By New York Post (U.S.) | Created at 2024-10-29 21:36:12 | Updated at 2024-10-30 03:32:10
6 hours ago
A state law that has allowed New York City to padlock hundreds of suspected illegal cannabis shops is unconstitutional, a Queens judge said in a bombshell ruling Tuesday.
Judge Kevin J. Kerrigan ruled that the mandate, which grants the City Sheriff’s Office authority to keep illicit cannabis sellers shuttered after they’ve been raided, violates the store owners’ rights to due process.
The sheriff’s adjudicative power, which leaves store owners helpless regardless of evidence and administrative court rulings — as examined in a recent Post expose — “stands against the cornerstone of American democracy and procedural due process,” Kerrigan wrote.
The city has used the provision to back its enforcement push — Mayor Eric Adams’ vaunted “Operation Padlock To Protect,” which officials say has resulted in more than 900 shops being shuttered.
Shop owners are able to appeal their closures in administrative courts, but under the law, the sheriff has the final call to determine which raided stores can stay open and which must remain closed for up to a year.
“Summarily shuttering a business for one year. Despite the fact that it was exonerated from allegations of illegal activity stands against the cornerstone of American democracy and procedural due process,” the decision reads.
Adams administration spokesperson Liz Garcia said the city was examining the ruling, and had filed an appeal Tuesday afternoon.
“This decision validates what we have been arguing since this statute was enacted. Mayor Adams, the City Council, and the Sheriff have violated the due process rights of every store owner that has been shutdown by the NYC Sheriff’s office,” said attorney Lance Lazzaro.
Lazzaro, who represents Cloud Corner, a Queens shop shut down on allegations of selling weed without a license last month, predicted the ruling — which calls for his client’s store to reopen — could allow others targeted in Operation Padlock to sue for “astronomical damages.”
“The City of New York should be ashamed for allowing this process to happen in the first place,” Lazarro said.
“How would Mayor Adams feel if his due process rights were violated in his pending criminal matter?”
The Post reported on Sunday that in roughly 30% of cases, the sheriff’s office had made a final determination overruling recommendations from the Office of Administrative Trials and Hearings (OATH) that accused stores be allowed to reopen.
A number of those stores were ruled to not even contain any cannabis in the store at all, while others were ordered to reopen because sheriff’s deputies had either improperly conducted their inspections or they had failed to properly service summonses, according to hundreds of pages of OATH hearings examined by The Post.
The store at the heart of Kerrigan’s ruling, Cloud Corner — incorporated as ASA 456 Corp. — admitted to containing cannabis, but successfully argued at their OATH hearing, and now in Queens Supreme Court, that the sheriff’s raid was conducted outside of business hours, and therefore the inspection could not have concluded that pot was being offered for sale.
OATH dismissed both the summons and the order shuttering the store, but the sheriff issued a final decision that the shop should be closed for up to a year, citing its listed hours of operation on Google Maps, and claiming they discovered dozens of pounds of illicit cannabis product.
The store owner said that information is automatically generated and was not accurate to the shop’s actual hours, and Kerrigan judge agreed that the sheriff had failed to find that the shop was actively selling cannabis.
The sheriff’s order for the store to remain shuttered could “only be characterized as arbitrary and capricious,” the judge wrote.
“If the final arbiter has the authority to confer no weight to the hearing, there is no real meaningful opportunity to be heard,” reads the decision, “which vastly increases the risk of erroneous deprivation and raises a due process concern.”
Last summer, the same Queens judge ruled in favor of another case brought by Lazzaro, arguing that a sealing order must be dismissed if OATH rejected the underlying summons in a cannabis raid.
That case is also being appealed by the city’s legal department.
The Tuesday decision is contrary to an initial ruling by a federal judge in a class action suit filed by Lazzaro, where the judge claimed there is enough due process and the risk of “erroneous deprivation” was low.
