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22-P-341 Appeals Court

DANIEL CHAPOTEAU1 & another2 vs. BELLA SANTE, INC., & others.3

No. 22-P-341.

Suffolk. December 9, 2022. - September 8, 2023.

Present: Wolohojian, Henry, & Hershfang, JJ.

Common Day of Rest. Practice, Civil, Summary judgment, Class 

action. Statute, Construction. Sale.

Civil action commenced in the Superior Court Department on 

January 22, 2020.

The case was heard by Catherine H. Ham, J., on a motion for 

summary judgment.

Raven Moeslinger for the plaintiffs.

David H. Rich for the defendants.

1 Individually and on behalf of all others similarly 

situated.

2 Victoria Perez, individually and on behalf of all others 

similarly situated.

3 Bella Sante Wellesley, LLC; Tiffany Amorosino; and Cara M. 

Finnegan.
2

HENRY, J. The "Sunday closing laws," "Blue Laws," or 

"Common Day of Rest Law[s]," G. L. c. 136, §§ 1-11,4 prohibit 

business activities on Sundays but provide for numerous 

exemptions. One of those exemptions, G. L. c. 136, § 6 (50), 

permits the retail sale of goods. Prior to January 1, 2023, 

G. L. c. 136, § 6 (50), as amended through St. 2018, c. 121, 

§§ 5-8, required certain employers that sold goods at retail to 

pay employees premium pay for hours worked on Sunday (Sunday 

pay).5 This case presents the question whether an employer who 

principally provided beauty and massage therapy services, which 

are exempted or permitted activities that did not require Sunday 

pay, see G. L. c. 136, § 6 (54), (54 1/2), may still have been 

required to pay Sunday pay to employees engaged in ancillary 

retail sales before that requirement was phased out. Because 

the statutory exemptions for beauty and massage therapy services 

4 Section 1 of G. L. c. 136 states that "[s]ections one to 

eleven, inclusive, of this chapter may be cited as the Common 

Day of Rest Law," so we refer to the scheme by the name as 

defined in the statute. See Zayre Corp. v. Attorney Gen., 372 

Mass. 423, 424 (1977) (referring to "'Sunday closing laws,' 

'Blue Laws' or 'common day of rest laws'").

5 Pursuant to G. L. c. 136, § 6 (50), as amended through 

St. 2018, c. 121, §§ 5-8, until December 31, 2022, certain 

employers were required to pay Sunday pay -- a percentage 

increase on an employee's hourly rate for hours worked on 

Sunday, similar to overtime -- to employees who engaged in the 

retail sale of goods on Sunday. The Sunday pay requirement has 

since been phased out by the Legislature and is no longer 

required as of January 1, 2023. See St. 2018, c. 121, § 9. See

part 2, infra.
3

do not allow the retail sale of goods on Sunday, and because the 

employer was a "store or shop" as used in § 6 (50), which 

authorized the retail sale of goods subject to the Sunday pay 

requirement, we vacate the order allowing summary judgment in 

favor of the employer.

Background.6 Plaintiffs Daniel Chapoteau and Victoria Perez 

commenced a putative class action suit against the defendants, 

Bella Sante, Inc., Bella Sante Wellesley, LLC, Tiffany 

Amorosino, Cara M. Finnegan (collectively, Bella Sante or 

employer), claiming that Bella Sante failed to pay Sunday pay to 

them and other employees as required by G. L. c. 136, § 6 (50), 

as amended through St. 2018, c. 121, §§ 5-8. Each of Bella 

Sante's three locations7 employs massage therapists, spa 

concierges, nail technicians, and estheticians; the Wellesley 

location also employs hair stylists. All locations sell beauty 

products, including on Sundays. These beauty products include 

items such as creams, cleansers, lotions, body scrubs, toners, 

6 In reviewing a grant of summary judgment, we view the 

undisputed facts in the light most favorable to the nonmoving 

parties. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 

117, 120 (1991).

7 Bella Sante, Inc., operates the Boston location, and Bella 

Sante Wellesley, LLC, operates the Wellesley location. A third 

company, Gromax Enterprise, Inc., operates the Lexington 

location and was not named in this suit.
4

soaps, serums, moisturizers, masks, gels, lip gloss, acne 

treatments, and nail polish.

