On December 29 just before the end of 2022, New York officially launched legal adult use sales in the state, but at only one location. The nonprofit dispensary Housing Works Cannabis Co. held a grand opening party complete with music, speeches from politicians and regulators and very, very long lines.
Chris Alexander, executive director of the New York Office of Cannabis Management (NYOCM), had the honor of making the first legal purchase, a pack of gummies and an eighth of flower, at the dispensary on the afternoon of December 29. “It’s been a lot of work that’s come to get us to this point,” Alexander told reporters on location. “We do have a lot more work to do, a lot more stores to open.”
New York originally legalized adult use cannabis in early 2021. Following almost two years of setbacks, missed deadlines and failed promises, the state just barely met one deadline: opening a dispensary in 2022. Governor Kathy Hochul has previously said that twenty stores would be doing business before the end of 2022. According to NPR, 36 dispensaries have been licensed, the NYOCM has another 139 licenses they need to issue and there are roughly 900 applicants that are still waiting.
To many in the cannabis space, New York is expected to become a massive boon to the country’s cannabis economy. It is just taking a bit longer than expected to materialize. Roy Bingham, CEO of BDSA predicts it will be the second largest contributor to growth in cannabis sales through 2026, just behind Florida. “With nearly 15 million residents over the age of 21 and tens of millions more tourists visiting the state annually, New York is one of the most exciting cannabis opportunities in 2023,” says Bingham. “Despite some expected growing pains in the early years, the market is expected to be the second largest contributor to sales growth through 2026, following Florida.” More dispensaries in New York are expected to open their doors in the early weeks of 2023.
In another second-place finish, New York follows New Jersey as the second state in the tri-state area to legalize adult use sales. New Jersey launched its market in April of 2022.
The Office of Cannabis Management (OCM) in New York also announced their “Get Ready, Get Set” virtual workshop series, designed to help social equity applicants prepare for license applications and better understand the conditional licensing program.
Applications can be filed with the OCM for conditional licenses through June 30, 2022, with a $2,000 non-refundable application and licensing fee. The licenses are only for farms that have already grown hemp in New York State.
“New York is building the most inclusive cannabis industry in the country and including small farmers with an expertise is an essential component in accomplishing that goal,” says Chris Alexander, executive director at the OCM. “The growing season isn’t waiting for anyone and I’m grateful for the hard work of the CCB and my colleagues at OCM to ensure these licenses are being reviewed as quickly as possible so New York’s farmers can take full advantage of the growing season and cultivate the products that our equity entrepreneurs will be the first to sell when they open their dispensaries this year.”
Progress and history are being made in New York for adult use cannabis. Recently, Governor Hochul signed an amendment to New York State Cannabis Law which permits the Office of Cannabis Management (OCM) to award conditional licenses to certain adult use cultivators and processors, allowing hemp farmers in New York to grow cannabis in the 2022 growing season. And now, the application period to obtain a conditional license is officially open and available for qualified candidates. New York is moving full speed ahead in the hopes of creating one of the most inclusive adult-use cannabis industries in the nation.
What Does a Conditional License Mean?
With this legislation, New York State is creating a new conditional adult use cannabis cultivator license, allowing hemp farmers to grow cannabis in the 2022 growing season – helping to fast-track the state’s adult-use cannabis program. Under the law, conditionally licensed cannabis farmers must meet certain requirements, including safe, sustainable and environmentally friendly cultivation practices.
Highlights of the Bill & Legislation
Industrial Hemp First
To qualify for an adult use cannabis conditional cultivator license, only companies and individuals currently licensed with the state for cultivation or processing of industrial hemp can apply for the conditional licenses. Applicants must have been an authorized industrial hemp research partner for the Department of Agriculture and Markets, and industrial hemp cultivators must have grown and harvested the crop during at least two of the past four years.
Licensed cultivators will be authorized to grow indoors, outdoors, or a combination of both, subject to space and lighting limitations in the law. With a conditional adult use cannabis cultivation license, farmers can grow outdoors or in a greenhouse for up to two years from the issuance of the license. It also allows them to manufacture and distribute cannabis flower products without holding an adult use processor or distributor license, until June 1, 2023.
Expanding Abilities with License
Conditional licensees will have temporary authority to conduct additional activities not included in their license. Cultivators are allowed to both minimally process and distribute flower, and processors can distribute their products.
