New Mexico Register / Volume XXXIII,
Issue 11 / June 7, 2022
This is an
amendment to 16.8.2 NMAC amending Section 49 and adding Sections 50, 51, 52,
53, 54, 55 and 56, effective 06/07/2022.
16.8.2.49 [SEVERABILITY: If
any part or application of this rule is held to be invalid, the remainder or its application to other situations or persons
shall not be affected. Any section of this rule legally
severed shall not interfere with the remaining protections and duties provided by this rule.] CANNABIS
CONSUMPTION AREA LICENSURE; GENERAL PROVISIONS:
A. License types: The
division may license two classes of cannabis consumption areas:
(1) Type I permit: A licensed cannabis consumption area where
cannabis products may be consumed on the licensed premises, except for products
consumed through the respiratory system.
(2) Type II permit: A licensed cannabis consumption area where
cannabis products may be consumed, including products that are consumed through
the respiratory system.
B. Division application forms: All applications for licensure authorized pursuant to the
Cannabis Regulation Act shall be made upon current forms prescribed by the
division using the online application portal.
C. License required:
Unless licensed pursuant to the Cannabis Regulation Act and division rules, a
person shall not sell cannabis products to qualified patients, primary caregivers or reciprocal participants, or directly to
consumers.
D. Other activities allowed: A licensee may conduct any lawful activity or any combination
of lawful activities at a licensed premises; provided that the licensee is not
a licensee pursuant to the Liquor Control Act.
E. Cannabis consumption area license: Applicants for a cannabis consumption area must meet all
qualifications for a cannabis retailer to be approved for, and authorized to
conduct, a cannabis consumption area.
[16.8.2.49
NMAC – Rp, 16.8.2.49 NMAC, 06/07/2022]
16.8.2.50 APPLICATION REQUIREMENTS FOR CANNABIS CONSUMPTION AREA
LICENSE:
A. An initial application or renewal for cannabis consumption
area licensure shall include the following:
(1) Contact
information for the applicant and the cannabis establishment, to include:
(a) applicant’s
full legal name;
(b) applicant’s
date of birth, if applicable;
(c) applicant’s
mailing address;
(d) applicant’s
contact telephone number;
(e) applicant’s
contact email address;
(f) applicant’s business physical address and mailing address,
if different;
(g) applicant’s
business legal name, including a DBA name if applicable;
(h) applicant’s
business web address, if applicable;
(i) applicant’s business hours of operation;
(j) name and contact information for each controlling person;
(k) demographic
data pursuant to the Cannabis Regulation Act; and
(l) license type sought;
(2) proof
the applicant or each controlling person is at least 21 years of age, which
shall include identification issued by a federal or state government that
includes the name, date of birth, and picture of the applicant or controlling
person;
(3) legible
and accurate diagram and description of the location of the land or facility to
be used for the cannabis establishment, including a description of each
consumption or retail area and all security requirements, in a portable
document format (.pdf), and if requested by the division, digital photographic photos;
(4) fully
executed and dated documentation of the applicant’s ownership or legal
authority to use the property, buildings, or other facilities, establishing the
applicant is, or will be, entitled to possession of the premises for which the
application is made;
(5) a
copy of a current business license, fire inspection report, and zoning approval;
(6) if
applicable, certification the applicant is in good standing with the New Mexico
secretary of state, including all documents filed with the New Mexico secretary
of state;
(7) a
list of all controlling persons, a list of other current or prior licensed
cannabis businesses, documentation of the applicant’s or a controlling person
legal name change, and criminal history screening documents as set forth in
16.8.2.9 NMAC and the Cannabis Regulation Act;
(8) a
detailed description of any criminal convictions of the applicant and any
controlling person, including the date of each conviction, dates of incarceration,
probation or parole, if applicable, description of the offense, and statement
of rehabilitation of each conviction;
(9) if
applicable, a sample of the record form(s), which shall identify (among other
items) the name of the wholesale purchaser, the date of the sale, the quantity,
and price of cannabis purchased for retail sale;
(10) certification
the applicant will adhere to retail requirements pursuant to the Cannabis
Regulation Act, the Lynn and Erin Compassionate Use Act, or division rules;
(11) certification
the applicant will adhere to cannabis transport requirements pursuant to the
Cannabis Regulation Act, the Lynn and Erin Compassionate Use Act, or division rules;
(12) certification
the applicant will adhere to security requirements pursuant to the Cannabis
Regulation Act, the Lynn and Erin Compassionate Use Act, or division rules;
(13) certification
the applicant will adhere to quality assurance requirements pursuant to the
Cannabis Regulation Act, the Lynn and Erin Compassionate Use Act, or division rules;
(14) certification
the applicant will adhere to applicable federal, state and local laws governing
the protection of public health and the environment, including occupational
health and safety, food safety, environmental impacts, natural resource
protections, air quality, solid and hazardous waste management, and wastewater
discharge;
(15) certification
the applicant has never been denied a license or had a license suspended or
revoked by the division or any other state cannabis licensing authority or a
detailed description of any administrative orders, civil judgements, denial or
suspension of a cannabis license, revocation of a cannabis license, or
sanctions for unlicensed cannabis activity by any state licensing authority, against
the applicant, controlling person, or a business entity in which the applicant
or controlling person was a controlling person within the three years
immediately preceding the date of the application;
(16) certification
the applicant is not licensed under the Liquor Control Act;
(17) applicant’s
social and economic equity plan to encourage economic and social diversity in
employment, including race, ethnicity, gender, age, and residential status of
licensee, controlling persons and employees of applicant and whether the
applicant, controlling persons, employees or the locations where the cannabis
products are produced are located in an underserved rural community, including
tribal, acequia, land grant-merced, federally
designated opportunity zone, or other rural historic communities;
(18) an
attestation of the following statement: Under penalty of perjury, I hereby
declare that the information contained within and submitted with the
application is complete, true and accurate. I
understand that a misrepresentation of fact or violation of these rules may
result in denial of the license application or revocation of a license issued;
and
(19) payment
of any required fees as set forth in 16.8.11 NMAC.