The majority of Bella Sante's revenue is derived from fees 

paid for services. At each location, only about one percent of 

the square footage is dedicated to displays for the retail sale 

of beauty products. Nonetheless, a significant portion of Bella 

Sante's revenue comes from product sales. From 2017 through

2019, approximately twenty percent of Bella Sante's revenue was 

generated from product sales. In total, the three spas 

collectively made over $2.4 million in product sales during that 

time period, including sales on Sundays.

Bella Sante's massage therapists, nail technicians, 

estheticians, and hair stylists earn the majority of their 

income through services but are able to earn additional income 

through commissions on their retail sales of beauty products. 

Spa concierges are paid an hourly wage, do not receive 

commissions on product sales, and do not have sales targets, 

although Bella Sante requires concierges to encourage customers 

to purchase products. While some of the employees have sales 

targets, no employee has been terminated for failing to meet 

those goals, although one spa concierge was verbally 

reprimanded.

Neither of the named plaintiffs, nor any of the other 

employees, was paid Sunday pay for hours worked on Sundays. 
5

Chapoteau worked at the Wellesley location from 2014 until

January 2020 as a licensed massage therapist. He was paid on 

commission, based nearly exclusively on the value of massage 

therapy sessions he performed.8 For any product sales, of which 

Chapoteau made very few, he was paid on commission.9 Perez 

worked as a spa concierge at the Boston location. She was paid 

an hourly wage and did not receive any commissions on product 

sales.

In January 2020, Chapoteau and Perez commenced this

putative class action against Bella Sante, alleging that because 

Bella Sante sold beauty products at retail on Sundays, it was 

required to pay employees Sunday pay, and that its failure to do 

so violated G. L. c. 136, § 6 (50), as amended through St. 2018, 

c. 121, §§ 5-8. They sought relief for the nonpayment of the 

Sunday pay pursuant to the Wage Act, G. L. c. 149, §§ 148, 150. 

Bella Sante moved for summary judgment, arguing that because it 

provides beauty and massage therapy services, which are 

separately exempt business activities under G. L. c. 136, 

§ 6 (54), (54 1/2), it was not required to pay employees Sunday

pay. The motion judge agreed with Bella Sante and granted it 

summary judgment. This appeal followed.

8 Chapoteau also received tips from customers.

9 Chapoteau was paid only $149.35 in commissions for product 

sales in 2019.
6

Discussion. 1. Standard of review. "We review the 

allowance of a motion for summary judgment de novo." Genworth 

Life Ins. Co. v. Commissioner of Ins., 95 Mass. App. Ct. 392, 

394 (2019), citing Federal Nat'l Mtge. Ass'n v. Hendricks, 463 

Mass. 635, 637 (2012). "In so doing, we consider 'whether, 

viewing the evidence in the light most favorable to the 

nonmoving party, all material facts have been established and 

the moving party is entitled to a judgment as a matter of law.'" 

Genworth Life Ins. Co., supra, quoting Augat, Inc. v. Liberty 

Mut. Ins. Co., 410 Mass. 117, 120 (1991).

2. Statutory framework. Our analysis begins with an 

examination of the actual words of the common day of rest law

and the fundamental purpose of the statutory scheme. "A 

fundamental tenet of statutory interpretation is that statutory 

language should be given effect consistent with its plain 

meaning and in light of the aim of the Legislature unless to do 

so would achieve an illogical result." Marengi v. 6 Forest Rd. 

LLC, 491 Mass. 19, 24-25 (2022), quoting Sullivan v. Brookline, 

435 Mass. 353, 360 (2001).

The "general philosophy" of the common day of rest law "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." Zayre 
7

Corp. v. Attorney Gen., 372 Mass. 423, 429 (1977). See G. L. 

c. 136, § 5. Any business that is open on Sunday is subject to 

criminal prosecution10 and a fine,11 unless the activity falls 

within at least one of more than fifty exemptions, see G. L. 

c. 136, § 6 ("Section five shall not prohibit the following: 

. . .").

Three of the exemptions under § 6 are at issue here. 

