N.Y. Comp. Codes R. & Regs. tit. 9 § 119.4

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

Section 119.4 - Distance Requirements and Measurement of Distance Requirements

(a) No retail dispensary license or microbusiness license shall be granted for any premises which shall be:

(1) within a 1,000-foot radius of a registered organization, ROD, or any other premises for which a retail dispensary license or microbusiness license has been issued, in a municipality having a population of 20,000 or more, unless the Board has determined that issuing the license would promote public convenience and advantage; except that distance requirements between a retail dispensary or microbusiness and registered organizations shall cease to be a requirement past December 2023, or

(2) within a 2,000-foot radius of a registered organization, ROD, or any other premises for which a retail dispensary license or microbusiness license has been issued, in a municipality having a population of 20,000 or less, unless the Board has determined that issuing the license would promote public convenience and advantage; except that distance requirements between a retail dispensary or microbusiness and registered organizations shall cease to be a requirement past December 2023.

(b) The Board may determine that granting a license would promote public convenience and advantage as described in paragraphs (1) and (2) of subdivision (a) of this section by considering the following factors, which include:

(1) the number, classes, and character of other licenses in proximity to the premises and in the particular municipality or subdivision thereof;

(2) evidence that all necessary licenses and permits have been obtained from the state and all other governing bodies;

(3) whether there is a demonstrated need for such license;

(4) effect of the grant of the license on pedestrian or vehicular traffic, and parking, in proximity to the premises;

(5) the existing noise level at the premises and any increase in noise level that would be generated by the proposed premises;

(6) the history of cannabis violations and reported criminal activity at the proposed premises; and

(7) any other factors specified by law or regulation that are relevant to determine that granting a license would promote public convenience and advantage of the community.

(c) No registered organization or ROD license shall be granted for any premises which shall be:

(1) within a 1,000-foot radius of a retail dispensary, microbusiness, or ROD license issued in a municipality having a population of 20,000 or more, unless the Board has determined that issuing a registration or license would serve a medical necessity; provided however, if the license is issued to a ROD for medical necessity, that only medical dispensing sites of the ROD, without a retail dispensary co-location, may be placed in that area; or

(2) within a 2,000-foot radius of a retail dispensary, microbusiness, or ROD license issued in a municipality having a population of 20,000 or less, unless the Board has determined that issuing a registration or license would serve a medical necessity; provided however, if the license is issued to a ROD for medical necessity, that only medical dispensing sites of the ROD, without a retail dispensary co-location, may be placed in that area.

(d) The Board may determine that issuing a registration or license would serve a medical necessity as described in paragraphs (1) and (2) of subdivision (c) of this section by considering the following factors, which shall include:

(1) the number, classes, and character of other registered organizations, RONDs and RODs in proximity to the premises and in the particular municipality or subdivision thereof;

(2) evidence that all necessary licenses and permits have been obtained from the state and all other governing bodies;

(3) whether there is a demonstrated certified patient need for such license;

(4) existing health disparities in the area;

(5) effect of the grant of the license on pedestrian or vehicular traffic, and parking, in proximity to the premises;

(6) the existing noise level at the premises and any increase in noise level that would be generated by the proposed premises;

(7) the history of cannabis violations and reported criminal activity at the proposed premises; and

(8) any other factors specified by law or regulation that are relevant to determine that granting a license would address medical necessity of the community.

(e) No on-site consumption license shall be granted for any premises which shall be within five hundred (500) feet of three (3) or more existing on-site consumption premises licensed and operating pursuant to this Title, unless the Board has determined that issuing the license would promote public convenience and advantage.

