§ 42-04 Sheriff’s Enforcement of Unlicensed Cannabis Activity.
RCNY § 42-04
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.
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.
(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.
(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.
