SENATE BILL 512
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Phil A. Griego
AN ACT
RELATING TO ALCOHOLIC BEVERAGES; PROVIDING ENFORCEMENT DUTIES TO LOCAL LAW ENFORCEMENT AGENCIES; ADDING DEFINITIONS TO THE LIQUOR CONTROL ACT; ADDRESSING THE REQUIREMENTS FOR CERTAIN LICENSES; CREATING A NEW TYPE OF LICENSE; CLARIFYING THE PROCESS FOR DECISIONS ON LICENSE APPLICATIONS AND TRANSFERS; CLARIFYING INTER-LOCAL OPTION DISTRICT TRANSFERS; ENHANCING SUSPENSION, REVOCATION AND FINES FOR VIOLATIONS OF THE LIQUOR CONTROL ACT; ADDRESSING THE LOCATION OF HEARINGS; REQUIRING CANCELLATION AND DESTRUCTION OF REVOKED LICENSES; ADDING PERSONS TO THE DEFINITION OF "SERVER"; CLARIFYING VIOLATIONS OF THE LIQUOR CONTROL ACT; CLARIFYING WHEN MINORS CAN BE IN LICENSED PREMISES; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978; RECONCILING MULTIPLE AMENDMENTS TO THE SAME SECTION OF LAW IN LAWS 1999.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 3-13-2 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-12-2, as amended) is amended to read:
"3-13-2. POLICE OFFICERS.--
A. The police officer of a municipality shall:
(1) execute and return all writs and process as directed by the municipal judge of the municipality employing the police officer;
(2) execute and return all criminal process as directed by the municipal judge of any incorporated municipality in the state if the criminal process arises out of a charge of violation of a municipal ordinance prohibiting driving while under the influence of intoxicating liquor or drugs;
(3) serve criminal writs and process specified in Paragraphs (1) and (2) of this subsection in any part of the county wherein the municipality is situated; and
(4) within the municipality:
(a) suppress all riots, disturbances and breaches of the peace;
(b) apprehend all disorderly persons;
(c) pursue and arrest any person fleeing from justice; and
(d) apprehend any person in the act of violating the laws of the state or the ordinances of the municipality and bring [him] the person before competent authority for examination and trial.
B. The police officer of a municipality may issue citations for violations of the Liquor Control Act.
[B.] C. In the discharge of [his] proper duties, a police officer shall have the same powers and be subject to the same responsibilities as sheriffs in similar cases."
Section 2. Section 4-41-2 NMSA 1978 (being Laws 1865, Chapter 99, Section 3, as amended) is amended to read:
"4-41-2. DUTIES OF SHERIFF.--[Sec. 199.]
A. The sheriff shall be conservator of the peace within [his] the sheriff's county, shall suppress assaults and batteries and apprehend and commit to jail all felons and traitors and shall cause all offenders to keep the peace and to appear at the next term of the court and answer such charges as may be preferred against them.
B. The sheriff may issue citations for violations of the Liquor Control Act."
Section 3. Section 29-1-1 NMSA 1978 (being Laws 1921, Chapter 170, Section 1, as amended) is amended to read:
"29-1-1. INVESTIGATION OF CRIMINAL VIOLATIONS--COMMENCEMENT OF PROSECUTION--COOPERATION--REMOVAL.--It is [hereby declared to be] the duty of every sheriff, deputy sheriff [constable] and [every other] peace officer to investigate all violations of the criminal laws of the state, [which] including violations of the Liquor Control Act, that are called to the attention of any such officer or of which [he] the officer is aware [and]. It is also [declared] the duty of every such officer to diligently file a complaint or information, if the circumstances are such as to indicate to a reasonably prudent person that [such] the action should be taken [and]. It is also [declared his] the officer's duty to cooperate with and assist the attorney general, district attorney or other prosecutor, if any, in all reasonable ways. [Such] The cooperation [shall include] includes the prompt reporting of all arrests for liquor law violations at licensed liquor establishments to the [department of alcoholic beverage control] alcohol and gaming division of the regulation and licensing department. Failure to perform [his] the officer's duty in any material way shall subject [such] the officer to removal from office and to payment of all costs of prosecution."
Section 4. 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] federal aviation administration;
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. "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. "governing body" means the board of county commissioners of a county or the city council or city commissioners of a municipality;
L. "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. "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. "limited dispenser" means a person licensed under the provisions of the Liquor Control Act selling, offering for sale or having in the limited dispenser‛s possession with the intent to sell alcoholic beverages by the drink for consumption on the licensed premises, which licensed premises is operated as a restaurant in a rural area of a local option district that has approved inter-local option license transfers and has not exceeded the maximum number of licenses pursuant to Section 60-6A-18 NMSA 1978;
[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;
T. "public nuisance" means knowingly creating, allowing or maintaining an activity that is injurious to public health, safety, morals or welfare, that is indecent, that is offensive to the senses or that is an obstruction to the use of property that interferes with the comfortable enjoyment of life or property by an entire community or neighborhood or by a significant number of persons; and "public nuisance" includes disturbing the peace; public drunkenness; drinking in public; unlicensed gambling; prostitution; public urination; lewd conduct; possession, distribution or trafficking in illegal drugs; excessive loud noise; failure to comply with the provisions of the Liquor Control Act; or any other illegal activity;
[S.] U. "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.] V. "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.] W. "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;
X. "rural community" means an area ten or more miles outside of a metropolitan statistical area, as determined in New Mexico by the United States census bureau, with a population of forty thousand or less;
[V.] Y. "spirituous liquors" means alcoholic beverages as defined in Subsection A of this section except fermented beverages such as wine, beer and ale;
[W.] Z. "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.] AA. "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.] BB. "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.] CC. "winegrower" means a person who owns or operates a business for the manufacture of wine; and
[AA.] DD. "winer" means a winegrower."
Section 5. Section 60-3A-6 NMSA 1978 (being Laws 1987, Chapter 254, Section 24, as amended) is amended to read:
"60-3A-6. AUTHORITY OF [DEPARTMENT OF PUBLIC SAFETY] LAW ENFORCEMENT AGENCIES.--
A. The department of public safety has primary authority over all investigations and enforcement activities required under the Liquor Control Act except for those provisions relating to the issuance, denial, suspension or revocation of licenses, unless its assistance is requested by the director of the alcohol and gaming division of the regulation and licensing department.
B. Municipal and county law enforcement agencies may enforce the Liquor Control Act by issuing citations when violations of that act become known to them."
Section 6. Section 60-3A-12 NMSA 1978 (being Laws 2007, Chapter 78, Section 1) is amended to read:
"60-3A-12. PARTIALLY CONSUMED BOTTLE OF WINE--LICENSED PREMISES.--
A. Notwithstanding any other provision of law, a dispenser, canopy licensee, [or] restaurant licensee or limited dispenser may permit a customer of the licensee to remove from the licensed premises one opened bottle of partially consumed wine; provided that:
(1) the customer has purchased a full-course meal and a bottle of wine and consumed a portion of the bottle of wine with the meal on the licensed premises; and
(2) the dispenser, canopy licensee, [or] restaurant licensee or limited dispenser or an agent or employee of the dispenser, canopy licensee, [or] restaurant licensee or limited dispenser attaches the customer receipt issued for the bottle of wine and reseals the bottle of partially consumed wine by reinserting a cork and sealing the bottle in a tamper-proof bag.
B. When operating a motor vehicle, the customer shall possess and transport the partially consumed bottle of wine in accordance with Section 66-8-138 NMSA 1978."
Section 7. Section 60-4B-4.1 NMSA 1978 (being Laws 1993, Chapter 329, Section 1) is amended to read:
"60-4B-4.1. LOCAL LAW ENFORCEMENT--DEPARTMENT OF PUBLIC SAFETY--REPORTING REQUIREMENTS--AUTHORITY TO REQUEST INVESTIGATIONS.--
A. Within thirty days following the date of issuance of a citation pursuant to the provisions of the Liquor Control Act, the department of public safety or the law enforcement agency of a municipality or county shall report alleged violations of that act to the alcohol and gaming division of the regulation and licensing department. Failure of the department of public safety or a local law enforcement agency to report violations of the Liquor Control Act within thirty days is not grounds for dismissal of the citation.
B. The director of the alcohol and gaming division of the regulation and licensing department may request the investigators of the special investigations division of the department of public safety to investigate licensees or activities that the director has reasonable cause to believe are in violation of the Liquor Control Act."
