SENATE BILL 514
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Mary Jane M. Garcia
AN ACT
RELATING TO PUBLIC HEALTH; ENACTING THE LIMITING ALCOHOL ADVERTISING NEAR YOUTH ACT; BANNING ALCOHOLIC BEVERAGE OUTDOOR ADVERTISEMENTS WITHIN FIVE HUNDRED FEET OF ANY PUBLIC PLAYGROUND, ELEMENTARY SCHOOL, SECONDARY SCHOOL, INSTITUTION OF HIGHER LEARNING OR CHILD CARE FACILITY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Limiting Alcohol Advertising Near Youth Act".
Section 2. DEFINITIONS.--As used in the Limiting Alcohol Advertising Near Youth Act:
A. "alcoholic beverage" means distilled or rectified spirits, potable alcohol, brandy, whiskey, rum, gin, aromatic bitters or any similar beverage, including blended or fermented beverages, dilutions or mixtures of one or more of the foregoing containing more than one-half of one percent alcohol by volume, but "alcoholic beverages" does not include medicinal bitters;
B. "alcoholic beverage outdoor advertisement" means any sign, poster, placard, device, graphic display or any other form of advertisement bearing a word, mark or description, or other device that is used to advertise an alcoholic beverage or the business of a person who manufacturers, sells or distributes an alcoholic beverage in publicly visible locations. "Alcoholic beverage outdoor advertisement" does not include:
(1) advertisements inside licensed premises, as defined by the Liquor Control Act;
(2) advertisements that contain the name or slogan of the licensed premises that have been placed for the purpose of identifying the licensed premises;
(3) neon or electronically charged signs, if otherwise allowed by the alcohol and gaming division of the regulation and licensing department or by local ordinance, on licensed premises that are provided as part of a promotion of a particular brand of alcoholic beverage;
(4) advertisements appearing on radio or television;
(5) advertisements in a public vehicular conveyance for hire, on a race car while participating at a professional racing event or at a permanent racetrack facility, on a boat participating in a racing event or a boat show, on an aircraft, on a bicycle or on the clothing of a member of a bicycle team participating in an organized bicycle race or in a newspaper, magazine or other literary publication published periodically; and
(6) an identifying label affixed to a container as authorized by law; and
C. "publicly visible location" includes outdoor billboards, awnings, electric signs, sides of buildings, screens, benches, barriers, stages, fences, signs attached to poles, posts or other figures and freestanding signboards, wherever located, whether indoor or outdoor, however manufactured and comprising whatever materials.
Section 3. ALCOHOLIC BEVERAGE OUTDOOR ADVERTISEMENTS.--
A. A person shall not place an alcoholic beverage outdoor advertisement in a publicly visible location within five hundred feet of any public playground, elementary school or secondary school, institution of higher learning or child care facility.
B. Any person seeking to place an alcoholic beverage outdoor advertisement in a publicly visible location within the five-hundred-foot limit established in Subsection A of this section may apply for an exemption with the alcohol and gaming division of the regulation and licensing department in which the exemption would apply. The alcohol and gaming division shall grant the exemption if the applicant demonstrates that the five-hundred-foot limit denies the applicant a reasonably necessary or appropriate opportunity to communicate truthful information regarding alcoholic beverages to adult consumers. In determining whether the applicant has been denied such an opportunity, the alcohol and gaming division may consider:
(1) locations for outdoor advertising that are outside the five-hundred-foot limit and the percentage of the adult population that resides or works in these areas;
(2) the availability of other forms of advertising to reach adult audiences and their relative costs;
(3) any advertising practice codes or guidelines with which the applicant voluntarily has agreed to comply; and
(4) any other relevant evidence.
