Robert Koonin And Cynthia Thomas, co-authored the article “Look before you lease: Landlord considerations in renting to the cannabis industry,” published on the front section of New York Real Estate Journal’s website. Click Here to read the article or see below.

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Imagine reading the newspaper when a headline catches your eye, “New Market Expecting Multi-Billion Dollar Growth in Coming Years.” You continue reading in the hopes of uncovering more about this unfamiliar industry and gaining insight into how you might, as a commercial landlord, be able to take advantage of such potential growth. When you realize that the article is addressing New York State’s recent legalization of recreational marijuana, you begin wondering whether you are equipped to wade through the murky waters of an entirely new regulatory landscape. While there are still many unknowns, and the final regulatory framework remains uncertain, you can undoubtedly be well positioned to ensure that you are at the forefront of this bourgeoning, multi-billion dollar, market.

On March 31, 2021 governor Andrew Cuomo signed the Marijuana Regulation & Taxation Act (MRTA) legalizing cannabis use for adults 21 years of age and older in New York State.1 The licensing process for cultivators, processors, distributors and dispensaries will be regulated through the Office of Cannabis Management (OCM) governed by the Cannabis Control Board2 and while retail sales are not anticipated to begin until 2022, the moment is ripe to begin thinking critically about how to take advantage of market opportunities. The New York Medical Cannabis Industry Association recently retained MPG Consulting to, among other things, quantify the necessary retail licenses and cultivation space required to facilitate the cannabis market.3 Total market size in New York is estimated to reach $4.6 billion in 2023 and is projected to grow to $5.8 billion by 2027, resulting in a total economic impact in excess of $10 billion.4 As the market develops, not only will demand for retail space increase, but it is estimated that approximately six million s/f of cultivation space will be necessary to meet market demand.5

Before diving headfirst into the market, there are several matters that commercial property owners must weigh and consider. Importantly, the MRTA provides that no applicant will be granted a retail license unless the applicant can demonstrate that it has control over the premises through direct ownership, a lease, management agreement, or other agreement.6 Site control is a requirement that is routinely necessitated by New York State in other non-cannabis related areas of healthcare (e.g. hospitals, nursing homes and other Article 28 facilities). Consequently, landlords must be willing to negotiate and enter into a lease prior to confirmation that the proposed tenant has received license approval.

In addition, landlords owning properties financed with mortgages from federally charted banks will find themselves prohibited from leasing to cannabis related businesses, such as retailers, cultivators, processors, and distributors. Marijuana is still deemed an illegal drug under federal law and financial institutions are prohibited from lending to businesses involved in the sale or production of marijuana. Fortunately, commercial property owners may find relief from this restriction as the Secure and Fair Enforcement Banking Act of 2021 or the SAFE Banking Act of 2021, was recently passed by the United States House of Representatives. The SAFE Banking Act of 20217 offers a glimmer of hope by prohibiting federal banking regulators from punishing a financial institution for providing banking services to cannabis-related businesses. Unfortunately, until formal legislation is enacted some commercial landlords may find their hands tied and should proceed cautiously before leasing space to cannabis related entities.

Landlords in New York could also face additional hurdles if their property is located in a municipality that exercised their “opted-out right.” Municipalities have the choice to “opt-out” by adopting local laws requesting that the Cannabis Control Board prohibit the establishment of retail dispensary licenses and/or on-site consumption licenses in that particular jurisdiction. Municipalities have until December 31, 2021 to make this election, and such election can be subsequently repealed at the municipality’s election.8 While the MRTA specifically provides that on-site consumption licenses will not be granted to any premises within 500 ft. of a school or 200 ft. of a house of worship, municipalities are also free to adopt reasonable restrictions on the time, place and manner of operations, provided that such limitations do not effectively make the operation of such business “unreasonably” impractical.9 As such, even if federal and state laws allow landlords to lease space to cannabis-related tenants, local municipal law may create another roadblock.

Although the regulatory framework remains unclear, as the market matures, it will certainly offer a new avenue of opportunity for commercial landlords in all property classes, provided that due consideration is paid to local, state and federal requirements.   

Should you have any questions regarding the above, please contact us at 516-393-2200 or info@garfunkelwild.com.

 

Garfunkel Wild Complimentary Webinar – Legalized Medical and Recreational Marijuana: Navigating The Ever-Shifting Landscape For Employers

Tuesday, June 29, 2021
12:00 pm – 1:00 pm (EDT)

Speakers:  Andrew Zwerling and Salvatore Puccio 

Garfunkel Wild’s Andrew Zwerling and Salvatore Puccio  will present the webinar “Legalized Medical and Recreational Marijuana: Navigating The Ever-Shifting Landscape For Employers″ on June 29, 2021.

