Recently the State Office of Cannabis Management (“OCM”) notified 152 cannabis dispensaries and applicants that the location of their businesses were too close to a school or house of worship to qualify for a license. New York Cannabis Law §72(6) provides, “No cannabis retail licensee shall locate a storefront within five hundred feet of a school grounds as such term is defined in the Education Law or within two hundred feet of a house of worship.” Education Law §409(2) defines “school” to include, “. . .any building, structure and surrounding outdoor grounds, including entrances or exits contained within a public or private pre-school, nursery school, elementary or secondary school’s legally defined property boundaries as registered in a county clerk’s office.”

The OCM informed the affected licensees and applicants that Reading these sections of law together, a cannabis retail dispensary cannot be within 500 feet of a school’s property line.  The OCM assesses the distance from the main entrance of a dispensary location to the nearest property line boundary of a school’s ground. The measurement is done in a straight-line.  The OCM, Governor Hochul and Empire State Development are working together to address this issue, by seeking legislative changes, extending provisional licenses, and allowing impacted applicants that do not hold a final license to seek coverage up to $250,000 of expenses related to an unlicensed location.  

The provisions of New York’s Alcoholic Beverage Control Law that forbid the issuance of certain liquor licenses within two hundred feet of a school of place of worship are significantly different from the Cannabis Law.  By way of example, ABCL §64 7 provides, “No retail license for on-premises consumption shall be granted for any premises which shall be … on the same street or avenue and within two hundred feet of a building occupied exclusively as a school, church, synagogue or other place of worship…. the measurements … are to be taken in straight lines from the center of the nearest entrance of the premises sought to be licensed to the center of the nearest entrance of such school, church, synagogue or other place of worship … “

As applied to the statute, the word “entrance” means a door regularly used to give ingress to students of the school, to the general public attending the place of worship, and to patrons or guests of the premises to be licensed.  Side and rear doors, used solely as emergency exits, are not entrances under the statute.  

In cases involving setbacks, the courts clarified that the measurement point for the school or place of worship begins at the center of the walkway or stairs where it meets the building line or public thoroughfare but goes directly to the center of the nearest entrance of the proposed licensed premises, rather than to the walkway leading to that entrance. Unlike the Cannabis Law, only those buildings occupied exclusively as public grammar and high schools, and semi-public and private schools conducted for the same purpose, are considered schools within the meaning of the act.

Key points to consider in determining if a premises will qualify for a license include:

Is the building with a school or place of worship within 200 feet of the entrance of the premise; 

If so, is that school or place of worship on the same block or avenue as the proposed premise?; Note that if the proposed premises occupy a corner, the premises are deemed to be on both of the corner streets. 

Is the   building occupied exclusively as a school or place of worship?   Note that the statute provides that a building does not cease to be “exclusively” occupied as a place of worship by incidental uses that are not of a nature to detract from the predominant character of the building as a place of worship.  

A wise person will make certain the premises qualify for the license before signing a lease.

Keven Danow is an attorney representing members of all three tiers of the Beverage Alcohol Industry and member of The Danow Group, 605 Third Avenue, New York, NY 10158.  (212 3703744). Website: thedanowgroup.com; email:kd@thedanowgroup.com