SENATE PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR
SENATE BILL 338
48th legislature - STATE OF NEW MEXICO - first session, 2007
AN ACT
RELATING TO CONTROLLED SUBSTANCES; ENACTING THE CLANDESTINE DRUG LABORATORY ACT; PROVIDING FOR NOTICE, A CLANDESTINE DRUG LABORATORY LIST, REMEDIATION, LOANS AND RESTITUTION; 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 a site, including personal and real property, structures, mobile homes, vehicles, recreational vehicles, equipment and all proximate areas where:
(1) the manufacture of a controlled substance is taking place or has taken place or an attempt is being made or has been made to manufacture a controlled substance; or
(2) chemicals used in the manufacture of a controlled substance or waste materials produced in the manufacture of a controlled substance are located or have been located;
B. "controlled substance" means a drug or substance listed in Schedules I through V of the Controlled Substances Act or in rules promulgated pursuant to that act;
C. "law enforcement agency" means a police or public safety department administered by the state or a political subdivision, or a person contracting for or on behalf of a police or public safety department, where the employees are responsible for the prevention and detection of crime and the enforcement of the penal, traffic or highway laws of this state;
D. "manufacture" means the production, preparation, compounding, conversion or processing of a controlled substance analog by extraction from substances of natural origin or independently by means of chemical synthesis, but does not include the preparation or compounding of a controlled substance by:
(1) a practitioner, licensed or certified to prescribe and administer drugs that are subject to the Controlled Substances Act or the rules promulgated pursuant to that act, as an incident to the practitioner's administration or dispensing of a controlled substance in the course of the practitioner's professional practice; or
(2) a practitioner or the practitioner's agent acting under the practitioner's supervision, or a scientific investigator registered to conduct research with controlled substances in the course of the scientific investigator's professional practice or the scientific investigator's agent acting under the scientific investigator's supervision, for or as an incident to research, teaching or chemical analysis but not for sale;
E. "mobile home" means a single-family dwelling built on a permanent chassis designed for a long-term residential occupancy and containing complete electrical, plumbing and sanitary facilities designed to be installed in a permanent or semi-permanent manner with or without a permanent foundation and that is capable of being towed over public highways as a unit or in sections by a special permit;
F. "recreational vehicle" means a vehicle with a camping body that has its own motive power or is affixed to or is towed by another vehicle and includes motor homes, travel trailers and truck campers;
G. "remediation" means the cleanup, removal or destruction of chemicals or contaminants at a clandestine drug laboratory to conform with applicable department of environment rules 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; and
H. "vehicle" means a device in, upon or by which a person or property may be transported or towed upon a street or highway, propelled by a power other than human power, including diesel fuel, gasoline, compressed natural gas, electricity or a combination of these, designed to travel along the ground by use of wheels, treads, runners or slides, and includes automobiles, trucks, trailers of any kind, motorcycles, off-highway motor vehicles, tractors, buggies or wagons.
Section 3. CLANDESTINE DRUG LABORATORY--PROCEDURES UPON DISCOVERY.--Upon identification of a clandestine drug laboratory by a law enforcement agency, the agency shall at the time of identification:
A. pursuant to law, seize and secure the clandestine drug laboratory from improper entry and order the removal of persons from the laboratory;
B. notify the department of public safety of the existence of the clandestine drug laboratory;
C. notify the department of environment of the existence of the clandestine drug laboratory; and
D. post a notice of contamination in a conspicuous place at the clandestine drug laboratory.
Section 4. NOTICE OF CONTAMINATION TO OWNER, LANDLORD, MANAGER OR OCCUPANT.--Upon identification of a clandestine drug laboratory by a law enforcement agency, that agency shall:
A. if the owner, landlord, manager or occupant of the clandestine drug laboratory and, if the clandestine drug laboratory is a mobile home or recreational vehicle, the owner or manager of a mobile home or recreational vehicle space-rental or space-purchase park where the clandestine drug laboratory may be located, is present at the time of seizure of the clandestine drug laboratory, deliver a copy of a notice of contamination to the owner, landlord, manager or occupant;
B. if the owner of the clandestine drug laboratory and, if the clandestine drug laboratory is a mobile home or recreational vehicle, the owner of a mobile home or recreational vehicle space-rental or space-purchase park where the clandestine drug laboratory may be located, is not personally provided a copy of the notice of contamination pursuant to Subsection A of this section, then within seven business days after seizure of the clandestine drug laboratory, send a notice of contamination by certified mail, return receipt requested, to the owner at the owner's last known address contained in records of the county or municipality where the clandestine drug laboratory is located and proof of mailing shall be considered notice to the owner;
C. if the owner of the clandestine drug laboratory cannot be identified, acquire proof of posting a notice of contamination pursuant to Subsection D of Section 3 of the Clandestine Drug Laboratory Act, which proof of posting shall be considered notice to the owner; and
D. within seven business days after seizure of the clandestine drug laboratory, deliver a copy of a notice of contamination to the department of environment.
Section 5. NOTICE OF CONTAMINATION.--The notice of contamination required by Sections 3 and 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 misdemeanor for a person other than the owner, the owner's agent, a lessee or renter or a transferee or assignee of the owner to enter, occupy or use the clandestine drug laboratory or otherwise knowingly and intentionally violate the provisions of the notice of contamination until remediation of the clandestine drug laboratory has taken place in accordance with department of environment rules;
H. a statement that it is a misdemeanor to knowingly and intentionally disturb the notice of contamination posted at the clandestine drug laboratory;
I. a statement that the owner of the property shall remediate the contaminated portion of the clandestine drug laboratory in compliance with department of environment rules;
J. a statement that failure of the owner to remediate the contaminated portion of the clandestine drug laboratory in compliance with department of environment rules may result in a fine of up to five thousand dollars ($5,000);
K. contact information for the department of environment; and
L. a statement that until remediation is complete, selling, leasing, renting, loaning, assigning, exchanging or otherwise transferring the clandestine drug laboratory without providing notice of its existence as required by Section 11 of the Clandestine Drug Laboratory Act shall void the sale, lease, rental, loan, assignment, exchange or other transfer and may result in a fine of up to one thousand dollars ($1,000).
