New York City’s illicit marijuana crackdown is unconstitutional, judge rules

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The law enforcement crackdown on illicit New York City marijuana shops that state regulators have credited with salvaging the legal market is unconstitutional, a Queens judged has ruled.

According to the Associated Press, Mayor Eric Adams said the city will appeal the ruling, which jeopardizes Operation Padlock to Protect.

The crackdown effort launched in May after state lawmakers granted law enforcement new powers, including the ability to literally chain the doors of the estimated 7,000 corner stores, bodegas, and other outlets selling marijuana in New York City.

Operation Padlock has closed as many as 1,200 merchants suspected of selling cannabis without the required state licenses.

Sheriff Office’s power questioned

Affected merchants were allowed to appeal to have their doors reopened via a later hearing, a process that almost immediately drew legal challenges – in part because the New York City Sheriff’s Office could overrule the decision made by a hearing officer and unilaterally declare a store closed.

According to court records, that’s what happened in a case brought by a Queens smoke shop shut down by sheriff’s officers.

In that instance, the Sheriff’s Office padlocked A S A 456 Corp., at 47-03 Francis Lewis Boulevard in Queens, after discovering what they determined to be illicit cannabis products during an inspection conducted while the store was closed for business.

The sheriff also overruled a hearing officer’s recommendation to reopen the store, instead declaring that it remain shuttered for one year.

That decision to “continue the sealing order here was arbitrary and capricious,” Judge Kevin Kerrigan of the Queens County Supreme Court ruled Tuesday, according to court records.

Not only did the sheriff fail “to provide a rational basis for his final determination here,” but the office’s ability to overrule the hearing officer’s decision also renders the hearing process “a theoretically useless function. … or even a potential farce,” Kerrigan’s ruling added.

Kerrigan declared the sections of law that allow the hearing officer to offer only a recommendation on the sealing order instead of a binding ruling and that allow the “Sheriff to summarily disregard” the hearing officer’s recommendation “unconstitutional under the Fourteenth Amendment as violative of the Due Process Clause.”

“As a result, the Sheriff must remove the seal and open the premises forthwith,” the judge wrote.

Ruling could hurt licensed operators

The ruling bodes ill for the continued health of the legal New York marijuana market, which regulators said in September is on pace to exceed $1 billion in legal sales for the first time since adult-use retailers opened in December 2022.

In a statement to Gothamist, Liz Garcia, a spokesperson for the mayor, said authorities would “continue to padlock illicit storefronts and protect communities from the health and safety dangers posed by illegal operators” while an appeal of Kerrigan’s ruling is pending.

Lance Lazzaro, the attorney who filed the appeal on A S A 456 Corp.’s behalf, told Gothamist that the ruling might expose the city to “a flood of lawsuits” from other merchants shut down during Operation Padlock to Protect.

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