Spice law concerns council

By Christina Calloway

PNT senior writer

ccalloway@pntonline.com

Portales city councilors agree the intentions of an ordinance that would prohibit the sale of synthetic marijuana in Portales are good, but questioned the legality of enforcing such an ordinance Tuesday night.

Councilors said they were moved by recent events at Portales High School, which involved the hospitalization of four students after using the drug, to introduce an ordinance to ban the sale of synthetic marijuana, commonly referred to as spice, within the city limits.

The ordinance would not become official until and unless the council approves final passage of the ordinance following a public hearing.

That is scheduled for Oct. 15. In the meantime, the ordinance faces several questions from councilors, including the city’s authority on local businesses.

“I’m all for the ordinance as far as taking drugs off the street,” said Ward C Councilor Leo Lovett.

But Lovett asked if a portion of the ordinance would hold up in court.

Spice, which is classified as a synthetic cannibinoid, is often made with chemicals that mimic marijuana, but the chemicals themselves may not be illegal. If what’s in the product is illegal, all producers would have to do is change the ingredients to create a similar drug, according to police.

To combat that reality, the ordinance is designed to keep up with changes in ingredients used in the drug. Councilors found the feature unique, but Lovett had concerns such an ordinance would not hold up in court.

City attorney Randy Knudson said he would look further into possible cases where such an ordinance has been challenged.

“I’d have to look at all of those issues,” said Knudson. His partner and fellow city attorney Steve Doerr drafted the ordinance.

Knudson said a petty misdemeanor is the highest charge allowable for a city ordinance violation. That is punishable by up to six months in jail and a $5,000 fine.

Councilors also questioned a “three strikes” feature of the ordinance that would revoke a business license for a year if that business is caught selling the drug three times.

“It’s basically going to put them out of business (for) one year,” Knudson said. “It’s a restraint on trade and I’m not sure you can do that.”

Interim Police Chief Pat Gallegos said the ordinance would give officers flexibility in enforcement against businesses selling the drug.

“We’ll go for the highest crime possible,” Gallegos said. Gallegos said that would especially be the case if a business is selling to minors.

Knudson also reminded councilors that possession of the drug is not illegal because its intended use by manufacturers is often herbal potpourri and packages say the product is not for human consumption.

Councilors accepted the notice of intent and plan to work through the kinks and changes will be discussed at their next meeting.

“With this notice, it gives us time to research things,” said City Manager Doug Redmond.

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