[HISTORY: Adopted by the Town Council of the Town of Windham 5-26-2020 (Ch. 160 of the 1991 Code);
amended 2-9-2021; 7-13-2021; 12-14-2021. Subsequent amendments noted where applicable.]
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
This chapter is enacted pursuant to authority granted under
30-A M.R.S.A. § 3001, 22 M.R.S.A. § 2429-D and
28-B M.R.S.A. § 402. The purpose of this chapter is to set
forth procedures and standards for the issuance of local licenses
for marijuana businesses in order to protect public health, safety
and welfare.
As used in this chapter, the terms below shall be defined as indicated. All other terms used in this chapter, if not defined below, shall have the same definition as set forth in § 120-301 of Chapter 120, Land Use.
A person who has submitted an application for licensure as
a marijuana business pursuant to this chapter.
The premises specified in an application for a license pursuant
to this chapter or within a license issued pursuant to this chapter.
A person licensed pursuant to this chapter.
The Town Clerk or, if referral to the Town Council is required
pursuant to this chapter, the Town Council.
An adult use marijuana store, medical marijuana caregiver retail store, medical marijuana registered caregiver, medical marijuana registered caregiver (home occupation), marijuana cultivation facility, marijuana manufacturing facility, marijuana registered dispensary, or marijuana testing facility, all as defined in Chapter 120, Land Use.
[Amended 4-12-2022 by Order No. 22-062]
A person whose beneficial interest in a marijuana business
is such that the person bears risk of loss other than as an insurer,
has an opportunity to gain profit from the operation or sale of a
marijuana business and/or has a controlling interest in a marijuana
business.
A natural person, partnership, association, company, corporation,
limited liability company or organization, or a manager, agent, owner,
director, servant, officer or employee thereof. "Person" does not
include any governmental organization. Premises shall mean the physical
location at which a marijuana business is to conduct its business.
Any license issued by the State Licensing Authority.
The authority created or designated by the state for the
purpose of regulating and controlling licensing for marijuana businesses.
Effective 30 days following enactment of this chapter ("the
effective date"), a marijuana business shall not begin or continue
operations unless it has received and is in possession of a license
issued pursuant to this chapter. Marijuana businesses that hold an
approved land use permit and/or are operating as of the effective
date shall submit a completed application within 30 days of the effective
date but shall have a grace period of 60 days after the effective
date to receive a license, which may be extended by order of the Council
if justified due to the anticipated time line of the review process.
All medical marijuana registered caregiver and medical marijuana
registered caregiver (home occupation) license applications, whether
new or renewal, shall be reviewed and may be approved by the Town
Clerk. All other new license applications shall be reviewed and may
be approved by the Town Council after public hearing. Application
shall be made in writing using a form prepared by the Town for the
purpose and must include all information required by this chapter
and by the form. The Clerk shall give notice of any public hearing
held by the Town Council by publication in a newspaper of general
circulation in the Town of Windham at least seven days prior to action.
The review procedures described below shall be the same for
initial license applications as well as renewals, unless otherwise
indicated. In reviewing license applications, the licensing authority
and any consulting Town officials may consider the approval standards
under this chapter as well as other applicable local, state or federal
laws and, for license renewals, the licensee's record of compliance
with the same.
A.
The Town Clerk shall be responsible for the initial investigation
of the application to ensure compliance with the requirements of this
chapter and to obtain recommendations from other Town officials as
required.
B.
The licensing authority shall have the authority to impose any conditions
on a license that may be reasonably necessary to ensure compliance
with the requirements of this chapter or to address concerns about
operations. Failure of any licensee to comply with such conditions
shall be considered a violation of the license and of this chapter.
C.
No license shall be granted by the licensing authority until the
Police Chief, Fire-Rescue Chief, Health Officer and Code Enforcement
Officer have all made positive recommendations regarding the applicant's
ability to comply with this chapter or any other applicable Town ordinance
or state or federal law enforced by such officials. The Town Clerk
shall provide a copy of the license application to each official along
with a form upon which the official shall note his or her findings
and conclusions, as well as any recommended conditions of approval.