Section 4. PUBLIC SERVICE ADVERTISING.--The Limiting Alcohol Advertising Near Youth Act shall not be construed to prohibit the display of public service messages designed to communicate the hazards of alcoholic beverages or to encourage minors to refrain from consuming or purchasing alcoholic beverages. However, this section shall not be construed to permit such a message when it is made in conjunction with the positive display of a representation, image, artwork, photograph, logo, graphic, device, display, regalia, insignia, indicia, design, slogan, trade name, brand name, product name or permittee or licensee name used for marketing or promotion of alcoholic beverages.
Section 5. YOUTH ALCOHOL ADVERTISING MONITOR--APPOINTMENT--DUTIES--POWERS.--
A. The alcohol and gaming division of the regulation and licensing department shall appoint a youth alcohol advertising monitor. The monitor may delegate the duties and powers granted by this section to other persons under the monitor's direct supervision.
B. The youth alcohol advertising monitor shall administer and enforce the terms and conditions of the Limiting Alcohol Advertising Near Youth Act. The monitor shall:
(1) make inspections of advertising in publicly visible locations in accordance with rules promulgated by the alcohol and gaming division of the regulation and licensing department;
(2) initiate appropriate action to bring about compliance with the Limiting Alcohol Advertising Near Youth Act and other applicable law if inspection discloses any instance of noncompliance; and
(3) investigate any complaints of alleged violations of the Limiting Alcohol Advertising Near Youth Act and make findings of fact according to rules that the alcohol and gaming division has promulgated as to whether advertising is in compliance with the provisions of that act.
Section 6. APPEALS.--A person aggrieved by a finding of fact by the youth alcohol advertising monitor or the monitor's designee shall have the right to appeal the finding of fact to the alcohol and gaming division of the regulation and licensing department pursuant to procedures established by the alcohol and gaming division for appealing other sign violations.
Section 7. STRICTER LOCAL REGULATIONS PERMITTED.--A county or municipality may enact any regulation of alcoholic beverage outdoor advertisements that is more restrictive than those contained in the provisions of the Limiting Alcohol Advertising Near Youth Act.
Section 8. PENALTIES.--
A. Any person that the youth alcohol advertising monitor finds to have violated a provision of the Limiting Alcohol Advertising Near Youth Act shall be subject to the following penalties:
(1) a first violation shall incur a civil penalty of five hundred dollars ($500) and fifty dollars ($50.00) per day for each day that the violation continues;
(2) a second violation shall incur a civil penalty of one thousand dollars ($1,000) and one hundred dollars ($100) per day for each day the violation continues; and
(3) a third or subsequent violation shall incur a civil penalty of five thousand dollars ($5,000) and five hundred dollars ($500) per day for each day the violation continues.
B. Causing, permitting, aiding, abetting or concealing a violation of a provision of the Limiting Alcohol Advertising Near Youth Act shall constitute a violation of that act.
C. All revenues collected by the alcohol and gaming division of the regulation and licensing department pursuant to the provisions of the Limiting Alcohol Advertising Near Youth Act shall be placed in the current school fund.
D. In addition to the other remedies provided in this section, any violation of the Limiting Alcohol Advertising Near Youth Act may be enforced by a civil action brought by the alcohol and gaming division of the regulation and licensing department. A court may grant, as it deems appropriate, any or all of the following remedies:
(1) a temporary or a permanent injunction barring the person from violating the provisions of the Limiting Alcohol Advertising Near Youth Act;
(2) an assessment of the person violating the provisions of the Limiting Alcohol Advertising Near Youth Act for the costs of any investigation, inspection or monitoring survey that led to the establishment of the violation, including but not limited to the reasonable costs of preparing and bringing legal action pursuant to this subsection and reasonable attorney fees;
(3) costs incurred in removing, correcting or terminating the adverse effects resulting from the violation; and
(4) a finding, after two or more violations of the provisions of the Limiting Alcohol Advertising Near Youth Act involving the same alcoholic beverage outdoor advertisement, that the alcoholic beverage outdoor advertisement constitutes a public nuisance.
E. A party found in violation of the provisions of the Limiting Alcohol Advertising Near Youth Act has a right to appeal the finding of violation pursuant to the procedures established in Section 6 of that act.
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