In accordance with Chapter 40 Section 32 of the General Laws of the Commonwealth of Massachusetts, this bulletin contains the General By-law Amendment adopted at the Special Town Meeting convened on June 12, 2021 under Articles 8, 9, 10 and 11 approved by Assistant Attorney General Kelli E. Gunagan on September 27, 2021. An extension was agreed upon for Art 17, decision to be issued on or before November 25, 2021

Claims of invalidity by reason of any defect in the procedure of adoption of amendment of this by-law only must be made within ninety (90) days of the date of posting.

The Attorney General’s complete letter may be viewed at www.wareham.ma.us/town-clerk, News and Announcements.

Michele Bissonnette, Town Clerk
Town of Wareham
54 Marion Road
Wareham, MA 02571

Re: Wareham Special Town Meeting
of June 12, 2021 -- Case # 10230
Warrant Articles # 8, 9, and 17 (Zoning)
Warrant Articles # 10 and 11 (General)

Dear Ms. Bissonnette:
Articles 8, 9, 10 and 11 - We approve Articles 8, 9, 10, and 11 from the Wareham June 12, 2021 Special Town Meeting. Our comments on Article 9 are provided below.

Article 17 - The Attorney General’s deadline for a decision on Article 17 is extended for an additional sixty days under the authority conferred by G.L. c. 40, § 32, as amended by Chapter 299 of the Acts of 2000. The agreement with Town Counsel for the sixty-day extension is attached hereto. We will issue our decision on Article 17 on or before November 25, 2021.

Article 9 - Under Article 9 the Town voted to amend its zoning by-laws by deleting the Town’s existing Floodplain Overlay District by-law and inserting a new Section 420, “Floodplain Overlay District.” Article 9 is part of a federal requirement for communities that choose to participate in the National Flood Insurance Program (NFIP) and is adopted to ensure that the Town’s zoning by-laws contain the necessary and proper language for NFIP compliance. The text of the new Section 420 appears to follow the “Massachusetts 2020 Model Floodplain Bylaw” provided by the Massachusetts Department of Conservation and Recreation Flood Hazard Management Program. (DCR Flood Hazard Management Program) See https://www.mass.gov/guides/floodplain-management#-2020-massachusetts-mo.

The DCR Flood Hazard Management Program is the state coordinating office for the NFIP and, according to their website, they have provided the Model Floodplain Bylaw to Massachusetts communities “to assure that their local bylaws…contain the necessary and proper language for compliance with the” NFIP. For this reason, we approve Article 9. The Town should consult with Town Counsel and the DCR Flood Hazard Management Program with any questions regarding the application of the new Section 420.

Note: Pursuant to G.L. c. 40, § 32, neither general nor zoning by-laws take effect unless the Town has first satisfied the posting/publishing requirements of that statute. Once this statutory duty is fulfilled, (1) general by-laws and amendments take effect on the date these posting and publishing requirements are satisfied unless a later effective date is prescribed in the by-law, and (2) zoning by-laws and amendments are deemed to have taken effect from the date they were approved by the Town Meeting, unless a later effective date is prescribed in the by-law.

Very truly yours,

MAURA HEALEY
ATTORNEY GENERAL
By: Kelli E. Gunagan
Assistant Attorney General
Municipal Law Unit
10 Mechanic Street, Suite 301
Worcester, MA 01608
(508) 792-7600

TOWN OF WAREHAM
ZONING BOARD OF APPEALS
54 Marion Road
Wareham, MA 02571

NOTICE OF PUBLIC HEARING

The Zoning Board of Appeals will hold a public hearing on October 27, 2021 at 6:30 p.m. in Room 320 of the Wareham Multi Service Center, 48 Marion Road, Wareham, MA 02571 to consider Petition #57-21 for a Special Permit/Site Plan Review from the requirements of Article 3, Table 320 and Article 15, Section 1520 of the Wareham Zoning By-Laws, to DB Delivery MA, LLC dba Doobie c/o Philip H. Macchi, Esq. of 1256 Washington Street, Norwood, MA 02062 seeking to create a new marijuana processing facility, located at 10 Little Brook Road, Wareham, MA (Assessors Map 89, Lot 2/E) in the Industrial zoning district.

