In the end commissioners disapprove the ordinance

By Mary Alice Murphy

At the beginning of the special Grant County Commission special meeting of Aug. 30, 2021, held at the Grant County Veterans Memorial Conference and Business Center, commissioners made the decision to hear commissioner reports before they got into the public hearing and consideration of the single item on the agenda: Ordinance No. 0-21-04, entitled: "An Ordinance Establishing Local Cannabis Zoning Regulations."

District 1 Commissioner and Chair Chris Ponce said he had been thinking about the ordinance and had had a lot of people talk to him about it. "Plus, I traveled to Mr. (Jeffrey) Castillo's hemp farm. I learned a lot about growing the plants. I'm being open-minded, but I feel personally that I would not vote for this ordinance. As a county we need to work on our zoning before we move into an ordinance that talks about zoning. I think state law already gives us a lot of what you want. The issue was studied for about four years."

District 3 Commissioner Alicia Edwards said: "This is my favorite part of being a commissioner—working with people. I appreciate all the comments I received. Jeffrey (Castillo) and his wife were tending against the ordinance. There is no way to keep commercial producers out of residential areas in the county. The so-called transects are not legally defensible. On another topic, I would like to talk about the cancelation of the Tour of the Gila. What was said was it was because of medical concerns. Our hospital losses over the past five years have been more than $47.5 million. That was not spent on the roof, on the staff, and it wasn't spent on things making the hospital more viable. What does that have to do with the Tour of the Gila? The hospital is fragile. It's nearly full every single day, often with people with flu-like symptoms. It's not true that the Delta variant is not here. But if there were a bicycle accident, there are no beds in Albuquerque, El Paso or Tucson that could take a severe case. The hospital is short-staffed, about 20 percent in nursing. All the nursing administrators are working shifts. We need to wear our masks. It's not a matter of individuality. If we don't wear our masks, the hospital will be in dire shape. [Back to the topic at hand] I was struck with the comments I received on cannabis. I'm excited about us being in control of our own destiny. Wear your masks. I'm reluctant to push the vaccines, because I know there are issues."

District 5 Commissioner Harry Browne said he did not come into the meeting thinking it was a matter of approve or disapprove the ordinance, "but rather that we could modify it. It was drafted in a hasty manner. I would like to avoid having two types of commercial businesses, those that were formed before the ordinance and others formed after the ordinance. I advocate for a few items in the ordinance and discarding a lot of what's in it. What I disagree with the most is that it is illegal to smoke pot when a person is hiking or is outdoors. I agree the transects are not viable. They are not consistent. I have a huge philosophical issue with the fact that we don't regulate a whole bunch of other things that are more offensive than pot. The state threw it in front of us and said: 'Do something.' I think we could keep the distances from schools and day care centers for commercial establishments. I would like to keep the hours the same seven days a week. There are good reasons why to consider having hours. They include traffic, lights and noise. Keeping the establishments closed from midnight to 7 a.m. is not unreasonable. There was a lot of discussion on the theft of plants. When passing a law, we are not thinking of reasonable people, but thinking on the potential of criminality."

He delved into special areas of the ordinance that "we want to keep, such as cannabis production of personal use, as well as precautions against theft."

District 4 Commissioner Billy Billings said he thought it was better for the commissioners to give their reports prior to consideration of the ordinance. "My concerns were addressed in state law. I want to thank those who helped me get the newest regulations. I was concerned about felons being able to produce, but that is taken care of. I was also concerned about water rights. And I had concerns about protections to commercial establishments. I do share Commission Browne's two concerns, but I was not ready to put them into an ordinance. I understand regulations are being developed for individual growers, but they aren't out yet. I think I'm not in a place to pass this ordinance."

District 2 Commissioner Javier "Harvey" Salas said he had had a lot of calls, personal interactions and emails about the issue. "I have been looking closely at one of the concerns of people I talked to. It was about a building, a structure to protect the plants from theft. For seniors and others who could not afford such a structure, it would be difficult. Right now, I would just like to follow state law. I would like to see us pass an ordinance when we have a good idea of what we need."

Edwards asked for a clarification from the contracted attorney, Brad Springer. "Does state law cover the minimum distances from schools and day care centers." The answer was Yes. "Does state law cover the hours?" The answer was No.

"Another part of our ordinance addresses business registration," Edwards continued. "Does business registration need an ordinance or is it already covered by a county ordinance?" The answer was that the county already has such an ordinance.

Salas said he realizes that the state law in some parts is a little vague. "About what the word reasonable means, we can have a difference of opinions. But I feel that the state law is our best option."

