City Preliminarily Enjoined from Enforcing its Marijuana Moratorium
On January 24, 2020, a Middlesex Superior Court judge enjoined the City of Cambridge from enforcing an ordinance that prohibits non-Economic Empowerment applicants from receiving Cannabis Business Permits from the City for a two-year period. A copy of the decision may be found here.
M.G.L. c.94G governs the sale of adult use cannabis and explicitly permits municipalities to adopt regulations that impose reasonable safeguards on the operation of marijuana establishments, provided that they are not in conflict with the statute or the regulations of the Cannabis Control Commission. In creating the licensing structure, the Commission issued regulations to provide priority status to medical marijuana establishments seeking to convert or add adult use sales and to economic empowerment applicants. The regulations clarify that the Commission will review priority applications on an alternating basis between economic empowerment applicants and medical establishments seeking to sell marijuana for adult use.
Subsequently, Cambridge adopted a Permitting Ordinance that created a separate local license for cannabis retail stores. The Ordinance provided that only economic empowerment candidates could obtain licensure for the first two years after the passage of the Ordinance. Medical marijuana establishments seeking to add adult use sales must wait the two-year period, despite their priority status afforded to them by the Commission.
Revolutionary Clinic II, an operating medical marijuana establishment in Cambridge, challenged the Ordinance, and the Court issued a preliminary injunction, preventing its enforcement. In reaching its decision, the Court focused on the fact that Cambridge’s licensing structure prevented the Commission from reviewing priority applicants as it had outlined in its regulations.
This decision comes on the heels of another Superior Court judge’s decision upholding the City of Salem’s decision to deny a Host Community Agreement to a retail marijuana establishment based on traffic and local concerns about over saturation. We explored that decision in last month’s newsletter. The difference, the Court explained, is that Chapter 94G does not grant the Commission the authority to consider local issues like traffic congestion and geographic diversity in deciding which applicants should be awarded licenses. In contrast, the Commission’s regulations expressly address priority review.
Both the Salem and Cambridge decisions provide some guidance as municipalities begin to regulate adult use marijuana establishments. That said, questions remain as to whether municipalities may impose additional safeguards on licensees that exceed those explicitly addressed in the Commission’s regulations.