Pierce & Mandell, P.C.

11 Beacon Street, Suite 800
Boston, Massachusetts 02108-3002

Phone: (617) 720-2444
Fax: (617) 720-3693

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P&M Lawyers Help Truro Farming Co-Op Pass Zoning By-law Allowing Cannabis Cultivation

Tuesday, November 20, 2018

By: Michael C. Fee

Last week the Cape Cod town of Truro became the first Massachusetts municipality to enact a zoning bylaw that allows cannabis cultivation in a residential district. The by-law was a product of intense public debate over the past several months as the Truro Planning Board attempted to craft a proposal that balanced the concerns of residential property owners with the needs of local organic farmers hoping to gain a foothold in the nascent Massachusetts marijuana industry.

At a Special Town Meeting on November 13, 2018, Truro voters approved several amendments to the Planning Board’s proposal, including increasing the number of allowed microbusinesses from 1 to 2, and eliminating the requirement that all marijuana establishments be located in stand-alone structures.

Pierce & Mandell shareholder Michael C. Fee, who has advised the Co-op throughout the permitting process, argued for increases in the bylaw’s limitations on canopy space, noting that other bylaw provisions regulating cultivation activities were sufficient to protect the residential district’s character, and that the initial maximum canopy restrictions proposed by the Planning Board would create barriers to entry and curtail growth opportunities for the Co-Op’s business. After lively debate Town Meeting approved the by-law as amended, with many speakers affirming their support for farmers in the community.

Press coverage of the Special Town Meeting can be viewed at:

https://documentcloud.adobe.com/link/track?uri=urn%3Aaaid%3Ascds%3AUS%3Acd388ba9-e1a2-4fe8-a280-43ec391d0346

and

https://documentcloud.adobe.com/link/track?uri=urn%3Aaaid%3Ascds%3AUS%3A00b00a34-1148-47a3-b0e2-436e2def414d

A full text of the by-law proposed by the Planning Board can be viewed here:

https://documentcloud.adobe.com/link/track?uri=urn%3Aaaid%3Ascds%3AUS%3Ab4edbd0e-6f37-4f3f-adc8-cca50b3500cb

Michael C. Fee is a Pierce & Mandell Shareholder with extensive experience in zoning, land use and municipal law. He can be reached at mfee@piercemandell.com.

Pierce & Mandell Attorneys Represent Hospitals and Doctors in Hospital Privileges Proceedings

Friday, November 02, 2018

Led by founding shareholders Bob Pierce and Bill Mandell, Pierce & Mandell has successfully represented hospitals, medical staffs and their executive committees, and individual doctors in peer review proceedings involving the revocation, suspension or modification of an individual doctor’s hospital privileges. These matters carry great weight and pit competing interests against each other: for the hospital and medical staff, patient safety and integrity of the facility and its workplace, and for the physician, the ability to maintain privileges and practice medicine at the hospital, and to avoid adverse consequences and reportable events.

Doctors who practice at hospitals, whether employees of the hospital or in private practice, must be granted privileges and be members of the medical staff to treat patients at that hospital. Privileges and medical staff membership are recommended by the medical staff through its medical executive committee (MEC) after vetting by the medical staff credentials or other peer review committee, and then approved by the hospital’s governing body. Doctors are generally subject to re-credentialing every two years to maintain their privileges and medical staff membership status.

Both teaching and community hospitals are regularly faced with issues concerning whether a doctor should continue to hold privileges at that hospital, or whether a particular incident or pattern of conduct warrants some form of corrective or disciplinary action after a peer review. The type of issues that arise are many, and include allegations of poor clinical performance, unprofessional conduct, patient abandonment, incompetence, and substance abuse.

The peer review, disciplinary/corrective action process and due process rights to be afforded the subject doctor are determined by the hospital’s medical staff by laws, which vary greatly from hospital to hospital. Common to all medical staff bylaws, the hospital chief executive may summarily suspend a doctor, and the MEC is empowered to recommend to the governing body that a physician’s privilege be revoked, suspended, or subject to restrictions.

Doctors, in all hospital medical staff bylaws, have due process rights to contest any serious recommended disciplinary action or imposed summary suspension.

Doctors who are also employed by an affiliated medial group of the hospital must also be handled under their employment contracts and general rights of employees, which often raise challenging and concurrent, but very different questions on hospital privilege and employment rights.

