New Mexico Register / Volume XIX, Number 23 / December 15, 2008
TITLE 7 HEALTH
CHAPTER 34 MEDICAL
USE OF MARIJUANA
PART 4 LICENSING
REQUIREMENTS FOR PRODUCERS, PRODUCTION FACILITIES AND
DISTRIBUTION
7.34.4.1 ISSUING
AGENCY: New Mexico Department of Health, Public
Health Division.
[7.34.4.1 NMAC - N,
12/15/2008]
7.34.4.2 SCOPE: This
rule applies to all licensed producers of medical use marijuana, defined in
Section 26-2B-3 (D) NMSA 1978 as “any person or association of persons within
New Mexico that the department determines to be qualified to produce, possess,
distribute and dispense cannabis pursuant to the Lynn and Erin Compassionate
Use Act and that is licensed by the department.” This rule addresses the
department’s actions in the prevention of non-medical marijuana use, in an
effort to prevent abuse or misuse of the act and its purpose. All requirements
contained herein are necessary prerequisites to the state’s ability to
distinguish between authorized use under this act and unauthorized use under
the state’s criminal laws.
[7.34.4.2 NMAC - N,
12/15/2008]
7.34.4.3 STATUTORY
AUTHORITY: The requirements set forth herein are
promulgated by the secretary of the department of health, pursuant to the
general authority granted under Section 9-7-6 (E) NMSA 1978, as amended, and
the authority granted under Sections 24-1-2(D), 24-1-3(I) and 24-1-5, NMSA
1978, of the Public Health Act, as amended, Section 53-8-1 et seq. NMSA 1978,
and the Lynn and Erin Compassionate Use Act. Although federal law currently
prohibits any use of marijuana, the laws of Alaska, California, Colorado,
Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington permit the
medical use and cultivation of marijuana. New Mexico joins this effort to
provide for the health and welfare of its citizens. New Mexico adopts these
regulations to accomplish the purpose of the Lynn and Erin Compassionate Use
Act as stated in Section 26-2B-2, NMSA 1978, “to allow for the beneficial use
of medical cannabis in a regulated system for alleviating symptoms caused by
debilitating medical conditions and their medical treatments,” while at the
same time ensuring proper enforcement of any criminal laws for behavior that
has been deemed illicit by the state.
[7.34.4.3 NMAC - N,
12/15/2008]
7.34.4.4 DURATION:
Permanent.
[7.34.4.4 NMAC - N,
12/15/2008]
7.34.4.5 EFFECTIVE
DATE: 12/15/2008, unless a later date is cited at
the end of a section..
[7.34.4.5 NMAC - N,
12/15/2008]
7.34.4.6 OBJECTIVE:
Ensuring the safe production, distribution and dispensing of marijuana
for the sole purpose of medical use for alleviating symptoms caused by
debilitating medical conditions in a regulated system.
[7.34.4.6 NMAC - N,
12/15/2008]
7.34.4.7 DEFINITIONS:
A. “Act” means the Lynn and Erin Compassionate Use
Act.
B. “Adequate supply” means an amount of marijuana, derived solely
from an intrastate source and
in a form approved
by the department, possessed by a qualified patient or collectively possessed
by a qualified patient and the qualified patient’s primary caregiver, that is
determined by the department to be no more than reasonably necessary to ensure
the uninterrupted availability of marijuana for a period of three (3) months.
An adequate supply shall not exceed six (6) ounces of useable marijuana, and
with a producer license only, four (4) mature plants and twelve (12) seedlings,
or a three (3) month supply of topical treatment. An amount greater than six (6) ounces of
useable marijuana may be allowed upon proof of special need as evidenced by a
practitioner letter explaining why a larger dose is indicated. Any such allowance shall be reviewed for
approval by a medical director designated by the department after consultation
with the advisory board created under the act.
C. “Administrative review committee” means an intra-department committee
appointed by the secretary, selected for the purposes of reviewing qualified
patients or primary caregivers application denial, licensed producer denial, or
the imposition of a summary suspension. The administrative review committee
shall consist of the medical director, medical cannabis program manager, a
social worker, registered nurse and attorney.
D. “Administrative withdrawal” means the procedures for the voluntary
withdrawal of a qualified patient or primary caregiver from the medical
cannabis program.
E. “Adverse action” includes the denial of any application,
immediate revocation of the qualified patient or primary caregiver’s registry
identification card, licensed producer revocation, referral to state or local
law enforcement and loss of all lawful privileges under the act.
F. “Applicant” means any person applying to participate in
the medical use of marijuana program as a qualified patient, primary caregiver
or licensed producer.
G. “Cannabis” see “marijuana.”
H. “Debilitating
medical condition” means:
(1) cancer;
(2) glaucoma;
(3) multiple sclerosis;
(4) damage to the nervous
tissue of the spinal cord, with objective neurological indication of
intractable spasticity;
(5) epilepsy;
(6) positive status for
human immunodeficiency virus or acquired immune deficiency syndrome;
(7) admittance into
hospice care in accordance with rules promulgated by the department; or
(8) any other medical
condition, medical treatment or disease as approved by the department.
I. “Deficiency” means a violation of or failure to comply
with a provision of these requirements.
J. “Department” mean the New Mexico department of health.
K. “Division” means the public health division of the New
Mexico department of health.
