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A08428 Summary:

BILL NOA08428A
 
SAME ASSAME AS S07998-A
 
SPONSORRajkumar
 
COSPNSRArdila, Benedetto, Alvarez, Zaccaro, Berger, Pheffer Amato, Hyndman, Beephan, Lee, Brown K, Angelino, Buttenschon, Cunningham, Wallace, Seawright
 
MLTSPNSR
 
Amd §132, Cannabis L; amd Part 4 Title W Title Head, add Art 455 §455.00, Pen L
 
Permits municipalities to enforce licensure requirements of retail dispensaries by closing retail locations which sell cannabis without a license; allows seizure of the instrumentality of the unlawful sales, including real estate.
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A08428 Actions:

BILL NOA08428A
 
12/29/2023referred to economic development
01/03/2024referred to economic development
02/14/2024amend and recommit to economic development
02/14/2024print number 8428a
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A08428 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A8428A
 
SPONSOR: Rajkumar
  TITLE OF BILL: An act to amend the cannabis law and the penal law, in relation to forfeiture of property involved in the unlawful sale of cannabis   PURPOSE OR GENERAL IDEA OF BILL: To authorize all municipalities to stop operations of unlicensed canna- bis retailers and-seize merchandise.   SUMMARY OF PROVISIONS: Section 1 is the short title. Section 2 amends Subdivision 8 of section 132 of.the cannabis law, as added by section 17 of part UU of chapter 56 of the laws of 2023, to make unlawfully selling cannabis in connection with a business a class a misdemeanor, and grants municipalities the authority to order the imme- diate closure of such business and seize all merchandise. Section 3 amends the title heading of title W of part 4 of the penal law, as amended by chapter 920 of the laws of 1969, to add cannabis. Section 4 amends the penal law by adding a new section 455 providing for the seizure and forfeiture of property involved in the unlawful sale of cannabis, and the'permitted sale of property other than cannabis and cannabis-infused products. Section 5 is the effective date.   DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE): The A-print amends Section 2 to clarify the terms to order closure.   JUSTIFICATION: The Marihuana Regulation and Taxation Act of 2021 established a licen- sure process for retail dispensaries legally to sell recreational adult use cannabis. It vested a Cannabis Control Board with the authority to issue stop work orders and direct seizure of merchandise from unlawful retailers. The lack of authority for municipalities to interdict unlaw- ful retailers, combined with limited resources from the Board, has resulted in the proliferation of so-called "smoke shops" openly selling illegal, unregulated cannabis and other contraband with near total impu- nity. In New York City alone, there are an estimated 1,500 illegal smoke shops. Mayor Eric Adams remarked, "I could clear up the smoke shops problem in 30 days. They haven't given us the power." The vast amount of contraband and loose cash in these smoke shops have made them tantalizing targets for robberies and hotbeds of crime. This has put communities, shop employees, and their customers in extreme danger. Robberies of smoke shops in New York City increased from 137 in 2021 to 593 in 2022. At least five people were fatally shot in smoke shops in 2023. These shops are also unfair competition to licensed dispensaries, who cannot afford to sell their rigorously tested and regulated cannabis at the prices, smoke shops offer. The Stop Marijuana Over-proliferation and Keep Empty Operators of Unli- censed Transactions (SMOKEOUT) Act grants all municipalities across our Great State the authority to order the closure of unlicensed cannabis retailers and seize all merchandise, swiftly ending the blight of ille- gal smoke shops once and for all.   PRIOR LEGISLATIVE HISTORY: New bill.   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.   EFFECTIVE DATE: This act shall take effect immediately.
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A08428 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         8428--A
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                    December 29, 2023
                                       ___________
 
        Introduced  by  M.  of A. RAJKUMAR, ARDILA, BENEDETTO, ALVAREZ, ZACCARO,
          BERGER, PHEFFER AMATO -- read once and referred to  the  Committee  on
          Economic  Development  --  recommitted  to  the  Committee on Economic
          Development in accordance with Assembly Rule 3, sec.  2  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee
 