The Town Clerk shall automatically include any conditions of approval
recommended by the officials on an issued license for which the Clerk
is the licensing authority. The Council shall have discretion to attach
any conditions it deems necessary to any license it awards.
D.
For renewal licenses, the application, review process and reviewing
authority shall be the same as for initial licenses. If any official
consulted by the Town Clerk finds that a renewal license application
should not be approved, or if the Town Council so orders, the application
shall be forwarded to the Town Council for further review. In such
case, the Town Council shall, upon review of all staff recommendations
and applicable laws, make the final determination as to whether the
renewal license should be issued and/or any conditions to be attached.
All renewal applications for adult use marijuana stores, medical marijuana
registered dispensaries or medical marijuana caregiver retail stores
shall be reviewed by the Town Council, which shall issue a renewal
license only upon a finding that the store or dispensary has in the
past license term been operating in accordance with this chapter as
well as with the store's or dispensary's previously submitted operations
plan.
[Amended 4-12-2022 by Order No. 22-062; at time of adoption of Code (see
Ch. 1, General Provisions, Art. I)]
E.
Licenses shall be approved only for the type(s) of marijuana business(es)
identified in the application. A licensee who intends to expand or
convert the licensed premises to a type of marijuana business that
is not specifically approved in a license must obtain a new license
for that use.
F.
Any licensee that is required to obtain approval from the State of
Maine shall provide the Code Enforcement Officer and Town Clerk copies
of all necessary approvals prior to operating the licensed business.
G.
Any licensee other than a medical marijuana registered caregiver
(home occupation) shall, prior to operating the licensed business,
contact the Code Enforcement Department to request an inspection by
the Code Enforcement Officer and the Town Manager or his/her designee
to determine the marijuana business's compliance, as-built, with the
requirements of this chapter as well as the submitted operations plan
(if applicable).
H.
Any municipal official with authority to make recommendations, grant
licenses or enforce this or other municipal ordinances regarding marijuana
businesses shall have authority to enter the premises of an applicant
or licensee without notice to make any inspection reasonably necessary
to ensure compliance.
A.
Each applicant for a marijuana business license shall complete and
file an application on the form provided by the Town Clerk, together
with the applicable license fee. The applicant shall also pay an education
fee in an amount set by the Council. The current schedule of fees
set by the Town Council is on file with the Town Clerk. Said amount
shall be deposited into a designated Town account and granted at the
Council's discretion to educational institutions or nonprofit agencies
for support of initiatives aimed at educating Windham youth regarding
marijuana and other drugs. The application fee and education fee are
nonrefundable. If multiple types of marijuana businesses are to be
conducted on a single premises, the applicant shall pay the application
fee and education fee for each type of business. Two paper copies
and one electronic copy of the application as well as the following
supporting materials shall also be provided with the application as
marked exhibits, presented in an organized fashion:
[Amended 4-12-2022 by Order 22-062; at time of adoption of Code (see
Ch. 1, General Provisions, Art. I)]
(1)
A copy of the applicant's state license application and supporting
documentation, as submitted to the state licensing authority, if a
state license is required.
(2)
Evidence of all state approvals or conditional approvals required
to operate the marijuana business, including, but not limited to,
a state license as defined by this chapter, caregiver registration,
a state retail certificate, or a state health license. If an application
for such approval is pending as of the application date, the applicant
shall submit a copy of the application.
(3)
If not included in the applicant's state license application, attested
copies of any Articles of Incorporation, bylaws, operating agreement,
partnership agreement or articles of association that govern the entity
that will own and/or operate the marijuana business.
(4)
If not included in the applicant's state license application, an
affidavit that identifies all owners, officers, members, managers
or partners of the applicant, their ownership interests, and their
places of residence at the time of the application and for the immediately
preceding three years. Supporting documents, including but not limited
to motor vehicle operator's license, motor vehicle registration, voter
registration or utility bills, shall be provided.
(5)
A release for each applicant and for each officer, owner, member,
manager or partner of the applicant seeking a license allowing the
Town of Windham or its officials to obtain criminal records and other
background information related to the individual.