L. “Facility” means any building or grounds licensed for
the production, possession and distribution of marijuana in any form.
M. “Intrastate” means existing or occurring within the state
boundaries of New Mexico.
N. “License” means the document issued by the department
pursuant to this rule granting the legal right to produce and distribute
medical marijuana for a specified period of time not to exceed one (1) year.
O. “Licensed producer” means any person or
entity licensed by this rule.
P. “Licensing Authority” means the medical cannabis program of the
department.
Q. “Licensure” means the process by which the department
grants permission to an applicant to produce or possess marijuana.
R. “Marijuana” means all parts of the plant cannabis
sativa, family cannabinaceae, whether growing or not, the resin extracted from
any part of the plant, and every compound, manufacture, salt, derivative,
mixture, or preparation of the plant or its resin.
S. “Mature plant” means a harvestable
female marijuana plant that is flowering and is greater than twelve inches in
height and twelve inches in diameter.
T. “Medical cannabis program” means the administrative body of the New
Mexico public health division charged with the management of the medical
marijuana program, including the issuance of registry identification cards,
licensing of producers and distribution systems, administration of public
hearings and administration of informal administrative reviews.
U. “Medical director” means a medical practitioner designated by
the department to determine whether the medical condition of an applicant
qualifies as a debilitating medical condition eligible for enrollment in the
program.
V. “Minor” means an individual less than eighteen (18)
years of age.
W. “Paraphernalia” means any equipment, product, or material of
any kind that is primarily intended or designed for use in compounding,
converting, processing, preparing, inhaling or otherwise introducing marijuana
into the human body.
X. “Personnel record” means an individual personnel employment
file of any employee of a licensed producer containing, but not limited to, the
employee’s education, work history, training, licensure, certification,
performance evaluation, salary, job title and job description.
Y. “Policy” means a written statement of principles that
guides and determines present and future decisions and actions of the licensed
producer.
Z. “Practitioner” means a person licensed in New Mexico to
prescribe and administer drugs that are subject to the Controlled Substances
Act, Section 30-31-1 et seq. NMSA 1978.
AA. "Primary caregiver" means a resident
of New Mexico who is at least eighteen (18) years of age and who has been
designated by the qualified patient or patient's practitioner as being
necessary to take responsibility for managing the well-being of a qualified
patient with respect to the medical use of cannabis pursuant to the provisions
of the Lynn and Erin Compassionate Use Act [26-2B-1 NMSA
1978].
BB. “Private entity” means a private, non-profit organization
that meets the requirements under this rule for licensure as a producer and
distributor of marijuana.
CC. “Qualified patient” means a resident of New Mexico who has been
diagnosed by a practitioner as having a debilitating medical condition and has
received a registry identification card issued pursuant to the requirements of
the medical use of marijuana registry identification cards rule.
DD. “Record review” means an informal non-adversarial
administrative review of written documentation submitted by an applicant who
has been denied status as a qualified patient or a primary caregiver, one who
has been denied a license to produce and distribute marijuana, or the process
for expedited review of a summary suspension.
EE. “Registry identification card” means a document issued by the department
which identifies a qualified patient authorized to engage in the use of
marijuana for a debilitating medical condition or a document issued by the
department which identifies a primary caregiver authorized to engage in the
intrastate possession and administration of marijuana for the sole use of the
qualified patient.
FF. “Representative” means an individual
designated as the qualified patient’s agent, guardian, surrogate, or other
legally appointed or authorized health care decision maker pursuant to the
Uniform Health Care Decisions Act, Section 24-7A-1 et seq. NMSA 1978.
GG. “Secretary” means the secretary of the New Mexico
department of health.
HH. “Secure grounds” means a facility that provides a safe
environment to avoid loss or theft.
II. “Security alarm system” means any device or series of devices,
including, but not limited to, a signal system interconnected with a radio
frequency method such as cellular, private radio signals, or other mechanical
or electronic device used to detect an unauthorized intrusion.
JJ. “Security policy” means the instruction manual or pamphlet
adopted or developed by the licensed producer containing security policies,
safety and security procedures, personal safety and crime prevention
techniques.
KK. “Seedling” means a marijuana plant that has no flowers
and is less than twelve (12) inches in height and less than twelve (12) inches
in diameter. A seedling must meet all three (3) criteria set forth above.
LL. “Topical treatment” means a
transcutaneous therapeutic marijuana extract formulation comprising of water,
short carbon chains alcohol, dimethysulfoxide, polyethylene glycol,
polypropylene glycol, glycerin, mineral oil and mixtures thereof.
MM. “Usable marijuana”
means the dried leaves and flowers of the female marijuana plant, any mixture
or preparation thereof, including ointments, but does not include the seeds,
stalks and roots of the plant.
[7.34.4.7 NMAC - N,
12/15/2008]
7.34.4.8 LICENSED
PRODUCER APPLICATION REQUIREMENTS:
A. The department may license two
classes of producers:
(1) a qualified patient
who shall produce no more than an adequate supply of marijuana for the
qualified patient’s personal use only; and
(2) a non-profit private
entity that operates a facility and, at any one time, is limited to a total of
ninety-five (95) mature plants and seedlings and an inventory of usable
marijuana that reflects current patient needs, and that shall sell marijuana
with a consistent unit price, without volume discounts.
