Preview
FILED: ALBANY COUNTY CLERK 08/14/2023 05:52 PM INDEX NO. 907282-23
NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 08/14/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ALBANY
CARMINE FIORE, WILLIAM NORGARD, STEVE
MEJIA, and DOMINIC SPACCIO,
Plaintiffs,
- against -
NEW YORK STATE CANNABIS CONTROL BOARD,
NEW YORK STATE OFFICE OF CANNABIS Index No.: 907282-23
MANAGEMENT, TREMAINE WRIGHT, in her official
capacity as the Chairwoman of the New York State Cannabis
Control Board, and CHRIS ALEXANDER, in his official
capacity as Executive Director of the New York State Office
of Cannabis Management,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF ORDER TO SHOW CAUSE
Dated: ULSTER, New York MRTA Law, P.C.
August 14, 2023 By: _/s/ Wei Hu________________
WEI HU, of Counsel
Attorney for Provisional Licensees
MRTA Law, P.C.
788 Upper Mountain Road
Shawangunk, NY 12566
Telephone: (646) 263-7890
Email:
C:
CLARK SMITH VILLAZOR LLP
Christopher J. Clark (via NYSCEF)
Patrick J. Smith (via NYSCEF)
Brian T. Burns (via NYSCEF)
Selbie L. Jason (via NYSCEF)
NEW YORK STATE ATTORNEY GENERAL’S OFFICE
Shannan Krasnokutski (via NYSCEF)
CAURD INTERVENORS
Jorge L. Vasquez (via NYSCEF)
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PRELIMINARY STATEMENT
The New York State Office of Cannabis Management (OCM) Conditional Adult-Use
Retail Dispensary (CAURD) provisional licensees, as listed in the accompanying Attorney
Affirmation in Support of Order to Show Cause (“Provisional Licensees”), submit this
Memorandum of Law in support of Order to Show, which seeks to intervene for the limited
appearance in these proceedings to file court papers and provide testimony, and discontinue the
Temporary Restraining Order (TRO) enjoining Defendants from further processing any additional
CAURD licenses and/or conferring operational approval upon any additional provisional or
existing CAURD licensees. Intervention here is proper and necessary, as the proposed Intervenors
face irreparable harm from the TRO that suspends their ability to open their dispensaries to recoup
their life savings already invested.
ARGUMENT
Intervention is Proper and Necessary Under CPLR §§ 1012 and 1013
Intervention by Provisional Licensees here is proper and necessary to adequately protect
their licensure rights and prevent irreparable harm. In In re People v Schofield, Opinion and Order
(3d Dept; August 26, 2021), the Third Department stated: [f]irst, with respect to the motion to
intervene, "a court 'may allow other interested persons' to intervene in a special proceeding" and
"[p]ermission to intervene in [a CPLR] article 78 proceeding may be granted at any point of the
proceeding, including after judgment for the purposes of taking an appeal" (Matter of Greater NY
Health Care Facilities Assn. v DeBuono, 91 NY2d 716, 720 [1998], quoting CPLR 7802 [d]; see
Matter of Romeo v New York State Dept. of Educ., 39 AD3d 916, 917 [2007].) The "interested
persons" standard of CPLR 7802 (d) is "more liberal than that provided in CPLR 1013" for
intervention in other civil actions (Matter of Tennessee Gas Pipeline Co. v Town of Chatham Bd.
2
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of Assessors, 239 AD2d 831, 832 [1997]; see Matter of Greater N.Y. Health Care Facilities Assn.
