§ 42-04 Sheriff’s Enforcement of Unlicensed Cannabis Activity.
a. Definitions. For the purposes of this section, the following terms have the following meanings:
Cannabis. The term “cannabis” means any cannabis or a cannabis product, as such terms are defined in section 3 of the Cannabis Law, or any product marketed or labeled as such.
City Sheriff. The term “City Sheriff” means the Sheriff of the City of New York, deputies of the City Sheriff and other authorized personnel of the Office of such City Sheriff.
Place of business. The term “place of business” means any building, structure or vehicle where cannabis, is sold or offered to be sold, where no registration, license, or permit has been issued pursuant to the Cannabis Law. “Place of business” shall not include a residence or other real property not otherwise held out as open to the public or otherwise being utilized in a business or commercial manner, or any private vehicle on or about such property, unless probable cause exists to believe that such residence, real property, or vehicle are being used in such business or commercial manner for a purpose described in the preceding sentence.
Property owner. The term “property owner” means any person, agent, firm, partnership, corporation or other legal entity having a legal or equitable interest in, or control of the subject premises.
Public youth facility. The term “public youth facility” means a building or structure, including any surrounding outdoor grounds, entrances and exits, any portion of which:
1. is owned by a governmental entity;
2. is accessible to the public; and
3. has a primary purpose to provide recreational opportunities or services to children or adolescents of whom the primary population is reasonably expected to be 17 years of age or younger.
School. The term “school” means a building or structure, including any surrounding outdoor grounds, entrances and exits, that contains a public or private pre-school, nursery school, elementary or secondary school.
b. Administrative inspections.
1. For the purposes of civil administrative enforcement of Chapter 5-A of Title 7 of the Administrative Code, the City Sheriff may conduct regulatory inspections of any place of business where cannabis is sold or offered to be sold, where no registration, license, or permit has been issued pursuant to the Cannabis Law, in accordance with the procedures set forth in this subdivision.
2. For the purpose of detecting administrative violations in accordance with the regulatory scheme set forth in § 7-552 of the Administrative Code, the City Sheriff will inspect each place of business listed on the inspection roster compiled pursuant to paragraph 3 of this subdivision such that each place of business included on such roster, or a discrete geographic zone of such roster, is inspected at least annually, or on a more frequent periodic basis deemed appropriate by the City Sheriff, provided that:
(a) the City Sheriff is not required to conduct an inspection of a place of business during a period in which such place of business is either closed or sealed;
(b) the City Sheriff may prioritize inspections of places of business included on the inspection roster that the City Sheriff reasonably believes pose an imminent threat to public health, safety, and welfare, as determined in accordance with subdivision e of this section, or where the City Sheriff reasonably believes that conduct in violation of Chapter 5-A of Title 7 of the Administrative Code has continued after an initial investigation;
(c) in furtherance of the efficient use of enforcement resources, the City Sheriff may inspect any place of business included on the inspection roster that is within a reasonable vicinity to a place of business otherwise scheduled for inspection; and
(d) the City Sheriff may prioritize inspections of places of business included on the inspection roster that are within 1,000 feet, as measured based on the methodology set forth in paragraph (3) of subdivision e of this section, from places of business for which a registration, license, or permit has been issued pursuant to the Cannabis Law or that are otherwise listed in the directory maintained by the New York State Office of Cannabis Management pursuant to subdivision 13 of section 11 of the Cannabis Law; and
3. The City Sheriff will create an inspection roster, which may be subdivided based on two or more discrete geographic zones, and include on such roster each place of business at which the City Sheriff reasonably believes cannabis is sold or offered to be sold, provided that no place of business shall be included on such roster for which a registration, license, or permit has been issued pursuant to the Cannabis Law or that is otherwise listed in the directory maintained by the New York State Office of Cannabis Management pursuant to subdivision 13 of section 11 of the Cannabis Law. Such reasonable belief may be established based on:
(a) observations of places of business by law enforcement officers or other agency representatives;
(b) complaints received in accordance with a procedure developed by the City Sheriff, provided such complaints are subsequently substantiated by the City Sheriff; or
(c) signage, statements and advertisements associated with a place of business.