Section 8. Section 60-6A-9 NMSA 1978 (being Laws 1981, Chapter 39, Section 26) is amended to read:
"60-6A-9. PUBLIC SERVICE LICENSE.--
A. Every person selling alcoholic beverages to travelers on trains or airplanes within the state shall secure a public service license from the department on or before July 1 of each year.
B. A photostatic copy of the license shall be posted in each train car from which alcoholic beverages are sold in this state or on the premises at each airport in this state where alcoholic beverages are stored and issued to airplanes."
Section 9. Section 60-6A-10 NMSA 1978 (being Laws 1981, Chapter 39, Section 27, as amended) is amended to read:
"60-6A-10. GOVERNMENTAL LICENSE.--
A. Except as provided in Subsection G of this section, a governmental entity may sell alcoholic beverages directly or through its lessee at a governmental facility if the governing body applies to the director for a governmental license. The governmental entity and its lessee shall be subject to all state laws and regulations governing dispensers.
B. A governmental license may be leased to a qualified lessee and may only be used by the lessee for its operation during events authorized by the governmental entity at the governmental facility designated on the governmental license. The governmental entity and its lessee shall not sell alcoholic beverages for consumption off the licensed premises. On the licensed premises of a municipal baseball park, the sale or service of alcoholic beverages in unbroken packages is allowed. Alcoholic beverages shall not be removed from the licensed premises of a municipal baseball park. A server as defined in Section 60-6E-3 NMSA 1978 is not required to be present in a skybox to serve alcoholic beverages to the person leasing the skybox or [his] the person's guests.
C. A governmental entity holding a governmental license shall annually and not less than sixty days prior to the date for renewal of its license submit to the director documentary proof that its lessee is fully qualified to be a lessee of a governmental license. If the director finds that the lessee is qualified to lease a governmental license, the director shall renew the license for an additional period of one year. If the director determines that the proof is inadequate, [he] the director shall notify the governing body of [his] the decision and shall conduct a hearing as provided by law. If the director finds that the lessee does not qualify and the governmental entity does not change its lessee, the director shall revoke the license.
D. The provisions of Section 60-6A-18 NMSA 1978 shall not apply to governmental licenses.
E. For the purposes of this section:
(1) "governmental entity" means a municipality, a county, a state fair that is held for [less] fewer than ten days per year, the state fair commission, a state museum, [or] a state university or a tribal government;
(2) "governmental facility" means locations on property owned or operated by a governmental entity, including county fairs; state fairs held for [less] fewer than ten days per year; convention centers; airports; civic centers; food service facilities in state museums; auditoriums; all facilities on the New Mexico state fairgrounds; facilities used for athletic competitions; golf courses, including golf courses required to be used for municipal purposes notwithstanding that there may be an existing club license at the same location operated by the same club licensee; and other facilities used for cultural or artistic performances, but "governmental facility" does not include tennis facilities;
(3) "lessee" means an individual, corporation, partnership, firm or association that fulfills the requirements set forth in Subsections A through D of Section 60-6B-2 NMSA 1978;
(4) "municipal baseball park" means a governmental facility owned by a government entity in a class A county having a population of three hundred fifty thousand or more pursuant to the most recent federal decennial census that is the home stadium of an affiliate of a professional baseball team and that may be used throughout the year for baseball games and other events; and
(5) "skybox" means a room or area of seating of a municipal baseball park, separated from the general seating and usually located in the upper decks of the park, leased to a person for that person's exclusive use during baseball games and at any other time throughout the year.
F. The provisions of Section 60-6B-10 NMSA 1978 as regards to golf courses owned by a governmental entity and civic centers owned and operated by a governmental entity shall not apply to governmental licenses.
G. A governmental entity that sells alcoholic beverages directly or indirectly through a lessee at a governmental facility that is [a food service facility in a state museum or] a golf course required to be used for municipal purposes may only sell beer and wine."
Section 10. A new section of Chapter 60, Article 6A NMSA 1978 is enacted to read:
"[NEW MATERIAL] LIMITED DISPENSER LICENSE.--
A. In a rural community of a local option district that has approved inter-local option license transfers, a person may apply for and be issued, after submitting an application prescribed by the director and meeting all the requirements of the Liquor Control Act, a limited dispenser license to permit the sale, service and consumption of alcoholic beverages in a restaurant subject to the following application and license requirements, conditions and restrictions:
(1) the maximum number of licenses that may be issued in the unincorporated area of the county in which the rural community sits pursuant to Section 60-6A-18 NMSA 1978 has not been exceeded, but the limited dispenser license shall not count in the computation of allowable licenses as provided in that section;
(2) the person shall submit evidence to the director that the person has a current valid food service establishment permit;
(3) the person shall satisfy the director that the primary source of revenue from the operation of the restaurant will be derived from meals and not from the sale of alcoholic beverages;
(4) the person may renew the license annually and the director shall condition renewal upon a requirement that no less than fifty-five percent of gross receipts from the preceding twelve months' operation of the restaurant was derived from the sale of meals;
(5) upon application for renewal, the person shall submit an annual report to the director indicating the annual gross receipts from the sale of meals and from the sale of alcoholic beverages;
(6) except as provided in Section 60-3A-12 NMSA 1978, the license does not permit the sale of alcoholic beverages, whether in unbroken packages or not, for consumption off the licensed premises;
(7) the license shall not permit the sale, service and consumption of alcoholic beverages after the time meal sales and service ceases or after 11:00 p.m., whichever time is earlier;
(8) if Sunday sales have been approved in the local option district, the license shall permit, subject to Section 60-7A-1 NMSA 1978, the sale, service and consumption of alcoholic beverages on Sundays until the time meal sales and service ceases or 11:00 p.m., whichever time is earlier; and
(9) the license shall not be transferable from person to person or from one location to another, and whenever a licensee ceases to operate a restaurant at the licensed premises, the director shall cancel the license.
B. The provisions of Section 60-6A-18 NMSA 1978 shall not apply to a limited dispenser license.
C. Nothing in this section shall prevent a limited dispenser licensee from receiving other licenses pursuant to the Liquor Control Act."
Section 11. Section 60-6A-15 NMSA 1978 (being Laws 1981, Chapter 39, Section 32, as amended) is amended to read:
"60-6A-15. LICENSE FEES.--Every application for the issuance or renewal of the following licenses shall be accompanied by a license fee in the following specified amounts:
A. manufacturer's license as a distiller, except a brandy manufacturer, three thousand dollars ($3,000);
B. manufacturer's license as a brewer, three thousand dollars ($3,000);
C. manufacturer's license as a rectifier, one thousand fifty dollars ($1,050);
D. wholesaler's license to sell all alcoholic beverages for resale only, two thousand five hundred dollars ($2,500);
E. wholesaler's license to sell spirituous liquors and wine for resale only, one thousand seven hundred fifty dollars ($1,750);
F. wholesaler's license to sell spirituous liquors for resale only, one thousand five hundred dollars ($1,500);
G. wholesaler's license to sell beer and wine for resale only, one thousand five hundred dollars ($1,500);
H. wholesaler's license to sell beer for resale only, one thousand dollars ($1,000);
I. wholesaler's license to sell wine for resale only, seven hundred fifty dollars ($750);
J. retailer's license, one thousand three hundred dollars ($1,300);
K. dispenser's license, one thousand three hundred dollars ($1,300);
L. canopy license, one thousand three hundred dollars ($1,300);
M. restaurant license, one thousand fifty dollars ($1,050);
N. club license, for clubs with more than two hundred fifty members, one thousand two hundred fifty dollars ($1,250), and for clubs with two hundred fifty members or fewer, two hundred fifty dollars ($250);
O. wine bottler's license to sell to wholesalers only, five hundred dollars ($500);
P. public service license, one thousand two hundred fifty dollars ($1,250);
Q. nonresident licenses, for a total billing to New Mexico wholesalers:
(1) in excess of:
$3,000,000 annually. . . . . . . . . . . . . . . . . . $10,500;
1,000,000 annually. . . . . . . . . . . . . . . . . . . 5,250;
500,000 annually. . . . . . . . . . . . . . . . . . . 3,750;
200,000 annually. . . . . . . . . . . . . . . . . . . 2,700;
100,000 annually. . . . . . . . . . . . . . . . . . . 1,800;
and
50,000 annually. . . . . . . . . . . . . . . . . . . . 900;
and
(2) of $50,000 or less annually
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . $300;
R. wine wholesaler's license, for persons with sales of five thousand gallons of wine per year or less, twenty-five dollars ($25.00), and for persons with sales in excess of five thousand gallons of wine per year, one hundred dollars ($100); [and]
