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Budget proposals from Gov. Hochul and the state Senate include amendments to state cannabis law that would expand local authority to close illegal cannabis retailers. We need it. The city hasn’t made a dent in the number of unlicensed cannabis retailers in the five boroughs (it’s growing, not shrinking).
As it is, the New York City Council is locked out of passing local laws to enforce retail cannabis licensing requirements because the issuance of retail cannabis licenses is tightly controlled by the state. Preventing the City Council from creating a civil enforcement structure has been the single greatest impediment to closing unlicensed shops.
The local authority we need from Albany is an amendment to Section 131 of the cannabis law, which expressly preempts municipalities from “adopting any law, rule, ordinance, regulation or prohibition pertaining to the operation or licensure of registered organizations, adult-use cannabis licenses or cannabinoid hemp licenses.”
Lawmakers fear that relinquishing any amount of control over licenses could lead to erosion of the Marijuana Regulation and Taxation Act (MRTA). That concern is not unreasonable. The state has had to battle lawsuits aimed at dismantling the landmark Conditional Adult-Use Retail Dispensary (CAURD) license program, which gave those most affected by decades of bad laws and aggressive enforcement the opportunity to start selling first.
There is plenty of precedent for allowing the New York City Council to create a local enforcement scheme without undermining state law. We’ve done it with tobacco and e-cigarettes, and we can do it with cannabis.
You may have heard about the Upper West Side unlicensed cannabis survey and subsequent padlocking of Zaza Waza Smoke Shop, the unlicensed cannabis, tobacco, e-cigarette, and flavored vape store operating 200 feet from our neighborhood office on Columbus Ave.
Four of our interns conducted the survey in January and February, walking every block of the West Side from W. 54th to W. 108th Sts. (twice to ensure accuracy) and filling out a form at each store along the way. They found 53 stores. Three of them opened during the four weeks it took to complete the survey. Another store then opened (that makes 54).
For more than a year, we’ve been pitching enforcement strategies to City Hall to supplement the state. We asked the NYC Department of Health and Mental Hygiene to enforce adulterated food product rules at stores that sell cannabis edibles, but they declined (the governor suggested the same strategy In January).
We asked the NYPD to build felony cases against the worst actors. We asked the New York City Sheriff and Department of Consumer and Worker Protection (DCWP) to enforce city tobacco and vape laws at illegal cannabis shops.
In 2013, the City Council passed the Sensible Tobacco Enforcement law, which increased fines and created new penalties for selling tobacco and e-cigarette products without a license. The civil enforcement structure grants DCWP sealing authority at businesses that engage in unlicensed activity more than twice in a three-year period. Adjudications happen through the Office of Administrative Trials and Hearings, not through state courts.
We checked publicly available enforcement data against our 53 stores and found 12 that are already eligible for padlocking under city law, which we referred to DCWP. One of them was Zaza Waza with 47 violations issued during six inspections over two years. We told DCWP, and we got action.
Two DCWP enforcement officers padlocked the store on a Wednesday morning under the Sensible Tobacco Enforcement law. We were elated for 24 hours until we discovered that Zaza Waza’s operators sawed off the padlocks and reopened on Thursday morning. We called DCWP and the 24th Police Precinct. The store was resealed by early afternoon (it took nine uniformed city workers a combined 36 hours of labor).
To reopen the store the legal way, Zaza Waza’s operators have to pay more than $200,000 in penalties and get rid of the tobacco, e-cigarettes and flavored vapes. That’s exactly what happened the next Monday. DCWP had no choice but to remove the padlocks after Zaza Waza paid the penalties and took nicotine off the shelves.
Two days later, on Wednesday, DCWP re-inspected and found the clerk selling tobacco and nicotine products. The padlocks were put back on — for now. If the City Council was permitted to pass similar local laws regarding unlicensed cannabis sales, we could close Zaza Waza for good.
The Sensible Tobacco Enforcement law was created in part to stop “criminal actors” from dealing “contraband” products which puts “law-abiding retailers at a competitive disadvantage” and “hurts the government and taxpayers.” Sound familiar?
Brewer represents the Upper West Side in the City Council. Goldsmith oversees cannabis policy in her office.
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