(6)
Evidence of all land use approvals or conditional land use approvals
required to operate the marijuana business, including, but not limited
to, building permit, conditional use approval, site plan review approval,
and/or a change of use permit. For adult use marijuana stores, marijuana
registered dispensaries and medical marijuana caregiver retail stores,
evidence of submission of a site plan review application is sufficient,
but any license issued shall be conditioned upon site plan approval.
(7)
Evidence of all other local approvals or conditional approvals required
to operate the marijuana business, including any applicable food or
victualer's license.
(8)
A description of the premises for which the license is sought, including
a plan of the premises.
(9)
A copy of any state or municipal license held for any other marijuana
business owned or operated by the applicant or by any officer, owner,
subsidiary, member, manager or partner of the applicant, as well as
any notices of violation received from the state or municipality for
such marijuana business and proof that any violation has been resolved.
(10)
For adult use marijuana stores, marijuana registered dispensaries
and medical marijuana caregiver retail stores, an operations plan,
describing the applicant's:
(a)
Security plan;
(b)
Provisions to ensure against loitering and using marijuana and
marijuana products on or near the premises;
(c)
Protocols for hiring and training employees;
(d)
Experience and training in Maine's seed-to-sale tracking system;
(e)
Protocols for odor control and disposal of waste marijuana or
marijuana products; and
(f)
Protocols for ensuring the safety and security of product.
B.
If the Town Clerk determines that a submitted application is not
complete, he or she shall notify the applicant of the additional information
required to process the application. If such additional information
is not submitted within 30 days of the Clerk's request, the application
may be denied.
A.
Each license issued under this chapter shall be valid for the term
of license granted by the state license authority ("the license year"),
or otherwise for one year from the date of issuance. Applications
for renewal licenses shall be submitted between 60 days and 90 days
prior to expiration of the existing term to allow for timely processing.
Any marijuana caregiver retail store, marijuana registered dispensary
or adult use marijuana store which fails to obtain a renewal license
prior to expiration of the existing term shall forfeit its license,
unless the applicant timely submitted the application and the delay
is due to circumstances not within the applicant's control. Any other
marijuana business licensee which fails to obtain a renewal license
prior to expiration of the existing term shall not have authority
to operate until a license is granted.
[Amended 4-12-2022 by Order 22-062]
B.
Total licenses; conversion of licenses.
[Amended 4-12-2022 by Order 22-062]
(1)
There shall be no more than two total issued licenses for adult use marijuana stores. There shall be no more than four total issued licenses in the aggregate for medical marijuana caregiver retail stores or marijuana registered dispensaries, except that any medical marijuana caregiver retail store that holds an approved land use permit or is operating as of the effective date may receive a license, provided it submits an application within 30 days of the effective date, as described in Subsection F of this section, and otherwise meets the provisions of this chapter.
(2)
A licensed medical marijuana caregiver retail store may be converted to a marijuana registered dispensary, and a licensed marijuana registered dispensary may be converted to a medical marijuana caregiver retail store, without loss of grandfathered status under Subsection B(1), provided an application is submitted to the Licensing Authority containing any updated submission materials pursuant to § 128-6, together with the full license fee for the requested use.
C.
Starting on the effective date, applicants for marijuana business
licenses may submit applications to the Town Clerk. A single applicant
may submit applications for both a medical marijuana caregiver retail
store and an adult use marijuana store for the same business premises;
however, only one of these types of license may be issued for a single
premises.
D.
Applications for medical marijuana registered caregiver, medical marijuana registered caregiver (home occupation), marijuana cultivation facility, marijuana manufacturing facility, marijuana registered dispensary or marijuana testing facility will be processed as received and, if applicable for renewals (see § 128-5D), forwarded to the Council for action. If additional documents or information are needed, the Clerk will contact the applicant to inform him or her of the deficiency.
[Amended 4-12-2022 by Order 22-062]
E.