S. beer bottler's license, two hundred dollars ($200); and
T. limited dispenser license, one thousand five hundred dollars ($1,500)."
Section 12. Section 60-6B-2 NMSA 1978 (being Laws 1981, Chapter 39, Section 38, as amended) is amended to read:
"60-6B-2. APPLICATIONS.--
A. Before a new license authorized by the Liquor Control Act may be issued by the director, or before the transfer of a license may be approved, the applicant for the license or transfer shall:
(1) submit to the director a written application for the license under oath, in the form prescribed by and stating the information required by the director, together with a nonrefundable application fee of two hundred dollars ($200);
(2) submit to the director for approval a description, including floor plans, in a form prescribed by the director, that shows the proposed licensed premises for which the license application is submitted. The area represented by the approved description shall become the licensed premises;
(3) submit the name and street address of a New Mexico resident who is not a felon, together with two complete sets of that person's fingerprints taken under the supervision of and certified to by a New Mexico law enforcement officer or another person qualified to take fingerprints by virtue of training or experience, who has power of attorney and authority to bind the applicant to matters related to liquor sales and operations and upon whom the director may serve any notice related to ownership or operation of the license, including any notice of charge pursuant to Chapter 60, Article 6C NMSA 1978;
(4) if the applicant is a corporation, be required to submit as part of its application the following:
(a) a certified copy of its articles of incorporation or, if a foreign corporation, a certified copy of its certificate of authority;
(b) the names and addresses of all officers and directors and those stockholders owning ten percent or more of the voting stock of the corporation and the amounts of stock held by each stockholder; provided, however, that a corporation may not be licensed if an officer, manager, director or holder of more than a ten percent interest in the applicant entity would not be eligible to hold a license pursuant to the Liquor Control Act; and
(c) such additional information regarding the corporation as the director may require to assure full disclosure of the corporation's structure and financial responsibility;
(5) if the applicant is a limited partnership, submit as part of its application the following:
(a) a certified copy of its certificate of limited partnership;
(b) the names and addresses of all general partners and of all limited partners contributing ten percent or more of the total value of contributions made to the limited partnership or entitled to ten percent or more of the profits earned or other income paid by the limited partnership. A limited partnership shall not receive a license if a partner or holder of a ten percent or greater interest in the applicant entity designated in this subsection would not be eligible to hold a license issued pursuant to the Liquor Control Act; and
(c) such additional information regarding the limited partnership as the director may require to assure full disclosure of the limited partnership's structure and financial responsibility;
(6) if the applicant is a limited liability company, submit as part of its application the following:
(a) a copy of the articles of organization, with a copy of the certificate of filing with the public regulation commission;
(b) the name and addresses of all the managing members and all of the nonmanaging members that own a greater than ten percent interest in the limited liability company. Any direct or indirect parent entity of the limited liability company with an interest of ten percent or more in the applicant entity shall submit application forms and qualify to hold a license; and
(c) such additional information regarding the limited liability company as the director may require to assure full disclosure of the limited liability company's structure and financial responsibility;
(7) if the applicant is a trust, submit as part of its application:
(a) the names and addresses of the trustees;
(b) the names and addresses of any beneficiaries having control over the property of the trust or receiving regular and substantial distributions of principal and income from the trust. Any beneficiary receiving regular and substantial distributions from the trust shall qualify to hold a license. The director may request a copy of the trust agreement for review, which trust agreement need not become part of the application. Affidavits as to the operation and distribution of the principal and income may be requested in lieu of, or in addition to, the copy of the trust agreement that is supplied for review by the department; and
(c) such additional information regarding the trust as the director may require to assure full disclosure of the trust's structure and financial responsibility; and
(8) obtain approval for the issuance from the governing body of the local option district in which the proposed licensed premises are to be located [in accordance with the provisions of the Liquor Control Act] pursuant to Section 60-6B-4 NMSA 1978.
B. Except for individual officers, directors, shareholders, members or partners of entities that are publicly traded on a national stock exchange and for individuals who have been fingerprinted for another New Mexico license and had no prior criminal or arrest record, every applicant for a new license or for a transfer of ownership of a license shall file with the application two complete sets of fingerprints taken under the supervision of and certified to by an officer of the New Mexico state police, a county sheriff, a municipal chief of police, a police officer in a foreign country or an individual qualified to take fingerprints by virtue of training or experience, for each of the following individuals:
(1) if the applicant is a person, for the applicant;
(2) if the applicant or the holder of a ten percent or greater interest in the applicant entity is a corporation, for each principal officer, for each member of the board of directors and for each stockholder with a ten percent or greater interest in the applicant entity;
(3) if the applicant or the holder of a ten percent or greater interest in the applicant entity is a general partnership, for each partner;
(4) if the applicant or the holder of a ten percent or greater interest in the applicant entity is a limited partnership, for each general partner, for each limited partner holding a ten percent or greater interest in the applicant entity and for any principal officers of the limited partnership;
(5) if the applicant or the holder of a ten percent or greater interest in the applicant entity is a limited liability company, for each managing member, for each member who owns a ten percent or greater interest in the applicant entity and for any principal officer of the limited liability company; and
(6) if the applicant is a trust, for each trustee and for each beneficiary who has control over trust property and income or who receives substantial and regular distributions from the trust.
C. Upon submission of a sworn affidavit from each person who is required to file fingerprints stating that the person has not been convicted of a felony in any jurisdiction and pending the results of background investigations, a temporary license for ninety days may be issued. The temporary license may be extended by the director for an additional ninety days if the director determines there is not sufficient time to complete the background investigation or obtain reviews of fingerprints from appropriate agencies. A temporary license shall be surrendered immediately upon order of the director.
D. An applicant who files a false affidavit shall be denied a license. When the director determines a false affidavit has been filed, the director shall refer the matter to the attorney general or district attorney for prosecution of perjury.
E. If an applicant is not a resident of New Mexico, fingerprints may be taken under supervision and certification of comparable officers in the state of residence of the applicant.
F. Before issuing a license or transferring a license pursuant to Subsection G of this section, the department shall hold a public hearing pursuant to Subsection K of this section within [thirty] fifty days after receipt of [the application pursuant to Subsection K of this section] a completed application as determined by the director.
G. An application for transfer of ownership shall be filed with the department no later than thirty days after the date a person acquired an ownership interest in a license. It shall contain the actual date of sale of the license and shall be accompanied by a sworn affidavit from the owner of record of the license agreeing to the sale of the license to the applicant as well as attesting to the accuracy of the information required by this section to be filed with the department. A license shall not be transferred unless it will be placed into operation in an actual location within one hundred twenty days of issuance of the license, unless for good cause shown the director grants an additional extension for a length of time determined by the director.
H. Whenever it appears to the director that there will be more applications for new licenses than the available number of new licenses during any time period, a random selection method for the qualification, approval and issuance of new licenses shall be provided by the director. The random selection method shall allow each applicant an equal opportunity to obtain an available license, provided that all dispenser's and retailer's licenses issued in a calendar year shall be issued to residents of the state. For the purposes of random selection, the director shall also set a reasonable deadline by which applications for the available licenses shall be filed. A person shall not file more than one application for each available license and no more than three applications per calendar year.
I. After the deadline set in accordance with Subsection H of this section, no more than ten applications per available license shall be selected at random for priority of qualification and approval. Within thirty days after the random selection for the ten priority positions for each license, a hearing pursuant to Subsection K of this section shall be held to determine the qualifications of the applicant having the highest priority for each available license. If necessary, such a hearing shall be held on each selected application by priority until a qualified applicant for each available license is approved. Further random selections for priority positions shall also be held pursuant to this section as necessary.
J. All applications submitted for a license shall expire upon the director's final approval of a qualified applicant for that available license.
K. The director shall notify the applicant by certified mail of the date, time and place of [the] a hearing. The hearing shall be held in Santa Fe. The director may designate a hearing officer to take evidence at the hearing. The director or the hearing officer shall have the power to administer oaths.
L. In determining whether a license shall be issued or transferred, the director shall take into consideration all requirements of the Liquor Control Act and the decision of the governing body of the local option district pursuant to Section 60-6B-4 NMSA 1978. In the [issuance of a license] determination, the director shall specifically consider the nature and number of prior violations of the Liquor Control Act by the applicant or of any citations issued within the prior five years against a license held by the applicant or in which the applicant had an ownership interest required to be disclosed under the Liquor Control Act. The director shall approve or disapprove the issuance [or give preliminary approval of the issuance] or transfer of the license based upon a review of all documentation submitted, the governing body hearing record and any investigation deemed necessary by the director.
