The union representing deputy sheriffs on the front line of the city’s bid to crack down on smoke shops that are illicitly selling cannabis is raising questions about its members’ authority to conduct many of its raids.
In a letter obtained by THE CITY, the board and members of the union representing the deputies last month asked the top lawyer in the administration of Mayor Eric Adams — Corporation Counsel Sylvia Hinds-Radix — to clarify the basis for the sheriff’s authority to inspect unlicensed retailers of cannabis.
Per city administrative code, the sheriff’s office, an arm of the city’s Department of Finance (DOF), is authorized to inspect stores that sell cigarettes or tobacco to ensure compliance with tax and licensing requirements.
But nowhere does that code mention cannabis.
“We have been unable to find any legislation related to the inspection of unlicensed retail locations, or any cannabis legislation mentioning the Sheriff as an enforcement officer,” reads the Feb. 3 letter, which was also sent to DOF Commissioner Preston Niblack and Sheriff Anthony Miranda.
“Please provide the Deputy Sheriff [sic] Benevolent Association with an explanation as to which statutes permit the Sheriff’s Office to conduct a regulatory inspection at a cannabis retail location so that we can educate and guide our members and avoid any confusion.”
Sheriff inspections that began in November resulted in the seizure of more than 600 pounds of marijuana through Jan. 30, according to city officials, including more than 32,000 THC vapes, over 20,000 packets of edibles and nearly 2,000 cartons of cigarettes.
Most of the 107 inspections have piggybacked on its authority to enforce the state’s cigarette taxation and licensing requirements.
But there have also been inspections of stores that strictly sell cannabis or that weren’t known to sell cigarettes or tobacco ahead of time, according to Department of Finance employees who spoke with THE CITY on the condition of confidentiality.
Those employees said the sheriff’s office is often using the justification of enforcing cigarette and tobacco statutes when the real motivation is to find marijuana — which in many cases would otherwise require a search warrant.
“There were many scenarios where they were going into businesses that were solely cannabis businesses or as far as the sheriff’s office knew, there was no tobacco being sold at these places,” said one of the employees. “If you’re going in under the cover of this authority, but you’re really doing it just to skirt the need of a search warrant, you’re potentially violating people’s civil rights.”
A City Hall spokesperson said the sheriff’s office has authority under city administrative code as part of the Department of Finance to inspect stores where cigarettes or tobacco products are sold, and to seize any evidence of unlawful activity found in the process.
“The Sheriff, along with the other agencies on the enforcement task force, all have broad legal authorities to conduct business inspections, which have been exercised for years and allow for the seizing of illegal contraband,” said City Hall spokesperson Charles Lutvak.
“While we continue to call on the State Legislature to make changes to the cannabis law that would strengthen the city’s enforcement capabilities further, the multi-agency citywide task force created under the leadership of Mayor Adams remains committed to utilizing its legal authority to ensure businesses are in full compliance with the law,” he added.
City Hall officials didn’t respond when asked about the allegations that the sheriff’s authority to enter establishments is being employed at times in lieu of a search warrant.
But Lance Lazzaro, an attorney who represents many cigarette and tobacco retailers, said the concerns are “150%” on the nose.
“What they do is use the sheriff to go in there and go under the guise of ‘We’re doing a regulatory inspection’ and the police are going in with them,” he said. “They’re not getting warrants. It’s wrong. It’s illegal.”
Hesitating on Harsh Punishment
Adams tapped the sheriff’s office in November as the lead entity in a newly created Cannabis Task Force charged with stemming the tide of smoke shops selling weed illegally.
In public remarks touting the crackdown last month, Adams emphasized the need to clear out illegal competition to help the state-licensed sellers opening shop, led by people formerly convicted of cannabis crimes.
“Legalizing cannabis was a major step forward, but we’re not going to sit back and watch that progression go up in smoke because people want to emerge in an illegal market,” he said.
Police and sheriffs have made a number of arrests in the shops for possession of quantities of cannabis weighing more than 16 ounces, an offense that can carry a jail term of up to one year. At least two that were initially charged as felonies were downgraded to misdemeanors, according to a spokesperson for the Manhattan District Attorney’s Office.
But Adams and Bragg have hesitated to press harsh criminal enforcement in the era of decriminalization.
Enter the sheriff. Outside of tobacco shop enforcement, the duties of the sheriff’s office include enforcing civil court orders and judgements, such as for property seizure, evictions and arrest warrants.
According to the head of the sheriff’s union, no one from city government has responded to the letter that was sent by the union nearly six weeks ago challenging the legitimacy of the raids.
“The union is very concerned about the legality of [our members] doing these inspections,” Deputy Sheriff’s Benevolent Association President Ingrid Simonovic told THE CITY.
“We reached out to the Law Department and the Department of Finance and they never addressed our concerns,” she added. “I need answers so I know how to protect my people.”
Seeking Stronger Laws
City Hall officials said that in addition to the cannabis seizures, the sheriff’s office has issued 110 criminal summonses as of Jan. 30. The office, working alongside the Department of Consumer and Worker Protection, had also issued 941 civil summonses.
Only three cannabis shops in New York City have been licensed to sell weed legally by the state, while city officials estimate that as many as 1,500 shops have been selling marijuana products in recent months.
City and state elected officials say those shops are selling items that haven’t been quality-controlled for their contents or their quantity of psychoactive THC — raising concerns about their health risks — and are taking away business from the legal marijuana sellers.
But the slow rollout of the state-issued licenses long after state legislators made possession of small quantities of cannabis legal in March 2021 has left a vacuum in the industry, which has been quickly filled by some licensed tobacco sellers and many unlicensed, pop-up retailers.
Adams has complained about the limited enforcement options — such as a $250 fine limit on most violations that can’t be made tougher without a change in state law.
One proposed bill introduced in the current session by state Assembly member Amy Paulin (D-Westchester) would hike penalties for operating dispensaries without a state cannabis license to $2,500 for first-time violations, and potentially allow for seizure of the property after a third violation.
“The bottom line is we must give enforcement ability to the city. Right now, we don’t have that,” Adams said Monday on WABC radio. “These guys are laughing at us for the most part. And we have to give enforcement ability to the city, so we can go in and shut these shops down.”
In December, Adams revealed the first results of the cannabis task force, including the joint inspection of 53 smoke shops during a two-week pilot program.
Between December and February, however, just 54 additional locations were visited by the task force members, including the sheriff’s office, THE CITY reported last month.
On Feb. 7, Adams announced longer-term efforts at eradicating the proliferation of unlicensed weed retailers, including four nuisance abatement lawsuits filed against smoke shops by his administration. Bragg said his office would seek to utilize other laws on the books to have illicit peddlers evicted by their landlords.
Both measures are slow-going, however, as THE CITY reported earlier this month, taking weeks to result in injunctions, most ordering the businesses to cease cannabis sales.