The new New Mexico Security Law is bad!

I received this information from a concerned person in our industry.  He has taken the time to research the new security law and he made some very interesting observations.  Please read below:

Dear Security Industry and Association Members,

Stop getting distracted by the training issue- this security law is bad.

We should look to see the forest from the trees. There is a lot of communication about this training agenda and that training agenda by the state and how they hurt so much for our input. There are no over watching rules for running hearings and disputes. RLD and the Board under the law can make up any rules they want. There is no safeguard except costly legal action. Likewise, there are no time constraints, due process, public meetings required after the initial rules. How can the RLD run the administration of the law without timely public input and regular (annual) review? The program lacks the flexibility to change with our needs and the training program whatever that might be will be of little consequence if the administration of the program has no controls from the public. After the initial rules there is no more public input mandated in the law.

The Concealed Carry program is an example of a state agency having no regular review process, inspection and public input. DPS who regulates the CCW program has no obligation to listen and adapt the program over time from public input. The have no reporting or review requirements. They do not have to show actual performance or long term planning. They are never inspected by any over watching entity. Currently it takes 6 months to get a CCW license. It has the longest waiting period in the country. The have accrued over 1 million dollars in licensing fees that are not being used to support the program. They are not running finger prints as required in the law, yet they charge each licensee $40 to run them, then they put the money in the bank. They took a program that could have really improved the states safety and did nearly everything they could get away with to ruin it. The CCU has a high turnover of full time staff. There is probably less than a 20 percent renewal rate. Nothing in the CCW law forces DPS to be responsive to the licensees or the public, just as this security law does. The results will be predictable.

Attached are two word documents with information about the Uniform Licensing Act 61-1-1 and The Small Business Relief Act 14-4A-1.

The Uniform Licensing Act ensures that the public and licensees are protected by Due Process when dealing with licensing matters. There are dozens of industries that utilize variations of fundamental practices of fairness in licensing regulation. I cannot believe that the legal counsel of RLD would write into the current security law the removal of the Uniform Licensing Act. How can the law be administered without fair practices? It can't is the answer. If you think the initial implementation of the law is bad wait till they actually try to run it after the initial rules, there are no checks in balances, except court action which you will pay for each time there is a dispute. RLD and the board have unchecked unlimited power as the law is written in every area to do what it wants. The Board need only please the governor or themselves and has no responsibility to the industry. Who will represent us in the industry- the legislature?

The Small Business Relief Act is another area that has been overlooked. Has anyone approached the Small Business Advisory Commission on the effects of the law on small business? In the NM law these rules MUST be reviewed every five years. They have not been reviewed as they should in the beginning.

Without open government and fundamental democratic processes what we have is a bad security law made by high minded, inept and or greedy amateurs. This law will never work. Why any attorney at RLD ( Pamela Herndon) would remove basic protections of due process in licensing is beyond ethical understanding and why she would write in unlimited power to RLD and the Board is another- and I don't like it. It is a foundation for disaster and ruin for the industry. The law is so bad they had to use emergency implementation. No one could and still can come to an agreement on anything after two years. RLD is lost and clueless.

All the full time staff have left the department. New people cannot get licensed, because they can not get trained, they can not get trained because they don't have the tests and they don't have the tests because they don't know anything about security. Perhaps Governor Richardson or Senator Martinez know. Call them and ask. Bill Richardson will have to call Guruteg and Butch Cassidy.

Selected Paragraphs of the Unifrom Licensing Act

What is strange to me is that the Uniform Licensing Act was written out of the new security law. Why would anyone want to remove proper traditional due process out of the treatment of contract security licensees? How could a law possibly be run without basic fair treatment of people? Dozens of other boards regulating a high amount of the industries use this law to ensure the proper due process in regulating their industry.  Why was this important safeguard law written out of the current law? How can the legislature, the Governor and RLD expect to effectively run the new security law without it?

61-1-31. Validity of regulation; judicial review.

A.     Any person who is or may be affected by a regulation adopted by the board may appeal to the court of appeals for relief. All appeals shall be upon the record made at the hearing by the board and shall be taken to the court of appeals within thirty days after filing of the regulation under the State Rules Act [Chapter 14, Article 4 NMSA 1978].   

B.     An appeal to the court of appeals under this section is perfected by the timely filing of a notice of appeal with the court of appeals, with a copy attached of the regulation from which the appeal is taken. The appellant shall certify in his notice of appeal that arrangements have been made with the board for preparation of a sufficient number of transcripts of the record of the hearing on which the appeal depends to support his appeal to the court, at the expense of the appellant, including three copies which he shall furnish to the board.   