v DeBuono, 91 NY2d at 720; Matter of Ball v Town of Ballston, 173 AD3d 1304, 1306 [2019], lv
denied 34 NY3d 903 [2019]). This Court is "vested with all the power of Supreme Court to grant
[a] motion for intervention" (Auerbach v Bennett, 47 NY2d 619, 628 [1979]; see Matter of Clinton
v Summers, 144 AD2d 145, 147 n [1988]), and "this permissive determination lies within the
[C]ourt's discretion" (Matter of Pace-O-Matic, Inc. v NYS Liq. Auth., 72 AD3d 1144, 1145 [2010];
see Matter of Clinton v Summers, 144 AD2d at 147 n). "[W]hen deciding whether to grant such a
request, a court may properly balance the benefit to be gained by intervention, and the extent to
which the proposed intervenor may be harmed if it is refused, against other factors, such as the
degree to which the proposed intervention will delay and unduly complicate the litigation" (Matter
of Pier v Board of Assessment Review of Town of Niskayuna, 209 AD2d 788, 789 [1994]), and
whether any party would be prejudiced (see Jones v Town of Carroll, 158 AD3d 1325, 1328
[2018], lv dismissed 31 NY3d 1064 [2018]).
Provisional Licensees’ unique situation, having secured real estate and invested personal
savings in reliance on an already-issued license, and interest in this litigation beckons intervenor
entry and removal of the TRO. New York courts have recognized that intervention should be
liberally allowed under the CPLR (see Teleprompter Manhattan CATV Corp. v State Bd. of
Equalization & Assessment, 34 AD2d 1033 [3d Dept 1970]), especially “where substantial rights
are involved.” (Town of Huntington v NYS Drug Abuse Control Commn., 84 Misc 2d 138, 141
[Sup Ct, Suffolk Cty 1975], quoting Application of Eberlin, 18 AD2d 1068 [1st Dept 1963].)
Intervention should be permitted whether “sought as a matter of right under CPLR 1012(a), or as
a matter of discretion under CPLR 1013,” if the proposed intervenor has a “real and substantial
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interest in the outcome of the proceedings.” (Wells Fargo Bank, Nat’l Ass’n v McLean, 70 AD3d
676, 677 [2d Dept 2010] (citation omitted).)
Regardless of whether the CPLR 1012 or 1013 standard is applied, the Provisional
Licensees satisfy it.
Plaintiffs Cannot Satisfy any of the Four (4) Prongs to Maintain TRO Relief
(a) Plaintiffs lack likelihood of success on the merits
Respectfully, Provisional Licensees defer to Defendants’ counsel in addressing the first
element for preliminary injunctive relief, likelihood of success of the merits of Plaintiffs’ action,
as Defendants maintain Chevron agency deference in interpretating the MRTA, NY Cannabis
Law, and other laws conferring agency substantial deference over both delegation and rulemaking
statutes. Defendants can better articulate their agency powers and how the Legislature granted
these administrative bodies great deference in interpreting NY Cannabis Law for its administration
of the Adult-Use industry. Moreover, how their statutory interpretation over their own
administrative powers and duties enabled them to create a valid and separate regulatory licensure
process independent of NY Cannabis Law 10(19).
In Matter of Cannalonga v Doar, 2008 NY Slip. Op. 04620 (1st Dept May 22, 2008), the
First Department held that the NYS Office of Temporary and Disability Assistance’s regulatory
amendment “permissibly goes beyond the text of the legislative product to fill in an interstice in
[NY Social Services Law] in a manner not inconsistent with its language or underlying purpose
[of the legislation].” (See Matter of General Elec. Capital Corp. v NYS Div. of Tax Appeals, Tax
Appeals Trib. 2 NY3d 249, 254 [2004].). Under the canons of New York administrative law,
courts "may not substitute its judgment for that of the agency responsible for making the
4
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determination, but must ascertain only whether there is a rational basis for the decision or whether
it is arbitrary and capricious" (Flacke v Onondaga Landfill Sys., 69 NY2d 355, 363 [1987]; accord
Matter of Beer v NYS Dept. of Envtl. Conservation, 189 AD3d 1916, 1918 [2020]; see CPLR
7803[3]).
