State: City Can't Regulate Medical Marijuana

By Steve Lynn | Published by The Daily Times

The city says it will quickly develop zoning regulations on medical marijuana during its six-month moratorium, but the state contends the city lacks the authority to regulate.

The New Mexico Department of Health is the agency tasked with regulating medical marijuana throughout the state, department spokeswoman Deborah Busemeyer said.

“It doesn’t appear as if local municipalities have any legal authority over that system,” Busemeyer said. “The state is in charge of approving producers and we will continue to do so as needed. The moratorium I don’t think would affect our decisions.”

City councilors approved a moratorium Tuesday on issuing business licenses and land-use approvals for medical marijuana producers. The decision came after the nonprofit organization New Mexico Alternative Care contacted the city proposing to locate a marijuana producer in Farmington.

A phone number for New Mexico Alternative Care wasn’t publicly listed.

Busemeyer declined to say whether the department of health was processing the producer’s request because the agency does not disclose names of producers, applicants or their exact location.

A law passed by state legislators in 2007 authorized medical marijuana. New Mexico has 17 growers, six of them licensed last month.

The department only publicly names counties in which producers are located, she said. One producer is licensed to operate in San Juan County.

The department of health does not require producers

to have a business license and already has zoning requirements for facilities, she said.

“We don’t have any authority over Farmington issuing business permits,” she said. “That’s their jurisdiction. Medical marijuana is our jurisdiction.”

Similar to a city ordinance that regulates places that can serve alcohol, state law bars producers from distributing marijuana within 300 feet of a school, church or day care center.

City officials said state law authorized it to make rules.

City Attorney Jay Burnham explained that the moratorium was temporary until the city can change its laws to establish proper zoning for producers and “not for any other purpose.”

The city isn’t going to change any codes to undermine state law regarding distances from certain facilities, such as schools and churches, he said.

“We’re not going to do anything that conflicts with state law,” he said. “The reason we declared the moratorium is the city’s Unified Development Code does not address these and we just want to amend the ordinance so that they can be allowed and just provide which zoning districts that they would be allowed in.”

Members of the city’s Unified Development Code Committee will meet to discuss medical marijuana zoning regulations in January, said Mary Holton, the city’s Community Development director.

“All we’re doing is looking at it from a zoning aspect,” Holton said. “We are given authority by state statutes to zone.”

Regardless of where medical marijuana authority lies, San Juan County residents who rely on the drug for treatment of their illnesses are caught in the middle.

Kristina Sells, owner of New Mexico Green Light in Aztec, said she doesn’t think Farmington’s moratorium will affect her business, which connects patients with a doctor and lawyer to ease their transition into medical marijuana.

But she is concerned about patients who need the drug. She accepts that a moratorium might be necessary for the city’s research, but questioned why it would take six months.

“It’s not going to take six months to figure that all out,” she said.

The department of health approved San Juan County’s first producer last month, but Sells believes it won’t open until February. Meanwhile, patients will continue driving outside the county for the drug.

Or they might buy marijuana off the street.

“That’s dangerous, because you don’t know what it is,” she said. “The best bet is to have a legal, open dispensary with restrictions set up according to regulations by the state. The patients need to get their medications.”

Holton has said the city could take time to update its codes, but that officials would move as quickly as possible.