4. Records of each inspection shall be maintained by the City Sheriff.
5. Inspections authorized by § 7-552 of the Administrative Code shall only occur during the operating hours of a place of business.
6. Inspections may be conducted pursuant to this subdivision in both the public and non-public portions of a place of business.
7. The provisions of this section shall neither be interpreted to limit any law enforcement officer from conducting law enforcement activity, including but not limited to issuing summonses pursuant to subdivision c of this section or orders pursuant to § 7-552 of the Administrative Code, with respect to the portion of the place of business that is open to the public nor be interpreted to limit any enforcement activity authorized under law when illegal activity is observed or occurs during an inspection conducted pursuant to this subdivision. The provisions of this section shall not be interpreted to limit any agency’s authority to conduct inspections for any purpose where such inspections are authorized pursuant to a provision of law or rule other than subdivision a of § 7-552 of the Administrative Code.
8. The City Sheriff will consider all relevant available information in determining whether to remove a place of business from the inspection roster developed pursuant to this subdivision.
c. Penalty schedule.
1. The penalty schedule applicable to violations of § 7-551 of the Administrative Code shall be as follows:
Citation Violation Description Violation Penalty Violation Default Penalty
Administrative Code § 7-551(a) Any violation of subdivision a of § 7-551 by a place of business $10,000 $10,000
Administrative Code § 7-551(a) Any violation of subdivision a of § 7-551 by an individual owner of a place of business $10,000 $10,000
2. Each day in which the conduct described in the schedule included in paragraph 1 of this subdivision occurs or continues to occur shall constitute a distinct violation and be subject to penalty pursuant to such schedule.
3. Penalties imposed pursuant to each civil summons issued pursuant to this section shall be in addition to, and shall not be offset or modified by, any fines or penalties imposed pursuant to any other provision of law or rule, penalties imposed pursuant to other civil summonses issued pursuant to this section or any other remedies sought by the City. Notwithstanding any other provision of this subdivision, where the City Sheriff issues multiple violations of § 7-551 of the Administrative Code to a person or place of business pursuant to this subdivision for conduct occurring over multiple days and such violations are issued pursuant to a single civil summons, the cumulative penalties that may be imposed pursuant to such single civil summons shall not exceed $25,000.
d. Designation.
1. Personnel of agencies of the City may be designated to exercise powers authorized under Chapter 5-A of Title 7 of the Administrative Code in accordance with subdivision e of § 7-552 of the Administrative Code, provided that the City Sheriff designates such personnel in writing and posts such designation on the website of the Department of Finance.
2. Notwithstanding any other provision of this section, any personnel designated pursuant to this subdivision shall have all the powers of the City Sheriff described in this section and Chapter 5-A of Title 7 of the Administrative Code, subject to terms of such designation.
3. The City Sheriff may revoke any designation made pursuant to this subdivision in whole or in part, provided that the City Sheriff revokes such designation in writing and posts such revocation on the website of the Department of Finance.
e. Imminent threats to public health, safety, and welfare.
1. In determining whether conduct poses an imminent threat to public health, safety, and welfare, the City Sheriff will consider the totality of the factors set forth in subdivision 4 of section 138-b of the Cannabis Law, provided that any factor specified in such subdivision 4 shall be sufficient on its own to determine an imminent threat.
2. For the purposes of paragraph e of subdivision 4 of section 138-b of the Cannabis Law and paragraph 2 of subdivision b of § 7-552 of the Administrative Code, a place of business at which conduct prohibited by subdivision a of § 7-551 of the Administrative Code occurs shall be considered proximate to a school, house of worship, or public youth facility if such place of business is temporarily or permanently located within 1,000 feet of such school, house of worship or public youth facility.
