N.Y. Comp. Codes R. & Regs. tit. 9 § 116.2

Current through Register Vol. 46, No. 36, September 4, 2024

Section 116.2 - Application for Conditional Adult-Use Retail Dispensary License

(a) Information Required to be Disclosed on Application. The application for a conditional adult-use retail dispensary license shall include the following:

(1) the legal name of the applicant;

(2) the name under which the conditional adult-use retail dispensary will operate or make sales if different than the legal name of the applicant, including, but not limited to, the assumed name, where applicable;

(3) the name, address, federal employment identification number, and date of birth, where applicable, of the applicant and each true party of interest of applicant;

(4) a copy of a valid photo identification containing the individual's date of birth issued by a local, state, or federal government for the applicant and each true party of interest of applicant, each of which shall be at least 21 years of age;

(5) a personal history disclosure for applicant and each true party of interest of applicant;

(6) submission of fingerprints for applicant and each true party of interest set forth in sections 116.1(w)(i) - (iii), on a form and in such manner as specified by the Office for purpose of obtaining a criminal history report from division of criminal justice services;

(7) the ownership structure of the applicant;

(8) the percentage of ownership interest held by each true party of interest in the applicant, and a description of any other interest held in the applicant;

(9) a list of all parent companies, subsidiaries, affiliates, predecessors, and successors of the applicant, including, but not limited to, all individuals of each entity at each level of ownership for the applicant that has a multilevel ownership structure;

(10) the name of every financial institution at which the applicant and each true party of interest of applicant that has or has had a personal and business account that is or was used to financially support the business in the past 3 years;

(11) a current organizational chart of the applicant that includes position descriptions and the names and resumes of persons holding each position identified on the organizational chart, to the extent those positions have been filled; to the extent not revealed by the resume, include additional information with each resume setting out the employee's particular skills, education, experience or significant accomplishments that are relevant to owning or operating a conditional adult-use retail dispensary. The organization chart should identify all officers with the authority to control and all business entities that through direct or indirect means, will manage, own or control the interests and assets of the license holder. If the business entities have boards, include all board members on this chart. If the business entity has a parent company, include the name of each parent company's principal officer(s) and the percentage ownership interest;

(12) organizational documents such as the certificates of incorporation, certificates of limited partnerships, articles of organizations, charter, by-laws, partnership agreement, agreements between any two or more persons of the applicant that relate in any manner to the assets, property or profit of the applicant, or any other comparable documents that set forth the legal structure of the applicant or relate to the organization, management or control of the applicant;

(13) if an applicant is not an individual, a description, beginning with the formation of the applicant, of any and all ownership changes between the formation of the applicant and the date the application is submitted, including, but not limited to, events such as asset sales and purchases, stock sales and purchases, mergers, business combinations, or consolidations involving the applicant, including all former names of the applicant;

(14) a copy of all compensation agreements between or among applicant and each true party of interest, or group of true parties of interest, whether direct or indirect, and to the extent such agreement is oral, a written description of the terms of such agreement with true parties of interest of the applicant;

(15) any proposed or executed contract, term sheet, agreement, or side letter between the applicant, true parties of interest of the applicant, or financier, and another party that relates to the ownership and control structure, assets, liabilities, real or intellectual property, revenue, funding or capitalization, royalties, or profit, or future profit, of the applicant or proposed licensee or comparable documents;

(16) the nature, type, terms, covenants and priorities of all outstanding bonds, loans, mortgages, trust deeds, pledges, lines of credit, notes, debentures or other forms of indebtedness issued or executed, or to be issued or executed, in connection with opening or operating the proposed conditional adult-use retail dispensary;

(17) audited financial statements of the applicant for the fiscal year ending one year prior to the date the application is submitted, which shall include, but is not limited to, an income statement, balance sheet, statement of retained earnings or owners' equity, statement of cash flows, and all notes to these statements and related financial schedules, prepared in accordance with generally accepted accounting principles, along with the accompanying independent auditor's report. If the applicant was formed within the year preceding the application for license, provide certified financial statements for the period of time the applicant has been in existence and any pro forma financials used for business planning purposes;

(18) all sources of funding used to acquire, start, or develop the business for which the license is sought, and documentation concerning the source of the funds and copies of closing documents in connection with such acquisition or development;

(19) details of any state or federal, administrative or judicial proceeding in which the applicant or any of the true parties of interest of applicant:

(i) pled guilty, pled no contest, conditionally or otherwise, or were, convicted, fined, or the equivalent, or had a registration or license cancelled, suspended or revoked; or

(ii) managed or served on the board of a business or nonprofit organization that pled guilty or was convicted, fined, or had a registration or license cancelled, suspended or revoked.

