Massachusetts Appeals Court reinstates Cambridge’s first-in-the-nation priority period for adult-use cannabis equity operators
Revolutionary Clinics dispensary group vows to continue their legal fight with the city
By Grant Smith
When the Cambridge City Council, in September of 2019, passed the nation’s first priority period for equity applicants in their adult use cannabis business permitting ordinance the action was celebrated by community leaders, activists, and equity applicants alike.
However, not everyone involved was as pleased as the grassroots activists and city councilors who fought for months to bring the law to fruition; one corporate medical/adult use dispensary operating in Cambridge (Revolutionary Clinics), after being excluded from the priority period meant for equity applicants, decided to sue the City in October of 2019.
In the course of that lawsuit, a Suffolk Superior Court Judge issued an injunction against the City in January of 2020 (barring the city from excluding corporate medical dispensaries (“RMDs” or “MTCs” in industry parlance) from the equity priority period. The issuance of that injunction, however, was appealed by the City to a single Justice of the Massachusetts Appeals Court.
On April 24th, 2020, the single Justice issued her decision “vacating” striking down the lower court’s injunction allowing the ordinance to be enforced. As a result, Cambridge can immediately begin enforcing its priority period for equity applicants in the adult use permitting process.
The single Justice, explaining the context of the ruling in Friday’s order, said thus; “The dispensary raised a number of grounds on which it argued that the ordinance created...a sharp conflict [between the local ordinance and state regulations]. 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.'”
In that context, the Appeals Court judge made three primary points when rejecting the Superior Court judge’s ruling: 1. “nothing in the 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”; 2. “the evidence of economic harm [to the dispensaries] was minimal”, and 3. The city did not waive any legal argument that its moratorium is not in direct conflict with the regulation.
Speaking on social media after the ruling was announced, some activists were overcome with emotion. Saskia Vann James of the Massachusetts Recreational Consumer Council (the advocacy group who led the push to pass the equity period to begin with) said; “Literally crying tears. I have been reflecting on how hard of a fight this was and how difficult it is to keep hope in our government at times. I’m extremely thankful for you guys listening to me and other social equity advocates I can’t wait to support.”
Those who follow the public meetings of the State’s Cannabis Control Commission will recognize that some of the points made by the Single Justice were similar to those discussed at the March 5th meeting of the CCC, during which the Cambridge lawsuit was discussed at length. Speaking at that public meeting, about the logic of the original injunction (which has now been struck down), Commissioner Shaleen Title, while noting the CCC would not take sides on the case, did say that it would be beneficial for the CCC to explore sending a letter to the Judge involved in the case on “the very narrow question of; is our [the CCC’s] regulatory intent, and current practice, being correctly interpreted in the case [for the purposes of the injunction that was in effect at the time.]”
Commissioner Title also noted that, “There has been a very lopsided disparity between the two groups [RMDs and EE applicants being approved on the state level]. The current numbers, as of before this meeting [3/5/2020], are 193 RMD priority applications that have been granted and 8 EE applications that have been granted.”
Title went on to ask, “Does an ordinance that only allows EE applicants to obtain local permitting necessary to submit its license application circumvent the CCC’s self imposed requirement to review EE and RMD applicants on an alternating basis?” To which, answering her own question, she replied, “I think the answer is no; it does not circumvent it in practice. In fact, such an ordinance would bring us closer to a balance between our 193 to 8 ratio. Thus I think it is our responsibility to clarify that misunderstanding, clarify what our regulatory intent was, and how it played out in practice so that the court can be allowed to do what it will with that information.”
As a result of Friday’s ruling, which seemed to track with Commissioner Title’s reasoning, the lawsuit will now be returned to the Superior Court Judge for further proceedings consistent with the Single Justice’s decision.
In a statement late Friday night, Revolutionary Clinics vowed to continue their fight to have the nation’s first two year equity priority period struck down, saying they were "disappointed with the Single Justice vacating the preliminary injunction directed atCamridge's two year moratorium" and "[intend]...to promptly ask the Superior Court to reinstate its original injunction".
Further litigation aimed at undermining the priority period for equity applicants will no doubt continue to ruffle feathers in the local cannabis community. As Revolutionary Clinics is already subject to a near community-wide boycott because of their initial decision to file the lawsuit, which included [a moving event hosted by MRCC in December that was covered by Midnight Mass at the time], further attempts to derail Cambridge’s equity ordinance may lead to continued backlash.
For now, absent a new court order, the priority period for equity applicants in Cambridge’s adult use permitting process will be in effect, and will not allow Revolutionary Clinics or any other corporate medical dispensaries to participate in the equity permitting process during the two-year moratorium
Looking forward to the implementation of that priority period, one of the co-authors of the ordinance (the other being current Cambridge Mayor Sumbul Siddiui), Cambridge City Councillor Quinton Zondervan said of the ruling, “I’m glad the injunction was vacated and my hope is that we will move forward quickly and start seeing economic empowerment stores opening soon.”
To compliment the ruling, some local activists have also been working with state lawmakers to propose a bill that would codify an equity mandate for municipalities (much akin to the equity mandate extended by statute to the Cannabis Control Commission itself). That equity mandate, if enacted by lawmakers, could then serve as a foundation for other municipalities to replicate the groundbreaking 2 year priority period developed by Cambridge.
In the meantime, those who value equity in cannabis licensing can enjoy a brief respite amidst the current chaos thanks to those who fought long and hard for true equality in Cambridge’s licensing process for adult use cannabis businesses.
Grant Smith Ellis is a Massachusetts medical cannabis patient, founder of Mass Patients for Home Delivery, and a contributor to midnightmass.substack.com and The Young Jurks. You can listen to The Young Jurks on itunes or wherever else podcasts are streamed. This article was produced with support from Midnight Mass & The Young Jurks, where your contributions are greatly appreciated and help us deliver more local coverage.