Section 6. DEPARTMENT OF ENVIRONMENT--CLANDESTINE DRUG LABORATORY LIST--RULES.--The department of environment shall:
A. maintain a list of clandestine drug laboratories on the department's web site based on information received from law enforcement agencies; and
B. promulgate rules for assessment and remediation of residual contamination from chemicals or contaminants resulting from a clandestine drug laboratory.
Section 7. OWNER RESPONSIBLE FOR REMEDIATION--NOTICE VACATED.--
A. The owner of a clandestine drug laboratory is responsible for its remediation in compliance with department of environment rules.
B. Upon determination of the department of environment that a clandestine drug laboratory has been remediated in accordance with its rules, or that no remediation is required, the department shall:
(1) remove the clandestine drug laboratory from its web site list of clandestine drug laboratories; and
(2) notify the law enforcement agency that seized the clandestine drug laboratory to remove the notice of contamination from the former clandestine drug laboratory, which the law enforcement agency shall do within three business days of being notified by the department of environment.
Section 8. REMEDIATION BY COUNTY OR MUNICIPALITY--LOAN.--
A. If the owner of a clandestine drug laboratory refuses or fails to engage in remediation of the clandestine drug laboratory as established by the rules of the department of environment for remediation, or the owner or lien-holder of a clandestine drug laboratory that is a mobile home or a recreational vehicle has failed to remove the mobile home or recreational vehicle pursuant to Section 10 of the Clandestine Drug Laboratory Act, the county or municipality where the clandestine drug laboratory is located shall remediate or seek a court order requiring the owner to remediate the clandestine drug laboratory as required by Section 7 of the Clandestine Drug Laboratory Act. If the county or municipality is unable to locate the owner within thirty days after the issuance of the notice of contamination, the county or municipality shall proceed with remediation.
B. If the county or municipality in which the clandestine drug laboratory is located remediates pursuant to Subsection A of this section, the owner of the clandestine drug laboratory shall pay to the county or municipality all costs related to such remediation. If the owner refuses or fails to pay the county or municipality for its costs of remediation, the county or municipality shall be entitled to file a lien against the clandestine drug laboratory for the costs related to remediation and bring legal action against the owner for those remediation costs.
C. Not including a vehicle other than a mobile home or a recreational vehicle, if the county or municipality in which the clandestine drug laboratory is located remediates 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 authority, to cover the costs of remediation.
Section 9. 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 the owner of a clandestine drug laboratory who incurred remediation and other costs because of the crime.
Section 10. MOBILE HOME OR RECREATIONAL VEHICLE.--If a clandestine drug laboratory is a mobile home or a recreational vehicle in a space-rental or space-purchase park, and has not been remediated pursuant to Section 7 of the Clandestine Drug Laboratory Act, the park owner shall request the owner or lien-holder of the mobile home or recreational vehicle to remove it from the park within thirty days, unless the mobile home or recreational vehicle belongs to the park owner. If the mobile home or recreational vehicle is not removed within thirty days, the county or municipality where the mobile home or recreational vehicle is located shall proceed pursuant to Section 8 of the Clandestine Drug Laboratory Act.
Section 11. 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 unless the owner:
(1) provides written notice to the purchaser, lessee, renter, borrower, assignee, exchange partner or other transferee, with a copy to the department of environment, of the existence of the clandestine drug laboratory; and
(2) receives a written acknowledgment, and provides a copy to the department of environment, that the notice was received by the purchaser, lessee, renter, borrower, assignee, exchange partner or other transferee.
B. A formal or informal purchase and sale, lease, rental, loan, assignment, exchange or 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 12. 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) Section 7 of the Clandestine Drug Laboratory Act regarding remediation in compliance with department of environment rules, the secretary of environment may issue an order imposing on the owner a civil penalty in an amount not to exceed five thousand dollars ($5,000), which amount may be deposited in the state treasury and credited to the hazardous waste emergency fund; or
(2) Section 11 of the Clandestine Drug Laboratory Act regarding notice to a purchaser, lessee, renter, borrower, assignee, exchange partner or other transferee, the secretary of environment may issue an order imposing on the owner a civil penalty in an amount not to exceed 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 pursuant to 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. A final decision of the secretary of environment pursuant to this section may be appealed to the district court pursuant to Section 39-3-1.1 NMSA 1978.
Section 13. CRIMINAL PENALTIES.--
A. A person who knowingly and intentionally violates a notice of contamination issued by a law enforcement agency pursuant to the Clandestine Drug Laboratory Act is guilty of a misdemeanor and shall be sentenced in accordance with the provisions of Section 31-19-1 NMSA 1978.
B. A person who knowingly and intentionally disturbs a notice of contamination posted on a clandestine drug laboratory is guilty of a misdemeanor and shall be sentenced in accordance with the provisions of Section 31-19-1 NMSA 1978.
Section 14. PREEMPTION.--After the effective date of the promulgation of enforceable rules by the department of environment pursuant to the Clandestine Drug Laboratory Act, no county or municipality, including a home-rule municipality that has adopted a charter pursuant to Article 10, Section 6 of the constitution of New Mexico, shall adopt or enforce an ordinance or resolution regarding the subject matter of the Clandestine Drug Laboratory Act.
Section 15. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2007.
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