HOUSE BILL 541
50th legislature - STATE OF NEW MEXICO - first session, 2011
INTRODUCED BY
Zachary J. Cook
AN ACT
RELATING TO ALCOHOLIC BEVERAGES; CREATING THE LIMITED DISPENSER'S LICENSE; REPEALING THE QUOTA FOR DISPENSER'S AND RETAILER'S LICENSES; ADDRESSING THE PURPOSE OF LOCAL OPTION ELECTIONS; PROHIBITING THE ISSUANCE OF NEW DISPENSER'S AND RETAILER'S LICENSES UNTIL 2018; INCREASING THE FEE FOR NEW DISPENSER'S AND RETAILER'S LICENSES; ALLOWING CURRENT DISPENSER'S AND RETAILER'S LICENSES TO BE TRANSFERRED ANYWHERE IN THE STATE UNTIL 2021 SUBJECT TO A LOCAL OPTION DISTRICT LIMITATION; ELIMINATING THE TRANSFERABILITY OF ANY LICENSE AFTER 2021.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 60-5A-1 NMSA 1978 (being Laws 1981, Chapter 39, Section 15, as amended) is amended to read:
"60-5A-1. ELECTIONS FOR LOCAL OPTION.--[Any municipality containing over five thousand population according to the latest United States census, whether the county in which that municipality is situated has adopted the local option provisions of the Liquor Control Act or any former act or not, or any county in the state may adopt local option in the county or municipality upon the following terms and conditions:
A. at any time after the effective date of the Liquor Control Act, the registered qualified electors of any proposed local option district may petition the governing body by filing one or more petitions in the appropriate office to hold an election for the purpose of determining whether the county or municipality shall adopt the local option provisions of the Liquor Control Act.]
A. Alcoholic beverages shall not be sold, served or consumed in public in a county or municipality that did not become a local option district pursuant to the Liquor Control Act or any former act. A county or municipality that did not become a local option district prior to July 1, 2011 pursuant to the Liquor Control Act or any former act may hold an election to become a local option district pursuant to this section.
B. A local option district created pursuant to the Liquor Control Act or any former act may hold an election to limit the number of dispenser's, limited dispenser's and retailer's licenses that may be issued in the local option district. The election question shall be whether to limit the number of those licenses to those currently issued or to allow additional licenses in a certain number over a period of time. If no election is held or until an election is held imposing a limit, there shall be no limitation imposed on the number of licenses in a local option district.
C. In a county or municipality that did not become a local option district prior to July 1, 2011, the registered qualified electors of any proposed local option district may petition the governing body by filing one or more petitions in the appropriate office to hold an election for the purpose of determining whether the county or municipality shall adopt the local option provisions of the Liquor Control Act. An election shall be held pursuant to this section.
D. In a local option district created pursuant to the Liquor Control Act or any former act, the registered qualified electors of the local option district may petition the governing body by filing one or more petitions in the appropriate office to hold an election for the purpose of determining whether licenses should be limited in one of the manners described in Subsection B of this section. If a petition is to limit additional licenses to a certain number over a period of time, the number and period of time shall be stated in the petition. An election shall be held pursuant to this section.
E. If the aggregate of the signatures [of such electors] on all the petitions equals or exceeds five percent of the number of registered voters of the local option district or proposed local option district, the governing body shall call an election within seventy-five days of the verification of the petition. The date of the filing of the petition shall be the date of the filing of the last petition [which] that brings the number of signatures up to the required five percent; provided, however, that the governing body shall refuse to recognize the petition if more than three months have elapsed between the date of the first signature and the filing of the last petition necessary to bring the number of signatures on the petition up to five percent.
[B.] F. The election shall be called, conducted, counted and canvassed substantially in the manner provided by law for general elections within the county or special municipal elections within the municipality, except as otherwise provided in this section.
[C.] G. The votes at the election shall be counted, returned and canvassed as provided for in the case of general elections within the county or special municipal elections within the municipality.
[D.] H. Except as otherwise provided in this section, contests, recounts and rechecks shall be permitted as provided for in the case of candidates for county office in general elections or as provided for in the case of special municipal elections within the municipality. Applications for contests, recounts or rechecks may be filed by any person who voted in the election, and service shall be made upon the county clerk or municipal clerk as the case may be.
