§ 138-B — Orders to seal

New York § 138-B

• Jurisdiction: New York
• Law CAN: Cannabis
• Art. 6: General Provisions

Text

§ 138-b. Orders to seal. 1. In addition to any other authority\nconferred in this chapter, pursuant to the provisions of this section,\nthe board or the office shall have the authority to issue an order to\nseal the building or premises of any business engaged in unlicensed\nactivity, when such activity is conducted, maintained, or permitted in\nsuch building or premises, occupied as a place of business as described\nin subdivision eight of section ten of this chapter, in violation of\nsubdivision one or one-a of section one hundred twenty-five or\nsubdivision one or eight of section one hundred thirty-two of this\narticle.\n 2. Any order to seal shall be served by delivery of the order to the\nowner of the business or other person of suitable age or discretion in\nactual or apparent control of the premises at the time of the inspection\nand shall be posted at the building or premises that have been sealed,\nsecured and closed. A copy of the order shall also be mailed to any\naddress for the owner of the business at any address provided by the\nperson to whom such order was delivered pursuant to this subdivision.\nThe order shall remain in effect pending a hearing and final\ndetermination of the board, or until such order is vacated by the office\npursuant to subdivision six of this section. An order to seal shall\nexplicitly state the procedure to request a hearing within seven days.\n 3. The office may issue an order to seal with an immediate effective\ndate if such order is based upon a finding by the office of an imminent\nthreat to the public health, safety, and welfare. In such cases a\nhearing shall be held within three business days of a request for such\nhearing, unless otherwise adjourned by agreement of the parties, and a\ndetermination shall be rendered within four business days of the\nconclusion of such hearing, provided that the respondent has submitted a\nverified statement that may be required pursuant to subdivision five of\nsection seventeen of this chapter. Failure of a respondent to appear at\nthe hearing will result in a default and order of sealing to remain in\neffect for up to one year unless otherwise vacated pursuant to the\nprovisions of this section.\n 4. Factors that determine an imminent threat to public health, safety,\nand welfare shall be limited to:\n (a) documented sales to minors;\n (b) unlicensed processing of cannabis products at the building or\npremises;\n (c) orders issued following an inspection wherein the person engaged\nin the unlicensed activity engaged in violent, tumultuous, or other\nbehaviors indicating expressed intent to not comply with the office's\norder to cease the unlicensed activity;\n (d) documented presence of unlawful firearms at the building or\npremises;\n (e) proximity of the building or premises to schools, houses of\nworship, or public youth facilities;\n (f) presence of products deemed unsafe based on reports of illness or\nhospitalization; or\n (g) sales of, or offers to sell, cannabis products not tested or\nlabeled lawfully in accordance with this chapter.\n 5. Notwithstanding the factors listed in subdivision four of this\nsection and the restriction set forth in paragraph (b) of subdivision\nsix of this section, the office may issue an order to seal with an\nimmediate effective date upon a second or subsequent inspection in which\nunlicensed activity is confirmed to be continuing more than ten calendar\ndays after a notice of violation and order to cease unlicensed activity\nwas previously issued by the office, provided that the office has also\nprovided notice pursuant to subparagraph (ii) of paragraph (a) of\nsubdivision thirteen of section one hundred thirty-eight-a of this\narticle.\n 6. An order to seal may be issued by the office or the board pursuant\nto subdivision three of this section only if: (a) no part of the\npremises to be sealed is used in part as a residence and pursuant to\nlocal law or ordinance is zoned and lawfully occupied as a residence;\nand (b) the unlicensed activity as described in this section is more\nthan a de minimis part of the business activity on the premises or in\nthe building to be sealed pursuant to the order. In the event that an\norder to seal may not be issued pursuant to this subdivision, the office\nshall issue a notice of violation and order to cease the unlicensed\nconduct, which shall constitute notice that such unlicensed activity\nmust cease immediately.\n 7. In assessing whether unlicensed activity within a building or\npremises is more than de minimis, the office or board, as relevant,\nshall consider factors such as any one or more of the following:\n (a) the presence of signs or symbols, indoors or out, advertising the\nsale of cannabis or otherwise indicating that cannabis is sold on the\npremises;\n (b) information shared in any advertisements or other marketing\ncontent in connection with the unlicensed business activity and any\ndirect or indirect sales of cannabis or other conduct in violation of\nthis chapter;\n (c) the volume of illicit cannabis products on site; and\n (d) the variety of illicit cannabis products on site.