Respectfully, Defendants had not only the necessary authority from the Legislature’s
delegation of rulemaking powers to create the CAURD program, but also Chevron deference in
interpreting whether its NY Cannabis Law Article 2 powers authorized them to create the CAURD
program. Under NY Cannabis Law 10(1),(2), the Legislature expressly delegated Defendants wide
administrative powers and discretion to create new “conditional” powers to fully implement the
MRTA, which states:
The cannabis control board or "board" shall have the following functions, powers
and duties as provided for in this chapter:
1. Discretion to issue or refuse to issue any registration, license or permit provided
for in this chapter, as follows: the chairperson, after receiving a recommendation
and relevant application information from the office and providing such
information to all board members, shall issue a preliminary determination on
whether the license, registration or permit shall be granted, denied, or held for
further action….
2. Sole discretion to limit, or not to limit, the number of registrations, licenses and
permits of each class to be issued within the state or any political subdivision
thereof, in a manner that prioritizes social and economic equity applicants with the
goal of fifty percent awarded to such applicants…. [NY Cannabis Law 10.]
Respectfully, Plaintiffs’ interpretation of Defendants’ rulemaking powers are wholly
irrelevant, unless Defendants’ rulemaking is adjudged “arbitrary and capricious” under CPLR
7803. Here, Defendants lawfully created the CAURD program with its delegated rulemaking
authority to effectuate the Legislature’s intent of having 50% of licenses awarded to social and
economic equity applicants under NY Social Services Law 87. [See NY Cannabis Law 10(2).].
There is no demonstration that the CAURD undermines the Legislature’s intent; on the contrary,
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the Legislature has ratified this “conditional” licensure program in both NY Finance Law 99-ii and
NY Public Authorities Law 1678.
Therefore, as Plaintiffs cannot evince that the CAURD program is either “arbitrary or
capricious” or lacks rational basis, it cannot invalidate Defendants’ rulemaking powers in its
construction and administration. Since Plaintiffs cannot meet this standard of review under this
Article 78 proceedings, then they surely cannot prevail on the likelihood of success on the merits.
(b) Plaintiffs fails to demonstrate Irreparable Harm, which essential for TRO relief
While Plaintiffs argue NY Cannabis Law 10(19) requires the application period start for
all applicants at the same time, Plaintiffs cannot establish they are entitled to receiving Adult-Use
Retail Dispensary licenses at the same time as the Provisional Licensees. Plaintiffs demonstrate
absolutely no priority in licensing, relative to Provisional Licensees, under the MRTA or any other
statute to confer expedited licensing status. Rather, “service-disabled Veterans” constitute only
one of several Social Justice and Economic Equity priority groups, which include women,
minorities under NY Cannabis Law 87(b), distressed farmers, individuals from communities
disproportionately disadvantaged by the War on Drugs, and individuals with prior marijuana
convictions. In fact, the proposed regulation 9 NYCRR § 121.1(k) creates an “extra priority”
group for such individuals.
While service-disabled Veterans constitute one of five social justice groups for the open
application period, no Legislative guarantee was ever enacted that they would be the first cohort
to receive Adult-Use Retail Dispensary licenses. Rather, the priority and timing of the awarding
of Adult-Use licenses have been delegated expressly to the Defendants, in order to establish a
market where at least 50% of all licensees are social justice.
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As Defendants have exclusive authority over the timing of and participation in the Adult-
Use market, Plaintiffs fail to proffer any colorable argument that they have been irreparably
harmed by the CAURD program. Under New York law, irreparable harm cannot exist when
subsequent remedial measures, such as financial compensation or license issuance, can make the
Plaintiffs whole. Here, while there is no irreparable harm to Plaintiffs without any injunctive relief,
the attached Affidavits from the Provisional Licensees allege various forms irreparable harm. (See
Provisional Licensee Affidavits.)
(c) Equities favor Provisional Licensees and TRO adversely impacts Public Interest
Plaintiffs’ request for emergency TRO relief almost one (1) year after the start of the
CAURD application programs, to challenge and undermine that program, flouts the doctrine of
laches. Here, Affidavits from the Provisional Licensees highlight the irreparable harm they face
after having invested their personal life savings after receiving their provisional CAURD license.