B. Verification of information: The division may verify information contained in each
application and accompanying documentation by:
(1) contacting
the applicant or controlling person by telephone, mail, or electronic mail;
(2) conducting
an on-site visit;
(3) requiring
a face-to-face or virtual meeting and the production of additional
documentation; or
(4) consulting
with state or local governments.
16.8.2.51 SUBMITTAL OF APPLICATION FOR AMENDED CANNABIS CONSUMPTION
AREA LICENSE:
A. Application: A licensed cannabis consumption area shall submit to the
division an application form for an amended license, if applicable, pay the
required fee, and obtain approval from the division, prior to implementing any
of the following:
(1) material
or substantial change of the size or location of the premises;
(2) change
of licensee’s legal or business name;
(3) addition
or elimination of a controlling person;
(4) material
or substantial change to a license’s security system; or
(5) material
or substantial modification of the premises.
B. Amended license not required: Changes to standard operating policies and procedures may
be made without providing notification to the division, provided that licensees
shall maintain at each licensed premises a copy of all current and prior
operating policies and procedures.
C. Requirements and processing of application for amended
license: The application for amended license
must comply with all requirements applicable to initial applications, except
that the application shall be clearly designated as one for an amended license.
The division shall approve or deny an application for amended license within 90
days of receiving a completed application. Denial of an application for
amendment shall be pursuant to the Uniform Licensing Act.
D. Material or substantial change: Material or substantial changes requiring approval include:
(1) increase
or decrease in the size of the premises, including the sale of property used
for the cannabis establishment, the purchase of additional property for the use
of the cannabis establishment, or a change in the location of the cannabis establishment;
(2) change
to a license’s security system, including relocation or security points or
installation of a new security system; or
(3) modification
of the premises to relocate cannabis activities.
[16.8.2.51 NMAC - N, 06/07/2022]
H. If a proposed premise is a type II cannabis consumption area
permit, the diagram shall clearly show the location of the designated smoking
area or the area immediately surrounding the building to ensure smoke will not
infiltrate other indoor workplaces or other indoor public places where smoking
is otherwise prohibited pursuant to the Dee Johnson Clean Indoor Air Act.
[16.8.2.52 NMAC - N, 06/07/2022]
16.8.2.53 CANNABIS CONSUMPTION AREA POLICIES AND PROCEDURES:
A. Minimum policy and procedure requirements: A licensed cannabis consumption area shall develop,
implement, and maintain on the licensed premises, standard policies and
procedures, which shall include the following:
(1) cannabis
handling criteria and procedures, which shall be consistent with the Cannabis
Regulation Act, the Lynn and Erin Compassionate Use Act, or division rules, and
shall include at a minimum, the following topics:
(a) employee
health and safety training materials;
(b) training
requirements for the proper use of health and safety measures and controls;
(c) if
applicable, recordkeeping and chain of custody protocols for transportation of
cannabis or cannabis product samples to a cannabis testing laboratory;
(d) recordkeeping
and chain of custody protocols for transportation of cannabis products to
another cannabis establishment for any purpose;
(e) protocols
to ensure that cannabis products, including any samples of cannabis products,
are transported and stored in a manner that prevents degradation,
contamination, tampering, or diversion;
(g) if
applicable, protocols for testing sample collection that ensures accurate test
results; and
(h) if
applicable, procedures for remedial measures to bring cannabis products into
compliance with division standards or destruction of a tested batch of cannabis
products if the testing samples from the tested batch indicate noncompliance
with applicable health and safety standards;
(2) employee
policies and procedures to address the following minimum requirements:
(a) adherence
to state and federal laws;
(b) responding
to an emergency, including robbery or a serious accident;
(c) alcohol
and drug-free workplace policies and procedures;
(d) safety
and security procedures;
(e) occupational
safety;
(f) crime prevention techniques; and
(g) confidentiality
laws, including the Health Insurance Portability and Accountability Act of
1996; and
(3) documentation
prepared for each employee and statements signed by employees indicating
receipt and understanding of policies and procedures.
