BASK, INC., Plaintiff, v. ERNEST C. BORGES, MEMBER OF THE TAUNTON CITY COUNCIL, ET AL., Defendants

This case was tried before me on August 25, 26 and 27, 2020. I took the case under advisement after the filing of post-trial submissions on October 9, 2020. On October 30, 2020, the plaintiff filed a motion for a preliminary injunction, seeking an order enjoining the conduct of hearings or the issuance of licenses to applicants in Taunton for licenses for recreational (non medicinal) marijuana establishments pursuant to G. L. c. 94G, § 3, and Chapter 222-1 of the Ordinances of the City of Taunton ("Ordinance").

Facts pertinent to the court's decision on the present motion are few and are not in dispute. In the present case, which is under advisement, the plaintiff alleges that the Taunton Municipal Council denied its application for a special permit to operate a facility for the sale of marijuana to adults ("recreational marijuana dispensary") for reasons that were legally untenable, and were arbitrary and capricious. The Municipal Council denied the plaintiff's application following a public hearing held on October 1, 2019, by a decision of the same date, which was filed with the Taunton city clerk on October 8, 2019.

In addition to a special permit, an applicant for a recreational marijuana dispensary in Taunton must obtain a license, issued by the Municipal Council, pursuant to Section 222-1 of the Ordinance. In accordance with G. L. c. 94G, § 3(a)(2)(iii), and Section 222-1.E of the Ordinance, the number of recreational marijuana dispensaries is limited to a maximum of five. One has already been awarded, leaving four remaining licenses that can be issued under the Ordinance. There are presently pending, five additional applicants for licenses to operate a recreational marijuana dispensary, all of which have already been granted special permits between September 10, 2019 and June 10, 2020. All five applications for the four remaining licenses available under the Ordinance have been scheduled by the Municipal Council for a hearing before the Committee on Police and Licenses of the Municipal Council on the evening of November 4, 2020, and for a hearing before the Municipal Council on November 10, 2020. The purpose of the hearing before the Committee is for the Committee to make a recommendation to the Municipal Council, and the Municipal Council is expected to vote on the applications for licenses on November 10, 2020.

Upon consideration of the affidavit and memoranda filed by the plaintiff and by the defendants, the facts agreed to by the parties, and the arguments of counsel, and for the reasons stated below, the motion for preliminary injunction is ALLOWED.

STANDARD FOR ISSUANCE OF PRELIMINARY INJUNCTION

The familiar standard for consideration of a request for preliminary injunctive relief is as follows: "[W]hen asked to grant a preliminary injunction, the judge initially evaluates in combination the moving party's claim of injury and chance of success on the merits. If the judge is convinced that failure to issue the injunction would subject the moving party to a substantial risk of irreparable harm, the judge must then balance this risk against any similar risk of irreparable harm which granting the injunction would create for the opposing party. What matters as to each party is not the raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the party's chance of success on the merits. Only where the balance between these risks cuts in favor of the moving party may a preliminary injunction properly issue." Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609 , 617 (1980). Where, as here, "a public entity is a party, a judge may weigh the risk of harm to the public interest when deciding a preliminary injunction motion." Bank of New England, N.A. v. Mortgage Corp. of New England, 30 Mass. App. Ct. 238 , 246 (1991).

Further, "[a] preliminary injunction ordinarily is issued to preserve the status quo pending the outcome of litigation." Doe v. Superinendent of Schools of Weston, 461 Mass. 159 , 164 (2011). "It is proper, indeed desirable, to issue an injunction if its issuance is the only way to preserve the status quo and it promotes the public interest to do so...." Petricca Const. Co. v. Com., 37 Mass. App. Ct. 392 , 400 (1994).

LIKELIHOOD OF SUCCESS ON THE MERITS

The court finds that the plaintiff has a sufficient likelihood of success on the merits to justify consideration of its likelihood of success in combination with the parties' relative claims of irreparable harm. The court has the benefit of having had the full presentation of the evidence at trial, and while the court's decision on the present motion is not a determination on the merits, the plaintiff demonstrated at trial a sufficient likelihood that it would demonstrate that there were insufficient facts shown at trial to support the Municipal Council's denial of the special permit on the ground, primarily, of traffic impact on the neighborhood. The plaintiff presented expert testimony at trial that, if accepted by the court, will demonstrate that the proposed facility will not exacerbate any existing traffic conditions, and the plaintiff presented evidence at trial that, if accepted by the court, would support the plaintiff's assertion that the Municipal Council's decision was based on pretext. Accordingly, for the purposes of this motion, the plaintiff has established that it is entitled to have the court consider the relative irreparable harms to the parties in light of the plaintiff's likelihood of success on the merits.

IRREPARABLE HARM

The Municipal Council, rather that considering applications for recreational marijuana dispensary licenses on a rolling basis, as submitted, as does the Cannabis Control Commission, [Note 1] has apparently chosen to gather all the pending applications to be considered at once. This is not unreasonable. There is a limited number of licenses available, and there are more applications than there are available licenses. To the extent the Municipal Council intends to make a comparative determination based on the relative merits of different applications, it cannot do so without considering the applications in tandem.

Should the plaintiff be successful in this action, it will have been excluded from consideration along with all of the other applicants who received special permits during the same time frame (September, 2019 - June, 2020) as its October, 2019 hearing. It will then have lost an opportunity to compete for a license notwithstanding its success, should it be successful, in demonstrating that it too was entitled to a special permit. One of the purposes of a preliminary injunction is to maintain the status quo so as not to render a judgment in favor of a plaintiff meaningless. In order to preserve the ability of the Municipal Council to fairly consider all qualified candidates for the four remaining licenses, the court sees no less drastic relief that can be ordered than to enjoin the conduct of the hearings on the pending license applications until the resolution of this case, so that, should the plaintiff be successful, the Municipal Council will be able to consider all appropriate candidates for the remaining licenses. In making this determination, the court takes into account the public interest in the fair and equitable administration of the laws pertaining to the sale of marijuana, and it does so mindful of the balance of irreparable harms that leaves other applicants unable to proceed with their applications until the resolution of the present action.

CONCLUSION

The court concludes, for the reasons described above, that the risk of irreparable harm to the plaintiff, in light of its chances of success on the merits of its claim, outweighs the defendants' probable irreparable harm and likelihood of prevailing on the merits. See Commonwealth v. Mass. CRINC, 392 Mass. 79 (1984).

Accordingly, it is

ORDERED that the plaintiff's motion for preliminary injunction is ALLOWED. It is further

ORDERED that, during the pendency of this action, or until further order of the court, the defendant members of the Taunton Municipal Council, and any committee thereof, and their agents, representatives, employees, contractors, and others acting in concert with them or otherwise having actual knowledge of this Order, are hereby ENJOINED and RESTRAINED from conducting hearings or awarding licenses pursuant to Chapter 222-1 of the Ordinance, until further Order of this court.

No security is to be required in connection with the issuance of this Order.

So Ordered.