(See Provisional Licensee Affs.). Provisional Licensees have invested time, energy and capital
into developing the Adult-Use industry here – having already sunk tens of thousands of dollars
from personal savings, loans, and family members and friends in order to operate a legal and
licensed Adult-Use dispensary. Razing the entire CAURD program will only jeopardize the
legitimacy of this State-regulated industry, further encourage illicit cannabis retailers to continue
proliferating, destroy scarce public funding from excise taxes, and foster distrust in our public
institutions to create social justice and economic equity programs to benefit the disadvantaged.
This CAURD program not only represents the public interest’s expression of remediating
historic injustice of the War on Drugs, but also to instill reparative justice into and beyond the
cannabis industry. This model social justice and economic equity program can be replicated into
7
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other industries to promote collective bargaining, workplace diversity, a bifurcated licensing
structure to enable small-business participation. As the CAURD program has already allowed
seven (7) other service-disabled Veterans to receive CAURD licenses (see McKeage Aff.),
Plaintiffs’ claim wholly lacks any merit.
Plaintiffs’ repeated claims of an unconstitutional legislative action does not render it so.
Plaintiffs fail to acknowledge the constitutionally-permitted delegation of rulemaking authority to
Defendants, and the proper standard of review under this Article 78 action. Unless this Court finds
that Defendants acted “arbitrarily or capriciously” in promulgating 9 NYCRR Part 116 (CAURD
Program) to effectuate the MRTA’s express legislative intent for reparative justice, then this Court
cannot interpose its own judgment over the constitutional validity of the CAURD program in this
Article 78 proceeding, and certainly not for purposes of maintaining preliminary injunctive relief.
CONCLUSION
For the foregoing reasons, this Court should grant Provisional Licensees’ Order to Show
Cause to intervene and discontinue the TRO enjoining Defendants from conferring operational
approval upon any more provisional or existing CAURD licensees, and award such other relief as
it deems just and proper.
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Preview
FILED: ALBANY COUNTY CLERK 08/14/2023 05:52 PM INDEX NO. 907282-23 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 08/14/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ALBANY CARMINE FIORE, WILLIAM NORGARD, STEVE MEJIA, and DOMINIC SPACCIO, Plaintiffs, - against - NEW YORK STATE CANNABIS CONTROL BOARD, NEW YORK STATE OFFICE OF CANNABIS Index No.: 907282-23 MANAGEMENT, TREMAINE WRIGHT, in her official capacity as the Chairwoman of the New York State Cannabis Control Board, and CHRIS ALEXANDER, in his official capacity as Executive Director of the New York State Office of Cannabis Management, Defendants. MEMORANDUM OF LAW IN SUPPORT OF ORDER TO SHOW CAUSE Dated: ULSTER, New York MRTA Law, P.C. August 14, 2023 By: _/s/ Wei Hu________________ WEI HU, of Counsel Attorney for Provisional Licensees MRTA Law, P.C. 788 Upper Mountain Road Shawangunk, NY 12566 Telephone: (646) 263-7890 Email: C: CLARK SMITH VILLAZOR LLP Christopher J. Clark (via NYSCEF) Patrick J. Smith (via NYSCEF) Brian T. Burns (via NYSCEF) Selbie L. Jason (via NYSCEF) NEW YORK STATE ATTORNEY GENERAL’S OFFICE Shannan Krasnokutski (via NYSCEF) CAURD INTERVENORS Jorge L. Vasquez (via NYSCEF) 1 of 8 FILED: ALBANY COUNTY CLERK 08/14/2023 05:52 PM INDEX NO. 907282-23 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 08/14/2023 PRELIMINARY STATEMENT The New York State Office of Cannabis Management (OCM) Conditional Adult-Use Retail Dispensary (CAURD) provisional licensees, as listed in the accompanying Attorney Affirmation in Support of Order to Show Cause (“Provisional Licensees”), submit this Memorandum of Law in support of Order to Show, which seeks to intervene for the limited appearance in these proceedings to file court papers and provide testimony, and discontinue the Temporary Restraining Order (TRO) enjoining Defendants from further processing any additional CAURD licenses and/or conferring operational approval upon any additional provisional or existing CAURD licensees. Intervention here is proper and necessary, as the proposed