A growing number of states have decriminalized marijuana use. Yet, under federal law, marijuana use and possession remains illegal, leaving employers in a quandary. This webinar will help employers understand their obligations and how to avoid some of the pitfalls that may await the uninformed.  Some of the topics to be addressed in this webinar include, but are not limited to, the following:

  • Avoiding disability discrimination claims made by those using medical marijuana.
  • How these statutory developments affect the issue of drug testing, both pre-employment and post-employment.
  • Resolving the issue of whether a drug-free workplace policy is a viable objective.
  • The ability of an employer to base employment decisions on an employee’s marijuana use.

Click Here To View

 

In a Dear Administrator Letter (“DAL”) dated May 28, 2021, the New York State Department of Health highlights the differing requirements long-term care (“LTC”) facilities must meet regarding COVID-19 vaccinations under recent federal and state regulations.

Under federal regulations adopted by CMS effective May 21, 2021 (42 C.F.R. §§483.80[d][3] and [g][viii]–[ix]), LTC facilities must:

  • educate residents (or resident representatives) and staff regarding the benefits and potential side effects associated with the COVID-19 vaccine and offer the vaccine unless medically contraindicated or the resident or staff member has already been immunized;
  • develop policies and procedures for providing such education;
  • maintain appropriate documentation demonstrating that the education was provided and whether the resident or staff member received the vaccine; and
  • report the COVID-19 vaccine status of residents and staff, each dose of vaccine received, adverse events related to the administration of the vaccine and therapeutics administered to residents for treatment of COVID-19.

DOH specifies in the DAL that to ensure compliance, surveyors will be requesting a facility point of contact to provide information on how residents and staff are educated about and are offered the vaccine, including samples of educational material.  Data regarding vaccinations and therapeutics must be included in NHSN submissions no later than 11:59 p.m. on Sunday, June 13th.

As we previously reported in a Client Alert dated April 21, 2021, NY State recently adopted emergency regulations (10 N.Y.C.R.R. §66-4.2) that require nursing facilities to:

  • Ensure that all new personnel, including contract staff, and every new resident and resident readmitted to the facility has an opportunity to receive the COVID-19 vaccine within fourteen days of having been hired or admitted or readmitted to the facility.

As the DAL points out, the new federal regulations do not impact the state emergency regulations and do not absolve nursing home administrators from meeting the state requirements.

Should you have any questions regarding the above, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.

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Click Here to download the Legal Alert.

 

Due to impending estate and economic changes on the horizon, now is the time to review your estate plan to make sure it is in order. Several tax proposals have been introduced that if enacted will significantly increase income, gift, and estate taxes.  Introduction of these proposals means that the window for making changes to your estate plan may be closing.

In addition, with the passing of the SECURE Act, the favorable laws that governed distributions from IRAs and other retirement accounts have changed. The SECURE Act, theoretically designed to make saving for retirement easier, actually severely reduced the benefits of inherited IRAs for your children.

Also of interest, for New York residents, is a new Power of Attorney statute that takes effect in New York on June 13, 2021.  This law makes it necessary for all New York residents to review their Power of Attorney forms executed in the past to see if such forms comply with state law and practice, and to verify that they remain on file with their financial institutions as necessary. Residents of New Jersey and Connecticut should also review their Powers of Attorney every few years to ensure compliance and effectiveness.

WHAT IS CHANGING?

Increases to Income, Capital Gains, Gift, and Estate Taxes.

  • Income tax rates may increase and there is discussion of treating long-term capital gains as ordinary income.
  • Currently, a beneficiary inherits assets at the fair market value as of the decedent’s date of death. This date of death valuation is a “step-up” in basis and it results in tremendous tax-savings for beneficiaries. If the step-up in basis were not available, as proposed, inherited assets would be subject to capital gains tax at death. In some cases, this would result in double taxation.
  • The Federal estate tax exemption may drop to $3.5 million, while the Federal gift tax exemption may drop to $1 million (from the current $11.7 million). The top estate tax rate could rise well above its current 40%.  New York’s top estate tax rate may also increase from 16% to 20%.  Connecticut’s estate tax exemption, currently $7.1 million, is scheduled to match the Federal estate tax exemption by 2023 and would be affected by a Federal reduction. While New Jersey repealed its estate tax in 2018, an inheritance tax of up to 16%  applies for certain classes of beneficiaries.
  • There are also proposals to severely reduce the effectiveness, or even eliminate, popular tax saving devices such as family partnerships/LLCs, grantor retained annuity trusts (GRATs), $15,000 annual exclusion gifts to trusts, and grantor trusts for income taxes.
  • The passage and timing of new legislation is not certain. Some proposals have an effective date in 2022, while claw backs to 2021 are possible.

