'The War on Smoke Shops': Officials agree, illegal pot enforcement is needed, but how is it working?
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New York City Sheriff Anthony Miranda (right) and Queens District Attorney Melinda Katz (center) inspect a truck Omar Herrera used to sell unlicensed marijuana products. Photo via QDA’s office
By Ryan Schwach
A little more than two years ago, cannabis was made legal in New York State. And on Dec. 14, 2022, Omar Herrera was arrested and charged for selling it in Queens.
Though Herrerra was originally charged with a 57-count complaint, which included various degrees of criminal and unlawful sale and possession of cannabis charges, he took a plea deal this week in Queens Criminal Court. He pleaded guilty to a disorderly conduct charge, and was forced to forfeit the van used to sell pot out of without a license. The charge will be erased from his record if he stays out of trouble for the next year.
“We have a good outcome and they got what they wanted, which was the vehicle,” Herrera told the Eagle after the hearing. “I don't have a criminal record, which is most important.”
Herrera is far from the only person to be arrested for selling unregulated, unlicensed pot in recent months as the city engages in an ongoing battle against the slew of illegal smoke shops and weed vendors that have popped up in the five boroughs in the past year.
Most officials agree – in order for the legal cannabis market to thrive, the unlicensed market must be tampered down. But the rollout of cannabis licenses has been slow and unable to meet New Yorker’s demand for pot – for every one legal shop, there are hundreds of unlicensed ones. And enforcement of the unlicensed market has ruffled feathers on both sides of the issue – officials, including Mayor Eric Adams, have pushed for greater enforcement, while others say the current tactics mirror the enforcement of the failed war on drugs that marijuana legalization in New York State was aimed at rectifying.
Illegal smoke shops have become more than just a drug enforcement issue, they have permeated conversations surrounding policing violent crimes, access to licenses, race and, this week, budget negotiations.
The legal market is still very much in its infancy. Currently, there are only four legal dispensaries in the city – three in Manhattan and one in Queens – which has created a vacuum for sellers looking to get into the gray market, which Herrerra calls “The Green Rush.”
“These people that are in these neighborhoods, they're not going to the shops, these legal shops, to spend their hard earned money on something that is super taxed,” he said. “So, why not just support your neighborhood guy? He lives in the neighborhood.”
The Office of Cannabis Management, which is responsible for approving cannabis licenses, has admitted that it’s been slow to get the legal market going. Lawsuits and a number of other factors have also held up the opening of pot shops in certain parts of the state.
JAMAICA RESIDENT JOHN BROWN BECAME THE FIRST MEMBER OF THE PUBLIC TO PURCHASE LEGAL MARIJUANA AT GOOD GRADES in Jamaica, queens firist legal pot shop, ON THURSDAY, MARCH 30, 2023. EAGLE PHOTO BY RYAN SCHWACH
But New York City Sheriff Anthony Miranda says the slow rollout is no excuse. His office has to enforce the laws in place, he said.
And according to the sheriff, the vast majority of unlicensed shops sheriff’s deputies have busted were also found to be selling untaxed cigarettes and other illegal products.
“These are not people who are complying with any rules and regulations,” Miranda said. “So that excuse that they say, ‘Well, hey, we just can't wait anymore.’ That's not a proper answer. Because you're not saying you just can't wait any more. You're saying, ‘I just can't wait any more, and I don't want to follow any of the rules and regulations and the law as is prescribed.’ That's just telling us that your proposal was never to participate in the license market.”
“There are people who clearly had no indication that they wanted to participate in the legal cannabis market,” he added.
Neither the mayor’s office nor the OCM responded to requests for comment before print time.
What does enforcement look like?
The city’s law enforcement approach to regulating the legal market has been a joint one. Several agencies, including the New York City Sheriff’s Department, the NYPD, the Office of Cannabis Management and the Department of Consumer and Worker Protection, are involved.
