HOUSE BILL 354
48th legislature - STATE OF NEW MEXICO - first session, 2007
INTRODUCED BY
Thomas E. Swisstack
AN ACT
RELATING TO CONTROLLED SUBSTANCES; ENACTING THE CLANDESTINE DRUG LABORATORY ACT; PROVIDING FOR NOTICE, A DRUG LABORATORY LIST, REMEDIATION, CONDEMNATION, LOANS AND RESTITUTION; AUTHORIZING DESTRUCTION OF PROPERTY; IMPOSING PENALTIES; MAKING AN APPROPRIATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Clandestine Drug Laboratory Act".
Section 2. DEFINITIONS.--As used in the Clandestine Drug Laboratory Act:
A. "clandestine drug laboratory" means the site where a controlled substance listed in Schedules I through V of the Controlled Substances Act or a derivative of a controlled substance has been manufactured, processed, cooked, disposed of or stored, including structures and vehicles, and all proximate areas and equipment that are likely to be contaminated as a result; and
B. "remediation" means the cleanup, removal or destruction of chemicals or contaminants at a clandestine drug laboratory to conform with applicable rules promulgated by the department of environment and any action, including the destruction of property, necessary to investigate, prevent, minimize or mitigate damages to the public health or to the environment that may result from the chemicals or contaminants.
Section 3. CLANDESTINE DRUG LABORATORY--PROCEDURES UPON DISCOVERY.--A law enforcement agency that discovers or verifies information received about the location of a clandestine drug laboratory shall immediately:
A. seize and secure the clandestine drug laboratory from improper entry and order the removal of persons from the laboratory;
B. notify the state drug czar in the office of the governor or a state office or officer that succeeds the state drug czar of the existence of the clandestine drug laboratory; and
C. notify the appropriate county health department of the existence of the clandestine drug laboratory.
Section 4. COUNTY HEALTH DEPARTMENT--NOTICE.--Immediately after being notified of a clandestine drug laboratory by a law enforcement agency as provided in Section 3 of the Clandestine Drug Laboratory Act, the county health department shall post a notice of contamination in a conspicuous place at the clandestine drug laboratory and, within twenty-four hours after being notified, issue a notice of contamination to the:
A. owner, landlord or manager of the clandestine drug laboratory property, if known, by certified mail;
B. appropriate district health officer;
C. local fire department;
D. department of health;
E. taxation and revenue department if a vehicle is involved; and
F. department of environment.
Section 5. NOTICE OF CONTAMINATION.--The notice of contamination required by Section 4 of the Clandestine Drug Laboratory Act shall contain:
A. the word "WARNING" in large bold type at the top and bottom of the notice;
B. a statement that a clandestine drug laboratory was seized;
C. the date of the seizure;
D. the address or location of the clandestine drug laboratory, including the identification of structures or vehicles and, if known, a structure, room or apartment number or a vehicle registration or vehicle identification number;
E. the name of the law enforcement agency that seized the clandestine drug laboratory and that agency's telephone number;
F. a statement that hazardous substances, toxic chemicals or other residual contamination from operation of the clandestine drug laboratory may still be present;
G. a statement that it is a fourth degree felony for an unauthorized person to enter, occupy or use the clandestine drug laboratory property or otherwise violate the provisions of the notice of contamination until remediation of the clandestine drug laboratory property has taken place in accordance with rules promulgated by the department of environment;
H. a statement that it is a misdemeanor to disturb the notice of contamination posted at the clandestine drug laboratory; and
I. contact information for the county health department.
Section 6. AFFIDAVIT FOR RECORDING.--
A. Within forty-eight hours of the discovery or verification of a clandestine drug laboratory, the county health department providing the notice of contamination pursuant to Section 3 of the Clandestine Drug Laboratory Act shall record with the county clerk of the county where the clandestine drug laboratory property is located an affidavit that discloses to a potential transferee of that property:
(1) the name of the owner of the property where the clandestine drug laboratory was located;
(2) a legal description of the property where the clandestine drug laboratory was located;
(3) that the property or portion of the property was the site of a clandestine drug laboratory and that a notice of contamination has been issued;
(4) a map drawn from available information showing the boundary of the property and the location of the contaminated area on the property that is prohibited from being entered, occupied or used; and
(5) that the use of the property or some portion of it may be restricted as provided in Subsection G of Section 5 of the Clandestine Drug Laboratory Act.
