Back to school everyone! There’s no better place to learn than through a perusal of the Miyares and Harrington LLP newsletter.
 
We are pleased to introduce our readers to our newest associate, Ethan Dively. Ethan joins us after a two-year clerkship with Judge Robert Foster of the Land Court. Ethan’s experience with land use issues in particular will add to the firm’s considerable expertise in this area, and he has already shown himself to embody the firm’s commitment to service with good humor.
 
We invite our readers to attend Rebekah Lacey’s presentation at the “Fundamentals of Wetlands Enforcement” workshop. The workshop will be held on October 19 in Devens as part of the Massachusetts Association of Conservation Commission’s Fall Conference. Please register for this important conference.




This month's newsletter features:
  • Lights, Action, Camera! In My Public Building?

  • The SJC Affirms Dover Amendment Protection for Land Used for Skills-Based Therapy

  • Vaping is Extinguished, For Now

  • Rapid Fire Updates – Upcoming Program on Cybersecurity; Deadline to Opt Out of Class Action in National Multidistrict Opiate Litigation; Cannabis Control Commission Approves New Regulations Permitting Delivery and On-Premises Consumption

  • Trivia!

Lights, Action, Camera! In My Public Building?
There is a well-established right, protected by the First Amendment, to film government officials engaged in their duties in a public place. Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011). Pursuant to that right, you may soon have visitors appear at your Town or City Hall, or perhaps your public library, and begin videotaping throughout the space.
 
The videographers call themselves “First Amendment Auditors.” They make and then post their videos on YouTube and seek to gain followers by recording confrontation that will get them views. Sometimes, if an arrest occurs, they will return with other “Auditor” groups with the hope of provoking more confrontations.
 
Courts generally recognize the ability of governments to regulate the time, place, and manner of constitutionally protected activity in traditional public fora and somewhat greater regulatory flexibility for designated or limited public fora. E.g., Roman v. Trustees of Tufts College, 461 Mass. 707, 714 (2012). With respect to time, there is not much doubt that governments can limit the hours during which a public building is open to the public. Nor is there much disagreement that only public places within government buildings can be accessed and videotaped. But it is not always easy to define what constitutes a public place for determining what level of regulation of public activity is permitted. There is not much case law on specific places within public buildings since most cases of videotaping involve police officers effectuating arrests, but a state trial court, in the course of dismissing a criminal charge against a photographer, accepted the hallway of a district court to be a public place. Finally, the right to regulate the manner of protected activity means that you may require that videotaping not interfere with the primary governmental nature and use of the building.
 
So what can you do? Ideally you would want a designated person to greet the Auditors as soon as staff becomes aware that they are on site. The staff person would then guide the videographers to the public areas of the building. Employees can be advised that, if they are uncomfortable being videotaped, they can leave their desks until the videographers move on. You can secure or post non-public areas so that members of the public are lawfully excluded.
 
In general, communities have had better luck dealing with these Auditors if they do so in a non-confrontational manner. You are less likely to have them return if they do not experience a dramatic exchange.

The SJC Affirms Dover Amendment Protection for Land Used for Skills-Based Therapy
The Dover Amendment, M.G.L. c. 40A, §3, second par., exempts land and buildings from certain zoning restrictions when used for “educational purposes.” In McLean Hospital Corporation v. Town of Lincoln, the Supreme Judicial Court found that a proposed facility offering a skills-based curriculum was a specialized form of education, with therapeutic aspects, that is entitled to the Dover Amendment’s zoning exemptions for “educational purposes.”
 
The McLean Hospital Corporation bought land in Lincoln intending to develop a residential life skills program for 15- to 21-year-old males who “exhibit extreme ‘emotional dysregulation.’” McLean secured a determination from the Town’s Building Commissioner that the proposed use was educational and that the project could proceed as of right under the Dover Amendment and the Town’s related Zoning Bylaw. Residents of Lincoln appealed the Commissioner’s determination to the Zoning Board of Appeals, which found that the proposed use was medical or therapeutic rather than educational. The ZBA’s decision was subsequently affirmed by the Land Court, which held that the proposed use was not primarily for educational purposes.
 
