Portland voters have the chance to eliminate the 20-store cap on marijuana stores in Maine’s biggest city on Election Day.

“Government shouldn’t be in the business of picking winners and losers,” said marijuana advocate David Boyer, who is leading the Yes on F referendum campaign. “We should let the consumers and the free market decide how many marijuana shops we need, and which ones should survive. We should treat marijuana stores just like we do our craft breweries.”

In some ways, however, the Portland City Council has already beaten marijuana referendum advocates like Boyer to the punch. It voted 5 to 3 last week to suspend the 20-store cap and a 250-foot buffer between stores for this first round of retail licensing, and is allowing all 36 eligible retail applicants to move ahead to the final stages of the local authorization process.

If they’re all licensed, Portland would have more marijuana stores per capita than Denver, the capital city of the first U.S. state to legalize recreational marijuana. At 36 stores, Portland would have a marijuana retail location for every 1,838 residents compared to Denver and its 364 marijuana retailers, which works out to a store for every 1,998 city residents.

But the passage of the ballot question could still open the door to additional businesses and eliminate any cap going forward. And it would ease the city’s rules about how close the businesses can be to each other in the long term, although the impact on the first round of licensees is unclear because of the council’s vote to suspend its limits.

City officials don’t know how many more applications a successful Question F campaign could mean for Portland, but some, like Councilor Tae Chong, believe that even 36 stores would be too many, especially when Denver officials are now taking steps to scale back the number of stores they already have and are warning cities like Portland to go slow.

“The fact that people think we don’t have enough at 20 is a fallacy if you just look at the numbers,” Chong said. “I don’t think that’s going slow if our numbers to start off with are more than Denver’s … If our initial goal was to learn from cities where it didn’t work, our starting point shouldn’t be where we are going to make the same mistakes as Denver.”

City officials don’t yet know what a successful referendum would mean for the handful of eligible applicants located within 100 feet of each other. The original city ordinance requires a 250-foot buffer between stores, but the council voted to suspend that in the first round of licensing along with the 20-store cap, meaning all 36 applicants could proceed, regardless of proximity.

Passage of the referendum question would set the buffer at 100 feet. That change was supposed to make things easier for applicants, but it could now end up making it impossible for two or three retailers to survive a newly reinstated proximity test. It’s not clear how the city would decide which of the clustered stores to license.

City officials are scrambling to figure it out, but they may not have an answer by Election Day. There is a small window of time – about two weeks – between when the council vote takes effect in mid-November and when the referendum would take effect in early December. But it is unclear if Portland can license all the clustered shops before referendum results kick in.

Some applicants still need land-use and building permits for a final city license. Once they have city licenses, all the businesses must apply for state licenses, a process that could take weeks or months.

It’s not clear if the council’s recent vote will affect the referendum outcome. Portland voters have generally supported marijuana campaigns, ranging from decriminalization to recreational legalization, but with 36 local retailers now eligible to open up shop in the city, and recreational stores already open in neighboring South Portland, voters may not see the point.

But advocates like Boyer say eliminating the cap is still important, even with the number of stores allowed now almost double what the city ordinance allows. The council vote doesn’t do away with the cap forever, he noted. Under current conditions, new applicants wouldn’t be allowed until after the total number of stores drops back below 20.

Unless the city is hit by an epidemic of store closures, the council vote locks up Portland’s marijuana industry for years, he said.

Also, only four of the 36 eligible retailers will sell medical cannabis, which means patient access will decrease under the current licensing scenario despite the council vote, Boyer said. They could shop at a recreational shop, but prices there are higher, in part due to a 20 percent adult-use marijuana tax compared to medical marijuana’s 5.5 percent tax rate.

Unlike past marijuana campaigns, the no-cap ballot measure is a no-frills, low-budget effort consisting of Boyer and a few retailers afraid of getting shut out under a 20-store cap spreading the word through flyers, social media and lawn signs. They are counting on high-profile races to draw a big Election Day crowd among a generally pro-marijuana electorate.

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