Judge rules Baker had legal right to close recreational marijuana stores

Decision could imperil dozens of companies

Attorneys for a group of recreational marijuana companies challenging Governor Charlie's Baker order for them to close down amid the coronavirus pandemic faced off against the state in a virtual court hearing Tuesday. Screenshot (custom credit)/Screenshot

Governor Charlie Baker acted within his authority when he ordered recreational marijuana suppliers and stores to close amid the coronavirus pandemic, a state judge ruled Thursday afternoon — even as he said he believed they could be reopened safely.

The decision means the state’s recreational pot shops will remain shuttered. It also could serve as an effective death sentence for dozens of marijuana companies, several of which sued Baker last week for deeming the recreational the shutdown after he deemed recreational marijuana suppliers and stores “nonessential."

While the firms could appeal the preliminary ruling and eventually prevail in the case, it is now highly unlikely Baker’s order will be overturned in the near future — and with many operators already laying off workers or teetering on the brink of insolvency, any delay could spell financial disaster. Marijuana firms are also ineligible for federal aid, since cannabis is illegal under US law.

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The governor has said shutting down legal cannabis sales was necessary to prevent out-of-state customers who could be carrying COVID-19 from crowding pot retailers. In response, record numbers of consumers have signed up for medical marijuana cards.

A spokesman for Baker, who under state law is being represented by the office of Attorney General Maura Healey, said, “The administration issued a list of essential services based on federal guidance and tailored to Massachusetts’ unique economy, and agrees with the court’s ruling.”

The companies, represented by attorneys from law firms Vicente Sederberg and Prince Lobel Tye, said they were still considering whether to appeal.

The decision Thursday by Suffolk Superior Court Judge Kenneth Salinger came in response to a request by the marijuana firms to immediately block enforcement of Baker’s ban and allow them to reopen. The companies insist they can operate safely by implementing strict social distancing, sanitization procedures, and other precautions like those used at liquor stores and medical marijuana dispensaries, which remain open.

Mass. marijuana regulator joins fight to allow recreational pot stores to reopen

The companies had argued that the shutdown irrationally differentiates between marijuana and liquor stores, forces consumers into the dangerous illicit market, deprives the state of tax revenue, and would put many out of business.

They were joined in the lawsuit by military veteran Stephen Mandile, who said he relies on cannabis to treat serious injuries he sustained in the Iraq War but fears losing his federal benefits if his name appears in a database of medical marijuana patients.

In denying the request, Salinger said state law only requires that Baker have some “rational basis” for closing the stores, even if another, less restrictive policy would have been more prudent. There is “little chance” the plaintiffs will prove Baker had no rational basis whatsoever for the move, the judge said.

“It was reasonable for the governor to be concerned that the relatively few adult-use marijuana establishments in Massachusetts are more likely than liquor stores or [medical marijuana dispensaries] to attract high volumes of customers, including people traveling from other states,” Salinger wrote in his ruling. “The governor’s decision to treat medical marijuana facilities and liquor stores differently than adult-use marijuana establishments has a rational basis and therefore is constitutional.”

However, Salinger forcefully rejected arguments by Baker’s attorneys that because the state’s declaratory judgment law doesn’t apply to the governor, the court could not even consider the lawsuit.

“Even during an emergency, the Governor does not have unreviewable authority and may not disobey constitutional constraints,” Salinger said.

Salinger also said the marijuana companies made a “convincing showing” that other policies, such as limiting recreational marijuana sales to Massachusetts residents and requiring appointment-only shopping or curbside pickup “would allow [recreational] marijuana establishments to restart their businesses without harming public health or safety.”

And, handing a potentially important rhetorical victory to the recreational operators, the judge rejected Baker’s contention that temporarily limiting sales to Massachusetts residents could invite legal challenges from out-of-staters under federal law.

“It is unfortunate that the court felt constrained to uphold the governor’s decision to close adult-use cannabis stores,” Adam Fine, an attorney at Vicente Sederberg who represented the plaintiffs, said in a statement. “We were pleased, however, that the court rejected the governor’s stated rationale for closing these establishments by declaring he could 'lawfully’ limit adult use cannabis sales to Massachusetts residents.”

Marijuana industry leaders said the ruling was largely expected, as the case hinged not on the wisdom of Baker’s policy but on whether the governor had the legal power to impose it. And despite the loss, they were heartened by Salinger’s analysis, which will provide ample ammunition in the ongoing fight to convince Baker to deem recreational operators “essential.”

“We are encouraged by the judge’s acknowledgement that the cannabis industry has several tools at its disposal which would allow [recreational] cannabis shops to reopen without harming public health or safety,” David Torrisi, the president of the Massachusetts Cannabis Dispensary Association, said in a statement. “The CDA maintains that our industry is well-suited to operate in this environment due to the regulations we are held to and we should be allowed to resume operations. We look forward to continuing the conversation with the [Baker] administration around reopening [recreational] shops.”

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