Ponce commented: "I'm not saying we don't need an ordinance, but I think we need more information on zoning. I will not vote for this ordinance until we have other stuff answered. I think the state law will suffice at this time. I have studied it a lot. I don't think the county needs an ordinance today."

Salas asked: "If we don't pass an ordinance, we automatically follow state law, right?" Springer said Yes.

Browne made a motion to approve the published ordinance, with discussion and hearing public testimony before making a decision. "Then the Commission can provide changes and consideration of the ordinance. We already proposed and published the ordinance."

Edwards seconded the motion.

Billings said he would like to hear public comments, even if the ordinance is in the future.

The public hearing opened. Those who wished to speak were asked to stand to be sworn in and gave their names as they came up to speak.

County Manager Tim Zamora noted that three who wished to speak were on Zoom. They, too, were sworn in.

The first to speak was John Song. He said he had two points he wanted to address. He said a locked structure to prevent theft by minors was "unreasonable and would be a financial burden for seniors or those disabled. So, I ask you to delete Section 6 b. In 6 a, you provide a definition of reasonable precautions."

Brenda Holzinger said her comment piggybacked on what Song had said. "Have you considered this ordinance and compassionate use? Could a person grow cannabis outside with reasonable precautions? Your requirements could be burdensome. Have you looked at state law on compassionate use?"

One on Zoom was unable to connect and left the Zoom session later in the meeting.

James Tuttle of Gila said he was considering starting a micro-business. "I hear you are trying to keep money within the county. I think you should do preference for locals wanting to go into the business. I was just in Snowflake, Arizona, and they had a huge facility there. Perhaps you could create an incentive for locals and disincentivize large outside businesses coming in. I agree with Commissioner Browne on the reasonable personal grow precautions. But maybe just a camera on the plants would be enough?"

Nicole Williams said she lives in Gila. "We are looking to build a micro-business. I think you should help local growers. I agree we need more information on the zoning. For personal medical use, you could simply use the state statute. I agree with keeping the money and licenses local."

Colton Dalton said he, too, wants to keep the money locally. "Maybe there could be locally a cannabis tasting facility and a supply store for local growers. I just received a grant for Healthy Soil. It is up to $20,000 and gives access to people to regenerate the soils for us and future generations. Maybe we could hold a cannabis festival along with a harvest festival? Maybe we could have a legal cannabis area at the Blues Festival? Maybe there could be education courses for folks that would be available in the future?"

[Editor's Note: This speaker said I misquoted her on some issues, but asked that you read her letter to the editor at https://www.grantcountybeat.com/editorials/letters-to-editor/67252-letter-to-editor-on-silver-city-cannabis-ordinance to understand her concerns.] Linda Pafford said her first comment covered the inconsistencies throughout the municipalities, the county and the villages. "I think if the public had been involved in the writing, it would have helped. I believe trying to second-guess what the regulations will look like is ill-advised. As is describing cannabis as an intoxicant and comparing it to alcohol. It is not the THC that is being controlled. Smokers who have already been walking around, have they been a problem? For inside use the where, the who, the how much, the how many, who monitors what happens there? They are uncontrolled. Santa Clara is hoping to have dispensaries and a testing room with separate ventilation. Would these free-standing businesses also be able to sell food, beverages and other products? If you use the alcohol rules, the issues are already settled. It needs to be legal to carry your legal substance on the way to where you can smoke it."

Jesse Franklin-Owens said he thought that Commissioner Browne would be cutting the ordinance down to just a few items. "My concern is around the zoning, as there is none in Grant County. Your own comprehensive land use plan doesn't have zoning." He read from the section that said: "Zoning does not apply in Grant County." "I think zoning is another can of worms to open up for you to consider."

Castillo thanked the commissioners for coming in with an open mind. "I own High Lonesome Hemp Farm. I agree with the 200 feet from schools and day care centers. You can amend or reject this ordinance. Most of it is redundant to the state law. You can make it safe for everyone, without putting on more restrictions."

Samira Johnson said: "It's about legalizing a plant that should never have been illegal. The cannabis plant is a living organism that has a lot to offer us. She can give us so much. It helped me heal from cancer. If we deal with her in nature, we can know ourselves on a deeper level. The ordinance should be in support of micro-businesses. Outdoor growing is the best for the ecology. I would remove growing it inside."

Stefan Fuegi said he has owned a small business in Gila. "I was blown away that the ordinance prevents growing it outside. It is burdensome to apply to be a micro-business. My wife has put in a lot of research, and we think we need support for micro-businesses. Cannabis will likely be the greatest economic driver in New Mexico. Our tax rate on cannabis is lower than in other states. But, it's being treated like panhandlers are. I think we can create something special in Grant County that will draw tourists, who may then decide to move here. In order for us to get permits, an ordinance needs to give people certainty. If you decide not to vote on this, it keeps people hanging. If they want to go to a bank for funding, if the ordinance is less restrictive, it would be better to pass this to give people certainty."

