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August 23, 2013

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Page 8 POST-GAZETTE, AUGUST 23, 2013 M.G.L.c. 93A 'Consumer' Protection Act May also Provide Relief to Commercial Tenants In a recent decision of sig: nificant import, a Massachu- setts Superior Court judge found that Chapter 93A, the so-called "consumer protec- tioh statute," can provide a remedy to a commercial ten- ant for failures by the ten- ant's landlord to provide com- mercial space free of serious defects, In Kuong, et al. v. Wong, et al. Suffolk Superior Court No. 10-0285-BLS2 (Roach, J.), Judge Christine Roach awarded double dam- ages to three plaintiffs (the commercial tenants) who had sued their landlord after complaining for a decade about serious health and safety problems with their leased commercial space. The plaintiffs, all refugees from Vietnam, rented space on the first floor of a build- ing in Boston's Chinatown neighborhood. The three plaintiffs each ran, respec- tively, a hair salon, a seam- stress shop and a Vietnam- ese restaurant on the first floor of the Chinatown build- ing. Directly above them, on the building's second floor, the landlord ran a Chinese restaurant known as Empire Garden. In 1999, after a serious fire damaged the first floor, the landlord chose to rebuild by only providing a 'shell' space, hoping to rent to tenants that would do their own 'build-out' and thereby improve the property at their own expense. The plaintiffs rented the shell space, in- vesting thousands of dollars into the build-out and then opened their establishments only to discover major prob- lems with the leased space, including serious violations of the state sanitary and building codes. Such prob- lems included water leaking from the ceiling that often contained debris and smelled like sewage and the pres- ence of rats, mice and other vermin. The tenants regu- larly complained about the problems with the commer- cial space but their com- plaints went unheeded by the landlord. Given the sub- stantial investment they had made in renovating the space, the tenants were un- able to move and simply had to put up with the poor con- dition in the rented space. In April 2009, after a de- cade of complaining to the landlord about the problems with their commercial space, the ceiling in two of the ten- ants' spaces came crashing down. Along with the col- lapsed ceiling came moldy plaster, various debris and the dead carcasses of rats and mice. The collapse de- stroyed the businesses and property of the tenants, in- cluding a hand-made wed- ding dress that had taken the seamstress 90 days to creatte. After the collapse, the City of Boston shut down the building. With no other recourse, the tenants filed suit against the landlord in Suffolk Supe- rior Court, alleging a num- ber of contract and tort claims as well as a claim under Chapter 93A. After a jury trial, the plaintiffs won a damages award of several hundred thousand dollars. After the jury had rendered its verdict, the judge consid- ered the tenants' 93A claim and doubled the jury's award. The judge found that the landlord's conduct, in ignor- ing, over the course of a decade, the tenants' com- plaints about bad conditions in the property constituted willful and reckless behav- ior that violated Chapter 93A. The judge found that the landlord "thoroughly and con- sistently [demonstrated] ut- ter indifference to the plight of [the] tenants and to the wellbeing of the consuming public" in her order doubling the jury's already substantial award. While clearly justified by the facts of the case, the judge's decision to impose Chapter 93A liability on a commercial landlord is per- haps unprecedented. Chap- ter 93A is known as the consumer protection statute because it is primarily de- signed to protect consumers from the unfair and decep- tive acts or practices of busi- nesses. Although a section of Chapter 93A deals with All the glory that was Rome ..... Pompei CAFF Po Pt TEL. 617-227-1562 FASC 617-74-2-7927 WWW.BOSTONPOSTGAZETTE.COM Bistro Beer * Wine unfair and deceptive prac- tices in a business-to-busi- ness (as opposed to a busi- ness-to-consumer) context, 93A liability in a business- to-business dispute is far more rare and normally requires egregious conduct on the part of a wrongdoer before a 93A claim will have a chance of success. It is important to note that the judge's ruling in this case does not create a com- mon law warranty of habit- ability in for commercial ten- ants. The warranty of habit- ability applies in residential landlord/tenant contexts and very basically, states that a landlord must warranty that a space is safe for human habitation if he wishes to rent it out for that purpose. A violation of the warranty of habitability is automati- cally a violation of Chapter 93A. For example, if a resi- dential tenant had experi- enced the same problems in an apartment as the com- mercial tenants in the Kuong case described above, the tenant would have a clear and powerful legal claim against his or her landlord. However, because the war- ranty of habitability is not recognized for commercial tenants, the plaintiffs in Kuong had claims that were far from certain. This is why the imposit.ion of 93A liabil- ity in Kuong is an important