Judge denies dispensary request for restraining order over city, state cease and desist letters
The parent company for Wild West Wellness, a dispensary in downtown Great Falls, has filed a civil lawsuit against the Montana Department of Revenue’s Cannabis Control Division and the City of Great Falls.
M and D Retail, based in Bozeman, operates dispensaries in Great Falls, Billings, Bozeman and Helena.
The Great Falls store is located at 725 1st Ave. N.
Both the City of Great Falls and the Montana Department of Revenue had issued cease and desist letters to Wild West Wellness, which they say is selling marijuana products in violation of city code and state law.
The city hand delivered their letter on April 26 and the DoR served their order on May 3.
City, state file cease and desist letters against downtown marijuana dispensary
According to the documents, Wild West Wellness is operating in violation of city zoning and without a safety inspection certificate, and without a state license to operate a marijuana dispensary.
The shop is in a C-4 commercial zoning district.
The city zoning code only allows marijuana activities in industrial districts.
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David Dennis, city attorney, wrote in his letter that if the shop “fails to cease and desist operations immediately, the City of Great Falls will seek injunctive relief, along with fines, penalties and attorney fees and costs, as allowed by law.”
In the DoR order, the Cannabis Control Division wrote that the document is notice of their intent to apply for an injunction without further notice if the cease and desist is not obeyed.
Under state law, the DoR may assess a penalty of up to $1,000 per day for each day the order is violated.
The department can also seek its costs for the investigation and attorneys fees in pursuing a district court order.
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On May 29, M and D Retail filed a complaint in Lewis and Clark County’s district court, asking the court to declare a DoR rule unlawful, that the city and DoR conducted illegal searches and grant a temporary restraining order.
On May 30, Judge Christopher Abbott issued an order denying the request for a temporary restraining order and set a hearing for July 22.
M and D Retail argues that the DoR violated its due process rights by preemptively stating it won’t grant the company a license for the Great Falls store.
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Abbott wrote that M and D Retail would have to show that its due process claim doesn’t fall under another section of law that suggests there is no liberty or property right in marijuana licensing.
He also wrote that M and D hasn’t provided any record that would allow the court to conclude it would likely obtain a license without the “alleged animus” of DoR’s Cannabis Control Division.
Abbott wrote that the company hasn’t shown that the city or DoR has conducted any illegal searches or seizures.
“Both cease and desist communications appear to be based on purchases made, presumably during business hours. Wild West is a retail business open to the public, and so it it unclear that it has any expectation of privacy when a government employee enters during business hours, remains in areas open to the public and makes purchases, which Wild West could have refused to complete, that can be made by the public at large. If the facts are different, M and D has not shown how,” Abbott wrote.
M and D “has not met its burden of showing a temporary restraining order is appropriate and necessary until the city and CCD can be heard in opposition to its request for a preliminary injunction. At the same time, M and D is entitled to a hearing on the motion,” Abbott wrote in setting the hearing for July.