Intervenors face irreparable harm from the TRO that suspends their ability to open their dispensaries to recoup their life savings already invested. ARGUMENT Intervention is Proper and Necessary Under CPLR §§ 1012 and 1013 Intervention by Provisional Licensees here is proper and necessary to adequately protect their licensure rights and prevent irreparable harm. In In re People v Schofield, Opinion and Order (3d Dept; August 26, 2021), the Third Department stated: [f]irst, with respect to the motion to intervene, "a court 'may allow other interested persons' to intervene in a special proceeding" and "[p]ermission to intervene in [a CPLR] article 78 proceeding may be granted at any point of the proceeding, including after judgment for the purposes of taking an appeal" (Matter of Greater NY Health Care Facilities Assn. v DeBuono, 91 NY2d 716, 720 [1998], quoting CPLR 7802 [d]; see Matter of Romeo v New York State Dept. of Educ., 39 AD3d 916, 917 [2007].) The "interested persons" standard of CPLR 7802 (d) is "more liberal than that provided in CPLR 1013" for intervention in other civil actions (Matter of Tennessee Gas Pipeline Co. v Town of Chatham Bd. 2 2 of 8 FILED: ALBANY COUNTY CLERK 08/14/2023 05:52 PM INDEX NO. 907282-23 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 08/14/2023 of Assessors, 239 AD2d 831, 832 [1997]; see Matter of Greater N.Y. Health Care Facilities Assn. v DeBuono, 91 NY2d at 720; Matter of Ball v Town of Ballston, 173 AD3d 1304, 1306 [2019], lv denied 34 NY3d 903 [2019]). This Court is "vested with all the power of Supreme Court to grant [a] motion for intervention" (Auerbach v Bennett, 47 NY2d 619, 628 [1979]; see Matter of Clinton v Summers, 144 AD2d 145, 147 n [1988]), and "this permissive determination lies within the [C]ourt's discretion" (Matter of Pace-O-Matic, Inc. v NYS Liq. Auth., 72 AD3d 1144, 1145 [2010]; see Matter of Clinton v Summers, 144 AD2d at 147 n). "[W]hen deciding whether to grant such a request, a court may properly balance the benefit to be gained by intervention, and the extent to which the proposed intervenor may be harmed if it is refused, against other factors, such as the degree to which the proposed intervention will delay and unduly complicate the litigation" (Matter of Pier v Board of Assessment Review of Town of Niskayuna, 209 AD2d 788, 789 [1994]), and whether any party would be prejudiced (see Jones v Town of Carroll, 158 AD3d 1325, 1328 [2018], lv dismissed 31 NY3d 1064 [2018]). Provisional Licensees’ unique situation, having secured real estate and invested personal savings in reliance on an already-issued license, and interest in this litigation beckons intervenor entry and removal of the TRO. New York courts have recognized that intervention should be liberally allowed under the CPLR (see Teleprompter Manhattan CATV Corp. v State Bd. of Equalization & Assessment, 34 AD2d 1033 [3d Dept 1970]), especially “where substantial rights are involved.” (Town of Huntington v NYS Drug Abuse Control Commn., 84 Misc 2d 138, 141 [Sup Ct, Suffolk Cty 1975], quoting Application of Eberlin, 18 AD2d 1068 [1st Dept 1963].) Intervention should be permitted whether “sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013,” if the proposed intervenor has a “real and substantial 3 3 of 8 FILED: ALBANY COUNTY CLERK 08/14/2023 05:52 PM INDEX NO. 907282-23 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 08/14/2023 interest in the outcome of the proceedings.” (Wells Fargo Bank, Nat’l Ass’n v McLean, 70 AD3d 676, 677 [2d Dept 2010] (citation omitted).) Regardless of whether the CPLR 1012 or 1013 standard is applied, the Provisional Licensees satisfy it. Plaintiffs Cannot Satisfy any of the Four (4) Prongs to Maintain TRO Relief (a) Plaintiffs lack likelihood of success on the merits Respectfully, Provisional Licensees defer to Defendants’ counsel in addressing the first element for preliminary injunctive relief, likelihood of success of the merits of Plaintiffs’ action, as Defendants maintain Chevron agency deference in interpretating the MRTA, NY Cannabis Law, and other laws conferring agency substantial deference over both delegation and rulemaking statutes. Defendants can better articulate their agency powers and how the Legislature granted these administrative bodies great deference in interpreting NY Cannabis Law for its administration of the Adult-Use industry. Moreover, how