New York Judge Changes Course on Exemptions, Freezes All Licensing

New York state Judge Kevin Bryant abruptly reversed course in a new order on Tuesday that now forestalls any exemptions to a retail licensing freeze in New York. He also blasted state regulators for not having their ducks in a row.

Bryant, who issued a preliminary injunction on Aug. 18 that paused retail marijuana licensing in the state, included a way for some permit holders to still move forward and open for business under the initial order. The state Office of Cannabis Management submitted 30 retailers – out of 463 licensees – that reportedly met the exemption criteria laid out by Bryant.

But after objections were filed last week by the plaintiffs in the case over some of the identified licensees, OCM First Deputy Director Patrick Mckeage filed a new affidavit filed on Monday clarifying that the agency “cannot certify whether a particular licensee … has in fact met all requirements for licensure” precisely because of the Aug. 18 injunction that forced it to cease processing permits.

That led Bryant to reject exemptions for all 30 of the retailers that the OCM said were primed to open, with a new order on Tuesday that leaves the injunction in place for all retailers that aren’t yet operational.

“The preliminary injunction will remain in effect regarding all CAURD licensees and no exemptions will be granted pending further submissions and clarification of compliance with the terms and conditions of this Court’s prior Order,” Bryant wrote.

“While the Court accepted the list provided by Defendants as being in compliance with this Court’s directive, the affidavit of Mr. Mckeage contains contradictory and confusing assertions that leave significant questions as to whether the licensees on the list have actually met all requirements,” Bryant wrote.

Bryant reprimanded the OCM for the list, which he said “includes licensees who are still finalizing construction and whose post-selection inspections have not been scheduled or completed.”

Thus, Bryant concluded, it’s “not clear … whether any of the thirty” are fully ready to legally open for business.

“Under the circumstances, given the conflicting information contained in the affidavits, absent further detailed information from OCM, this Court will not lift the injunction regarding any of the identified licensees,” Bryant wrote.

The judge did previously also establish in the injunction that other licensees could be granted leave to open if they can prove to him on a case-by-case basis that they are eligible and compliant with all rules and regulations, and have passed site inspections.

A spokesperson for the OCM could not be reached immediately for comment.

Jeremy Rivera, one of the conditional adult use retail dispensary (CAURD) licensees who was poised to open this month but now cannot, called the situation “tiring and depressing” and that he won’t now be able to open his shop in Queens despite being named as one of the exempt 30.

“We got our employees ready and were prepared to open the week of Labor Day. Now, for the second time, we’ve had to halt our opening efforts. We are sitting here, ready to go, and every day that goes by I have more bills I can’t pay,” Rivera wrote to Green Market Report. “We’ve done everything right. We’ve played by every rule, and we are suffering without relief while thousands of unlicensed dispensaries continue to operate.”

Rivera added that he’s not sure what will happen next for his shop, which he’s named Terp Bros.

“I don’t know what we will do next, but I can’t hold out for much longer,” Rivera wrote.