On June 28, 2019, Governor Michelle Lujan Grisham announced the creation of a Cannabis Legalization Working Group. The task force will consist of at least 19 members including the Democratic and Republican legislators who sponsored unsuccessful legislation this year to authorize and tax recreational marijuana sales at state run stores. The group also includes representative of a labor union, sheriff’s department, health care business, Native American tribes, medical cannabis businesses, a county government association, and commercial bank and hospital company. Albuquerque City Councilor Pat Davis has been appointed the Chairman of the cannabis legalization working group.
The Working Group or Task Force will make recommendations to the governor that will be incorporated into proposed legislation to be introduced in the 2020 legislative session. Governor Lujan Grisham said after the Legislature adjourned on March 21, 2019 that she would add the issue of legalizing recreational marijuana use to the agenda of next year’s 30-day session.
Eleven states thus far have legalized recreational marijuana. Candidate for Governor Lujan Grisham said last year that she supports legalizing the recreational use of marijuana for adults but with a few caveats: it must be done in a way that addresses workplace intoxication and driving under the influence and it must be done in a way that keeps it away from children and meet other requirements of regulation, production, sale and distribution.
Governor Lujan Grisham in announcing the task force had this to say:
“I want New Mexico’s introduction and management of recreational cannabis to be the envy of the country … We can and will incorporate lessons learned from other states so that New Mexico provides for a well-regulated industry that, crucially, does not infringe on or harm our expanding medical cannabis program, upon which so many New Mexicans rely.”
Legalization of recreational marijuana has proven to very lucrative for the 11 states that have done so. It has also increased problems for those states. Governor Lujan Grisham suggested that revenue generated by legalizing recreational marijuana use and taxing its sales could be used at least in part to bolster New Mexico’s mental health treatment system.
SHORT LEGAL HISTORY OF RECREATIONAL USE OF MARIJUANA LAWS
Since 1970 the federal government has classified marijuana as an illegal Schedule I Control Substance, making it illegal to produce, possess and sell marijuana. However, voters have had a chance to weigh in on state legalization of marijuana in multiple states.
The first state to legalize medical marijuana was California in 1996. In 2007, New Mexico enacted laws allowing the medical use of marijuana, but not the recreational use. As of 2018, the most recent defeat of a medical marijuana measure was in Florida in 2014.
As of 2019, 33 states and Washington, D.C., have passed laws legalizing or decriminalizing medical marijuana. 13 states have legalized the use of cannabis oil, one of the non-psychoactive ingredients found in marijuana, for medical purposes. Seventeen of the states that have legalized medical marijuana did so through citizen-initiated ballot measures, and the other 16 did so through legislative action.
2012 is when the first states legalized marijuana for recreational use in state law. As of 2019, in nine states voters have approved ballot measures to legalize the recreational use of marijuana and Vermont legalized recreational marijuana through legislative action.
2019 NEW MEXICO LEGISLATURE’S ATTEMPTS TO LEGALIZE RECREATIONAL USE OF MARIJUANA
Attempts to legalize recreational marijuana use in New Mexico have been extremely difficult during the last 8 years, predominately because of strong opposition from the former Republican Governor “She Who Must Not Be Named” and those conservative Republican and Democrat legislators who should be named. During the 2019 New Mexico Legislature which ended March 15, 2019, that changed with the election of Governor Mitchell Lujan Grisham and the most progress was made when one bill actually made it through the New Mexico House of Representatives.
HOUSE BILL 356
On March 7, 2019 the state House passed House Bill 356 (HB 356) with a two-vote majority of 36 to 34. HB 356 was the first recreational marijuana proposal ever passed by one of New Mexico’s legislative chambers. HB 356 was legislation that was the result of bipartisan efforts and talks involving House Democrats and Senate Republicans. Every Republican Representative in the House voted against HB 356 joining 10 Democrats in opposition to it. All previous efforts of marijuana legalization have failed in the Senate because of skepticism from conservative Democrats in the Senate.
HB 356 bill included a provision for state run and regulated stores. The compromise bill required people to keep receipts showing they purchased their marijuana legally, and they could carry only 1 ounce of cannabis and couldn’t grow it on their own. House Bill 356 was a broad marijuana legalization proposal and dedicated some of the tax revenue from cannabis sales to research into cannabis impairment, purchasing roadside testing equipment for law enforcement and to train police officers as drug recognition experts when drivers are stopped. The bill made it clear that employers could still maintain drug-free workplace policies.
The bipartisan HB 356 stalled in the Senate and never made it to the full Senate for passage. The legislation failed when the session was adjourned on March 21, 2019.
SENATE BILL 577
Senate Bill 577 was the New Mexico Senate’s version of legislation that would legalize the recreational use of marijuana. It included state run stores. The 3 Republican Senator sponsors Cliff Pirtle, Mark Moors and Craig Brandt argue that legalization is inevitable and that state-run stores would help limit exposure to children and allow New Mexico regulators to respond to problems. State run stores appealed to many because it would have given the state strong regulatory controls and make it easier to keep cannabis products away from children.