Requirements of Conditional License
As listed in the bill, conditional licensees must abide by all regulations, including those issued after receipt of the license. Applicants must also participate in a soon to-be-developed mentoring program for individuals interested in joining the industry through the social equity component of the Marijuana Regulation & Taxation Act, as well as actively participate in an environmental sustainability program. And lastly, applicants must begin operations within six months of receiving their license, and grant OCM employees’ access to the premises for inspections to ensure all rules are being followed.
Future Outlook on Cannabis Industry in New York
With the opening of the application portal for conditional licenses, this advances the Governor’s first-in-the-nation Seeding Opportunity Initiative, which positions individuals with prior cannabis-related criminal offenses to make the first adult use cannabis sales with products grown by New York hemp farmers. While this news is a positive step, there remain many unknowns about how the conditional licensing process will unfold. Applications can be filed with the OCM for Conditional Cultivator Licenses through June 30, 2022, with a $2,000 non-refundable application and licensing fee. For hopeful applicants, gathering a team of professional advisors to plan for the application process and operating an adult-use business is essential. Consulting with an accounting team or financial advisors from a tax standpoint, will be critical to establish systems and controls to maintain separate accounting records for your industrial hemp and adult use activities.
By Abraham Finberg, Simon Menkes, Rachel Wright 1 Comment
New York is embarking on a great social undertaking. In awarding its adult-use cannabis licenses, under the plan laid out by Gov. Kathy Hochul on March 10, the state is attempting to right generations of wrongs caused by the war on cannabis. The wrongs are numerous and include mass incarceration and complex generational trauma, prevention of access to housing and employment and the forming of an illicit market – all of which have had a disproportionate impact on African-American and Latinx communities.1
In addition to generating significant revenue for the state, New York hopes to make substantial investments in the communities and people most affected by cannabis criminalization and address the collateral consequences of that criminalization, reduce the illicit market for cannabis and illegal drugs, end the racially disparate impact of existing cannabis laws and strengthen New York’s agriculture sector.2
50% of All Licenses Will Be Social Equity
To accomplish these lofty aims, the state’s goal is to award 50% of adult-use cannabis licenses to social and economic equity applicants – and these licenses will be the first issued.3,4 The state’s entire focus is on this social equity licensing program; issues regarding non-social equity licenses are not being addressed at this time.
No one knows yet how many licenses will be issued. There are currently only 38 medical licenses in the state, although everyone expects the number of adult-use licenses to be significantly higher. (These medical licenses serve around 140,000 patients with sales in 2021 of around $300 million.)
The First 100 to 200 Licenses
Chris Alexander, executive director of the state’s Office of Cannabis Management, says he expected between 100 and 200 licenses to go first to people who were convicted of a cannabis-related offense before the drug was legalized, or those who have “a parent, guardian, child, spouse, or dependent” with a cannabis conviction. Alexander also said his office would evaluate applicants on their business plans and experience in retail.5
What’s the Timeline?
In a recent Q&A interview, Tremaine Wright, chair of New York’s newly-formed Cannabis Control Board (CCB), which will be overseeing the licensing process, stated: “We are setting up a system soup-to-nuts … [final] regulations for the state’s marijuana startups will be issued by the Cannabis Control Board this winter  or early spring  … recreational dispensaries should be licensed to operate by summer 2023.”6
Whom Is New York Looking For?
New York has defined social equity applicants as being:
Individuals from communities disproportionately impacted by the enforcement of cannabis prohibition
Minority and women-owned businesses
Extra priority will be given to an applicant who:
Is a member of a community disproportionately impacted by the enforcement of cannabis prohibition
Has an income lower than 80% of the median income of the county in which the applicant resides
Was either: (a) convicted of a cannabis-related offense prior to the effective date of the N.Y. Cannabis Law; (b) or had a parent, guardian, child, spouse or dependent; or was a dependent of an individual who was convicted of a cannabis-related offence prior to the effective date of the N.Y. Cannabis Law.8
Social Equity Licenses Come With Strings Attached
Social equity licenses cannot be transferred or sold within the first three years of issue. An exception will be made if the license is transferred or sold to another qualified social and economic equity applicant, but this must first be approved in writing by the CCB.9
Types of Licenses
While most people appear to be interested in a cannabis dispensary or lounge license, there will be nine types of licenses available: cultivator, nursery, processor, distributor, retail-dispensary, delivery, on-site consumption, adult-use cooperative and microbusiness.