[E.] I. If [a] the majority of all the votes cast at the election are cast in favor of [the sale, service or public consumption of alcoholic beverages in the county or municipality] limiting the number of licenses or of becoming a local option district, the [chairman] chair of the governing body shall declare by order entered upon the records of the county or municipality that the county or municipality has limited the number of licenses as petitioned or has adopted the local option provisions of the Liquor Control Act and shall notify the department of [such] the results.
[F.] J. No election held pursuant to this section shall be held within forty-two days of [any] a primary, general, municipal or school district election. If within sixty days from the verification of [any] a petition as provided in Subsection [A] C of this section a primary, general, municipal or school election is held, the governing body may call an election for a day not less than sixty days after the primary, general, municipal or school election.
[G.] K. If an election is held under the provisions of the Liquor Control Act in [any] a county [which] that contains within its limits [any] a municipality of more than five thousand persons according to the [last] latest United States census, it is not necessary for the registered qualified electors in the municipality to file a separate petition asking for a separate or different vote on the question of adopting the local option provisions of the Liquor Control Act by the municipality. The election in the county shall be conducted so as to separate the votes in the municipality from those in the remaining parts of the county. If [a] the majority of the voters in the county, including the voters in the municipality, vote against the sale, service or public consumption of alcoholic beverages in the county, the county shall not adopt the local option provisions of the Liquor Control Act; but if [a] the majority of the votes in the municipality are in favor of the sale, service or public consumption of alcoholic beverages, the municipality shall have adopted the local option provisions of the Liquor Control Act. Nothing contained in this subsection shall prevent any municipality from having a separate election under the terms of this section.
[H. any county or municipality composing a local option district under the provisions of the Liquor Control Act or any former act may vote to discontinue the sale, service or public consumption of alcoholic beverages in the local option district; the discontinuance shall become effective on the ninetieth day after the local option election is held; and
I.] L. Nothing in this section shall invalidate any local option election held pursuant to any former act prior to July 1, 1981."
SECTION 2. Section 60-5A-2 NMSA 1978 (being Laws 1981, Chapter 39, Section 16) is amended to read:
"60-5A-2. RESUBMISSION OF LOCAL OPTION QUESTION OR LICENSE LIMITATION QUESTION.--[In any local option district]
A. In a county or municipality in which the local option provisions of the Liquor Control Act or former act have been rejected by the voters, it shall be permissible after the expiration of two years from the date of the election at which the local option provisions of the Liquor Control Act or any former act were rejected to have another local option election in the district by following the procedure provided for in Section [15 of the Liquor Control Act. At the option of the petitioners referred to in Subsection A of Section 15 of that act, it shall be permissible to resubmit to the voters of one district not only the question of the sale, service or public consumption of alcoholic beverages, but it shall also be permissible to petition for a local option election for the purpose of submitting to the voters of the district the question of permitting the sale of alcoholic beverages by retailers only in the district] 60-5A-1 NMSA 1978.
B. In a local option district that imposed a limitation on the number of licenses, no less than five years following the election that imposed the limitation, the question of raising the limitation on the number of licenses that can be issued in the local option district may be resubmitted to the registered qualified electors pursuant to the procedure in Section 60-5A-1 NMSA 1978. In no case shall an election reduce the number of licenses permitted in the local option district prior to the election."
SECTION 3. Section 60-6A-2 NMSA 1978 (being Laws 1981, Chapter 39, Section 19) is amended to read:
"60-6A-2. RETAILER'S LICENSE.--
A. From July 1, 2011 until June 30, 2018, the director shall not issue a new retailer's license. On and after July 1, 2018, in any local option district, a person qualified under the provisions of the Liquor Control Act may apply for and be issued a retailer's license for the retail sale of alcoholic beverages.
B. A retailer's license, when issued, shall only be used by the person to whom the license is issued and shall only be used within the licensed premises, pursuant to provisions of the Liquor Control Act."
SECTION 4. Section 60-6A-3 NMSA 1978 (being Laws 1981, Chapter 39, Section 20) is amended to read:
"60-6A-3. DISPENSER'S LICENSE.--
A. From July 1, 2011 until June 30, 2018, the director shall not issue a new dispenser's license. On and after July 1, 2018, in any local option district, a person qualified under the provisions of the Liquor Control Act may apply for and be issued a dispenser's license for the sale of alcoholic beverages.
B. A dispenser's license, when issued, shall only be used by the person to whom the license is issued and shall only be used within the licensed premises, pursuant to provisions of the Liquor Control Act."