C.     Upon appeal, the court of appeals shall set aside the regulation only if found to be:   

(1)     arbitrary, capricious or an abuse of discretion;   

(2)     contrary to law; or   

(3)     against the clear weight of substantial evidence of the record.   

61-1-7. Hearing officers; hearings; public; exception; excusal; protection of witness and information.

A.     All hearings under the Uniform Licensing Act [ 61-1-1 NMSA 1978] shall be conducted either by the board or, at the election of the board, by a hearing officer who may be a member or employee of the board or any other person designated by the board in its discretion.  A hearing officer shall, within thirty days after any hearing, submit to the board a report setting forth his findings of fact.   

B.     All hearings under the Uniform Licensing Act shall be open to the public, provided that in cases in which any constitutional right of privacy of an applicant or licensee may be irreparably damaged, a board or hearing officer may hold a closed hearing if the board or hearing officer so desires and states the reasons for this decision in the record.  The applicant or licensee may, for good cause shown, request a board or hearing officer to hold either a public or a closed hearing.   

C.     Each party may peremptorily excuse one board member or a hearing officer by filing with the board a notice of peremptory excusal at least twenty days prior to the date of the hearing, but this privilege of peremptory excusal may not be exercised in any case in which its exercise would result in less than a quorum of the board being able to hear or decide the matter.  Any party may request that the board excuse a board member or a hearing officer for good cause by filing with the board a motion of excusal for cause at least twenty days prior to the date of the hearing.  In any case in which a combination of peremptory excusals and excusals for good cause would result in less than a quorum of the board being able to hear or decide the matter, the peremptory excusals that would result in removing the member or members of the board necessary for a quorum shall not be effective.   

D.     In any case in which excusals for cause result in less than a quorum of the board being able to hear or decide the matter, the governor shall, upon request by the board, appoint as many temporary board members as are necessary for a quorum to hear or decide the matter.  These temporary members shall have all of the qualifications required for permanent members of the board.   

E.     In any case in which excusals result in less than a quorum of the board being able to hear or decide the matter, the board, including any board members who have been excused, may designate a hearing officer to conduct the entire hearing.   

F.     Each board shall have power where a proceeding has been dismissed, either on the merits or otherwise, to relieve the applicant or licensee from any possible odium that may attach by reason of the proceeding, by such public exoneration as it shall see fit to make, if requested by the applicant or licensee to do so.   

G.     There shall be no liability on the part of and no action for damages against a person who provides information to a board in goo

61-1-11. Rules of evidence.

A.     In proceedings held under the Uniform Licensing Act [ 61-1-1 NMSA 1978], boards and hearing officers may admit any evidence and may give probative effect to evidence that is of a kind commonly relied on by reasonably prudent people in the conduct of serious affairs. Boards and hearing officers may in their discretion exclude incompetent, irrelevant, immaterial and unduly repetitious evidence. In proceedings involving the suspension or revocation of a license, rules of privilege shall be applicable to the same extent as in proceedings before the courts of this state. Documentary evidence may be received in the form of copies or excerpts.   

B.     Boards and hearing officers may take notice of judicially cognizable facts and in addition may take notice of general, technical or scientific facts within their specialized knowledge. When any board or hearing officer takes notice of a fact, the applicant or licensee shall be notified either before or during the hearing of the fact so noticed and its source and shall be afforded an opportunity to contest the fact so noticed.   

C.     Boards and hearing officers may utilize their experience, technical competence and specialized knowledge in the evaluation of evidence presented to them.   

61-1-12. Record.

In all hearings conducted under the Uniform Licensing Act [ 61-1-1 NMSA 1978], a complete record shall be made of all evidence received during the course of the hearing. The record shall be preserved by any stenographic method in use in the district courts of this state, or in the discretion of the board, by tape recording. The board shall observe any standards pertaining to tape recordings established for the district courts of this state.   

14-4A-2. Legislative findings.

The legislature finds that:

A.     a vibrant and growing small business sector is critical to creating jobs in a dynamic economy;

B.     small businesses bear a disproportionate share of regulatory costs and burdens;

C.     fundamental changes that are needed in the regulatory culture of state agencies to make them more responsive to small business can be made without compromising the statutory missions of the agencies;

D.     when adopting rules to protect the health, safety and economic welfare of the state, agencies should seek to achieve statutory goals as effectively and efficiently as possible without imposing unnecessary burdens on small businesses;

E.     uniform regulatory reporting requirements can impose unnecessary and disproportionately burdensome demands, including legal, accounting and consulting costs, upon small businesses with limited resources;

F.     the failure to recognize differences in the scale and resources of regulated businesses can adversely affect competition in the marketplace, discourage innovation and restrict improvements in productivity;

G.     unnecessary rules create entry barriers in many industries and discourage potential entrepreneurs from introducing beneficial products and processes;

H.     the practice of treating all regulated businesses as equivalent may lead to inefficient use of agency resources, enforcement problems and, in some cases, to actions inconsistent with stated legislative intent of health, safety, environmental, economic welfare and other legislation;

I.

     alternative regulatory approaches that do not conflict with applicable statutes may be available to minimize the significant economic impact of rules on small businesses; and

J.     the process by which state rules are developed and adopted should be reformed to require agencies to solicit the ideas and comments of small businesses, to examine the effect of proposed and existing rules on such businesses and to review the continued need for existing rules.

