This post was originally published on this site.
Join NY Cannabis Insider at our next industry networking event on Aug. 15 at Madame Miketteâs in NYC. Tickets will sell out.
Jeffrey Hoffman is a New York City-based attorney who hosts âAsk Me Anything about Cannabis Legalization in New Yorkâ each week on LinkedIn. Hoffman and NY Cannabis Insider have partnered to bring those sessions into print in a Q&A format.
Hoffmanâs practice focuses on cannabis industry clients, including licensees in the adult-use market, practitioners in the medical cannabis space, and cannabis-adjacent product and service providers.
He has a particular interest in social and economic equity cannabis license applicants, and he also informs and assists those convicted of cannabis offenses in getting such convictions expunged from their record. He can be reached at info@420jurist.com.
The following AMA from August 2 has been edited for length and clarity.
Whatâs up with these emergency hemp regulations?
If you had been a regular viewer of my show, youâd know that weâve been talking about this quite a bit. Weâve said for a long time that we thought New York State was going to come for the hemp-derived products. And thatâs what they did.
A lawsuit has been filed, because thatâs how we do cannabis in New York apparently, so now weâll have a judge tell us how itâs actually gonna work. The legislature writes a law, the regulator writes a regulation, and then we get lawsuits, and the judges tell us what the law really is. Thatâs how this works. Us attorneys call it âmaking law.â
Baby Jeter is still open in Manhattan and they took the OCM sticker off their window. What is going on?
The enforcement actions are underway, but such enforcement alone is not gonna get the job done â you need great products, you need to delight your customers, and you need a sensible tax scheme.
That said, when it comes to enforcement, itâs a multi-step process. OCM has got to make sure they dot their iâs and cross their tâs. So first they show up at the store, seize product, give them a ticket, put the sticker on the window, and then go to an administrative hearing.
At the administrative hearing, the judge is gonna rule against the cannabis store (unless OCM screwed up). And then, judges do not like being ignored â they do not like when you donât do what they tell you to do in an order. So OCM is putting up the sticker, theyâre handing out the tickets for the administrative hearings, there will then be an administrative hearing, and the judge will then make a ruling. And when that ruling doesnât get followed, thatâs when it gets interesting.
Thatâs when you start going back to judges and saying, âYour Honor, you issued this order on August 20. And here we are October 1, and the recipient of your order is flagrantly, openly and notoriously violating your order. Your Honor, weâd like to see stronger enforcement. Weâd like to see fines and weâd like to see padlocks on doors.â
I think we saw that upstate, theyâre gonna move a little quicker. Because upstate, a lot of places are not as excited about cannabis as we are here in New York City. Thereâs a lot of cannabis folks upstate, and weâre certainly going to defend their rights, but thereâs no question that a lot of places upstate are not as excited about this cannabis legalization thing. So when they can go after you, I assure you they will. And they did go after a bunch of stores out Buffalo way.
In New York City, youâre gonna have to take a few more steps â the judges here tend to be a bit more tenant-friendly and like to see the procedure followed to the letter. So, I do think eventually we will see padlocks on doors here in New York City. I still would go after the landlords â BIG fines to the landlords â and I would take a building. If you take one building, that solves your problem the next day, though I do think the padlocks will help once landlords see them being used.
Does federal law override state law?
Generally yes â itâs called preemption. But thereâs this silly little document we have called the Constitution. And in that document, or more specifically one of its amendments (the 10th for those of you keeping score at home), it says that the powers not delegated to the federal government, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
And that, among several other things, will keep lawyers employed for as long as the republic stands.
Whatâs your analysis of the Empire Club stores now that Empire has been raided?
Their thesis is that there is a provision in the cannabis law that allows them to do what they are doing. Now their attorney, Steve Zissou, is a super smart guy. I respect him a lot. But this is something he and I donât agree on, right? Our job as lawyers is to find hooks in the law to hang our hat on to further the objectives of our clients. And Steve and Empire think they have found a hook to hang their hat on here. With the raid, it does look like they will get their day in court, and I canât wait to see what Steve presents.
I donât think they will win, but it should be quite a show.