[Adopted 8-9-2021 by Ord. No. 21-05. Amendments noted where
applicable.]
The purpose of this title is to set forth procedures and standards
for the issuance of local licenses for marijuana businesses and medical
marijuana registered caregiver home establishments in order to protect
public health, safety and welfare.
As used in this title, the terms below are defined as indicated.
All other terms used in this title, if not defined below, are the
same definition as set forth in 22 M.R.S.A. § 2422 (for
medical marijuana businesses), 28-B M.R.S.A. § 102 (for
adult use marijuana businesses), or the Land Use and Development Code,
Title 16 of the Kittery Town Code.
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 title or within a license issued pursuant to this title.
A person licensed pursuant to this title.
The Town Council or Town Manager as designated in this title
to be the issuer of the particular type of marijuana business license.
An adult use marijuana store, medical marijuana registered
dispensary, medical marijuana caregiver retail store, marijuana cultivation
facility, marijuana manufacturing facility, or marijuana testing facility,
all as defined in the Town of Kittery Land Use Ordinance.[1]
A medical marijuana registered dispensary, medical marijuana
caregiver retail store or an adult use marijuana store.
A permitted medical marijuana registered caregiver business
operating on the property of a dwelling unit serving as a primary
residence of the registered caregiver.
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 the
marijuana business and/or has a controlling interest in the 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.
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.
The Town Manager of the Town of Kittery or designee.
A marijuana business or medical marijuana registered caregiver
home establishment may not begin or continue operations unless it
has and is in possession of a license issued pursuant to this title.
Marijuana registered caregivers that hold an approved land use permit
(major home occupation approval) and/or are operating as of the effective
date of this section must submit a completed application within 30
days of the effective date, and 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 home establishment
license applications, whether new or renewal, must be reviewed and
may be approved by the Town Manager. All other initial license applications
are to be reviewed and may be approved by the Town Council after public
hearing. The Town Manager is the licensing authority for renewal licenses,
as specified in § 5.11.5E.
The review procedures described below are 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 title as well as other applicable local, state or federal laws
and, for license renewals, the licensee's record of compliance
with the same.
A.
Application. License applications must be submitted to the Town
in writing using a form prepared by the Town for the purpose and must
include all information required by this title and by the form. Applications
for initial licensure of marijuana retail stores may not be accepted
until the applicant has been precertified in accordance with § 5.11.9C.
B.
Initial review. The Town Manager is responsible for the initial
investigation of the application to ensure compliance with the requirements
of this title and to obtain recommendations from other Town officials
as required.
C.
License conditions. The licensing authority has the authority
to impose any conditions on a license that may be reasonably necessary
to ensure compliance with the requirements of this title or to address
concerns about operations. Failure of any licensee to comply with
such conditions are considered a violation of the license and of this
title.
D.
Staff review. No license may be granted by the licensing authority
until the Town Manager, Police Chief, Fire Chief, Code Enforcement
Officer, and other staff as deemed appropriate by the Town Manager,
have all made positive recommendations regarding the applicant's
ability to comply with this title or any other applicable Town ordinance,
Planning Board conditions of approval, or state or federal law enforced
by such officials.
E.
Renewal. For renewal licenses, the application, fee and review
process are the same as for initial licenses except that the Town
Manager is the licensing authority. If any reviewing staff member
finds that new conditions should be attached to the renewal license
or that the renewal license should be denied, the renewal application
must be forwarded to the Town Council for final action. Renewal licenses
for marijuana retail stores may be granted by the Town Manager only
upon a finding that the store has in the past license term been operating
in accordance with this title as well as with the store's previously
submitted operations plan.
F.
Type of license. Licenses may be approved only for the type(s)
of use identified in the application. A licensee who intends to expand
or convert the licensed premises to a different type of use that is
not specifically approved in a license must obtain a new license for
that use.
G.
State approvals. Any licensee that is required to obtain approval
from the State of Maine will provide the Town copies of all necessary
approvals prior to operating the licensed business.
