). 31. On May 28, 2021, Governor Baker, acknowledging the substantial progress that had been made in combatting the COVID-19 pandemic and achieving widespread vaccinations, issued COVID-19 Order No. 69, which terminated various aspects of the COVID-19 State of Emergency as of that date, and continued other aspects through June 15, 2021. Effective on that date, Governor Baker formally terminated the State of Emergency.’ 32. By its terms, Chapter 257 had been set to expire with the termination of the COVID-19 emergency. However, on June 16, 2021, the Massachusetts Legislature again revisited the question whether restrictions should be imposed on residential evictions and enacted An Act Relative to Extending Certain COVID-19 Measures Adopted During the State of Emergency, Chapter 20 of the Acts of 2021 (“Chapter 20”).* St. 2021, ¢. 20. 33, Section 16 of Chapter 20 extended the restrictions on evictions contained in Section 2(b) of Chapter 257, until the later of the end of the COVID-19 State of Emergency or April 1, 2022. SECTION 16. Section 2 of said chapter 257 is hereby amended by inserting after the word “emergency”, the sixth and ninth times it appears, the following words oF until April 1, 2022, whichever i St. 2021, c. 20, §16. 7 Order Announcing the Termination of the March 10, 2020 State of Emergency and Reseinding COVID-19 Executive Orders Issued Pursuant to the Massachusetts Civil Defense Act, COVID- 19 Order No. 69, available at https://www.mass.gov/doc/covid-19-order-69/download. * https://malegislature.gov/Laws/SessionLaws/Acts/2021/Chapter20. 34. The Boston Moratorium Order puts Plaintiffs, along with thousands of other landlords in the City of Boston at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery. Despite the [BPHC’s] determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means. And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership—the right to exclude. Alabama Ass'n of Realtors v. Dep't of Health & Hum. Servs., No. 21A23, 2021 WL 3783142, at *4 (US. Aug. 26, 2021). COUNT (Declaratory Judgment, M.G.L. Chapters 231A, §§1 and 2, and 185C, §3) 35. The allegations of paragraphs 1-35 hereof are incorporated by reference as if fully stated herein, 36. Inissuing the Boston Moratorium Order, the Boston Public Health Commission claimed to act pursuant to M.G.L. c. 111, §30, M.G.L. ¢. 111 §§2-6, M.G.L. c. 111 §§ 6, 7, 31, 95, 104, 122, 310 C.M.R. 11.05, 105 C.M.R. 300.200, “all other auth ing statutes” and the Boston Public health Commission's Declaration of a Public Health Emergency Relative to Covid-19 in the City of Boston dated March 15, 2020, as extended. See Exhibit A at 1 37. M.G_L. c. 111, §30 provides: Agents; appointment; inspections Boards of health may appoint agents or directors of public health to act for them in cases of emergency or if they cannot conveniently assemble, and any such agent or director shall have all the authority which the board appointing him had; but he shall in each case within two days report his action to the board for its approval, and shall be directly responsible to it and under its direction and control. An agent or director of public health appointed to make sanitary inspections may make complaint of 38. lations of any law, ordinance or by-law relative to the public health, M.G.L. c. 111, § 30 does not provide any legal authority for the Boston Board of Public Health to promulgate and enforce the Boston Moratorium Order, 39. MGL. c. 111 §2 provides: Duties of commissioner of public health ‘The commissioner shall administer the laws relative to health and sanitation and the regulations of the department, and shall prepare rules and regulations for the consideration of the couneil, The secretary of elder affairs and the commissioner shall jointly develop and submit to the council rules and regulations governing the licensure and operation of convalescent or nursing homes, rest homes, infirmaries maintained in a town and charitable homes for the aged. He may direct any executive officer or employee of the department to assist in the study, suppression or prevention of disease in any part of the commonwealth. He shall submit annually to the council a report containing recommendations in regard to health legislation. ‘The commissioner shall prepare from the birth, marriage and death records received by him under the provisions of chapter fort and from the divorce returns received by him under the provi of section forty-six of chapter two hundred and eight, such statistical tables as he deems useful, and shall make annual report thereof to the general court. The commissioner may transmit such information to the appropriate agency of the federal government to participate in the development of a cooperative system for producing uniform statistical information at the federal, state and local level. The commissioner may make further use of such records as he deems useful for administrative