SENATE BILL 244
47th legislature - STATE OF NEW MEXICO - first session, 2005
INTRODUCED BY
Dede Feldman
AN ACT
RELATING TO ALCOHOLIC BEVERAGES; CREATING LOCAL EMPOWERMENT DISTRICTS; PERMITTING RESTRICTIONS ON ALCOHOL SALES AND SERVICE IN LOCAL EMPOWERMENT DISTRICTS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. A new section of the Liquor Control Act is enacted to read:
"[NEW MATERIAL] LOCAL EMPOWERMENT DISTRICT--CREATION.--
A. An area within a local option district may be designated by a governing body as a local empowerment district if the area is adversely affected by chronic public intoxication or by illegal activity associated with alcohol sales or consumption.
B. The governing body of a county that is a local option district shall not designate a local empowerment district that includes a municipality, or part of a municipality, without the approval of the governing body of that municipality.
C. A local empowerment district shall not cover a geographic area that includes the entire territory of a local option district unless the entire local option district, according to the most recent federal decennial census, has a population of less than fifty thousand."
Section 2. A new section of the Liquor Control Act is enacted to read:
"[NEW MATERIAL] LOCAL EMPOWERMENT DISTRICT DESIGNATION--ORDINANCE REQUIREMENTS.--A governing body may designate an area as a local empowerment district by ordinance. The ordinance shall include:
A. a rationale for the establishment of the local empowerment district;
B. clearly indicated boundaries of the local empowerment district that are understandable to the general public; and
C. findings demonstrating:
(1) that chronic public intoxication or illegal activity associated with alcohol sales or consumption is contributing to the deterioration of the quality of life or threatening the public health, safety and welfare of residents in the area;
(2) a pervasive pattern of chronic public intoxication documented in crime statistics, police reports, emergency medical response data, detoxification reports, sanitation reports, public health records or related records concerning the area; and
(3) that the governing body has made a good faith effort to control chronic public intoxication or illegal activity associated with alcohol sales or consumption by encouraging voluntary business practices and cooperation with neighborhood, citizen or business organizations and that implementation of voluntary practices has been attempted for at least sixty days."
Section 3. A new section of the Liquor Control Act is enacted to read:
"[NEW MATERIAL] RESTRICTIONS ON LIQUOR SALES.--
A. Restrictions on sales and service of alcoholic beverages within a local empowerment district shall be reasonably related to reducing chronic public intoxication or illegal activity associated with alcohol sales or consumption and may include restrictions on:
(1) hours of operation for the sale or service of alcoholic beverages; and
(2) types of alcoholic beverage products available for sale, including the size of containers.
B. A result of a local option election shall not be modified by restrictions within a local empowerment district."
Section 4. A new section of the Liquor Control Act is enacted to read:
"[NEW MATERIAL] APPROVAL BY DIRECTOR--PUBLIC HEARING.--
A. Before restrictions may be imposed in a local empowerment district, a governing body shall submit to the director the ordinance designating the area as a local empowerment district and the proposed restrictions.
B. Within forty-five days after receipt of the ordinance and proposed restrictions, the director shall hold a public hearing in the local empowerment district on whether:
(1) there are sufficient grounds for the designation of the area as a local empowerment district; and
(2) the proposed restrictions are reasonably related to reducing chronic public intoxication or illegal activity associated with alcohol sales or consumption in the area.
C. Notice of the public hearing shall be given by publishing a notice of the date, time and place of the hearing at least once a week for two consecutive weeks in a newspaper of general circulation within the territorial limits of the local empowerment district.
D. The notice shall set forth the ordinance and proposed restrictions in their entirety.
E. The director may designate a hearing officer to conduct the hearing. The director or the hearing officer shall have the power to administer oaths. A record shall be made of the hearing.
F. After the hearing, the director shall consider approval of the designation of the area as a local empowerment district if:
(1) there are sufficient grounds for the designation;
(2) the ordinance meets all statutory requirements; and
(3) the designation benefits the public health, safety and welfare of the residents of the area.
G. The director shall consider approval of the restrictions proposed by the governing body if the restrictions:
(1) are reasonably related to reducing chronic public intoxication or illegal activity associated with alcohol sales or consumption in the district; and
(2) would benefit the public health, safety and welfare of the residents of the local empowerment district. H. The director may recommend modifications of the proposed restrictions to the governing body.
