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Talks over who will oversee the industry apparently are at a standstill.

Gov. Andrew Cuomo and state Senate leaders are reportedly at odds over who should lead the new Office of Cannabis Management and Cannabis Control Board.

New Yorkers looking to purchase adult-use marijuana at one of the state’s upcoming recreational dispensaries may have to wait at least 18 months — if not longer — because of political jockeying over leadership of the state’s fledgling cannabis industry.

Gov. Andrew Cuomo and state Senate leaders are reportedly at odds over who should lead the new Office of Cannabis Management and Cannabis Control Board, which were created under the Marijuana Regulation and Taxation Act to oversee the country’s second-largest recreational marijuana market. With talks at an apparent impasse, key lawmakers say the Cuomo administration has taken little action to prepare for the new adult-use industry — or advance other MRTA-backed changes — amid uncertainty over whether regulatory, licensing and other functions can proceed without a confirmed Office of Cannabis Management executive director or Cannabis Control Board chair.

The back-and-forth has led some to question Cuomo’s motives for finally backing the MRTA, which passed as the governor faced scandals over his administration’s reporting of Covid-19 nursing home deaths and allegations of sexual harassment and inappropriate workplace behavior. Speculation is also circulating in Albany over the governor’s commitment to actually seeing through the state’s establishment of an adult-use, recreational marketplace.

“I think he’s still quite ambiguous about the state moving forward, despite the fact that he negotiated the bill and he signed the bill,” said state Sen. Liz Krueger, a Manhattan Democrat and MRTA sponsor, in an interview.

The governor’s office did not comment directly on issues relating to the nominations. Administration spokesperson Colin Brennan directed POLITICO to a June 4 statement suggesting that the state “is actively working to ensure the Office of Cannabis Management and the Cannabis Control Board can begin implementing a safe, equitable and transparent adult-use cannabis industry as soon as possible.”

Sen. Diane Savino (D-Staten Island) argued that “as of now, the Office of Cannabis Management may exist on the website, but it doesn’t exist in any other form: And that’s a problem.”

How we got here
Cuomo was widely expected to issue his nominees for OCM executive director and Cannabis Control Board chair before lawmakers left Albany earlier this month. But talks reportedly fell apart after the Senate signalled it would not confirm Norman Birenbaum, the state’s director of cannabis programs, to the executive director role amid concerns raised about his track record in previous states and how it might fit with New York lawmakers’ stated commitments to social equity.

Cuomo then reportedly considered nominating former Assemblymember Karim Camara, the executive director of the Governor’s Office of Faith-Based Community Development Services, to chair the new Cannabis Control Board and leaving the other slot unfilled. Several sources familiar with the conversations said the partial nomination slate was floated as a possible way for Birenbaum to serve in an unofficial capacity. The 2021 session, however, closed without any official cannabis nominations.

“There was opposition from a variety of sectors to Norm. … It became clear that wasn’t going to happen so the governor didn’t put anybody up,” Savino said in an interview. “Then, I think there was a lot of jockeying over who he would put forward for the chair of the cannabis board. As late as [June 10], we were assuming he was going to send forward Karim Camara — that was what people were being told, and then it just never happened.”

Krueger confirmed that “there is a push by some in the governor’s office to make sure that a gentleman, who [she’d] already negated as executive director, somehow ends up with a lead role.” That’s a non-starter for the Legislature, she said, later adding that “there’s only one person we have signaled will not be acceptable.”

The Senate and the governor’s office had both liked Axel Bernabe, who serves as assistant counsel to Cuomo and helped negotiate the MRTA, for the role of OCM executive director, Krueger said. He, however, declined due to “family reasons.”

Krueger said her chamber also supports Christopher Alexander, government relations and policy manager at Village, a cannabis company, for the role of OCM executive director or chief equity officer — the latter of which is not subject to gubernatorial nomination or Senate confirmation.

Assembly Majority Leader Crystal Peoples-Stokes, co-sponsor of the MRTA, said that although her chamber is not directly involved in nomination and confirmation talks, she “would love to see” Alexander, Bernabe or former Assemblymember Tremaine Wright, who chaired the New York State Black, Puerto Rican, Hispanic and Asian Legislative Caucus, named to one of the roles.