B. Application for licensure as either a
qualified patient or private entity.
(1) The issuance of an
application form is in no way a guarantee that the completed application shall
be accepted or that a license will be granted. Information provided by the
applicant and used by the licensing authority for the licensing process shall
be accurate and truthful. Any applicant that fails to participate in good faith
by falsifying information presented in the licensing process shall have its
license denied by the licensing authority.
(2) The number of
licenses issued by the department to private entities is at the discretion of
the secretary.
C. The secretary shall consider the overall
health needs of qualified patients and the safety of the public in deciding on
the number and location of licenses to produce marijuana issued to private
entities, including, but not limited to, the following factors:
(1) the sufficiency of
the overall supply available to qualified patients statewide;
(2) the applicant’s plan
to ensure purity, consistency of dose, and the various forms of applications to
be provided; i.e., topical, oral, tinctures, etc.;
(3) the applicant’s skill
and knowledge of organic growing methods to ensure a safe product;
(4) the quality of the
security plan proposed including location, security devices employed and
staffing;
(5) the quality assurance
plans in place including provision for periodic testing; and
(6) the experience and
expertise of the non-profit board members.
D. Location of licensed producer:
Distribution of marijuana by a non-profit entity to qualified patients or
primary caregiver shall not take place at locations that are within three
hundred (300) feet of any school, church or daycare center.
E. Qualified patients must provide the
following in order to be considered for a license to produce marijuana:
(1) appropriate
non-refundable fees, except the fees may be waived upon a showing of need;
(2) a description of the
facility that shall be used in the production of marijuana;
(3) a written plan that
ensures that the marijuana production shall not be visible from the street or
other public areas;
(4) a description of any
device or series of devices that shall be used to provide security and proof of
the secure grounds;
(5) written
acknowledgement of the limitations of the right to use and possess marijuana
for medical purposes in New Mexico; and
(6) the department may
verify information on each application and accompanying documentation by:
(a)
contacting the applicant by telephone or by mail;
(b)
conducting an on-site visit;
(c)
requiring a face-to-face meeting and the production of additional
identification materials if proof of identity is uncertain; and
(d)
requiring additional relevant information that the department deems
necessary.
F. A private
non-profit entity must provide the following in order to be considered for a
license to produce marijuana:
(1) acknowledgement that,
at any time, production shall not exceed ninety-five (95) mature plants and
seedlings and an inventory of usable marijuana that reflects current patient
needs;
(2) proof that the
private entity is a non-profit corporation pursuant to, Section 53-8-1 et seq.
NMSA 1978;
(3) appropriate
non-refundable fees;
(4) verification that the
board of the non-profit includes, at a minimum, one (1) physician, a nurse or
other health care provider, and three (3) patients currently qualified under
the Lynn and Erin Compassionate Use Act;
(5) a description of the
facility that shall be used in the production of marijuana;
(6) proof that the
facility is not within three hundred (300) feet of any school, church or
daycare center;
(7) a description of the
means the private non-profit shall employ to make qualified patients or the
primary caregiver aware of the quality of the product;
(8) a description of the means the private
non-profit shall employ to safely dispense the marijuana to qualified patients
or the qualified patient’s primary caregivers;
(9) a description of
ingestion options of useable marijuana provided by the private non-profit
entity;
(10) a description of
safe smoking techniques that shall be provided to qualified patients;
(11) a description of
potential side effects and how this shall be communicated to qualified patients
and the qualified patient’s primary caregivers;
(12) a description of the
private entity’s means for educating the qualified patient and the primary
caregiver on the limitation of the right to possess and use marijuana;
(13) a description of the
packaging of the useable marijuana that the private non-profit entity shall be
utilizing, including a label that shall contain the name of the strain, batch,
quantity and a statement that the product is for medical use and not for
resale;
(14) a description of the
private non-profit entity’s confidential sale records, ensuring that quantities
purchased do not suggest re-distribution; both clients and the department shall
have access to this information at any time;
(15) a description of the
private non-profit entity’s policy on the right of the entity to refuse
service;
(16) a description of the
device or series of devices that shall be used to provide security;
(17) a written
description of the private non-profit entity’s security policies, safety and
security procedures, personal safety and crime prevention techniques;
(18) copies of the entity’s articles of
incorporation and by-laws;
(19) a list of all
persons or business entities having direct or indirect authority over the
management or policies of the facility;
(20) a list of all
persons or business entities having five percent or more ownership in the
facility, whether direct or indirect and whether the interest is in profits,
land or building, including owners of any business entity which owns all or
part of the land or building;
(21) the identities of
all creditors holding a security interest in the premises, if any;
(22) criminal history
screening requirements:
(a)
all persons associated with a non-profit private entity production
facility must consent to a nationwide and statewide criminal history screening
background check; this includes board members, persons having direct or
indirect authority over management or policies, and employees; all applicable
fees associated with the nationwide and statewide criminal history screening
background check shall be paid by the individual or production facility;
(b)
individuals convicted of a felony violation of Section 30-31-20,
30-31-21, or 30-31-22 NMSA 1978 are prohibited from participating or being
associated with a production facility licensed under this rule; if an
individual has been convicted of a felony violation of Section 30-31-1 et seq.