I. Any subsequent restrictions proposed by the governing body shall be subject to the submission and hearing requirements of this section."
Section 5. A new section of the Liquor Control Act is enacted to read:
"[NEW MATERIAL] END OF STATUS AS LOCAL EMPOWERMENT DISTRICT.--
A. The director may, upon the request of the governing body of a local empowerment district, or at the director's own discretion, hold a public hearing in the local empowerment district to determine whether to end the status of an area as the local empowerment district.
B. Notice of the public hearing and its purpose shall be given by publishing a notice of the date, time and place of the hearing at least once a week for two consecutive weeks in a newspaper of general circulation within the territorial limits of the local empowerment district.
C. The director may designate a hearing officer to conduct the hearing. The director or the hearing officer shall have the power to administer oaths.
D. Within ten days after the hearing, the director shall determine whether to end the status of the area as a local empowerment district."
Section 6. 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. "chronic public intoxication" means the effects of public consumption of alcoholic beverages or public intoxication that endanger the public health, safety and welfare of a community;
[D.] E. "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 exemption as soon as it is eligible; or
(2) an airline passenger membership club operated by an air common carrier that maintains or operates a clubroom at an international airport terminal. For the purposes of this paragraph, "air common carrier" means a person engaged in regularly scheduled air transportation between fixed termini under a certificate of public convenience and necessity issued by the civil aeronautics board;
[E.] F. "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.] G. "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.] H. "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.] I. "dispenser" means a person licensed under the provisions of the Liquor Control Act selling, offering for sale or [having in his possession] possessing 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.] J. "distiller" means a person engaged in manufacturing spirituous liquors;
[J.] K. "golf course" means a tract of land and facilities used for playing golf and other recreational activities that includes tees, fairways, greens, hazards, putting greens, driving ranges, recreational facilities, patios, pro shops, cart paths and public and private roads that are located within the tract of land;
[K.] L. "governing body" means the board of county commissioners of a county or the city council or city commissioners of a municipality;
[L.] M. "hotel" means an establishment or complex having a resident of New Mexico as a proprietor or manager and where, in consideration of payment, meals and lodging are regularly furnished to the general public. The establishment or complex must maintain for the use of its guests a minimum of twenty-five sleeping rooms;
[M.] N. "licensed premises" means the contiguous areas or areas connected by indoor passageways of a structure and the outside dining, recreation and lounge areas of the structure that are under the direct control of the licensee and from which the licensee is authorized to sell, serve or allow the consumption of alcoholic beverages under the provisions of its license; provided that in the case of a restaurant, including a restaurant that has operated continuously in two separate structures since July 1, 1987 and that is located in a local option district that has voted to disapprove the transfer of liquor licenses into that local option district, hotel, golf course or racetrack, "licensed premises" includes all public and private rooms, facilities and areas in which alcoholic beverages are sold or served in the customary operating procedures of the restaurant, hotel, golf course or racetrack;
O. "local empowerment district" means an area that is adversely affected by chronic public intoxication or illegal activity associated with alcohol sales or consumption and is designated by ordinance of the governing body as a local empowerment district;
[N.] P. "local option district" means a county that has voted to approve the sale, serving or public consumption of alcoholic beverages, or any incorporated municipality that falls within a county that has voted to approve the sale, serving or public consumption of alcoholic beverages, or any 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.] Q. "manufacturer" means a distiller, rectifier, brewer or winer;
[P.] R. "minor" means a person under twenty-one years of age;
[Q.] S. "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.] T. "person" means an individual, corporation, firm, partnership, copartnership, association or other legal entity;
[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 possession] possessing with the intent to sell alcoholic beverages in unbroken packages for consumption and not for resale off the licensed premises;
[V.] X. "spirituous liquors" means alcoholic beverages as defined in Subsection A of this section except fermented beverages such as wine, beer and ale;
[W.] Y. "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.] Z. "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.] AA. "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.] BB. "winegrower" means a person who owns or operates a business for the manufacture of wine; and
[AA.] CC. "winer" means a winegrower."
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