Any events leading toward or involving medical staff disciplinary actions and/or serious employment failures can be reportable to both state and federal agencies.

Pierce & Mandell is regularly engaged by hospitals, medical staff and hospital affiliated medical groups to represent their interests in these matters.

This includes our litigators, led by Bob Pierce, and our health lawyers, led by Bill Mandell

In a typical medical staff hearing, the doctor is informed in writing of the disciplinary proceedings against him or her, and a hearing is held before an ad hoc hearing committee or hearing officer appointed by the MEC. Medical staff bylaws vary about whether attorneys may participate directly in these hearings and how they are to be conducted and the burden of proof.

If the hearing body issues a ruling adverse to the physician, he or she generally has the right to appeal that decision to the governing body.

Pierce & Mandell regularly advises hospitals and medical staff MECs on how to properly conduct initial stage peer review, what is reportable and when, and the entire due process hearing process, so that the physician’s right is upheld while the medical staff bylaws are properly applied for the protection of the facility, and its patients and workers.

We have served as legal counsel for hospitals and medical staffs to present the case to hearing panels and officer. We have served as legal advisor to the hearing bodies and also have been appointed by hospitals and MECs to serve as hearing officers.

We also represent doctors in these hearings to ensure that their due process rights are upheld, and adverse consequences are minimized.

Obtaining experienced, competent counsel for peer review hearings is crucial for all involved.

An adverse ruling against a physician results in reporting of the matter to licensing boards, the National Practitioner Data Bank and will be disclosable on all future licensure, facility and payer credentialing applications as well as employment background checks. For the hospital, its medical staff and MEC, failure to follow their bylaws can result in costly litigation by the doctor seeking to overturn the discipline that has been issued or recommended

Feel free to contact Robert Pierce bob@piercemandell.com or Bill Mandell bill@piercemandell.com for more information about our representation of clients in physician disciplinary matters.

Pierce & Mandell’s Client Prevails in FAA Determination

Wednesday, October 31, 2018

By: Michael C. Fee

After a three year investigation, the FAA has concluded the Norwood Airport Commission unreasonably denied Pierce & Mandell client Boston Executive Helicopters access to the Norwood Airport, and improperly granted the existing fixed based operator exclusive rights in violation of Federal Grant Assurances 22 and 23.

By way of background, in 2008 the FAA determined that the Norwood Airport Commission engaged in economic discrimination by granting the fixed based operator (“FBO”) exclusive rights in violation of Title 49 of the United States Code (USC) §§ 47107(a), 40103(e) and Federal Grant Assurances 22 and 23. The FAA then issued a Corrective Action Plan directing the Airport Commission to, among other things, end the practice of awarding long-term leases of federally funded ramps which had the effect of granting the existing FBO control over a majority of Airport ramp space.

FlightLevel Norwood, LLC (“FlightLevel”) purchased the FBO at the Airport in 2009. Pierce & Mandell client Boston Executive Helicopters (“BEH”) has provided helicopter charter services at the Airport, and has requested permission and additional ramp space to expand its operations to include providing FBO services, since 2010.

In response to BEH’s requests for space and permitting approvals, the Airport Commission resisted and resorted to a pattern of obfuscation and disparate treatment. It demanded financial information, personal guarantees, and insurance coverage not required by the Airport’s minimum standards, or requested of other Airport tenants including FlightLevel.

BEH filed a Part 16 Complaint to the FAA in 2015, and on October 30, 2018 the FAA issued a Determination, finding that the Commission’s “delaying tactics, restrictions and excessive financial information requests” constituted a “continued pattern of delay to prevent BEH from completing the FBO permitting process.” The FAA concluded that the Town and the Commission’s actions constitute an unreasonable denial of access [to BEH] and unjust economic discrimination [against BEH].”

While holding the BEH at bay, the FAA also found that the Commission continued to bestow greater control of airport ramp space to FlightLevel by offering it new leases on a variety of federally funded ramps. Specifically, the Commission offered FlightLevel new lease terms for Lots A, B, and C at the Airport, notwithstanding BEH’s pending request for space for its FBO. The FAA concluded that the “Commission chose to ignore the letter, spirit and tenets of the previously ordered 2008 FAA Corrective Action Plan.” The FAA rejected the Commission’s excuse that the leases to FlightLevel were justified because it controlled abutting property. Such rationale “. . . is not justified, nor does it give first rights. . . It is camouflaging an exclusive right.”