Changes to Planning with Retirement Assets

  • The SECURE Act changed the rules to provide that only a surviving spouse, a minor child, or a disabled or chronically ill individual is eligible for a “stretch” IRA. Adult children and other individuals are limited to a ten-year payout period.  This eliminates the time assets can continue to grow within the IRA income tax-free and accelerates the income taxes that come due on required distributions.
  • Prior to SECURE, non-spouse beneficiaries that inherited IRAs took minimum required distributions over their own life expectancy. This gave younger beneficiaries more time to allow assets in the account to grow while deferring payment of income tax.
  • Prior to SECURE, an IRA could be held in a trust for the spouse. IRA distributions to Trusts were able to qualify for distributions over the spouse’s life expectancy.  This is no longer the case for the typical trusts used in estate planning (a “bypass” or “exemption” trust to escape estate tax at the spouse’s later death, or a “QTIP” Trust to control who inherits at the spouse’s death).
  • There are very complicated rules concerning what constitutes a “minor” child (it may be up to age 26) and a disabled or chronically ill beneficiary.
  • Sizeable retirement accounts have always presented challenges for estate planning. While it is always critical to periodically review all types of beneficiary designations (which can be just as important as the terms of a Will), SECURE makes it more critical. You should consult with your experienced trusts and estates advisor to salvage your estate plan from the effects of the SECURE Act.

New Power of Attorney Form for New Yorkers

  • New York Powers of Attorney signed after June 13, 2021 must use a new form (forms executed before June 13, 2021 are still valid). The new form is intended to be a more “user friendly” form, and is expected to be more readily accepted by financial institutions as it must be accepted or rejected within a period of 10 days of submission (or the institution faces liability for improperly rejecting a validly executed Power of Attorney).
  • A Power of Attorney is one of the most important and powerful documents in your estate planning toolbox. Without a legally enforceable Power of Attorney, situations may arise when court intervention is necessary to appoint a legal guardian for you.  This process is costly, time consuming, and emotionally draining.
  • Do not wait for a crisis to have your chosen agent try to implement your Power of Attorney. You should provide your Power of Attorney to the financial institutions you use now while you are able to present it yourself.  You should also ask your financial institutions if they prefer that you use their in-house form of Power of Attorney.
  • A Power of Attorney created by your trusts and estates lawyer should address your individual financial needs and will include the powers necessary for the agent of your choice to carry out your financial and estate plan as intended. The standard form without additional provisions and modifications crafted by your attorney will fall short in many cases, including in particular gift, estate and Medicaid planning.
  • Keep in mind, Powers of Attorney expire when you die and are not valid after death. This underscores the importance of a complete and thorough estate plan.

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ACT QUICKLY

We are available and ready to discuss these matters with you at your convenience, but do not delay or opportunities can be lost and circumstances may compromise your ability to act. Should you have any questions, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.

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Click Here to download the Legal Alert.

 

The Centers for Medicare & Medicaid Services (CMS) released a notice on June 3, 2021 advising that Medicare Administrative Contractors (MACs) may now begin conducting post-payment medical reviews of items and services for dates of service March 2020 and after.  Previously, MACs had resumed post-payment reviews only for dates of service before March 2020.   CMS also advised that the “Targeted Probe and Educate” program, involving intensive education to assess provider compliance through up to three rounds of review, will restart later.  Finally, CMS advised that the MACs will continue to offer detailed review decisions and education as appropriate.

As the country continues to “re-open,” clients should expect to see increased audit activity from not only CMS, but also from other federal and state agencies, as well as from commercial payers/health plans.  Garfunkel Wild routinely advises clients on all aspects of payer audits and regularly works with reviewers from Garfunkel Health Advisors (GHA), a heatlhcare consulting subsidiary.  GHA’s reviewers add significant clinical, practical and real-world expertise on the complex documentation, coding and billing issues that routinely arise during a payer audit.

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Should you have any questions regarding the above or if you are currently being audited and need assistance, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.

Click Here to download the Legal Alert.