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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.


     1
       Board of health of Barnstable and director of public
health of Barnstable.
                                                                    2



     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 Barnstable2 (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

     2
       For convenience, we refer to the defendants the town of
Barnstable, its board of health, and its director of public
health collectively as the "town."
                                                                   3


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


     3
       We acknowledge the amicus brief submitted by Massachusetts
Infectious Diseases Society; Massachusetts Public Health
Association; Association of Behavioral Health; Harvard Pilgrim
Health Care; Blue Cross and Blue Shield of Massachusetts;
Baystate Health, Inc.; National Alliance of State and
Territorial AIDS Directors; Partners HealthCare System, Inc.;
UMass Memorial Health Care, Inc.; Greater Lawrence Family Health
Center; Lynn Community Health Center; Outer Cape Health
Services, Inc.; Duffy Health Center; Fenway Health; Manet
Community Health Center, Inc.; Massachusetts Association of
Alcoholism and Drug Abuse Counselors; Massachusetts Association
of Community Health Workers; Tapestry Health Systems, Inc.;
Victory Programs; Multicultural AIDS Coalition; AIDS Project
Worcester, Inc.; MassEquality.org, the Campaign For Equality;
New England AIDS Education and Training Center; Massachusetts
                                                                   4


     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



Chapter of The National Association of Social Workers; The
Dimock Center; Justice Resource Institute; John Snow, Inc.;
North Shore Health Project; Community Research Initiative of New
England; and Center For Human Development, Inc.
     4
       The facts are taken from the agreed-upon statement of
facts within the parties' joint motion to report the case the
Appeals Court, and we reference additional, uncontroverted facts
where necessary to supplement the discussion.
     5
       In his decision allowing the motion for a preliminary
injunction filed by AIDS Support Group of Cape Cod, Inc.
(ASGCC), the Superior Court judge noted ASGCC's report that, in
its then most recent fiscal year, it had issued 112,604 syringes
and received back 115,209 syringes, "for a rate of return of 102
[per cent]." He noted also:
                                                                    5


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


          "Both sides have responded to [the risk of improperly
     discarded needles]. The [t]own has installed sharps
     receptacles at four of its five fire stations. . . .
     ASGCC, in addition to distributing individual sharps
     containers and maintaining its own disposal kiosk, has also
     conducted sweeps of its own neighborhood to locate and
     secure discarded materials. Both sides have also shown a
     willingness to expand these efforts and to coordinate their
     resources in doing so (e.g.[,] installing secure sharps
     receptacles in public comfort facilities, increasing public
     awareness and education). This willingness, to the court's
     view, shows the most promise, in both focus and scope, to
     address the [t]own's foremost concern."
     6
       Consistent with ASGCC's own "harm reduction" goal of
clients using a clean needle every time they inject, the
Department of Public Health (DPH) also does not require programs
contracted under its auspices, pursuant to G. L. c. 111, § 215,
to insist on a one-to-one exchange of needles in order for a
client to participate in the program.
                                                                    6


hypodermic needles in public places and traced the origin of at

least some of these needles to ASGCC.   Soon thereafter, the town

ordered7 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 was not in compliance with G. L. c. 94, § 27, which permits

only licensed pharmacists or wholesale druggists to sell

hypodermic needles.

     As noted, on November 10, 2015, ASGCC commenced an action

in the Superior Court seeking a declaration that the town's

order was in contravention of Massachusetts law because nothing

in the language of G. L. c. 94C, § 27, or G. L. c. 111, § 215,

prohibits private individuals or organizations from distributing

free hypodermic needles.   ASGCC also sought equitable relief to

preliminarily and permanently enjoin enforcement of the order.

     After an evidentiary hearing, a Superior Court judge

preliminarily enjoined the town from enforcing the cease and

desist order against ASGCC or otherwise interfering with ASGCC's

     7
       The town of Barnstable (town) issued two orders,
described, collectively, as the "order." The Barnstable police
department hand-delivered the first order on September 22, 2015,
which stated that it was a "warning." The Barnstable director
of public health mailed ASGCC a letter and a second order on
September 23, 2015.
                                                                    7


distribution of hypodermic needles.    The parties thereafter

jointly requested that the case be reported for determination by

the Appeals Court, pursuant to Mass. R. Civ. P. 64 (a), as

amended, 423 Mass. 1403 (1996).    The judge allowed that motion,

and we allowed ASGCC's application for direct appellate review.