The FAA went on to find that the Commission’s unfair treatment of BEH, and favorable treatment of FlightLevel violates Title 49 USC § 47107(a)(1) and related Federal Grant Assurance 23 (Exclusive Rights). The Commission’s subtle imposition of unreasonable restrictions on BEH, when combined with the favorable leasing practices toward FlightLevel, had the overall effect of solidifying FlightLevel’s position at the Airport to the detriment of BEH, and others. “The facts show that FlightLevel has a significant portion of the available property useful for FBO services, approximately 80%, and rather than curtailing FlightLevel’s grasp, the Airport expanded it.” This, in the judgment of the FAA, violates Federal Law and Grant Assurances prohibiting the grant of exclusive rights to a single operator.

The Director’s Order requires the Town and the Airport Commission to take immediate steps to promptly complete the FBO permitting process with BEH, discontinue leasing practices that provide exclusive rights to a single FBO, and rectify the unauthorized lease of Airport land to Verizon for non-aeronautical use. The Town and the Commission have 30 days to appeal.

The full text of the FAA Director’s Determination can be found at: https://documentcloud.adobe.com/link/track?uri=urn%3Aaaid%3Ascds%3AUS%3A9034a6d1-ad1b-4b79-8322-141aebf218fc

Pierce & Mandell shareholder Michael C. Fee represents Boston Executive Helicopters in the FAA proceeding and in related litigation. He can be reached at mfee@piercemandell.com.

Pierce & Mandell Lawyers to present at 2019 Yankee Dental Conference

Friday, October 05, 2018
Pierce & Mandell, P.C. - Bill MandellPierce & Mandell, P.C. - Hannah Schindler Spinelli

Bill Mandell and Hannah Schindler Spinelli of Pierce & Mandell, P.C. will be presenting a continuing education seminar entitled Legal Issues in Practice Transitions at the 2019 Yankee Dental Conference on Thursday, January 31, 2019 at 2:00pm.

The program will focus on the legal issues in the purchase and sale of practices and ownership in practices. Topics covered will include

  • What legal documents are necessary to buy or sell a practice and when to retain legal counsel?
  • What are the most important early steps to take to ensure that the transition will be successful?
  • How can buyers protect themselves from the liabilities of the seller?
  • How can sellers secure commitments for post-closing activities?
  • What are restrictive covenants and are enforceable, and how are they impacted under the new Massachusetts non-compete law?

For more information on the program see https://www.yankeedental.com/course?sfid=a181J000004TfduQAC.

To register for Yankee Dental go to https://www.yankeedental.com/.

Curt Dooling Prevails In Anti-Slapp Special Motion To Dismiss

Tuesday, July 31, 2018
Curtis B. Dooling

The Massachusetts anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, G. L. c. 231, § 59H, authorizes a party sued because of his petitioning activity to file a special motion to dismiss within 60 days of service of the complaint. The purpose of the anti-SLAPP statute is to protect individuals from harassing litigation and from the burden of defending against retaliatory lawsuits.

In 2017, the SJC issued a decision, Blanchard v. Carney Hospital, 477 Mass. 141 (2017), that modified the anti-SLAPP legal analysis. In Blanchard, the SJC modified the Anti-SLAPP burden-shifting test by adding a second part to the analysis once the moving party makes a showing that the non-moving party’s claims are solely based on petitioning activity. Blanchard, 477 Mass. at 159-60. Under the pre-Blanchard test, the moving party had to first demonstrate that the nonmoving party’s claims were solely based on its own petitioning activity. Id. If the moving party met this initial burden, the non-moving party could defeat an anti-SLAPP special motion to dismiss by showing that the moving party’s petitioning activities were “sham petitioning.” Id.

In Blanchard, the SJC added a second prong to the burden shift on the nonmoving party. If the nonmoving party cannot show that the petitioning activity was a “sham” and was devoid of any reasonable basis in law or fact, the nonmoving party may defeat a special motion to dismiss by showing that the challenged claims were not primarily brought to chill legitimate petitioning activity.

