2023 New York Laws › CAN - Cannabis › Article 6 - General Provisions › 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.