An appeals court judge has sided with Cambridge in its pursuit to give certified economic empowerment applicants a head start on opening marijuana businesses in the city.
Revolutionary Clinics, which has been selling medical marijuana in Cambridge since 2018 and wants to co-locate the business and add adult-use sales, sued the city in October over an ordinance that includes a two-year moratorium, allowing only economic empowerment businesses to receive a permit for a recreational marijuana store.
In January, a Middlesex Superior Court judge agreed with the marijuana company’s motion for preliminary injunction and ordered that the city could no longer enforce the moratorium or take any action to prevent Revolutionary Clinics from applying to convert its location into a co-use medical and adult-use marijuana dispensary.
But on Friday, the appeals court vacated that decision.
“As the Superior Court clearly erred in the grounds relied upon in granting relief, I reverse the preliminary injunction,” wrote Associate Justice Joseph M. Ditkoff in a decision Friday.
Cambridge’s Cannabis Business Permitting Ordinance includes the two-year moratorium during which only certified economic empowerment applicants would be able to receive a Cannabis Business Permit for a retail dispensary. The ordinance is the city’s attempt to ensure people of color and those negatively affected by the war on drugs have a fighting chance in the state’s marijuana industry, which already has barriers like access to capital.
Revolutionary Clinics argued that there were a number of grounds on which the city’s ordinance created sharp conflict between the local and state provisions.
“The motion judge, however, relied upon only one, finding that the moratorium ‘is in direct conflict with the CCC’s priority applicant scheme, which provides that the CCC ‘shall review applications from Priority Applicants on an alternating basis, beginning with the first-in-time-application received from either an MTC Priority Applicant or Economic Empowerment Priority Applicant,’” Ditkoff wrote.
But, Ditkoff ruled that nothing in the ordinance conflicts with the regulation regarding priority applicants.
“The dispensary has made no showing — or even suggested — that the CCC has had an excess of Economic Empowerment Applicants over dispensaries, such that it has been forced to review multiple applicants from Economic Empowerment Applicants for want of applications from dispensaries. Even if it had, the regulation does not purport to regulate local ordinances or regulation; it merely governs the activity of the CCC. The CCC can act in accordance with this regulation whether or not there is ever an application to sell recreational marijuana in the city. Nothing in this regulatory scheme suggests that municipalities have any duty to ensure that equal numbers of Economic Empowerment Applicants and dispensaries apply to the CCC for a license,” Ditkoff wrote.
The judge also wrote the evidence of economic harm was minimal.
“The dispensary’s chief executive officer stated that his ‘best guess is that the Two-Year Moratorium, if permitted to stand, would cost [the dispensary] upwards of $700,000 in profits per month at each of its Cambridge stores.’ He stated that this number ‘is based on our current medical-use sales and the increased sales we expect will occur once we commence adult-use sales,’” the decision reads.
Revolutionary Clinics did not immediately respond to a request for comment regarding the ruling.
Meanwhile, in the midst of the COVID-19 pandemic, Gov. Charlie Baker has banned non-essential businesses from operating, forcing the closure of recreational marijuana stores, but allowing medical marijuana dispensaries to stay open.
In a separate lawsuit, a judge ruled that Baker was acting constitutionally in his decision to shutter recreational businesses.
While closed for recreational sales, a number of marijuana companies, including Revolutionary Clinics, have been producing hand sanitizer to donate to local hospitals.
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