HOUSE BILL 36
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Ray Begaye
AN ACT
RELATING TO ALCOHOLIC BEVERAGES; PROHIBITING THE MANUFACTURE, DISTRIBUTION AND SALE OF FLAVORED MALT ENERGY BEVERAGES CONTAINING STIMULANTS; AMENDING AND ENACTING SECTIONS OF THE LIQUOR CONTROL ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. A new section of the Liquor Control Act is enacted to read:
"[NEW MATERIAL] IMPORT, MANUFACTURE, DISTRIBUTION OR SALE OF FLAVORED MALT ENERGY BEVERAGES CONTAINING STIMULANTS PROHIBITED.--
A. A flavored malt energy beverage shall not be imported, manufactured, distributed, sold or offered for sale anywhere in the state.
B. As used in this section, "flavored malt energy beverage" means a flavored malt beverage containing at least one-half percent alcohol by volume and containing caffeine, carnitine, eleutherococcus senticosus, guarana, Ilex paraguarienis, Panax ginseng, Panax quinquefolius or taurine and:
(1) that is produced by a brewer as defined in 26 U.S.C. Section 5092; or
(2) for which the producer is required to file a formula for approval with the United States alcohol and tobacco trade and tax bureau pursuant to 27 C.F.R. Section 25.55."
Section 2. Section 60-3A-3 NMSA 1978 (being Laws 1981, Chapter 39, Section 3, as amended) is amended to read:
"60-3A-3. DEFINITIONS.--As used in the Liquor Control Act:
A. "alcoholic beverages" means distilled or rectified spirits, potable alcohol, brandy, whiskey, rum, gin and aromatic bitters bearing the federal internal revenue strip stamps or any similar alcoholic beverage, including blended or fermented beverages, dilutions or mixtures of one or more of the foregoing containing more than one-half percent alcohol, but excluding medicinal bitters;
B. "beer" means an alcoholic beverage obtained by the fermentation of any infusion or decoction of barley, malt and hops or other cereals in water, and includes porter, beer, ale and stout;
C. "brewer" means a person who owns or operates a business for the manufacture of beer;
D. "club" means:
(1) any nonprofit group, including an auxiliary or subsidiary group, organized and operated under the laws of this state, with a membership of not less than fifty members who pay membership dues at the rate of not less than five dollars ($5.00) per year and who, under the constitution and bylaws of the club, have all voting rights and full membership privileges, and which group is the owner, lessee or occupant of premises used exclusively for club purposes and which group the director finds:
(a) is operated solely for recreation, social, patriotic, political, benevolent or athletic purposes; and
(b) has been granted an exemption by the United States from the payment of the federal income tax as a club under the provisions of Section 501(a) of the Internal Revenue Code of 1986, as amended, or, if the applicant has not operated as a club for a sufficient time to be eligible for the income tax exemption, it must execute and file with the director a sworn letter of intent declaring that it will, in good faith, apply for [such] an income tax exemption as soon as it is eligible; or
(2) an airline passenger membership club operated by an air common carrier that maintains or operates a clubroom at an international airport terminal. For the purposes of this paragraph, "air common carrier" means a person engaged in regularly scheduled air transportation between fixed termini under a certificate of public convenience and necessity issued by the civil aeronautics board;
E. "commission" means the secretary of public safety when the term is used in reference to the enforcement and investigatory provisions of the Liquor Control Act and means the superintendent of regulation and licensing when the term is used in reference to the licensing provisions of the Liquor Control Act;
F. "department" means the special investigations division of the department of public safety when the term is used in reference to the enforcement and investigatory provisions of the Liquor Control Act and means the director of the alcohol and gaming division of the regulation and licensing department when the term is used in reference to the licensing provisions of the Liquor Control Act;
G. "director" means the director of the special investigations division of the department of public safety when the term is used in reference to the enforcement and investigatory provisions of the Liquor Control Act and means the director of the alcohol and gaming division of the regulation and licensing department when the term is used in reference to the licensing provisions of the Liquor Control Act;
H. "dispenser" means a person licensed under the provisions of the Liquor Control Act selling, offering for sale or having in [his] the person's possession with the intent to sell alcoholic beverages both by the drink for consumption on the licensed premises and in unbroken packages for consumption and not for resale off the licensed premises;
I. "distiller" means a person engaged in manufacturing spirituous liquors;
J. "flavored malt beverage" means an alcoholic beverage that is fermented in a manner similar to beer, from which some or all of the fermented alcohol has been removed and replaced with distilled ethyl alcohol, and:
(1) that contains at least one-half of one percent alcohol by volume;
