SENATE BILL 264
52nd legislature - STATE OF NEW MEXICO - second session, 2016
INTRODUCED BY
Gerald Ortiz y Pino and James E. Smith
AN ACT
RELATING TO LIQUOR CONTROL; PROVIDING FOR THE ISSUANCE OF BEER AND WINE DELIVERY LICENSES WITH LOCAL OPTION DISTRICTS' APPROVAL; PROVIDING LICENSEE QUALIFICATIONS AND RESTRICTIONS; REQUIRING RULEMAKING; PROVIDING A LICENSE FEE.
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] BEER AND WINE DELIVERY LICENSE.--
A. On and after July 1, 2016, a local option district may approve the issuance of beer and wine delivery licenses for the sale of beer and wine, along with the concurrent sales and delivery of prepared foods, by holding an election on the question pursuant to Section 60-5A-1 NMSA 1978. Alternatively, the election 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 the issuance of beer and wine delivery 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 or a food delivery service provider located or to be located within the local option district may apply for a beer and wine delivery license that confers the right to sell and deliver to a customer, up to one hundred forty-four ounces of beer and up to one and one-half liters of wine, concurrent with the sale and delivery of prepared food and subject to the requirements and restrictions in this section and in the Liquor Control Act.
C. An applicant shall submit evidence to the department that the applicant has:
(1) a valid food service establishment permit and a restaurant license;
(2) a valid food service establishment permit and a dispenser's license;
(3) a valid food service establishment permit and a retailer's license; or
(4) a valid business license and valid contracts to deliver prepared food for a minimum of six permitted food service establishments.
D. An applicant shall satisfy the director that the primary source of revenue from the operation of the restaurant or the food delivery service provider will be derived from the sale of prepared food and not from the sale of beer and wine.
E. The director shall condition renewal of a beer and wine delivery license upon a requirement that not less than seventy percent of gross receipts from a licensee's preceding twelve months' delivery operations was derived from the sale of prepared food.
F. Upon application for renewal, a licensee shall submit a report to the director indicating, for the previous twelve months:
(1) the licensee's gross receipts from the sale of prepared food and from the sale of beer and wine; and
(2) that every order and delivery of prepared food concurrent to the order and delivery of beer or wine included a minimum purchase of twenty dollars ($20.00) of prepared food.
G. All sales and deliveries of beer and wine pursuant to a beer and wine delivery license shall cease at the time the licensee's meals sales or delivery services cease or at 10:00 p.m., whichever time is earlier. If Sunday sales have been approved in the local option district, a licensee may sell and deliver beer and wine on Sundays until the time meal sales and delivery service ceases or 9:00 p.m., whichever time is earlier.
H. A beer and wine delivery license shall not be transferable from person to person or from one location to another.
I. A beer and wine delivery license shall only authorize the delivery of beer and wine within the local option district in which the license was issued. A beer and wine delivery licensee shall, at all times, have a physical business location in each local option district in which the licensee is licensed pursuant to this section. Inter-local option district deliveries are prohibited.
J. Delivery of beer or wine pursuant to this section shall be made only to a private residential address or to a lodging unit at a licensed lodging facility, and only one delivery shall be made to the same private residential address or lodging unit per twenty-four-hour period. Deliveries to public property, to a public right of way or to a location within three hundred feet of a school, youth center, academic campus or dormitory are prohibited. A local option district may designate other zoning and geographic restrictions that apply to deliveries made pursuant to this section.
K. A property owner or a resident may designate the property owner's or the resident's residential address as a "do not deliver" address to which delivery of beer and wine pursuant to this section shall not be made. A local option district may also designate the address of a property deemed a nuisance as a "do not deliver" address. A local option district that approves the issuance of beer and wine delivery licenses shall maintain a database of "do not deliver" addresses and shall prescribe rules that govern the maintenance of the database.
L. Penalties for delivering to a "do not deliver" address or to a location to which deliveries are prohibited as provided in this section shall include fines or temporary suspension of a delivery license, or both, and shall be established, administered and enforced by the relevant local option district.
M. All persons who deliver beer or wine pursuant to this section shall be certified by the department as alcohol servers.
N. The department shall adopt rules prescribing best practices for licensees, to guide enforcement of the requirements in this section. Every five years, the department shall review and, as necessary, update those rules to accommodate changes in technology and health and safety information and policies. The best practices included in the department's rules shall include at least the following:
(1) upon delivery of beer or wine pursuant to this section, the person who makes the delivery shall:
(a) make an electronic record of the customer's identification, which shall include the customer's date of birth and photograph; and
(b) make an electronic record of the customer's acknowledgment of receipt of the following information and shall provide the information and additional information to the customer upon the customer's request:
"I understand that I am responsible for the control of the beer or wine delivered to me. This responsibility includes ensuring that persons who are under twenty-one years of age and persons who are intoxicated do not consume the beer or wine. I understand that the penalty for serving alcohol to a person who is underage includes up to five years in prison or a ten-thousand-dollar ($10,000) fine, or both. I understand that serving alcohol to an intoxicated person can result in my personal liability for the intoxicated person's actions.
I understand that driving while under the influence of alcohol is illegal. It has been proven that driving while under the influence of alcohol is dangerous and can lead to great bodily harm and death. The penalty for driving while under the influence of alcohol includes a sentence of incarceration or a fine of up to ten thousand dollars ($10,000), or both. I understand that I could also incur personal liability for driving while under the influence of alcohol.
