COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. SUPERIOR COURT

TRIAL DEPARTMENT

COMMONWEALTH DISPENSARY
ASSOCIATION, INC.,
Plaintiff,
CIVIL ACTION NO. ___________
v.

CANNABIS CONTROL COMMISSION,

Defendant.

COMPLAINT

The Commonwealth Dispensary Association, Inc. (the “CDA”) brings this action against

the Cannabis Control Commission (the “Commission”) for declaratory relief in connection with

the Commission’s promulgation of new adult use marijuana delivery regulations (published in

the Massachusetts Register on January 8, 2021) that do not allow Marijuana Retailers to deliver

marijuana to consumers under their existing retail licenses. This directly contravenes the

Commission’s enabling statute, G.L. c. 94G, which explicitly mandates that Marijuana Retailers,

which are heavily regulated and consumer-facing, shall be permitted to deliver. Because the

Commission’s new delivery regulations are in direct contravention of the Commission’s enabling

statute in allowing delivery but not by licensed Marijuana Retailers under their existing retail

licenses, they cannot stand.

Separately, the Commission’s new delivery regulations were promulgated without legal

authority. G.L. c. 10, § 76 requires that at least three lawfully seated Commissioners approve

Commission actions, which include the promulgation of regulations. The new delivery

regulations were approved by only two lawfully seated Commissioners (of a possible total of
five) with a vote from a former Commissioner whose term had unquestionably expired and who

purported to remain on as a “holdover.” The law does not allow this Commissioner to stay on as

a holdover. It is fundamental in our system of government that only validly elected or appointed

civil servants may promulgate laws and regulations. Because this basic precept was violated, for

this additional reason, the Court should issue a declaratory judgment that the new delivery

regulations are invalid.

PARTIES

1. The CDA is a Massachusetts nonprofit corporation and trade association with a

registered address in Lowell, Massachusetts and with members in Boston, Massachusetts. The

CDA is the Commonwealth’s largest trade association of licensed Marijuana Establishments and

Marijuana Treatment Centers; 70% of the Marijuana Establishments and Marijuana Treatment

Centers currently open and operating in Massachusetts are CDA members. The CDA’s

membership includes a large number of Marijuana Retailers. The CDA has standing to pursue

this action because the Commission’s unlawful promulgation of regulations that violate the

statutory right of the CDA’s members, Marijuana Retailers, to deliver marijuana to consumers

evinces an actual controversy regarding the interpretation of G.L. c. 94G. A declaration by this

Court regarding this question of statutory interpretation will have an immediate impact on the

rights of the CDA members who wish to exercise their statutory right to deliver marijuana to

consumers.

2. The Commission is a state commission with usual places of business in

Worcester, Massachusetts and Boston, Massachusetts. The Commission was created by G.L. c.

10, § 76 and empowered by G.L. c. 94G to administer the Commonwealth’s laws governing

adult use and medical marijuana.

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 JURISDICTION

3. This Court has jurisdiction over the CDA’s claims against the Commission

pursuant to G.L. c. 30A, § 7 and G.L. c. 231A, §§ 1 and 2.

FACTUAL ALLEGATIONS

4. In 2016, Massachusetts voters approved a ballot initiative that legalized the adult

use of marijuana in Massachusetts.

5. The ballot initiative became Chapter 334 of the Acts of 2016 and created the

“Regulation and Taxation of Marijuana Act,” which was codified at G.L. c. 94G.

6. In 2017, the Massachusetts Legislature enacted Chapter 55 of the Acts of 2017

(the “2017 Act”), which amended Chapter 334 and G.L. c. 94G, and set forth legislation

governing adult use of marijuana and the Commission’s authority with respect thereto.

7. Chapter 94G created four categories of licensed Marijuana Establishments, one of

which is Marijuana Retailer.

8. Pursuant to Chapter 94G, Marijuana Retailers are statutorily entitled to deliver

marijuana to consumers under their retail licenses. Chapter 94G defines a Marijuana Retailer as

“an entity licensed to purchase and deliver marijuana and marijuana products from marijuana

establishments and to deliver, sell or otherwise transfer marijuana and marijuana products to

marijuana establishments and to consumers.” G.L. c. 94G, § 1.

