We recently got on our soap box about the importance of hiring a New York cannabis attorney. The catalyst for that post was the question of whether applicants for New York’s Conditional Adult-Use Retail Dispensary (CAURD) license can select their own real estate. We have an answer: no.
A brief refresher of the drama. Section 116.7(b)(6) of the CAURD regulations made it a condition of licensure that the licensee “[accept] a dispensary location identified by the fund or office[.]” The Office of Cannabis Management (OCM) published supplemental licensing materials that contained conflicting guidance.
The OCM’s CAURD FAQ contained the following question and answer:
31. Can I choose where my CAURD licensed retail dispensary will be located?
Applicants who are selected will be assigned a retail dispensary location in one of the fourteen (14) geographic regions of NYS. When applying you will be asked to indicate which region(s) of the State you would prefer to be assigned a license in. You will be able to rank your top five (5) preferred regions. You will not be able to choose the specific street address or neighborhood for this dispensary. Provisional licensees will be able to share their preferences among the available locations in the region for which they have been selected.
If you would like to select your own site for a retail dispensary, the CAURD license may not be the right fit for you. Future adult-use retail dispensary licenses (and those for on-site consumption sites) will have more flexibility in allowing licensees to choose their own location.”
The OCM also published comments and responses to the CAURD regulations, which included this language regarding whether applicants could select their own real estate:
“The proposed regulations do not insist upon applicants to use New York Social Equity Cannabis Investment Fund locations and provide for the allowance of an applicant to provide their own location that complies with the proposed regulations.”
The conflicting position and potential change in course has had the New York cannabis industry up in arms. For good reason: whether applicants will be placed in retail dispensary locations is likely a determining factor for potential applicants.
And then, without any sort of public announcement, the OCM published revised comments and responses to the OCM’s website (also here), removing the contradictory language. The comment and response now reads:
“COMMENT: Commenters requested clarification from the Office on the nature of agreements which applicants would be required to enter into as described in section 116.7(c)(6) of the proposed rules. Commenters requested clarification on what support would be offered by the New York Social Equity Cannabis Investment Fund and the specifics of that support, such as disbursement schedule, repayment rate, acceptable expenses, and tax repercussions of accepting support. Commenters noted that “financing with favorable terms” is difficult for cannabis businesses to secure and expressed a desire to obtain support from the Fund for costs beyond build-out of the dispensary. Commenters stated it was unclear what level of control the state would have over their business as a result of accepting this support. Commenters were concerned that the terms of agreements with the Fund would be unfavorable and that licensees would be trapped in predatory arrangements. Commenters expressed a desire to apply for licensure without receiving location assistance from the Fund. Commenters suggested that, before approving any agreements between licensees and the fund, the Board consult with the Chief Equity Officer and Cannabis Advisory Board to ensure the terms and conditions of the agreements promote equity.
RESPONSE: The proposed rules only require licensees to enter into agreements which have been approved by the Board and been made available by the Office. The Office is working with the Fund to ensure that the location assignments are a benefit to all applicants to ensure their success. No changes have been made to the proposed regulations as a result of this comment.”
Of course, as reported by Cannabis Insider, the OCM has not yet confirmed that the conflicting language that is contained in the New York State Register (based on the original filing) is inaccurate. But pending that last bit of confirmation from the OCM, the CAURD location kerfuffle appears to have reached its resolution.
Bottom line: If you apply for a CAURD license and succeed, you’ll need to be prepared to accept a state-leased dispensary location. Reach out to one of our New York cannabis real estate attorneys if you think we can help.
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