N.Y. Comp. Codes R. & Regs. tit. 9 § 120.3

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

Section 120.3 - License Specific Tiers and Options

(a) Nursery License:

(1) All nursery applicants shall obtain a Nursery Grower Certificate of Registration from the New York State Department of Agriculture and Markets Division of Plant Industry prior to licensure by the Board.

(2) An applicant for a nursery license shall indicate the type of nursery license it seeks to operate based on the size and type of nursery area as set forth below:

(i) Nursery Outdoor: for an outdoor nursery area with a maximum area of 100,000 square feet;

(ii) Nursery Mixed-Light: for a mixed light nursery area with a maximum area of 10,000 square feet; or

(iii) Nursery Indoor: for an indoor nursery area with a maximum area of 10,000 square feet.

(b) Cultivator License. An applicant for a cultivator license shall indicate the license tier in which it seeks to operate based on the size of the cultivation canopy and the type of cultivation as set forth below.

(1) A cultivator may only have one (1) cultivator license which will authorize the cultivator only one (1) type of cultivation and canopy tier as approved on the cultivator's application. A cultivator license may choose from the following four (4) different types of cultivation:

(i) indoor,

(ii) mixed light,

(iii) combination of outdoor with mixed light, or

(iv) outdoor.

(2) Indoor, Mixed-light, or Outdoor Cultivator Cultivation Tiers: A cultivator that is authorized to cultivate indoor, mixed-light, or outdoors is authorized to cultivate cannabis in one (1) of the following canopy tiers as authorized on the licensee's application:

(i) Tier 5. Greater than 50,000 square feet and up to but not exceeding 100,000 square feet.

(ii) Tier 4. Greater than 25,000 square feet and up to but not exceeding 50,000 square feet;

(iii) Tier 3. Greater than 12,500 square feet and up to but not exceeding 25,000 square feet;

(iv) Tier 2. Greater than 5,000 square feet and up to but not exceeding 12,500 square feet; or

(v) Tier 1. Up to, but not exceeding 5,000 square feet;

(3) Combination Cultivator Cultivation Tiers. A cultivator is authorized to cultivate outdoors with mixed light in one (1) of the following canopy tiers:

(i) Tier 5 Combination Cultivator. Greater than 50,000 square feet and up to but not exceeding 100,000 square feet of outdoor; and greater than 15,000 square feet and up to but not exceeding 30,000 square feet of mixed light.

(ii) Tier 4 Combination Cultivator. Greater than 25,000 square feet and up to but not exceeding 50,000 square feet of outdoor; and greater than 12,500 square feet and up to but not exceeding 15,000 square feet of mixed light;

(iii) Tier 3 Combination Cultivator. Greater than 12,500 square feet and up to but not exceeding 25,000 square feet of outdoor; and greater than 6,250 square feet and up to but not exceeding 12,500 square feet of mixed light;

(iv) Tier 2 Combination Cultivator. Greater than 5,000 square feet, and up to but not exceeding 12,500 square feet of outdoor; and greater than 2,500 square feet and up to but not exceeding 6,250 square feet of mixed light; or

(v) Tier 1 Combination Cultivator. Up to but not exceeding 5,000 square feet of outdoor; and up to but not exceeding 2,500 square feet of mixed light;

(4) A cultivator shall not expand or reduce its cultivation canopy beyond its licensed cultivation tier unless it has applied to the Office and received prior written approval from the Office. A cultivator license pursuant to subparagraph (iv) of paragraph (1) of subdivision (f) of this section shall only be eligible to expand into a Tier 3 Mixed Light license.

(5) At the time of license renewal, cultivators shall provide inventory and production records requested by the Office during the six (6) months prior to the application for renewal. As part of the license renewal process, the Office may recommend that the Board excerise its discretion to reduce the licensee's maximum cultivation canopy based on the same criteria pursuant to subdivison (g) of this section. Upon such recommendation and prior to the Board making a determination, the licensee shall be given notice and reasonable time to appeal the Office's recommendation before the Board.

(c) Microbusiness License. An applicant for a microbusiness license shall indicate on the application for licensure the activities in which the applicant intends to engage, including:

(1) The license tier, which shall be limited to one, in which it seeks to operate based on the size of the cultivation canopy and the type of cultivation as set forth below:

(i) Indoor canopy not to exceed 3,500 square feet;

(ii) Mixed light canopy not to exceed 5,000 square feet; or

(iii) Outdoor canopy not to exceed 10,000 square feet.

(iv) Combination canopy not to exceed outdoor canopy of 5,000 square feet and mixed-light canopy of 2,500 square feet.

(2) The processing activities in which the applicant intends to engage, including:

(i) extracting;

(ii) blending and infusing;

(iii) packaging and labeling; or

(iv) branding, including for the exclusive performance of white labeling agreements.