9. Chapter 94G provides that Marijuana Retailers “shall not be . . . penalized,

sanctioned or disqualified . . . for . . . delivering marijuana or marijuana products to a consumer.”

G.L. c. 94G, § 9(a)(1).

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 10. The 2017 Act also established the Commission, a five-person regulatory body

tasked with, among other things, adopting regulations consistent with Chapter 94G for the

administration of the Commonwealth’s adult use marijuana program.

11. Chapter 94G provides the Commission with enumerated powers, including the

power to create additional and limited licenses, but it does not empower the Commission to

contradict the mandate of the statute including with respect to allowing Marijuana Retailers to

deliver.

12. By statute, any action of the Commission requires a vote of at least three

Commissioners. G.L. c. 10, § 76.

13. Section 53 of the 2017 Act established term limits for certain of the

Commissioners initially appointed: four years for initial appointments by the Governor and

Attorney General, and three years for initial appointments by majority vote of the Treasurer,

Governor, and Attorney General. This provision does not allow for the initial appointees to

holdover in their positions following the conclusion of their terms until a successor is appointed.

14. On November 30, 2020, the Commission approved amendments to the regulations

governing delivery of adult use marijuana (the “Delivery Regulations”).

15. The Delivery Regulations were published in the Massachusetts Register on

January 8, 2021.

16. The Delivery Regulations create two new license types under which an entity may

deliver: Marijuana Courier and Marijuana Delivery Operator. A Marijuana Courier may deliver

marijuana and marijuana products from a Marijuana Retailer to a consumer, but it may not sell

marijuana directly to consumers or engage in any wholesale or warehousing of marijuana. A

Marijuana Delivery Operator may purchase at wholesale and warehouse marijuana and

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marijuana products, and sell and deliver the marijuana or marijuana products directly to

consumers.

17. The Delivery Regulations provide that only entities licensed as either Marijuana

Couriers or Marijuana Delivery Operators may deliver and that Marijuana Retailers (which, as

the Legislature mandated, must be permitted to deliver) may not deliver under their existing

retail licenses.

18. The Delivery Regulations provide that until at least 2024, only economic

empowerment and social equity applicants may seek the right to deliver.

19. The Delivery Regulations provide that if and when the Commission opens up

delivery to applicants that do not qualify as economic empowerment or social equity applicants,

Marijuana Retailers cannot automatically deliver. Rather, Marijuana Retailers will be required to

apply and pay for a separate delivery license.

20. The Delivery Regulations, by allowing delivery but requiring Marijuana Retailers

to obtain an additional license to deliver, directly conflict with the mandate in Chapter 94G that

Marijuana Retailers shall deliver and, accordingly, cannot stand.

21. Additionally, while Chapter 94G unambiguously provides that an entity may hold

three retail licenses, each of which expressly includes the right to deliver, the Delivery

Regulations provide that Marijuana Retailers may hold no more than two delivery licenses.

22. The Delivery Regulations are contrary to Chapter 94G’s plain language, which

provides that Marijuana Retailers shall be permitted to deliver and may have three licenses that

include the right to deliver. The Delivery Regulations do not allow Marijuana Retailers to

deliver under their existing licenses and they block most Marijuana Retailers from seeking a

delivery license until at least 2024, and then only allow them to obtain two delivery licenses.

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 23. Not only are the Delivery Regulations contrary to the Commission’s enabling

statute, Chapter 94G, the Delivery Regulations were not validly promulgated.

24. Pursuant to G.L. c. 10, § 76, any action of the Commission, including the

approval of new regulations, requires a vote of at least three Commissioners.

25. At the time the Commission voted on the Delivery Regulations, there were only

three lawfully seated Commissioners; two voted in favor of the Delivery Regulations and one

voted against the Delivery Regulations. Pursuant to Chapter 10, § 76, the Delivery Regulations

were not validly approved by the Commission.