B. The affidavit shall be executed by the head of the county health department providing the notice of contamination or that person's designee.
C. The county clerk of the county where the clandestine drug laboratory is located shall record an affidavit presented under the Clandestine Drug Laboratory Act in a manner that ensures its disclosure in the ordinary course of a title search of the clandestine drug laboratory property; provided that if the description of the property provided in the affidavit is not sufficient for recording purposes, the county clerk shall locate the description sufficient for recording and record the affidavit.
Section 7. CERTIFICATE OF TITLE NOTATION.--
A. If a vehicle is part of a clandestine drug laboratory and the applicable law enforcement agency is able to obtain the certificate of title for the vehicle, the agency shall forward the certificate of title to the taxation and revenue department.
B. If the taxation and revenue department receives a notice of contamination pursuant to Section 3 of the Clandestine Drug Laboratory Act and a certificate of title as provided in this section, it shall include on the certificate of title issued for a vehicle that is part of a clandestine drug laboratory the term "hazardous substance contaminated vehicle".
Section 8. STATE DRUG CZAR NOTICE.--Upon being notified of the existence of a clandestine drug laboratory by a law enforcement agency pursuant to Section 3 of the Clandestine Drug Laboratory Act, the state drug czar in the office of the governor, or a state office or officer that succeeds the state drug czar, shall notify the department of environment of the existence of the clandestine drug laboratory.
Section 9. DEPARTMENT OF ENVIRONMENT--DRUG LABORATORY LIST--RULES.--The department of environment shall:
A. maintain a list of clandestine drug laboratory properties on the department's web site based on information received from the state drug czar in the office of the governor, or a state office or officer that succeeds the state drug czar; and
B. promulgate rules for assessment and remediation of clandestine drug laboratory properties.
Section 10. OWNER RESPONSIBLE FOR REMEDIATION--NOTICE VACATED.--
A. The owner of a clandestine drug laboratory property is responsible for remediation of the property in compliance with rules promulgated by the department of environment.
B. Within five days from the completion of remediation, the owner of a clandestine drug laboratory property shall verify to the county health department issuing the notice of contamination pursuant to Section 4 of the Clandestine Drug Laboratory Act and to the department of environment that the remediation was completed in compliance with the department of environment's remediation rules.
C. Upon receipt of a verification of remediation, the department of environment shall remove the owner's clandestine drug laboratory property from its web site register of clandestine drug laboratory properties.
D. Upon receipt of a verification of remediation, the county health department shall vacate its notice of contamination and shall file an affidavit with the county clerk of the county where the clandestine drug laboratory was located, executed by the head of the county health department or that person's designee, that:
(1) references the affidavit recorded pursuant to Section 6 of the Clandestine Drug Laboratory Act;
(2) states that the notice of contamination has been vacated;
(3) states that remediation of the affected property has occurred; and
(4) states that there are no restrictions as to entering, occupying or using the affected property.
E. Upon receipt of a verification of remediation involving a vehicle, the county health department shall vacate its notice of contamination and shall file an affidavit, executed by the head of the county health department or that person's designee, to that effect with the taxation and revenue department, which shall then issue a certificate of title for the vehicle without the term "hazardous substance contaminated vehicle".