Section 6 (54) permits "[t]he cutting and styling of hair, 

manicuring, and the furnishing of related cosmetological and 

beauty services" (beauty services), and § 6 (54 1/2) permits 

"[t]he performance of massage therapy services by a massage 

10 Section five of the common day of rest law allows for 

criminal punishment of employers who fail to close on Sunday 

without a qualifying exemption. See G. L. c. 136, § 5. See, 

e.g., Commonwealth v. Great Atl. & Pac. Tea Co., 404 Mass. 476, 

476-477 (1989) (company "found guilty on three complaints 

charging it with unlawfully keeping open [two locations] in 

violation of G. L. c. 136, § 5"). The plaintiffs here are 

pursuing their claims not criminally under § 5, but instead 

civilly under G. L. c. 149, § 150. The plaintiffs argue that 

Bella Sante's failure to pay the Sunday pay was a violation of 

its obligation to pay the plaintiffs the full amount of their 

earned wages when they became due and payable, in violation of 

G. L. c. 149, § 148.

11 "Whoever on Sunday keeps open his shop, warehouse, 

factory or other place of business, or sells foodstuffs, goods, 

wares, merchandise or real estate, or does any manner of labor, 

business or work, except works of necessity and charity, shall 

be punished by a fine of not less than twenty dollars nor more 

than one hundred dollars for a first offense, and a fine of not 

less than fifty dollars nor more than two hundred dollars for 

each subsequent offense, and each unlawful act or sale shall 

constitute a separate offense." G. L. c. 136, § 5.
8

therapist licensed pursuant to [G. L. c. 112, § 228]" (massage 

therapy services). In addition, § 6 (50) permits "[t]he keeping 

open of a store or shop and the sale at retail of goods therein, 

. . . and the performance of labor, business, and work directly 

connected therewith on Sunday" (retail sale of goods).

The exemptions for beauty and massage therapy services have 

never required Sunday pay. By contrast, during the relevant 

time period, the exemption for the retail sale of goods required 

"[a]ny store or shop which qualifies for exemption under this 

clause . . . and which employs more than a total of seven 

persons, including the proprietor, on Sunday or any day 

throughout the week," to pay Sunday pay to employees "engaged in 

the work performed on Sunday pursuant to the provisions of this 

clause . . . ." G. L. c. 136, § 6 (50), as amended through 

St. 2018, c. 121, §§ 5-8.

For many years the Sunday pay rate was one and one-half 

times an employee's regular hourly rate, similar to overtime. 

Starting in 2019, the Sunday pay rate was reduced by one-tenth 

of one percent as part of legislation that increased the minimum 

wage over a period of years, until January 1, 2023, when the 

Sunday pay rate was phased out entirely. See St. 2018, c. 121, 

§ 5, effective Jan. 1, 2019; St. 2018, c. 121, § 6, effective 

Jan. 1, 2020; St. 2018, c. 121, § 7, effective Jan. 1, 2021; 

St. 2018, c. 121, § 8, effective Jan. 1, 2022; St. 2018, c. 121, 
9

§ 9, effective Jan. 1, 2023. Thus, businesses that sold goods 

at retail on Sunday under the § 6 (50) exemption were subject to 

the Sunday pay requirement through December 31, 2022, which 

encompasses the entirety of the alleged nonpayment of the 

plaintiffs.

3. Statutory interpretation. In arguing that no Sunday

pay was required, the employer relies on exemptions that allow 

businesses to offer beauty and massage therapy services on

Sunday. See G. L. c. 136, § 6 (54), (54 1/2). These exemptions 

allow certain types of business activities to be performed. 

Nothing in either exemption permits the retail sale of goods. 

An employer that provides both exempted and nonexempted services 

does not thereby exempt the latter; "a store that is lawfully 

open for some kinds of business may nonetheless be prosecuted 

for being open for business in violation of the act." 

Commonwealth v. Great Atl. & Pac. Tea Co., 404 Mass. 476, 479 

(1989). In other words, "[t]he various clauses in § 6 do not 

qualify each other. Each must be read independently." 

(Quotation omitted.) Id. at 478. See Ralph's Market, Inc. v. 

Beverly, 353 Mass. 588, 590 (1968) (business was permitted to 

sell items specifically enumerated in § 6, including certain 

foodstuffs, but not all foodstuffs generally).