Nazih Elkallassi, Chairman

First Notice: October 7, 2021
Second Notice: October 14, 2021

TOWN OF WAREHAM
ZONING BOARD OF APPEALS
54 Marion Road
Wareham, MA 02571

NOTICE OF PUBLIC HEARING

The Zoning Board of Appeals will hold a public hearing on October 27, 2021 at 6:30 p.m. in Room 320 of the Wareham Multi Service Center, 48 Marion Road, Wareham, MA 02571 to consider Petition #56-21 for a Special Permit/Site Plan Review from the requirements of Article 3, Table 320 and Article 15, Section 1520 of the Wareham Zoning By-Laws, to DB Delivery MA, LLC dba Doobie c/o Philip H. Macchi, Esq. of 1256 Washington Street, Norwood, MA 02062 seeking to create a new marijuana processing facility, located at 4 Recovery Road, Wareham, MA (Assessors Map 108, Lot 1006/B) in the Industrial zoning district.

Nazih Elkallassi, Chairman

First Notice: October 7, 2021
Second Notice: October 14, 2021

TOWN OF WAREHAM
ZONING BOARD OF APPEALS
54 Marion Road
Wareham, MA 02571

NOTICE OF PUBLIC HEARING

The Zoning Board of Appeals will hold a public hearing on October 27, at 6:30 p.m. in Room 320 of the Wareham Multi Service Center, 48 Marion Road, Wareham, MA 02571 to consider Petition # 58-21 for Variances from the requirements of Article 6, Table 628, and Article 6, Table 622 under the Wareham Zoning By-Laws, to Robert and Debra Reed of 26 Highland Road, Wareham, MA proposing to raze and reconstruct the existing dwelling located at, 26 Highland Road, Wareham, MA (Assessors Map 61, Lot 1142) in the WV-2 zoning district.

Nazih Elkallassi, Chairman

First Notice: October 7, 2021
Second Notice: October 14, 2021

TOWN OF WAREHAM
PLANNING AND COMMUNITY DEVELOPMENT
54 Marion Road
Wareham, MA 02571-1428

NOTICE OF PUBLIC HEARING
November 8, 2021
6:00 PM
Room 320
Multi-Service Center
48 Marion Road
Wareham, MA 02571

RE: Renaming Job’s Island Road to Fire Island Road

To Landowners and Residents:

The right of way named Job’s Island Road is proposed to be changed in name to Fire Island Road.

Based on the plans on file, “Job’s Island Road” is a privately-held right-of-way. The right-of-way provides access across and to parcels identified as Map 49 Lots 1012/P, 1002, 1000, and 1001.

A Public Hearing on the proposed road name change will be held at the above time and place by the Planning Board to elicit testimony and facts.

The file and documents may be reviewed at the Planning and Community Development Office, Town Hall, 54 Marion Road.

Kenneth J. Buckland, Director
Published October 7 and 14

TOWN OF WAREHAM
ZONING BOARD OF APPEALS
54 Marion Road
Wareham, MA 02571

NOTICE OF PUBLIC HEARING

The Zoning Board of Appeals will hold a public hearing on October 27, at 6:30 p.m. in Room 320 of the Wareham Multi Service Center, 48 Marion Road, Wareham, MA 02571 to consider Petition #59-21 for a Special Permit from the requirements of Article 3, Section 330 under the Wareham Zoning By-Laws, to Ann Rams of 41 Wareham Lake Shores Drive, Wareham, MA seeking to operate a home office at the subject property located at, 41 Wareham Lake Shores Drive, Wareham, MA (Assessors Map 120, Lot 95) in the R-130 zoning district.