Section 11. CONDEMNATION--LOAN.--
A. If the owner of the clandestine drug laboratory property or any person with an interest in the property refuses or fails to engage in remediation of the property within the time limits established by the rules of the department of environment for remediation, the appropriate county or municipality shall condemn the property and engage in its remediation. An appraisal of the property for condemnation purposes shall take into account the fact that the property was a clandestine drug laboratory.
B. If the county or municipality in which the property, not including a vehicle, is located condemns the property pursuant to Subsection A of this section, the county or municipality may apply for a loan from the New Mexico finance authority, pursuant to the requirements and procedures of the New Mexico finance authority, to cover the costs of remediation.
Section 12. RESTITUTION.--
A. A court may require a person convicted of a crime involving a clandestine drug laboratory to pay restitution to a public entity that took any action under the Clandestine Drug Laboratory Act. The restitution ordered may cover the reasonable costs of the actions taken.
B. In addition to the restitution authorized in Subsection A of this section, a court may require a person convicted of a crime involving a clandestine drug laboratory to pay restitution to a property owner who incurred remediation costs because of the crime.
Section 13. MOBILE HOME OR RECREATIONAL VEHICLE.--If a mobile home or recreational vehicle in a space-rental park was used as a clandestine drug laboratory, the landlord shall request the lienholder and owner of the mobile home or recreational vehicle to remove it from the park within thirty days. If the mobile home or recreational vehicle is not removed within thirty days, the landlord may remove or dispose of it. Removal and disposal of clandestine drug laboratory wastes shall be in accordance with rules promulgated by the department of environment. A landlord shall not be liable to the lienholder and owner of a mobile home or recreational vehicle for actions taken in accordance with this subsection.
Section 14. NOTICE BY OWNER TO TRANSFEREE.--
A. Until remediation is completed, an owner shall not sell, lease, rent, loan, assign, exchange or otherwise transfer the clandestine drug laboratory property unless the owner:
(1) provides written notice to the transferee, with a copy to the department of environment, that a controlled substance was manufactured on the property; and
(2) receives a written acknowledgment, and provides a copy to the department of environment, that the notice was received by the transferee.
B. Any formal or informal transfer agreement or contract shall be void if notice is not provided pursuant to this section and the owner shall be liable for any harm resulting from the owner's failure to comply with the requirements of this section.
Section 15. CIVIL PENALTIES.--
A. Whenever on the basis of any information the secretary of environment determines that an owner has failed to comply with the provisions of:
(1) Subsection A or B of Section 10 of the Clandestine Drug Laboratory Act regarding remediation in compliance with department of environment rules, the secretary of environment shall issue an order imposing on the owner a civil penalty of five thousand dollars ($5,000), which amount shall be deposited in the state treasury and credited to the hazardous waste emergency fund; or
(2) Section 14 of the Clandestine Drug Laboratory Act regarding notice to a transferee, the secretary of environment shall issue an order imposing on the owner a civil penalty of one thousand dollars ($1,000), which amount shall be deposited in the state treasury and credited to the hazardous waste emergency fund.
B. An order issued pursuant to Subsection A of this section shall become final unless, no later than thirty days after the order is served, the owner named in the order submits a written request to the secretary of environment for a public hearing. Upon that request, the secretary of environment shall promptly conduct a public hearing. The secretary of environment shall appoint an independent hearing officer to preside over the public hearing. The hearing officer shall make and preserve a complete record of the proceedings and forward recommendations based on the record to the secretary of environment, who shall make the final decision. In connection with a hearing under this section, the secretary of environment may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books and documents and may promulgate rules for discovery procedures.
Section 16. PENALTIES.--
A. A person who knowingly violates a notice of contamination issued by a law enforcement officer pursuant to the Clandestine Drug Laboratory Act is guilty of a fourth degree felony and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978.
B. A person who knowingly disturbs a notice of contamination posted on residually contaminated property is guilty of a misdemeanor and shall be sentenced in accordance with the provisions of Section 31-19-1 NMSA 1978.
Section 17. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2007.
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