Chapter 18.100
CANNABIS
Sections:
18.100.030 General requirements.
18.100.040 Establishing business registration.
18.100.050 General licensing requirements.
18.100.060 Allowable land use zoning.
18.100.070 Specific requirements regarding the premises.
18.100.080 Delivery permit restrictions.
18.100.090 Changes to license.
18.100.100 Cultivation and growing for personal use.
18.100.110 Establishment of new fees and renewal fees for all licenses.
18.100.120 Revocation of license.
18.100.010 Purpose.
This chapter is adopted to protect the health, safety, and welfare of the community. Except as allowed by NMCRA and its pertinent laws or regulations for personal or private use, the town of Mesilla enacts reasonable regulations and requires compliance with the NMCRA and its pertinent laws or regulations. [Ord. 2021-02 § 1]
18.100.020 Definitions.
A. “Adjacent grounds” means all areas that a cannabis licensee has an exclusive right to possess by virtue of his or her ownership or lease, which are outside the enclosed licensed premises, but adjacent and contiguous to the licensed premises, including but not limited to porches, patios, decks, entryways, lawns, parking lots, and similar areas and all fixed and portable things in those areas, including but not limited to lights, signs, speakers, and security devices.
B. “Character and record” includes all aspects of a person’s character and public record, including but not limited to criminal record; serious traffic offenses; record of previous sanctions against liquor licenses; gambling licenses, or cannabis licenses, which the person owned, in whole or in part, or in which the person served as a principal, manager, or employee; education; training; experience; civil judgments; and financial responsibility.
C. “Cannabis” means all parts of the plant genus Cannabis containing a delta-9 tetrahydrocannabinol concentration of more than three-tenths percent on a dry weight basis, whether growing or not; the seeds of the plant; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds, or its resin; and does not include:
1. The mature stalks of the plant; fiber produced from the stalks; oil or cake made from the seeds of the plant; any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks, fiber, oil or cake; or the sterilized seed of the plant that is incapable of germination; or
2. The weight of any other ingredient combined with cannabis products to prepare topical or oral administrations, food, drink, or another product.
For the purpose of this chapter, the term “cannabis” includes both recreational and medical cannabis and all related cannabis derived products.
D. “Cannabis consumption area” means an area where cannabis products may be served and consumed.
E. “Cannabis courier” means a person that transports cannabis products to qualified patients, primary caregivers or reciprocal participants or directly to consumers.
F. “Cannabis establishment” means:
1. A single retail location where the licensee may sell cannabis and cannabis-infused products to consumers, including edibles. It includes both recreational and medical cannabis.
2. An off-site manufacturing and production facility at which the licensee may manufacture and produce cannabis and cannabis-infused products, which are not sold on location but are sold or transferred to consumers at other locations. It includes both recreational and medical cannabis.
3. A cultivation facility at which the licensee may grow or cultivate cannabis and cannabis-infused products, which are not sold on location but are sold or transferred to consumers at other locations. It includes both recreational and medical cannabis.
4. A combined retail, production, and manufacturing location where the licensee may produce and manufacture cannabis and cannabis infused products, including edibles, and sell these products to consumers at the same location. It includes both recreational and medical cannabis.
G. “Immature cannabis plant” means a cannabis plant that has no observable flowers or buds.
H. “Cannabis, mature plant” means a female cannabis plant in the flowering stage.
I. “Cannabis manufacturer” means a person that: (1) manufactures cannabis products; (2) packages cannabis products; (3) has cannabis products tested by a cannabis testing laboratory; or (4) purchases, acquires, sells or transports wholesale cannabis products to other cannabis establishments.
J. “Cannabis producer” means a person that:
1. Cultivates cannabis plants;
2. Has unprocessed cannabis products tested by a cannabis testing laboratory;
3. Transports unprocessed cannabis products only to other cannabis establishments; or
4. Sells cannabis products wholesale.
K. “Cannabis producer microbusiness” means a cannabis producer at a single licensed premises that possesses no more than 200 total mature cannabis plants at any one time.
