Afia posted the following to Linked In 14 Jan 2025
NEW YORK UPDATE!
Critical Decision dropped yesterday in Super Smoke N Save LLC v. OCM, CCB, and the NYC Sheriff’s Office:
⭐ The Court issued an injunction ENJOINING the Sheriff’s office from inspecting and/or raiding any LICENSED hemp/cannabis businesses on OCM’s directory without a warrant because the Sheriff’s Office lacks legislative authority to do so, in violation of the 4th Amendment.
⭐There is an administrative exception to the warrant requirement under the 4th Amendment for highly regulated industries (i.e., state agencies may routinely inspect and search a business without a warrant in order to ensure regulatory compliance), BUT that exception requires a statute (not a regulation) to permit them and must set forth clear restrictions/boundaries.
⭐ Here, the NY legislature promulgated a statute that permits local municipalities to inspect UNLICENSED cannabis/hemp businesses in their locality, BUT local municipalities ARE NOT PERMITTED to conduct inspections of LICENSED/REGISTERED hemp and/or cannabis businesses listed on OCM’s directory (only OCM can inspect those businesses).
⭐ Because petitioners were LICENSED hemp and/or cannabis businesses, the Sheriff’s Office violated the 4th Amendment when it inspected their facilities and seized their products.
⭐OCM also violated petitioners’ 4th Amendment rights because: (1) though legislation exists permitting OCM to conduct warrantless administrative searches of licensees, that legislation lacks any time, place, and manner restraints and is therefore insufficient to grant OCM the power to perform warrantless searches/seizures, and (2) even if OCM had the authority to perform warrantless searches/seizures, OCM’s manner of executing these searches/seizures was completely unreasonable (e.g., OCM inspections involved heavily armed local law enforcement despite a lack of any evidence that regulators would have otherwise been in danger, products were not inspected for regulatory compliance and were often destroyed before testing could be done, surveillance cameras were turned off at the start of inspections to hide the actions of regulators/inspectors).
⭐ OCM is enjoined from performing warrantless searches/seizures of petitioners and their products, must return all products seized from petitioners, and may only perform reasonable inspections with no more than 2 unarmed inspectors (unless security concern is supported by documentation).
Remember when I was screaming from the figurative rooftops last year that emergency enforcement rules/legislation were too broad and threatened to violate due process and other constitutional rights?
I hate to say I told ya so, but…
I too want to stop illicit operators and licensees violating the law, but this is not the way!
Will be interesting to see the impact of this injunction on OCM’s enforcements efforts, as it continues to defend itself against a slew of other lawsuits.
NEVER. A. DULL. MOMENT.
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