3. Distances measured pursuant to this subdivision will be determined based on a straight line from the center of the nearest entrance of a place of business to the center of the nearest entrance of a school, public youth facility, or house of worship, as applicable, provided that where a school, public youth facility or house of worship, as applicable, has no physical entrance, the nearest boundary of such school, public youth facility or house of worship may be a basis for such measurement.
f. Seizure and destruction of cannabis and other related items. In each instance in which the City Sheriff seizes cannabis or other related items found in the possession of a person engaged in a violation of subdivision a of § 7-551 of the Administrative Code, including but not limited to seizures resulting from inspections conducted pursuant to subdivision b of this section, the City Sheriff will:
1. serve a summary of cannabis and other related items seized at such place of business and a tracking number associated with such items in the same manner as an order issued pursuant to subdivision g of § 7-552 of the Administrative Code, provided that the City Sheriff is not required to post any such summary or such tracking number at such place of business, and only such tracking number is required to be included in any mailing made pursuant to this paragraph; and
2. store such cannabis and other related items in a secure location pursuant to a cataloging system determined by the City Sheriff or a designee of the City Sheriff, subject to the provisions of subdivision g of this section.
g. Rights to challenge seizure and orders to cease prohibited conduct.
1. No later than 20 business days after issuance of the earliest notice issued pursuant to paragraph 1 of subdivision f of this section, an individual may petition in writing to the address, email address, or by using the applicable electronic form referenced on such summary or mailing, as applicable, to challenge the seizure of cannabis or other related items and may provide reasons that such cannabis or other related items were neither offered for sale in violation of subdivision a of § 7-551 of the Administrative Code, nor used as instrumentalities in furtherance of a violation of such subdivision.
2. No later than 20 business days after issuance of an order to cease prohibited conduct pursuant to paragraph 1 of subdivision b of § 7-552 of the Administrative Code, an individual may petition in writing to the address, email address, or by using the applicable electronic form referenced on such order to challenge such order.
3. The City Sheriff will respond in writing rejecting or accepting any petition made pursuant to either paragraph 1 or paragraph 2 of this subdivision no later than 10 business days of receipt of such petition. Any order to cease prohibited conduct pursuant to paragraph 1 of subdivision b of § 7-552 of the Administrative Code shall remain in effect and all cannabis and other related items seized will be retained during the period preceding such response.
4. The City Sheriff may destroy any seized cannabis or other related items 20 business days after:
(a) issuance of the earliest notice pursuant to paragraph 1 of subdivision f of this section, if no individual makes a petition within the timeframe required by paragraph 1 of this subdivision; or
(b) issuance of a notice pursuant to paragraph 3 of this subdivision rejecting in whole or in part, as applicable, a petition made pursuant to paragraph 1 of this subdivision.
5. This subdivision shall only apply to seizures made pursuant to Chapter 5-A of Title 7 of the Administrative Code and shall not apply to a seizure made pursuant to any other provision of law, including but not limited to the seizure of tobacco, electronic cigarettes, or any item that is a controlled substance pursuant to state law.
6. Notwithstanding any other provision of this subdivision, the City Sheriff will not return cannabis or other related items that have been seized where the return of such seized cannabis or other related items would be a violation of, or would facilitate the violation of, any applicable law.
h. Procedures following issuance of a sealing order.
1. Duration of order. A sealing order issued pursuant to Chapter 5-A of Title 7 of the Administrative Code shall be effective for one year from the date of the posting of the order.
2. Vacatur of a sealing order upon request by a property owner that is not the respondent.
(a) A property owner of a premises at which a sealing order has been issued pursuant to Chapter 5-A of Title 7 of the Administrative Code, other than the respondent, may petition the City Sheriff in writing to request that the City Sheriff vacate such order.
(b) A property owner requesting such a vacatur must provide sufficient proof, including an affidavit executed by each co-owner of the property and the attorney submitting such affidavit for the property owner, if applicable, and any additional documents requested by the City Sheriff, which may include a copy of a lease with a subsequent tenant and photographic evidence. Such affidavits and additional documents must demonstrate that the respondent has vacated the premises and that the conduct in violation of Chapter 5-A of Title 7 of the Administrative Code has ceased. Where the property owner seeks a vacatur of the sealing order and the respondent has not vacated the premises, the procedures set forth in paragraph (3) of this subdivision for vacatur of a sealing order upon request of a respondent shall apply.
(c) In making a determination as to whether to vacate a sealing order pursuant to a petition by a property owner, the City Sheriff will consider the reliability and completeness of the documentation submitted to the City Sheriff and whether such documentation demonstrates (i) that the tenant has vacated the premises and (ii) that the conduct in violation of Chapter 5-A of Title 7 of the Administrative Code has credibly ceased following the sealing of the property.
