AN ATTACK ON NEW YORK’S SMALL BUSINESSES: WHY IS THE STATE ALLOWING LAW ENFORCEMENT TO RAID LEGAL, LICENSED HEMP RETAILERS?
It has become very clear that the powers-that-be in New York do not understand the difference between licensed hemp retail stores selling compliant products and those stores that peddle illicit and unlicensed marijuana.
As a result, lawful hemp licensees are caught up in the State’s recent dragnet targeting unlicensed marijuana retailers. To make matters worse, the State refuses to recognize lawful hemp retailers even when law enforcement is presented with State-issued hemp licenses and related documentation evidencing legality during raids of these stores.
The situation could not be more dire. New York’s Office of Cannabis Management (“OCM), along with State and local law enforcement, including the NYC Sheriff’s Office, is conducting armed raids of licensed hemp stores across the state under the guise of warrantless “administrative inspections.” They rifle through stores applying the cannabis law to hemp licensees, although each is governed by a distinct regulatory scheme. Officials complain that the hemp product does not comply with the cannabis regulations (which do not govern hemp product), unlawfully seize tens of thousands of dollars of product, and to make matters worse, often padlock the store posting a Scarlet Letter “A” sign in the window proclaiming “WARNING: THIS BUSINESS IS ORDERED TO STOP ILLEGAL ACTIVITY. ILLICIT CANNABIS SEIZED HERE.” Store employees are detained for hours, their personal property is searched, and often they are handcuffed and arrested – and in at least one instance, an employee was chained to a jail cell overnight.
This is happening to State-licensed, lawfully operating hemp stores. It must stop.
Why are these retailers being terrorized, their businesses destroyed (often small, family-owned businesses) and their employees taken to jail and charged with crimes? Because the State is willfully ignoring its own laws and regulations – not to mention fundamental constitutional rights — acting as judge, jury, and executioner. No warrant. No hearing. No due process.
There is no question that unlicensed marijuana operators must be shut down to ensure a safe and regulated market, as was the intention in enacting New York’s Marijuana Regulation & Taxation Act (“MRTA”). Marijuana and hemp are from the same plant and to the uneducated, appear identical, even in processed form. However, there is a significant difference. The OCM, itself, knows this, explaining on its website:
“Hemp” and “adult-use cannabis” are different classifications of the cannabis plant. Hemp is used to classify varieties of cannabis that contain 0.3% or less THC. Adult-use cannabis and Medical cannabis are used to classify varieties of cannabis that contain more than 0.3% THC, which is known for its psychoactive effects (including a feeling of being high).
Yet, the State willfully ignores the approved hemp license and certificates of analysis from labs confirming that these retailers are selling legal product when presented with this information during “administrative inspections.” In fact, hemp licensees are registered with the OCM. The OCM knows the difference between hemp and marijuana. It knows the difference between a licensed operator and an unlicensed one. It knows the difference between the cannabis regulations and the hemp regulations. It knows that these warrantless, purportedly “administrative inspections” are overbroad and unconstitutional. It knows what it is doing is wrong. Yet, it does it anyway. And so does law enforcement.
I work with dozens of lawfully operating hemp licensees. They are good people starting out in a nascent industry selling a plant with tremendous health benefits. They are not criminals. They want a safe and regulated market, just like the State. They want to keep those under 21 from purchasing hemp products, just like the State. They want to ensure proper product labeling and packaging, just like the State.
Justice William J. Brennan, Jr., of the United States Supreme Court, said: “While the machinery of law enforcement and indeed the nature of crime itself have changed dramatically since the Fourth Amendment became part of the Nation’s fundamental law in 1791, what the Framers understood then remains true today – that the task of combating crime and convicting the guilty will in every era seem of such critical and pressing concern that we may be lured by the temptations of expediency into forsaking our commitment to protecting individual liberty and privacy.”
Justice Brennan’s words could not ring more true today. As the OCM continues in disarray with chaos reigning supreme recently prompting senior staff to quit – Governor Hochul proclaimed the agency a “disaster” – and fails in its licensing efforts, its enforcement arm engages in unconstitutional, armed raids against lawfully operating hemp licensees — hurting hard working small business owners in willful disregard for our clients’ rights.
Rather than violate constitutional rights, rather than engage in armed raids (sadly, it’s only a matter of time before someone gets hurt), rather than criminalize lawful businesses, we ask the State to work with these legal, licensed stores to pursue our common interests for the benefit of the small business owners and consumers alike and to heed Justice Brennan’s admonition to not “be lured by the temptations of expediency into forsaking our commitment to protecting individual liberty and privacy.”
Joshua S. Bauchner
Partner at Mandelbaum Barrett PC
Jed M. Weiss
Partner at Mandelbaum Barrett PC
