N.Y.
Cannabis Law Section 138-B
Orders to seal
1.
In addition to any other authority conferred in this chapter, pursuant to the provisions of this section, the board or the office shall have the authority to issue an order to seal the building or premises of any business engaged in unlicensed activity, when such activity is conducted, maintained, or permitted in such building or premises, occupied as a place of business as described in subdivision eight of § 10 (Powers and duties of the cannabis control board)section ten of this chapter, in violation of subdivision one or one-a of section one hundred twenty-five or subdivision one or eight of section one hundred thirty-two of this article.2.
Any order to seal shall be served by delivery of the order to the owner of the business or other person of suitable age or discretion in actual or apparent control of the premises at the time of the inspection and shall be posted at the building or premises that have been sealed, secured and closed. A copy of the order shall also be mailed to any address for the owner of the business at any address provided by the person to whom such order was delivered pursuant to this subdivision. The order shall remain in effect pending a hearing and final determination of the board, or until such order is vacated by the office pursuant to subdivision six of this section. An order to seal shall explicitly state the procedure to request a hearing within seven days.3.
The office may issue an order to seal with an immediate effective date if such order is based upon a finding by the office of an imminent threat to the public health, safety, and welfare. In such cases a hearing shall be held within three business days of a request for such hearing, unless otherwise adjourned by agreement of the parties, and a determination shall be rendered within four business days of the conclusion of such hearing, provided that the respondent has submitted a verified statement that may be required pursuant to subdivision five of § 17 (Formal hearings)section seventeen of this chapter. Failure of a respondent to appear at the hearing will result in a default and order of sealing to remain in effect for up to one year unless otherwise vacated pursuant to the provisions of this section.4.
Factors that determine an imminent threat to public health, safety, and welfare shall be limited to:(a)
documented sales to minors;(b)
unlicensed processing of cannabis products at the building or premises;(c)
orders issued following an inspection wherein the person engaged in the unlicensed activity engaged in violent, tumultuous, or other behaviors indicating expressed intent to not comply with the office’s order to cease the unlicensed activity;(d)
documented presence of unlawful firearms at the building or premises;(e)
proximity of the building or premises to schools, houses of worship, or public youth facilities;(f)
presence of products deemed unsafe based on reports of illness or hospitalization; or(g)
sales of, or offers to sell, cannabis products not tested or labeled lawfully in accordance with this chapter.5.
Notwithstanding the factors listed in subdivision four of this section and the restriction set forth in paragraph (b) of subdivision six of this section, the office may issue an order to seal with an immediate effective date upon a second or subsequent inspection in which unlicensed activity is confirmed to be continuing more than ten calendar days after a notice of violation and order to cease unlicensed activity was previously issued by the office, provided that the office has also provided notice pursuant to subparagraph (ii) of paragraph (a) of subdivision thirteen of § 138-A (Action for unlawful business practices relating to cannabis)section one hundred thirty-eight-a of this article.6.
An order to seal may be issued by the office or the board pursuant to subdivision three of this section only if:(a)
no part of the premises to be sealed is used in part as a residence and pursuant to local law or ordinance is zoned and lawfully occupied as a residence; and(b)
the unlicensed activity as described in this section is more than a de minimis part of the business activity on the premises or in the building to be sealed pursuant to the order. In the event that an order to seal may not be issued pursuant to this subdivision, the office shall issue a notice of violation and order to cease the unlicensed conduct, which shall constitute notice that such unlicensed activity must cease immediately.7.
In assessing whether unlicensed activity within a building or premises is more than de minimis, the office or board, as relevant, shall consider factors such as any one or more of the following:(a)
the presence of signs or symbols, indoors or out, advertising the sale of cannabis or otherwise indicating that cannabis is sold on the premises;(b)
information shared in any advertisements or other marketing content in connection with the unlicensed business activity and any direct or indirect sales of cannabis or other conduct in violation of this chapter;(c)
the volume of illicit cannabis products on site; and(d)
the variety of illicit cannabis products on site.8.
Upon a request by the office, any police officer or peace officer with jurisdiction may assist in the enforcement of an order to seal issued by the office or the board, in accordance with the following procedures:(a)
The police officer or peace officer serving and executing the order to seal shall forthwith make and return to the office an inventory of personal property situated in and used in conducting, maintaining, or permitting the unlicensed activity within the scope of this chapter and shall enter upon the building or premises for such purpose. Such inventory shall be taken in any manner which is deemed likely to evidence a true and accurate representation of the personal property subject to such inventory including, but not limited to photographing such personal property.(b)
The police officer or peace officer serving and executing the order to seal shall enter the building or premises and, upon service of the order, command all persons present in the building or premises to vacate the premises forthwith. Upon the building or premises being vacated, the premises shall be securely locked and all keys delivered to the officer serving the order who thereafter shall deliver the keys to the fee owner, lessor, or lessee of the building or premises involved. If the fee owner, lessor, or lessee is not at the building or premises when the order is being executed, the officer shall securely padlock the premises and retain the keys until the fee owner, lessor, or lessee of the building is ascertained, in which event, the officer shall deliver the keys to such fee owner, lessor, or lessee.(c)
Upon service and execution of the order to seal, the police officer or peace officer shall post a copy thereof in a conspicuous place or upon one or more of the principal doors at entrances of such premises where the unlicensed activity is being conducted, maintained, or permitted. In addition, the officer shall affix, in a conspicuous place or upon one or more of the principal doors at entrances of such premises, a printed notice that the premises have been closed by order of the cannabis control board, and the name of the officer or agency posting the notice.(d)
Mutilation or removal of such a posted order or such a posted notice while it remains in force, in addition to any other punishment prescribed by law, shall be punishable, on conviction, by a fine of not more than five thousand dollars or by a class B misdemeanor, or both, provided such order or notice contains therein a notice of such penalty, and shall be referred to the local district attorney for enforcement. The office shall also adhere to the procedures in this subdivision when executing an order to seal issued in accordance with this section.9.
Any order to seal issued by the office or the board issued pursuant to this section shall be effective for one year from the later of the posting of the order or the date of the judgment provided for in this section. An order to seal shall be vacated by the office or the board, upon notice to the office, if the respondent submits sufficient evidence to the office or the board by an affidavit and such other proof as may be submitted by the respondent that the unlicensed activity has been abated. An order vacating an order to seal shall include a provision authorizing the office, or any police officer or peace officer who assisted with the execution of the order to seal, to inspect the building or premises without notice for the purpose of ascertaining whether or not the unlicensed activity has been abated. Any police officer or peace officer with jurisdiction may, upon the request of the office, assist in the enforcement of an inspection provision of an order vacating an order to seal.10.
The office shall mail a copy, by certified mail, of any order to seal issued by the office or board within five days following issuance of such order to the person in whose name the real estate affected by the order is recorded in the office of the city register or the county clerk, as the case may be, who shall be presumed to be the owner thereof. Such mailing shall constitute notice to the owner and shall be deemed to be complete upon such mailing by the office as provided above.11.
If at any time a respondent vacates the building or premises subject to an order to seal issued by the office or board, or if the building owner provides sufficient proof thereof, any action or proceeding filed in accordance with these procedures relating to such building or premises shall be withdrawn by the office or the board without prejudice, and any order to seal shall be vacated.12.
The remedies provided for in this section are not exclusive and the office or board may also request and recover penalties in accordance with other provisions in this chapter.
Source:
Section 138-B — Orders to seal, https://www.nysenate.gov/legislation/laws/CAN/138-B (updated Apr. 28, 2024; accessed May 18, 2024).