        AN  ACT  to  amend  the  cannabis  law and the penal law, in relation to
          forfeiture of property involved in the unlawful sale of cannabis
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. This act shall be known and may be cited as the "stop mari-
     2  juana  over-proliferation  and keep empty operators of unlicensed trans-
     3  actions (SMOKEOUT) act".
     4    § 2. Subdivision 8 of section 132 of the cannabis  law,  as  added  by
     5  section  17  of part UU of chapter 56 of the laws of 2023, is amended to
     6  read as follows:
     7    8. Any person who knowingly and unlawfully sells, gives, or causes  to
     8  be  sold  or given, in connection with the operation of a business or at
     9  the business location, any cannabis or cannabis products for  which  the
    10  sale  of such products requires a license, permit, or registration under
    11  this chapter [where such person owns and/or is  principally  responsible
    12  for the operation of a business where such products were sold, given, or
    13  caused  to  be  sold  or given] without having obtained a valid license,
    14  permit or registration therefor shall be guilty of a class  A  misdemea-
    15  nor.    A  municipality  shall have the authority to order the immediate
    16  closure of any business which is found to have violated  the  provisions
    17  of this section, or of any business where a violation of this section or
    18  any  other  violation  exists  that  poses an immediate threat to public
    19  health and  safety;  and  to  seize  any  merchandise  related  to  such
    20  violation  or  violations including cannabis, cannabis related products,
    21  tobacco, tobacco related products  and  any  proceeds  relating  thereto
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13780-09-4

        A. 8428--A                          2
 
     1  pursuant  to  the  provisions  of article four hundred fifty-five of the
     2  penal law.  For the purposes of this subdivision, an  "immediate  threat
     3  to  public  health and safety" shall include, but is not limited to, the
     4  presence  of  any  cannabis  or  cannabis  products in connection with a
     5  violation of this section; the presence  of  any  cigarette  or  tobacco
     6  products  in  connection  with  a  violation of section eighteen hundred
     7  fourteen of the tax law; the presence of any  schedule  I  substance  as
     8  defined by section thirty-three hundred six of the public health law; or
     9  a  violation  of  article thirteen-F of the public health law, including
    10  the presence of a substance or product whose sale  is  prohibited  under
    11  such  article.  For  the purposes of this section, "operation of a busi-
    12  ness" shall mean engaging in the sale  of,  or  otherwise  offering  for
    13  sale,  goods and services to the general public, including through indi-
    14  rect retail sales.
    15    § 3. The title heading of title W of part  4  of  the  penal  law,  as
    16  amended  by  chapter  920  of  the  laws  of 1969, is amended to read as
    17  follows:
    18            PROVISIONS RELATING TO FIREARMS, FIREWORKS, PORNOGRAPHY
    19                EQUIPMENT, CANNABIS AND VEHICLES USED IN THE
    20                     TRANSPORTATION OF GAMBLING RECORDS
    21    § 4. The penal law is amended by adding a new article 455 to  read  as
    22  follows:
    23                                  ARTICLE 455
    24     SEIZURE AND FORFEITURE OF PROPERTY INVOLVED IN THE UNLAWFUL SALE OF
    25                                  CANNABIS
 