14-4A-3. Definitions.

As used in the Small Business Regulatory Relief Act:

A.     "agency" means every department, agency, board, commission, committee or institution of the executive branch of state government;

B.     "commission" means the small business regulatory advisory commission;

C.     "proposed rule" means a proposal by an agency for a new rule or for a change in, addition to or repeal of an existing rule;

D.     "rule" means any rule, regulation, order, standard or statement of policy, including amendments to or repeals of any of those, issued or promulgated by an agency and purporting to affect one or more agencies besides the agency issuing the rule or to affect persons not members or employees of the issuing agency.  An order or decision or other document issued or promulgated in connection with the disposition of any case or agency decision upon a particular matter as applied to a specific set of facts shall not be deemed a rule nor shall it constitute specific adoption of a rule by the agency.  "Rule" does not include rules relating to the management, confinement, discipline or release of inmates of any penal or charitable institution, the New Mexico boys' school, the girls' welfare home or a public hospital; or rules made relating to the management of any particular educational institution, whether elementary or otherwise; or rules made relating to admissions, discipline, supervision, expulsion or graduation of students from an educational institution; and

E.     "small business" means a business entity, including its affiliates, that is independently owned and operated and employs fifty or fewer full-time employees.

14-4A-4. Rules affecting small business.

A.     Prior to the adoption of a proposed rule that may have an adverse effect on small business, an agency shall provide a copy of the proposed rule to the commission at the same time as persons who have requested advance notice of rulemaking.

B.     Prior to the adoption of a proposed rule that the agency deems to have an adverse effect on small business, the agency shall consider regulatory methods that accomplish the objectives of the applicable law while minimizing the adverse effects on small business.

14-4A-5. Small business regulatory advisory commission created; membership; powers and duties.

A.     The "small business regulatory advisory commission" is created.  The commission shall consist of nine members who are current or former small business owners, five appointed by the governor and two each appointed by the speaker of the house of representatives and the president pro tempore of the senate.  Each member shall be from a different geographic region of the state.  Members shall serve two-year terms.  A member shall not serve more than three consecutive terms.  Members shall name the chairperson of the commission.  The commission shall meet at the call of the chairperson.  A majority of the members constitutes a quorum for the conduct of business.  Members are entitled to per diem and mileage as provided in the Per Diem and Mileage Act [ 10-8-1 NMSA 1978] and shall receive no other compensation, perquisite or allowance.

B.     The commission is administratively attached to the economic development department, and staff for the commission shall be provided by the department.

C.     The commission may:

(1)     provide state agencies with input regarding proposed rules that may adversely affect small business;

(2)     consider requests from small business owners to review rules adopted by an agency;

(3)     review rules promulgated by an agency to determine whether a rule places an unnecessary burden on small business and make recommendations to the agency to mitigate the adverse effects; and

(4)     provide an annual evaluation report to the governor and the legislature, including recommendations and evaluations of agencies regarding regulatory fairness for small businesses.

D.     The commission does not have authority to:

(1)     interfere with, modify, prevent or delay an agency or administrative enforcement action;

(2)     intervene in legal actions; or

(3)     subpoena witnesses to testify or to produce documents, but it may request witnesses to voluntarily testify or produce documents.

14-4A-6. Periodic review of rules.

A.     By July 1, 2010, each agency shall have reviewed all of its rules that existed on the effective date of the Small Business Regulatory Relief Act to determine whether the rules should be continued without change or should be amended or repealed to minimize the economic impact of the rules on small businesses, subject to compliance with the stated objectives of the laws pursuant to which the rules were adopted.

B.     Rules adopted and promulgated after the effective date of the Small Business Regulatory Relief Act shall be reviewed every five years to ensure that they continue to minimize economic impacts on small businesses while implementing the state objectives of the laws pursuant to which the rules were adopted.

C.     In reviewing its rules to minimize economic impacts on small businesses, an agency shall consider the following factors:

(1)     continued need for the rule;

(2)     the nature of complaints or comments received from the public concerning the rule;

(3)     the complexity of the rule;

(4)     the extent to which the rule overlaps, duplicates or conflicts with other federal, state and local government rules; and