A New York State Supreme Court Judge this morning issued an injunction against Respondents, the NYS Cannabis Control Board (“CCB”),the Office of Cannabis Management (“OCM”), and the New York City Sheriff’s Office, finding their warrantless, armed raids on State-licensed hemp operators violate the Fourth Amendment’s prohibition of warrantless searches and seizures. The Court held that the OCM’s warrantless raids far exceeded the scope of reasonable regulatory inspections limiting the OCM to two, unarmed inspectors who must now actually inspect the products and review Certificates of Analysis (“COAs”) rather than relying on uninformed observation and guesswork. As to the New York City Sheriff’s Office, the Court enjoined the Sheriff from conducting any additional raids altogether, finding it has no authority under the laws to inspect State issued hemp licensees.
Read the ruling here.
The case, Super Smoke n Save LLC, et al. v. New York State Cannabis Control Board, et al., Index No. 908421-24, challenged the raids on hemp licensees caught up in the State’s unorganized dragnet targeting unlicensed marijuana stores. Unlike unlicensed stores where any sale of cannabis is per se illegal, determining whether hemp product is compliant requires a more nuanced, thoughtful inspection, including considering whether the product is intended for out of state sale, as well as a review of the COAs. Recognizing this distinction, the Court noted that “how respondents conducted their enforcement activities against petitioners was a far cry from an administrative inspection seeking to cull evidence of regulatory violations. … To put a fine point on it, the searches of petitioners’ stores and the seizure of their products, no matter the justification, were unreasonable. Therefore, the court concludes that petitioners are likely to prove that respondents violated petitioners’ Fourth Amendment rights.”
In reaching its conclusion, the Court held that: “the Sheriff’s Office lacks any lawful authority to conduct a warrantless regulatory or administrative inspection of any business that possesses either a hemp or marijuana license appearing on OCM’s directory;” completely enjoining the New York City Sheriff from pursuing raids of hemp licensees to prevent further violations of the Fourth Amendment.
As to the CCB and OCM, the Court explained that: “The glaring problem with administrative searches here is the absence of any statutory boundaries. … The Supreme Court has told governments that seek to conduct warrantless searches that they must place statutory limits on the administrative agents who seek out contraband without a warrant—this has not been done.” The Court continued reviewing the nature and purpose of the OCM raids finding that the “manner of the searches’ execution is damning.” Specifically, the Court held that “the purpose of respondents’ inspections was to discover illicit contraband, not to obtain evidence of regulatory violations—the proof on this point, in the court’s estimation, is beyond question.” The Court also found “that the presence of so many officers with weapons was to intimidate and to compel employees and customers into compliance with respondents’ orders.”
The Court granted Petitioners’ requested relief compelling Respondents to immediately remove the incendiary signs posted on Petitioners’ storefronts and return any unlawfully seized products, and prohibited future warrantless inspections of their stores. More broadly, the Court enjoined the New York City Sheriff’s Office from conducting any inspections of hemp licensees, and required the CCB and OCM to only “conduct reasonable regulatory inspections of retail store space with no more than two inspectors whom shall not be armed” unless there is a credible security concern.
The Decision vindicates the rights of hemp licensees – often small, family owned businesses – who are struggling against government overreach subjecting them to armed raids, seizing lawful product, and labeling them as criminals, all without due process protections.
Mandelbaum Barrett, PC steadfastly works to protect our hemp clients’ rights as in this case, in defending against Notices of Violation stemming from raids now held to be unconstitutional, in pursuing other civil rights actions addressing violations of our clients’ constitutional rights, and in publishing Op-Ed’s promoting their interests. Please visit American Healthy Alternatives Association to support these efforts.
Mandelbaum Barrett PC’s Cannabis, Hemp & Psychedelics attorneys stand at the forefront of a dynamic and ever-evolving legal landscape. We possess a detailed understanding of laws associated with the production, sale, use, and regulation of a broad range of controlled substances — from cannabis and hemp to psychedelics. Our recent Newsletter highlights these efforts and more. For additional information, please visit Cannabis, Hemp & Psychedelics Practice, or contact Joshua Bauchner or Natalie Diaz.