H.
Inspection. Any licensee must, prior to operating the licensed
business, contact the Town to request an inspection to determine the
compliance, as built, with the requirements of this title, any conditions
of licensure, and the submitted operations plan (if applicable). Any
municipal official with authority to make recommendations, grant licenses
or enforce this or other municipal ordinances regarding marijuana
businesses or medical marijuana registered caregiver home establishments
has authority to enter the premises of an applicant or licensee without
notice during operating hours to make any inspection reasonably necessary
to ensure continued compliance with all applicable Town ordinances.
I.
License term. Each license issued under this title is 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 should be submitted no fewer than
60 days prior to expiration of the existing term to allow for timely
processing. Any licensee who fails to apply for a renewal license
prior to expiration of the existing term does not have authority to
operate until a renewal license is granted. A late fee of 10% of the
total license fee will be assessed to applications submitted one to
30 days past expiration of the existing license, and 20% will be assessed
for applications submitted thereafter. Any marijuana retail store
which fails to obtain a renewal license within 30 days following expiration
of the existing term forfeits its license, unless the applicant timely
submitted the application and the delay is due to circumstances not
within the applicant's control.
J.
Forfeiture. A license is forfeited if the licensee:
(1)
Fails to obtain a renewal license within 30 days of expiration
of an existing license;
(2)
Makes any other active use of the licensed premises other than
for the licensed business operation; or
(3)
Is not actively operating the licensed business for a period
exceeding six consecutive months, except that the licensing authority
may, upon written request from the licensee, allow for a suspension
of use of up to one year if the suspension in use is caused by damage
to the licensed premises, renovation, repair, active attempts to sell
the licensed premises as a turnkey business operation, or other bona
fide circumstances out of the licensee's control.
Each applicant for a license must complete and file an application
on the form provided by the Town, together with the applicable license
fee. If multiple types of business operations are to be conducted
on a single premises, each business operation must obtain a separate
license and pay the applicable fees associated with the appropriate
business type. Applications must include:
A.
Proof of the applicant's right, title, or interest in the
premises, such as a deed, lease, sublease, (must include lease and
authorization for sublease, if applicable) or purchase and sale agreement.
B.
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.
C.
Evidence of all state approvals or conditional approvals required
to operate the business, including, but not limited to, a state license
as defined by this title, caregiver registration, a state retail certificate,
or a state health license.
D.
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 business.
E.
If not included in the applicant's state license application,
an affidavit on a form to be provided by the Town 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.
F.
A release for each applicant and for each officer, owner, member,
manager or partner of the applicant seeking a license allowing the
Town of Kittery or its officials to obtain criminal records and other
background information related to the individual.
G.
Evidence of all land use approvals or conditional land use approvals
required to operate the business, including but not limited to building
permit, special exception approval, site plan review approval, and/or
a change of use permit. Where site plan approval is required, evidence
of submission of a complete site plan review application is sufficient,
but any license issued is conditioned upon site plan approval and
issuance of any necessary building or occupancy permits.
H.
Evidence of all other local approvals or conditional approvals
required to operate the business, including any applicable food or
victualer's license. If the marijuana business or medical marijuana
registered caregiver home establishment is not in use as of the date
of license application, the applicant must list any licenses required
and issuance of such licenses will be made a condition of the marijuana
business license.
I.
A description of the premises for which the license is sought,
including a plan of the premises.
J.
A copy of any state or municipal license held for any other
marijuana business, including any home occupation, 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.
K.
Certification from the Fire Chief that the location of the marijuana
business or medical marijuana registered caregiver home establishment
on the subject premises will not pose an undue risk of fire or other
safety hazard.
L.
For marijuana retail stores, an operations plan, describing
the applicant's:
(1)
Security plan;
(2)
Provisions to ensure against loitering and using marijuana and
marijuana products on or near the premises;
(3)
Protocols for hiring and training employees;
(4)
Experience and training in the State of Maine's seed-to-sale
tracking system;
(5)
Protocols for odor control and disposal of waste marijuana or
marijuana products;
(6)
Protocols for ensuring the safety and security of product; and
(7)
Fire suppression annual certification.
