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United States District Court for the District of Maine
August 14, 2020, Decided; August 14, 2020, Filed
Docket No. 2:20-cv-00208-NT
ORDER ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION AND DEFENDANT'S MOTION TO DISMISS
Plaintiff Wellness Connection ("Wellness"), which is owned by Plaintiff High Street Capital Partners, LLC (collectively "Plaintiffs"), intends to operate an adult use retail marijuana store in Portland, Maine. In order to do so, Wellness must obtain a license from the City of Portland ("the City"). Pursuant to a local ordinance, the City will issue a maximum of twenty licenses, and those licenses will be awarded based on a point system. The Plaintiffs contend that the City's process for awarding licenses is unconstitutional, and they [*2] ask me to enjoin certain components of that process. Before me is the Plaintiffs' Motion for Preliminary Injunction (ECF No. 4) and the City's Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (ECF No. 7). For the reasons set forth below, I GRANT the Plaintiffs' motion and DENY the City's motion.
I. Marijuana Legalization in Maine
Marijuana is a controlled substance, prohibited by federal law. 21 U.S.C. § 841(a)(1) (the "Controlled Substances Act"); 21 C.F.R. § 1308.11(d)(23) (listing marijuana among the Schedule I "[h]allucinogenic substances"). Despite this federal classification, medical marijuana has been legal in Maine for more than twenty years, and medical marijuana dispensaries have been allowed to operate for more than ten years. Def.'s Mot. 3 (citing 22 M.R.S. § 2428). In 2016, Maine voters approved a referendum to legalize the recreational use of marijuana, and in 2018 the Maine Legislature enacted the "Marijuana Legalization Act" to facilitate the development and administration of a regulated marketplace for adult use marijuana. See L.D. 1719 (128th Leg. Me. 2018); 28-B M.R.S. § 101. The State's Office of Marijuana Policy ("OMP") subsequently passed rules to implement the statute, including rules for the issuance of State marijuana retail [*3] licenses.1 See 18-691 C.M.R. (2019); 28-B M.R.S §§ 103-04.
Under the Marijuana Legalization Act, a municipality can choose to permit adult use marijuana establishments within its jurisdiction by passing a local ordinance.2 28-B M.R.S § 402(1). In municipalities that have decided to permit retail marijuana sales, applicants must follow several steps in order to begin conducting such sales. First, an applicant must obtain a conditional state license from OMP.3 28-B M.R.S § 402(1). Next, the applicant must apply for an adult use license from the municipality. 28-B M.R.S § 402(3); 28-B M.R.S § 205. If the applicant succeeds in obtaining local authorization, it must then return to OMP for an active license and final approval. 28-B M.R.S § 205(4). To receive an active license, a retailer must continue to meet the requirements for the conditional state license, pay the state license fee, and submit a plan detailing the location, size, and layout of the marijuana establishment. 28-B M.R.S § 205(4).
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2020 U.S. Dist. LEXIS 146958 *; 2020 WL 4741913
NPG, LLC d/b/a WELLNESS CONNECTION and HIGH STREET CAPITAL PARTNERS, LLC, Plaintiffs, v. CITY OF PORTLAND, MAINE, Defendant.
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