B. Training program:
(1) Licensee
shall implement a training program to ensure that all personnel present at the
premises are provided information and training that, at minimum, covers the
following topics within 30 days of the start of employment:
(a) health
and safety hazards;
(b) security
procedures; and
(c) record
keeping requirements.
(2) Prior
to engaging in any cannabis consumption area process:
(a) an
overview of the process and standard operating procedure(s);
(b) safe
work practices applicable to an employee’s job tasks, including appropriate use
of any necessary safety or sanitary equipment;
(c) cleaning
and maintenance requirements;
(d) emergency
operations, including shutdown; and
(e) any
additional information reasonably related to an employee’s job duties.
(3) A
licensee that retails unpackaged edible cannabis products shall ensure that all
personnel who handle edible products successfully complete a food handler
course accredited by the American national standards institute (ANSI). Such
training shall be maintained while employed by a cannabis consumption area. The
licensee shall obtain documentation evidencing the fulfillment of this
requirement.
C. Training documentation:
(1) Licensee
shall ensure that all personnel receive annual refresher training to cover, at
minimum, the topics listed in this section. The licensee shall maintain a
record which contains at minimum:
(a) a
list of all personnel at the premises, including at minimum, name and job
duties of each;
(b) dates
of training completion for all personnel;
(c) dates
of refresher training completion for all personnel;
(d) the
signature of each employee verifying receipt and understanding of each training
or refresher training completed by the personnel;
(e) any
official documentation attesting to the successful completion of required
training by personnel.
(2) Licensee
may assign responsibility for ensuring compliance by individual personnel with
the requirements of this section to supervisory personnel.
D. Retention of training documentation: Licensees shall maintain documentation of an employee’s
training for a period of five years for current employees and for at least six
months after the termination of an employee’s employment.
[16.8.2.53 NMAC - N, 06/07/2022]
16.8.2.54 MINIMUM STANDARDS FOR CANNABIS CONSUMPTION AREAS:
A. Access to cannabis consumption area premises prior to
authorization of consumption or retail sale of commercial cannabis: Prior to the division authorizing the consumption or retail
sale of commercial cannabis, pursuant to Subsection K of Section 26-2C-6 and
Paragraph (5) of Subsection B of Section 26-2C-7 of the Cannabis Regulation
Act, NMSA 1978, access to the licensed premises of a retailer shall be limited
to:
(1) individuals
who are at least 21 years of age and possess a valid form of identification;
(2) individuals
who are at least 18 years of age and possess a valid qualified patient, primary
caregiver, or reciprocal participant registry identification card from the
department of health medical cannabis program.
B. Access to cannabis consumption area premises upon
authorization of consumption or retail sale of commercial cannabis: Upon the division authorizing the retail sale of commercial
cannabis, pursuant to Subsection K of Section 26-2C-6 and Paragraph (5) of
Subsection B of Section 26-2C-7 of the Cannabis Regulation Act, NMSA 1978,
access to the licensed premises of a retailer shall be limited to the
following:
(1) individuals
who are at least 21 years of age and possess a valid form of identification;
and
(2) individuals
who are at least 18 years of age and possess a valid qualified patient, primary
caregiver, or reciprocal participant registry identification card from the
department of health medical cannabis program.
C. Customer access to the consumption area:
(1) Individuals
shall be granted access to consume or purchase cannabis goods only after the
licensed cannabis consumption area or an employee of the licensed cannabis
consumption area has confirmed the individual’s age and identity, and if
applicable, the individual’s status as a qualified patient, primary caregiver,
or reciprocal participant.
(2) The
licensed cannabis consumption area or at least one employee shall be physically
present in the consumption area at all times when individuals who are not
employees of the licensed retailer are in the retail area.
(3) All
sales of cannabis goods, with the exception of cannabis goods sold through
delivery, must take place within the retail area of the retailer’s licensed
premises.
(4) A
licensed cannabis consumption area shall s only allow cannabis consumption
between the hours reported to the division as regular business hours.
