Is That Pot Shop Legal: Maine Municipalities Wrestle with Whether to “Opt in” to Marijuana

As a municipal attorney in Maine, I can never predict what new legal challenge one of our many municipal clients will call about next. This is one of my favorite parts about my job. I say hardly because there is one topic that has come up very frequently over the past several months—marijuana.

Given the recent legislative changes and new rules issued by the Maine Office of Marijuana Policy, it is no wonder that many business owners and municipalities struggle to nail down what exactly is (or should be) the law of marijuana in their town. When you add the fact there is money to be made in the burgeoning marijuana industry, the issue becomes more clouded. Allow me to cut through the haze.

What did the Legislature do?

In 2018, the Legislature passed the Adult Use Marijuana Act and amended the Maine Medical Use of Marijuana Act. The new default law in every municipality is that adult-use (the government-approved way to say recreational marijuana) marijuana and medical marijuana establishments are prohibited unless the legislative body of each municipality chooses to “opt-in” and allow [and regulate] all or some adult-use and medical marijuana establishments.

How Does a Municipality “Opt-In?”

For adult-use marijuana, the legislative body of the municipality must vote after May 2, 2018, to adopt a new ordinance, amend an existing ordinance, or approve a warrant article allowing some or all of the following establishments to operate:

1. Cultivation facility
2. Testing facility
3. Products manufacturing facility
4. Marijuana store

To opt-in, a municipality cannot rely on votes taken prior to May 2, 2018.

For medical marijuana, the legislative body must vote after December 13, 2018, to adopt or amend an ordinance or approve a warrant article to allow all or some of the following establishments:

1. Caregiver retail stores
2. Registered dispensaries
3. Marijuana testing facilities
4. Marijuana manufacturing facilities

What should a municipality that does not want more marijuana stores in its town do? Most likely, nothing. Of course, like anything, much depends on the specific laws and past actions of the municipality. Review these actions closely to answer this question.

It is important to note that the law is written in such a way that a simple citizen-petitioned article to “opt-in” may be enough to legalize all such marijuana establishments, even if the article was not accompanied by any regulations. This could have many unintended consequences, and we would caution our municipal clients against such an all-or-nothing approach.

In What Ways Can a Municipality Regulate Marijuana?

For most municipalities, the toughest issue is how to regulate the establishments that are allowed. The Legislature has given municipalities a lot of leeway, and many across Maine have already pursued a variety of approaches.

Acton passed an ordinance to limit the home cultivation of marijuana for personal use, except as specifically allowed by state law. On the opposite end of the spectrum, South Portland passed what appears to be the most comprehensive zoning and licensing scheme for adult-use marijuana to date in Maine.

What Can’t a Municipality Do?

There are some limits on how a municipality can regulate marijuana. A municipality can’t designate zones where marijuana establishments can and can’t go unless it has adopted a comprehensive zoning plan and passed general zoning laws. Further, a municipality must establish criteria for how it will award licenses if it wishes to award only a certain number of them.

Regarding medical marijuana, a municipality cannot limit the number of licensed caregivers. Also, any storefront already in operation with municipal approval as of December 13, 2018, is grandfathered. Unsurprisingly, whether a business is grandfathered can be very contentious. After all, what better business advantage is there than being the only business of its kind allowed in town?

As for adult-use marijuana, a municipality cannot license an establishment within a certain distance of an existing school. Also, a municipality may limit the number of plants one may grow, cultivate, and possess, but it can’t restrict the areas of the municipality where one can grow marijuana or charge a licensing fee for home-grown marijuana.

More questions?

If you have questions about municipal opt-in or regulation practices, contact one of Rudman Winchell’s municipal or business attorneys for guidance.