Brennan said in the June 4 statement that “the Governor is committed to appointing individuals with diverse experiences and subject matter expertise who are representative of communities from across the state.”

But Krueger, who had long pushed for marijuana legalization in Albany, said she doesn’t “know that the governor has actually been born again around any of these issues” after his previous opposition to cannabis legalization. She argued that despite Cuomo’s advocacy for recreational cannabis in recent years, behind the scenes things have been less straightforward.

“It was like Charlie Brown and the football for me to deal with them on adult recreational, where he would make grand statements in his State of the State speeches that we were going to do recreational marijuana — everybody would get all excited that it was going to happen — then he would call us together for one meeting and draw lines in the sand that were going to be so impossible that we knew he wasn’t serious,” she said in an interview. “And a year would go by, and another year would go by, and another year would go by — and, again: Charlie Brown and the football.”

That dynamic changed in 2021 as an increasingly embattled Cuomo faced growing calls for his resignation, an impeachment probe and other investigations.

“Finally and amazingly — I think because he was preoccupied with other legal problems for himself — we actually moved the bill through that we wanted,” Krueger said.

She said passing the legislation allowed Cuomo to score a needed “political win with two specific populations of New Yorkers: African Americans and liberals.” (Cuomo leaned heavily on Black leaders as he faced growing calls to step down in early 2021. And polls at the time found that voters who identified as liberal and as Black backed the governor in large numbers despite the scandals.)

In the unfolding pandemic, economic crisis and reckoning on race, governors and mayors are shaping our shared future. Who are the power players, and how are they driving politics and influencing Washington?

So what now
Lawmakers face few options for moving forward with New York’s legal cannabis industry if no confirmable nominees emerge for the two positions. They could take a wait-and-see approach, or they could pass legislation to cut the governor out of the process.

Krueger said the latter is unlikely given the new agency’s role. It would also likely require legislative Democrats to flex their supermajority power. Further complicating things, she said, is the looming potential for an impeachment trial, which might require the governor to step aside temporarily while the proceedings unfold.

“There’s a reasonable assumption that we will have a different governor within a matter of months,” said Krueger, who has called on Cuomo to resign. “In which case, I don’t wish to delay moving forward [with] cannabis, but it may be a short delay.”

For Krueger and others, one thing appears to be clear: Establishing New York’s new legal cannabis market is “not really going to work” without the governor’s participation. But, in the meantime, they argued that the state should at least move forward in implementing some MRTA changes.

Krueger also said there’s no reason “why we couldn’t start going forward” with enacting the MRTA’s provisions relating to marijuana research. And Savino, an architect of New York’s medical marijuana law, said that about “90 percent” of the medical marijuana-related changes could be done without the establishment of the OCM board or new regulations.

“It could happen right now, but [the Department of Health] is hiding behind [the idea] that, ‘We need to wait for the Office of Cannabis Management and the Cannabis Board to be convened and new regulations to be promulgated.’ That’s just not true,” she said. “The statute does not require that for the changes that could go into effect, [like] adding in all health care providers who are allowed to prescribe medication currently, to add in all conditions, to allow the sale of flower product.”

The Cuomo administration has contended that the medical program changes outlined in the MRTA “require a series of regulatory and administrative changes, including updates to product testing and sampling procedures, as well as the program’s patient certification and inventory management systems.” DOH, it said, is “working to implement these changes.”

“Once the Cannabis Control Board is in place, the Office will be officially formed and can begin promulgating regulations to implement the Marijuana Regulation and Taxation Act (MRTA), including provisions to ensure industry access for small businesses, communities that have been disproportionately impacted by the war on drugs and opportunities for legacy operators and past cannabis convictions,” Brennan said in the early June statement.

Lawmakers caution that the delays could extend the state’s timeline for opening recreational cannabis dispensaries — a process that already was expected to take at least 18 months given the experiences seen in other states following legalization. That, Savino said, leaves New Yorkers in a precarious position.

“If we don’t do anything else, right now, in the state of New York, you can legally be in possession of three ounces of marijuana and smoke it anywhere you can legally smoke tobacco,” she said. “You can’t buy it, you can’t sell it legally, which means that the illegal market is going to run the table in a state where we just recently hailed the passage of legalizing marijuana. That makes no sense.”

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