Marijuana Caregivers – A Regulatory Challenge in Residential Areas

Last session, the Maine Legislature passed LD 1539, which provided that registered medical marijuana caregivers could serve an unlimited number of patients. The law also requires municipalities to “opt in” if they wish to allow medical marijuana caregivers to open retail storefronts. We are all thankful for the clear language as to medical marijuana retail stores, but one aspect of the law that is proving challenging to municipalities is what—if anything—to do about regulating caregivers who do not wish to operate retail stores. 

We do know that municipalities have the authority under 22 M.R.S. § 2429-D to regulate registered caregivers, whether they operate a retail store or not. The only express limitation on that authority is that municipalities may not prohibit registered caregivers or limit their number. This means that municipalities are free to zone caregivers, require them to obtain licenses, or require them to comply with ordinance standards related to odor prevention, security, or other concerns. 

If your town is considering applying regulations to non-retail caregivers, here are some points to consider: 

1. Because the identity of registered caregivers is kept confidential, municipalities cannot simply obtain a roster to determine whether caregivers are a common use in town, or where they are located.
2. Many caregivers may fall within existing provisions related to home occupations. Consider whether specific restrictions would help ensure against negative impacts on the neighborhood, such as odors or traffic.
3. If you are considering requiring licenses, know that this will create a sort of registry of caregivers, since the municipality’s licensing records will likely not be subject to the same confidentiality that applies in the hands of the State. Some have noted that having such a list might subject those on it to safety or security concerns.
4. Make sure that any regulations on non-retail caregivers are in keeping with the scale of the operation. Consider whether proposed licensing fees or technical requirements are so onerous that they have the consequence of prohibiting small-scale caregivers.
5. Confirm that any proposed zoning regulations are (1) in conformity with the comprehensive plan; and (2) tailored to address concerns that are particular to the use.
6. Consider how pre-existing caregivers will be treated under the ordinance. Caregivers that were operating with any sort of municipal approval should clearly be treated as grandfathered against any new ordinance, but that right may be less clear for caregivers that were operating under the radar prior to an ordinance change.

As with the development of all ordinances, it is important to take your time and invite all stakeholders to the table. We have participated in and are monitoring municipal efforts throughout the state and can speak to the wide range of options that are being implemented. There is an approach that will work for your town, although it may take some work to get there.

Town Prevails on Whistleblower Protection Act Case

The Law Court entered a decision on April 11, 2019, which took the rare step of granting summary judgment in favor of the Town of Denmark in a case that an employee brought against the Town. The underlying facts were that the employee worked from 2003 to 2014 under a written employment contract with the Town to serve as a part-time Code Enforcement Officer (CEO). The contract stated that he was to “perform all duties as specified by the law and ordinance and to perform such other proper duties . . . as assigned by the Board of Selectmen.” In September 2014, the Town’s new Town Manager advised the CEO to report directly to him rather than the Board of Selectmen. The employee complained to the Manager and the Board that the directive was an illegal violation of his employment contract with the Town because he interpreted the contract to require that he report to the Board, not the Town Manager. Shortly thereafter, the Board of Selectmen approved a new job description for the CEO position and offered it to the employee. He objected to the new job description, asserting that it breached his contract and stated “that because it changed the CEO job description, the Town would need to form a Charter Commission and then call a public meeting to call a special election.” The following month, the employee was placed on paid administrative leave because of an allegation that he had been falsifying pay records. After investigation, it was determined that he had not falsified pay records and the Board voted unanimously to rescind his suspension. The Town Manager resigned his position. 

Under these facts, the Superior Court granted summary judgment and the Law Court affirmed. It closely analyzed the requirements of the Whistleblower Protection Act, 26 MRS §§ 831, et seq., to determine whether the employee reported to his employer what he had reasonable cause to believe was the employer’s unlawful activity. The Court found that the reasonable cause requirement required that the employee present evidence showing he had both a subjective belief that the employer engaged in illegal activity and, also, that the belief was objectively reasonable such that a reasonable person might believe illegal activity occurred. The employee argued three sections of statute—30-A MRS §§ 2601, 2601-A and 4451—plus the CEO job description demonstrated that the change was illegal. The Court rejected this argument and stated that an employee must report something other than a standard breach of an employment contract to put himself within the provisions of the Whistleblower Protection Act. Further, the Court held that even if the employee subjectively believed that the Town’s actions violated Maine law or the Town’s charter, that his subjective belief alone was insufficient to meet the reasonable cause requirement because neither the law nor the charter by any reasonable reading made the Town’s actions unlawful. 

Because these cases are generally very difficult to win on summary judgment, this narrower interpretation of the Whistleblower Protection Act is good news for municipalities and employers in general. 

(2019 ME 54 Michael A. Lee v. Town of Denmark)

Are Notices of “No Violation” Appealable in Maine?

If a code enforcement officer (CEO) issues a written decision finding “no violation” of a land use ordinance, is that decision appealable? Recently, Maine’s Law Court tackled this very question and answered “yes”—but only so long as the ordinance does not say otherwise.

In Raposa v. Town of York, an abutter became concerned about how a neighbor was using property. The abutter contacted the CEO, who responded to the abutter with an email explaining that no violations were warranted based on the neighbor’s use of the property. The CEO’s email included a notice advising the abutter that the Board of Appeals could hear an appeal from “any order, requirement, decision, or determination” made by the CEO or any other person charged with administering the ordinance. Heeding that advice, the abutter appealed the CEO’s “no violation” determination to the Board of Appeals and then to the Superior Court, where the Town of York moved to dismiss the appeal for lack of jurisdiction. The Superior Court granted the Town’s motion, finding that the Board’s review of the CEO’s decision was advisory and therefore unreviewable.

Reversing the Superior Court, the Law Court explained that Notices of Violation (NOVs) have been generally appealable since 2013—when the Legislature amended the statute governing appeals from municipal boards—except where an ordinance expressly provides that certain decisions are only advisory and may not be appealed. Although the Law Court noted that the plain language of the amended statute does not explicitly address “no violation” notices, the Court also noted that its previous decisions have “expressed the understanding that such ‘no violation’ actions are similarly appealable” because of their potential impact on property uses. In Raposa, the Law Court took the opportunity to make its previous expressions more concrete, holding conclusively that “a CEO’s written decision interpreting a land use ordinance is appealable to the Board and in turn to the Superior Court—whether the CEO finds that there is or is not a violation—so long as the ordinance does not expressly preclude appeal.” Because the Town of York’s ordinance did not have a provision that expressly precluded appeal, the Law Court found that the abutter’s appeal was not subject to dismissal by the Superior Court. 

In light of Raposa, municipalities should review the appeal provisions in their land use ordinances and update them accordingly.