M. Before a new license is issued for or transferred to a location, the director shall cause a notice of the application for the license to be posted conspicuously, on a sign not smaller than thirty inches by forty inches, on the outside of the front wall or front entrance of the immediate premises for which the license is sought, or, if no building or improvements exist on the premises, the notice shall be posted at the front entrance of the immediate premises for which the license is sought on a billboard not smaller than five feet by five feet. The contents of the notice shall be in the form prescribed by the department, and such posting shall be over a continuous period of twenty days prior to [preliminary approval of the license] the hearing pursuant to Subsection F of this section. The director shall prescribe the manner in which the posting may be accomplished by the licensee, the licensee's representative or the director's designee.
N. A license shall not be issued or transferred until the posting requirements of Subsection M of this section have been met.
O. All costs of publication and posting shall be paid by the applicant.
P. It is unlawful for a person to remove or deface a notice posted in accordance with this section. A person convicted of a violation of this subsection shall be punished by a fine of not more than three hundred dollars ($300) or by imprisonment in the county jail for not more than one hundred twenty days or by both.
Q. A person aggrieved by a decision made by the director as to the approval or disapproval of the issuance or transfer of a license may appeal to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978. If the director's disapproval is based upon [local option district] governing body disapproval pursuant to [Subsection H of] Section 60-6B-4 NMSA 1978, the [local option district] governing body shall be a necessary party to an appeal. The decision of the director shall continue in force, pending a reversal or modification by the district court, unless otherwise ordered by the court."
Section 13. Section 60-6B-4 NMSA 1978 (being Laws 1981, Chapter 39, Section 40) is amended to read:
"60-6B-4. ISSUANCE OR TRANSFER OF LICENSE--APPROVAL OF APPROPRIATE GOVERNING BODY.--
A. [Prior to the approval of] Upon receipt of a completed application, as determined by the director, for the issuance of a new license [and prior to the approval of any transfer permitted by Section 39 or 113 of the Liquor Control Act] or transfer of a license, the director shall notify the governing body of the local option district where the licensed premises will be or are located of [his preliminary approval of the issuance or transfer of the license. Notice to the governing body shall be] the application by certified mail.
B. A governing body [which] that has received a notice of [preliminary approval of] an application for the issuance or transfer of a license from the department may approve or disapprove the issuance or transfer of the license in accordance with the provisions of this section.
C. Within [forty-five] thirty-five days after receipt of a notice of [preliminary approval] an application from the department, the governing body shall hold a public hearing on the question of whether the [department] director should approve the proposed issuance or transfer. If the governing body does not hold a hearing within the prescribed time, the director shall approve or disapprove the application for a new license or transfer of a license based upon the hearing held pursuant to Subsections F and K of Section 60-6B-2 NMSA 1978.
D. Notice of the public hearing required by Subsection C of this section shall be given by the governing body by:
(1) publishing a notice of the date, time and place of the hearing at least once a week for two consecutive weeks, with the last publication taking place at least one week prior to the hearing, in a newspaper of general circulation within the territorial limits of the governing body. The notice shall set forth:
(a) the name and address of the licensee;
(b) the action proposed to be taken by the department;
(c) the location of the licensee's premises; [and]
(d) an invitation for public comment; and
[(d)] (e) such other information as may be required by the department; and
(2) sending a notice by certified mail to the applicant of the date, time and place of the public hearing.
E. The governing body may designate a hearing officer to conduct the hearing. A record shall be made of the hearing.
F. The governing body may disapprove the issuance or transfer of the license if:
(1) the proposed location is within an area where the sale of alcoholic beverages is prohibited by the laws of New Mexico;
(2) the issuance or transfer would be in violation of a zoning or other ordinance of the governing body; or
(3) the issuance or transfer would be detrimental to the public health, safety or morals of the residents of the local option district.
G. Within [thirty] ten days after the public hearing, the governing body shall notify the department as to whether the governing body has approved or disapproved the proposed issuance or transfer of the license and shall submit with the notice a copy of the minutes of the public hearing. If the governing body fails to either approve or disapprove the issuance or transfer of the license within [thirty] ten days after the public hearing, the director [may give final approval to the issuance or transfer of the license] shall approve or disapprove the issuance or transfer based upon the hearing held pursuant to Subsections F and K of Section 60-6B-2 NMSA 1978.
[H. If the governing body disapproves the issuance or transfer of the license, it shall notify the department within the time required by Subsection G of this section setting forth the reasons for the disapproval. A copy of the minutes of the public hearing shall be submitted to the department by the governing body with the notice of disapproval. If the governing body disapproves of the issuance or transfer of the license, the director shall disapprove the issuance or transfer of the license.
I. If the governing body approves the issuance or transfer of the license, it shall notify the department within the time required by Subsection G of this section of its approval. If the governing body approves of the issuance or transfer of the license, the director shall approve the issuance or transfer of the license.]"
Section 14. Section 60-6B-5 NMSA 1978 (being Laws 1981, Chapter 39, Section 41, as amended) is amended to read:
"60-6B-5. EXPIRATION AND RENEWAL OF LICENSES.--
A. All licenses provided for in the Liquor Control Act, except nonresident licenses and common carrier registrations, shall expire on June 30 of each year and may be renewed from year to year under the rules of the department. Current nonresident licenses and common carrier registrations shall expire on June 30, 1998 and may be renewed for three-year periods thereafter. The director shall determine whether any of the licensees under [his] the director's jurisdiction are delinquent in any taxes administered by the taxation and revenue department as of June 1 of each renewal period. The director shall also determine whether [or not] there exists any other reason why a license should not be renewed. If the director determines that the license should not be renewed, [he] the director shall enter an order requiring the licensee, after notice, to show cause why [his] the licensee's license should be renewed, and [he] the director shall conduct a hearing on the matter. If, after the hearing, the director finds that the licensee is qualified, [he] the director shall renew the license.
B. A license that is not renewed for five consecutive years shall expire without option to renew on June 30 of the fifth year after the year the license was issued or last renewed."
Section 15. Section 60-6B-12 NMSA 1978 (being Laws 1981, Chapter 39, Section 113, as amended) is amended to read:
"60-6B-12. INTER-LOCAL OPTION DISTRICT TRANSFERS.--
A. [All] Dispenser's and retailer's licenses originally issued before July 1, 1981, except rural dispenser's and rural retailer's licenses and canopy licenses that were replaced by dispenser's licenses pursuant to Section 60-6B-16 NMSA 1978, may be transferred to any location within the state, except class B counties having a population of between fifty-six thousand and fifty-seven thousand according to the 1980 federal decennial census, the municipalities located within those class B counties and any municipality or county that prohibits by election the transfer of a license from another local option district, without regard to the limitations on the maximum number of licenses provided in Section 60-6A-18 NMSA 1978, not otherwise contrary to law subject to the approval of transferring locations of [such] those liquor licenses [of] by the [governing body] director for that location and provided [all] the requirements of the Liquor Control Act and department regulations for the transfer of licenses are fulfilled and provided further:
[(1) the transfer of location does not lower the number of dispenser's and retailer's licenses below that number allowed by law in the local option district from which a license will be transferred;
(2)] (1) beginning in calendar year 1997, no more than ten dispenser's or retailer's licenses shall be transferred to any local option district in any calendar year;
[(3)] (2) the dispenser's or retailer's licenses transferred under this section shall count in the computation of the limitation of the maximum number of licenses that may be issued in the future in any local option district as provided in Section 60-6A-18 NMSA 1978 for the purpose of determining whether additional licenses may be issued in the local option district [under the provisions of Subsection E of] pursuant to Section 60-6B-2 NMSA 1978; and
[(4)] (3) the dispenser's or retailer's licenses shall be operated or leased by the person who transfers the license to the local option district for at least a period of one year from the date of the approval of the transfer by the department.
B. [Transfers] Transfer of location of [each] a liquor license pursuant to Subsection A of this section shall become effective upon approval of the [local governing body] director, unless within one hundred twenty days after the effective date of the Liquor Control Act a petition requesting an election on the question of approval of statewide transfers of liquor licenses into that local option district is filed with the clerk of the local option district and the petition is signed by at least five percent of the number of registered voters of the district. The clerk of the district shall verify the petition signatures. If the petition is verified as containing the required number of signatures of registered voters, the governing body shall adopt a resolution calling an election on the question of approving or disapproving statewide transfers of liquor licenses into that district. Notice of [such] the election shall be published as provided in Section 3-8-35 NMSA 1978, and the election shall be held within sixty days after the date the petition is verified, or it may be held in conjunction with a regular election of the governing body if [such] the election occurs within sixty days after the date of verification. If a majority of the registered voters of the district voting in such election votes to approve statewide transfers of liquor licenses into the local option district, each license proposing to be transferred shall be subject to the approval of the governing body. If the voters of the district voting in the election vote against the approval, then all statewide transfers of liquor licenses pursuant to Subsection A of this section shall be prohibited in that district unless a petition is filed requesting the question be again submitted to the voters as provided in this subsection. The question of approving or disapproving statewide transfers of liquor licenses into the local option district shall not be submitted again within two years from the date of the last election on the question.
