Judge Issues Preliminary Injunction Blocking Detroit from Issuing Recreational Marijuana Business Licenses; Says Licensing Program “Likely Unconstitutional”

Last November, the City of Detroit announced its rules for allowing licensed adult-use recreational marijuana sales, which included controversial provisions meant to give “social equity applicants” a competitive opportunity. Applicants are entitled to preferential treatment if they have lived in Detroit for:

  • 15 of the last 30 years
  • 13 of the last 30 years and are low-income
  • 10 of the last 30 years and have a past marijuana-related criminal conviction, or
  • Have parents who have a prior controlled substance record and still live in the city

These rules gave rise to a lawsuit filed on March 2, 2021, in Wayne County Circuit Court, by a plaintiff who has been a Detroit resident for 11 of the past 30 years who intends to apply for an adult-use retail establishment license.

The lawsuit alleges that the “licensing scheme favors certain Detroit residents over other Michiganders based on the duration of their residency.” The plaintiff argues that the ordinance violates the U.S. Constitution’s commerce clause because it “discriminates against out-of-state residents and punishes people for moving between states.”

In April, U.S. District Judge Bernard Friedman issued a temporary restraining barring Detroit officials from receiving any more marijuana business applications.

On June 17, Judge Friedman again ruled in favor of the plaintiff by issuing a preliminary injunction halting Detroit’s recreational marijuana licensing program indefinitely.

The issuance of a preliminary injunction in the case is significant because the U.S. Supreme Court has set a high burden of proof for a plaintiff seeking an injunction. The Court identified a four-part balancing test in Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008), which requires plaintiff to demonstrate:

  1. Likelihood of success on the merits
  2. Likelihood of irreparable harm
  3. The balance of both equities and hardships is in their favor; and
  4. That a preliminary injunction would be in the public interest

In his order, Judge Friedman stated that Detroit’s licensing program is “likely unconstitutional.”

To learn more about the Detroit lawsuit, as well as other challenges to municipal licensing schemes related to recreational marijuana in Michigan, click here.

At Fraser Trebilcock we have a strong litigation department that has handled multiple lawsuits in the cannabis field and are able to assist you if you believe you are entitled to relief. If you have any questions or require assistance, please contact Paul Mallon or your Fraser Trebilcock attorney.


mallon-paulPaul C. Mallon, Jr.  is Shareholder and Chair of Fraser Trebilcock’s cannabis law practice. You can reach him at pmallon@fraserlawfirm.com or (313) 965-9043. 


Fraser Trebilcock attorney and former Michigan State Legislator Klint Kesto has nearly two decades of experience working in both the public and private sectors, including serving as Co-Chair of the CARES Task Force. You can reach him at kkesto@fraserlawfirm.com or 517.377.0868.

Judge Denies Injunction in Michigan Executive Order Challenge

In response to the rapidly increasing outbreak of COVID-19, on March 24, 2020, Governor Whitmer signed Executive Order 2020-21, directing Michigan residents to remain at their home or in their place of residence to the maximum extent feasible. Many businesses were temporarily shut down unless deemed essential, and individuals were limited to traveling outside their homes.

On Wednesday, April 29, 2020, Michigan Court of Claims Judge Christopher Murray denied a motion for a preliminary injunction sought by several Michigan residents who claimed that the various COVID-19-related executive orders issued by Governor Gretchen Whitmer, including the “Stay Home, Stay Safe” order, and the related intrastate travel restrictions, infringed on their constitutional rights. Specifically, the previous executive orders issued by Governor Whitmer that required residents to stay home and restricted travel were alleged to have violated Plaintiffs’ rights to both procedural due process and substantive due process.

The Judge determined that the plaintiffs have not shown a substantial likelihood of success on the merits in their challenge to the executive order restrictions.

Judge Christopher Murray further noted in his opinion that, “It is true that this measure is a severe one, and greatly restricts each of our liberties to move about as we see fit, as we do in normal times. But the governor determined that severe measures were necessary, and had to be quickly implemented to prevent the uncontrolled spreading of the virus.”

This procedural denial of the request for a preliminary injunction does not resolve the overall merits of the case in question, but does give an indication of the Judge’s opinion as to the potential success of the plaintiffs in this case.

NOTE: On April 30, Governor Whitmer replaced prior orders with Executive Order 2020-69, to be in force through May 28, 2020.


We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.