MENOMINEE, MI — They’ve been open for weeks, but a judge on Friday, Nov. 3, ordered three U.P. marijuana shops embroiled in a legal battle to close.
Menominee Circuit Judge Mary Barglind demanded officials in Menominee, a city on the Wisconsin border in the western U.P., shutter Lume, which operates nearly 40 stores statewide; Higher Love, with six U.P. stores, and Nirvana Center, which has 13 other Michigan stores.
“Please accept our apologies — our Menominee store is temporarily closed due to legal actions taken by our competitors, Rize and The Fire Station,” Higher Love posted in a message to customers on Facebook Friday. “We appreciate your support in the face of this unforeseen challenge and would encourage you to show it by avoiding stores who would deny others access to our favorite plant.”
There’s currently a marijuana turf war taking place in Menominee. It has the first two licensed marijuana shops in Menominee, Rize and the Fire Station, pitted against six other shops trying to also operate in town.
Barglind said Lume, Nirvana Center and Higher Love violated her Sept. 26 preliminary injunction in which she ordered Menominee to maintain the “status quo” related to marijuana business activity while a lawsuit filed by Rize, Fire Station and a ballot committee is resolved. This ruling meant Menominee couldn’t issue any more marijuana licenses.
What the city should do with the businesses it has already issued licenses to — Lume, Higher Love and Nirvana Center — was more complicated.
Attorneys on Sept. 27 posed the question to Barglind: if the businesses weren’t open at the time of the ruling, are they allowed to open? Barglind issued a clarification on Oct. 17 that stated: “Any license or licenses issued to entities that were not open and operating on September 26, 2023 at 1 p.m. may not open to the public to sell marijuana.”
Menominee didn’t close the stores, so Rize, represented by the Mike Cox law firm, filed a motion asking the judge to intervene.
“We appreciate Judge Barglind followed the evidence and the law to shut down those who did not follow her court orders growing out of the Menominee City Council’s numerous violations of the Open Meeting Act and violating the rights of its own citizens to vote on marihuana policy in Menominee,” said Attorney Michael A. Cox, who represents Rize. “It is also shameful that the three companies hired employees with fake promises when they knew they were violating the law by even opening.”
Prior to the Oct. 17 clarification, all three businesses had already opened. Lume and Higher Love were limited to curbside sales and Nirvana Center opened its retail store.
MLive visited all three stores on Oct. 9. Lume and Nirvana Center declined interviews. Lindsay Martwick, the Higher Love director of retail, said the shop began “running transactions on Sept. 15.”
“So we’ve been open for a couple weeks,” Martwick said. “It was kind of a silent open … so we didn’t largely publicize that we were open that early and we’ve been running transactions since.
“Our soft opening was last Monday (Oct. 2) and then our grand opening is today (Oct. 9).”
Higher Love part-owner and president, Joni Moore, filed an affidavit with the court stating that Higher Love “has been open and operating” since Sept. 15.
However, on Sept. 26., Menominee City Manager Brett Botbyl said he sent a city inspector to Lume, Higher Love and Nirvana Center. The inspector reported none of the shops were open for business.
“The uncontroverted evidence demonstrates that none of these stores were open and selling marijuana to the public as of September 26, 2023,” said the Mike Cox law firm motion filed on Nov. 2. “Despite being presented with the evidence and having its own representative independently confirm the same, the city refuses to act out of an improper concern for disrupting the financial interest of the entities that are paying its legal fees.
“Consequently, plaintiffs must turn to this court to seek relief from the breach of the status quo and request immediate enforcement of the court’s prior orders to prevent further irreparable harm from occurring.”
The Menominee City Council triggered the legal battle that prompted the closures when it voted to create a new marijuana licensing ordinance and allow the opening of at least six new marijuana businesses.
In 2021, under a previous ordinance, the city granted licenses to two marijuana businesses, Rize and the Fire Station. Those businesses expected they would be the only two businesses allowed to operate in Menominee.
The openings of Rize and the Fire Station were delayed when five marijuana businesses or their parent companies, including Lume, Nirvana Center and Higher Love, filed lawsuits against Menominee in late 2021. Barglind, who also presided over those lawsuits, found in May that Menominee’s process was legal and dismissed the lawsuits.
The losing marijuana companies appealed and convinced the majority of the Menominee City Council to accept a settlement agreement. The agreement would award the five companies, as well as a six business that threatened litigation, licenses. It also allowed unlimited marijuana licenses in the future and guaranteed Menominee it would not incur any legal costs that might arise from acceptance of the settlement. The marijuana companies would pay any legal fees.
In response to the settlement, Rize and the Fire Station funded a ballot referendum effort by the Committee to Stop Unlimited Marijuana Shops with the intent of allowing voters to possibly reverse the new settlement plan. It obtained the required signatures to get the question on the ballot.
The City Council, however, found a loophole to block a public vote. The majority voted 6-3 to repeal the settlement ordinance and pass an almost exact duplicate, except the new version contained $15,000 in funding for the police department. The Menominee City Charter bans ballot referendums on ordinances that include agency funding. The change made the new ordinance referendum-proof.
The Committee to Stop Unlimited Marijuana Shops, Rize and the Fire Station then sued over claims that the City Council violated the Open Meetings Act while taking the actions to subvert the referendum and continue with the plan to add six new marijuana shops.
The Fire Station opened in July and Rize in August.
In her Sept. 26 ruling to maintain the status quo, Barglind found that there were likely Open Meetings Act violations related to closed sessions conducted by the City Council, meaning the decisions made as a result of those closed meetings could be invalidated, including the move to issue six new marijuana licenses.
“Judge Barglind would not have ordered (Lume, Nirvana Center and Higher Love) closed unless she was satisfied that the stores disobeyed her orders and the city was not moving to close them down,” Cox told MLive. “As you probably know, the offending marijuana stores pay the legal fees for the city under the crazy settlement that the city signed with Higher Love, Lume, and Nirvana (that) essentially allows stores to dictate to city employees.”
MLive requested but didn’t receive comment from attorneys representing Lume, Higher Love or Nirvana Center.
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A Menominee County judge on Friday, Nov. 3, ordered three marijuana shops to close their doors. Read More