NMSA 1978, other than Sections 30-31-20 through 30-31-22, and the final
completion of the entirety of the associated sentence of such felony conviction
has been less than five (5) years from the date of the individual’s anticipated
association with the production facility, then the individual is prohibited
from serving in his or her role on the board or for the entity; the individual
shall be notified by registered mail of his or her disqualification; if the
individual has been convicted of more than one (1) felony violation of Section
30-31-1 et seq. NMSA 1978, the individual shall be notified by registered or
certified mail that he or she is permanently prohibited from participating or
being associated with a production facility licensed under this rule; any violation
of this subsection will result in the immediate revocation of any privilege
granted under this rule and the act;
(23) the department may
verify information on each application and accompanying documentation by:
(a) contacting the
applicant by telephone or by mail;
(b)
conducting an on-site visit;
(c)
requiring a face-to-face meeting and the production of additional
identification materials if proof of identity is uncertain; and
(d)
requiring additional relevant information that the department deems
necessary;
(24) cooperation with the
department upon notice by the department of the intent to review the licensed
producer application; failure of the private entity to cooperate with the
department’s request may result in the application being declared incomplete or
denied; and
(25) such other
information as the private entity wishes to provide or that the licensing
authority shall request.
G. Private entity
policies and procedures: Distribution criteria documentation. The private
non-profit entity shall develop, implement and maintain on the premises, policies
and procedures relating to the marijuana program. The policies and procedures
shall at a minimum include the following criteria:
(1) develop distribution
criteria for qualified patients or primary caregivers appropriate for marijuana
services;
(2) qualified patient’s
or the primary caregiver’s distribution criteria shall include a clear
identifiable photocopy of all qualified patient’s or the primary caregiver’s
registry identification card served by the private entity; and
(3) alcohol and drug free
work place policy; the private non-profit entity shall develop, implement and
maintain on the premises, policies and procedures relating to an alcohol and
drug free workplace program;
(4) employee policies and
procedures; the private non-profit entity shall develop, implement and maintain
on the premises, employee policies and procedures to address the following
requirements:
(a)
a job description or employment
contract developed for all employees, which includes duties, authority,
responsibilities, qualifications and supervision; and
(b)
training in, and adherence, to state confidentiality laws;
(5) the licensed producer
shall maintain a personnel record for each employee that includes an
application for employment and a record of any disciplinary action taken; and
(6) the private
non-profit entity shall develop, implement and maintain on the premises on-site
training curriculum, or enter into contractual relationships with outside
resources capable of meeting employee training needs, which includes, but is
not limited to, the following topics:
(a) professional conduct,
ethics and patient confidentiality; and
(b)
informational developments in the field of medical use of marijuana;
(7) employee safety and
security training; the private non-profit entity shall provide each employee,
at the time of his or her initial appointment, training in the following:
(a)
the proper use of security measures and controls that have been adopted;
and
(b)
specific procedural instructions on how to respond to an emergency,
including robbery or a violent accident.
(8) all private non-profit
entities shall prepare training documentation for each employee and have
employees sign a statement indicating the date, time and place the employee
received said training and topics discussed, to include name and title of
presenters; the private non-profit entity shall maintain documentation of an
employee’s training for a period of at least six (6) months after termination
of an employee’s employment; employee training documentation shall be made
available within twenty-four (24) hours of a department representative’s
request; the twenty-four (24) hour period shall exclude holidays and weekends.
H. Annual license: An annual license is
issued for a one (1) year period to a licensed producer that has met all
requirements of this rule.
I. Amended license: A licensed producer
shall submit an application form provided by the department for an amended
license, with a non-refundable required fee to the department prior to:
(1) change of location of
a qualified patient who also holds a license as a producer;
(2) change of location of
the private non-profit entity, change of ownership, private entity name,
capacity or any physical modification or addition to the facility;
(3) an application for
change of the licensed producer shall be submitted within thirty (30) business
days prior to the change; and
(4) a licensed producer
shall not increase production, possession or institute changes in plans to
distribute or dispense marijuana until the department has approved the increase
and issued a license for the increased production or possession or approved
changes to the manner of distribution or dispensing of marijuana.
J. Application for renewal of an annual
license: Each licensed producer shall apply for renewal of its annual
license thirty (30) calendar days prior to expiration by submitting a renewal
application to the licensing authority.
(1) Qualified patients
must submit:
(a) an application for
renewal of license that includes an updated recommendation from their primary
care physician stating that the applicant continues to meet criteria as a
qualified patient and that medical use of marijuana shall be of benefit; and
(b)
appropriate non-refundable fees, except the fees may be waived upon a
showing of need.
(2) Private entities must
submit:
(a)
an application for renewal of license; and
(b)
appropriate non-refundable fees.
K. Non-transferable registration of license:
(1) A license shall not
be transferred by assignment or otherwise to other persons or locations. Unless
the licensed producer applies for and receives an amended license, the license
shall be void and returned to the licensing authority when any one of the
following situations occurs:
(a)
ownership of the facility changes;
(b)
location change;
(c)
change in licensed producer;
(d)
the discontinuance of operation; or
(e)
the removal of all medical marijuana from the facility by lawful state
authority.
(2) Transactions, which
do not constitute a change of ownership, include the following:
(a)
when applicable, changes in the membership of a corporate board of
directors or board of trustees; and
(b)
two (2) or more corporations merge and the originally licensed
corporation survives.