Under the Senate proposed legislation, New Mexico itself would get into the cannabis business by operating a network of retail stores to sell marijuana to adults 21 and older. A state “Cannabis Control Commission” would have been created to operate cannabis shops by summer 2020. The marijuana would have been sold on consignment, meaning the state would not own the cannabis.
Under the Senate Bill, recreational marijuana would have been grown by private businesses under a complex regulatory system and sold only at state-run stores, with limited exceptions. It would have given the state tremendous control over where and how the products would have been sold and who could have gotten their product to customers. According to the Drug Policy Alliance, the system proposed for state run recreational cannabis stores would have been the first of its kind for recreational marijuana in the United States.
Senate Bill 577 never made it through the State Senate and the legislation failed when the session was adjourned on March 21, 2019.
CHANGES MADE TO NEW MEXICO’S MEDICAL CANNABIS LAW
There are over 70,000 people enrolled statewide in New Mexico’s medical cannabis program. During the 2019 New Mexico Legislative session, the legislature enacted changes to the medical cannabis laws giving more workplace protections to those enrolled in the program. In April, 2019, Governor Lujan Grisham signed into law the changes made by the legislature to the program and the changes took effect on July 1, 2019.
Two of the major changes involve work place protections for those enrolled in the program and are:
1. The law now provides that it is unlawful in most circumstances for an employer to fire or otherwise discipline a worker based on allowable conduct under the state’s medical marijuana program. It is not clear whether this change in the law will affect employers with policies that require drug testing of applicants before they are hired, with a positive test precluding their hiring regardless of whether they have a medical marijuana card.
2. The second major change to the law specifies that employers can still establish policies barring use of medical marijuana on the job or showing up under the influence of the drug and take action against employees who violate the policy. Concern has been raised in the business community that anything that would limit an employer’s ability to enforce their drug-free workplace programs would be problematic.
New Mexico State Senator Jerry Ortiz y Pino, the sponsor of the legislation, said in an Albuquerque Journal interview the changes are not intended to render drug-free workplace policies untenable, but acknowledged lawmakers may have to revisit the issue in the future to further fine-tune language in the law.
Three other major changes to New Mexico’s medical cannabis law include:
1. Allowing medical marijuana in schools, under certain circumstances.
2. Extending the length of an approved patient identification card from one year to three years.
3. Mandating that a licensed medical marijuana user cannot be denied an organ transplant on the basis of their participation in the program.
NEW MEXICO REDUCES CRIMINAL PENALTIES
During the 2019 New Mexico legislative session, lawmakers enacted legislation that reduces criminal penalties for possession of small amounts of marijuana. In April 2019, Governor Lujan Grisham signed into law Senate Bill 323 that makes first-time possession of up to a half ounce a petty misdemeanor offense, punishable by a $50 fine. It also decriminalizes possession of drug paraphernalia, making New Mexico the first state to do so in the country. The reduced criminal penalties go into effect on July 1, 2019.
COMMENTARY AND ANALYSIS
Albuquerque City Councilor Pat Davis has been appointed the Chair of the Cannabis Legalization Working Group. Pat Davis has a reputation as opportunist and always promoting himself and his own personal political agenda. Last year, Davis ran for US Congress in the First Congressional District but withdrew from the race when he polled at 3% and could not raise the money to run a viable campaign. Before Davis withdrew from the congressional race, Davis accused the then Democrat front runner of being a “racist” which was an absolute lie and he has never apologized for it. While he served on the City Task Force formed to propose changes to the City Public Finance law, Davis declined to advocate meaningful changes to Albuquerque’s public finance laws making it easier for candidates to qualify for public finance. The only change Davis agreed to was increasing the amount of money candidates get and not the process of collecting the donations to qualify and not expanding the time to collect qualifying donations.
The likelihood of the success of the task force should be considered high given the fact that it appears bipartisan and will consist of at least 19 state lawmakers, Cabinet secretaries, law enforcement officials and medical marijuana executives that will study other states’ experiences with legalizing cannabis use. The task force members consist of people that have actually worked on the issue of marijuana legalization and legislation on a statewide basis, they understand it completely and how the New Mexico legislature operates. You cannot say the same for the appointed chair of the task force. A member of the legislature such as State Senator Jerry Ortiz y Pino who has an understanding of the issue should be appointed to chair the task force.
With the creation and appointment of the Cannabis Legalization Working Group Governor Michelle Lujan Grisham is laying the groundwork for a legalization bill to make it to her desk in 2020. With over 6 months before the 2020 legislative session starts in January, it is very likely that the task force will be able to come up with a framework for a few proposed bills ready to go by late November, giving enough time for interim legislative committees to review the proposals and perhaps even finding sponsors.
One major option that should be considered is placing the issue on the ballot for voters to decide, which has been done in other states. Further, the task force will provide the opportunity to fine tune the language in the medical cannabis laws giving more workplace protections to those enrolled in the program so as not to render drug-free workplace policies untenable.
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