SENATE BILL 294
46th legislature - STATE OF NEW MEXICO - second session, 2004
INTRODUCED BY
Michael S. Sanchez
AN ACT
RELATING TO PUBLIC SAFETY; ENACTING THE CONVENIENCE STORE SAFETY ACT; PROVIDING MINIMUM SECURITY STANDARDS FOR CONVENIENCE STORES; PROVIDING FOR ENFORCEMENT OF THE STANDARDS AND THE IMPOSITION OF CIVIL PENALTIES; PROVIDING REMEDIES FOR INJURED PERSONS, INCLUDING EMPLOYEES; RECONCILING MULTIPLE AMENDMENTS TO THE SAME SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 13 of this act may be cited as the "Convenience Store Safety Act".
Section 2. [NEW MATERIAL] PURPOSE.--The purpose of the Convenience Store Safety Act is to protect the lives, health, safety and welfare of late-night convenience store customers and employees from the ever present danger of violence by implementing and enforcing statewide standards that will provide tangible, reasonable and effective solutions to minimize or eliminate the excessive incidence of robbery, battery and other violent crimes at late-night convenience stores.
Section 3. [NEW MATERIAL] DEFINITIONS.--As used in the Convenience Store Safety Act:
A. "claimant" means a person who on the person‛s own behalf or as personal representative of the estate of another brings a legal action against a convenience store or owner for damages suffered as a result of a violation of the Convenience Store Safety Act or a rule issued pursuant to that act;
B. "convenience store" means a business establishment that:
(1) is primarily engaged in the retail sale to the public of a limited quantity and variety of merchandise, including groceries, or other articles of value in their original containers or both gasoline and merchandise;
(2) operates at any time between the hours of 11:00 p.m. and 5:00 a.m.;
(3) does not sell or offer for sale prescription drugs;
(4) occupies less than ten thousand square feet of retail floor space;
(5) is not solely or primarily a restaurant; and
(6) is not a hotel, tavern or lodging facility;
C. "employee" means an individual hired or contracted to work at a convenience store; and
D. "owner" means the person having ownership or proprietary interest in a convenience store and who is legally responsible for the day-to-day operation of the convenience store.
Section 4. [NEW MATERIAL] MINIMUM SECURITY STANDARDS--LIGHTING.--
A. At any time when an employee or a customer is on the premises, all areas within a convenience store, including store rooms and offices, shall be lighted and maintained at a minimum of eight foot-candles per square foot. The level of lighting shall be measured at ground levels and shall be uniform between light and dark areas at a ratio not exceeding four to one.
B. At any time when an employee or a customer is on the premises, all exterior areas of a convenience store, including a canopied or open parking lot and perimeter areas of the property, shall be illuminated at the same intensity as the interior lighting.
Section 5. [NEW MATERIAL] MINIMUM SECURITY STANDARDS.--WINDOWS AND SIGNS.--
A. Window signs in a convenience store shall be located so that there is a clear and unobstructed view from the outside of the building to the cash register and sales transaction areas.
B. No signs shall cover windows of a convenience store in the area between three feet and eleven feet above ground level.
C. Window tinting in a convenience store shall not reduce exterior or interior views.
Section 6. [NEW MATERIAL] MINIMUM SECURITY STANDARDS--CASH MANAGEMENT.--
A. A convenience store shall be equipped with a drop safe or time-release safe that restricts access to cash receipts and is bolted to the floor, installed in the floor or weighs a minimum of five hundred pounds.
B. Between 8:00 p.m. and 6:00 a.m. a convenience store shall maintain no more than fifty dollars ($50.00) in cash readily available to employees. The convenience store shall post a conspicuous sign at the entrance to the store stating that, between 8:00 p.m. and 6:00 a.m., the store employees do not have access to more than fifty dollars ($50.00).
Section 7. [NEW MATERIAL] MINIMUM SECURITY STANDARDS--EMPLOYEE TRAINING.--
A. Each employee of a convenience store, once before being assigned to work any shift and annually thereafter within thirty days of each anniversary of the employee‛s hiring date, shall complete a course in workplace security and proper robbery response approved by the department of environment.
B. Complete and accurate records of employee training shall be maintained by the owner for a period lasting at least four years after the end of an employee‛s employment.
C. All costs of employee training shall be borne by the convenience store.
Section 8. [NEW MATERIAL] MINIMUM SECURITY STANDARDS--VIDEO SURVEILLANCE.--
A. During all times that an employee is on the premises, a convenience store shall maintain functioning video security cameras capable of producing a retrievable image on film, tape or other recording medium that can be made a permanent record and enlarged through projection or other means. At least one such camera shall be focused on each cash register area, and at least one such camera shall be focused on each entrance to the store.