(3) Management agreements
are generally not considered a change in ownership if the licensed producer
continues to retain ultimate authority for the operation of the facility.
However, if the ultimate authority is surrendered and transferred from the
licensed producer to a new manager, then a change of ownership has occurred.
L. Automatic expiration of license:
(1) A license shall
expire at midnight on the day indicated on the license as the expiration date,
unless renewed at an earlier date, suspended or revoked.
(2) A private entity that
intends to voluntarily close shall notify the licensing authority no later than
thirty (30) calendar days prior to closure. All private non-profit entities
shall notify all qualified patients or the primary caregivers prior to
expiration of the license. Any unused medical marijuana must be turned over to
local law enforcement.
M. Display of license: The licensed
producer shall maintain the license in a safe location and be able to produce
the license immediately upon request by the department or law enforcement.
[7.34.4.8 NMAC - N,
12/15/2008]
7.34.4.9 SECURITY
REQUIREMENTS FOR LICENSED PRODUCERS: Private entities licensed to
produce marijuana shall comply with the following requirements to ensure that production
facilities are located on secure grounds.
Security alarm system: The
private non-profit entity shall provide and maintain in each facility a fully
operational security alarm system. The private non-profit entity shall:
A. conduct
a monthly maintenance inspection and make all necessary repairs to ensure the
proper operation of the alarm system and, in the event of an extended
mechanical malfunction that exceeds an eight (8) hour period, provide
alternative security that shall include closure of the premises; and
B. maintain
documentation for a period of at least twenty-four (24) months of all
inspections, servicing, alterations and upgrades performed on the security
alarm system; all documentation shall be made available within twenty-four (24)
hours of a department representative’s request; failure to provide equipment
maintenance documentation within the twenty-four (24) hour period shall subject
the licensed producer to the sanctions and penalties provided for in this rule;
the twenty-four (24) hour period shall not include holidays and weekends.
[7.34.4.9 NMAC - N,
12/15/2008]
7.34.4.10 DENIAL
OF AN INITIAL PRODUCER LICENSE:
A. Record review:
All applicants whose initial application for a licensed producer has been
denied may request a record review from the department.
B. Procedure for requesting informal
administrative review:
(1) An applicant given
notice of an application denial may submit a written request for a record
review. To be effective, the written
request shall:
(a)
be made within thirty (30) calendar days, as determined by the postmark,
from the date of the denial notice issued by the department;
(b)
be properly addressed to the medical cannabis program;
(c)
state the applicant’s name, address, and telephone numbers;
(d)
state the applicant’s proposed status as a licensed producer;
(e)
provide a brief narrative rebutting the circumstances of the application
denial.
(2) If the applicant
wishes to submit and have considered additional documentations, such additional
documentation must be included with the request for a record review.
C. Record review
proceeding: The review proceeding is intended to be an informal
non-adversarial administrative review of written documentation. It shall be
conducted by an administrative review committee designated for that purpose by
the division. In cases where the administrative review committee finds the need
for additional or clarifying information, the review committee may request that
the applicant supply such additional information within the time set forth in
the committees’ request.
D. Final determination:
(1) Content: The administrative review committee shall
render, sign and enter a written decision setting forth the reasons for the
decision and the evidence upon which the decision is based.
(2) Effect:
The decision of the administrative review committee is the final
decision of the informal administrative review proceeding.
(3) Notice: A copy of the decision shall be mailed by
registered or certified mail to the applicant.
E. Judicial review: Judicial review of the administrative review
committee’s final decision is permitted to the extent provided by law. The
party requesting the appeal shall bear the cost of such appeal.
[7.34.3.10 NMAC - N,
12/15/2008]
7.34.4.11 PARENTAL
RESPONSIBILITY ACT: The failure to comply with a judgment or
order for child support, or subpoena or warrants relating to paternity or child
support proceedings, is grounds for the denial, suspension or revocation of a
private entity’s license to produce marijuana in accordance with Section
40-5A-6 of the Parental Responsibility Act.
[7.34.4.11 NMAC - N,
12/15/2008]
7.34.4.12 PROHIBITIONS,
RESTRICTIONS AND LIMITATIONS ON THE PRODUCTION OF MEDICAL USE MARIJUANA AND
CRIMINAL PENALTIES:
A. Participation
in a medical use of marijuana licensing program by a licensed producer, or the
employees of a licensed producer, does not relieve the producer or employee
from criminal prosecution or civil penalties for activities not authorized in this
rule and the act.
B. Distribution of
medical marijuana to qualified patients or their primary caregivers shall take
place at locations that are designated by the department and that are not
within three hundred feet of any school, church or daycare center.
C. Fraudulent misrepresentation: Any
person who makes a fraudulent representation to a law enforcement officer about
the person’s participation in a medical cannabis program to avoid arrest or
prosecution for a marijuana-related offense is guilty of a petty misdemeanor
and shall be sentenced in accordance with the provisions of Section 31-19-1 et
seq. NMSA 1978.
D. Unlawful distribution: If a licensed
producer or employee of a licensed producer sells, distributes, dispenses or
transfers marijuana to a person not approved by the department pursuant to this
rule and the act, or obtains or transports marijuana outside New Mexico in
violation of federal law, the licensed producer or employee of the licensed
producer shall be subject to arrest, prosecution and civil or criminal
penalties pursuant to state law.