L. “Cannabis product” means a product that is or that contains cannabis or cannabis extract, including edible or topical products that may also contain other ingredients.
M. “Cannabis research laboratory” means a facility that produces or possesses cannabis products and all parts of the plant genus Cannabis for the purpose of studying cannabis cultivation, characteristics or uses.
N. “Cannabis retailer” means a person that sells cannabis products to qualified patients, primary caregivers, or reciprocal participants or directly to consumers.
O. “Cannabis testing laboratory” means a person that samples, collects, and tests cannabis products and transports cannabis products for the purpose of testing.
P. “Complaint” means a document filed with the town seeking sanctions against a cannabis business license.
Q. “Contiguous” means located within the same building as the cannabis establishment, located in a separate building on the same parcel of land as the cannabis establishment, or located in a separate building on a separate parcel of land that is adjacent to and shares at least 50 percent of a common lot line with the lot on which the cannabis establishment is located.
R. “Daycare” means a facility required to be licensed by the state of New Mexico that provides care, services, and supervision for less than 24 hours a day to children.
S. “Employee” means the licensee’s or proposed licensee’s employees, including both part-time and full-time employees.
T. “Harm” or “harmful to public health, safety or welfare” means any matter that adversely affects the health, safety, or welfare of any person or group of persons within the town, including but not limited to matters related to crime, lighting, security, traffic, graffiti, litter, parking, and noise. Any violation of any criminal statute or ordinance is per se substantially harmful to public health, safety, and welfare, without any showing of actual or threatened harm. The mere possession, advertising, sale, cultivation, processing, smoking, or ingestion of cannabis or cannabis infused products, when performed lawfully, shall not in itself be considered harmful to public health, safety, and welfare.
U. “Integrated cannabis microbusiness” means a person that is authorized to conduct one or more of the following:
1. Production of cannabis at a single licensed premises; provided, that the person shall not possess more than 200 total mature cannabis plants at any one time;
2. Manufacture of cannabis products at a single licensed premises;
3. Sales and transportation of only cannabis products produced or manufactured by that person;
4. Operation of only one retail establishment; and
5. Couriering of cannabis products to qualified patients, primary caregivers, or reciprocal participants or directly to consumers.
V. “Public place” means a place to which the general public has access and includes hallways, lobbies and other parts of apartment houses and hotels that do not constitute rooms or apartments designed for actual residence; highways; streets; schools; places of amusement; parks; playgrounds; and places used in connection with public passenger transportation.
W. “Issue a business license” means to issue the town’s local license upon an applicant after the applicant successfully obtains a license to operate a cannabis business from the state of New Mexico. Granting of the local license shall be subject to the applicant’s satisfactory compliance with the town’s application requirements, so long as such requirements are not inconsistent with applicable state law. Issuance gives the licensee the ability to operate a cannabis facility within the town boundaries; provided, that the licensee maintains a proper valid license to operate a cannabis business from the state of New Mexico.
X. “License” under this chapter means a local business license issued by the town of Mesilla for the sale, production, manufacturing, cultivation, or transport of cannabis or cannabis-infused products.
Y. “Licensee” means the person or entity holding a local town cannabis business license under this chapter.
Z. “Licensed premises” means the area inside a building in which the cultivation, manufacture, processing, infusion, possession, weighing, display, packaging, sale, and exchange of cannabis and cannabis infused products is licensed under this chapter.
AA. “Lynn and Erin Compassionate Use Act” means NMSA 26-2B-1 through 26-2B-7.
BB. “School” means that part of a school district that is a single attendance center in which instruction is offered by one or more teachers and is discernible as a building or group of buildings generally recognized as either an elementary, middle, junior high or high school or any combination of those and includes private and/or charter schools.