C. Any dispenser's license transferred pursuant to this section outside its local option district shall only entitle the licensee to sell, serve or permit the consumption of alcoholic beverages by the drink on the licensed premises.
D. Rural dispenser's, rural retailer's and rural club licenses issued under any former act may be transferred to any location, subject to the restrictions as to location contained in the Liquor Control Act, within the unincorporated area of the county in which they are currently located; provided that they shall not be transferred to any location within ten miles of another licensed premises; and provided further that all requirements of the Liquor Control Act and department regulations for the transfer of licenses are fulfilled."
Section 16. Section 60-6C-1 NMSA 1978 (being Laws 1981, Chapter 39, Section 97, as amended) is amended to read:
"60-6C-1. GROUNDS FOR SUSPENSION, REVOCATION OR ADMINISTRATIVE FINE--REPORTING REQUIREMENT.--
A. The director may suspend or revoke the license or permit or fine the licensee in an amount not more than ten thousand dollars ($10,000), or both, when [he] the director finds that any licensee has:
(1) violated any provision of the Liquor Control Act or [any regulation] a rule or order promulgated pursuant to that act;
(2) been convicted of a felony pursuant to the provisions of the Criminal Code, the Liquor Control Act or federal law; or
(3) permitted [his] the licensee's licensed premises to be or remain a public nuisance [in the neighborhood where it is located after written notice from the director that investigation by the department has revealed that the establishment is a public nuisance in the neighborhood] without taking reasonable steps to prevent the licensed premises and any adjacent area that is owned, leased or rented by the licensee from being a public nuisance.
B. If the director finds that a licensee or permittee or the licensee's or permittee's employee or agent knew or should have known that the licensee or permittee or the employee or agent of either sold, served or gave alcoholic beverages to a minor in violation of Section 60-7B-1 NMSA 1978 or to an intoxicated person in violation of Section 60-7A-16 NMSA 1978, permitted a minor to enter and remain in a prohibited area in violation of Section 60-7B-10 NMSA 1978 or violated a rule promulgated pursuant to those sections, the director shall suspend or revoke the involved license or permit and shall fine the licensee or permittee in an amount not to exceed ten thousand dollars ($10,000) subject to the following:
(1) for a first violation, the director shall impose a minimum one-day suspension and a minimum two thousand dollar ($2,000) fine;
(2) for a second and subsequent violation, the director shall impose a minimum seven-day suspension and a minimum five thousand dollar ($5,000) fine; and
(3) upon two separate violations within any twelve-month period, the director shall suspend or revoke the license or permit and shall fine the licensee or permitee in an amount not to exceed ten thousand dollars ($10,000).
[B.] C. The director shall suspend or revoke the license or permit and may fine the licensee in an amount not to exceed ten thousand dollars ($10,000), or both, when [he] the director finds that any licensee or
[(1) his] the licensee's employee or agent [knowingly has sold, served or given any alcoholic beverage to a minor in violation of Section 60-7B-1 NMSA 1978 or to an intoxicated person in violation of Section 60-7A-16 NMSA 1978, on two separate occasions within any twelve-month period; or
(2) his agent] has made [any] a material false statement or concealed [any] material facts in [his] the licensee's application for the license or permit granted [him] the licensee pursuant to the provisions of the Liquor Control Act.
[C. Any] D. A licensee aggrieved by a revocation, suspension or fine proposed to be imposed by the director pursuant to this section shall be entitled to the hearing procedures set forth in Chapter 60, Article 6C NMSA 1978 before the revocation, suspension or fine shall be effective.
[D. Any] E. A charge filed against a licensee by the department and the resulting disposition of the charge shall be reported to the department of public safety and local law enforcement agencies whose jurisdictions include the licensed establishment."
Section 17. Section 60-6C-2 NMSA 1978 (being Laws 1981, Chapter 39, Section 98, as amended) is amended to read:
"60-6C-2. HEARINGS--LOCATION--OPEN TO PUBLIC--HEARING OFFICER.--
A. All hearings held pursuant to the provisions of the Liquor Control Act shall be public and conducted by the director or a hearing officer appointed by the director. [and shall be held in the county in which the licensed premises that are the subject matter of the hearing are located. All such hearings shall be open to the public.]
B. The hearing described in Subsection A of this section shall be held in the state capital or, at the licensee's request, in the county where the subject licensed premises are located. If the hearing is held at a location other than the state capital at the licensee's request, the director shall assess the licensee the reasonable costs of the hearing, including per diem and mileage."
Section 18. Section 60-6C-4 NMSA 1978 (being Laws 1981, Chapter 39, Section 100, as amended) is amended to read:
"60-6C-4. ADMINISTRATIVE PROCEEDINGS--COMPLAINTS--INVESTIGATION--ORDER TO SHOW CAUSE--SERVICE--HEARINGS.--
A. Whenever a person lodges a signed, written complaint with the department alleging that a licensee has violated any of the provisions of the Liquor Control Act, unless the complaint is deficient on its face, or when a law enforcement agency cites a licensee for violation of the Liquor Control Act, the director shall request that the department of public safety investigate the complaint.
B. The department of public safety shall investigate the complaint and make a written report to the director.
C. If the director believes from the report that probable cause exists for filing charges against the licensee for the revocation or suspension of [his] the licensee's license or permit or for fining [him] the licensee, or for both, [he] the director or [his] the director's designee shall file in the department a charge against the licensee in the name of the state, stating the nature of the grounds relied upon for the filing, the approximate date of the alleged violation and the names and addresses of the witnesses who are expected to give testimony or evidence against the licensee.
D. After charges have been filed, the director shall issue a signed order for the licensee to appear at a hearing to explain, on the basis of any ground set out in the charge, why the license should not be revoked or suspended or why the licensee should not be fined, or both.
E. The director shall keep the original of the charge and the order to show cause on file in [his] the director's office.
F. The director shall appoint a hearing officer no later than ten days prior to the date set for the hearing at which the licensee shall appear to explain why [his] the licensee's license should not be revoked or suspended or why the licensee should not be fined, or both.
G. The director shall have a copy of the charge and a copy of the order to show cause sent to the licensee or the licensee's resident agent at the agent's last known address by certified mail at least fourteen days before the date set for the hearing on the order to show cause.
H. At [any] a hearing on an order to show cause, the director shall cause a record of hearing to be made, which shall record:
(1) the style of the proceedings;
(2) the nature of the proceedings, including a copy of the charge and a copy of the order to show cause;
(3) the place, date and time of the hearing and all continuances or recesses of the hearing;
(4) the appearance or nonappearance of the licensee;
(5) if the licensee appears with an attorney, the name and address of the attorney;
(6) a record of all evidence and testimony and a copy or record of all exhibits introduced in evidence;
(7) the findings of fact and law as to whether [or not] the licensee has violated the Liquor Control Act as set out in the charge; and
(8) the decision of the director.
I. If the licensee fails to appear without good cause at the time and place designated in the order to show cause for the hearing, the director shall order the nonappearance of the licensee to be entered in the record of hearing and shall order the license revoked or suspended or the licensee fined, or both, on all the grounds alleged in the charge and shall cause the record of hearing to show the particulars in detail. In such a case, there shall be no reopening, appeal or review of the proceedings.
J. If the licensee admits guilt on all grounds set out in the charge, the director shall order the revocation or suspension of the license or the licensee fined, or both, and cause a record of hearing to be made showing the facts and particulars of [his] the director's order of revocation or suspension of the license or fine of the licensee, or both. In such a case, there shall be no review or appeal of the proceedings.
