By Diana Novak Jones

Law360 (April 14, 2020, 6:50 PM EDT) -- Massachusetts marijuana advocates are asking for an advisory opinion from the state's attorney general addressing whether Gov. Charlie Baker can restrict adult-use marijuana sales to state residents, as part of a bid to get Baker to lift a closure order shuttering recreational cannabis businesses during the COVID-19 pandemic.

The advocates, which include the New England branch of the Marijuana Policy Project and the backers of the state's 2016 legalization ballot initiative, sent letters to the Massachusetts Legislature on Monday urging it to request the opinion from Attorney General Maura Healey.

While medical marijuana retailers were allowed to remain open, Baker ordered the recreational marijuana businesses closed effective March 24 as part of the state's coronavirus mitigation efforts. The thinking was that keeping adult-use dispensaries open would draw people from neighboring states where marijuana has not been legalized, the governor said.

But the group behind Monday's letters, led by cannabis consultant Jim Borghesani, said Baker can simply bar out-of-staters from shopping at the state's dispensaries.

"We are asking these bodies to step up and ask the attorney general for an opinion that will officially settle the question of whether the governor has the authority to restrict retail cannabis sales to Massachusetts residents," Borghesani said in a statement. "We are confident that he does, and we are hopeful that he will make Massachusetts consistent with all other legal-cannabis states as soon as possible."

A Massachusetts state law says the Legislature, governor or an advisory body he oversees called the Governor's Council can ask the attorney general to weigh in on questions of law.

Borghesani, who previously served as the director of communications for the 2016 campaign to legalize, called Baker's decision to close recreational marijuana dispensaries "devastating" for these stores, many of which only recently opened their doors.

"The governor chose to keep retail liquor stores open and close retail cannabis stores," Borghesani said. "We're asking for equal treatment."

Massachusetts appears to be the only state with an adult-use marijuana industry that has determined those businesses are nonessential.

Some retailers have sued Baker over the closures in state court. That suit, which is ongoing, claims Baker's order violates the constitutional rights of the business owners and exceeds his executive authority.

In a hearing on the suit Tuesday, attorneys for the plaintiffs argued that Baker's reasoning for the closure order doesn't make any sense.

The opinion Borghesani's group is seeking is not related to the lawsuit, although one of the plaintiffs, Stephen Mandile, is part of the group seeking it, Borghesani said.

The adult-use businesses have pointed out to Baker that he could bar sales to nonresidents before, but the governor has said he isn't sure it would be legal. But attorneys have said it would be appropriate for the state to enact that type of restriction, in part because the commerce clause wouldn't apply to a federally illegal industry.

In a statement, Matt Simon, New England political director for the Marijuana Policy Project, called a restriction on who can buy adult-use products a "sensible measure deemed both reasonable and legal by policy experts."

"The only beneficiaries of the current shutdown are unregulated sellers of cannabis, who — unlike licensed retailers — are not impacted by government decrees," Simon said.

--Additional reporting by Chris Villani. Editing by Abbie Sarfo.

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