3. Vacatur of a sealing order upon request by a respondent.
(a) A respondent subject to a sealing order issued pursuant to Chapter 5-A of Title 7 of the Administrative Code may petition the City Sheriff in writing to request that the City Sheriff vacate such order.
(b) A respondent requesting such a vacatur must provide sufficient proof, including an affidavit executed by each co-owner of the respondent and the attorney submitting such affidavit for the respondent, if applicable, demonstrating that conduct in violation of Chapter 5-A of Title 7 of the Administrative Code at the premises has been abated. A respondent must attach to such affidavit:
(1) a business plan detailing the respondent’s intended use of the property following vacatur of the sealing order that includes: (i) documentation illustrating the actions that the respondent has taken in furtherance of implementing such business plan; and (ii) financial estimates of the revenue that will be generated through such business plan;
(2) proof that the respondent has submitted a verified statement setting forth the information specified in subdivision 5 of section 17 of the cannabis law;
(3) documentation indicating: (i) whether the respondent has the right to occupy the premises, as demonstrated by an affidavit or other representation from the property owner that the respondent lawfully occupies the premises or a detailed explanation regarding why the respondent is unable to obtain such affidavit or representation; and (ii) the term of the respondent’s lease or right to occupy the property, as applicable;
(4) documentation indicating that the respondent consents to reinspection pursuant to subdivision 9 of section 138-b of the Cannabis Law and will maintain or arrange for the maintenance of sufficient financial records on the premises or otherwise provide access to such financial records to the City Sheriff such that the City Sheriff can review the respondent’s business activity in furtherance of such reinspection;
(5) documentation regarding any business activity relating to the sale of cannabis conducted by the respondent, and any person who owns 10 percent or more of the voting stock or shares of such respondent, at any other location; and
(6) documentation indicating that all signage and all other marketing materials indicating an intent to sell illicit cannabis, including but not limited to such signage and marketing materials located on the premises and marketing materials featured on internet webpages associated with the respondent, have been removed.
(c) In determining whether to vacate a sealing order pursuant to a petition by a respondent, the City Sheriff will consider factors including but not limited to:
(1) the reliability and completeness of the documentation submitted to the City Sheriff;
(2) the degree to which, following the sealing, conduct in violation of Chapter 5-A of Title 7 of the Administrative Code has abated, including but not limited to whether the respondent continues to be engaged in unlicensed cannabis activities at other properties; and
(3) the threat to public health, safety, and welfare posed by the respondent based on such respondent’s previous conduct.
(d) Notwithstanding any other provision of this section, the City Sheriff may, on a temporary basis and upon request, grant access to a premises notwithstanding a sealing order for the limited purpose of removing physical signage and all other marketing materials indicating an intent to sell illicit cannabis, or for otherwise ensuring that the premises will not be used for unlawful activity, where such request is made in connection with a petition pursuant to this paragraph that the City Sheriff determines contains sufficient proof in other respects separate and apart from the proof necessary for clause (6) of subparagraph (b) of this paragraph.
4. Notice. Except as otherwise provided by paragraph 5 of this subdivision, the City Sheriff will respond in writing notifying a property owner or respondent, as applicable, of the City Sheriff’s determination regarding the sealing order within a reasonably practicable period after receipt of any petition made pursuant to this subdivision. Such response will state whether the order to seal has been vacated, whether the order to seal has been held to continue, or whether additional documents are required to render a determination. Where the City Sheriff responds to a petition with the determination that an order to seal shall continue, the City Sheriff shall state in writing its reasoning for denying the petition.
5. The City Sheriff will not consider any petition to vacate a sealing order submitted pursuant to paragraph 3 of this subdivision while any administrative proceeding relating to such sealing order remains pending.
i. Notice addresses. Any response by the City Sheriff pursuant to paragraph 3 of subdivision g of this section, or paragraph 4 of subdivision h of this section, and any notice of a determination with respect to continuation of an order to seal pursuant to paragraph 2 of subdivision b of § 7-552 of the Administrative Code will be mailed to the address provided by the petitioner or respondent, as applicable, or if no such address is provided, to the address provided pursuant to subdivision g of § 7-552 of the Administrative Code.
(Added City Record 8/28/2024, eff. 8/28/2024)
