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State Licenses and Permits
CB5 Comments to Chapter II of Subtitle B of Title 9 of the Official Compilation of Codes, Rules and Regulations of the State of New York, regarding Adult Use Cannabis.
At the regularly scheduled monthly Community Board Five meeting on Thursday, February 09, 2023, the following resolution passed with a vote of 33 in favor; 0 opposed; 1 abstaining:
WHEREAS, In 2021, New York State legalized the production, sale, and use of recreational cannabis, which created the ability of the State to license retail cannabis dispensaries and establishments for on-site consumption; and
WHEREAS, The regulation of these establishments will be predominantly handled by the State, and the State has created a State Cannabis Control Board for that purpose; and
WHEREAS, Within certain guidelines, local governments can pass local laws and regulations governing the “time, place and manner” of such establishments; and
WHEREAS, Chapter II of Subtitle B of Title 9 of the Official Compilation of Codes, Rules and Regulations of the State of New York has been amended to provide, among other things, various rules regarding adult use cannabis and the licensing of adult-use retail dispensaries (the “Cannabis Regulations”); and
WHEREAS, Regulations regarding establishments for on-site consumption are expected soon and CB5 expects to have comments on those regulations when the time comes; and
WHEREAS, It appears that, in certain respects, the Cannabis Regulations model certain regulations and practices of the State Liquor Authority but, while the SLA regulations are based on the premise that liquor licenses are a privilege and that issuance of most licenses must be “in the public interest,” thereby mandating public and community board input, the Cannabis Regulations are drafted in a way that seems to entitle cannabis licenses, with no necessity for evaluation of public interest or balancing the rights of cannabis licensees with the rights of the residents with whom they must closely coexist; and
WHEREAS, Manhattan CB5 desires to comment on the Cannabis Regulations as set forth herein; and
WHEREAS, Sections 119.1, 119.2, and 119.4 of the Cannabis Regulations allow local governments to restrict cannabis establishments to not less than 1,000 feet from one another, 500 feet from a school, 500 feet from a community facility, and 200 feet from a house of worship; and
WHEREAS, CB5 believes that the definition of “community facility” should be expanded to include any harm reduction facility; and
WHEREAS, CB5 believes that the distance requirement between a licensed premises and a playground should be increased from 500 feet to 1,000 feet and Section 119.2(8) be amended accordingly;; and
WHEREAS, Section 119.2 of the Cannabis Regulations allows local governments some ability to regulate “time, place, and manner” of the operation of licensed adult-use cannabis retail dispensaries and/or on-site consumption sites; and
WHEREAS, Regarding hours of operation, Section 119.2 only allows local governments to restrict (i) retail dispensary activities within the hours of 2:00 AM to 8:00 AM, and (ii) on-site consumption activities within the hours of 4:00 AM to 8:00 AM; and
WHEREAS, Section 119.2 does not allow local governments to restrict cannabis operations to less than 70 hours per week; and
WHEREAS, The inability of local governments to regulate hours of operation outside the aforementioned hours is a tremendous concern to CB5 where, in order for cannabis operations and nearby residents to coexist, different hours of operation may be appropriate; and
WHEREAS, With respect to hours of operation for liquor license establishments, the SLA allows community boards to recommend hours of operation which are appropriate for a particular location depending on proximity to residences and other relevant factors affecting quality of life; and
WHEREAS, CB5 believes that the hours of operation required by Section 119.2 should be more flexible to allow modification of hours of operation to be appropriate for the specific location being licensed; and
WHEREAS, With respect to other aspects of the method of operation for liquor license establishments, the SLA allows community boards to negotiate restrictions and enter into agreements with liquor license applicants to ensure that the method of operation for such establishments are appropriate for the specific location being licensed; and
WHEREAS, CB5 believes that the Cannabis Regulations should allow community boards to negotiate restrictions and enter agreements with cannabis applicants to tailor the method of operation to be appropriate for the specific location being licensed, which restrictions and agreements the OCM should respect; and
WHEREAS, Section 119.3 of the Cannabis Regulations provides for notification to municipalities containing only basic information regarding a cannabis license; and