(2) that is treated by processing, filtration or another method of manufacture that is not generally recognized as a traditional process in the production of beer as described in 27 C.F.R. Section 25.55;
(3) to which is added flavor or other ingredients containing alcohol, except for a hop extract;
(4) for which the producer is required to file a formula for approval with the United States alcohol and tobacco tax and trade bureau pursuant to 27 C.F.R. Section 25.55; and
(5) that is not exempt pursuant to Subdivision (f) of 27 C.F.R. Section 25.55;
[J.] K. "golf course" means a tract of land and facilities used for playing golf and other recreational activities that includes tees, fairways, greens, hazards, putting greens, driving ranges, recreational facilities, patios, pro shops, cart paths and public and private roads that are located within the tract of land;
[K.] L. "governing body" means the board of county commissioners of a county or the city council or city commissioners of a municipality;
[L.] M. "hotel" means an establishment or complex having a resident of New Mexico as a proprietor or manager and where, in consideration of payment, meals and lodging are regularly furnished to the general public. The establishment or complex must maintain for the use of its guests a minimum of twenty-five sleeping rooms;
[M.] N. "licensed premises" means the contiguous areas or areas connected by indoor passageways of a structure and the outside dining, recreation and lounge areas of the structure that are under the direct control of the licensee and from which the licensee is authorized to sell, serve or allow the consumption of alcoholic beverages under the provisions of its license; provided that in the case of a restaurant, including a restaurant that has operated continuously in two separate structures since July 1, 1987 and that is located in a local option district that has voted to disapprove the transfer of liquor licenses into that local option district, hotel, golf course or racetrack, "licensed premises" includes all public and private rooms, facilities and areas in which alcoholic beverages are sold or served in the customary operating procedures of the restaurant, hotel, golf course or racetrack;
[N.] O. "local option district" means a county that has voted to approve the sale, serving or public consumption of alcoholic beverages, or [any] an incorporated municipality that falls within a county that has voted to approve the sale, serving or public consumption of alcoholic beverages, or [any] an incorporated municipality of over five thousand population that has independently voted to approve the sale, serving or public consumption of alcoholic beverages under the terms of the Liquor Control Act or any former act;
[O.] P. "manufacturer" means a distiller, rectifier, brewer or winer;
[P.] Q. "minor" means a person under twenty-one years of age;
[Q.] R. "package" means an immediate container of alcoholic beverages that is filled or packed by a manufacturer or wine bottler for sale by the manufacturer or wine bottler to wholesalers;
[R.] S. "person" means an individual, corporation, firm, partnership, copartnership, association or other legal entity;
[S.] T. "rectifier" means a person who blends, mixes or distills alcohol with other liquids or substances for the purpose of making an alcoholic beverage for the purpose of sale other than to the consumer by the drink, and includes all bottlers of spirituous liquors;
[T.] U. "restaurant" means an establishment having a New Mexico resident as a proprietor or manager that is held out to the public as a place where meals are prepared and served primarily for on-premises consumption to the general public in consideration of payment and that has a dining room, a kitchen and the employees necessary for preparing, cooking and serving meals; provided that "restaurant" does not include establishments as defined in rules promulgated by the director serving only hamburgers, sandwiches, salads and other fast foods;
[U.] V. "retailer" means a person licensed under the provisions of the Liquor Control Act selling, offering for sale or having in [his] the person's possession with the intent to sell alcoholic beverages in unbroken packages for consumption and not for resale off the licensed premises;
[V.] W. "spirituous liquors" means alcoholic beverages as defined in Subsection A of this section except fermented beverages such as wine, beer and ale;
[W.] X. "wholesaler" means a person whose place of business is located in New Mexico and who sells, offers for sale or possesses for the purpose of sale any alcoholic beverages for resale by the purchaser;
[X.] Y. "wine" includes the words "fruit juices" and means alcoholic beverages obtained by the fermentation of the natural sugar contained in fruit or other agricultural products, with or without the addition of sugar or other products, that do not contain less than one-half percent nor more than twenty-one percent alcohol by volume;
[Y.] Z. "wine bottler" means a New Mexico wholesaler who is licensed to sell wine at wholesale for resale only and who buys wine in bulk and bottles it for wholesale resale;
[Z.] AA. "winegrower" means a person who owns or operates a business for the manufacture of wine; and
[AA.] BB. "winer" means a winegrower."
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