Massachusetts cases demonstrate application of the statute. 

In Great Atl. & Pac. Tea Co., 404 Mass. at 477, the employer was 
10

permitted to sell various items, including newspapers, fuel and 

lubricating oil, and State lottery tickets, pursuant to at least 

ten different exemptions under § 6, yet was found guilty under 

§ 5 of violating the common day of rest law for selling canned 

goods before noon, an activity that was not covered by an 

exemption.12 The Supreme Judicial Court rejected the employer's 

argument that by virtue of being lawfully open for business on 

Sunday to sell certain items, the business was permitted to sell 

other nonexempt items. See id. at 478-479. Similarly, in 

Commonwealth v. Graham, 176 Mass. 5, 6 (1900), where a duly 

licensed victualer ran a restaurant and also sold cigars, the 

Supreme Judicial Court rejected the defendant's argument that if 

the defendant's "principal business was supplying meals," she 

could not be guilty of violating a precursor to the common day 

of rest law.13 Id. The court held that "[i]f one of her 

purposes in keeping the place open was the sale of cigars she 

was guilty of the offense charged." Id. In other words, even 

though the victualer was lawfully operating under the victualer 

12 At the time, the § 6 (50) exemption for the general 

retail sale of goods applied only after noon. See Great Atl. & 

Pac. Tea Co., 404 Mass. at 478-480.

13 In Graham, 176 Mass. at 6, the defendant violated 

St. 1895, c. 434, § 2, which also prohibited the opening of 

businesses on Sunday. See Local 1445, United Food & Commercial 

Workers Union v. Police Chief of Natick, 29 Mass. App. Ct. 554, 

555-558 (1990) (discussing history of Lord's Day laws becoming 

secular common day of rest law over time).
11

exemption to the common day of rest law, she was not authorized 

to sell cigars.

While Bella Sante has demonstrated that it was permitted to 

perform some activities on Sundays -- namely, beauty and massage 

therapy services -- the exemptions that allowed those activities 

did not allow retail sales. If Bella Sante was permitted to 

sell goods at retail on Sundays, that permission came from

§ 6 (50), which required Sunday pay.14 The alternative is that 

Bella Sante was selling the goods at retail in violation of § 5.

The question then becomes whether, pursuant to § 6 (50),

Bella Sante is a "store" or "shop" that sells goods at retail on 

Sundays such that it may have been required to pay some 

employees Sunday pay.15 By a plain reading of the common day of 

rest law, Bella Sante is both. A store is "a place where 

traffic is carried on in goods, wares, or merchandise" (citation 

omitted), Commonwealth v. Moriarty, 311 Mass. 116, 121 (1942), 

14 While § 6 allows for the retail sale of specific goods 

without requiring Sunday pay, see, e.g., G. L. c. 136, § 6 (18) 

(tires, batteries, and automotive parts for emergency use) and 

§ 6 (28) (greeting cards and photographic films), Bella Sante 

was not selling those goods here and cannot take refuge from the 

Sunday pay requirement under those subsections.

15 The "sale at retail of goods," G. L. c. 136, § 6 (50),

occurs within each Bella Sante location, a point which Bella 

Sante does not contest. See Commonwealth v. Moriarty, 311 Mass. 

116, 121 (1942) ("The word 'retail' imports primarily that the 

sale or traffic in goods, wares or merchandise carried on in 

such 'stores' shall be in small quantities").
12

and a shop includes a "place of business," Commonwealth v. 

Chamberlain, 343 Mass. 49, 50-51 (1961), and "may include places 

of business that are not 'retail stores' or even 'stores,'" 

Moriarty, supra at 120. Based on this broad definition, the 

Supreme Judicial Court has held that both a laundromat, 

Chamberlain, supra, and a tavern, Moriarty, supra, constituted 

"shops." Here, Bella Sante is certainly a place of business, 

and its sale of various types of beauty products makes it a 

place where traffic is carried on in goods, wares, and 

merchandise, such that it is a store or a shop for purposes of

§ 6 (50).16

Bella Sante argues that because its spas are "primarily" 

engaged in beauty and massage therapy services, it should not be 

considered a "store" or "shop" within the meaning of § 6 (50). 