E. Revocation of registry identification card,
licensed primary caregiver card, license to produce or distribute:
Violation of any provision of this rule may result in the immediate revocation
of any privilege granted under this rule and the act.
[7.34.4.12 NMAC - N,
12/15/2008]
7.34.4.13 MONITORING
AND CORRECTIVE ACTIONS:
A. Monitoring:
(1) The department or its
designee may perform on-site assessments of a licensed producer to determine
compliance with these rules. The department may enter a facility at any time to
assess or monitor.
(2) Twenty-four (24)
hours notice will be provided to licensed producers who are qualified patients
prior to an on-site assessment except when the department has a reasonable
suspicion to believe that providing notice will result in the destruction of
evidence or that providing such notice will impede the department’s ability to
enforce these regulations.
(3) The department may review any and all
employee, qualified patient or primary caregiver’s records or conduct
interviews with employees, qualified patients, primary caregivers or private
licensed producers for the purpose of determining compliance with these
requirements.
(4) All licensed
producers shall provide the department or the department’s designee immediate
access to any material and information necessary for determining compliance
with these requirements.
(5) Failure by the
licensed producer to provide the department access to the premises or
information may result in the revocation of the licensed producer’s license and
referral to state law enforcement.
(6) Any failure to adhere
to these rules documented by the department during monitoring may result in
sanction(s), including suspension, revocation, non-renewal or denial of
licensure and referral to state or local law enforcement.
(7) The department shall
refer non-frivolous complaints involving alleged criminal activity made against
a licensed producer to the appropriate New Mexico state or local authorities.
B. Corrective action:
(1) If violations of
these requirements are cited as a result of monitoring, the licensed producer
shall be provided with an official written report of the findings within seven
(7) business days following the monitoring visit.
(2) Unless otherwise
specified by the department, the licensed producer shall correct the violation
within five (5) calendar days of receipt of the official written report citing
the violation(s).
(3) The violation shall
not be deemed corrected until the department verifies in writing within seven
(7) calendar days of receiving notice of the corrective action that the
corrective action is satisfactory.
(4) If the violation has
not been corrected, the department may issue a notice of contemplated action to
revoke the producer‘s license.
C. Suspension of
license without prior hearing: In accordance with the Public Health Act,
Section 24-1-5 (H) NMSA 1978, if immediate action is required to protect the
health and safety of the general public, the qualified patient or primary
caregivers, the department may suspend the qualified patient, primary caregiver
or licensed producer’s license without notice.
(1) A licensee whose
license has been summarily suspended is entitled to a record review not later
than thirty (30) calendar days after the license was summarily suspended.
(2) The record review
requested subsequent to a summary suspension shall be conducted by the
administrative review committee.
(3) The administrative review committee shall
conduct the record review on the summary suspension by reviewing all documents
submitted by both licensee and the department.
(4) The sole issue at a
record review on a summary suspension is whether the licensee’s license shall
remain suspended pending a final adjudicatory hearing and ruling.
(5) A licensee given
notice of summary suspension by the division
may submit a written request for a record review. To be effective, the written request shall:
(a)
be made within thirty (30) calendar days, as determined by the postmark,
from the date of the notice issued by the department;
(b)
be properly addressed to the medical cannabis program;
(c)
state the applicant’s name, address, and telephone numbers;
(d)
provide a brief narrative rebutting the circumstances of the suspension,
and
(e)
such additional documentation must be included with the request for a
record review.
[7.34.4.13 NMAC - N,
12/15/2008]
7.34.4.14 SUMMARY
SUSPENSION, REVOCATION AND APPEAL PROCESS:
A. Revocation of producer license: Violation of any provision of this rule may
result in either the summary suspension of the producer’s license or a notice
of contemplated action to suspend or revoke the producer’s license, and all
lawful privileges under the act.
B. Grounds for revocation or suspension of
license, denial of renewal application for license. A license may be revoked or
suspended, and a renewal application may be denied for:
(1) failure to comply
with any provisions of these requirements;
(2) failure to allow a
monitoring visit by authorized representatives of the department;
(3) the discovery of
repeated violations of these requirements during monitoring visits.
C. Request for hearing: A producer whose
license has been summarily suspended or who has received a notice of
contemplated action to suspend or revoke may request a hearing, in addition to
a request for a record review, for the purpose
of review of such action. The appellant shall file the request for hearing
within thirty (30) calendar days of the date the action is taken or the notice
of contemplated action is received. The request shall include the following:
(1) a statement of the facts
relevant to the review of the action;
(2) a
statement of the provision of the act and the rules promulgated under the act
that are relevant to the review of the action;
(3) a
statement of the arguments that the appellant considers relevant to the review
of the action; and
(4)
any other evidence considered relevant.
D. Hearing process:
(1) All formal
adjudicatory hearings held pursuant to this regulation shall be conducted by a
hearing examiner duly appointed by the secretary.
(2) Except for telephonic hearings, hearings shall be conducted in
Albuquerque or, upon written request by an aggrieved person, in the place or
area affected.
(3) All hearings held pursuant to this section shall be open to the public.
(4) The hearing shall be recorded on audiotape or other means of sound
reproduction, or by a certified court reporter.