Nazih Elkallassi, Chairman

First Notice: October 7, 2021
Second Notice: October 14, 2021

TOWN OF WAREHAM
CONSERVATION COMMISSION
MEMORIAL TOWN HALL
54 MARION ROAD
Wareham, Massachusetts 02571
NOTICE OF PUBLIC HEARING

Pursuant to the provisions of the Massachusetts Wetland Protection Act, General Laws Chapter 131, Section 40, and the Wareham Wetland Protective By-Law, Division VI, a public hearing will be held in Room 320, Wareham Multi-Service Center, 48 Marion Road, Wareham, MA, or via Zoom if in person meetings are deemed to be inappropriate due to Covid-19 on:

Wednesday, October 20, 2021 at 6:30 P.M.
on the Notice of Intent for:

Joyce Wall
c/o J.C. Engineering, Inc.
2854 Cranberry Highway
E. Wareham, MA 02538

To demolish an existing dwelling and to construct a new dwelling, paved driveway, and utilities located on Assessors Map 1, Lot 374, 14 North Boulevard, Wareham, MA

WAREHAM CONSERVATION COMMISSION
Sandra Slavin, Chairman

TOWN OF WAREHAM
CONSERVATION COMMISSION
MEMORIAL TOWN HALL
54 MARION ROAD
Wareham, Massachusetts 02571
NOTICE OF PUBLIC HEARING

Pursuant to the provisions of the Massachusetts Wetland Protection Act, General Laws Chapter 131, Section 40, and the Wareham Wetland Protective By-Law, Division VI, a public hearing will be held in Room 320, Wareham Multi-Service Center, 48 Marion Road, Wareham, MA, or via Zoom if in person meetings are deemed to be inappropriate due to Covid-19 on:

Wednesday, October 20, 2021 at 6:30 P.M.

on the Notice of Intent for:

Frank Tramontozzi
c/o Atlantic Coast Engineering
88 Front Street, Suite 22B
Situate, MA 02066

To construct an extension to an existing pier located on Assessors Map 3, Lots 253/A & 252, 31 & 33 Prospect Street, Wareham, MA

WAREHAM CONSERVATION COMMISSION
Sandra Slavin, Chairman

TOWN OF WAREHAM
CONSERVATION COMMISSION
MEMORIAL TOWN HALL
54 MARION ROAD
Wareham, Massachusetts 02571
NOTICE OF PUBLIC HEARING

Pursuant to the provisions of the Massachusetts Wetland Protection Act, General Laws Chapter 131, Section 40, and the Wareham Wetland Protective By-Law, Division VI, a public hearing will be held in Room 320, Wareham Multi-Service Center, 48 Marion Road, Wareham, MA, or via Zoom if in person meetings are deemed to be inappropriate due to Covid-19, on:

Wednesday, October 20, 2021 at 6:30 P.M.

on the Request for Determination of Applicability for:

Stanley Crowell
22 Judson Street
Wareham, MA 02571

To construct additions located on Assessors Map 50E4, Lot 538, 22 Judson Street, Wareham, MA

WAREHAM CONSERVATION COMMISSION
Sandra Slavin, Chairman

TOWN OF WAREHAM
CONSERVATION COMMISSION
MEMORIAL TOWN HALL
54 MARION ROAD
Wareham, Massachusetts 02571
NOTICE OF PUBLIC HEARING

Pursuant to the provisions of the Massachusetts Wetland Protection Act, General Laws Chapter 131, Section 40, and the Wareham Wetland Protective By-Law, Division VI, a public hearing will be held in Room 320, Wareham Multi-Service Center, 48 Marion Road, Wareham, MA, or via Zoom if in person meetings are deemed to be inappropriate due to Covid-19 on:

Wednesday, October 20, 2021 at 6:30 P.M.

on the Notice of Intent for:

Jill Wright
c/o G.A.F. Engineering, Inc.
266 Main Street
Wareham, MA 02571

To construct stone walls and a parking area located on Assessors Map 35, Lot 21, 55 Edgewater Drive, Wareham, MA

WAREHAM CONSERVATION COMMISSION
Sandra Slavin, Chairman

In accordance with Chapter 40 Section 32 of the General Laws of the Commonwealth of Massachusetts, this bulletin contains the General By-law Amendment adopted at the Annual Town Meeting convened on June 12, 2021 under Articles 12, 13, 15 and 24 approved by Assistant Attorney General Kelli E. Gunagan on September 27, 202. An extension was agreed upon for Art 26, decision to be issued on or before November 25, 2021

Claims of invalidity by reason of any defect in the procedure of adoption of amendment of this by-law only must be made within ninety (90) days of the date of posting.