and research purposes connected with health programs and population studies. He shall, as soon as is reasonably practicable, cause the birth, marriage and death records to be bound with indexes thereto and shall retain their custody. He shall prepare an alphabetical index of such divorce returns showing the names of the parties, year and number of the judgment and the county in which the divorce occurred, Prior to undertaking any activity or implementing any policy which would affect expenditures for medical assistance under chapter one hundred and eighteen E, including but not limited to the certification and licensure of providers of services under said 40. chapter, the commissioner shall assure that such activity is reviewed by the commissioner of medical assistance. ‘The commissioner shall consult with the commissioner of mental health prior to taking an action substantially affecting the design and implementation of behavioral health services for children under guidelines established by the secretary of health and human services under section 16S of chapter 6A. ‘The commissioner, subject to the approval of the governor, may make such rules and regulations governing the conduct of written and oral examinations by the several boards of registration and examination under the department as shall be necessary to standardize procedures and protect the commonwealth and applicants for registration against fraud. Nothing in this section shall prevent a board from adopting, under authority of other provisions of law, specific rules and regulations that are not in conflict with the rules and regulations authorized by this section. M.G.L. c. 111, § 2 does not provide any legal authority for the Boston Board of Public Health to promulgate and enforce the Boston Moratorium Order. 4. 42. M.GLL. c. 111, § 3 provides: Public health council; hearings, intervention ‘The council shall make and promulgate rules and regulations, take evidence in appeals, consider plans and appointments required by law, hold hearings, and discharge other duties required by law; but it shall have no administrative or executive functions. Hearings of the department may be held by the commissioner, or his designee or the hearings officer if so authorized by the commissioner, or by the hearings officer as provided in section seventy-one with respect to a refusal to renew or revocation of a license of a convalescent or nursing home, rest home or charitable home for the aged. The secretary of elder affairs or his designee may intervene on behalf of a resident or residents or the owner or administrator of a convalescent or nursing home, rest home, infirmary maintained in a town, or a charitable home for the aged in any proceedings before the council M.G.L. c. 111, § 3 does not provide any legal authority for the Boston Board of Public Health to promulgate and enforce the Boston Moratorium Order. 43. M.GLL. ¢. 111, §4 provides: 44. Health districts; district health officers; enforcement of laws in districts ‘The commissioner, with the approval of the council, shall from time to time divide the state into not more than eight health districts. He may from time to time order two or more district health officers to work in one district, in order to study, suppress or prevent disease. Each district health officer shall act as the representative of the commissioner, and under his direction shall secure the enforcement within his district of the laws and regulations relating to public health. He shall have the powers and perform the duties set forth in this chapter, and, under the direction of the commissioner, shall perform such other duties as he may prescribe. M.G.L.c. 111, § 4 does not provide any legal authority for the Boston Board of Public Health to promulgate and enforce the Boston Moratorium Order. 45. 46. M.GLL. c. 111, § 5 provides: Powers and duties of department ‘The department shall take cognizance of the interests of life, health, comfort and convenience among the citizens of the commonwealth; shall conduct sanitary investigations and investigations as to the causes of disease, and especially of epidemics, and the sale of food and drugs and adulterations thereof; and shall disseminate such information relating thereto as it considers proper. It shall advise the government concerning the location and other sanitary condition of any public institution. It may produce and distribute immunological, diagnostic and therapeutic agents as it may deem advisable, and may sell such portions of such materials produced in its laboratories as constitute an excess over those required for its use within the commonwealth. M.G.L. c. 111, § 5 does not provide any legal authority for the Boston Board of Public Health to promulgate and enforce the Boston Moratorium Order. M.GLL. c. 111, § 6 provides: Power to define diseases deemed dangerous to public health; control and prevention ‘The department shall have the power to define, and shall from time to time define, what diseases shall be deemed to be dangerous to 41. the public health, and shall make such rules and regulations consistent with law for the control and prevention of such diseases as it deems advisable for the protection of the public health. The department shall also have the power to define, and shall from time to time so define, what diseases shall be included within the term venereal diseases in the provisions of the laws relative to public health, M.GLL. c. 111, § 6 does not provide any legal authority for the Boston Board of Public Health to promulgate and enforce the Boston Moratorium Order. 