Law360 (April 16, 2020, 6:41 PM EDT) — A Massachusetts state judge on Thursday denied several marijuana businesses’ request to reopen the state’s recreational marijuana shops after the governor ordered them to close during the coronavirus pandemic, saying the governor’s decision was rational enough to stand.
Judge Kenneth W. Salinger denied the emergency motion for a preliminary injunction filed by the businesses and a military veteran, who claimed he treats his chronic pain and post-traumatic stress disorder with marijuana. The court said that while the businesses “made a convincing showing” that they could reopen without harming public health or safety, the shops would have little chance of success in proving their claims that Gov. Charlie Baker’s order was arbitrary.
“The court may not bar enforcement of the governor’s emergency orders against the plaintiff businesses on the ground that the governor could have achieved a similar public health benefit while allowing plaintiffs to stay open,” Judge Salinger said. “Economic rules do not have to be perfectly tailored, even in non-emergency situations.”
Baker declared a state of emergency on March 10 due to the COVID-19 outbreak, and on March 23, he ordered all nonessential businesses to close and not reopen until April 7. That order was later extended to May 4.
In other states, including California, Colorado, Illinois, Nevada and Washington, recreational marijuana has been deemed an essential business. Michigan and Oregon have also set up guidelines to keep the shops open.
The businesses filed suit against Baker last week, and they argued that it was arbitrary for him to allow sales of medical marijuana and alcohol while barring sales of nonmedical cannabis. They claimed the distinction violated constitutional equal protection guarantees.
The businesses argued that they could reopen with certain restrictions, such as limiting nonmedical marijuana sales to Massachusetts residents who have ordered in advance, authorizing stores to make curbside deliveries and keeping workers a safe physical distance apart. But the court said Baker was not legally required to ensure that his emergency closure orders had the smallest possible economic burden on the shops.
The court also said it was reasonable for the governor to be concerned that the adult-use shops are more likely than liquor stores or medical marijuana treatment centers to attract high volumes of customers, including out-of-state travelers. That rational basis makes the orders constitutional, the court said.
Published: April 16, 2020
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