    2.     Discussion.   The question before us is whether G. L.

c. 94C, § 27, or G. L. c. 111, § 215, prohibits private

individuals or organizations from distributing free hypodermic

needles.   ASGCC maintains that we need look no further than the

plain language of the statutes, given that neither contains

language relevant to ASGCC's program or services.    The town

argues that, notwithstanding the plain statutory language, the

legislative history indicates that the Legislature intended

G. L. c. 111, § 215, to provide the sole means by which an

organization may operate free needle distribution programs

outside the requirements of G. L. c. 94C, § 27.     According to

the town, were we to conclude otherwise, only DPH-implemented

exchange programs would require local approval, while similar

private programs would be unregulated, a result the town

considers absurd.   We disagree.   The statutory language is clear

that programs such as ASGCC's are not prohibited, the

legislative history does not evidence an intent to the contrary,

and interpreting the two statutes to allow private entities to

operate nonsale needle exchange programs does not give rise to
                                                                     8


an absurd result.

    a.    Statutory language.   Our primary goal in interpreting a

statute is to effectuate the intent of the Legislature, and "the

statutory language is the principal source of insight into

legislative purpose."    Bronstein v. Prudential Ins. Co., 390

Mass. 701, 704 (1984).    Therefore, "[w]here the language of a

statute is clear and unambiguous, it is conclusive as to

legislative intent."     Worcester v. College Hill Props., LLC, 465

Mass. 134, 138 (2013), quoting Martha's Vineyard Land Bank

Comm'n v. Assessors of W. Tisbury, 62 Mass. App. Ct. 25, 27–28

(2004).   Accordingly, turning first to the plain language of the

statutes, it is clear that, by their words alone, neither G. L.

c. 94C, § 27, nor G. L. c. 111, § 215, proscribes ASGCC's

activities.

    General Laws c. 94C, § 27, regulates only the sale of

hypodermic needles and syringes.    It provides:

         "Hypodermic syringes or hypodermic needles for the
    administration of controlled substances by injection may be
    sold in the commonwealth, but only to persons who have
    attained the age of [eighteen] years and only by a
    pharmacist or wholesale druggist licensed under the
    provisions of [G. L. c. 112], a manufacturer of or dealer
    in surgical supplies or a manufacturer of or dealer in
    embalming supplies. When selling hypodermic syringes or
    hypodermic needles without a prescription, a pharmacist or
    wholesale druggist must require proof of identification
    that validates the individual's age."

At the time of the cease and desist orders in 2015, G. L.

c. 111, § 215, stated, in relevant part:
                                                                   9


          "The department of public health is hereby authorized
     to promulgate rules and regulations for the implementation
     of not more than ten pilot programs for the exchange of
     needles in cities and towns within the commonwealth upon
     nomination by the department. Local approval shall be
     obtained prior to implementation of each pilot program in
     any city or town."8

In sum, the plain language of the statutes simply does not

proscribe free distribution of hypodermic needles by a private

individual or organization, such as ASGCC, that does not operate

a program implemented by DPH.    See Bordenkircher v. Hayes, 434

U.S. 357, 363 (1978).

     b.   Legislative history.   The town asserts, however, that

the plain language does not, in this case, accurately reflect

the intent of the Legislature, and that other canons of

statutory construction must be used in order to avoid an absurd

result.   See Sullivan v. Brookline, 435 Mass. 353, 360 (2001) ("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").    The legislative history

     8
       General Laws c. 111, § 215, was amended in 2016, but those
amendments, while removing any restriction on the number of DPH
programs, did not expand the provision to reference anything
other than DPH programs. The statute currently provides:

          "The department of public health may implement needle
     exchange programs for the exchange of needles in cities and
     towns. Prior to implementation of a needle exchange
     program, approval shall be obtained from the board of
     health in the hosting city or town."
                                                                   10


of G. L. 94C, § 27, and G. L. c. 111, § 215, the town maintains,

indicates a legislative intent to restrict access to hypodermic

needles to one of two methods:   sale by pharmacists or

distribution by a DPH-sponsored needle exchange program.   Where

"the language of the statute is plain and unambiguous, . . .

legislative history is not ordinarily a proper source of

construction."   Hoffman v. Howmedica, Inc., 373 Mass. 32, 37

(1977).   Nonetheless, as the town argues, we also must "construe

statutes that relate to the same subject matter as a harmonious

whole and avoid absurd results."   Canton v. Commissioner of the

Mass. Highway Dep't, 455 Mass. 783, 791 (2010).   Therefore, we

consider the town's assertion that the successive legislative

decisions to regulate the sale of hypodermic needles, and also

to regulate free distribution through DPH programs, indicate a

clear intent to proscribe other types of free distribution, and

that allowing a private program like ASGCC's to exist, outside

the ambit of DPH-implemented programs, would be absurd.

    The town asserts that, by amending G. L. c. 94C, § 27,

in 2006, the Legislature "anointed" pharmacists as the

"gatekeepers" of "sale and distribution" of hypodermic needles.

The town contends further that, by enacting these amendments to

G. L. c. 94C, § 27, while retaining G. L. c. 111, § 215, the

Legislature intended the provisions of G. L. c. 111, § 215, to

regulate any organization that wished to distribute free
                                                                      11


hypodermic needles, outside the regulations on sales set forth

in G. L. c. 94C, § 27.       In addition, the town points to prior,

unsuccessful efforts to amend G. L. c. 94C, § 27, before

implementation of the 2006 act, subsequent unsuccessful efforts

to amend G. L. c. 111, § 215, and the 2016 expansion of G. L.

c. 111, § 215, as evidence of legislative intent to restrict

nonsale possession of hypodermic needles in enacting the 2006

act.       In particular, in the town's view, the expansion of G. L.

c. 111, § 215, in 2016, confirms that, in 2006, the Legislature

did not authorize the establishment of private programs that

distribute free hypodermic needles but, rather, limited needle

exchange programs to those implemented by DPH.9

       The legislative history of G. L. c. 94C, § 27, does not

support the town's contention that that statute, read in


       9
       In support of this argument, the town relies extensively
on a Superior Court judge's interpretation of G. L. c. 111,
§ 215, in Holyoke City Council vs. Holyoke, Mass. Super. Ct.,
No. 12-0837 (Hampden County Mar. 14, 2016), which the town
argues represents the proper analysis of the interplay between
the two statutes that regulate hypodermic needles. The issue
before the Superior Court in that case, however, was whether a
town council or town board of health was the proper "local
authority" to approve DPH-sponsored needle exchange programs, a
question quite distinct from the one before us. The judge
himself indicated as much in a decision on a motion for
reconsideration, stating that he was not confronted with the
question whether G. L. c. 111, § 215, is applicable to private
entities. Since the decision in that case, the Legislature has
amended G. L. c. 111, § 215, to clarify that a local board of
health is now the approving authority for DPH programs. See
St. 2016, c. 133, § 65.
                                                                  12


conjunction with the decision not to repeal G. L. c. 111, § 215,

regulates nonsale distribution.   Prior to 2006, G. L. c. 94C,

§ 27, provided criminal penalties for the possession, delivery,

sale, or exchange of hypodermic needles without a prescription.

See G. L. c. 94C, § 27 (a), as amended through St. 1993, c. 224,

§ 2 ("No person, not being a [licensed professional] shall have

in his possession a hypodermic syringe [or] hypodermic

needle. . ." [emphasis added]); G. L. c. 94C, § 27 (b), as

amended through St. 1993, c. 224, § 2 ("No such syringe, needle

or instrument shall be delivered or sold to, or exchanged with,

any person except a [licensed professional]" [emphases added]).