(f) Distance In-between Cannabis Sites: The measurements in subdivision (a) of section 119.1 of this Part and subdivisions (a), (c) and (e) of this section, are to be taken in a straight line from the center of the nearest entrance of the premises licensed and operating as a retail dispensary, on-site consumption, microbusiness, or ROD to:

(1) the center of the nearest entrance of the building occupied exclusively as a house of worship; and

(2) the center of the nearest entrance of the nearest building occupied exclusively as a school, on the school grounds; and

(3) the center of the nearest entrance of the building occupied exclusively as an adult-use on-site consumption premises; and

(4) the center of the nearest entrance of the nearest building of such public youth facility; or

(5) if no entrance exists, the nearest structure of such public youth facility; or

(6) if no structure exists, the nearest point of the grounds of the public youth facility's legally defined property boundary as registered in a county clerk's office; or

(7) if no clear delineation of grounds exists, the nearest point of equipment, the primary purpose of which is reasonably expected to be used by children seventeen (17) years of age or younger.

(g) The measurement in paragraph (4) of subdivision (f) of this section is only applicable to the state of the public youth facility at the time the applicant has submitted notification to the municipality or New York City community board.

(h) For purposes of this section, the 'entrance' shall mean a main door of a house of worship, a building on the school grounds, or public youth facility, if applicable, or of premises licensed and operating pursuant to this Title, regularly used to give ingress to the general public attending the house of worship, a building on the school grounds, public youth facility, the premises licensed and operating pursuant to this Title, or of the premises sought to be licensed, except that where a house of worship, a building on the school grounds, or public youth facility, premises licensed pursuant to this Title, or the premises sought to be licensed is set back from a public thoroughfare, the walkway or stairs leading to any such door shall be deemed an entrance; and the measurement shall be taken to the center of the walkway or stairs at the point where it meets the building line, structure if applicable for public youth facility, or public thoroughfare. Such definition shall not include cellars, back and side doors, delivery entrances, or emergency exits.

(i) For such premises licensed or sought to be licensed as an adult-use retail dispensary, on- site consumption, microbusiness, or RODs that are located in a multi-story building, the entrance shall mean any building entrance at the road level to be used for measurement purposes.

(j) If the house of worship, nearest building on the school grounds, public youth facility, premises licensed and operating pursuant to this Title, or the premises sought to be licensed, is situated on a corner lot, such structure is considered to be on both roads of the intersection, whether or not there is an entrance to the structure on both roads.

(k) A door which has no exterior hardware, or which is used solely as an emergency or fire exit, or for maintenance purposes, or which leads directly to a part of a structure not regularly used by the general public or patrons, is not deemed an 'entrance.'

(l) Within the context of this section, a building occupied as a house of worship does not cease to be 'exclusively' occupied as a house of worship by incidental uses that are not of a nature to detract from the predominant character of the building as a house of worship, such uses include, but are not limited to:

(1) the conduct of legally authorized games of bingo or other games of chance held as a means of raising funds for the not-for-profit religious organization which conducts services at the house of worship or for other not-for-profit organizations or groups;

(2) use of the structure for fund-raising performances by or benefitting the not-for-profit religious organization which conducts services at the house of worship or other not-for-profit organizations or groups;

(3) the use of the building by other religious organizations or groups for religious services or other purposes;

(4) the conduct of social activities by or for the benefit of the congregants;

(5) the use of the building for meetings held by organizations or groups providing bereavement counseling to persons having suffered the loss of a loved one, or providing advice or support for conditions or diseases, including, but not limited to, alcoholism, substance use disorder, cancer, cerebral palsy, Parkinson's disease, or Alzheimer's disease; the use of the structure for blood drives, health screenings, health information meetings, yoga classes, exercise classes or other activities intended to promote the health of the congregants or other persons;

(6) use of the structure by non-congregant members of the community for private social functions; and

(7) use of the structure occupied as a house of worship does not cease to be "exclusively" occupied as a house of worship where the not-for-profit religious organization occupying the house of worship accepts the payment of funds to defray costs related to another party's use of the structure.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 119.4

Adopted New York State Register September 27, 2023/Volume XLV, Issue 39, eff. 9/27/2023