“I don’t hear many people [talking about] processing and manufacturing,” says CCB chair Wright. She noted that processor licenses cover the production of edibles like candy and baked goods, which create a good opportunity to establish a brand.10
Wright also noted delivery companies would likely be capped at 25 employees in order to prevent behemoths like Uber from entering the market. “We’re trying to focus on not creating a space where monopolies can take over and kill all our small businesses,” Wright says.11
License Application Costs
The cost for an adult-use cannabis license in New York is still unknown, so the experts are looking at the cost for a medical cannabis license as the baseline, with a greater cost likely for adult-use. Each applicant was required to submit two fees with its medicinal application: a non-refundable application fee in the amount of $10,000 and a registration fee in the amount of $200,000. The $200,000 registration fee was refunded to the applicant only if the applicant was not issued a registration.12
The Marijuana Regulation and Taxation Act (MRTA) states, however, that fees may be waived for social equity applicants.13
Funding Assistance for License Applicants
Because of the requirement that each applicant be from one or more of the social equity classes, it is quite likely many of the applicants will lack the necessary funding to open a cannabis business currently.
On January 5, 2022, Gov. Hochul pledged to commit $200 million to support social equity applicants in building adult-use cannabis businesses. New York’s Office of Cannabis management expects that around $50 million of the fund will be raised from registered organizations licensed to operate medical cannabis businesses in NY and that $150 million will be raised from private investors.14
Wright commented, however, that those loans aren’t guaranteed to be available for the first round of licensing because the money to fund them will largely come from tax revenue generated by the industry. “[The Office of Cannabis Management] is not going to be able to right all the wrongs of the financial services industry,” she added.15
This lack of capital will offer opportunities to those who might want to invest with a social equity license applicant.
Requirements for Those Who Invest With Social Equity Applicants
Any person or entity investing with a social equity applicant must keep in mind the State’s following requirements:
Any entity applying for a New York cannabis license will need to be owned at least 51% by a social equity class applicant.
That ownership must be “real, substantial, and continuing.”
The social equity applicant must have and exercise the authority to control independently the day-to-day business decisions of the enterprise.
The individual or entity seeking the license must be authorized to do business in the state and be independently owned and operated.
The individual or entity must be a small business.16
Business Experience & Labor Union Representation Needed
The state is also looking for applicants with previous successful business experience and competency, and preference will be given to those who can demonstrate such experience.17
Additionally, the state would like to see that the applicant “has entered into [an] … agreement with a bona-fide labor organization that is actively engaged in representing or attempting to represent the applicant’s employees, and the maintenance of such [an] agreement shall be an ongoing material condition of licensure.18
New York’s Careful Approach
New York has moved slowly and thoughtfully in getting into the recreational cannabis market. Its leaders have studied the experiences of other states, noting complications and pitfalls that have arisen in such states as California, where small cannabis operators have been squeezed out and a large illicit market has grown to dwarf the tax-paying legal sector.
By opening up New York’s initial adult-use licenses to small, social equity applicants and requiring they have solid business experience, New York is hoping to give awardees a foothold in the cannabis market, enabling them to flourish and build strong roots before the onslaught of sophisticated, multi-state cannabis operators enter the fray.
Additional Keys to a Successful Application
Beyond fulfilling the ingredients of the social equity applicant “recipe” outlined above, the key to a successful application will come down to the perception it gives the Cannabis Control Board of the applicant’s commitment to the state’s mission. In other words, how committed is the applicant to using his or her license and business to attempt to right some of the social wrongs perpetrated by the state and federal war on cannabis?
In addition to having an owner-applicant from a social equity class, the MRTA gives other clues of steps applicants can take (and discuss in their application) which could put them ahead of the competition in obtaining licensure.
The MRTA suggests the applicant demonstrate that they will “contribute to communities and people disproportionately harmed by enforcement of cannabis laws … and report these contributions to the board.”19
The MRTA asks each applicant to submit documentation of the racial, ethnic and gender diversity of the applicant’s employees and owners. In addition, the MRTA suggests each applicant consult with the CCB’s Chief Equity Officer and Executive Director “to create a social responsibility framework agreement that fosters racial, ethnic, and gender diversity in their workplace.”20
New York is serious about its mission to use the legalization of cannabis to right some of the social wrongs of the past. An applicant’s dedication to this mission, as evidenced by a well-crafted application that emphasizes these values, may be the deciding factor on whether that applicant is rewarded with one of the state’s “Golden Tickets”. With a population of 20.2 million citizens, New York will be the second largest adult use cannabis marketplace behind California. Initial access to such a valuable and important market is worth the commitment of resources to creating not only a well-crafted application, but a well-crafted management team and business as well.
New York Consolidated Laws, N.Y. Cannabis Law § 2, added by New York Laws 2021, ch. 92, Sec. 2 (eff. 3/31/2021) [hereinafter, N.Y. Cannabis Law].
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