CC. “Vertically integrated cannabis establishment” means a person that is authorized to act as any of the following:
1. A cannabis courier;
2. A cannabis manufacturer;
3. A cannabis producer; and
4. A cannabis retailer.
DD. “Serious traffic violation” means (1) excessive speeding, as defined by the Secretary by regulation; (2) reckless driving, as defined under state or local law; (3) a violation of a state or local law on motor vehicle traffic control (except a parking violation) and involving a fatality; (4) driving a commercial motor vehicle when the individual has not obtained a commercial driver’s license; (5) driving a commercial motor vehicle when the individual does not have in his or her possession a commercial driver’s license unless the individual provides, by the date that the individual must appear in court or pay any fine with respect to the citation, to the enforcement authority that issued the citation proof that the individual held a valid commercial driver’s license on the date of the citation; (6) driving a commercial motor vehicle when the individual has not met the minimum testing for the specific class of vehicle the individual is operating, or for the type of cargo the vehicle is carrying; and (7) any other similar violation of a state or local law on motor vehicle traffic control (except a parking violation) that the state designates by regulation as serious.
EE. “Person” means any natural person and any entity.
FF. “Principal” means:
1. In the case of any entity, including any general or limited partnership, corporation, limited liability company, or other entity: any person who has a five percent or greater interest in the ownership of the entity, and any person who has the day-to-day authority to or actually does manage the entity’s finances.
2. In the case of a corporation: the persons described as a representative or applicant for any entity and the president, vice president, secretary, chief executive officer, chief financial officer, and any person who holds five percent or more of the capital stock of the corporation.
3. In the case of a limited liability company: the persons described as a representative or applicant for any entity and any member of the limited liability company.
4. In the case of a sole proprietorship, the individual owner. [Ord. 2021-02 § 2(1)]
18.100.030 General requirements.
A. It shall be unlawful to use, sell, manufacture, cultivate, produce, or distribute cannabis in a public place located within the town of Mesilla.
B. Cannabis establishments shall not allow a person to consume cannabis on site, or on adjacent grounds, with the exception of those establishments which maintain a valid license to operate a cannabis consumption area, as defined by the Cannabis Regulation Act.
C. Cannabis establishments shall provide for proper and secure disposal of all cannabis products and byproducts, consistent with the Cannabis Regulation Act, and shall comply with the town’s regulations regarding rubbish and discharges into the municipal wastewater system.
D. Cannabis establishments must store all cannabis and cannabis products in a designated limited access area, as set forth by the rules and regulations adopted by the Cannabis Control Division of the New Mexico Department of Regulation and Licensing, to ensure they are not visible from a public place. [Ord. 2021-02 § 2(2)]
18.100.040 Establishing business registration.
The town of Mesilla shall have the following powers and authority:
A. To issue, deny, revoke, or renew a town business license for cannabis businesses, and where necessary, to conduct public hearings related thereto.
B. To impose any sanctions on a cannabis business licensed to operate within town boundaries, including revocation, upon its own authority and initiation, or in response to a complaint by any person for any violation by the licensee after investigation and a public hearing, at which the licensee shall be afforded an opportunity to be heard. Such hearings will allow for the presentation of evidence by the licensee and town staff, and will be followed by the adoption of formal findings and conclusions.
C. To adopt application forms, fees, and submission requirements for a town cannabis business license.
D. No person or business may operate a cannabis establishment within the town without first obtaining a town cannabis business license.
E. All licenses will be administered and approved by the town; provided, that the applicant has met all conditions and requirements established herein.
F. Upon issuance, the town’s cannabis business license shall be displayed on the licensed premises and be visible to public view.
G. Registration shall be renewed by June 30th annually. [Ord. 2021-02 § 2(3)]
18.100.050 General licensing requirements.
To obtain a town cannabis business license under this chapter, each successful applicant shall demonstrate the following:
A. The proposed licensed premises and adjacent grounds satisfy all requirements for issuance of a state of New Mexico cannabis license and all applicable laws and regulations.
B. The applicant demonstrates proof of submittal for a valid state of New Mexico cannabis license. After licensure is obtained, a copy of the certificate from the state of New Mexico must be submitted as part of the file.
C. The applicant has met all requirements, including payment of any applicable taxes and fees, both state and local.
D. The applicant has obtained a separate town business license for any other business activity that will also be operated on the licensed premises and paid all applicable license fees.