The Attorney General’s complete letter may be viewed at www.wareham.ma.us/town-clerk, News and Announcements.

Michele Bissonnette, Town Clerk
Town of Wareham
54 Marion Road
Wareham, MA 02571

Re: Wareham Annual Town Meeting
of June 12, 2021 -- Case #10324
Warrant Articles # 12, 13, 15, and 26 (Zoning) Warrant Article # 24 (General)

Dear Ms. Bissonnette:

Articles 12, 13, 15, and 24 - We approve Articles 12, 13, 15, and 24 from the Wareham June 12, 2021 Annual Town Meeting. Our comments on Articles 12 and 24 are provided below.

Article 26 - The Attorney General’s deadline for a decision on Article 26 is extended for an additional sixty days under the authority conferred by G.L. c. 40, § 32, as amended by Chapter 299 of the Acts of 2000. The agreement with Town Counsel for the sixty-day extension is attached hereto. We will issue our decision on Article 26 on or before November 25, 2021.

Article 12 - Under Article 12 the Town voted to amend its zoning by-laws by deleting the Town’s existing Sign by-law and inserting a new Article 11, “Signs.” The new Article 11 identifies signs that are allowed in all of the Town’s zoning districts, allowed in each zoning district, and prohibited in the Town. Our review of the new Signs by-law is governed by the case of Reed v. Gilbert, Arizona, 135 S. Ct. 2218 (2015), where the United State Supreme Court held that content-based sign regulations are unconstitutional if they are not narrowly tailored to serve a compelling state interest.

In the Reed case, the Town of Gilbert, Arizona adopted a comprehensive sign ordinance that required a sign permit for outdoor signs. The sign ordinance exempted 23 types of signs from the permit requirement, including three types of signs that were the focus of the Court’s decision: (1) ideological signs; (2) political signs; and (3) temporary directional signs relating to a qualifying
event. However, such signs were subject to specific restrictions, including durational and size
limitations.

The Petitioners in Reed were the Good News Community Church and its pastor, who placed 15 to 20 signs around the Town informing the public of its worship services. The Petitioners were cited twice for violating the Town’s temporary directional sign restrictions. Specifically, the Petitioners were cited for (1) displaying the signs past the time limit required under the ordinance and (2) for omitting the date of the event on the signs. After failing to resolve the matter with the Town, the Petitioners filed a complaint alleging that the sign ordinance violated their free speech rights guaranteed under the First and Fourteenth Amendments to the U.S. Constitution. The Ninth Circuit Court of Appeals held that the sign ordinance’s provisions were content-neutral and did not violate the First Amendment. The United State Supreme Court granted certiorari and reversed the Ninth Circuit’s decision.

The Supreme Court focused on three categories of signs that, in the Town’s ordinance, were exempt from the sign permit requirement but subject to specific durational and size limitations: (1) ideological signs; (2) political signs; and (3) temporary directional signs relating to a qualifying event. First, the Court reiterated that the First Amendment prohibits local governments from restricting expression because of the message, idea, subject matter, or content. Id. at 2226. A regulation is content-based if it applies to a particular speech because of the topic discussed or the idea or message expressed. “This commonsense meaning of the phrase ‘content-based’ requires a court to consider whether a regulation of speech ‘on its face’ draws distinctions based on the message a speaker conveys.” Id. at 2227. Content-based laws are subject to strict scrutiny and are presumptively unconstitutional. Strict scrutiny requires the government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest. Id. at 2227.

The Supreme Court held that Gilbert’s sign ordinance was content-based on its face because the restrictions placed on signs were based entirely on the communicative content of the sign. For example, the sign ordinance defined an ideological sign as a sign that communicates a message or idea that does not fit within another category in the sign ordinance. The ordinance defined a political sign as a sign that is designed to influence the outcome of an election. Finally, a temporary directional sign was defined as a sign that directs the public to church or some other qualifying event. Each of these signs was then subject to different size and durational limitations.
Because the sign ordinance was content-based, the Court analyzed it using strict scrutiny.

