SHIRLEY — When a change is proposed to the town’s protective zoning bylaws, public hearings must be held before an article is presented to Town Meeting. But since there’s no such mandate for nonzoning bylaws, selectmen at their meeting Monday night held a quasi-public hearing — more like a “forum,” according to Chairman Andy Deveau — to air a proposed change to the town’s alcoholic beverages bylaw.
“We feel this was important as an information session, although not required,” Deveau explained.
Bylaw changes voters will be asked to consider at the Sept. 24 Special Town meeting would beef up the existing alcoholic beverages law to an open-container law. A related upgrade would add to the penalty for prohibited marijuana use.
The effect in both instances would be commensurate with similar bylaws in surrounding communities and would make the laws more enforceable, Police Chief J. Gregory Massak said.
The current public drinking law states that enforcement hinges on police actually observing a person drinking in public. The updated version requires only that a person be seen in a public place with an open bottle, for example.
In addition, the “old” law required that the suspected “beverage” had to be tested at a state lab to determine it was alcohol while the “new” law allows the police officer to make that determination and expect the call to stand up in court, Massak said.
As for marijuana use, state law has decriminalized possession of less than an ounce of the drug, but towns can issue a ticket and impose a $100 fine. “But the Legislature gave us no teeth to enforce it,” Massak said.
The new law will have teeth, making it a violation not to pay the fine.
If the ticket isn’t paid by a set time, for example, the case goes to court. As it is now, the police must file a complaint in small claims court to get the money.
With the new bylaw in place, a hearing would be held before a clerk-magistrate, Massak said. If the police charge holds up, a $300 fine may be imposed, either instead of or in addition to the original $100 the defendant didn’t pay.
Asked if the marijuana bylaw had passed “the sniff test” in other communities, Massak said it was already on the books in Ayer, Littleton and Townsend. “But we’d submit it to the Attorney General, too, as a point of order.”
As for the open-container bylaw, the proposal came about in response to recent problems with public drinking on park benches near Net Variety Store in Shirley Village.
Police foot patrols have since solved the problem, at least for now. “I’ve seen less trash there and nobody drinking alcohol” since the foot patrols started earlier this summer, Massak told the board. No complaints, either, but the patrols will continue.
“I’ve noticed it’s much quieter,” Selectman Kendra Dumont said. “Thanks.”
In a separate but related matter, Massak was asked what’s up with the town’s sex-offender bylaw, which Town Meeting approved last year.
Six months later, the Attorney General sent back a nine-page response that blessed the new bylaw but also raised possible enforcement issues. Leery of unseen pitfalls in the law that an attorney could point out, Massak said he gave it to selectmen to pass along to Town Counsel Gary Brackett for review.
“The AG’s letter states we’d be safe” on federal grounds, Massak continued, meaning the law is free of constitutional issues at that level. But there are areas that might collide with the Massachusetts Constitution. “That’s why I wanted” a legal interpretation, he said.
Once that’s done, the new law — perhaps with some strike-outs — will be posted on the town website with a map identifying zones that are off limits to sex offenders, including 1,000-foot buffers around day care facilities, senior centers and schools.
As an aside, the Attorney General noted that police in some communities are finding that offenders moving to a community with the new, stricter bylaw don’t register there, but instead continue to register in the community with less onerous restrictions, Massak said.
Selectman David Swain was incredulous that so much time had passed since the bylaw was endorsed and ready to go but in terms of enforcement is still in limbo. Turning to Chief Administrative Officer David Berry, he asked him to “follow up, please.”
“Basically, the AG said the law was OK but the waters hadn’t been tested in Massachusetts,” he said, summing up the problem. “That was a year ago, and they’ve been tested now.”
Given that a registered sex offender has lodged a lawsuit in the Town of Ayer for enforcing its new, tougher bylaw, Massak said he’s held off enforcing the same law in Shirley until the iffy issues are cleared up.
“We’ve had one more sex offender move to town” in the interim, he said. “But he doesn’t live in any of the zones” that are off-limits under the law.
Berry said he’d get in touch with Attorney Brackett.