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AIDS Support Group of Cape Cod, Inc. v. Town of Barnstable

Supreme Judicial Court of Massachusetts, Barnstable

June 14, 2017

AIDS SUPPORT GROUP OF CAPE COD, INC.
v.
TOWN OF BARNSTABLE & others.[1]

          Heard: February 14, 2017

         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.

          Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

          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 the Superior Court, seeking injunctive relief as well as a declaration that its nonsale needle "access" program is not prohibited by either statute. After enjoining the town preliminarily from enforcing its cease and desist order, the judge reported the question without decision to the Appeals Court, and we allowed ASGCC's application for direct appellate review. We conclude that neither statute prohibits the subject program and, accordingly, that the town's cease and desist order cannot stand.[3]

          1. Background and prior proceedings.[4]

         ASGCC is a nonprofit organization that operates programs in Hyannis, Provincetown, and Falmouth for those suffering from drug addiction and its attendant illnesses. At its site in Hyannis, ASGCC distributes free hypodermic needles and syringes as part of a comprehensive program of services for people who use intravenous drugs. Because sharing needles is a leading cause of the spread of blood-borne diseases, notably HIV and hepatitis C, ASGCC seeks to ensure that its clients use a clean needle every time they inject opiates or other drugs. ASGCC therefore conducts an initial assessment of each person who requests needles or other services and provides only as many needles as staff believe will be necessary so that the client will be able to use a clean needle for each injection.[5] ASGCC provides a collection receptacle for the return of used needles at its facility, encourages clients to return needles, and gives each client an individual "sharps container" for storing used needles before they are returned, but does not require a return of the same number of needles distributed in order to provide additional needles.[6] It also offers additional services for users of intravenous drugs, such as medical case management, peer support, housing, nutritional programs, testing for diseases such as HIV, and risk reduction strategies. ASGCC does not sell hypodermic needles, is not operating a program implemented by DPH, and has not sought approval from the town to operate its programs.

         In 2015, the town discovered improperly discarded hypodermic needles in public places and traced the origin of at least some of these needles to ASGCC. Soon thereafter, the town ordered[7] ASGCC to cease distributing hypodermic needles at its Hyannis site, citing violations of G. L. c. 94, § 27, and G. L. c. 111, § 215. The order indicated in this regard that, in failing to obtain approval of its program from the town council, ASGCC had violated G. L. c. 111, § 215, and that its program also ...


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