Strict scrutiny requires the Court to determine whether: (1) the municipality demonstrated a compelling governmental interest and (2) whether the restriction is narrowly tailored to achieve that governmental interest. The Town of Gilbert offered two governmental interests for adopting its sign ordinance: (1) preserving the Town’s aesthetic appeal; and (2) traffic safety. Reed, 135 S.Ct. at 2231. The Court assumed for the sake of argument that those were compelling governmental interests but found that the sign ordinance’s distinctions were under-inclusive. The sign ordinance was under-inclusive because temporary directional signs are “no greater [an] eyesore” than ideological or political signs, yet, the ordinance allowed unlimited ideological signs
while imposing greater restrictions on temporary directional signs. As to traffic safety, the Court found that temporary directional signs did not pose a greater threat to traffic safety than ideological or political signs. Id. at 2231-32. Because of this under-inclusiveness, the ordinance was not narrowly tailored to further a compelling governmental interest and therefore failed strict scrutiny review. Id. at 2232.

In holding that the Town’s sign ordinance was unconstitutional, the Court offered guidance on the types of sign regulations that may be adopted consistent with the First Amendment. The Court noted that the Town had ample content-neutral options to regulate signs. In a concurring opinion, Justice Alito offered specific examples of sign regulations that could be imposed so long as they are not content-based:

• Rules regulating size;
• Rules regulating location;
• Rules distinguishing between lighted and unlighted signs;
• Rules distinguishing between signs with fixed messages and electronic signs with messages that change;
• Rules that distinguish between the placement of signs on commercial and residential property;
• Rules distinguishing between on premises and off-premises signs;
• Rules restricting the total number of signs allowed per mile of roadway; and
• Rules imposing time restrictions on signs advertising a time event.

Reed, 135 S.Ct. at 2233.

Within the framework of Reed decision, we review the new Article 11.

Based upon our standard of review, we cannot conclude that the new Article 11 would be construed as content-based and subject to the strict scrutiny standard. Even if we were to conclude that the amendments are content-based and thus subject to strict scrutiny, we do not have the factual record necessary to determine whether the amendments are narrowly tailored to serve a compelling municipal interest. Therefore, there is no basis upon which we may disapprove the new Article 11. However, the Town may wish to discuss the Reed decision with Town Counsel.

Article 24 - Under Article 24 the Town voted to amend the general by-laws to add a new Division XIII, Article 1, prohibiting the sale of alcoholic beverages in containers commonly referred to as “nips.” The new Article 1 provides as follows:

The sale of alcoholic beverages in containers less than or equal to 100 milliliters is prohibited within the Town of Wareham effective May 11, 2022.

The new Article 1 prohibits the sale of alcoholic beverages in containers less than or equal to 100 milliliters. These containers are commonly referred to as “nips.” The new Article 1 provides that the prohibition will take effect on May 11, 2022.

In this decision, we summarize the Attorney General’s standard of review of town by-laws; and then explain why, based on our standard of review, we approve Article 24. We emphasize that our approval in no way implies any agreement or disagreement with the policy views that led to the passage of the by-laws. The Attorney General’s limited standard of review requires her to approve or disapprove by-laws based solely on their consistency with state and federal law, not on any policy views she may have on the subject matter or wisdom of the by-law. Amherst v. Attorney General, 398 Mass. 793, 795-96, 798-99 (1986).