If the Town determines that a submitted application is not complete,
the Town must notify the applicant of the additional information required
to process the application. If such additional information is not
submitted within 30 days of the Town's request, the application
may be denied.
A license for a marijuana business may be transferred to another
owner if an updated application form and ownership affidavit are provided
to the Town and all persons listed on the affidavit successfully pass
background checks and otherwise meet the criteria of this title. See
§ 5.11.9F regarding transfer of licenses for marijuana retail
stores.
Marijuana business and medical marijuana registered caregiver
home establishment licenses are limited to the premises for which
they are issued and are not transferable to a different location.
A licensee who seeks to operate in a new location must acquire a new
license for that location.
A.
Limit on marijuana retail store licenses. No more than one licensed
marijuana retail store will be permitted per allowable zone as described
in Title 16.3.
B.
No business may have more than one marijuana retail store license
in Kittery. The Town will utilize the Maine Tax Identification Number
to determine compliance.
C.
Preapplication required. Applications for initial licensure
of marijuana retail stores will not be accepted for processing unless
and until the applicant has successfully completed a preapplication
process as set forth here.
(1)
Preapplication forms will be available starting on the effective
date of this title. Applicants seeking licensure as a marijuana retail
store must complete the form and return it to the Town along with
the following supporting documentation:
(a)
Completed, signed and notarized ownership affidavit.
(b)
Preapplication fee.
(c)
Evidence of right, title and interest in the premises
(deed, purchase and sale agreement, lease and/or sublease) or the
property owner's permission to operate at that location, if the
applicant is not the owner (letter from owner).
(d)
Evidence demonstrating the applicant's financial
capacity to build out (if applicable) and operate the marijuana retail
store (e.g., bank letter, letter of credit, loan commitment).
(e)
Evidence demonstrating that the applicant has applied
for conditional licensure from the State of Maine.
(2)
Upon receipt of a preapplication, the Town must note the date
and time of the receipt and, without unreasonable delay, process the
application to determine whether all required fields have been filled
and all required supporting documentation has been provided. If the
Town determines that a submitted preapplication is not complete, it
must notify the applicant of the additional information required to
process the preapplication. If such additional information is not
submitted by the deadline set by the Town, the preapplication will
be rejected.
(3)
The Town Manager must evaluate complete preapplications and
certify the eligibility of applicants if they meet the following standards:
(a)
The applicant has demonstrated right, title and
interest in the premises or owner permission to operate at the location;
(b)
The applicant has demonstrated adequate financial
capacity to build out (if applicable) and operate the retail store;
(c)
The premises is located in a zone in which marijuana
retail stores are permitted;
(d)
The applicant has applied for or received conditional
license approval from the State of Maine for the subject marijuana
retail store.
(4)
The Town Manager must issue a written decision to the applicant
indicating whether it has met the standards for preapplication certification.
Applications for licensure may be submitted as soon as the certification
decision is issued.
D.
Priority.
(1)
Pre-license applications for marijuana retail stores will be
received and processed until the deadline date announced by the Town
on the first day preapplications will be accepted. The deadline will
be no less than 30 days and no more than 45 days from the first day
applications will be accepted.
(2)
Licenses for marijuana retail stores will be assigned based
on lottery, conducted by the Town, within 10 days of the deadline
for preapplications. The first preapplication selected by lottery
for each allowable zone will be invited to provide a completed license
application within 30 days, which will be processed in accordance
with § 5.11.6.
E.
Waiting list procedures. A wait list will be established by
lottery for each allowable zone, at the same time the priority lottery
is conducted for § 5.11.9D. Once the wait list is established,
each new applicant will be added to the end of the wait list. If a
license for a marijuana retail store becomes available, the Town will
invite the next applicant on the wait list for the corresponding zone,
to apply for licensure. If such applicant does not submit an application
within 30 days from invitation, the Town must proceed to the next
applicant. Applications will not be processed from the wait list if
there have been any material changes to ownership, as indicated on
the ownership affidavit, or where there is a change to location of
the premises.