Pierce & Mandell attorney Curt Dooling recently prevailed on an anti-SLAPP motion to dismiss under the new Blanchard standard. The plaintiff filed suit against Pierce & Mandell’s client for statements they made before a FINRA arbitration panel and for seeking criminal complaints against the plaintiff. Dooling successfully argued that the claims had to be dismissed because they were based solely on valid, protected petitioning activity. The Superior Court allowed Pierce & Mandell’s special motion to dismiss and awarded costs and fees to Pierce & Mandell’s client.

Pierce & Mandell’s litigators have successfully litigated numerous anti-SLAPP cases and are well-versed in the latest case law.

"Massachusetts Real Estate Litigation” by P&M Shareholder Michael C. Fee

Monday, July 30, 2018
Michael C. Fee, Pierce & Mandell, P.C., Boston, MA

Pierce & Mandell shareholder Michael C. Fee has authored the recently published LexisNexis® Practice Guide to Massachusetts Real Estate Litigation (2018 Edition). The book is intended to offer practical guidance on some of the most significant real estate issues currently being litigated in Massachusetts, and contains nearly 400 practice tips, forms and checklists. Designed to be useful to both new and experienced practitioners, the guide strives to provide succinct, easily accessible yet comprehensive analysis in the following areas:

  • Adverse Possession
  • Trespass
  • Nuisance
  • Construction Liens
  • Public Works Bonding
  • Easements
  • Restrictive Covenants
  • Eminent Domain
  • Foreclosures
  • Real Property Receiverships
  • Residential and Commercial Landlord Tenant
  • Broker Litigation, and
  • Community Associations

For more information about “Massachusetts Real Estate Litigation (2018 Ed.)”, go here.

Pierce & Mandell, P.C. Hosts First Golf Clinic for Women

Friday, July 27, 2018

On July 12, 2018, Pierce & Mandell P.C. hosted clients, staff and friends of the firm at our first golf clinic for women at Tournament Players Club in Norton, Massachusetts.

Designed for both beginners and experienced players alike, the clinic featured three stations led by TPC professional staff. Each station (putting, chipping and full swing) afforded participants the opportunity to learn the rules and etiquette that revolve around that specific aspect of the game, as well as professional tips and individualized coaching.

The intention of the clinic was to create an environment for inexperienced players to learn the fundamentals of the game and become familiarized with different techniques, while more experienced golfers had the opportunity to refine the skills they had previously acquired. This allowed all participants the chance to further their interest in the game in a comfortable, and supportive team setting, serving also to integrate varying professionals from different walks of life.

Pierce & Mandell, P.C. hopes to host more of these clinics in the future.

Pierce & Mandell Lawyers and Staff Run “Lawyers Have Heart 5K” in Support of the American Heart Association

Wednesday, May 23, 2018

Pierce & Mandell Lawyers and Staff Run “Lawyers Have Heart 5K” in Support of the American Heart Association

Pierce & Mandell, P.C., Boston, MA

Lena Finnerty Wins Summary Judgment on Negligence Case

Monday, May 21, 2018

Lena Finnerty, Pierce & Mandell, P.C., Boston, MAPierce & Mandell attorney Lena Finnerty recently won summary judgment for the firm’s architect client in a case involving a slip and fall at a local federal government facility.

The firm represented an international architectural firm in a case involving a federal government employee who fell in the indoor “winter garden” of her employer’s large facility. Plaintiff alleged that she fell on pea stones that had migrated from the garden area onto the walking paths. The allegation against the firm’s client was that it was negligent in designing the winter garden by including pea stones as a feature.

The basis for the summary judgment motion was that plaintiff did not offer an expert witness to testify that designing the winter garden using pea stones violated the standard of care.

Founding partner Bob Pierce was lead counsel on the case for the architect, but Lena Finnerty wrote and argued the summary judgment motion. “I am so proud of Lena having developed this basis for a summary judgment motion and winning this dismissal for the client. This was tremendous work by Lena on behalf of the client and Pierce & Mandell.”

Pierce & Mandell is well known for defending every type of product liability, personal injury and construction defect case.

Bill Mandell was Quoted in the May 2018 ED Legal Letter Article

Monday, May 21, 2018

Pierce & William MandellBill Mandell was quoted in the May 2018 ED Legal Letter article on case law expanding ED’s legal exposure if discharged psychiatric patient commits violence.


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