I. Attorney General’s Standard of Review of General By-laws

Pursuant to G.L. c. 40, § 32, the Attorney General has a “limited power of disapproval,” and “[I]t is fundamental that every presumption is to be made in favor of the validity of municipal by-laws.” Amherst, 398 Mass. at 795-96. The Attorney General does not review the policy arguments for or against the enactment. Id. at 798-99 (“Neither we nor the Attorney General may comment on the wisdom of the town’s by-law.”) Rather, in order to disapprove a by-law, the Attorney General must cite an inconsistency between the by-law and the state Constitution or laws (emphasis added). Id. at 796. “As a general proposition the cases dealing with the repugnancy or inconsistency of local regulations with State statutes have given considerable latitude to municipalities, requiring a sharp conflict between the local and State provisions before the local regulation has been held invalid.” Bloom v. Worcester, 363 Mass 136, 154 (1973) (emphasis added). “The legislative intent to preclude local action must be clear.” Id. at 155. Massachusetts has the “strongest type of home rule and municipal action is presumed to be valid.” Connors v. City of Boston, 430 Mass. 31, 35 (1999) (internal quotations and citations omitted).

II. Article 24’s Consistency with State Law

A. By-laws Banning Particular Activities Generally

This Office has approved bans on several types of activities, including bans on the sale of nips.For example, this Office has approved by-laws banning the sale of plastic water bottles; plastic straws; Styrofoam containers; plastic bags; soft drinks; and balloons. Towns have used their home rule powers to prohibit, within their borders, certain commercial activities that state statutes generally recognize as lawful and that are widely accepted in the remainder of the Commonwealth. Amherst, 398 Mass. 793, at 798, n. 8 (the town’s by-law prohibiting the discharge of firearms within the town limits was not inconsistent the State’s hunting statutes). We again point out that the Attorney General has no power to disapprove a by-law merely because a town, in comparison to the rest of the has chosen a novel, unusual, or experimental approach to a perceived problem. Indeed, the Supreme Judicial Court has upheld such by-laws and has overturned the Attorney General’s disapproval of them where they did not create any specific conflict with state law. Amherst, id.; see also Milton v. Attorney General, 372 Mass. 694, 695-96 (1977).

In addition, G.L. c. 40, § 21, specifically authorizes municipalities to adopt certain categories of local legislation, including “[f]or directing and managing their prudential affairs, preserving peace and good order...”, and “[c]onsiderable latitude is given to municipalities in enacting local by-laws.” Mad Maxine’s Watersports, Inc. v. Harbormaster of Provincetown, 67 Mass. App. Ct. 804, 807 (2006). However, a municipality has no power to adopt a by-law that is “inconsistent with the constitution or laws enacted by the [Legislature]...” Home Rule Amendment, Mass. Const. amend. art. 2, § 6. For the reasons discussed herein, and under our standard of review, we approve Article 24 because we cannot conclude it is inconsistent with state law.

B. No Clear Preemption by General Laws
Chapter 138, “Alcoholic Liquors”

As noted earlier, the Attorney General must disapprove a by-law if it conflicts with state law. Amherst, 398 Mass. at 796. Municipalities have “considerable latitude” in legislating, so there must be a “sharp conflict” with state law before a local enactment may be disapproved. Bloom, 363 Mass. at 154. “The legislative intent to preclude local action must be clear.” Id. at 155. “This intent can be either express or inferred.” St. George Greek Orthodox Cathedral of Western Massachusetts, Inc. v. Fire Dept. of Springfield, 462 Mass. 120, 125-26 (2012). Local action is precluded in essentially three instances, paralleling the three categories of federal preemption: (1) where the “Legislature has made an explicit indication of its intention in this respect”; (2) where “the State legislative purpose can[not] be achieved in the face of a local by-law on the same subject”; or (3) where “legislation on a subject is so comprehensive that an inference would be justified that the Legislature intended to preempt the field.” Wendell v. Attorney General, 394 Mass. 518, 524 (1985). “The existence of legislation on a subject, however, is not necessarily a bar to the enactment of local ordinances and by-laws exercising powers or functions with respect to the same subject[, if] the State legislative purpose can be achieved in the face of a local ordinance or by-law on the same subject[.]” Bloom, 363 Mass. at 156; see Wendell, 394 Mass. at 527-28 (“It is not the comprehensiveness of legislation alone that makes local regulation inconsistent with a statute. . . . The question . . . is whether the local enactment will clearly frustrate a statutory purpose.”). Because Article 24’s ban on the sale of nips pertains to alcohol beverages, we specifically address Article 24’s consistency with G.L. c. 138, “Alcoholic Liquors.” For the reasons provided below, we cannot conclude that a by-law banning the sale of nips is inconsistent with G.L. c. 138.

