New York Approves Draft Rules Regarding Local Time, Place, And Manner Restrictions

• Published date: 11 January 2023
• Subject Matter: Cannabis & Hemp
• Law Firm: Duane Morris LLP
• Author: Nicholas DiMarco

On November 21, 2022, the New York State Cannabis Control Board (the "Board") approved draft regulations under the Marihuana Regulation and Taxation Act ("MRTA") that address, among other subjects, the scope of "municipal rulemaking," or the authority retained by cities, counties, towns, and villages to enact "time, place, and manner" restrictions on the operation of adult-use retail dispensaries and on-site consumption sites within their jurisdiction.

Short of opting out from the marijuana retail market altogether, the MRTA permits municipalities to exercise control over the market by passing "local laws and regulations governing the time, place and manner of the operation of licensed adult-use cannabis retail dispensaries and/or on-site consumption site," so long as the law does not make the operation of such facilities "unreasonably impracticable" as determined by the Board. But while "time, place, and manner" restrictions have a long history in First Amendment jurisprudence, see City of Renton v. Playtime Theatres, 475 U.S. 41, 46 (1986), what do they mean in the context of regulating the marijuana retail market?

New York's Office of Cannabis Management ("OCM") began to answer the question on July 20, 2022, when it issued a directive to municipalities concerning local laws relating to the cannabis industry and sought additional input from municipalities through a survey. A few months later, the Board approved draft rules regarding municipal rulemaking, summarized below.

Preempted Regulations. The draft regulations begin by reaffirming that the MRTA preempts any local law pertaining to the operation or registration, licensure, or permitting of a registered organization, adult-use cannabis license or cannabinoid hemp license. The draft regulations further clarify that municipalities cannot impose fees on adult-use retail dispensaries or on-site consumption sites operating within their jurisdiction.

Traditional Zoning Regulations. The draft regulations carve out from the MRTA's preemption provision local laws regulating the retail marijuana business in historical districts, as well those relating to parking, traffic control, odor, and noise. Of course, all such zoning regulations must not make the operation of retail marijuana businesses unreasonably impracticable.

Hours of operation. Municipalities are permitted to regulate the hours of operation for retail dispensaries and on-site consumption sites, so long as the municipality does not restrict...