N.Y. Cannabis Law § 138-b: Orders to seal

§ 138-b. Orders to seal. 1. In addition to any other authority

conferred in this chapter, pursuant to the provisions of this section,

the board or the office shall have the authority to issue an order to

seal the building or premises of any business engaged in unlicensed

activity, when such activity is conducted, maintained, or permitted in

such building or premises, occupied as a place of business as described

in subdivision eight of section ten of this chapter, in violation of

subdivision one or one-a of section one hundred twenty-five or

subdivision one or eight of section one hundred thirty-two of this

article.

2. Any order to seal shall be served by delivery of the order to the

owner of the business or other person of suitable age or discretion in

actual or apparent control of the premises at the time of the inspection

and shall be posted at the building or premises that have been sealed,

secured and closed. A copy of the order shall also be mailed to any

address for the owner of the business at any address provided by the

person to whom such order was delivered pursuant to this subdivision.

The order shall remain in effect pending a hearing and final

determination of the board, or until such order is vacated by the office

pursuant to subdivision six of this section. An order to seal shall

explicitly state the procedure to request a hearing within seven days.

3. The office may issue an order to seal with an immediate effective

date if such order is based upon a finding by the office of an imminent

threat to the public health, safety, and welfare. In such cases a

hearing shall be held within three business days of a request for such

hearing, unless otherwise adjourned by agreement of the parties, and a

determination shall be rendered within four business days of the

conclusion of such hearing, provided that the respondent has submitted a

verified statement that may be required pursuant to subdivision five of

section seventeen of this chapter. Failure of a respondent to appear at

the hearing will result in a default and order of sealing to remain in

effect for up to one year unless otherwise vacated pursuant to the

provisions of this section.

4. Factors that determine an imminent threat to public health, safety,

and welfare shall be limited to:

(a) documented sales to minors;

(b) unlicensed processing of cannabis products at the building or

premises;

(c) orders issued following an inspection wherein the person engaged

in the unlicensed activity engaged in violent, tumultuous, or other

behaviors indicating expressed intent to not comply with the office's

order to cease the unlicensed activity;

(d) documented presence of unlawful firearms at the building or

premises;

(e) proximity of the building or premises to schools, houses of

worship, or public youth facilities;

(f) presence of products deemed unsafe based on reports of illness or

hospitalization; or

(g) sales of, or offers to sell, cannabis products not tested or

labeled lawfully in accordance with this chapter.

5. Notwithstanding the factors listed in subdivision four of this

section and the restriction set forth in paragraph (b) of subdivision

six of this section, the office may issue an order to seal with an

immediate effective date upon a second or subsequent inspection in which

unlicensed activity is confirmed to be continuing more than ten calendar

days after a notice of violation and order to cease unlicensed activity

was previously issued by the office, provided that the office has also

provided notice pursuant to subparagraph (ii) of paragraph (a) of

subdivision thirteen of section one hundred thirty-eight-a of this

article.

6. An order to seal may be issued by the office or the board pursuant

to subdivision three of this section only if: (a) no part of the

premises to be sealed is used in part as a residence and pursuant to

local law or ordinance is zoned and lawfully occupied as a residence;

and (b) the unlicensed activity as described in this section is more

than a de minimis part of the business activity on the premises or in

the building to be sealed pursuant to the order. In the event that an

order to seal may not be issued pursuant to this subdivision, the office

shall issue a notice of violation and order to cease the unlicensed

conduct, which shall constitute notice that such unlicensed activity

must cease immediately.

7. In assessing whether unlicensed activity within a building or

premises is more than de minimis, the office or board, as relevant,

shall consider factors such as any one or more of the following:

(a) the presence of signs or symbols, indoors or out, advertising the

sale of cannabis or otherwise indicating that cannabis is sold on the

premises;

(b) information shared in any advertisements or other marketing

content in connection with the unlicensed business activity and any

direct or indirect sales of cannabis or other conduct in violation of

this chapter;

(c) the volume of illicit cannabis products on site; and

(d) the variety of illicit cannabis products on site.

8. Upon a request by the office, any police officer or peace officer

with jurisdiction may assist in the enforcement of an order to seal

issued by the office or the board, in accordance with the following

procedures:

(a) The police officer or peace officer serving and executing the

order to seal shall forthwith make and return to the office an inventory

of personal property situated in and used in conducting, maintaining, or

permitting the unlicensed activity within the scope of this chapter and

shall enter upon the building or premises for such purpose. Such

inventory shall be taken in any manner which is deemed likely to

evidence a true and accurate representation of the personal property

subject to such inventory including, but not limited to photographing

such personal property.

(b) The police officer or peace officer serving and executing the

order to seal shall enter the building or premises and, upon service of

the order, command all persons present in the building or premises to

vacate the premises forthwith. Upon the building or premises being

vacated, the premises shall be securely locked and all keys delivered to

the officer serving the order who thereafter shall deliver the keys to

the fee owner, lessor, or lessee of the building or premises involved.

If the fee owner, lessor, or lessee is not at the building or premises

when the order is being executed, the officer shall securely padlock the

premises and retain the keys until the fee owner, lessor, or lessee of

the building is ascertained, in which event, the officer shall deliver

the keys to such fee owner, lessor, or lessee.

(c) Upon service and execution of the order to seal, the police

officer or peace officer shall post a copy thereof in a conspicuous

place or upon one or more of the principal doors at entrances of such

premises where the unlicensed activity is being conducted, maintained,

or permitted. In addition, the officer shall affix, in a conspicuous

place or upon one or more of the principal doors at entrances of such

premises, a printed notice that the premises have been closed by order

of the cannabis control board, and the name of the officer or agency

posting the notice.

(d) Mutilation or removal of such a posted order or such a posted

notice while it remains in force, in addition to any other punishment

prescribed by law, shall be punishable, on conviction, by a fine of not

more than five thousand dollars or by a class B misdemeanor, or both,

provided such order or notice contains therein a notice of such penalty,

and shall be referred to the local district attorney for enforcement.

The office shall also adhere to the procedures in this subdivision when

executing an order to seal issued in accordance with this section.

9. Any order to seal issued by the office or the board issued pursuant

to this section shall be effective for one year from the later of the

posting of the order or the date of the judgment provided for in this

section. An order to seal shall be vacated by the office or the board,

upon notice to the office, if the respondent submits sufficient evidence

to the office or the board by an affidavit and such other proof as may

be submitted by the respondent that the unlicensed activity has been

abated. An order vacating an order to seal shall include a provision

authorizing the office, or any police officer or peace officer who

assisted with the execution of the order to seal, to inspect the

building or premises without notice for the purpose of ascertaining

whether or not the unlicensed activity has been abated. Any police

officer or peace officer with jurisdiction may, upon the request of the

office, assist in the enforcement of an inspection provision of an order

vacating an order to seal.

10. The office shall mail a copy, by certified mail, of any order to

seal issued by the office or board within five days following issuance

of such order to the person in whose name the real estate affected by

the order is recorded in the office of the city register or the county

clerk, as the case may be, who shall be presumed to be the owner

thereof. Such mailing shall constitute notice to the owner and shall be

deemed to be complete upon such mailing by the office as provided above.

11. If at any time a respondent vacates the building or premises

subject to an order to seal issued by the office or board, or if the

building owner provides sufficient proof thereof, any action or

proceeding filed in accordance with these procedures relating to such

building or premises shall be withdrawn by the office or the board

without prejudice, and any order to seal shall be vacated.

12. The remedies provided for in this section are not exclusive and

the office or board may also request and recover penalties in accordance

with other provisions in this chapter.