Applications for medical marijuana caregiver retail stores, marijuana
registered dispensaries and adult use marijuana stores will be processed
upon receipt to determine whether the application is complete. If
additional documents or information are needed, the Clerk will contact
the applicant to inform him or her of the deficiency.
[Amended 4-12-2022 by Order 22-062]
F.
Applications for medical marijuana caregiver retail stores, marijuana
registered dispensaries and adult use marijuana stores will be held
until the 30th day following the effective date or publication of
license availability. On that date, the Clerk shall forward all completed
applications for such stores to the Town Council for further action.
[Amended 4-12-2022 by Order 22-062]
G.
The Council shall award initial licenses to medical marijuana caregiver
retail stores or marijuana registered dispensaries as follows:
[Amended 4-12-2022 by Order 22-062]
(1)
Licenses will first be awarded to medical marijuana caregiver retail
stores which held an approved land use permit for that use or were
operating as of the effective date, which submitted a completed application
on or before the 30th following the effective date, and which meet
the criteria of this chapter.
(2)
If fewer than four licenses are issued to existing medical marijuana caregiver retail stores as set forth in Subsection G(1), the Council shall assign priority points to each application which otherwise meets the criteria of this chapter as follows:
(a)
Zero to 12 points awarded based upon the completeness and content
of the applicant's operations plan. This number shall be determined
by assigning zero to two points for each required component of the
operations plan (zero for "does not meet," one for "meets," and two
for "exceeds").
(b)
One to three points if the applicant has demonstrated that it,
or its owner or manager, has operated a marijuana business in the
Town of Windham without any record of violations. Points shall be
awarded relative to the number and type of marijuana businesses operated
and duration of operation.
(c)
One point if the applicant has demonstrated that it, or its
owner or manager, has operated a retail marijuana business or marijuana
registered dispensary in the State of Maine, outside of Windham, without
any record of violations.
(d)
One point if the applicant has an existing lease or ownership
interest in the premises for which the license is sought.
(3)
For each point category that allows for a range, each Councilor present
and voting will assign a point value for that category to the application,
and those numbers will be averaged to produce the final points assigned
to the application for that category.
(4)
Licenses shall be awarded to the applicant(s) that have been assigned
the most priority points. If necessary, random lotteries shall be
held among applicants receiving the same number of priority points,
in descending order, until all available licenses have been issued.
H.
The Council shall award initial licenses to adult use marijuana stores
as follows:
(1)
Zero to 12 points awarded based upon the completeness and content
of the applicant's operations plan.
(2)
One to three points if the applicant has demonstrated that it, or
its owner or manager, has operated a marijuana business in the Town
of Windham without any record of violations. Points shall be awarded
relative to number and type of marijuana businesses operated and duration
of operation.
(3)
One point if the applicant has demonstrated that it, or its owner
or manager, has operated a retail marijuana business in the State
of Maine, outside of Windham, without any record of violations.
(4)
One point if the applicant has an existing lease or ownership interest
in the premises for which the license is sought.
(5)
For each point category that allows for a range, each Councilor present
and voting will assign a point value for that category to the application,
and those numbers will be averaged to produce the final points assigned
to the application for that category.
(6)
Licenses shall be awarded to the applicant(s) that have been assigned
the most priority points. If necessary, random lotteries shall be
held among applicants receiving the same number of priority points,
in descending order, until all available licenses have been issued.
I.
If an applicant elects not to accept a license that is awarded to it, and licenses remain for that license type, the Council shall award the license(s) from the remaining application(s) based upon the points awarded. Applications that are not awarded a license during the selection process for that business type, or that are submitted following the lottery, will be kept on hold for one year from the close of the initial selection process. If a license for the requested business type becomes available, the Council shall award the license from among previously and newly submitted applications using the process outlined in Subsections G and H above within 30 to 60 days of posting the availability of the license. The Clerk shall notify each applicant at the address shown on the application that of the meeting at which the applications will be considered, and that the applicant must submit any updated application materials prior to the meeting in order for the application to be considered. No new application fee shall be required within one year of initial submission.
J.
