Supreme Judicial Court of Massachusetts, Barnstable
AIDS SUPPORT GROUP OF CAPE COD, INC.
TOWN OF BARNSTABLE & others.
Heard: February 14, 2017
action commenced in the Superior Court Department on November
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.
Supreme Judicial Court granted an application for direct
Bennett H. Klein (Andrew Musgrave also present) for the
Charles S. McLaughlin, Jr., Assistant Town Attorney (Ruth J.
Weil, Town Attorney, also present) for the defendants.
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,
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) .
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 (town) ordered the cessation of the
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.
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.
Background and prior proceedings.
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. 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. 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.
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 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