B. For the purpose of summoning law enforcement when criminal activity is taking place, via closed circuit interactive television or an off-site entity with the ability to summon law enforcement, the video security cameras required by Subsection A of this section shall be monitored in real time at an off-premises location at all times that the convenience store is open to the public between 8:00 p.m. and 6:00 a.m.
C. Film, tapes or other recording medium from the cameras required by Subsection A of this section shall not be recorded over, erased, destroyed or disposed of for at least thirty days; provided, however, that any film, tape or other recording medium that may demonstrate a crime shall not be recorded over, erased, destroyed or disposed of for at least four years.
Section 9. [NEW MATERIAL] MINIMUM SECURITY STANDARDS--STAFFING.--No less than two employees shall continuously be on duty at all times that a convenience store is open to the public between 8:00 p.m. and 6:00 a.m. unless:
A. the doors to the store are locked and customers are served through a trough trapdoor or window; or
B. the employee is located in a bullet-resistant security booth, constructed of transparent polycarbonate or other material that meets one of the following standards:
(1) the American society for testing and materials standard D3935 and a thickness of at least three-eighths inch and an impact strength of at least two hundred foot pounds; or
(2) underwriters laboratory standard UL 752 for medium small arms, bullet resisting equipment.
Section 10. [NEW MATERIAL] MINIMUM SECURITY STANDARDS--ADDITIONAL SECURITY MEASURES.--
A. Each employee of a convenience store shall be provided by the store with a functioning individual-monitored panic alarm that shall be worn at all times while the employee is on the store premises. No convenience store shall permit an employee to work at any time unless the employee is wearing such a monitored panic alarm. The alarm shall be linked to a law enforcement agency or a private security company.
B. The cash register and any additional sales area of a convenience store shall be located so that they are clearly visible from the outside of the store.
C. Telephones, other than pay phones, shall be located in a convenience store at the cash register area and in at least one other location away from the cash register area. The telephones shall be accessible to employees at all times.
D. A height marker, visible from at least one video camera, shall be placed at each entrance to a convenience store.
Section 11. [NEW MATERIAL] LOCAL ORDINANCES.--
A. Nothing in the Convenience Store Safety Act prohibits the governing body of a county or municipal government from enacting security standards that are more stringent than those contained in the Convenience Store Safety Act; provided, however, that no county or municipality shall adopt standards that are less stringent than those contained in that act.
B. Any security standards for convenience stores existing on the effective date of the Convenience Store Safety Act that are less stringent than those required by that act are null and void.
Section 12. [NEW MATERIAL] ENFORCEMENT OF ACT--CIVIL PENALTIES.--
A. The environmental improvement board shall promulgate such rules as are necessary for the department of environment to administer and enforce the provisions of the Convenience Store Safety Act. The department of environment is responsible for the administration and enforcement of the provisions of the Convenience Store Safety Act and of all rules adopted by the board pursuant to the provisions of that act. The department may take all actions necessary and appropriate to carry out its responsibilities.
B. In order to carry out the provisions of the Convenience Store Safety Act, the department of environment's authorized representatives, upon presenting appropriate credentials to an owner, may:
(1) enter and inspect any convenience store at reasonable times and without delay; and
(2) question privately the owner and employees and inspect and investigate during regular working hours and at other reasonable times, within reasonable limits and in a reasonable manner, the convenience store and all pertinent conditions, structures, machines, apparatus, devices, equipment and materials therein; provided, however, the department's representative is not authorized to question privately the owner or employees until the environmental improvement board has adopted rules protecting the rights of such owner and employees.
C. A representative of the department of environment, making an inspection pursuant to Subsection B of this section, may issue a field citation imposing a civil penalty for a violation of the Convenience Store Safety Act or a rule issued pursuant to that act. The penalty shall be in an amount not to exceed five hundred dollars ($500) per day of violation. A field citation issued pursuant to this subsection shall be final unless the owner named in the citation files a written request for a public hearing with the secretary of environment no later than fifteen days after the date on which the field citation is served, in which case the enforcement of the field citation shall be suspended pending the issuance of a final order of the secretary after hearing.