In enacting "An Act relative to HIV and Hepatitis C prevention,"

St. 2006, c. 172, §§ 2, 3, the Legislature removed from G. L.

c. 94C, § 27, all references to possession, delivery, and

exchange, choosing to retain only the word "sold."   See G. L.

c. 94C, § 27, as appearing in St. 2006, c. 172, § 3.     Given the

elimination of all references to possession, delivery, and

exchange, we cannot infer, as the town suggests, that the

Legislature intended the current version of G. L. c. 94C, § 27,

to continue to regulate possession, delivery, and exchange.

“Where the Legislature has deleted . . . language, apparently

purposefully, the current version of the statute cannot be

interpreted to include the rejected requirement.   Reading in

language that the Legislature chose to remove . . . violates
                                                                 13


basic principles of statutory construction and impermissibly

interferes with the legislative function."   Commonwealth v.

Porges, 460 Mass. 525, 530 (2011), quoting Kenniston v.

Department of Youth Servs., 453 Mass. 179, 185 (2009).10

     The conclusion that G. L. c. 94C, § 27, applies only to the

sale of hypodermic needles is required also by the statutory and

common-law definitions of "sale" and "distribution."   General

Laws c. 94C, § 1, defines the word "[d]istribute" as "to deliver

other than by administering or dispensing a controlled

substance."   While "sale" has no statutory definition, it is

commonly understood as meaning "[t]he transfer of property or

title for a price."   Commonwealth v. Keefner, 461 Mass. 507, 513

n.3 (2012), quoting Black's Law Dictionary 1454 (9th ed. 2009).

"Sell" is defined as "[t]o transfer (property) by sale."

Black's Law Dictionary (10th ed. 2014).   Sale thus is legally


     10
       The town points to language in three prior proposed
amendments to G. L. c. 94C, § 27, over the course of ten years,
that would have exempted from criminal penalties the
distribution of hypodermic needles by any program, whether
private or public. The town maintains that these efforts
demonstrate the Legislature's consideration and rejection of the
concept of allowing private organizations to distribute
hypodermic needles. See 1995 Senate Doc. No. 554; 1997 Senate
Doc. No. 517; 1999 Senate Doc. No. 537. We do not consider
proposed legislation that was never enacted as being indicative
of legislative intent; rather, we look to the statutory language
that the Legislature in fact adopted. See, e.g., Duracraft
Corp. v. Holmes Prods. Corp., 427 Mass. 156, 162-164 (1998). In
any event, certain of the proposed exemptions were included in
G. L. c. 94C, § 27 (f) (now repealed).
                                                                  14


distinct from distribution.   See Keefner, supra ("[T]he term

'sell' or 'sale' is narrower than the term 'distribution' and we

agree with the judge that they are not synonymous").   The town's

contention that G. L. c. 94C, § 27, codified the role of

pharmacists as gatekeepers for both "sale and distribution" of

hypodermic needles is accordingly unavailing.

    The town also claims that cross references contained within

prior versions of G. L. c. 94C, §§ 27 and 27A, and G. L. c. 111,

§ 215, provide evidence of legislative intent that G. L. c. 111,

§ 215, continues to apply to nonsale programs, such as the ASGCC

program.    This contention is unpersuasive, for the reason, if no

other, than that the 2006 act eliminated the very cross

references upon which the town relies.

    In previous versions of the statutes, portions of the

language of G. L. c. 94C, § 27, and G. L. c. 111, § 215, did

reference each other.    Prior to 2006, G. L. c. 94C, § 27,

included subsection (f), which explicitly exempted from criminal

liability the possession of needles without a prescription "as

part of a pilot program approved by [DPH] in accordance with

[G. L. c. 111, § 215]."    The 2006 act repealed G. L. c. 94C,

§ 27 (f).   See St. 2006, c. 172, § 15.   With respect to

currently effective legislation, the 2006 act added a new

section, G. L. c. 94C, § 27A, which requires DPH, along with the

Department of Environmental Protection, to design and implement
                                                                   15


programs for the collection of used hypodermic needles; the

section does not reference programs implemented by DPH.11

     In short, following the extensive amendments of the 2006

act, decriminalizing the possession of hypodermic needles

without a prescription, G. L. c. 94C, § 27, no longer contains

any reference to programs implemented by DPH under the authority

granted to it in G. L. c. 111, § 215.     Although, as the town

argues, the statutes "relate to the same subject matter,"