K. If the licensee appears at the hearing and does not testify or denies guilt of any [or all] of the grounds set out in the charge, the hearing shall proceed as follows:
(1) the director or the hearing officer shall administer oaths to all witnesses, the department shall cause all testimony and evidence in support of the grounds alleged in the charge to be presented in the presence of the licensee and the director shall allow the licensee or [his] the licensee's attorney to cross-examine all witnesses;
(2) the licensee shall be allowed to present testimony and evidence [he] the licensee may have in denial or in mitigation of the grounds set out in the charge;
(3) the department shall have the right to cross-examine the licensee or any witness testifying in [his] the licensee's favor;
(4) the department shall present any evidence or testimony in rebuttal of that produced by the licensee;
(5) the director or the hearing officer shall make a finding on each ground alleged and a finding of the guilt or innocence of the licensee on each ground;
(6) if the licensee is found guilty on any ground alleged and proved, the director shall make [his] an order of revocation or suspension of the license or fine of the licensee, or both; and
(7) the rules of evidence shall not be required to be observed, but the order of suspension or revocation or fine, or both, shall be based upon substantial, competent and relevant evidence and testimony appearing in the record of hearing.
L. No admission of guilt, admission against interest or transcript of testimony made or given in [any] a hearing pursuant to this section shall be received or used in [any] criminal proceedings wherein the licensee is a defendant; provided, however, if the licensee commits perjury in a hearing, the evidence shall be admissible in a perjury trial if otherwise competent and relevant.
M. The director shall adopt reasonable
regulations setting forth uniform standards of penalties concerning fines and suspensions imposed by the director."
Section 19. Section 60-6C-6 NMSA 1978 (being Laws 1981, Chapter 39, Section 102, as amended by Laws 1999, Chapter 265, Section 75 and also by Laws 1999, Chapter 277, Section 1) is amended to read:
"60-6C-6. NO INJUNCTION OR MANDAMUS PERMITTED--APPEAL.--
A. No injunction or writ of mandamus or other legal or equitable process shall issue in any suit, action or proceeding to prevent or enjoin any finding of guilt or order of suspension or revocation or fine made by a liquor control hearing officer under the provisions of Section 60-6C-4 NMSA 1978. A licensee aggrieved or adversely affected by an order of revocation, suspension or fine shall have the right to appeal to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.
B. No appeal shall have the effect of suspending the operation of the order of suspension, revocation or fine, but the liquor control hearing officer may, for good cause shown and upon such terms and conditions as [he] the officer may find are just, [in his discretion] suspend the operation of the order of suspension, revocation or fine pending the appeal. [The court shall tax costs against the losing party.]
C. For purposes of this section, "licensee" includes a person issued a server permit pursuant to the Alcohol Server Education Article of the Liquor Control Act."
Section 20. Section 60-6C-8 NMSA 1978 (being Laws 1981, Chapter 39, Section 104) is amended to read:
"60-6C-8. RESTRICTION ON LICENSE AFTER REVOCATION.--
A. A revoked license shall be delivered to the director, if not already in the director's possession, immediately upon notice of the revocation by the person who previously owned the license and it shall be cancelled in the records of the director and physically destroyed. Upon notice of the revocation, the person who owned the license prior to revocation shall immediately cease the sale and service of alcoholic beverages at the previously licensed premises if the sale and service are then ongoing.
B. If a license is revoked under the provisions of the Liquor Control Act, the [licensee] person who owned the license shall not be issued or be the transferee of a license within two years of the date of the revocation."
Section 21. Section 60-6E-3 NMSA 1978 (being Laws 1999, Chapter 277, Section 4) is amended to read:
"60-6E-3. DEFINITIONS.--As used in Chapter 60, Article [6D] 6E NMSA 1978:
A. "director" means the director of the division;
B. "division" means the alcohol and gaming division of the regulation and licensing department;
C. "licensee" means a person issued a license pursuant to the provisions of the Liquor Control Act to sell, serve or dispense alcoholic beverages for consumption and not for resale;
D. "program" means an alcohol server education course and examination approved by the director to be administered by providers;
E. "provider" means an individual, partnership, corporation, public or private school or any other legal entity certified by the director to provide a program;
F. "server" means an individual who sells, serves or dispenses alcoholic beverages for consumption on or off licensed premises, including persons who manage, direct or control the sale or service of alcohol or who manage, direct or control patrons of licensed premises. "Server" does not include officers of a corporate licensee or lessee who do not manage, direct or control the sale or service of alcohol; and
G. "server permit" means an authorization issued by the director for a person to be employed or engaged to sell, serve or dispense alcoholic beverages."
Section 22. Section 60-6E-7 NMSA 1978 (being Laws 1999, Chapter 277, Section 8) is amended to read:
"60-6E-7. SERVER PERMITS--ISSUANCE--OWNERSHIP--FEES.--
A. The director shall issue a server permit to each applicant who obtains a certificate of program completion and provides [such] other information as may be required by the director. The director may, in the director's discretion, issue temporary server permits if circumstances warrant [such] the issuance.
B. Server permits shall not be issued to graduates of programs that are not approved by the director.
C. A server permit is the property of the server to whom it is issued.
D. The director may charge a fee for the issuance of the server permit.
E. Server permits shall be valid for a period of [five] three years from the date the server permit was issued.
F. A certificate of completion of an alcohol server education program issued pursuant to previous law shall remain valid until the date of its expiration."
Section 23. Section 60-6E-8 NMSA 1978 (being Laws 1999, Chapter 277, Section 9) is amended to read:
"60-6E-8. SERVER PERMIT--SUSPENSION--REVOCATION--ADMINISTRATIVE FINES--PENALTIES.--
A. In addition to any other penalties available, the following penalties may be imposed for sales to minors or intoxicated persons in violation of the provisions of the Liquor Control Act or rules of the division:
[A.] (1) the director may suspend a server's server permit for a period of thirty days or fine the server in an amount not to exceed five hundred dollars ($500), or both, when [he] the director finds that the server is guilty of a first offense of selling, serving or dispensing an alcoholic beverage to an intoxicated person in violation of Section 60-7A-16 NMSA 1978 or to a minor in violation of Section 60-7B-1 NMSA 1978;
[B.] (2) the director shall suspend a server's server permit for a period of one year when [he] the director finds that the server is guilty of a second offense of selling, serving or dispensing alcoholic beverages to intoxicated persons in violation of Section 60-7A-16 NMSA 1978 or to minors in violation of Section 60-7B-1 NMSA 1978 arising separately from the incident giving rise to [his] the server's first offense;
[C.] (3) the director shall permanently revoke a server's server permit when [he] the director finds that the server is guilty of a third offense of selling, serving or dispensing alcoholic beverages to intoxicated persons in violation of Section 60-7A-16 NMSA 1978 or to minors in violation of Section 60-7B-1 NMSA 1978 arising separately from the incidents giving rise to [his] the server's first and second offenses;
[D.] (4) no person whose server permit is suspended or revoked pursuant to the provisions of this section may be a server of alcoholic beverages on a licensed premises during the period of suspension or revocation; and
[E.] (5) no person whose server permit is suspended may serve alcoholic beverages on or after the date of suspension unless the period of suspension is completed and the person obtains a new server permit in accordance with the provisions of [Article 6D of] Chapter 60, Article 6E NMSA 1978.
[F.] B. Nothing in this act shall be interpreted to waive [any] a license holder's liability that may arise pursuant to the provisions of [this] the Liquor Control Act."
Section 24. Section 60-7A-1 NMSA 1978 (being Laws 1981, Chapter 39, Section 47, as amended) is amended to read:
"60-7A-1. HOURS AND DAYS OF BUSINESS--SUNDAY SALES--CHRISTMAS DAY SALES--SUNDAY SALES FOR CONSUMPTION OFF THE LICENSED PREMISES--ELECTIONS.--
A. Except for restaurant licenses and limited dispensers and subject to the restriction in Subsection K of this section, alcoholic beverages shall be sold, served and consumed on licensed premises only during the following hours and days:
(1) on Mondays from 7:00 a.m. until midnight;
(2) on other weekdays from after midnight of the previous day until 2:00 a.m., then from 7:00 a.m. until midnight, except as provided in Subsections D and F of this section; and
(3) on Sundays only after midnight of the previous day until 2:00 a.m., except as provided in Subsections C and E of this section and Section 60-7A-2 NMSA 1978; provided, however, nothing in this section shall prohibit the consumption at any time of alcoholic beverages in guest rooms of hotels.
B. Alcoholic beverages shall be sold by a dispenser or a retailer in unbroken packages, for consumption off the licensed premises and not for resale, on Mondays through Saturdays from 7:00 a.m. until 12:00 a.m. on the following day, except as provided in Subsections D and F of this section.
