A Massachusetts judge has upheld Gov. Charlie Baker’s order to close recreational cannabis retailers during the coronavirus pandemic, ruling against adult-use dispensary owners who challenged the closures in court. Suffolk Superior Court Judge Kenneth W. Salinger said in a decision handed down on Thursday that the plaintiffs are unlikely to win their case and denied their request to allow the shops to reopen.  

Salinger ruled that Baker had acted within his authority when he ordered recreational cannabis shops to close along with other nonessential businesses to help contain the spread of the virus. The governor said he feared that the state would be inundated by customers from nearby states without legal recreational pot if they were allowed to remain open. But several recreational dispensary owners filed suit, arguing the closures were arbitrary because medical marijuana dispensaries and liquor stores were allowed to continue serving customers as essential businesses.

“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 rejected an argument from Baker’s attorneys that the court couldn’t even consider the lawsuit because the state’s declaratory judgement law does not apply to the governor.

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

Industry Made Convincing Case to Reopen Shops

Although he ruled against them, Salinger said that the plaintiffs had made a convincing case that the recreational shops could reopen safely if they implemented changes such as limiting sales to Massachusetts residents and requiring an appointment to visit the dispensary. But the judge also ruled that Baker was not obligated to implement alternatives or to consider the financial impact of the closures on the impacted businesses.

“While we obviously wish the decision went the other way, we’re pleased that Judge Salinger included in his ruling the assumption that the governor can lawfully restrict adult-use cannabis sales to Massachusetts residents during the current crisis,” Jim Borghesani, a cannabis industry consultant and one of the plaintiffs, said in a statement after the ruling. “We’re also thankful for the judge’s mention of safety measures retail facilities can take to protect public health and safety. We repeat our call for Gov. Baker to allow retail cannabis sales, just as he allows retail liquor sales.”

David Torrisi, the president of the Massachusetts Cannabis Dispensary Association, said that the judge’s analysis could help the industry’s bid to reopen recreational dispensaries as owners continue to lobby Baker for a change.

“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,” he 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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