N.Y.
Cannabis Law Section 16-A
Emergency relief
1.
Proceeding for permanent injunction.(a)
To the extent known, the owner, lessor, and lessee of a building or premises wherein the unlicensed activity is being conducted, maintained, or permitted shall be made defendants in the proceeding. The venue of such proceeding shall be in the county where the unlicensed activity is being conducted, maintained, or permitted or in any venue where a respondent is located. The existence of an adequate remedy at law shall not prevent the granting of temporary or permanent relief pursuant to this section.(b)
The proceeding shall name as defendants the building or premises wherein the unlicensed activity is being conducted, maintained, or permitted, by describing it by tax lot and street address and at least one of the owners of some part of or interest in the property.(c)
In rem jurisdiction shall be complete over the building or premises wherein the unlicensed activity is being conducted, maintained, or permitted by affixing the notice of petition or order to show cause to the door of the building or premises and by mailing the notice of petition or order to show cause by certified or registered mail, return receipt requested, to one of the owners of some part of or interest in the property. Proof of service shall be filed within two days thereafter with the clerk of the court designated in the notice of petition or as set by the court in the order to show cause. In any county where e-filing is unavailable, proof of service may be mailed to the clerk. Service shall be complete upon such filing or mailing.(d)
Defendants, other than the building or premises wherein the unlicensed activity is being conducted, maintained, or permitted, shall be served with the notice of petition or order to show cause as provided in the civil practice law and rules or pursuant to court order. No more than thirty days prior to such service, the office shall mail a copy, by certified mail, of any order to cease and desist relating to the unlicensed activity at the building or premises to the person in whose name the real estate affected by the proceeding 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. No more than fifteen days prior to such service, the office, the attorney general, at the request of and on behalf of the office of cannabis management, or any local government authorized pursuant to subdivision eight of this section shall verify the ongoing occupancy of any natural person who is a tenant of record and alleged to have caused or permitted the unlicensed activity in the building or premises wherein the unlicensed activity is alleged to have been conducted, maintained, or permitted.(e)
With respect to any proceeding commenced or to be commenced pursuant to this section by the office of cannabis management or the attorney general, at the request of and on behalf of the office, may file a notice of pendency pursuant to the provisions of article sixty-five of the civil practice law and rules.(f)
The person in whose name the real estate affected by the proceeding is recorded in the office of the city register or the county clerk, as the case may be, shall be presumed to be the owner thereof. Upon being served in a proceeding under this section, such owner shall, to the extent known, provide to the office of cannabis management, within three days, the names of any other owners, lessors and lessees of the building or premises that is the subject of the proceeding. Thereafter, such owners, lessors and lessees may be made parties to the proceeding.(g)
Whenever there is evidence that a person was the manager, operator, supervisor or, in any other way, in charge of the premises, at the time the unlicensed activity was being conducted, maintained, or permitted, such evidence shall be presumptive that they were an agent or employee of the owner or lessee of the building or premises.(h)
A defendant shall furnish to any other party, within five days after a demand, a verified statement identifying:(i)
If the responding party is a natural person, such party’s: (1) full legal name; (2) date of birth; (3) current home or business street address; and (4) a unique identifying number from: (A) an unexpired passport; (B) an unexpired state driver’s license; or (C) an unexpired identification card or document issued by a state or local government agency or tribal authority for the purpose of identification of that individual;(ii)
If the responding party is a partnership, limited liability partnership, limited liability company, or other unincorporated association, including a for profit or not-for-profit membership organization or club, the information required pursuant to subparagraph (i) of this paragraph for each of its partners or members, as well as the state or other jurisdiction of its formation;(iii)
If the responding party is a corporation, its state or other jurisdiction of incorporation, principal place of business, and any state or other jurisdiction of which that party is a citizen;(iv)
If the responding party is not an individual, in addition to any information provided pursuant to subparagraphs (ii) and (iii) of this paragraph, and to the extent not previously provided, each beneficial owner of the responding party by: (1) full legal name; (2) date of birth; (3) current home or business street address; and (4) a unique identifying number from: (A) an unexpired passport; (B) an unexpired state driver’s license; or (C) an unexpired identification card or document issued by a state or local government agency or tribal authority for the purpose of identification of that individual. As used in this subparagraph, the term “beneficial owner” shall have the same meaning as defined in 31 U.S.C. ³ 5336(a)(3), as amended, and any regulations promulgated thereunder.(i)
If a finding is made that the defendant has conducted, maintained, or permitted the unlicensed activity a penalty, to be included in the judgment, may be awarded in an amount not to exceed ten thousand dollars for each day it is found that the defendant intentionally conducted, maintained or permitted the unlicensed activity. With regard to any defendant conducting the referenced unlicensed activity, any such penalties may be awarded in addition to any penalties that may be imposed pursuant to § 132 (Penalties for violation of this chapter)section one hundred thirty-two of this chapter. Upon recovery, such penalty shall be paid to the office of cannabis management, or to the county attorney, corporation counsel, or local government that has been authorized pursuant to subdivision eight of this section to bring and maintain a civil proceeding in accordance with the procedures set forth in this section.2.