Canton, 455 Mass. at 791, we do not read words into a statute

that the Legislature saw fit to remove.    See Porges, 460 Mass.

at 530.   The removal from G. L. c. 94C, § 27, of all statutory

references to G. L. c. 111, § 215, is consistent with the

legislative purpose of decriminalization; once criminal

penalties had been eliminated, the exception to criminal

liability for possession of needles acquired through a DPH

program was no longer needed.   Nothing in these cohesive changes

reveals a legislative intent that G. L. c. 111, § 215, would

restrict possession of needles acquired by any means other than

sales pursuant to G. L. c. 94C, § 27.     Indeed, the proponents of

the 2006 act stated, in no uncertain terms, that "[w]ithout

     11
       The 2006 act also contained a single reference to
programs established under G. L. c. 111, § 215, in a section
that was not codified, which required DPH to "perform a
comprehensive study and review of the existing needle exchange
programs established pursuant to [G. L. c. 111, § 215]." St.
2006, c. 172, § 15.
                                                                  16


providing the opportunity for a clean needle it's like spreading

disease and condoning it."   State House News Service (Senate

Sess.), June 1, 2006 (statement by Sen. Steven Tolman).   See

State House News Service (Senate Sess.), June 1, 2006 (statement

by Sen. Robert O'Leary) (any policy based on restricting access

to needles is "fundamentally flawed").

     In an effort to buttress its contention that the

Legislature intended to retain nonsale restrictions, the town

calls attention to two unsuccessful efforts to amend G. L.

c. 111, § 215, subsequent to enactment of the 2006 act,12 and

also to the later expansion of G. L. c. 111, § 215, in 2016.

None of these efforts sheds any light on the Legislature's

intent in 2006, when it enacted the now controlling G. L.

c. 94C, § 27, "An Act relative to HIV and Hepatitis C

prevention."   See Commonwealth v. Chamberlin, 473 Mass. 653,

660-662 (2016), quoting Massachusetts Comm'n Against

Discrimination v. Liberty Mut. Ins. Co., 371 Mass. 186, 194

(1976) ("the views of a subsequent [Legislature] form a

hazardous basis for inferring the intent of an earlier one");

Cook v. Patient Edu, LLC, 465 Mass. 548, 555 n.14 (2013) ("We do

not draw conclusions concerning the intent of the Legislature

based on the failure to enact a subsequent amendment").   Nor

     12
       See Proposed Amendment No. 77 to 2016 House Doc. No.
3944; 2016 Senate Doc. No. 2305, § 87.
                                                                     17


does the 2016 legislation amending G. L. c. 111, § 215, advance

the town's argument in this regard.     That legislation removed

restrictions on the number of programs that DPH may implement,

changed the status of such programs from "pilot" to permanent,

and clarified that the local approval needed for such programs

was to come from boards of health.    The amendment is silent, as

before, as to any restrictions on private providers of the same

service.    To the extent that this 2016 legislation in any way

illuminates the Legislature's intent ten years before, it

suggests an ongoing legislative effort to expand, rather than

limit, nonsale access to hypodermic needles.

    Finally, we do well to note that the town's position stands

in tension with the basic and fundamental legal principle that

an activity not prohibited or restricted by law is lawful.     See

1 W. Blackstone, Commentaries *45.     "To punish a person because

he has done what the law plainly allows him to do is a due

process violation of the most basic sort . . . ."

Bordenkircher, 434 U.S. at 363.     Concluding that ASGCC's

services are unlawful under either G. L. c. 94C, § 27, or

G. L. c. 111, § 215, would be tantamount to doing just that.

    3.     Conclusion.   The matter is remanded to the Superior

Court for entry of a declaration that G. L. c. 94C, § 27, and

G L. c. 111, § 215, do not prohibit ASGCC from engaging in free

distribution of hypodermic needles, and an injunction
                                                                 18


permanently enjoining enforcement of the town's order to cease

and desist.

                                   So ordered.
