AIDS Support Group of Cape Cod, Inc. v. Town of Barnstable, et al. (Lawyers Weekly No. 10-104-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12224 AIDS SUPPORT GROUP OF CAPE COD, INC. vs. TOWN OF BARNSTABLE & others.[1] Barnstable. February 14, 2017. – June 14, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Hypodermic Needle. Civil action commenced in the Superior Court Department on November 10, 2015. A motion for a preliminary injunction was heard by Raymond P. Veary, Jr., J., and the case was reported to the Appeals Court by Robert C. Rufo, J. The Supreme Judicial Court granted an application for direct appellate review. Bennett H. Klein (Andrew Musgrave also present) for the plaintiff. Charles S. McLaughlin, Jr., Assistant Town Attorney (Ruth J. Weil, Town Attorney, also present) for the defendants. Andrew H. DeVoogd, Kate F. Stewart, & Tiffany M. Knapp, for Massachusetts Infectious Diseases Society & others, amici curiae, submitted a brief. LENK, J. Prior to 2006, G. L. c. 94C, § 27, provided criminal penalties for the possession, delivery, sale, or exchange of hypodermic needles without a prescription. In 2006, the Legislature amended the statute to regulate only the sale of such needles, thereby decriminalizing, inter alia, the possession of hypodermic needles. See St. 2006, c. 172, §§ 2, 3 (2006 act). Since 2009, AIDS Support Group of Cape Cod, Inc. (ASGCC), has been operating a free hypodermic needle “access” program in Hyannis, a village in Barnstable. It provides clean syringes without charge to those who use intravenous drugs, in order to prevent the spread of diseases such as human immunodeficiency virus (HIV) and hepatitis C. Claiming that ASGCC, which did not first seek local approval of its program, is in violation of two State statutes, G. L. c. 94C, § 27, and G. L. c. 111, § 215, the town of Barnstable[2] (town) ordered the cessation of the program. General Laws c. 94C, § 27, in essence prohibits the sale of hypodermic needles to those under eighteen, while G. L. c. 111, § 215, authorizes the Department of Public Health (DPH) to operate nonsale needle exchange programs with local approval. The town maintains that the statutes provide the only two legal methods for the sale and distribution of hypodermic needles in Massachusetts: sale by pharmacists and distribution by a locally approved DPH program. ASGCC contends that neither statute regulates the private nonsale distribution of hypodermic needles. In response to the town’s cease and desist order, ASGCC brought an action in […]