C. A dispenser, limited dispenser, restaurant licensee or club may, upon payment of an additional fee of one hundred dollars ($100), obtain a permit to sell, serve or permit the consumption of alcoholic beverages by the drink on the licensed premises on Sundays subject to Subsection E of this section from 12:00 noon until midnight and in those years when December 31 falls on a Sunday from 12:00 noon until 2:00 a.m. of the following day, except [as otherwise provided in Subsection E of this section] that the closing time for restaurant licenses and limited dispensers shall be pursuant to Section 60-6A-4 NMSA 1978 and Section 10 of this 2009 act. The permit shall expire on June 30 of each year and may be renewed from year to year upon application for renewal and payment of the required fee. The permit fee shall not be prorated. Sales made pursuant to this subsection or Subsection G of this section shall be called "Sunday sales".
D. Retailers, dispensers, limited dispensers, canopy licensees that were replaced by dispenser's licensees pursuant to Section 60-6B-16 NMSA 1978, restaurant licensees, club licensees and governmental licensees or their lessees shall not sell, serve, deliver or allow the consumption of alcoholic beverages on the licensed premises from 2:00 a.m. on Christmas day until 7:00 a.m. on the day after Christmas, except as permitted pursuant to Subsection F of this section.
E. Sunday sales pursuant to the provisions of Subsection C of this section are permitted in a local option district that voted to permit them. If in that election a majority of the voters in a local option district voted "no" on the question "Shall Sunday sales of alcoholic beverages by the drink for consumption on the licensed premises of licensees be allowed in this local option district?", Sunday sales are unlawful in that local option district upon certification of the election returns unless the provisions of Subsection J of this section apply. The question shall not again be placed on the ballot in that local option district until:
(1) at least one year has passed; and
(2) a petition is filed with the local governing body bearing the signatures of registered qualified electors of the local option district equal in number to ten percent of the number of votes cast and counted in the local option district for governor in the last preceding general election in which a governor was elected. The signatures on the petition shall be verified by the clerk of the county in which the local option district is situated.
F. On and after July 1, 2002, dispensers, limited dispensers, canopy licensees that were replaced by dispenser's licensees pursuant to Section 60-6B-16 NMSA 1978, restaurant licensees, club licensees and governmental licensees or lessees of these licensees; provided that the licensees have current, valid food service establishment permits, may sell, serve or allow the consumption of alcoholic beverages by the drink on licensed premises from noon until 10:00 p.m. on Christmas day, except in a local option district in which, pursuant to petition and election under this subsection, [a] the majority of the voters voting on the question [votes] vote against continuing such sales or consumption on Christmas day. An election shall be held on the question of whether to continue to allow the sale, service or consumption of alcoholic beverages by the drink on licensed premises from noon until 10:00 p.m. on Christmas day in a local option district if a petition requesting the governing body of that district to call the election is signed by at least ten percent of the registered voters of the district and is filed with the clerk of the governing body of the district. Upon verification by the clerk that the petition contains the required number of signatures of registered voters, the governing body shall adopt a resolution calling an election on the question of allowing the sale, service or consumption of alcoholic beverages by the drink on licensed premises from noon until 10:00 p.m. on Christmas day. The election shall be held within sixty days after the date the petition is verified, or it may be held in conjunction with a regular election of the governing body if that election occurs within sixty days of such verification. The election shall be called, conducted, counted and canvassed in substantially the same manner as provided for general elections in the county under the Election Code or for special municipal elections in a municipality under the Municipal Election Code. If [a] the majority of the voters voting on the question [votes] vote against continuing the sale, service or consumption of alcoholic beverages by the drink on licensed premises from noon until 10:00 p.m. on Christmas day, then such sales and consumption shall be prohibited. If [a] the majority of the voters voting on the question [votes] vote to allow continued sale, service and consumption of alcoholic beverages by the drink on licensed premises from noon until 10:00 p.m. on Christmas day, then such sales and consumption shall be allowed to continue. The question then shall not be submitted again to the voters within two years of the date of the last election on the question.
G. Notwithstanding the provisions of Subsection E of this section, any Indian tribe or pueblo whose lands are wholly situated within the state that has, by statute, ordinance or resolution, elected to permit the sale, possession or consumption of alcoholic beverages on lands within the territorial boundaries of the tribe or pueblo may, by statute, ordinance or resolution of the governing body of the Indian tribe or pueblo, permit Sunday sales by the drink on the licensed premises of licensees on lands within the territorial boundaries of the tribe or pueblo; provided that a certified copy of such enactment is filed with the office of the director and [of] with the secretary of state.
H. Subject to the provisions of Subsection I of this section, a dispenser or retailer, upon payment of an additional fee of one hundred dollars ($100), may obtain a permit to sell alcoholic beverages in unbroken packages for consumption off the licensed premises on Sundays from 12:00 noon until midnight, and in those years when December 31 falls on a Sunday, from 12:00 noon on December 31 until 2:00 a.m. of the following day. The permit shall expire on June 30 of each year and may be renewed from year to year upon application for renewal and payment of the required fee. The permit fee shall not be prorated. Sales made pursuant to the provisions of this subsection shall be called "Sunday package sales".
I. If a petition requesting the governing body of a local option district to call an election on the question of continuing to allow sales of alcoholic beverages in unbroken packages for consumption off the licensed premises on Sundays is filed with the clerk of the governing body and that petition is signed by at least ten percent of the number of registered voters of the local option district and the clerk of the governing body verifies the petition signatures, the governing body shall adopt a resolution calling an election on the question. The election shall be held within sixty days of the date the petition is verified, or it may be held in conjunction with a regular election of the governing body if the regular election occurs within sixty days of the petition verification. The election shall be called, conducted, counted and canvassed substantially in the manner provided by law for general elections within a county or special municipal elections within a municipality. If [a] the majority of the voters of the local option district voting in the election [votes] vote to allow the sale of alcoholic beverages in unbroken packages for consumption off the licensed premises, then those sales shall continue to be allowed. If [a] the majority of the voters of the local option district voting in the election [votes] vote not to allow the Sunday package sales, then those Sunday package sales shall be prohibited commencing the first Sunday after the results of the election are certified. Following the election, the question of allowing the Sunday package sales shall not be submitted again to the voters within two years of the date of the last election on the question.
J. Sunday sales of alcoholic beverages shall be permitted at resorts and at horse racetracks statewide pursuant to the provisions of Section 60-7A-2 NMSA 1978.
K. In a licensed premises that sells or serves alcoholic beverages by the drink for consumption on the licensed premises, the sale and service of alcoholic beverages shall cease at least one hour before the licensed premises closes for business. During the period of time from the cessation of sales and service of alcoholic beverages until the close of business, the business at the licensed premises shall sell or serve only nonalcoholic beverages and shall provide food service. If a licenced premises sells, serves and allows the consumption of alcoholic beverages until 2:00 a.m., when permitted, it shall remain open until 3:00 a.m., during which hour it shall sell and serve only nonalcoholic beverages and shall provide food service. The director shall issue a rule prescribing the type of food service that shall meet the requirement of this subsection."
Section 25. Section 60-7A-4.1 NMSA 1978 (being Laws 1985, Chapter 179, Section 1, as amended) is amended to read:
"60-7A-4.1. UNLAWFUL SALE OF ALCOHOLIC BEVERAGES--VIOLATIONS OF THE LIQUOR CONTROL ACT--CRIMINAL PENALTY--FORFEITURE.--
A. It is unlawful for [any] a person to sell or attempt to sell or to deliver to a purchaser alcoholic beverages at any place other than a licensed premises or [as] a place otherwise provided by the Liquor Control Act.
B. It is unlawful for a licensee to sell or attempt to sell or to deliver alcoholic beverages to a person in violation of the provisions of the Liquor Control Act or to otherwise act in violation of that act.
[B. Any] C. A person who violates the provisions of [Subsection A] Subsections A or B of this section is guilty of a fourth degree felony.
[C. Any conveyance] D. A means of transport, including a motor vehicle, watercraft or aircraft of any type, used or intended to be used [for the purpose of unlawful sale of alcoholic beverages] in the commission of a felony described in this section or money [which] that is the fruit or instrumentality of the [crime] felony is subject to forfeiture, and the provisions of the Forfeiture Act apply to the seizure, forfeiture and disposal of [such] that property."