“There’s interagency cooperation with the normal barriers to communication,” Miranda told the Eagle. “But everybody got the same message. They all know that this is clearly becoming an issue that's plaguing our communities and there's consistency in our approach.”
That approach has included inspections, the shutting down of locations and seizing of product, including during a number of busts in Queens. But over the past several months, that approach has changed, and will likely continue to do so.
“There's no one approach to the process,” said Miranda. “As the illegal or unlicensed market sees enforcement, they want to make adjustments, which is going to require us to be flexible enough to make similar adjustments.”
But advocates say that even with the adaptations, enforcement of the illegal market has shown strong similarities to the war on drugs, which saw law enforcement target Black and brown communities at a far higher rate than their white counterparts, and led to mass incarceration.
The NYPD’s own data shows that since legalization, the rate of marijuana arrests for Black and Hispanic individuals has stayed consistent when compared to the years immediately preceding legalization.
In the second, third and fourth quarters of 2018, there were 4,289 marijuana arrests in New York City – 3,833, or 89 percent, of those arrested were Black or Hispanic. White New Yorkers accounted for 6.4 percent of those arrested during that time frame. Overall, from quarter two of 2018 through quarter one of 2021 – when pot was legalized in March of that year – 90 percent of all those arrested for weed-related offenses were either Black or Hispanic. Around 6 percent were white.
The number of marijuana arrests has drastically reduced since pot’s legalization, but the racial disparities in the arrests have remained relatively unchanged.
From quarter two of 2021 through the end of 2022, 81 percent of New Yorkers arrested for marijuana related offenses were Black or Hispanic. Around five percent were white.
But as the number of arrests were decreasing in the past year, they saw a spike in the final quarter of 2022 ahead of the opening of the first legal weed store in New York. There were 69 marijuana related arrests made in the fourth quarter of last year, the highest since legalization.
Arrest numbers for the first quarter of 2023 are not yet available, according to the NYPD.
“I think the law has changed but the mind frame hasn't, perhaps on the part of law enforcement,” said Mani Tafari, an attorney with the Queens Defenders. “That stigma is the association between Black and brown people and cannabis.”
a photo of marijuana products seized by the New York City Sheriff’s office in February 2023. Photo via NYC sheriff/Twitter
But Miranda said he and his sheriff’s deputies will continue to enforce the law, regardless of who is breaking it.
“Anybody selling any of these products to minors, needs to be arrested,” said Miranda. “These are people who are clearly presenting some serious health dangers to our community. There is no excuse for that and there's no nationality to that.”
The NYPD arrest figures don’t represent the whole of the city’s enforcement, including some of the actions carried out by the sheriff and the OCM.
Miranda said that his approach to enforcement of illegal cannabis has been no different than the city’s approach to enforcing illegal sellers in other markets, including the food vending, meat selling or liquor store markets.
“There are rules and regulations like any other part of a licensed business in New York City – cannabis is not the only one, it's not the first one,” he said.
But enforcement of the illegal shops has not always mirrored that of other markets – media coverage of weed busts or robberies at smoke shops has been similar to coverage of the same busts before legalization. Queens Assemblymember Khaleel Anderson said the busts and enforcement in general could perpetuate the same issues and stigmas the war on drugs exacerbated.
“My immediate reaction to those numbers is that when you give a racist system more tools to be racist, it's going to do when it does and continues to be racist,” said Anderson. “The point of legalization was to right the wrongs that were done to many families during the war on drugs– the war on drugs has trickled, but it has not completely been stopped.”
A product of the system
Last year, Herrera was one of those New Yorkers who said they were frustrated with the slow rollout of licenses.
“I think it's backwards, the whole system is backwards,” he said. “Not only because they just legalized it and didn't really set out any infrastructure for it…it's kind of like something we've all been waiting for, and then when it finally happens, it's not really the outcome that we expected.”
In July, he opened his first “official” pot business, “Beach Boyz Budz,” which operated out of an old school bus outside the Rockaway Beach ferry dock on Beach 108th Street.
