Judge Finds Flaws in New York City’s Cannabis Enforcement Efforts

The city has appealed the judge’s ruling in favor of a convenience store in Queens that could have broader implications for enforcement.

A state judge has ordered New York City to allow a convenience store in Queens to reopen after it was accused of selling cannabis illegally, a decision that could significantly affect the city’s effort to wipe out thousands of unlicensed sellers.

The city quickly appealed the ruling issued Wednesday by Justice Kevin J. Kerrigan. He found that the city sheriff’s office had no legal reason to keep the store at 35-12 Bell Boulevard padlocked because the underlying summons had been dismissed after the city could not prove it had delivered it to the right person. The sheriff’s office issued the summons during an inspection in June, charging the store with selling cannabis without a license.

After the summons was dismissed on procedural grounds, that should have been the end to the case, Justice Kerrigan wrote in his decision.

Instead, the hearing officer, a lawyer who assumes the role of a judge in the case, went on to recommend that the sheriff’s office keep the business closed because she believed illegal activity was taking place at the store. She also concluded that she did not need to determine whether the illegal activity was more than minimal in making her recommendation, he said.

The sheriff’s office accepted the hearing officer’s recommendations. The hearing officer’s guidance was wrong, Justice Kerrigan ruled.

The series of decisions, he wrote, resulted in “a clear violation of due process under the 1aw.”

“The court acknowledges that the unlicensed sale of cannabis within the City of New York represents an enormous public health concern,” he added. “However, summarily shuttering businesses prior to taking the necessary steps to determine whether a violation has occurred stands against the cornerstone of American democracy and procedural due process.”

The swift closings of unlicensed cannabis shops has become one of Mayor Eric Adams’s proudest accomplishments, and the city notified the court that it was appealing the ruling a little over an hour after the decision had been posted online.

“We are confident that we are acting in accordance with the law to protect public safety,” Liz Garcia, a spokeswoman for the mayor, said.

Although the order applies to one store, the broader ruling could signal trouble for the Adams administration’s effort to shutter unlicensed cannabis shops. The city estimates there are nearly 3,000 of them, and officials have closed more than 900 since May.

It is unclear how many other stores remain padlocked after their summonses have been dismissed. The sheriff’s office has issued 947 summonses to businesses for cannabis violations so far, and 137 of them have been dismissed, according to city data.

Lance Lazzaro, the lawyer who represents the convenience store, said the decision “opened the floodgates” for stores to challenge the city’s handling of their cases. He said he had seven other cases like it. He added that the Queens store would reopen on Thursday.

A Times analysis of case outcomes in June found that the most common reason for dismissals was a lack of proper service of summonses, which was the same reason that the summons in the Queens case was dismissed. At the time, the sheriff’s office said its policy was to reissue the summons.

State law requires the sheriff’s office to issue a summons to the business owner or an authorized agent personally. However, lawyers for the unlicensed shops say that in most cases, the city has failed to show how it determined the person who was served was authorized to receive the summons.

Sheriff Anthony Miranda said in an interview in May that it could be difficult to identify who is in charge of a business because the owners hide behind layers of companies and workers often try to help shield them.

Joseph Bondy, a lawyer who handles similar cases, said the judge’s decision had also confirmed that in order to justify closing stores, the hearing officer must find that the illegal activity was both a significant part of the business and an imminent threat to public safety. That could have more far-reaching implications.

“It involves an issue common to many pending closure cases and which countless OATH hearing officers have already gotten wrong,” he said, referring to the city’s Office of Administrative Trials and Hearings.