    26  Section 455.00 Seizure and forfeiture of property involved in the unlaw-
    27                   ful sale of cannabis.
    28  § 455.00 Seizure  and  forfeiture  of  property involved in the unlawful
    29             sale of cannabis.
    30    1. Any property constituting the proceeds or substituted  proceeds  of
    31  an  offense  involving  the unlawful or unlicensed sale of cannabis; and
    32  any property constituting an instrumentality of such offense,  including
    33  real  property,  is  subject to forfeiture pursuant to this article. Any
    34  peace officer, acting pursuant to the special duties of the peace  offi-
    35  cer,  or police officer of this state may seize any property involved in
    36  the unlawful or unlicensed sale of cannabis.
    37    2. The seized property shall be delivered by  the  police  officer  or
    38  peace  officer  having  made  the seizure to the custody of the district
    39  attorney of the county wherein the seizure was made, except that in  the
    40  cities  of  New  York, Yonkers and Buffalo, the seized property shall be
    41  delivered to the custody of the police department of such cities togeth-
    42  er with a report of all the facts and circumstances of the seizure.
    43    3. It shall be the duty of the district attorney of the county wherein
    44  the seizure was made, if elsewhere than in the cities of New York, Yonk-
    45  ers or Buffalo, and where the seizure is made in  either  such  city  it
    46  shall  be  the  duty  of the corporation counsel of the city, to inquire
    47  into the facts of the seizure so reported  to  him  or  her  and  if  it
    48  appears  probable  that a forfeiture has been incurred, for the determi-
    49  nation of which the institution of proceedings in the supreme  court  is
    50  necessary,  to  cause  the proper proceedings to be commenced and prose-
    51  cuted, at any time after thirty  days  from  the  date  of  seizure,  to
    52  declare  such  forfeiture,  unless,  upon  inquiry  and examination such
    53  district attorney or corporation counsel decides that  such  proceedings
    54  cannot  probably  be sustained or that the ends of public justice do not
    55  require that they should be instituted or prosecuted, in which case, the

        A. 8428--A                          3
 
     1  district attorney or corporation counsel shall cause such seized proper-
     2  ty to be returned to the owner thereof.
     3    4.  Notice  of  the  institution of the forfeiture proceeding shall be
     4  served either (a) personally on the owners of the seized property or (b)
     5  by registered mail to the owners' last known address and by  publication
     6  of  the  notice  once  a  week  for  two successive weeks in a newspaper
     7  published or circulated in the county wherein the seizure was made.
     8    5. Forfeiture shall not be adjudged where the  owners  established  by
     9  preponderance  of  the evidence that the use of such seized property was
    10  not intentional on the part of any owner.
    11    6. The district attorney or the police department  having  custody  of
    12  the  seized  property,  after such judicial determination of forfeiture,
    13  shall, by a public notice of at least five  days,  sell  such  forfeited
    14  property  at public sale; provided, however, that cannabis and cannabis-
    15  infused products shall not be sold.  Any  cannabis  or  cannabis-infused
    16  products which have been determined to be subject to forfeiture shall be
    17  destroyed  in accordance with regulations to be established by the divi-
    18  sion of the state police. The net proceeds of any permitted sale,  after
    19  deduction of the lawful expenses incurred, shall be paid into the gener-
    20  al  fund  of the county wherein the seizure was made except that the net
    21  proceeds of the permitted sale of property seized in the cities  of  New
    22  York,  Yonkers  and  Buffalo  shall  be paid into the respective general
    23  funds of such cities.
    24    7. Whenever any person interested in any property which is seized  and
    25  declared  forfeited  under  the  provisions of this section files with a
    26  justice of the supreme  court  a  petition  for  the  recovery  of  such
    27  forfeited  property,  the  justice of the supreme court may restore said
    28  forfeited property upon such terms and conditions as  he  or  she  deems
    29  reasonable and just, if the petitioner establishes the defense set forth
    30  in  subdivision five of this section and that the petitioner was without
    31  personal or actual knowledge of the forfeiture proceeding. If the  peti-
    32  tion  be filed after the sale of the forfeited property, any judgment in
    33  favor of the petitioner shall be limited to the  net  proceeds  of  such
    34  sale,  after  deduction of the lawful expenses and costs incurred by the
    35  district attorney, police department or corporation counsel.
    36    8. No suit or action under this section for wrongful seizure shall  be
    37  instituted  unless  such  suit  or  action is commenced within two years
    38  after the time when the property was seized.
    39    § 5. This act shall take effect immediately.
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