F.
Change in ownership of marijuana retail store. In the event
of a proposed change in ownership of a marijuana retail store (including
a material change of members of an LLC or partnership), the new owner(s)
must apply for a new license within 30 days following the date of
the transfer by submitting a full, completed/updated application package
to the Town. The application is subject to the same application process
as new licenses and, after initial staff review, will be presented
to the Town Council for consideration if the proposal involves a change
in majority ownership or control of the marijuana retail store. If
the new owner does not apply for a new license within said thirty-day
period, the license will be considered forfeited. The license may
not be transferred if any active use other than for the licensed marijuana
retail store has been made of the licensed premises prior to or within
the 30 days following the transfer of ownership.
A license application for a marijuana business or medical marijuana
registered caregiver home establishment must be denied by the licensing
authority, suspended by the Town Manager, or after notice and hearing
revoked by the Town Council, if the applicant, or any owner of the
applicant or licensee:
A.
Fails to meet the requirements of this title.
B.
Is not at least 21 years of age.
C.
Has had a license required for the marijuana business or medical
marijuana registered caregiver home establishment suspended or revoked
by the Town, by a municipality in the State of Maine, or by the State
of Maine.
D.
Is in violation of this or any ordinance or has unpaid penalties
assessed by a court, related to the marijuana business or medical
marijuana registered caregiver home establishment.
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 marijuana, alcohol, or any scheduled drug to
a minor.
I.
Has provided false or misleading information in connection with
the license application.
In order to obtain and retain a license pursuant to this title,
the applicant/licensee must demonstrate that the following requirements
are met. The licensee must comply with each of these requirements
during the term of the license:
A.
Display of license. The current license must be displayed at
all times in a conspicuous location within the premises.
B.
Premises. All licensed premises must be fixed, permanent locations.
Licensees are not permitted to operate marijuana establishments in
other than the licensed premises, such as at farmer's markets,
farm stands or kiosks.
C.
Loitering. The facility owner/operator must make adequate provisions
to prevent patrons or other persons from loitering on the premises.
It is 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.
D.
Other laws. A marijuana business or medical marijuana registered
caregiver home establishment must 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 title,
the more restrictive provisions control.
E.
Changes to operations. Marijuana businesses and medical marijuana
registered caregiver home establishment must 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 must promptly provide the Town with a copy of such notification.
If the Town determines that the change is not in accordance with the
requirements of this title, or requires additional conditions of approval,
the change must be forwarded to the Town Council for consideration.
A.
The following appeals may be decided by the Town Council in
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 Manager's denial of an application.
(2)
Appeal by any aggrieved party having legal standing of any decision
by the Town Manager to grant a license under this title.
(3)
Appeal by a licensee challenging conditions attached to a license,
to which the licensee objects.
Appeals must be filed with the Town Clerk within 30 days of
the date of the decision subject to appeal. The Town Council must
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.
B.
Appeals from any decision of the Town Council under this title
may be made only to York County Superior Court within 30 days of the
date of the decision being appealed.
The operation of any marijuana business or medical marijuana
registered caregiver home establishment without the required license
or in violation of the requirements of this title is a violation of
this title. The Town Manager must enforce the provisions of this title.
A violation of any provision of this title is a civil violation, and
a civil penalty of $250 to $2,500 applies and may be assessed for
each day that the violation continues. The penalty for operating a
marijuana business or medical marijuana registered caregiver home
establishment without a valid license is $2,500 per day for marijuana
retail stores and $500 per day for other marijuana businesses or medical
marijuana registered caregiver home establishments. The Town Manager
may suspend the license, and the Town Council may revoke the license
after notice and hearing.
Except as otherwise specifically provided herein, this title
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 title and the provisions of said Acts or any other applicable
state or local law or regulation, the more restrictive provision must
control.