Preliminary injunction.(a)
Pending a proceeding for a permanent injunction pursuant to this section the court may grant a preliminary injunction enjoining the unlicensed activity and the person or persons conducting, maintaining, or permitting the unlicensed activity from further conducting, maintaining, or permitting the unlicensed activity, where the public health, safety or welfare immediately requires the granting of such injunction. A temporary closing order may be granted pending a hearing for a preliminary injunction where it appears by clear and convincing evidence that unlicensed activity within the scope of this section is being conducted, maintained, or permitted and that the public health, safety or welfare immediately requires the granting of a temporary closing order. A temporary restraining order may be granted pending a hearing for a preliminary injunction.(b)
A preliminary injunction shall be enforced by the office or, at the request of the office, the attorney general. At the request of the office, a police officer or peace officer with jurisdiction may also enforce the preliminary injunction.(c)
The office or the attorney general shall show, by affidavit and such other evidence as may be submitted, that there is a cause of action for a permanent injunction abating unlicensed activity.3.
Temporary closing order.(a)
If, on a motion for a preliminary injunction alleging unlicensed activity as described in this section in a building or premises used for commercial purposes only, the office or the attorney general demonstrates by clear and convincing evidence that such unlicensed activity is being conducted, maintained, or permitted and that the public health, safety, or welfare immediately requires a temporary closing order, a temporary order closing such part of the building or premises wherein such unlicensed activity is being conducted, maintained, or permitted may be granted without notice, pending order of the court granting or refusing the preliminary injunction and until further order of the court. Any such closing order may also include a preservation order authorizing issuance of subpoenas to third parties to preserve all off site electronic business records. Upon granting a temporary closing order, the court shall direct the holding of a hearing for the preliminary injunction at the earliest possible time but no later than three business days from the granting of such order; a decision on the motion for a preliminary injunction shall be rendered by the court within four business days after the conclusion of the hearing.(b)
Unless the court orders otherwise, a temporary closing order together with the papers upon which it was based and a notice of hearing for the preliminary injunction shall be personally served, in the same manner as a summons as provided in the civil practice law and rules.(c)
A temporary closing order shall only be issued prior to a hearing on a preliminary injunction if the premises that is the subject of the closure order is used for commercial purposes only.(d)
No temporary closing order shall be issued against any building or premises where, in addition to the unlicensed activity which is alleged, activity that is licensed or otherwise lawful remains in place, unless the licensed or otherwise lawful activity is a de minimis part of the business. In addition, no temporary closing order shall be issued against any building or premises which is used in part as residence and pursuant to local law or ordinance is zoned and lawfully occupied as a residence.4.
Temporary restraining order.(a)
If, on a motion for a preliminary injunction alleging unlicensed activity as described in this section in a building or premises used for commercial purposes, the office or the attorney general demonstrates by clear and convincing evidence that such unlicensed activity is being conducted, maintained, or permitted and that the public health, safety, or welfare immediately requires a temporary restraining order, a temporary restraining order may be granted without notice restraining the defendants and all persons from removing or in any manner interfering with the furniture, fixtures and movable property used in conducting, maintaining or permitting such unlicensed activity, including cannabis, cannabis product, cannabinoid hemp or hemp extract product, or any product marketed or labeled as such and from further conducting, maintaining or permitting such unlicensed activity, pending order of the court granting or refusing the preliminary injunction and until further order of the court. Any such temporary restraining order may also include a preservation order authorizing issuance of subpoenas to third parties to preserve all off site electronic business records. Upon granting a temporary restraining order, the court shall direct the holding of a hearing for the preliminary injunction at the earliest possible time but no later than three business days from the granting of such order; a decision on the motion for a preliminary injunction shall be rendered by the court within thirty calendar days after the conclusion of the hearing.(b)
Unless the court orders otherwise, a temporary restraining order and the papers upon which it was based and a notice of hearing for the preliminary injunction shall be personally served, in the same manner as a summons as provided in the civil practice law and rules, upon any agent, employee, or other representative of the defendant business present at the time the temporary restraining order is effectuated.5.