In the event of the proposed sale of an adult use marijuana store,
marijuana registered dispensary or medical marijuana caregiver retail
store, the tentative purchaser may apply for a new license to replace
the seller's license within 30 days following the date of the sale
but shall not operate the store or dispensary until a license is obtained.
If a purchaser does not apply for a new license within said thirty-day
period, the license will be considered forfeited. This preference
shall not apply if any use other than for the licensed adult use or
medical marijuana caregiver retail store or marijuana registered dispensary
has been made of the licensed premises prior to or within the 30 days
following the sale.
[Amended 4-12-2022 by Order 22-062]
K.
A marijuana business license shall be forfeited if the licensee:
(1)
Fails to obtain a new license prior to expiration of an existing
license;
(2)
Makes any other active use of the Licensed premises other than for
the licensed marijuana business; or
(3)
Does not make an active use of the licensed marijuana business for
a period exceeding six consecutive months, except that the licensing
authority may, in its discretion and upon request from the licensee,
allow for reasonable extension(s) of this provision for up to two
years total if the suspension in use is caused by delays in permitting
or buildout, damage to the licensed premises, renovation, repair,
active attempts to sell the licensed premises as a turnkey marijuana
business, or other bona fide circumstances out of the licensee's control.
(4)
Not withstanding 1 M.R.S.A. § 302, this amendment shall
be retroactive to September 22, 2020, the date upon which initial
licenses were first awarded to applicants.
L.
A license for an adult use marijuana store, marijuana registered dispensary or medical marijuana caregiver retail store that is forfeited or revoked pursuant to the provisions of this chapter shall not be made available to any other applicant unless the number of remaining issued licenses for that business type is lesser than the limit set forth in § 128-7B.
[Amended 4-12-2022 by Order 22-062]
A license application for a marijuana business shall be denied
by the licensing authority, and an existing license may be suspended
or revoked by the Town Council after notice and hearing if the applicant,
or any owner of the applicant or licensee:
A.
Fails to meet the requirements of this chapter.
B.
Is not at least 21 years of age.
C.
Has had a license required for the marijuana business suspended or
revoked by the Town, by a municipality in the State of Maine, or by
the state.
D.
Is in violation of this or any other ordinance or has unpaid penalties
assessed by a court related to the marijuana business.
E.
Has not acquired all necessary state and local approvals (other than
final state approval) prior to issuance of the license.
G.
Has been convicted of a criminal violation arising out of operation
of a marijuana business.
H.
Has, within 10 years prior to the date of the application, been convicted
of selling or furnishing marijuana, alcohol, or any scheduled drug
to a minor, or of allowing a minor under that person's control or
in a place under that person's control to consume any of these substances.
I.
Has provided false or misleading information in connection with the
license application.
In order to obtain and retain a license pursuant to this chapter,
the applicant/licensee shall demonstrate to the Town Clerk and all
reviewing officials that the following requirements are met. The licensee
shall comply with each of these requirements during the term of the
license:
A.
Display of license. The current license shall be displayed at all
times in a conspicuous location within the premises.
B.
All licensed premises shall be fixed, permanent locations. Licensees
shall not be permitted to operate marijuana businesses in other than
the licensed premises, such as at farmer's markets, farm stands or
kiosks.
C.
Security.
(1)
The licensed premises shall have lockable doors and windows and shall
be served by an alarm system which includes automatic notification
to the Windham Police Department.
(2)
The licensed premises shall have video surveillance capable of covering
the exterior and interior of the facility. The video surveillance
system shall be operated with continuous recording 24 hours per day,
seven days per week, and video shall be retained for a minimum duration
of 30 days. Such records shall be made available to law enforcement
agencies when investigating a criminal complaint.
(3)
The licensed premises shall have exterior spotlights with motion
sensors covering the full perimeter of the building(s).
D.
Ventilation.
(1)
The licensed premises shall comply with all odor and air pollution
standards established by ordinance.
(2)
All marijuana businesses, other than medical marijuana registered
caregiver (home occupation), shall have an odor mitigation system
installed that will provide odor control sufficient to ensure that
no odors are perceptible off the premises.