In determining whether a proposed use is educational within the meaning of the Dover Amendment, the use must have a bona fide goal that can reasonably be described as educationally significant, and that goal must be the primary or dominant purpose for which the land or structures in question are used. The Supreme Judicial Court emphasized its previously held position that the word “educational,” as used in the Dover Amendment, is a broad and comprehensive term. It found that McLean’s proposed use includes an educationally significant component. Reversing the Land Court, the Supreme Judicial Court declined to adopt as dispositive “a distinction between education with a therapeutic purpose—to teach how to live in society, cope with daily tasks, and interact with others—and education with a traditional academic purpose.” Rather, the Court concluded that the facts that the proposed program may include elements of teaching emotional regulation, that it includes a limited amount of time for individual therapy, and that some skills are taught by clinical professionals do not negate the predominant educational purpose of the program.


Vaping is Extinguished, For Now
On September 24, 2019, Governor Baker declared a public health emergency in the Commonwealth due to the increasing incidence of a lung disease that appears to be associated with the use of e-cigarettes and vaping products. Pursuant to this declaration, the Commissioner of the Massachusetts Department of Public Health (DPH) issued an Order that prohibits the sale and public display of all vaping products in retail establishments. This prohibition includes all flavored and non-flavored vaping products, including products used to vape tetrahydrocannabinol (THC) or any other cannabinoid. It bans the sale and public display of products including e-cigarettes, e-cigars, e-pipes, vape pens, hookah pens, and any other similar device that relies on vaporization or aerosolization, and also bans the sale and display of any component, part or accessory to these products, even if sold separately.
 
The Order took effect immediately and is in force through January 25, 2020, with the possibility of an extension thereafter. Retailers were required to remove all vaping products from display and to stop selling all vaping products and accessories. While the Order is in effect, DPH and any local Board of Health or authorized health agent may take enforcement action to ensure compliance.
 
Local Boards of Health have been asked to issue cease and desist orders to retailers who continue to display or sell vaping products, and to revisit retailers within 24 hours of issuing such an order to ensure compliance. DPH has advised retailers that a failure to comply with the Order may result in fines, seizure of vaping products, or other penalties. The Order provides that it may be enforced as provided in M.G.L. c.111, §31, and by injunction through proceedings initiated in the Superior Court. Such enforcement may include the maximum allowable fine under the statute, with violations calculated on a per item and per transaction basis, punishable cumulatively.
 
As enforcement of the Order begins to take effect, DPH has stated that it will continue to update its guidance as necessary. For those consumers who have relied on vaping products as a means of smoking cessation, the DPH is making cessation resources available on their website makesmokinghistory.org and on their quit line: 1-800-QUITNOW.

Rapid Fire Updates:

Upcoming Program on Cybersecurity
 
The MassCyberCenter and Nichols College are jointly presenting a day-long program on cybersecurity, open only to municipal leaders. Registration is free, but space is limited. The program will take place on October 16, 2019 from 10 a.m. to 3 p.m. on the Nichols College campus in Dudley. Register here.
 
Deadline to Opt Out of Class Action in National Multidistrict Opiate Litigation
 
We reported in the summer newsletter on efforts to designate a nationwide class solely for the purpose of negotiating a settlement of municipal claims against opioid manufacturers and distributers. On September 11, 2019, Judge Polster of the Northern District of Ohio granted class certification to negotiate a settlement with 13 class defendants. To exclude your community from the class action, you must file an Exclusion Request Form by November 22, 2019. Go to the nationwide opioid litigation website for details.
 
Cannabis Control Commission Approves New Regulations Permitting Delivery and On-Premises Consumption
 
On September 24, the Cannabis Control Commission approved new regulations governing both adult and medical use of marijuana. The revised regulations create a licensing scheme for Delivery-Only Retailers and Social Consumption Establishments. The revised regulations do not take effect until they are published in the Massachusetts Register, but a summary of the changes may be found here. Stay tuned for a more in-depth article in the future addressing these significant changes and how they impact your community!


Trivia!
 
Question: Two Massachusetts municipalities have the honor of having their quarried stone used in the construction of iconic government buildings in Washington, D.C. What municipalities are they and, for extra credit, what three buildings is their stone in? (Hint: one stone is pink granite, another is white dolomitic marble with red areas, and the third is white dolomitic marble.)
 
Last issue's question: What are the official state cat and state dog of Massachusetts? For extra credit: In what year was each designated?
 
Answer: The cat is the tabby (1988) and the dog is the Boston terrier (1979).
 
Winner: Once again, Mark Abrahams of the Abrahams Group is the winner, including knowing the answer for extra credit. Truly, it is a wonder he has not competed on Jeopardy! and broken all predecessors’ records. Congratulations, Mark!
 



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