New York law used to shut down unlicensed weed is unconstitutional, judge rules

A Queens judge ruled Tuesday that a local law that allowed New York to close quickly more than 1000 enterprises accused of selling cannabis without a license is unconstitutional because it deprives store owners of their due process rights.

The decision calls into question the legality of the closures and could halt the city’s law enforcement effort, known as Operation Lockdown, which Mayor Eric Adams has repeatedly hailed as a success.

Liz Garcia, a spokeswoman for the mayor, said Tuesday that the city will appeal the decision.

“Illegal smoke shops and their dangerous products are putting young New Yorkers and our quality of life at risk, and we continue to lock up illegal storefronts and protect communities from the health and safety hazards posed by illegal operators,” she said .

Earlier this year, the city updated its administrative code to make it easier to shut down shops suspected of selling cannabis without a license. But New York Supreme Court Justice Kevin Kerrigan ruled that parts of the city law that allow the sheriff to unilaterally decide whether to keep the store closed for a year are unconstitutional.

By law, a business owner who has been locked up for allegedly selling cannabis without a license has the right to a hearing at the Office of Administrative Tribunals and Hearings (OATH). After hearing the facts of the case, the hearing officer makes a recommendation as to whether the store should remain closed.

But the final decision rests with the sheriff — and lawyers representing the companies that were shut down say the sheriff often ignores OATH’s recommendations.

That’s what happened in the Kerrigan case on Tuesday. The lawsuit against the city was filed by the owner of the Cloud Corner store, registered as ASA 456 Corp., on Francis Lewis Boulevard in Queens. In early September, Cloud Corner was closed due to accusations of selling marijuana without a license.

At an OATH hearing a few days later, city officials provided photos of cannabis products it said were sold at the store, according to documents filed in the lawsuit. A Cloud Corner employee confirmed at the hearing that the products were for sale, but testified that employees conducting the inspection visited the store when it was closed, according to court records.

An OATH officer recommended that the sheriff reopen the store because at the time of the inspection, cannabis products were not being sold or being sold, court records show. But the sheriff overturned that decision.

“If the final arbitrator has the authority to give no weight to the hearing, there is no real meaningful opportunity to be heard, which … raises due process concerns,” Kerrigan wrote in his decision in the case.

Kerrigan decided that the sheriff should allow Cloud Corner to reopen.

Lance Lazzaro, the attorney who brought the case on behalf of Cloud Corner, said he is optimistic the decision will be upheld by the high court.

“I don’t see an appellate court saying due process is served when the sheriff acts as judge, jury and executioner,” Lazzaro said.

Lazzaro also submitted separate class action against the city in June, challenging the constitutionality of the law on behalf of a group of 27 businesses that were shut down as a result of Operation Castle.

He said if Kerrigan’s decision is upheld, it potentially opens the city up to “a flood of lawsuits for loss of business and reputation” from stores that were wrongfully closed.

This article has been updated with additional comments from the Adams administration.