Section 26. Section 60-7A-12 NMSA 1978 (being Laws 1981, Chapter 39, Section 78, as amended) is amended to read:
"60-7A-12. OFFENSES BY DISPENSERS, CANOPY LICENSEES, RESTAURANT LICENSEES, GOVERNMENTAL LICENSEES OR THEIR LESSEES AND CLUBS.--It is a violation of the Liquor Control Act for [any] a dispenser, canopy licensee, restaurant licensee, governmental licensee or its lessee or club to:
A. receive [any] alcoholic beverages for the purpose of or with the intent of reselling the same from [any] a person other than one duly licensed to sell alcoholic beverages to dispensers for resale;
B. sell, possess for the purpose of sale or bottle [any] bulk wine for sale other than by the drink for immediate consumption on [his] its licensed premises;
C. directly, indirectly or through [any] subterfuge own, operate or control [any] an interest in [any] a wholesale liquor establishment or liquor manufacturing or wine bottling firm; provided that this section shall not prevent a dispenser from owning an interest in [any] a legal entity, directly or indirectly or through an affiliate, that wholesales alcoholic beverages and that operates or controls an interest in an establishment operating pursuant to the provisions of Subsection B of Section 60-7A-10 NMSA 1978;
D. sell or possess for the purpose of sale [any] alcoholic beverages at [any] a location or place except [his] the licensed premises to which the alcoholic beverages have been invoiced or the location permitted pursuant to the provisions of Section 60-6A-12 NMSA 1978;
E. employ or engage a person to sell, serve or dispense alcoholic beverages if the person has not received alcohol server training within thirty days of employment; or
F. employ or engage a person to sell, serve or dispense alcoholic beverages during a period when the server permit of that person is suspended or revoked."
Section 27. Section 60-7A-24 NMSA 1978 (being Laws 1981, Chapter 39, Section 110, as amended) is amended to read:
"60-7A-24. [OBSTRUCTION OF] IMPEDING THE ADMINISTRATION OF THE LIQUOR CONTROL ACT--CRIMINAL PENALTY--SENTENCING.--
A. [Any person who forcibly or by bribe, threat or other corrupt practice obstructs, impedes or attempts to obstruct the administration of the provisions of the Liquor Control Act] A person who interferes with the administration of the Liquor Control Act, including bribery or undue influence; causing or threatening harm to a witness, potential witness, government official or legal officer or impeding a witness, potential witness, government official or legal officer from truthful testimony or faithful execution of a duty; furnishing false or misleading information; or otherwise impeding an investigation or legal process, is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
B. [Any licensee who forcibly or by bribe, threat or other corrupt practice obstructs, impedes or attempts to obstruct the administration of the provisions of the Liquor Control Act] A licensee who interferes with the administration of the Liquor Control Act, including bribery or undue influence; causing or threatening harm to a witness, potential witness, government official or legal officer or impeding a witness, potential witness, government official or legal officer from truthful testimony or faithful execution of a duty; furnishing false or misleading information; or otherwise impeding an investigation or legal process, is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978, and is guilty of violating the Liquor Control Act and shall be punished by fine, suspension or revocation under the procedures of the Liquor Control Act."
Section 28. Section 60-7B-1 NMSA 1978 (being Laws 1993, Chapter 68, Section 22, as amended) is amended to read:
"60-7B-1. SELLING OR GIVING ALCOHOLIC BEVERAGES TO
MINORS--POSSESSION OF ALCOHOLIC BEVERAGES BY MINORS.--
A. It is a violation of the Liquor Control Act for a person, including a person licensed pursuant to the provisions of the Liquor Control Act, or an employee, agent or lessee of that person if [he knows or has reason to know that he is] the person knew or should have known that the person was violating the provisions of this section to:
(1) sell, serve or give alcoholic beverages to a minor or permit a minor to consume alcoholic beverages on the licensed premises;
(2) buy alcoholic beverages for or procure the sale or service of alcoholic beverages to a minor;
(3) deliver alcoholic beverages to a minor; or
(4) aid or assist a minor to buy, procure or be served with alcoholic beverages.
B. It is not a violation of the Liquor Control Act, as provided in Subsection A or C of this section, when:
(1) a parent, legal guardian or adult spouse of a minor serves alcoholic beverages to that minor on real property, other than licensed premises, under the control of the parent, legal guardian or adult spouse; or
(2) alcoholic beverages are used in the practice of religious beliefs.
C. It is a violation of the Liquor Control Act for a minor to buy, attempt to buy, receive, possess or permit [himself] the minor's self to be served with alcoholic beverages.
D. When a person other than a minor procures another person to sell, serve or deliver alcoholic beverages to a minor by actual or constructive misrepresentation of facts or concealment of facts calculated to cause the person selling, serving or delivering the alcoholic beverages to the minor to believe that the minor is legally entitled to be sold, served or delivered alcoholic beverages, and actually deceives that person by that misrepresentation or concealment, then the procurer and not the person deceived shall have violated the provisions of the Liquor Control Act.
E. As used in the Liquor Control Act, "minor" means a person under twenty-one years of age.
F. In addition to the penalties provided in Section 60-6C-1 NMSA 1978, the penalty for a violation of the provisions of Subsection A of this section is [a fourth degree felony and the offender shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978]:
(1) a fourth degree felony for an offender other than a server as "server" is defined in Section 60-6E-3 NMSA 1978, and the offender shall be sentenced pursuant to Section 31-18-15 NMSA 1978;
(2) a fourth degree felony for an offender who is a server as "server" is defined in Section 60-6E-3 NMSA 1978 and who intentionally and willfully commits a violation, and the offender shall be sentenced pursuant to Section 31-18-15 NMSA 1978;
(3) a misdemeanor for a first or second violation by an offender who is a server as "server" is defined in Section 60-6E-3 NMSA 1978 and who knew or should have known that the offender was committing a violation, and the offender shall be sentenced pursuant to Section 31-19-1 NMSA 1978; and
(4) a fourth degree felony for a third or subsequent violation by an offender who is a server as "server" is defined in Section 60-6E-3 NMSA 1978 and who knew or should have known that the offender was committing a violation, and the offender shall be sentenced pursuant to Section 31-18-15 NMSA 1978.
G. A violation of the provisions of Subsection C of this section is a misdemeanor and the offender shall be punished as follows:
(1) for a first violation, the offender shall be:
(a) fined an amount not more than one thousand dollars ($1,000); and
(b) ordered by the sentencing court to perform thirty hours of community service related to reducing the incidence of driving while under the influence of intoxicating liquor;
(2) for a second violation, the offender shall:
(a) be fined an amount not more than one thousand dollars ($1,000);
(b) be ordered by the sentencing court to perform forty hours of community service related to reducing the incidence of driving while under the influence of intoxicating liquor; and
(c) have [his] the offender's driver's license suspended for a period of ninety days. If the minor is too young to possess a driver's license at the time of the violation, then ninety days shall be added to the date [he] the offender would otherwise become eligible to obtain a driver's license; and
(3) for a third or subsequent violation, the offender shall:
(a) be fined an amount not more than one thousand dollars ($1,000);
(b) be ordered by the sentencing court to perform sixty hours of community service related to reducing the incidence of driving while under the influence of intoxicating liquor; and
(c) have [his] the offender's driver's license suspended for a period of two years or until the offender reaches twenty-one years of age, whichever period of time is greater.
H. A violation of the provisions of Subsection D of this section is a fourth degree felony and the offender shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978."
Section 29. Section 60-7B-10 NMSA 1978 (being Laws 1981, Chapter 39, Section 90, as amended) is amended to read:
"60-7B-10. MINORS IN LICENSED PREMISES--REGULATIONS.--
A. [Any] A person licensed pursuant to the provisions of the Liquor Control Act, or any employee, agent or lessee of that person, who permits a minor to enter and remain in [any] an area of a licensed premises that is prohibited to the use of minors is guilty of a violation of the Liquor Control Act.
B. A minor shall not enter or attempt to enter [any] an area of a licensed premises that is posted or otherwise identified as being prohibited to the use of minors, except as authorized by regulation or as necessitated by an emergency. A person who violates the provisions of this subsection is guilty of a petty misdemeanor and shall be punished pursuant to the provisions of Section 31-19-1 NMSA 1978.
C. The director of the alcohol and gaming division of the regulation and licensing department shall adopt [regulations] rules classifying the types of licensed premises or areas of licensed premises where minors may be present. The director shall require that signs issued by the division be posted by licensees to inform the public, including minors, of the areas in licensed premises that are open to minors. [The regulations]
D. The rules authorized in Subsection C of this section may allow minors in those areas of licensed premises where [(1)] the consumption of alcoholic beverages is the primary business activity, when a minor is accompanied by a parent, adult spouse or legal guardian or [(2) there is no consumption of alocholic beverages] during the course of a minor's employment or official duties."
Section 30. REPEAL.--Section 60-7A-15 NMSA 1978 (being Laws 1981, Chapter 39, Section 92) is repealed.
Section 31. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.