SECTION 5. Section 60-6A-4 NMSA 1978 (being Laws 1981, Chapter 39, Section 21, as amended) is amended to read:
"60-6A-4. RESTAURANT LICENSE.--
A. At any time after the effective date of the Liquor Control Act, a local option district may approve the issuance of restaurant licenses for the sale of beer and wine by holding an election on that question pursuant to the procedures set out in Section 60-5A-1 NMSA 1978. The election also may be initiated by a resolution adopted by the governing body of the local option district without a petition from registered qualified electors having been submitted.
B. After the approval of restaurant licenses by the registered qualified electors of the local option district and upon completion of all requirements in the Liquor Control Act for the issuance of licenses, a restaurant located or to be located within the local option district may receive a restaurant license to sell, serve or allow the consumption of beer and wine subject to the following requirements and restrictions:
(1) the applicant shall submit evidence to the department that [he] the applicant has a current valid food service establishment permit;
(2) the applicant 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 beer and wine;
(3) the director shall condition renewal upon a requirement that no less than sixty percent of gross receipts from the preceding twelve months' operation of the licensed restaurant was derived from the sale of meals;
(4) upon application for renewal, the licensee shall submit an annual report to the director indicating the annual gross receipts from the sale of meals and from beer and wine sales;
(5) restaurant licensees shall not sell beer and wine for consumption off the licensed premises;
(6) all sales, services and consumption of beer and wine authorized by a restaurant license shall cease at the time meals sales and services cease or at 11:00 p.m., whichever time is earlier;
(7) if Sunday sales have been approved in the local option district, a restaurant licensee may serve beer and wine on Sundays until the time meals sales and services cease or 11:00 p.m., whichever time is earlier; and
(8) a restaurant license shall not be transferable from person to person or from one location to another.
[C. The provisions of Section 60-6A-18 NMSA 1978 shall not apply to restaurant licenses.
D.] C. Nothing in this section shall prevent a restaurant licensee from receiving other licenses pursuant to the Liquor Control Act."
SECTION 6. Section 60-6A-5 NMSA 1978 (being Laws 1981, Chapter 39, Section 22) is amended to read:
"60-6A-5. CLUB LICENSES.--
A. In any local option district, a club qualified under the provisions of the Liquor Control Act may apply for and be issued a club license.
B. Club licenses shall not be transferred from one owner to another. A club license may be transferred from one location to another upon compliance with the provisions of the Liquor Control Act. A club license shall not be leased.
[C. The provisions of Section 35 of the Liquor Control Act shall not apply to club licenses.]"
SECTION 7. 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.] D. 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;
(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] governmental 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.] E. 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.] F. 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 8. A new section of the Liquor Control Act is enacted to read:
"[NEW MATERIAL] LIMITED DISPENSER'S LICENSE.--
A. 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's 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 person shall submit evidence to the director that the person has a current valid food service establishment permit;
(2) 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;
(3) 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;
(4) 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;
(5) 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;
(6) the license shall not permit the sale, service and consumption of alcoholic beverages after the time that meal sales and service cease;
(7) 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 cease;
(8) 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; and
(9) except as otherwise specifically provided for limited dispenser's licenses, a limited dispenser's license is subject to the Liquor Control Act in the same manner as a dispenser's license.
B. Nothing in this section shall prevent a limited dispenser's licensee from receiving other licenses pursuant to the Liquor Control Act; provided that a limited dispenser's license shall not be used to apply for or receive a special dispenser's permit pursuant to Section 60-6A-12 NMSA 1978."
SECTION 9. 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, for issuance, two hundred thousand ($200,000), and for renewal, one thousand three hundred dollars ($1,300);
K. dispenser's license, for issuance, two hundred fifty thousand ($250,000), and for renewal, one thousand three hundred dollars ($1,300);
L. limited dispenser's license, for issuance, one hundred thousand dollars ($100,000), and for renewal, one thousand three hundred dollars ($1,300);
[L.] M. canopy license, one thousand three hundred dollars ($1,300);
[M.] N. restaurant license, one thousand fifty dollars ($1,050);
[N.] O. 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.] P. wine bottler's license to sell to wholesalers only, five hundred dollars ($500);
[P.] Q. public service license, one thousand two hundred fifty dollars ($1,250);
[Q.] R. 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. . . . . . . . . .$300;
[R.] S. 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.] T. beer bottler's license, two hundred dollars ($200)."
SECTION 10. 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, the applicant for the license 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, 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] names 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.