D. Within five days of receipt of a request for a hearing pursuant to Subsection C of this section, the secretary shall set a date for a public hearing. The hearing date shall be at least fifteen days and not more than twenty days after the date the notice of hearing is mailed to the respondent by certified mail, return receipt requested. The secretary shall appoint an independent hearing officer to conduct the public hearing. The hearing officer shall make and preserve a complete record of the proceedings. Within five days after the hearing is completed, the hearing officer shall submit the record and his recommendations for a decision to the secretary. Within ten days after receipt of the recommendations of the hearing officer, the secretary shall make his decision and issue his order. The order of the secretary is final and an owner, adversely affected by the order, may obtain a review of the order in the district court pursuant to Section 39-3-1.1 NMSA 1978. The secretary may seek enforcement of the order by filing an action for enforcement in the district court. E. Payment of a civil penalty pursuant to this section shall not be a defense to further enforcement by the department to correct a violation.
F. Penalties collected pursuant to this section shall be deposited with the state treasurer to be credited to the general fund.
Section 13. [NEW MATERIAL] VIOLATION OF SECURITY STANDARDS--PRIVATE REMEDIES.--
A. A claimant, including an employee, who has been injured as a result of a crime occurring in a convenience store that failed to comply with a provision of the Convenience Store Safety Act or a rule issued pursuant to that act may bring an action against the convenience store or its owner to recover actual damages plus reasonable attorney fees and costs. In the action:
(1) the claimant is not required to show negligence or fault on the part of the convenience store or the owner and the store or owner shall be strictly liable upon a showing by the claimant that, at the time of the crime, the convenience store failed to comply with a standard required by the Convenience Store Safety Act or a rule issued pursuant to that act; and
(2) the convenience store or the owner may not raise the defense of comparative negligence.
B. The remedies provided in this section are in addition to any available remedies otherwise provided by law and, for employee claimants, are in addition to, and not precluded by, remedies available pursuant to the Workers‛ Compensation Act.
C. No claimant may prevail in an action brought pursuant to this section if the claimant, or the person on whose behalf the claimant is bringing the action, was injured while committing a crime on the premises of the convenience store.
Section 14. Section 52-1-6 NMSA 1978 (being Laws 1990 (2nd S.S.), Chapter 2, Section 4) is amended to read:
"52-l-6. APPLICATION OF PROVISIONS OF ACT.--
A. The provisions of the Workers' Compensation Act shall apply to employers of three or more workers; provided that the act shall apply to all employers engaged in activities required to be licensed under the provisions of the Construction Industries Licensing Act regardless of the number of employees. The provisions of the Workers' Compensation Act shall not apply to employers of private domestic servants and farm and ranch laborers.
B. An election to be subject to the Workers' Compensation Act by employers of private domestic servants or farm and ranch laborers, by persons for whom the services of qualified real estate salespersons are performed or by a partner or self-employed person may be made by filing, in the office of the director, either a sworn statement to the effect that the employer accepts the provisions of the Workers' Compensation Act or an insurance or security undertaking as required by Section 52-l-4 NMSA l978.
C. Every worker shall be conclusively presumed to have accepted the provisions of the Workers' Compensation Act if his employer is subject to the provisions of that act and has complied with its requirements, including insurance.
D. [Such] Unless specifically otherwise provided by law, compliance with the provisions of the Workers' Compensation Act, including the provisions for insurance, shall be [and construed to be] a surrender by the employer and the worker of their rights to any other method, form or amount of compensation or determination thereof or to any cause of action at law, suit in equity or statutory or common-law right to remedy or proceeding whatever for or on account of personal injuries or death of the worker than as provided in the Workers' Compensation Act and shall be an acceptance of all of the provisions of the Workers' Compensation Act and shall bind the worker himself and, for compensation for his death, shall bind his personal representative, his surviving spouse and next of kin, as well as the employer and those conducting his business during bankruptcy or insolvency.
E. Unless specifically otherwise provided by law, the Workers' Compensation Act provides exclusive remedies, and no cause of action outside the Workers' Compensation Act shall be brought by an employee or dependent against the employer or his representative, including the insurer, guarantor or surety of any employer, for any matter relating to the occurrence of or payment for any injury or death covered by the Workers' Compensation Act. Nothing in the Workers' Compensation Act, however, shall affect [or be construed to affect] in any way the existence of or the mode of trial of any claim or cause of action that the worker has against any person other than his employer or another employee of his employer, including a management or supervisory employee, or the insurer, guarantor or surety of his employer."