(5) A
licensed cannabis consumption area may allow qualified patients to bring
previously purchased goods from the licensed cannabis consumption area for
consumption provided the cannabis product is properly stored in the requisite
resealable packaging and the qualified patient provides proof of purchase from
the cannabis consumption licensee of the product to be consumed.
D. Requirements while not open for business: At any time the licensed premises is not open for cannabis
consumption, a licensed cannabis consumption area shall ensure that:
(1) the
licensed premises is securely locked with commercial-grade, nonresidential door
locks;
(2) the
licensed premises is equipped with an active alarm system pursuant to pursuant
to Section 10 of this rule, which shall be activated when the licensed retailer
or its employees are not on the licensed premises; and
(3) only
employees of the licensee and other authorized individuals are allowed access
to the licensed premises. For the purposes of this section, authorized
individuals include individuals employed by the licensee as well as any outside
vendors, contractors, or other individuals conducting business that requires
access to the licensed premises.
E. Commercial and medical cannabis consumers:
(1) A
licensed cannabis consumption area shall only sell and allow for the
consumption of commercial cannabis and cannabis products to individuals who are
at least 21 years of age after confirming the customer’s age and identity by
inspecting a valid form of identification provided by the customer as required
by Subsection B of this section.
(2) A
licensed cannabis consumption area shall only sell and allow for the
consumption of cannabis and cannabis products to individuals who are at least
18 years of age and possess a valid qualified patient, primary caregiver, or
reciprocal participant registry identification card from the department of
health medical cannabis program, after confirming the customer’s age, identity,
and valid registry identification.
(3) Acceptable
forms of identification include the following
(a) a
document issued by a federal, state, county, or municipal government, or a
political subdivision or agency thereof, including, but not limited to, a valid
motor vehicle operator's license, that contains the name, date of birth, and
photo of the person;
(b) a
valid identification card issued to a member of the armed forces that includes
the person’s name, date of birth, and photo; or
(c) a
valid passport issued by the United States or by a foreign government.
F. Cannabis product display:
(1) Cannabis and cannabis products for
customer inspection and sale shall only be displayed in the area where retail
activities take place.
(2) Cannabis and cannabis products may be
removed from their packaging and placed in containers to allow for customer
inspection. The containers shall not be readily accessible to customers without
assistance of cannabis consumption area personnel. A container must be provided
to the customer by the licensed cannabis consumption area or its employees, who
shall remain with the customer at all times that the container is being
inspected by the customer.
(3) Cannabis and cannabis products
removed from their packaging for display shall not be sold, shall not be
consumed, and shall be destroyed, pursuant to pursuant to Section 15 of this
rule, when the cannabis or cannabis products are no longer used for display.
F. Cannabis server permit requirements: all employees of the licensed cannabis
consumption area who directly offer, sell or serve cannabis must hold a current
and valid cannabis server permit according to 18.8.10 NMAC.
G. No
visible consumption of cannabis products: a licensed cannabis consumption area shall ensure that the
display and consumption of any cannabis product is not visible from outside of
its licensed premises. Licensed cannabis consumption areas may be located
outdoors provided that:
(1) all
cannabis product is kept out of plain sight and is not visible from a public
place without the use of optical aids, such as telescopes or binoculars, or aircraft;
and
(2) the
licensed cannabis consumption area shall ensure that the outdoor consumption
area is surrounded by a sight-obscuring wall, fence, hedge, or other opaque or
translucent barrier.
H. Required
signage: a licensed cannabis consumption
area must post, at all times and in a prominent place inside the consumption
area, a warning that is at minimum 12 inches high and 12 inches wide that reads
as follows:
|
“Cannabis may only be consumed in designated areas out of
public view No consumption of alcohol products on site We reserve the right to refuse entry or service for
reasons including visible intoxication It is against the law to drive while impaired by cannabis” |
[16.8.2.54 NMAC - N, 06/07/2022]
16.8.2.55 DEE JOHNSON CLEAN INDOOR AIR ACT: Smoking and vaping shall be allowed on the licensed
premises of type II cannabis consumption area only if the cannabis consumption
area is in a designated smoking area or in a standalone building from which
smoke does not infiltrate other indoor workplaces or other indoor public places
where smoking is otherwise prohibited pursuant to the Dee Johnson Clean Indoor
Air Act.
[16.8.2.55 NMAC - N, 06/07/2022]
16.8.2.56 SEVERABILITY: If
any part or application of this rule is held to be invalid, the remainder or its application to other situations or persons
shall not be affected. Any section of this rule legally
severed shall not interfere with the remaining protections and duties provided by this rule.
[16.8.2.56
NMAC – Rn, 16.8.2.49 NMAC, 06/07/2022]
History of 16.8.2
NMAC: [RESERVED]