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, the department shall hold a public hearing within thirty days after receipt of the application pursuant to Subsection [K] H of this section.
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.] H. The director shall notify the applicant by certified mail of the date, time and place of the 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.] I. In determining whether a license shall be issued, the director shall take into consideration all requirements of the Liquor Control Act. In the issuance of a license, 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 disapprove the issuance or give preliminary approval of the issuance of the license based upon a review of all documentation submitted and any investigation deemed necessary by the director.
[M.] J. Before a new license is issued for 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] the posting shall be over a continuous period of twenty days prior to preliminary approval of the license. 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.] K. A license shall not be issued until the posting requirements of Subsection [M] J of this section have been met.
[O.] L. All costs of publication and posting shall be paid by the applicant.
[P.] M. 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.] N. A person aggrieved by a decision made by the director as to the approval or disapproval of the issuance of a license may appeal to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978. If the disapproval is based upon local option district disapproval pursuant to Subsection H of Section 60-6B-4 NMSA 1978, the local option district 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 11. 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] Until July 1, 2021, 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] is not a local option district or that under any prior law prohibited 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 liquor licenses of the governing body for that location; and provided all] The transfer shall be subject to the following provisions:
(1) it is not contrary to law;
(2) the local governing body of the receiving local option district has approved the transfer;
(3) the requirements of the Liquor Control Act and department [regulations] rules 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) 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) 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 Section 60-6B-2 NMSA 1978; and]
(4) 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. [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 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 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. Until July 1, 2021, rural dispenser's and 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.
E. On and after July 1, 2021, a dispenser's, retailer's, rural dispenser's or rural retailer's license issued pursuant to the Liquor Control Act or any former law shall not be transferred from its then-current location."
SECTION 12. Section 60-6B-16 NMSA 1978 (being Laws 1988, Chapter 12, Section 4) is amended to read:
"60-6B-16. SPECIAL PROVISIONS FOR REPLACEMENT OF CANOPY LICENSES--TRANSFER TAX.--
A. On July 1, 1988, [notwithstanding the provisions of Section 60-6A-18 NMSA 1978] each canopy license, upon the payment to the department of a one-time transfer tax of five thousand dollars ($5,000) and the applicable annual license renewal fee, shall become a dispenser's license.
B. The location of a dispenser's license issued pursuant to this section may only be transferred within the local option district in which the replaced canopy license was located on January 1, 1988, subject to the requirements of Sections 60-6B-2 and 60-6B-4 NMSA 1978 and the limitations set forth in Subsection E of this section. After a transfer of location as provided in this subsection, the license shall be operated by the person who transfers the location of the license for a period of at least one year from the date of approval of the transfer by the department.
C. Ownership of a dispenser's license issued pursuant to this section may be transferred in the same manner as provided for the transfer of ownership of dispenser's licenses issued under any former act to the Liquor Control Act, subject to the requirements of Sections 60-6B-2 and 60-6B-4 NMSA 1978 and the limitations set forth in Subsection E of this section. After a transfer of ownership as provided in this subsection, the location of the license shall not be transferred for a period of at least one year from the date of approval of the transfer of ownership by the department.
D. A dispenser's license issued pursuant to this section may be leased in the same manner as provided for the lease of dispenser's licenses issued under any former act to the Liquor Control Act, subject to approval of the department and the limitations set forth in Subsection E of this section.
E. If the location of a canopy license or a dispenser's license issued pursuant to this section is transferred prior to June 30, 1995 by a person who applies to the department to acquire ownership of the license after January 1, 1988 or if the location of a canopy license or a dispenser's license issued pursuant to this section is transferred prior to June 30, 1995 pursuant to a lease agreement entered into after January 1, 1988, the license shall only entitle the licensee or [his] the licensee's lessee to sell, serve or permit the consumption of alcoholic beverages by the drink on the licensed premises. Sale of alcoholic beverages in unbroken packages for consumption off the licensed premises shall not be permitted after a transfer described in this subsection.
F. [Any] A canopy license for which the transfer tax imposed by this section is not paid to the department by August 31, 1988 shall be subject to cancellation by the director as provided in Section 60-6B-5 NMSA 1978.
G. The department shall deposit all transfer taxes collected as provided in this section in the general fund."
SECTION 13. REPEAL.--Section 60-6A-18 NMSA 1978 (being Laws 1981, Chapter 39, Section 35, as amended) is repealed.
SECTION 14. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2011.
- 36 -