“I think it's probably my best marketing tool ever,” said Herrera, who had been selling weed casually to friends for more than 20 years, and saw the drug’s legalization as an opportunity. “I want to be known for my brand, not just like a smoke shop.”
Herrera’s business flourished over the summer of 2022, with a pre-existing and growing clientele of locals, in addition to Rockaway beach goers coming off of hot and crowded ferries.
However, his prominent location garnered the attention of local City Councilmember Joann Ariola and Queens District Attorney Melinda Katz, both of whom publicized the incident.
“It just rubbed people the wrong way, to be honest,” he said. “I think it was just out in the open and they weren't ready for that.”
On Dec. 14, sheriffs raided his truck, arresting him and a colleague and seizing a treasure trove of various unregulated weed products.
“Stores, trucks and other outlets currently selling recreational marijuana are doing so illegally,” Katz said at the time. “What consumers are buying from these sellers is not regulated and most certainly has not been tested by the state.”
Herrera, who was not selling anything beyond cannabis-related products, said that he saw other Rockaway smoke shops just blocks away escape the same fate, and felt like he had been explicitly targeted.
“There was a warrant, the sheriff's department came, they basically took us out of the truck right before we got to set up, put us in handcuffs, and just took us straight to the precinct,” he said. “It just felt like we were being targeted because of what we were doing…Anybody at all the other shops, nothing happened to them.”
Omar Herrera pleaded guilty to disorderly conduct charges after being originally charged with a 57-count complaint after he was selling unlicensed marijuana in Queens in December. File photo by Ryan Schwach
Herrera was released later the same day he was arrested, and appeared in court four times before last Monday, when he pleaded guilty to the disorderly conduct violation.
“To protect the health and well-being of the people of Queens and ensure tax revenues for critical public services, I am using every law enforcement and legal tool I can against those selling marijuana illegally,” Katz said in a statement when asked about the outcome of the Herrera case. “Many of these unlicensed vendors are selling illicit drugs and untaxed cigarettes. A large number are close to schools and sell edible cannabis products designed to look like candy but that have landed children in the hospital. We will continue working with our partners in law enforcement to put these illegal operations out of business once and for all.”
Ariola said in response: “This sends a clear message to anyone looking to set up similar operations in our neighborhood – you will not make a profit by conducting illegal, unlicensed business here.”
Herrera, as well as his lawyer, Rockaway defense attorney Joseph Mure, saw the case as a waste of the legal system’s time and money.
“Arrests and prosecution of a case like this is a waste of taxpayers money and resources,” Mure said.
Tafari, the lawyer with Queens Defenders, agrees, and said that many of the people being arrested for operating without a license are the very people who were arrested for pot-related offenses pre-legalization.
“The term of ours would be a waste in the judicial economy, because you're going to prosecute someone and, more than likely, this is someone who's been punished by prohibition,” he said. “This is someone who legalization of marijuana was meant to help but he's still being dragged through the court system even though he only pled to a disorderly. This is not what the law was meant to do.”
This week, discussions around cannabis enforcement have become yet another obstacle in state budget talks in Albany, with some legislators, like Anderson, wanting to see police kept out of enforcement, fearing the same biases could come into play once again.
“We know that enforcement with [police] can often be very heavy handed, and we know the history of policing, and I know that historically – of course, I'm not going to ever blanket statement any of our departments or agencies – but we know that there have been patterns of racist policing,” he said. “It's being discussed [in Albany] which agency should be empowered to do that…We want to make sure enforcement happens in a way that doesn't have police involved.”
For now, Herrera is gearing up to get back into the pot market. He says he wants to sell legal weed, but has been turned off by the way the legal market has been set up and the enforcement that has followed.
“If they're not going to call it a war on drugs now, they're probably going to call it a war on smoke shops or something,” he said. “I think history is going to repeat itself no matter what.”
Additional reporting by Jacob Kaye.