Brendan Sorrelgreen said he is personally pursuing a micro-business. "This ordinance killed my planning for the business. It has derailed my expenditures of hundreds of dollars. I haven't heard of any Tier 1 of no more than 1,000 plants up to Tier 4 with up to 8,000 plants. New Mexico is protecting us who have started production. The personal rules are still being rolled out. I encourage you not to pass this ordinance as it is. The only requirement for you to have an ordinance is for the distances from the schools and day care centers."

Edwards said she had more clarifying questions. "What are our options around licenses?"

Springer said they are not addressed in the act or in the regulations at this time.

"This is one of the reasons, I thought we needed an ordinance at this time," Edwards continued. "It would seem possible that a Tier 4 business could get a license before we act on an ordinance."

Browne amended his motion to state it would be to adopt with amendments to the ordinance. He proposed to strike the definition and the subparagraph on transects. He also proposed striking the entire Section 2 on zoning. "I have not heard any changes on the hours. I would keep Section 6 a, but then I think we should strike the entire section 6. And there is no reason to change Sections 7-12.

To Edwards' question about consumption, Springer said the act prohibits smoking cannabis in indoor public places.

Edwards thanked everyone for speaking. "I'm committed to the idea to support small locally owned businesses. We have to figure out a way to support them. I also thank Colton for his ideas on other things that would be accessory businesses and activities."

Ponce said he was in agreement with the amendments proposed, and he agreed that they have to look at small businesses and personal use. "I think we still need more input down the road."

Springer said the ordinance could be restructured in language so as not to violate state law. "If someone gets a license and you make changes later, it will not hinder them from continuing their business as is."

Ponce said that was one of his hesitancies in not adopting the distances, "but the other part of me thinks we are rushing. It seems to me the best way is to follow state law."

Billings asked for a break to ask Springer some clarifying questions.

Salas said: "At this point. I would rather go with state law defining the boundaries. I would like to make the distances from schools and day care centers greater, but we have to stick with state law."

Springer noted that in the ordinance, the distances apply to businesses, not personal growers. "The state Regulation Department has not finalized the rules. The ones proposed have distances for producers, but not other establishments. Under state law, the 300 feet is only for producers. That's why the state encouraged local ordinances. Now is the time to put in distances, although all established businesses are grandfathered in."

Billings said that nowhere is it addressed for personal protection.

Edwards said if they didn't pass the ordinance with distances, an establishment could be within 10 feet of a school. [She noted that was an exaggeration.] She also commented that "the state has given us a deadline, but has not completed its job, so we can complete ours."

Springer said: "Other establishments cannot apply until Jan. 1, 2022. The producers can apply tomorrow (September 1). The state statute says producers have to be 300 feet or more from a school or day care center."

Ponce said he could not see the state approving any licenses for any businesses, other than producers, as those regulations have been released, until they have decided on the regulations for other businesses.

A short break took place.

After the break, Edwards said she had thought about the hours and the 300 feet. "If we don't like the hours and distances, it would take us at least two weeks and four days to do another ordinance. Maybe we could pass an ordinance in early December. Someone mentioned the public helping us write the ordinance. I would like to do a public poll on distances and hours. We could get the poll on our county website. I ask the county manager to keep an eye on state regulations, and we could go from there."

Billings said: "I think it's clear we're not ready to pass an ordinance. My biggest concern is not the 300 feet from schools for commercial businesses. My concern is personal use. We can't have personal growers planting in their front yards near schools. I think we need to go back to the drawing board and let state law prevail at this time."

Ponce agreed and said: "I think we need to step back. I appreciate the public comments and the education from Mr. Castillo and his family, as well as all the emails I received. We also have to look at the fact that this ordinance may be not legally defensible. Let's listen to our constituents and our attorney. I feel more comfortable not passing this ordinance today."

Salas said he felt it was prudent to follow Ponce's guidance. "I think state law will follow what we think. I think the state will not approve applications without thought."

Browne said he thought it was "extremely unlikely to have establishments in places where we don't want them. I would point out that the current hours are different for alcohol and for cannabis."

Springer suggested tabling the ordinance.

"I would like to get rid of this one," Ponce said. "We have a motion on the table to approve this ordinance."

With a roll call vote, every commissioner voted nay, and closed out the public hearing.

The meeting adjourned.