It is correct that Bella Sante is primarily a services company, 

as approximately eighty percent of its revenue is derived from 

16 Bella Sante argues that the previous cases interpreting 

the terms "store" and "shop" occurred under previous iterations 

of the common day of rest law and were thus superseded. 

However, "when the Legislature amends a statute it is aware of 

the prior state of the law as explicated by the decisions of 

this court, and where it has reenacted statutory language 

without material change, they are presumed to have adopted the 

judicial construction put upon it" (quotations and citation and 

omitted). Commonwealth v. Colturi, 448 Mass. 809, 812 (2007). 

Bella Sante's further argument that prior cases should be 

ignored as they involved criminal cases is unavailing. Where 

the common day of rest law can be enforced both civilly and 

criminally, we see no reason to interpret the terms differently

for each purpose.
13

services, and only about one percent of its square footage is 

devoted to the retail sale of products. However, § 6 (50) is 

not limited to only businesses known primarily as "retail 

store[s]," as Bella Sante contends, but instead applies to any 

store or shop which sells goods at retail therein. This 

definition is in sharp contrast to other exemptions under § 6, 

where the Legislature used the word "primarily" when describing 

the nature of other exemptions. See G. L. c. 136, § 6 (29) 

(permitting the "sale, at retail, of gifts, souvenirs, antiques, 

secondhand furniture, handcrafted goods and art goods, in an 

establishment primarily engaged in the sale of such merchandise, 

or on the premises of a licensed common victualler" [emphasis 

added]); G. L. c. 136, § 6 (30) (permitting the "opening of a 

store or shop primarily engaged in the retail sale of pets, and 

the sale therein of pets and articles necessary for the keeping, 

care and feeding of pets" [emphasis added]). Unlike those 

exemptions, the § 6 (50) exemption is not limited only to those 

businesses engaged "primarily" in the retail sale of goods. 

"Where the Legislature used different language in different 

paragraphs of the same statute, it intended different meanings" 

(citation omitted). Commonwealth v. Williamson, 462 Mass. 676, 

682 (2012). The Legislature used the word "primarily" in 

§ 6 (29) and § 6 (30) and chose not to in § 6 (50). "This use 

of different language strongly suggests the legislative intent 
14

to convey a different meaning." Williamson, supra. We 

therefore reject the argument that § 6 (50) should apply only to 

those businesses engaged "primarily" in retail sales.17

This construction does not "re-write" the common day of 

rest law or "reclassify" Bella Sante as a "retail store[] or 

shop[]," as Bella Sante contends, even where retail sales may be 

ancillary to the employer's primary purpose. Instead, it 

supports the underlying purpose of the statutory scheme of 

creating an "economic disincentive for employers and providing 

additional compensation to employees with respect to work done 

on Sunday" (quotation and citation omitted). Sullivan v. 

Sleepy's LLC, 482 Mass. 227, 235 n.16 (2019). Prior to 2023, a

business that was primarily engaged in nonretail activity, such 

as a spa or hair salon, but that engaged in a small amount of 

retail sales (and had at least seven employees)18 could have 

avoided the Sunday pay requirement by selling goods at retail 

only on Monday through Saturday, or it could have continued to 

sell goods at retail on Sunday and paid employees engaged in 

that activity Sunday pay as required by the statutory scheme. 

17 As noted above, even if Bella Sante were correct that it 

is not a "store" or "shop" within the meaning of § 6 (50), no 

other exemption permitted it to sell goods at retail on Sunday.

18 Bella Sante's vice-president of operations testified that 

it always had at least seven employees at the relevant 

locations. Bella Sante has not contested that it met the

threshold number of employees.
15

This interpretation is consistent with the plain meaning of the 

statute, the prior case law, and the over-all purpose of the 

common day of rest law.19

Conclusion. The order allowing summary judgment is 

vacated, and the matter is remanded to the Superior Court for 

further proceedings consistent with this opinion.20

So ordered.

19 The parties did not brief and we do not reach the 

question of which employees Bella Sante was required to pay 

Sunday pay, or in what amount. Those questions are to be 

determined on remand.

20 The plaintiffs' request for appellate attorney's fees is 

denied.