26. When the Commission voted to approve the Delivery Regulations, of the five

Commissioners originally appointed, one resigned and had not been replaced and one, Ms.

Shaleen Title, completed her term and was not reappointed, although she purported to remain on

the Commission as a “holdover.” The law does not allow her to “holdover.”

27. Section 53 of the 2017 Act established term limits for certain of the

Commissioners initially appointed: four years for initial appointments by the Governor and

Attorney General, and three years for initial appointments by majority vote of the Treasurer,

Governor, and Attorney General. There is no provision allowing for an initial appointee to

holdover in their position following the conclusion of their term until a successor is appointed.

28. Ms. Title was appointed to the Commission on September 1, 2017 as an initial

appointment by vote of Treasurer Deborah Goldberg, Governor Charlie Baker, and Attorney

General Maura Healey.

29. Commissioner Title was appointed to a three-year term, which concluded on

August 31, 2020.

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 30. Commissioner Title had not been appointed to a new term on the Commission as

of August 31, 2020 or at any time since then.

31. Section 53 does not provide for any holdover period beyond the three-year term to

which Commissioner Title’s appointment was subject.

COUNT I
Declaratory Judgment that the Delivery Regulations are Contrary to Chapter 94G

32. The CDA repeats and reincorporates by reference paragraphs 1–31 as if set forth

herein.

33. Marijuana Retailers are statutorily entitled to deliver marijuana to consumers

under their retail licenses.

34. The Delivery Regulations allow delivery but do not allow Marijuana Retailers to

deliver under their retail licenses. As such, the Delivery Regulations are contrary to Chapter

94G.

35. Additionally, the Delivery Regulations provide that at some point in 2024 or later,

those who do not meet the economic empowerment or social equity requirements may seek a

delivery license. By requiring Marijuana Retailers to seek a delivery license after most have

been barred for at least three years, the Delivery Regulations are contrary to Chapter 94G.

36. Additionally, Chapter 94G provides that Marijuana Retailers may hold three retail

licenses, each of which would permit delivery; the Delivery Regulations provide that Marijuana

Retailers may obtain no more than two delivery licenses and, as such, are contrary to Chapter

94G.

37. Massachusetts law authorizes the judicial review of regulations through an action

for declaratory relief.

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 38. For the foregoing reasons, the Delivery Regulations are contrary to the

Commission’s enabling statute, Chapter 94G, and are therefore unlawful and must be declared

void.

COUNT II
Declaratory Judgment, Lack of Proper Vote to Pass Delivery Regulations

39. The CDA repeats and reincorporates by reference paragraphs 1–38 as if set forth

herein.

40. The Commission may only act by a vote of at least three Commissioners.

41. Commissioner Title’s three-year term concluded on August 31, 2020.

42. Because the Commission’s November 30, 2020 vote to promulgate the Delivery

Regulations only had the vote of two lawfully seated Commissioners, the Delivery Regulations

were not validly promulgated.

43. Massachusetts law authorizes the judicial review of regulations through an action

for declaratory relief.

44. For the foregoing reasons, the Delivery Regulations have not been validly

promulgated and must be declared void.

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 PRAYER FOR RELIEF

WHEREFORE, the CDA respectfully requests:

a. A declaration that the Delivery Regulations are unlawful and void because they

conflict with Chapter 94G;

b. A declaration that the Delivery Regulations are unlawful and void because they

were not validly promulgated by vote of three lawfully seated Commissioners;

c. Judgment in favor of the CDA and against the Commission on Counts I-II;

d. An award of the CDA’s costs, expenses, and reasonable attorney’s fees; and

e. Any such other relief that this Court deems just.

COMMONWEALTH DISPENSARY
ASSOCIATION, INC.

By its attorneys,

/s/ Matthew Baltay

Matthew Baltay (BBO #638722)
Jonathan Bard (BBO #696819)
FOLEY HOAG LLP
Seaport World Trade Center West
155 Seaport Boulevard
Boston, Massachusetts 02210
617-832-1000
mbaltay@foleyhoag.com
ybard@foleyhoag.com
Dated: January 13, 2021

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