their statutory interpretation over their own administrative powers and duties enabled them to create a valid and separate regulatory licensure process independent of NY Cannabis Law 10(19). In Matter of Cannalonga v Doar, 2008 NY Slip. Op. 04620 (1st Dept May 22, 2008), the First Department held that the NYS Office of Temporary and Disability Assistance’s regulatory amendment “permissibly goes beyond the text of the legislative product to fill in an interstice in [NY Social Services Law] in a manner not inconsistent with its language or underlying purpose [of the legislation].” (See Matter of General Elec. Capital Corp. v NYS Div. of Tax Appeals, Tax Appeals Trib. 2 NY3d 249, 254 [2004].). Under the canons of New York administrative law, courts "may not substitute its judgment for that of the agency responsible for making the 4 4 of 8 FILED: ALBANY COUNTY CLERK 08/14/2023 05:52 PM INDEX NO. 907282-23 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 08/14/2023 determination, but must ascertain only whether there is a rational basis for the decision or whether it is arbitrary and capricious" (Flacke v Onondaga Landfill Sys., 69 NY2d 355, 363 [1987]; accord Matter of Beer v NYS Dept. of Envtl. Conservation, 189 AD3d 1916, 1918 [2020]; see CPLR 7803[3]). Respectfully, Defendants had not only the necessary authority from the Legislature’s delegation of rulemaking powers to create the CAURD program, but also Chevron deference in interpreting whether its NY Cannabis Law Article 2 powers authorized them to create the CAURD program. Under NY Cannabis Law 10(1),(2), the Legislature expressly delegated Defendants wide administrative powers and discretion to create new “conditional” powers to fully implement the MRTA, which states: The cannabis control board or "board" shall have the following functions, powers and duties as provided for in this chapter: 1. Discretion to issue or refuse to issue any registration, license or permit provided for in this chapter, as follows: the chairperson, after receiving a recommendation and relevant application information from the office and providing such information to all board members, shall issue a preliminary determination on whether the license, registration or permit shall be granted, denied, or held for further action…. 2. Sole discretion to limit, or not to limit, the number of registrations, licenses and permits of each class to be issued within the state or any political subdivision thereof, in a manner that prioritizes social and economic equity applicants with the goal of fifty percent awarded to such applicants…. [NY Cannabis Law 10.] Respectfully, Plaintiffs’ interpretation of Defendants’ rulemaking powers are wholly irrelevant, unless Defendants’ rulemaking is adjudged “arbitrary and capricious” under CPLR 7803. Here, Defendants lawfully created the CAURD program with its delegated rulemaking authority to effectuate the Legislature’s intent of having 50% of licenses awarded to social and economic equity applicants under NY Social Services Law 87. [See NY Cannabis Law 10(2).]. There is no demonstration that the CAURD undermines the Legislature’s intent; on the contrary, 5 5 of 8 FILED: ALBANY COUNTY CLERK 08/14/2023 05:52 PM INDEX NO. 907282-23 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 08/14/2023 the Legislature has ratified this “conditional” licensure program in both NY Finance Law 99-ii and NY Public Authorities Law 1678. Therefore, as Plaintiffs cannot evince that the CAURD program is either “arbitrary or capricious” or lacks rational basis, it cannot invalidate Defendants’ rulemaking powers in its construction and administration. Since Plaintiffs cannot meet this standard of review under this Article 78 proceedings, then they surely cannot prevail on the likelihood of success on the merits. (b) Plaintiffs fails to demonstrate Irreparable Harm, which essential for TRO relief While Plaintiffs argue NY Cannabis Law 10(19) requires the application period start for all applicants at the same time, Plaintiffs cannot establish they are entitled to receiving Adult-Use Retail Dispensary licenses at the same time as the Provisional Licensees. Plaintiffs demonstrate absolutely no priority in licensing, relative to Provisional Licensees, under the MRTA or any other statute to confer expedited licensing status. Rather, “service-disabled Veterans” constitute only one of several Social