Judge Reins in City Sheriff Following Wave of Cannabis Raids that Shut Down Shops
Sheriff Anthony Miranda has repeatedly overruled a city tribunal that rejected cases alleging stores illegally sold pot. A Queens Supreme Court justice ruled both the enforcement law and his actions unconstitutional.
By Rosalind Adams, and Haidee Chu
NEW YORK - Scores of shuttered cannabis shops across New York City may have a new opportunity to challenge closure orders issued by Sheriff Anthony Miranda and potentially reopen, after a judge ruled on Tuesday that a recently enacted local padlock law didn’t provide sufficient due process.
City and state officials vowed shut-downs will continue and, in interviews, lawyers and officials agreed that the ruling won’t do much to challenge the law in its entirety in the short term.
Operation Padlock to Protect, launched in May, sent sheriff and NYPD officers to inspect stores and order them closed for as long as a year for unlicensed cannabis sales.
Under the law authorizing the operation, a shop can be sealed immediately if officers determine there is an imminent threat to public safety, such as selling near a school. The stores are then entitled to an administrative hearing to review the closure order.
Attorney Lance Lazarro went to the state Supreme Court to challenge the sheriff’s decision to continue padlocking a client’s shop after an administrative court dismissed the closure order against it. The administrative court found the inspection of the Queens shop didn’t take place during its operating hours, as would be required to prove illegal sales.
In response, Supreme Court Judge Kevin Kerrigan ruled that while the sheriff’s office can disregard the determination of the administrative court, it must still provide a rational basis for its decision and that it had failed to do so.
The judge ruled that the store in question, Cloud Corner on Francis Lewis Boulevard in Queens, must be allowed to reopen.
But Kerrigan’s order went further, finding that it was a violation of due process for the sheriff’s office to close the business without offering a meaningful way to challenge that decision.
“There’s no ability to even fight with the sheriff, he does whatever the hell he wants,” Lazarro told THE CITY. “He’s the judge, jury and executioner.”
Jeffrey Hoffman, a New York cannabis lawyer, said that the ruling highlighted a procedural flaw in the city law. “They gave the sheriff veto power,” he said. “It’s not really due process if the sheriff can come in and say I don’t really want to do that.”
The ruling comes as the Sheriff’s Office is embroiled in a Department of Investigation probe for possibly mishandling the confiscation of unlicensed cannabis and cash from shops, according to reports in Politico and the New York Times.
Massive Closures
The city has closed more than 1,200 businesses and seized more than $82 million in products under Padlock to Protect, according to figures provided by the Mayor’s Office. The sheriff’s office has continued to padlock some businesses even after administrative courts have ruled in favor of dismissing closure orders.
Out of 1,268 hearings, administrative judges dismissed 230 cases, or nearly one in five, a CITY review of cases found. The Sheriff’s Office overruled the administrative judge in nearly one in three cases, keeping those stores padlocked for up to a year, according to a recent New York Post analysis.
Joshua Bachman, a lawyer who represents several clients with shops that have been inspected under Operation Padlock to Protect, said that he was already in the process of filing three cases challenging closure orders on behalf of his clients following Kerrigan's decision.
“The implications are extraordinary,” Bachman told THE CITY, adding that the ruling “undermines the ability for the sheriff to seal any location.”
Steve Zissou, a lawyer who represents licensed dispensaries as well as unlicensed shops that have been raided under Operation Padlock to Protect, agreed that while the ruling would do little to challenge the law in its entirety, it offered shuttered stores a path to get open again.
“Certainly we're going to try to use it to help some folks," said Zissou. The ruling “really does give us a road map to how at least one Supreme Court judge sees it.”
The city immediately filed a notice of appeal following the ruling. Lazarro said that he believes the appellate court will uphold Kerrigan’s ruling on appeal, potentially upending the padlock law. “It would mean that every store that got shut down based on this unconstitutional statute has the ability to be reopened,” he said.
Other lawyers predicted that the matter may stay tied up in court challenges for some time. For now, city and state officials are defending their enforcement protocols.
"Illegal smoke shops and their dangerous products endanger young New Yorkers and our quality of life, and we continue to padlock illicit storefronts and protect communities from the health and safety dangers posed by illegal operators,” said Liz Garcia, a spokesperson for Mayor Eric Adams.
Dan Haughney, the director of enforcement and investigations at the state Office of Cannabis Management, told THE CITY the “ruling has absolutely no effect on the enforcement actions and processes that we have in place.”
“It’s business as usual,” he added.
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