E. The premises are not licensed or operated as an establishment for the sale or service of alcoholic beverages, or as a massage parlor, a dance hall, adult business, firearm retailer or an amusement facility.
F. The applicant has applied for a town cannabis business license on the established forms, that the community development coordinator or designee has determined is complete.
G. Retail cannabis establishments and Class I and/or II manufacturers, as defined in the Cannabis Regulation Act must operate on or within property zoned or used as historical commercial (H-C) zone (Chapter 18.40 MTC) or general commercial (C) zone (Chapter 18.45 MTC). Cannabis businesses and license holders other than retail and Class I and/or II manufacturers may not operate within these zones.
H. Classes III and IV manufacturers and cannabis producers, including those producers who cultivate for medical or commercial use (nonpersonal use), either independently or as part of a vertically integrated cannabis license, must operate on or within property zoned or used as rural farm (RF) zone (Chapter 18.20 MTC) or residential/agricultural (RA) zone (Chapter 18.25 MTC) or single-family residential (R-1) zone (Chapter 18.30 MTC), or as otherwise specified in the town’s land use and zoning regulations, including those uses subject to a special use permit.
I. All applicants must demonstrate adequate water resources and applicable permits, as approved by the town, or as required under the laws of the state of New Mexico.
J. The applicant must demonstrate that the location of the proposed licensed premises is no less than 300 feet from any other licensed cannabis establishment. Measurements shall be made from any wall of the two proposed or existing licensed premises. Nothing herein prohibits multiple licenses from operating from a single premises.
K. If applying for a consumption license, the applicant must demonstrate that the cannabis consumption area is more than 300 feet from a residential zone district.
L. Alcohol consumption in a cannabis consumption area is prohibited.
M. The applicant must demonstrate that the proposed licensed premises are not located within 300 feet of any school or daycare facility. The distances referred to in this subsection are to be computed by direct measurement from the nearest property line of the land used for a school or campus, to the nearest portion of the lot that is the situs of the building that is proposed for a licensed premises.
N. Hours of operation shall be limited to the hours between 8:00 a.m. and 12:00 a.m. Monday through Saturday and 12:00 p.m. to 12:00 a.m. on Sundays. Deliveries shall be limited to the hours between 8:00 a.m. and 6:00 p.m.
O. The applicant for a town cannabis business license, principals, registered manager, and employees must meet all requirements under New Mexico State law.
P. The applicant, principals, registered manager, and employees must be at least 21 years of age.
Q. The applicant, principals, registered manager, and employees all hold valid occupational licenses and registrations as required by the state of New Mexico, including all applicable cannabis licenses. [Ord. 2021-02 § 2(4)]
18.100.060 Allowable land use zoning.
A. Historic residential (H-R) zone (Chapter 18.35 MTC) and single-family residential (R-1) zone (Chapter 18.30 MTC): private property consumption, and cultivation of up to six mature and six immature plants per household.
B. Single-family residential (R-1) zone (Chapter 18.30 MTC) (if ancillary to the single-family home): cannabis producer microbusiness.
C. Residential/agricultural (RA) zone (Chapter 18.25 MTC) and rural farm (RF) zone (Chapter 18.20 MTC): allows for cultivation, cannabis testing laboratory, cannabis producer, cannabis testing laboratory, vertically integrated cannabis establishment, cannabis training and education.
D. General commercial (C) zone (Chapter 18.45 MTC) and historic commercial (H-C) zones (Chapter 18.35 MTC): cannabis retail. Cannabis manufacturer – Class I and Class II only allowed in this zone. Cannabis consumption area with a special use permit only.
E. Special use permits may be applied for as described in Chapter 18.85 MTC, Variances and Special Use Permits. [Ord. 2021-02 § 2(5)]
18.100.070 Specific requirements regarding the premises.
A. The proposed licensed premises must be located within in a fixed, permanent, nonportable building and shall not be within a movable or mobile structure or in a vehicle, nor is it operated as a home occupation under town regulations.
B. The size of the premises is compatible and compliant with the applicable zoning district limitations regarding square footage for that zone.