WHEREAS, CB5 believes that notification to municipalities should include more information than required by Section 119.3, including information about the applicant’s business experience, etc. and that community boards should be entitled to request additional information from applicants in the form of questionnaires, or otherwise and that municipalities have access to all of the information required by Section 120.2 for the adult-use cannabis license; and
WHEREAS, Section 119.3 of the Cannabis Regulations gives a municipality only 30 days to express an opinion on a license (albeit with a right to request an extension); and
WHEREAS, CB5 believes that additional time is necessary for the municipality to provide public notification, to conduct due diligence, to schedule a hold a hearing, and to draft and submit recommendations to the OCM, and that such time period should be not less than 60 days; and
WHEREAS, Section 120.4 of the Cannabis Regulations provides for the renewal of cannabis licenses but does not provide for any municipality or community board review regarding such renewals; and
WHEREAS, CB5 believes that municipalities should be given the same review and comment on cannabis renewal or alteration applications as they are given for initial licenses; and
WHEREAS, Section 123.10(g)(11)(vi) prevents the sale of alcohol in cannabis retail establishments, but there does not yet appear to be any prohibition against serving alcohol in on-site consumption establishments; and
WHEREAS, CB5 agrees that retail establishments selling cannabis should not be permitted to sell alcohol and also believes that establishments for on-site consumption of cannabis should likewise not be permitted to serve alcohol; and
WHEREAS, CB5 believes that consumption of cannabis products must not be permitted outdoors, including in sidewalk sheds, rooftops, terraces, and other outdoor areas within which an establishments serving or selling cannabis operates; and
WHEREAS, Any discussion about cannabis licensing must also address enforcement of existing applicable laws regarding second-hand smoke, etc., enforcement against proliferation of unlicensed cannabis establishments, and protection of the licensed establishments; and
WHEREAS, CB5 believes that enforcement on both the State and local levels is urgently required immediately and on an ongoing basis and that better funding and education is required to enable such enforcement; and
WHEREAS, As the Cannabis Regulations may be amended or as additional regulations regarding on-site consumption establishments may be forthcoming, CB5 reserves the opportunity to review and comment from time to time; therefore, be it
RESOLVED, That Community Board Five makes the following recommendations regarding the Cannabis Regulations and enforcement of existing and future laws regarding cannabis:
- The definition of “community facility” should be expanded to include any harm reduction facility; and
- The minimum distance requirement between a licensed premises and a playground should be increased from 500 feet to 1,000 feet and Section 119.2(8) be amended accordingly;; and
- The hours of operation required by Section 119.2 should be more flexible to allow modification of hours of operation to be appropriate for the specific location being licensed; and
- The Cannabis Regulations should allow community boards to negotiate restrictions and enter agreements with cannabis applicants to tailor the method of operation to be appropriate for the specific location being licensed, which restrictions and agreements the OCM should respect; and
- Notification to municipalities should include more information than required by Section 119.3, including information about the applicant’s business experience, etc. and that community boards should be entitled to request additional information from applicants in the form of questionnaires, or otherwise and that municipalities have access to all of the information required by Section 120.2 for the adult-use cannabis license; and
- Additional time is necessary for the municipality to provide public notification, to conduct due diligence, to schedule and hold a hearing, and to draft and submit recommendations to the OCM, and that such time period in Section 119.3 should be not less than 60 days; and
- Section 120.4 should give municipalities the same right to review and comment on cannabis renewal or alteration applications as they are given for initial licenses; and
- The Cannabis Regulations should prohibit both retail establishments and establishments for on-site consumption of cannabis from also serving alcohol; and
- The Cannabis Regulations should prohibit both retail establishments and establishments for on-site consumption of cannabis from having outdoor areas, including sidewalk sheds, rooftops, terraces, and other outdoor areas including sidewalk sheds, rooftops, terraces, and other outdoor areas;; and
- Enforcement on both the State and local levels should be improved immediately and on an ongoing basis and that funding and education should be improved to enable such enforcement.