\n 8. Upon a request by the office, any police officer or peace officer\nwith jurisdiction may assist in the enforcement of an order to seal\nissued by the office or the board, in accordance with the following\nprocedures:\n (a) The police officer or peace officer serving and executing the\norder to seal shall forthwith make and return to the office an inventory\nof personal property situated in and used in conducting, maintaining, or\npermitting the unlicensed activity within the scope of this chapter and\nshall enter upon the building or premises for such purpose. Such\ninventory shall be taken in any manner which is deemed likely to\nevidence a true and accurate representation of the personal property\nsubject to such inventory including, but not limited to photographing\nsuch personal property.\n (b) The police officer or peace officer serving and executing the\norder to seal shall enter the building or premises and, upon service of\nthe order, command all persons present in the building or premises to\nvacate the premises forthwith. Upon the building or premises being\nvacated, the premises shall be securely locked and all keys delivered to\nthe officer serving the order who thereafter shall deliver the keys to\nthe fee owner, lessor, or lessee of the building or premises involved.\nIf the fee owner, lessor, or lessee is not at the building or premises\nwhen the order is being executed, the officer shall securely padlock the\npremises and retain the keys until the fee owner, lessor, or lessee of\nthe building is ascertained, in which event, the officer shall deliver\nthe keys to such fee owner, lessor, or lessee.\n (c) Upon service and execution of the order to seal, the police\nofficer or peace officer shall post a copy thereof in a conspicuous\nplace or upon one or more of the principal doors at entrances of such\npremises where the unlicensed activity is being conducted, maintained,\nor permitted. In addition, the officer shall affix, in a conspicuous\nplace or upon one or more of the principal doors at entrances of such\npremises, a printed notice that the premises have been closed by order\nof the cannabis control board, and the name of the officer or agency\nposting the notice.\n (d) Mutilation or removal of such a posted order or such a posted\nnotice while it remains in force, in addition to any other punishment\nprescribed by law, shall be punishable, on conviction, by a fine of not\nmore than five thousand dollars or by a class B misdemeanor, or both,\nprovided such order or notice contains therein a notice of such penalty,\nand shall be referred to the local district attorney for enforcement.\nThe office shall also adhere to the procedures in this subdivision when\nexecuting an order to seal issued in accordance with this section.\n 9. Any order to seal issued by the office or the board issued pursuant\nto this section shall be effective for one year from the later of the\nposting of the order or the date of the judgment provided for in this\nsection. An order to seal shall be vacated by the office or the board,\nupon notice to the office, if the respondent submits sufficient evidence\nto the office or the board by an affidavit and such other proof as may\nbe submitted by the respondent that the unlicensed activity has been\nabated. An order vacating an order to seal shall include a provision\nauthorizing the office, or any police officer or peace officer who\nassisted with the execution of the order to seal, to inspect the\nbuilding or premises without notice for the purpose of ascertaining\nwhether or not the unlicensed activity has been abated. Any police\nofficer or peace officer with jurisdiction may, upon the request of the\noffice, assist in the enforcement of an inspection provision of an order\nvacating an order to seal.\n 10. The office shall mail a copy, by certified mail, of any order to\nseal issued by the office or board within five days following issuance\nof such order to the person in whose name the real estate affected by\nthe order is recorded in the office of the city register or the county\nclerk, as the case may be, who shall be presumed to be the owner\nthereof. Such mailing shall constitute notice to the owner and shall be\ndeemed to be complete upon such mailing by the office as provided above.\n 11. If at any time a respondent vacates the building or premises\nsubject to an order to seal issued by the office or board, or if the\nbuilding owner provides sufficient proof thereof, any action or\nproceeding filed in accordance with these procedures relating to such\nbuilding or premises shall be withdrawn by the office or the board\nwithout prejudice, and any order to seal shall be vacated.\n 12. The remedies provided for in this section are not exclusive and\nthe office or board may also request and recover penalties in accordance\nwith other provisions in this chapter.\n