E.
The facility owner/operator shall make adequate provisions to prevent
patrons or other persons from loitering on the premises. It shall
be the licensee's obligation to ensure that anyone found to be loitering
or using marijuana or marijuana products in the parking lot or other
outdoor areas of a licensed premises is ordered to leave.
F.
A marijuana business shall meet all operating and other requirements
of state and local law. To the extent the State of Maine has adopted
or adopts in the future any law or regulation governing marijuana
businesses that conflicts in any way with the provisions of this chapter,
the more restrictive shall control.
G.
Marijuana businesses shall operate in accordance with all material
representations made in the approved license application and operations
plan (if applicable). If the licensee is required to notify the state
of a change related to the marijuana business, the licensee shall
promptly provide the Town Clerk with a copy of such notification and
the Town Clerk shall forward it to the Police Chief, Fire-Rescue Chief,
Health Officer and Code Enforcement Officer for their review. If any
of these officials determines that the change is not in accordance
with the requirements of this chapter, or requires additional conditions
of approval, the change shall be forwarded to the Town Council for
consideration.
A.
Change of premises. Licenses issued under this chapter shall not be transferable to a different premises, unless the new premises is located on the same lot or parcel as the originally licensed premises. Requests for a change of premises within the same lot or parcel shall be submitted to the Town Clerk along with relevant documentation regarding the new premises as required by § 128-6A(6), (8) and (10). The request for change of premises shall be reviewed in accordance with § 128-5, as relevant, and submitted to the licensing authority for approval.
B.
Change of ownership. There shall be no change in ownership, including partial ownership, of a marijuana business without advance approval by the Town. In the event of any change in ownership of a marijuana business, the licensee shall submit an updated ownership affidavit and background check authorization(s) to the Town Clerk. The Town Clerk may approve any requests for change in ownership upon a finding of compliance with § 128-8, except that any change in majority ownership of a marijuana business for which the Town Council is the licensing authority shall be forwarded to the Town Council for approval, after public hearing.
A.
The following appeals may be decided by the Town Council upon a de
novo hearing in which it will hear evidence on the application and
make its own findings of fact and conclusions of law:
(1)
Appeal of the Town Clerk's denial of an application.
(2)
Appeal by any aggrieved party having legal standing of any decision
by the Town Clerk to grant a license under this chapter.
(3)
Appeal by the applicant of any license granted by the Town Clerk
with conditions to which the applicant/licensee objects.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
B.
Appeals must be filed with the Town Clerk within 30 days of the date
of the decision subject to appeal. The Town Council shall hold the
hearing on the appeal and render a decision within 30 days of the
date of the appeal, unless all parties consent to a delay.
C.
Appeals of final determinations issued by the Town Council pursuant
to this chapter shall be made to the Cumberland County Superior Court
within 30 days of the date of the decision being appealed.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
The operation of any marijuana business without the required
license or in violation of the requirements of this chapter shall
be a violation of this chapter. The Windham Town Council or its designee
shall enforce the provisions of this chapter. A violation of any provision
of this chapter shall be a civil violation, and a civil penalty in
accordance with 30-A M.R.S.A. § 4452 shall apply. Current
penalties include fines of not less than $100 nor more than $2,500
per violation for each day that the violation continues. The penalty
for operating a marijuana business without a valid license shall be
$500 per day for each day that the violation continues. The Windham
Town Council may also revoke or suspend the license after notice and
hearing.
The provisions of this chapter are severable, and if any provision
shall be declared to be invalid or void, the remaining provisions
shall not be affected and shall remain in full force and effect.
Except as otherwise specifically provided herein, this chapter incorporates the requirements and procedures set forth in the Maine Marijuana Legalization Act, 28-B M.R.S.A. Chapter 1, as may be amended, and the Maine Medical Use of Marijuana Act, 22 M.R.S.A. Chapter 558-C, as may be amended. In the event of a conflict between the provisions of this chapter and the provisions of said Acts or any other applicable state or local law or regulation, the more restrictive provision shall control.