Section 15. Section 52-1-9 NMSA 1978 (being Laws 1937, Chapter 92, Section 4, as amended) is amended to read:
"52-1-9. RIGHT TO COMPENSATION--EXCLUSIVE.--Unless specifically otherwise provided by law, the right to the compensation provided for in [this] the Workers' Compensation Act, in lieu of any other liability [whatsoever], to any and all persons [whomsoever], for any personal injury accidentally sustained or death resulting therefrom, shall obtain in all cases where the following conditions occur:
A. at the time of the accident, the employer has complied with the provisions [thereof] of that act regarding insurance;
B. at the time of the accident, the employee is performing service arising out of and in the course of his employment; and
C. the injury or death is proximately caused by accident arising out of and in the course of his employment and is not intentionally self-inflicted."
Section 16. Section 74-1-7 NMSA 1978 (being Laws 1971, Chapter 277, Section 10, as amended by Laws 2000, Chapter 86, Section 1 and also by Laws 2000, Chapter 96, Section 1) is amended to read:
"74-1-7. DEPARTMENT--DUTIES.--
A. The department is responsible for environmental management and consumer protection programs. In that respect, the department shall maintain, develop and enforce rules and standards in the following areas:
(1) food protection;
(2) water supply, including implementing a capacity development program to assist water systems in acquiring and maintaining technical, managerial and financial capacity in accordance with Section 1420 of the federal Safe Drinking Water Act and establishing administrative penalties for enforcement;
(3) liquid waste, including exclusive authority to collect on-site liquid waste system fees that are no more than the average charged by the contiguous states to New Mexico for similar permits and services and to implement and administer an inspection and permitting program for on-site liquid waste systems;
(4) air quality management as provided in the Air Quality Control Act;
(5) radiation control and collection of license, registration and other related fees as provided in the Radiation Protection Act;
(6) noise control;
(7) nuisance abatement;
(8) vector control;
(9) occupational health and safety as provided in the Occupational Health and Safety Act;
(10) sanitation of public swimming pools and public baths;
(11) plumbing, drainage, ventilation and sanitation of public buildings in the interest of public health;
(12) medical radiation, health and safety certification and standards for radiologic technologists as provided in the Medical Radiation Health and Safety Act;
(13) hazardous wastes and underground storage tanks as provided in the Hazardous Waste Act; [and]
(14) solid waste as provided in the Solid Waste Act; and
(15) convenience store safety as provided in the Convenience Store Safety Act.
B. Nothing in Subsection A of this section imposes requirements for the approval of subdivision plats in addition to those required elsewhere by law. Nothing in Subsection A of this section preempts the authority of any political subdivision to approve subdivision plats."
Section 17. Section 74-1-8 NMSA 1978 (being Laws 1971, Chapter 277, Section 11, as amended by Laws 2000, Chapter 86, Section 2 and also by Laws 2000, Chapter 96, Section 2) is amended to read:
"74-1-8. BOARD--DUTIES.--
A. The board is responsible for environmental management and consumer protection. In that respect, the board shall promulgate rules and standards in the following areas:
(1) food protection;
(2) water supply, including a capacity development program to assist water systems in acquiring and maintaining technical, managerial and financial capacity in accordance with Section 1420 of the federal Safe Drinking Water Act and rules authorizing imposition of administrative penalties for enforcement;
(3) liquid waste, including exclusive authority to establish on-site liquid waste system fees that are no more than the average charged by the contiguous states to New Mexico for similar permits and services and to implement and administer an inspection and permitting program for on-site liquid waste systems;
(4) air quality management as provided in the Air Quality Control Act;
(5) radiation control and establishment of license, registration and other related fees not to exceed fees charged by the United States nuclear regulatory commission for similar licenses as provided in the Radiation Protection Act;
(6) noise control;
(7) nuisance abatement;
(8) vector control;
(9) occupational health and safety as provided in the Occupational Health and Safety Act;
(10) sanitation of public swimming pools and public baths;
(11) plumbing, drainage, ventilation and sanitation of public buildings in the interest of public health;
(12) medical radiation, health and safety certification and standards for radiologic technologists as provided in the Medical Radiation Health and Safety Act;
(13) hazardous wastes and underground storage tanks as provided in the Hazardous Waste Act; [and]
(14) solid waste as provided in the Solid Waste Act; and
(15) convenience store safety as provided in the Convenience Store Safety Act.
B. Nothing in Subsection A of this section imposes requirements for the approval of subdivision plats in addition to those required elsewhere by law. Nothing in Subsection A of this section preempts the authority of any political subdivision to approve subdivision plats.
C. Administrative penalties collected pursuant to Paragraph (2) of Subsection A of this section shall be deposited in the water conservation fund.
D. On-site liquid waste system fees shall be deposited in the liquid waste fund.
E. Radiation license, registration and other related fees shall be deposited in the radiation protection fund."
Section 18. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2004.
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