Temporary closing order; temporary restraining order; additional enforcement procedures.(a)
If on a motion for a preliminary injunction, the office of cannabis management or the attorney general submits evidence warranting both a temporary closing order and a temporary restraining order, the court shall grant both orders.(b)
Upon the request of the office, any police officer or peace officer with jurisdiction may assist in the enforcement of a temporary closing order and temporary restraining order. Any reference to police officer or peace officer in this subdivision and subdivisions six and seven of this section shall also include any investigator employed by the office of the attorney general.(c)
The police officer or peace officer serving a temporary closing order or a temporary restraining order shall forthwith make and return to the court 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, except that any cash found on the premises during such inventory shall be inventoried, seized, and secured off premises pending further order of the court. Any police officer or peace officer, or any representative of the office, shall be permitted to review and copy records.(d)
The police officer or peace officer serving a temporary closing order shall, 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 may 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 may deliver the keys to such owner, lessor, or lessee or retain them pending further order of the court.(e)
Upon service of a temporary closing order or a temporary restraining order, 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, where a temporary closing order has been granted, 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 court order, which notice shall contain the legend “closed by court order” in block lettering of sufficient size to be observed by anyone intending or likely to enter the premises, the date of the order, the court from which issued, and the name of the officer or agency posting the notice. In addition, where a temporary restraining order has been granted, the police officer or peace officer shall affix, in the same manner, a notice similar to the notice provided for in relation to a temporary closing order except that the notice shall state that certain described activity is prohibited by court order and that removal of property is prohibited by court order. 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 imprisonment not exceeding ninety days, or by both, provided such order or notice contains therein a notice of such penalty. Any police officer or peace officer with jurisdiction may, upon the request of the office, assist in the enforcement of this section.6.
Temporary closing order; temporary restraining order; defendant’s remedies.(a)
A temporary closing order or a temporary restraining order may be vacated, upon notice to the office and to any county attorney, corporation counsel, or local government that may have been authorized pursuant to subdivision eight of this section to bring and maintain the proceeding in accordance with the procedures set forth in this section, if a defendant who is the fee owner, lessor, or lessee of the building or premises shows by affidavit and such other proof as may be submitted that the unlicensed activity within the scope of this chapter has been abated and that they are also not affiliated with the person who is conducting the unlicensed activity. An order vacating a temporary closing order or a temporary restraining order shall include a provision authorizing the office, or any county attorney, corporation counsel, or local government, as applicable, to inspect the building or premises which is the subject of a proceeding pursuant to this subdivision, periodically without notice, during the pendency of the proceeding for the purpose of ascertaining whether or not the unlicensed activity has been resumed. 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 a temporary closing order or temporary restraining order.(b)
A temporary closing order or a temporary restraining order may be vacated by the court, upon notice to the office, or any county attorney, corporation counsel, or local government, as applicable, when a defendant entitled to request vacatur pursuant to paragraph (a) of this subdivision gives an undertaking and the court is satisfied that the public health, safety, or welfare will be protected adequately during the pendency of the proceeding. The undertaking shall be in an amount equal to the assessed valuation of the building or premises where the unlicensed activity is being conducted, maintained, or permitted or in such other amount as may be fixed by the court. The defendant shall pay to the office and the attorney general, in the event a judgment of permanent injunction is obtained, their actual costs, expenses and disbursements in bringing and maintaining the proceeding. In addition, the defendant shall pay to the local government or law enforcement agency that provided assistance in enforcing any order of the court issued pursuant to a proceeding brought under this section, its actual costs, expenses and disbursements in assisting with the enforcement of the proceeding.7.