C. The applicant must have sole legal control of the proposed licensed premises at the time the application is submitted, under a lease that is presently in effect or through present ownership of the proposed licensed premises as shown by a deed or other instrument of record. The applicant must show proof that the lessor has agreed to use of the premises as a cannabis establishment.
D. All storage, dispensing, manufacture, production, and cultivation activities shall be conducted indoors in a building meeting the requirements of subsection (A) of this section.
E. Cannabis and cannabis products shall not be visible from a public place and shall instead be placed within a designated limited access area.
F. Sign regulations are governed by the zone of which the license shall be issued.
G. The proposed licensed premises have a designated limited access area where the cultivation, display, storage, processing, weighing, handling, and packaging of cannabis and cannabis infused products occurs, which is posted “employees only,” and is separated from the areas accessible to the public by a wall, counter, or some other substantial barrier designed to keep the public from entering the area.
H. The applicant has submitted a security plan for the proposed licensed premises, which has been inspected and approved by the town’s designated official, and showing at least the following minimum-security measures:
1. All doors, windows and other points of entry have secured and functioning locks;
2. A locking safe or enclosed secured storage located inside the proposed licensed premises in which any cannabis and cannabis-infused products will be secured when the licensed premises are not open to the public;
3. If the licensed premises are connected by any passage or entryway to any other premises, there is a door between the two premises that can be locked from the licensee side and cannot be opened from the other side;
4. A professionally monitored alarm system that detects unauthorized entry of all doors, windows, and other points of entry to the proposed licensed premises; and
5. Windows or security cameras facing the adjacent grounds and lighting of the adjacent grounds sufficient to ensure that customers entering and leaving the licensed premises, entering, and exiting parked cars on the adjacent grounds, and walking across the adjacent grounds can be observed by employees from inside the licensed premises;
6. All licensing requirements established by the state of New Mexico must be satisfied.
I. The proposed licensed premises and adjacent grounds comply with all zoning, health, building, plumbing, mechanical, fire, and other codes, statutes, and ordinances, as shown by completed inspections and approvals from the town’s designated official.
J. All businesses operating within the town boundaries shall comply with MTC 18.60.170, Parking requirements and fees. The proposed licensed premises and adjacent grounds of the licensed premises will be operated in a manner that does not cause any substantial harm to public health, safety, and welfare.
K. The proposed licensed premises are equipped with a ventilation system with carbon filters sufficient in type and capacity to eliminate or significantly reduce cannabis odors emanating from the interior to the exterior discernible by a reasonable person, including to any public property or right-of-way within the town. The ventilation system must be inspected and approved by the town’s designated official. Refer back to subsection (I) of this section, mechanical code compliance.
L. The proposed licensed premises are located in a building that does not share any doors, windows, air passages, vents, ducts or any heating, ventilation, air conditioning, or air handling equipment or structures with any other building or premises whatsoever.
M. Walls, barriers, locks, signs, and other means are in place to prevent the public from entering the area of the proposed licensed premises utilized for cultivation or production and manufacturing. The town provides an exception for the perimeter fencing/wall requirements if the fencing materials are required by state law for the production, manufacturing and cultivation of cannabis in the following zones: rural farm (RF) zone (Chapter 18.20 MTC) or residential/agricultural (RA) zone (Chapter 18.25 MTC) or single-family residential (R-1) zone (Chapter 18.30 MTC).
N. Customer visits and deliveries are prohibited between the hours of 12:00 a.m. to 8:00 a.m. for any cannabis cultivation facilities, cannabis producers, cannabis-derived products facilities, located within 300 feet of a residential zone district.
O. The proposed licensed premises must ensure that the ventilation system, air filtration, building screening requirements, necessary security apparatus and lighting are all compatible with neighboring businesses and adjacent uses.
P. Every licensee and its principals, registered manager, and employees have a continuing duty to ensure that the requirements of this section continue to be met after the license is issued and at all times that the license remains in effect.