The “[r]egulation of the liquor industry in Massachusetts is comprehensive and pervasive.”

Cellarmaster Wines of Mass., Inc. v. Alcoholic Bevs. Control Commn., 27 Mass. App. Ct. 25, 27,
534 N.E.2d 21 (1989 The Legislature set out a broad prohibition in the first sentence of G.L. c. 138, § 2, which provides, in pertinent part: “No person shall ... sell or expose or keep for sale, store, transport ... alcoholic beverages or alcohol, except as authorized by this chapter (with emphasis added.) Pursuant to G.L. c. 138, the local liquor licensing authority (LLA) issues retail licenses for both on-premises consumption and off-premises consumption of alcoholic beverages.
See G.L. c. 138, §§ 12 and 15, respectively. Once the LLA grants a license, the Alcohol Beverage Control Commission (“ABCC”) approves the license, and then the LLA issues the license upon the payment of the required fees. See, e.g., G.L. c. 138, § 15. The LLA is authorized to adopt reasonable rules and regulations with respect to the issuance of these licenses. See G.L. c. 138, §
23. While G.L. c. 138 is comprehensive statute that governs the alcoholic beverage licenses, we are unable to find any case law that suggests the laws pertaining to the licensing of alcohol constitute a state-wide “comprehensive” act that preempt local a by-law prohibiting the sale of nips. More specifically, we find nothing in G.L. c. 138 or the case law that (1) explicitly preempts local law; (2) conflicts with Article 24; or (3) intends to “occupy the field” of the sale of alcoholic beverages in containers less than or equal to 100 milliliters so as to preclude by-laws that ban the sale of nips.

While there are no court cases that address local bans on the sale of nips, the ABCC recently issued a decision explaining that the ABCC does not have jurisdiction to review bans on the sale of nips when adopted as a regulation by the LLA pursuant to G.L. c. 138, § 23. In the ABCC’s decision; 180 Broadway Liquor Inc., et al, May 26, 2020 ( https://www.mass.gov/doc/chelsea-9-licensees-appeal-no-nips-5-26-2020/download) the ABCC acknowledged that LLAs are authorized to adopt reasonable requirements with respect to the alcohol licenses. See G.L. c. 138, § 23 and City of Revere v. Aucella, 369 Mass. 138, 145

(1975) (local licensing authorities have the power to make regulations governing the conduct of the licensed business.) In its decision, the ABCC noted that the LLA adopted the regulation banning
the sale of nips pursuant to its Section 23’s authority to adopt regulations applicable to all licensees in order to protect the public’s health and safety. However, the ABCC concluded that it does not have jurisdiction to consider whether such a ban was a “reasonable” regulation. Such a question was for the courts to answer not the ABCC. If a challenge is brought before a court, we cannot predict with any certainty whether a local ban on the sale of nips would be upheld by the courts. Moreover, such prediction is beyond the scope of the by-law review process performed by this Office pursuant to G.L. c. 40, §32.

For the reasons provided above, we do not construe G.L. c. 138 to preempt a local by-law banning the sale of nips. Therefore, we conclude that Article 24 consistent with state law. However, we strongly suggest that the Town discuss the issues discussed above with Town Counsel.

Note: Pursuant to G.L. c. 40, § 32, neither general nor zoning by-laws take effect unless the Town has first satisfied the posting/publishing requirements of that statute. Once this statutory duty is fulfilled, (1) general by-laws and amendments take effect on the date these posting and publishing requirements are satisfied unless a later effective date is prescribed in the by-law, and (2) zoning by-laws and amendments are deemed to have taken effect from the date they were approved by the Town Meeting, unless a later effective date is prescribed in the by-law.

Very truly yours,
MAURA HEALEY
ATTORNEY GENERAL
By: Kelli E. Gunagan
Assistant Attorney General
Municipal Law Unit
10 Mechanic Street, Suite 301
Worcester, MA 01608
(508) 792-7600