Permanent injunction.(a)
A judgment awarding a permanent injunction pursuant to this chapter shall direct that any illicit cannabis, cannabis product, cannabinoid hemp or hemp extract product, or any product marketed or labeled as such seized shall be turned over to the office of cannabis management or their authorized representative. The judgment may further direct any police officer or peace officer with jurisdiction to seize and remove from the building or premises all material, equipment, and instrumentalities used in the creation and maintenance of the unlicensed activity and shall direct the sale by the sheriff of any such property in the manner provided for the sale of personal property under execution pursuant to the provisions of the civil practice law and rules, if the estimated value of the property exceeds the estimated lawful expenses of such sale, or the disposal of the property if the estimated value of the property does not exceed the estimated lawful expenses of such sale. The net proceeds of any such sale, after deduction of the lawful expenses involved, shall be paid to the general fund of the state.(b)
A judgment awarding a permanent injunction pursuant to this chapter may direct the closing of the building or premises by any police officer or peace officer with jurisdiction to the extent necessary to abate the unlicensed activity and shall direct any police officer or peace officer with jurisdiction to post a copy of the judgment and a printed notice of such closing conforming to the requirements of this chapter. The closing directed by the judgment shall be for such period as the court may direct but in no event shall the closing be for a period of more than one year from the posting of the judgment provided for in this section. If the owner shall file a bond in the value of the property ordered to be closed and submits proof to the court that the unlicensed activity has been abated and will not be created, maintained, or permitted for such period of time as the building or premises has been directed to be closed in the judgment, and also submits proof that they are also not affiliated with the person who is conducting the unlicensed activity, the court may vacate the provisions of the judgment that direct the closing of the building or premises. A closing by a police officer or peace officer with jurisdiction pursuant to the provisions of this section shall not constitute an act of possession, ownership, or control by such police officer or peace officer of the closed premises.(c)
Upon the request of the office of cannabis management or its authorized representative, or any county attorney, corporation counsel, or local government authorized pursuant to subdivision eight of this section to bring and maintain a civil proceeding in accordance with the procedures set forth in this section, any police officer or peace officer with jurisdiction may assist in the enforcement of a judgment awarding a permanent injunction entered in a proceeding brought pursuant to this chapter.(d)
A judgment rendered awarding a permanent injunction pursuant to this chapter shall be and become a lien upon the building or premises named in the petition in such proceeding, such lien to date from the time of filing a notice of lis pendens in the office of the clerk of the county wherein the building or premises is located. Every such lien shall have priority before any mortgage or other lien that exists prior to such filing except tax and assessment liens.(e)
A judgment awarding a permanent injunction pursuant to this chapter shall provide, in addition to the costs and disbursements allowed by the civil practice law and rules, upon satisfactory proof by affidavit or such other evidence as may be submitted, the actual costs, expenses and disbursements of the office and the attorney general, or of any county attorney, corporation counsel, or local government authorized pursuant to subdivision eight of this section to bring and maintain a civil proceeding in accordance with the procedures set forth in this section, in bringing and maintaining the proceeding.8.
Civil proceedings. In addition to the authority granted in this section to the office of cannabis management and the attorney general, any county attorney, corporation counsel, or local government in which such building or premises is located may, seven days or more after providing notice to the office of cannabis management, bring and maintain a civil proceeding in the supreme court of the county in which the building or premises is located to permanently enjoin the unlicensed activity described in this section and the person or persons conducting or maintaining such unlicensed activity, in accordance with the procedures set forth in this section. The office shall be permitted to intervene as of right in any such proceeding. Any such governmental entity which obtains a permanent injunction pursuant to this chapter shall be awarded, in addition to the costs and disbursements allowed by the civil practice law and rules, upon satisfactory proof by affidavit or such other evidence as may be submitted, any penalties awarded pursuant to paragraph (i) of subdivision one or paragraph (e) of subdivision five of this section and the actual costs, expenses and disbursements in bringing and maintaining the proceeding. The authority provided by this subdivision shall be in addition to, and shall not be deemed to diminish or reduce, any rights of the parties described in this section for any violation pursuant to this chapter or any other law. * NB Repealed May 1, 2028
Source:
Section 16-A — Emergency relief, https://www.nysenate.gov/legislation/laws/CAN/16-A (updated Apr. 28, 2024; accessed May 18, 2024).