development in commercial landlord/tenant law. It stands for the proposition that a commercial landlord cannot contract his way out of all responsibility for his prop- erty and shift that burden onto his tenants, particu- larly where the tenants are unable to control a funda- mental problem with the property, such as the struc- tural defects in the Kuong case. Because most residential tenants, unlike commercial tenants, are not sophisti- cated business people, it is understandable why the law offers residential tenants greater protections. Never- theless, when justified by the facts, a commercial landlord should be held to .account for his egregious or unconscio- nable behavior. The Kuong case is an important devel- opment in this area of law. Richard J. Vita, Esq., is the principal of the Vita Law Offices, P.C., a Boston law firm focused on securities fraud, insurance and con- sumer class action cases. He may be contacted a[ (617) 426-6566 or by email at 94th Annual Saint Anthony's Feast Schedule Announced Boston's Largest Italian Festival Celebrates its 94th Year with Events for the Family Friday, August 23- Monday, August 26, 2013 Head down to the North End for the 94th annual Feast of Saint Anthony on August 23 -- 26 on Endicott, Thacher and North Margin Streets. Saint Anthony's Feast is one of the oldest and largest neighborhood celebrations in America. This authentic Italian festival is full of events for all ages, for the young and young at heart alike: colorful parades; authentic Italian festival food; strolling singers; the Filippo Berio Culinary Pavil- ion; Italian folk dancing; the Pizzeria Regina Open Air Piazza and children's activities throughout the weekend. St. Anthony and St. Lucy Societies have highlighted special attractions in this year's schedule: CELEBRITY CHEF MARY ANN ESPOSITO Join Celebrity Chef Mary Ann Esposito, creator and host of the PBS series, Ciao Italia, television's longest running cooking show for a day of fun and interactive cooking demonstrations, recipe sharing and cook- book signing. Mary Ann will take you on a culinary jour- ney as she prepares her favorite dishes and shares her stories of growing up in an Italian Amei-ican home, on Saturday August 24th at 2:00 pm at the Filippo Berio Culinary Stage. Following the demonstra- tion Mary Ann will be sign- ing a limited quantity of her newest cookbook: Ciao Italia Family Classics. Mary Ann returns to her family's humble beginnings to bring you a treasure trove of more than 200 time-honored reci- pes. The book will be avail- able for purchase and sign- ing on Saturday afternoon. THE FILIPPO BERIO CULINARY PAVILION Boston's best chefs and the teachers and students of Le Cordon Bleu Culinary School will be showcasing their "Cucina Italiana" live on the Filippo Berio Culinary Stage all weekend. Visit the Filippo Berio Marquee Tent throughout the weekend for delicious recipe suggestions, helpful hints, coupons and special tastings -- choose from Filippo Berio's olive oil varieties, each carefully crafted to inspire your next appetizer, snack, meal or dessert Dip freshly baked breads from Parziale Bakery, one of the North End's oldest and most famous bakeries and taste why for nearly 150 years Filippo Berio Olive Oil has been the essential ingredient when you want to add a little extra to any recipe. NORTH END IDOL CONTEST MIX104.1, presents North End Idol. Contes[ants sing their hearts on the main stage at Saint Antony's Feast for the title of North End Idol and the chance to win great prizes. REGINA PIZZERIA OPEN AIR PIAZZA Since 1926 this authentic award winning Pizzeria has been dishing out pizza the old fashioned way -- with crispy crust, tangy tomato sauce and perfectly aged cheese -- Now you can enjoy the Regina Pizza experience AI Fresco -- pull up a seat and enjoy an imported ice cold Peroni Beer or a glass of Naked Grape wines at the Pizza Regina outdoor seating area open only during Saint Anthony's Feast! SAINT ANTHONY'S GRAND PROCESSION The highlight of the week- end is the 10-hour Grand Procession of Saint Anthony beginning at 12:00 Noon on Sunday. The statue of Saint Anthony is borne on the shoulders of the members and devotees through the winding streets of the North End along with march- ing bands, drum & bugle corps, color guards, floats and hundreds of followers. The procession begins and ends with showers of con- fetti, streamers and balloons. Other participants and events include The New En- gland Revolution Traveling Soccer Camp, live appear- ances with Fast Freddy and Gregg Daniels of MIX104.1 and The Pat Whitley Restau- rant Show. For a complete schedule of events, please visit our new website: Saint Anthony's Feast and the North End have it all. Whether you are out for a night on the town with that special someone or out with the family, Saint Anthony's Feast is a delight for all who attend. This summer, spend some time in the North End of Boston for four full days of free activities at this, the most Authentic of Italian Street Festivals: The Feast of Saint Anthony and Santa Lucia. expressed by ~ and co are " the same as ~ ofThe ~t-Gazette, its r or editor. Photo sub s are by the Post- provaled they are clear, . a 65 for each photo submitted, ::Photos can be ;submitted via ~mail: poslxjaZe If :yoU:~ your phobos =include a self- .