Attorney General Maura Healey: Towns Can’t Ban Medical Pot

Decision reverses earlier ruling that opened the door for communities to prohibit medical sales

 JACK SULLIVAN

Aug 31, 2018

IN A STARTLING TURNAROUND, Attorney General Maura Healey has reversed her office’s decision that allowed communities to ban medical marijuana dispensaries after opening the door earlier this summer for cities and towns to block the dispensaries from coming to their communities.

“The Attorney General’s Office is committed to ensuring that the marijuana legalization law is implemented as quickly and safely as possible,” said Margaret Quackenbush, a spokeswoman for Healey. “After further review, we have determined that under the statute, towns are not permitted to enact bans on medical marijuana establishments.”

Margaret Hurley, head of the Municipal Law Unit in the attorney general’s office, had initially approved warrants from special Town Meetings in Bellingham and Northborough that banned not only recreational pot retail stores, but future medical marijuana dispensaries as well.

Under the 2012 law that legalized medical marijuana and a decision by then-Attorney General Martha Coakley, cities and towns were not allowed to prohibit dispensaries. But when lawmakers passed a measure last year rewriting the voter-approved referendum legalizing adult recreational use of pot and giving oversight to the state Cannabis Control Commission, some municipalities interpreted a section in the statute as allowing them to ban medical and recreational pot sales.

The attorney general’s office initially agreed with the interpretation but after inquiries from CommonWealth this week, officials said they reconsidered the decision and issued the new order.

“Upon further review, we now determine that this approval was given in error,” Hurley wrote to Bellingham officials Friday, citing a previous 2013 decision by the office to disallow a similar ban in Wakefield. “As explained in our decision in the Wakefield case… such a ban would frustrate the purpose of [the medical marijuana law]to allow qualifying patients who have been diagnosed with debilitating medical conditions reasonable access to medical marijuana treatment centers. [The law’s] legislative purpose could not be served if a municipality could prohibit treatment centers within its borders, for if one municipality could do so, presumably all could do so.”

Hurley sent a similar missive on Friday to officials in Northborough, which had passed a measure barring “medical marijuana treatment centers,” another name for dispensaries. State law requires communities to wait 90 days before a bylaw is enacted and, with the attorney general’s initial approval, that time frame had passed. But Hurley warned town officials they “should strongly consider not enforcing the ban.” It is the first time under Healey the office has reversed a prior decision to a municipality.

In interviews earlier this week with CommonWealth, officials in Healey’s office said the initial decision was not an approval of the measures but rather an acknowledgement that under the law passed by the Legislature, such votes are allowed for zoning of medical marijuana, which will be regulated by the Cannabis Control Commission beginning at the end of the year. Under the statute for medical marijuana, passed in 2013, cities and towns could not zone dispensaries out of their towns. That law became moot with the passage of the adult use statute by lawmakers last year, which included new language on medical dispensaries.

But as CommonWealth prepared to publish a story analyzing the decision, officials in Healey’s office reached out to indicate they were changing direction. The letters to Northborough and Bellingham, citing not only the previous decision from Coakley but the conflicting language of the former law and the new law, indicate the confusion caused by the legislation.

State Sen. Patricia Jehlen and state Rep. Mark Cusack, who co-chair the Legislature’s Joint Committee on Marijuana Policy and who wrote the law, did not respond to numerous calls for comment. A spokesman for the cannabis commission declined comment.

Bellingham Town Administrator Denis Fraine said town counsel was reviewing the new ruling but acknowledged that, even though the town had not received any applications for medical marijuana dispensaries, they assumed it was a legal zoning ordinance because of the initial ruling and the 90-day time lapse.

“We thought the matter was a valid bylaw,” Fraine said Friday. “We’ll take that under advisement… We certainly put a lot of stock in the opinion of the attorney general.”

Adam Fine, a Boston attorney with the national law firm Vicente Sederberg LLC who has represented a number of medical and adult use applicants in Massachusetts, said much of the problem came from the Legislature rewriting the 2016 referendum passed by voters that gave communities the chance to shape the law to their benefit.

“Any town that now wants to issue a bylaw presumably can,” said Fine. “We already opened the doorway too much. There is a reluctance by the Legislature to constrain the cities and towns in any way. How much deference should be given? I think we’ve given too much deference already.”

But when the Legislature decided the oversight for medical marijuana should be combined with recreational, municipalities saw that as allowing them to enact bans under the new language.

“We followed the law right down to how the law is written,” said Michael Soter, chairman of the Bellingham Board of Selectmen, who said the decision will likely “cost us money” because there will have to be another special town meeting to change the zoning laws. “The people have decided they want to ban marijuana dispensaries. It went to a vote. Everything passed the attorney general’s smell test.”

Geoff Beckwith, executive director of the Massachusetts Municipal Association, said because medical marijuana dispensaries have the ability to sell retail pot as well with state approval, the line between the two has been “blurred.” He said advocates for marijuana have a “playbook” that started with decriminalization, then moved to medical marijuana, and finally to legalizing adult use. That, he says, has alarmed local officials and residents.

“It is natural for any regulated industry to smooth out their path in whatever way possible,” said Beckwith. “They’re always trying to fight for as little regulation as possible. They steamroll efforts at regulation, make it difficult for communities to regulate. They have a special interest. The cannabis lobby is extremely well organized and funded.”

Patient advocates are concerned that the Legislature’s decision to combine medical marijuana with recreational pot oversight is merging perception of the two separate products and opening the door for communities to ban the sale of the medicinal herb that benefits people with debilitating diseases such as cancer.

“We should not be conflating the two issues,” said Nichole Snow, president and executive director
Massachusetts Patient Advocacy Alliance and a member of the state’s Cannabis Advisory Board. “One [customer] is sick, one is using for recreational purposes.”

“We were always aware of the potential pitfalls that the [state] could run into if the implementation of the statute was not taken seriously,” Snow said. “I’ve been warning the state’s leadership since the Trump administration came into office that combining the programs, without requiring by statute that these programs are separated, will take down the medical program in the event that there’s a nationwide crackdown on adult use programs and not medical marijuana programs.”