48. 49. M.GLL. c. 111, § 7 provides: Investigation of contagious or infectious diseases; notice If smallpox or any other contagious or infectious disease declared by the department to be dangerous to the public health exists or is likely to exist in any place within the commonwealth, the department shall make an investigation thereof and of the means of preventing the spread of the disease, and shall consult thereon with the local authorities. It shall have co-ordinate powers as a board of health, in every town, with the board of health thereof. It may require the officers in charge of any city or state institution, charitable institution, public or private hospital, dispensary or maternity hospital, or any board of health, or the physicians in any town to give notice of cases of any disease declared by the said department to be dangerous to the public health, Such notice shall be given in such manner as the department may deem advisable. If any such officer, board or physician refuses or neglects to give such notice, he or they shall forfeit not less than fifty nor more than two hundred dollars. M.G.L. c. 111, § 7 does not provide any legal authority for the Boston Board of Public Health to promulgate and enforce the Boston Moratorium Order. 50. M.GLL. c. 111 ,§ 31 provides: Health regulations; summary publication; hearings; impact on farming or agriculture; filing sanitary codes and related rules, ete. Boards of health may make reasonable health regulations. A summary which shall describe the substance of any regulation made by a board of health under this chapter shall be published once in a newspaper of general circulation in the city or town, and such publication shall be notice to all persons. No regulation or amendment thereto which relates to the minimum requirements for subsurface disposal of sanitary sewage as provided by the state environmental code shall be adopted until such time as the board of health shall hold a public hearing thereon, notice of the time, place and subject matter of which, sufficient for identification, shall be given by publishing in a newspaper of general circulation, in the city or town once in each of two successive weeks, the first publication to be not less than fourteen days prior to the date set for such hearing, or if there is no such newspaper in such city or town, then by posting notice in a conspicuous place in the city or town hall for a period of not less than fourteen days prior to the date set for such hearing. Prior to the adoption of any such regulation or amendment which exceeds the minimum requirements for subsurface disposal of sanitary sewage as provided by the state environmental code, a board of health shall state at said public hearing the local conditions which exist or reasons for exceeding such minimum requirements. Whoever, himself or by his servant or agent, or as the servant or agent of any other person or any firm or corporation, violates any reasonable health regulation, made under authority of this section, for which no penalty by way of fine or imprisonment, or both, is provided by law, shall be punished by a fine of not more than one thousand dollars. Ina municipality with a municipal agricultural commission established pursuant to section 8L of chapter 40, the board of health in that municipality shall, during the publication period, solicit and consider comments submitted by the commission on regulations that have an impact on farming or agriculture as defined in section 1A of chapter 128. Boards of health shall file with the department of environmental protection, attested copies of sanitary codes, and all rules, regulations and standards which have been adopted, and any amendments and additions thereto, for the maintenance of a central register pursuant to section eight of chapter twenty-one A. 51. M.G.L.¢. 111, § 31 does not provide any legal authority for the Boston Board of Public Health to promulgate and enforce the Boston Moratorium Order. 52. M.GLL.¢. 111 § 95 provides: Powers and duties of boards in cases of infectious diseases Ifa disease dangerous to the public health breaks out in a town, or iffa person is infected or lately has been infected therewith, the

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