Justice and Economic Equity priority groups, which include women, minorities under NY Cannabis Law 87(b), distressed farmers, individuals from communities disproportionately disadvantaged by the War on Drugs, and individuals with prior marijuana convictions. In fact, the proposed regulation 9 NYCRR § 121.1(k) creates an “extra priority” group for such individuals. While service-disabled Veterans constitute one of five social justice groups for the open application period, no Legislative guarantee was ever enacted that they would be the first cohort to receive Adult-Use Retail Dispensary licenses. Rather, the priority and timing of the awarding of Adult-Use licenses have been delegated expressly to the Defendants, in order to establish a market where at least 50% of all licensees are social justice. 6 6 of 8 FILED: ALBANY COUNTY CLERK 08/14/2023 05:52 PM INDEX NO. 907282-23 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 08/14/2023 As Defendants have exclusive authority over the timing of and participation in the Adult- Use market, Plaintiffs fail to proffer any colorable argument that they have been irreparably harmed by the CAURD program. Under New York law, irreparable harm cannot exist when subsequent remedial measures, such as financial compensation or license issuance, can make the Plaintiffs whole. Here, while there is no irreparable harm to Plaintiffs without any injunctive relief, the attached Affidavits from the Provisional Licensees allege various forms irreparable harm. (See Provisional Licensee Affidavits.) (c) Equities favor Provisional Licensees and TRO adversely impacts Public Interest Plaintiffs’ request for emergency TRO relief almost one (1) year after the start of the CAURD application programs, to challenge and undermine that program, flouts the doctrine of laches. Here, Affidavits from the Provisional Licensees highlight the irreparable harm they face after having invested their personal life savings after receiving their provisional CAURD license. (See Provisional Licensee Affs.). Provisional Licensees have invested time, energy and capital into developing the Adult-Use industry here – having already sunk tens of thousands of dollars from personal savings, loans, and family members and friends in order to operate a legal and licensed Adult-Use dispensary. Razing the entire CAURD program will only jeopardize the legitimacy of this State-regulated industry, further encourage illicit cannabis retailers to continue proliferating, destroy scarce public funding from excise taxes, and foster distrust in our public institutions to create social justice and economic equity programs to benefit the disadvantaged. This CAURD program not only represents the public interest’s expression of remediating historic injustice of the War on Drugs, but also to instill reparative justice into and beyond the cannabis industry. This model social justice and economic equity program can be replicated into 7 7 of 8 FILED: ALBANY COUNTY CLERK 08/14/2023 05:52 PM INDEX NO. 907282-23 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 08/14/2023 other industries to promote collective bargaining, workplace diversity, a bifurcated licensing structure to enable small-business participation. As the CAURD program has already allowed seven (7) other service-disabled Veterans to receive CAURD licenses (see McKeage Aff.), Plaintiffs’ claim wholly lacks any merit. Plaintiffs’ repeated claims of an unconstitutional legislative action does not render it so. Plaintiffs fail to acknowledge the constitutionally-permitted delegation of rulemaking authority to Defendants, and the proper standard of review under this Article 78 action. Unless this Court finds that Defendants acted “arbitrarily or capriciously” in promulgating 9 NYCRR Part 116 (CAURD Program) to effectuate the MRTA’s express legislative intent for reparative justice, then this Court cannot interpose its own judgment over the constitutional validity of the CAURD program in this Article 78 proceeding, and certainly not for purposes of maintaining preliminary injunctive relief. CONCLUSION For the foregoing reasons, this Court should grant Provisional Licensees’ Order to Show Cause to intervene and discontinue the TRO enjoining Defendants from conferring operational approval upon any more provisional or existing CAURD licensees, and award such other relief as it deems just and proper. 8 8 of 8