The decision as to the type of recording shall be at the discretion of
the department.
(5) Any
hearing provided for in this rule may be held telephonically, in the interest
of a speedy resolution.
E. The department shall schedule and hold the
hearing as soon as practicable, however; in any event no later than sixty (60)
calendar days from the date the department receives the appellant’s request for
hearing. The hearing examiner shall extend the sixty (60) day time period upon
motion for good cause shown or the parties shall extend the sixty (60) day time
period by mutual agreement. The department shall issue notice of hearing, which
shall include:
(1) a statement of the
time, place and nature of the hearing;
(2) a statement of the
legal authority and jurisdiction under which the hearing is to be held;
(3) a short and plain
statement of the matters of fact and law asserted;
(4) notice to any other
parties to give prompt notice of issues controverted in fact or law; and
(5) all necessary
telephone numbers if a telephonic hearing shall be conducted.
F. All parties shall be given the opportunity
to respond and present evidence and argument on all relevant issues.
G. Record of proceeding: The record of the
proceeding shall include the following:
(1) all pleadings,
motions and intermediate rulings;
(2) evidence received or
considered;
(3) a statement of
matters officially noticed;
(4) questions and offers
of proof, objections and rulings thereon;
(5) proposed findings and
conclusions; and
(6) any action
recommended by the hearing examiner.
H. A party may request a transcription of the
proceedings: The party requesting the transcript shall endure the cost of
transcription.
I. Procedures and evidence:
(1) A party may be represented by a person
licensed to practice law in New Mexico, a non-lawyer representative, or an
individual appellant may represent him or herself.
(2) The rules of evidence
as applied in the courts do not apply in these proceedings. Any relevant
evidence shall be admitted and such evidence shall be sufficient in itself to
support a finding if the evidence is reliable, regardless of the existence of
any statutory or common law rule that shall make admission of such evidence
improper in a civil action. Irrelevant, immaterial or unduly repetitious
evidence may be excluded by the hearing examiner at a party’s request or on the
hearing examiner’s own initiative.
(3) Documentary evidence
shall be received in evidence in the form of true copies of the original.
(4) Documentary and other
physical evidence shall be authenticated or identified by any reasonable means
that shows that the matter in question is what the proponent claims it to be.
(5) The experience,
technical competence and specialized knowledge of the hearing examiner, the
department or the department’s staff shall be used in the evaluation of
evidence.
(6) Evidence on which the
hearing examiner shall base his or her decision is limited to the following:
(a)
all evidence, including any records, investigation reports and documents
in the department’s possession of which the department desires to avail itself
as evidence in making a decision that is offered and made a part of the record
of the proceeding; and
(b)
testimony and exhibits introduced by the parties.
J. The record
shall include all briefs, proposed findings and exceptions and shall show the
ruling on each finding, exception or conclusion presented.
K. A party to a
hearing shall submit to the hearing examiner and to all other parties to the hearing
all documents to be introduced at the hearing no later than five (5) business
days from the scheduled hearing date to insure the hearing examiner and other
parties receive the documents prior to the hearing.
L. Conduct of proceeding: Unless the hearing
examiner reasonably determines a different procedure is appropriate, the
hearing shall be conducted in accordance with the procedures set forth in this
rule. The following procedures shall apply:
(1) the appellant shall
present an opening statement on the merits and the appellee shall make a
statement of the defense or reserve the statement until presentation of that
party’s case;
(2) after the opening
statements, if made, the appellant shall present its case in chief in support
of the appellant’s petition;
(3) upon the conclusion
of the appellant’s case, the appellee shall present its case in defense;
(4) upon conclusion of
the appellee’s case, the appellant shall present rebuttal evidence;
(5) after presentation of
the evidence by the parties, the appellant shall present a closing argument;
the appellee then shall present his or her closing argument and the appellant
shall present a rebuttal argument; and
(6) thereafter, the
matter shall be submitted for recommendation by the hearing examiner.
M. Burden of proof: The appellant bears
the burden of showing by a preponderance of the evidence that the decision made
by the department or an agent of the department shall be reversed or modified.
N. Continuances: The hearing examiner
shall not grant a continuance except for good cause shown. A motion to continue
a hearing shall be made at least ten (10) calendar days before the hearing
date.
O. Telephonic hearings:
(1) Any party requesting
a telephonic hearing shall do so within ten (10) business days of the date of
the notice. Immediately after the parties agree to conduct the hearing by telephone;
notice of the telephonic hearing shall be made to all parties and shall include
all necessary telephone numbers.
(2) Any party that has
agreed to a telephonic hearing, but subsequently requests an in-person hearing
shall do so in writing to the hearing examiner no later than ten (10) calendar
days before the scheduled date of the hearing. The decision to grant or deny
the request for an in-person hearing shall be at the discretion of the hearing
examiner for good cause shown. The hearing examiner’s decision to grant or deny
the hearing shall be issued in writing and shall include the specific reasons
for granting or denying the request. Should the hearing examiner grant the
request, the hearing shall be rescheduled to a time convenient for all parties.
Should the hearing examiner deny the request, the telephonic hearing shall
proceed as scheduled.
(3) The location or
locations of the parties during the hearing shall have a speaker telephone and
facsimile machine available so that all shall hear the proceedings and
documents shall be transmitted between witnesses and the hearing examiner.