(3) In determining whether to approve a microbusiness licensee to transition to a cultivator license, the Board may consider the factors set forth subdivision (g) of this section.

(4) Microbusiness licensees shall be authorized to expand their cultivation canopy subject to the same operational requirements as set forth for cultivator licenses in section 123.4 of this Title, however upon expanding canopy size, a microbusiness shall only be eligible to transfer to a cultivation-only license tier, pursuant to subdivision (b) of this section.

(d) Processor License. An applicant for a processor license shall indicate on the application for licensure the processing activities in which the applicant intends to engage in, including:

(1) extracting;

(2) blending and infusing;

(3) packaging and labeling; or

(4) branding, including for the exclusive performance of white labeling agreements.

(e) Cooperative and Collective License. An applicant seeking to qualify for a license under section 70 of Cannabis Law shall:

(1) be formed as an entity under one (1) of the following:

(i) the New York State Cooperative Corporations Law;

(ii) subdivision (h) or (i) of section 123.13 of this Title; or

(iii) as otherwise approved by the Office.

(2) at minimum, meet the business authorizations and prohibitions set out in section 123.13 of this Title; and

(3) indicate on the application for licensure the number of members in the cooperative or collective, the facility type, the size of the cultivation canopy, and the type of cultivation as set forth below:

Cooperative or Collective Tiers

Cooperative or Collective Tiers	Indoor	Mixed-Light	Outdoor	Combo (Mixed-Light + Outdoor)
Tier 1	25,000	25,000	25,000	25,000
Tier 2	50,000	50,000	50,000	50,000
Tier 3	100,000	100,000	100,000	100,000
Tier 4	150,000	150,000	150,000

Sq ft (000's) per Number of Members in the Cooperative
Facility Type	Number of Members
5	6	7	8	9	10	11	12	13	14	15	>15
Indoor	25	37.5	50	62.5	75	87.5	100	100	100	100	100	100
Mixed-Light	25	37.5	50	62.5	75	87.5	100	112.5	125	125	125	125
Combination Mixed-Light & Outdoor	25	37.5	50	62.5	75	87.5	100	112.5	125	125	125	125
Outdoor	25	37.5	50	62.5	75	87.5	100	112.5	125	137.5	150	150

(4) The applicant shall indicate the types of processing activities that the applicant intends to engage in, pursuant to subdivision (d) of this section.

(5) Cooperative or Collective License Renewal. The cooperative or collective licensee shall provide records requested by the Office during the six (6) months prior to when the cooperative or collective licensee applies for renewal of their cooperative or collective license. The Office may recommend that the Board exercise its discretion to reduce the cooperative or collective licensee's maximum cultivation canopy based on cultivation canopy utilization rates and harvested product sale history over a minimum period of the previous twelve (12) months. Upon such recommendation and prior to the Board making a determination, the licensee shall be given notice and an opportunity to appeal the Office's recommendation before the Board.

(f) Conditional Cultivator License. The Office shall approve the transition of a conditional cultivator, determined to be in good standing by the Office.

(1) The conditional cultivator licensee must complete any required forms, submit any necessary information, and pay the corresponding fee, required by the Office, to one (1) of the following license types they chose to transition into:

(i) a Tier 1 through 4 outdoor cultivator licenses as provided in subdivision (b) of this section;

(ii) a Tier 1 or 2 mixed-light cultivator license as provided in subdivision (b) of this section;

(iii) a Tier 1 or 2 combination cultivator license as provided in subdivision (b) of this section;

(iv) an adult-use cultivator license authorized for up to 25,000 square feet of mixed light cultivation canopy with no more than 20 lights, provided however, neither the Office nor the Board shall authorize an increase in the number of lights for this license type without the issuance of regulations;

(v) a microbusiness license; or

(vi) an outdoor or mixed light cooperative or collective license, provided the cooperative or collective license includes at least five (5) adult-use conditional cultivators that are transitioning to adult-use cultivators and meet all other requirements to obtain a cooperative or collective license.

(2) The Office shall prioritize review of conditional cultivator applications for a cultivator, processor, or distributor license pursuant to this Title.

(g) The following factors may be considered in determining whether to approve a cultivator, cooperative or collective, ROND, or ROD to change its canopy tier, canopy type, or maximum cultivation canopy, including, but not limited to, the licensee's:

(1) cultivation canopy utilization rates and harvested product sale history over a minimum period of the previous twelve (12) months;

(2) whether the licensee's plants or inventory suffered a catastrophic event during the licensing period;

(3) cannabis transfers and sales history;

(4) existing inventory and a licensee's inventory history;

(5) adherence to any plan required pursuant to this Title, including, but not limited to, the licensee's operating plan, energy and environmental plan, and community impact plan;

(6) the criteria set forth in subdivision (b) of section 120.7 of this Part; and

(7) any other factors determined by the Board.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 120.3

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