{"id":64230,"date":"2026-06-13T20:22:40","date_gmt":"2026-06-14T01:22:40","guid":{"rendered":"https:\/\/fourthamendment.com\/?p=64230"},"modified":"2026-06-13T20:22:40","modified_gmt":"2026-06-14T01:22:40","slug":"ny3-cannabis-stores-are-closely-regulated-business","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=64230","title":{"rendered":"NY3: Cannabis stores are closely regulated business"},"content":{"rendered":"\n

Regulatory inspections of cannabis stores is reasonable and not a violation of the Fourth Amendment. They are closely regulated under Burger, and the extent of inspections is limited. Matter of Super Smoke N Save LLC v. N.Y. State Cannabis Control Bd.<\/a>, 2026 NY Slip Op 03715, 2026 N.Y. App. Div. LEXIS 3894 (3rd Dept. June 11, 2026):<\/p>\n\n\n\n\n\n\n\n

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Petitioners do not seriously dispute the first or second prongs of the Burger test, i.e., that cannabis is a closely regulated industry and that warrantless inspections are necessary to further the regulatory scheme. Rather, petitioners argue that the inspection scheme fails Burger’s third prong. Accordingly, we examine whether the statutory and regulatory scheme furnish an adequate substitute for a warrant under the Fourth Amendment (see New York v Burger, 482 U.S. at 703; Matter of Owner Operator Ind. Drivers Assn., Inc. v New York State Dept. of Transp., 40 NY3d at 65). To satisfy this requirement, the regulatory scheme must provide either a meaningful limitation on the otherwise broad discretion afforded to inspectors or a satisfactory means to minimize the risk of arbitrary or abusive enforcement by ensuring that inspections are limited in scope to that which is necessary to meet the governmental interest justifying the search (see New York v Burger, 482 U.S. at 702-703; Matter of Owner Operator Ind. Drivers Assn., Inc. v New York State Dept. of Transp., 40 NY3d at 65-66).<\/p>\n\n\n\n

Applying these substantive rules to petitioners’ attempt to show the likelihood of a successful constitutional challenge, we find that Supreme Court abused its discretion in granting the preliminary injunction because petitioners failed to show that the statutory and regulatory scheme is invalid in all of its applications (see Matter of Owner Operator Ind. Drivers Assn., Inc. v New York State Dept. of Transp., 40 NY3d at 61; Matter of People of State of N.Y. v Commons West, LLC, __ AD3d at ___, 2026 NY Slip Op 01253, *4-5; Sullivan v New York State Joint Commn. on Pub. Ethics, 207 AD3d 117, 129 [3d Dept 2022]). The Cannabis Law and its implementing regulations, when considered together, adequately define how inspections are conducted (see Anobile v Pelligrino, 274 F3d at 56-57). The regulations require applicants, as a condition of licensure, to consent in advance to regulatory inspections of their premises (see 9 NYCRR 133.3 [a]). Licensees are notified that their businesses are subject to “regulatory inspections” (Cannabis Law \u00a7 11 [3], [5]) of defined locations, including places of business and vehicles used in connection with such business, while inspections beyond those parameters require probable cause (see Cannabis Law \u00a7\u00a7 10 [8]; 11 [3], [5]; Matter of West v Alexander, 242 AD3d 1407, 1411 [3d Dept 2025]). Though the regulations require businesses to cooperate with inspectors, they do not authorize OCM to break into locked areas or storage cabinets. Rather, they authorize OCM to impose administrative penalties for noncooperation (see 9 NYCRR 133.3 [e]). Inspections under local laws are limited to a business’ operating hours and must “be conducted for purposes of civil administrative enforcement with respect to the premises lacking applicable registrations, licenses or permits issued” by OCM (Cannabis Law \u00a7 131 [3] [b]). The implementing regulations constrain the permissible scope of inspections by identifying the categories of items subject to examination, including specified products, records and related materials (see 9 NYCRR 133.3 [a]; 133.25 [a]; compare Matter of People of the State of N.Y. v Commons West, LLC, __ AD3d at ___, 2026 NY Slip Op 01253, *5). The regulations notify licensees that inspectors accompanied by peace or police officers may conduct a site visit and which individuals connected to the business may be interviewed (see 9 NYCRR 133.3 [a]; 133.25 [a]). Finally, if a violation of the Cannabis Law is discovered through an administrative inspection, the statute lists which products may be seized (see Cannabis Law \u00a7 138-a [2]). When viewed as a whole, we find that the statutory and regulatory framework provides “meaningful limitation[s]” on an inspector’s discretion and ensures that “the search is limited in scope to that necessary to meet the interest that legitimized the search in the first place” (People v Quackenbush, 88 NY2d at 542 [internal quotation marks and citation omitted]; see New York v Burger, 482 U.S. at 703). While petitioners contend that the inspection scheme is a pretext designed to discover contraband and to detect criminal activity, the state respondents represented at oral argument that these inspections have not resulted in any criminal convictions and petitioners cite only one arrest that was not prosecuted. Moreover, an otherwise lawful administrative search is not rendered unconstitutional merely because police participate in the search or because the search uncovers evidence of criminal activity (see New York v Burger, 482 U.S. at 716-717; Matter of Owner Operator Ind. Drivers Assn., Inc. v New York State Dept. of Transp., 205 AD3d 53, 62 [3d Dept 2022], mod 40 NY3d 55 [2023]). Accordingly, Supreme Court erred in concluding that petitioners were likely to succeed on the merits of their facial challenge.<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Regulatory inspections of cannabis stores is reasonable and not a violation of the Fourth Amendment. They are closely regulated under Burger, and the extent of inspections is limited. Matter of Super Smoke N Save LLC v. N.Y. State Cannabis Control … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[9],"tags":[],"class_list":["post-64230","post","type-post","status-publish","format-standard","hentry","category-administrative-search"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/64230","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=64230"}],"version-history":[{"count":1,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/64230\/revisions"}],"predecessor-version":[{"id":64231,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/64230\/revisions\/64231"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=64230"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=64230"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=64230"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}