(4) The appellee shall
initiate the telephone call. The appellant is responsible for ensuring the
telephone number to the appellant’s location for the telephonic hearing is
accurate and the appellant is available at said telephone number at the time
the hearing is to commence. Failure to provide the correct telephone number or
failure to be available at the commencement of the hearing shall be treated as
a failure to appear and shall subject the petitioner to a default judgment.
(5) The in-person
presence of some parties or witnesses at the hearing does not prevent the participation
of other parties or witnesses by telephone with prior approval of the hearing
examiner.
P. Recommended action and final decision:
(1) At the request of the
hearing examiner or upon motion by either party granted by the hearing examiner
and before the hearing examiner recommends action by the secretary, the parties
shall submit briefs including findings of fact and conclusions of law for
consideration by the hearing examiner. The hearing examiner holds the
discretion to request briefs or grant a motion to submit briefs on any point of
law deemed appropriate by the hearing examiner. Briefs submitted shall include
supporting reasons for any findings or legal conclusions and citations to the
record and to relevant law. Should the hearing examiner request briefs or grant
a party’s motion to submit briefs, the hearing shall be continued until the
hearing examiner has given the briefs sufficient consideration and brings the
hearing to a close. The hearing, however, shall be completed no later than
forty-five (45) calendar days from the date of continuance.
(2) No more than thirty
(30) calendar days after completion of the hearing, the hearing examiner shall
prepare a written decision containing his or her recommendation of action to
taken by the secretary. The recommendation shall propose to sustain, modify or
reverse the initial decision of the department or the department’s agent.
(3) The secretary shall
accept, reject or modify the hearing examiner’s recommendation no later than
ten (10) calendar days after receipt of the hearing examiner’s recommendation.
The final decision or order shall be issued in writing and shall include a
statement of findings and conclusions and the reasons thereof, on all material
issues of fact, law or discretion involved, together with the specific action
taken to sustain, modify or reverse the initial decision of the department or
the department’s agent. Service shall be made by registered or certified mail.
(4) The final decision or
order shall be public information and shall become a part of the record.
[7.34.4.14 NMAC - N,
12/15/2008]
7.34.4.15 EXEMPTION
FROM STATE CRIMINAL AND CIVIL PENALTIES FOR THE MEDICAL USE OF MARIJUANA:
A. No licensed
producer or employee of the licensed producer, qualified patient licensed as a
producer or licensed primary caregiver shall be subject to arrest, prosecution
or penalty, in a manner for the production, possession, distribution or
dispensing of marijuana in accordance with this rule and the act.
B. Any property
interest that is possessed, owned or used in connection with the production of
marijuana or acts incidental to such production shall not be harmed, neglected,
injured or destroyed while in the possession of state or local law enforcement
officials. Any such property interest shall not be forfeited under any state or
local law providing for the forfeiture of property except as provided in the
Forfeiture Act. Marijuana, paraphernalia or other property seized from a
qualified patient or primary caregiver in connection with the claimed medical
use of marijuana shall be returned immediately upon the determination by a
court or prosecutor that the qualified patient or primary caregiver is entitled
to the protections of the provisions of this rule and act as shall be evidenced
by a failure to actively investigate the case, a decision not to prosecute, the
dismissal of charges or acquittal.
[7.34.4.15 NMAC - N,
12/15/2008]
7.34.4.16 LICENSED
PRODUCER CONFIDENTIALITY: The department shall maintain a confidential
file containing the names, addresses and telephone numbers of the persons who
have either applied for or received a registry identification card or license
for the purpose of producing marijuana for medical use. Individual names on the
list shall be confidential and not subject to disclosure, except:
A. to authorized
employees or agents of the department as necessary to perform the duties of the
department pursuant to the provisions of this rule and the act;
B. to authorized
employees of state or local law enforcement agencies, but not only for the
purpose of verifying that a person is lawfully in possession of the license to
produce; or
C. as provided in
the federal Health Insurance Portability and Accountability Act of 1996.
[7.34.4.16 NMAC - N,
12/15/2008]
7.34.4.17 DISPOSAL
OF UNUSED MARIJUANA: Unused marijuana in the possession of the
licensed producer may be disposed of by transporting the unused portion to a
state or local law enforcement office.
[7.34.4.17 NMAC - N,
12/15/2008]
7.34.4.18 ASSESSMENT
REPORT: The department shall evaluate the
implementation of the Lynn and Erin Compassionate Use Act and regulations
issued pursuant to that act and provide a report to the secretary of the
department within one year of the effective date of these regulations. In performing its evaluation, the department
shall focus on whether the needs of qualified patients are being met by the
department’s administration of the act and whether there is a demonstrable need
for a state run production and distribution facility. The department’s assessment report shall be
issued every two years, shall be a public document, and must contain
de-identified data upon which the assessment is based.
[7.34.4.18 NMAC - N,
12/15/2008]
7.34.4.19 SEVERABILITY: If
any part or application of these rules is held to be invalid, the remainder or
its application to other situations or persons shall not be affected. Any section
of these rules legally severed shall not interfere with the remaining
protections provided by these rules and the act.
[7.34.4.19 NMAC - N,
12/15/2008]
HISTORY OF 7.34.4 NMAC:
[RESERVED]