(20) information relating to a business continuity plan;

(21) a certificate of status or good standing from the governing state agency of the state of formation, certificate of assumed name, a certificate of authority to do business in New York from the New York Department of State if the applicant is a foreign business, where applicable;

(22) if applicant or any true parties of interest of applicant are currently or have previously been licensed or authorized in another state or jurisdiction to cultivate, process, manufacture, distribute or sell cannabis products in any form, the following:

(i) a copy of each license or authorizing document verifying licensure in that state or jurisdiction;

(ii) a statement granting permission to contact the regulatory agency that granted the license to confirm the information contained in the application is true and accurate; and

(iii) if the license, authorization, or application was ever cancelled, denied, suspended, revoked or otherwise sanctioned, a copy of documentation so indicating, or a statement that the applicant or true party of interest of applicant was so licensed and was never sanctioned;

(23) any management agreement, contract, arrangement, or other type of formal understanding between a contractor and an applicant where the contractor will or does provide administrative, operational, financial, advisory, and/or management services to an applicant in exchange for remuneration and a list of all the parties that are contained in those agreements;

(24) a list of each vendor with which the applicant has entered into a contract, term sheet, agreement, or side letter;

(25) whether the applicant or any true party of interest of applicant:

(i) has ever filed a voluntary petition or had an involuntary petition filed against it for relief under the United States Bankruptcy Code;

(ii) is out of compliance with general obligations law section 3-503(2);

(iii) has been disciplined or sanctioned by a state or federal agency; or

(iv) has had any state or federal tax liens against any of their property;

(26) a list of each financier of applicant, and copy of all financier agreements, if any;

(27) a copy of each agreement between applicant and any person with a financial interest in the applicant;

(28) a list of any charitable contributions by the applicant in the last five years;

(29) a list of stocks, mutual funds or bonds held by the applicant;

(30) documentation acceptable to the Office that the applicant will be able to obtain insurance sufficient to indemnify and hold harmless the state and its officers and employees;

(31) information regarding any relationship, agreement, or arrangement that may exist between (i) the applicant or true parties of interest and (ii) any official or any other individuals with control over the approval of an application or license, including, but not limited to, employees of the Office and members of the Board;

(32) information evidencing compliance with the provisions set forth in section 116.4(a)(1) of this Part as required by the Office;

(33) information evidencing applicant's eligibility as set forth in sections 116.4(a)(2) or 116.4(a)(3) of this Part as required by the Office;

(34) designation of each portion of the application that applicant considers to be exempt from disclosure under the New York State Freedom of Information Law; and

(35) any additional information requested by the Office.

(b) General.

(1) Notification of the availability of applications, instructions for completion and submission of applications, and application forms will be posted on the Office's website at www.cannabis.ny.gov.

(2) The license application shall be submitted via forms provided by the Office. The forms will include instructions for their completion and submission. The application will reflect the information required of applicants by the Cannabis Law and this Part and will include requests for information in support of the application needed by the Office to ensure that the application submitted is complete. If all material, documentation, and information required by the application form is not submitted, the applicant shall receive a deficiency notice from the Office. The applicant shall then have 30 calendar days from the date the deficiency notice is sent to resubmit the application in its entirety. Applications that are still incomplete after this opportunity to cure will not be considered. Upon receipt of an application deemed to be complete, the Office will engage in no further communication with the applicant until after the selection process is completed.

(3) Only applications completed in accordance with this Part as determined by the Office and submitted in a timely manner shall be considered.

(4) Prior to the issuance of a license, an applicant may apply to amend its previously submitted true parties of interest; provided, however, that such amendment shall not violate the requirements as set forth in this Part. Failure to apply to amend may be deemed an inconsistent material statement in the application as to its true parties of interest and such failure may constitute grounds for denial of the application by the Board.

(5) There shall be a non-refundable application and license fee of $2,000 for applications submitted for a license under this Part.

(c) Continuing Duty to Disclose and Approval.

(1) The applicant shall have a continuing duty to disclose material changes in the information provided to the Office required in this Part.

(2) If an applicant is issued a license, this duty of ongoing disclosure shall continue throughout the licensed period and the following shall require prior written approval of the Office, including any changes thereto:

(i) ownership and control;

(ii) any financier arrangements;

(iii) any true party of interest;

(iv) location;

(v) management service agreements;

(vi) intellectual property agreements;

(vii) guaranty agreement; and

(viii) any other activity or agreement as determined by the Office.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 116.2

Adopted New York State Register August 3, 2022/Volume XLIV, Issue 31, eff. 8/3/2022