Q. The licensee shall comply with all town ordinances regarding signage, land use and zoning, water service, and wastewater discharge. [Ord. 2021-02 § 2(6)]
18.100.080 Delivery permit restrictions.
The following restrictions shall be placed on cannabis delivery permits:
Only medical or commercial cannabis couriers who hold a valid courier license issued by the state of New Mexico and a delivery permit issued by the town may deliver cannabis or cannabis related products to private residences of customers and patients, subject to the provisions the NMRCA and all other applicable state and local law and regulations adopted by the cannabis control division of the New Mexico Department of Regulation and Licensing. [Ord. 2021-02 § 2(7)]
18.100.090 Changes to license.
No licensee shall make any of the following major changes without first obtaining the written approval of the town:
A. Any change in any ownership interest in the licensed cannabis company.
B. Any change in location of the licensed premises.
C. Any change in the licensee’s principals.
D. Any change in the structure, walls, doors, windows, ventilation, plumbing, electrical supply, floor plan, footprint, elevation, operation, operational plan, patios, decks, safe or vault, locks, surveillance system, doors, window coverings, or security system at the licensed premises. [Ord. 2021-02 § 2(8)]
18.100.100 Cultivation and growing for personal use.
Individuals may possess, cultivate, and grow cannabis in their residence, including in a residential zoning district, but only for their personal use and subject to the following limitations as established under the New Mexico Cannabis Regulation Act:
A. An individual must be at least 21 years of age.
B. It is unlawful to grow, cultivate, or process more than the designated number of cannabis plants per person, and per residence set forth in the New Mexico Cannabis Regulation Act and any other applicable laws or regulations adopted by the state of New Mexico.
C. Odor mitigation techniques must be used to ensure that cannabis odor does not escape the closed residence.
D. Any growing or cultivation of cannabis products for personal use shall not be visible to the public.
E. Any growing, cultivation or production of cannabis or cannabis infused products for personal use shall not be sold or transferred to third parties for future sale.
F. No cannabis sale, production, distribution, manufacturing or cultivation shall be allowed in the historic residential zone district, except for personal use and as specifically set forth herein. [Ord. 2021-02 § 2(9)]
18.100.110 Establishment of new fees and renewal fees for all licenses.
A. These fees shall be adopted by resolution with automatic annual adjustments by the board of trustees.
B. Licensee shall ensure that all licensed premises follow Construction Industries Licensing Act and comply with the Occupational Health and Safety Act. [Ord. 2021-02 § 2(10)]
18.100.120 Revocation of license.
A. Any person in violation of a local town cannabis license as set forth herein is subject to revocation for violations of this chapter, other town ordinances, or New Mexico state or federal laws.
B. If the town finds that there is probable cause that a violation has occurred, it shall immediately investigate the alleged violation.
C. Upon evidence of a violation, the town shall notify the licensee in writing of the specific allegations and the date of hearing scheduled for the town trustees to consider the revocation or any other appropriate action involving the license.
D. During the license revocation hearing, the town trustees will hear evidence from town staff and the licensee. Each party will be given an opportunity to be heard, to present witnesses, to cross examine witnesses, and to present evidence and exhibits in support of his or her case. At the conclusion of the hearing, the town trustees will make formal findings as to the reasons for revoking the license or allowing it to remain in place with conditions.
E. If a cannabis license issued under this chapter is revoked, the licensee must cease operation within the town boundaries immediately, or as otherwise directed by the town. [Ord. 2021-02 § 2(11)]
18.100.130 Enforcement.
The provisions of this chapter shall be enforced by the town’s code enforcement officer, or a law enforcement officer tasked with enforcing the town’s code. [Ord. 2021-02 § 2(12)]
18.100.140 Penalties.
Any violation of this chapter may be enforced in any court of competent jurisdiction. The maximum penalty per violation of this chapter, unless otherwise indicated, shall be up to $500.00 and/or up to 90 days in jail. Each day during the time in which a violation occurs shall be deemed a separate violation. Nothing herein shall prevent the town from seeking injunctive relief, if appropriate. [Ord. 2021-02 § 2(13)]