The combination of alcohol and many prescription and nonprescription drugs can amplify the effects of the alcohol or drugs and can cause unintended and severe reactions. I will verify such potential risks before consuming a combination of drugs and alcohol.
I would like an electronic copy of this information and additional information about responsible consumption of alcohol.";
(2) a restaurant or food delivery service provider shall use a real-time global positioning system or another system that provides real-time position monitoring of all vehicles in use to make deliveries pursuant to this section; and
(3) information about a delivery vehicle's position or global positioning system location shall be available at all times to local and state law enforcement agencies upon request.
O. All purchases of beer and wine provided for by this section shall be via credit card, debit card or other electronic payment. Cash sales are prohibited. Records of all sales shall be kept and shall be available to the director for review for at least five years.
P. A food delivery service provider shall sell and deliver beer and wine only from:
(1) a New Mexico business with a retailer's license;
(2) a restaurant with a restaurant license that has contracted with the provider to deliver prepared food from the restaurant's menu; or
(3) a New Mexico business with a wine blender's, winegrower's or small brewer's license.
Q. The annual fee for a beer and wine delivery license is one thousand three hundred dollars ($1,300).
R. Nothing in this section shall prevent a beer and wine delivery licensee from receiving other licenses pursuant to the Liquor Control Act.
S. For the purpose of this section:
(1) "customer" means a person who is twenty-one years of age or older and who places an order for delivery of beer or wine and prepared food pursuant to this section; and
(2) "prepared food" means food that has been prepared at a restaurant, is ready to eat and is ordered concurrently with beer or wine for delivery pursuant to this section."
SECTION 2. Section 60-6A-15 NMSA 1978 (being Laws 1981, Chapter 39, Section 32, as amended) is amended to read:
"60-6A-15. LICENSE FEES.--Every application for the issuance or renewal of the following licenses shall be accompanied by a license fee in the following specified amounts:
A. manufacturer's license as a distiller, except a brandy manufacturer, three thousand dollars ($3,000);
B. manufacturer's license as a brewer, three thousand dollars ($3,000);
C. manufacturer's license as a rectifier, one thousand fifty dollars ($1,050);
D. wholesaler's license to sell all alcoholic beverages for resale only, two thousand five hundred dollars ($2,500);
E. wholesaler's license to sell spirituous liquors and wine for resale only, one thousand seven hundred fifty dollars ($1,750);
F. wholesaler's license to sell spirituous liquors for resale only, one thousand five hundred dollars ($1,500);
G. wholesaler's license to sell beer and wine for resale only, one thousand five hundred dollars ($1,500);
H. wholesaler's license to sell beer for resale only, one thousand dollars ($1,000);
I. wholesaler's license to sell wine for resale only, seven hundred fifty dollars ($750);
J. retailer's license, one thousand three hundred dollars ($1,300);
K. dispenser's license, one thousand three hundred dollars ($1,300);
L. canopy license, one thousand three hundred dollars ($1,300);
M. restaurant license, one thousand fifty dollars ($1,050);
N. club license, for clubs with more than two hundred fifty members, one thousand two hundred fifty dollars ($1,250), and for clubs with two hundred fifty members or fewer, two hundred fifty dollars ($250);
O. wine bottler's license to sell to wholesalers only, five hundred dollars ($500);
P. public service license, one thousand two hundred fifty dollars ($1,250);
Q. nonresident licenses, for a total billing to New Mexico wholesalers:
(1) in excess of:
$3,000,000 annually. . . . . . . . . . . . . . . . . . $10,500;
1,000,000 annually. . . . . . . . . . . . . . . . . . . 5,250;
500,000 annually. . . . . . . . . . . . . . . . . . . 3,750;
200,000 annually. . . . . . . . . . . . . . . . . . . 2,700;
100,000 annually. . . . . . . . . . . . . . . . . . . 1,800;
and
50,000 annually. . . . . . . . . . . . . . . . . . . . 900;
and
(2) of $50,000 or less. . . . . . . . . .$300;
R. wine wholesaler's license, for persons with sales of five thousand gallons of wine per year or less, twenty-five dollars ($25.00), and for persons with sales in excess of five thousand gallons of wine per year, one hundred dollars ($100); [and]
S. beer bottler's license, two hundred dollars ($200); and
T. beer and wine delivery license, one thousand three hundred dollars ($1,300)."
SECTION 3. Section 60-6A-18 NMSA 1978 (being Laws 1981, Chapter 39, Section 35, as amended) is amended to read:
"60-6A-18. LIMITATION ON NUMBER OF LICENSES--EXCEPTIONS.--
A. The maximum number of licenses to be issued under the provisions of Sections 60-6A-2 and 60-6A-3 NMSA 1978 shall be as follows:
(1) in incorporated municipalities, not more than one dispenser's or one retailer's license, including canopy licenses [which] that are replaced by dispenser's licenses as provided in Section 60-6B-16 NMSA 1978, for each two thousand inhabitants or major fraction thereof; and
(2) in unincorporated areas of each county, not more than one dispenser's or one retailer's license, including canopy licenses [which] that are replaced by dispenser's licenses as provided in Section 60-6B-16 NMSA 1978, for each two thousand inhabitants or major fraction thereof, excluding the population of incorporated municipalities within the county.
B. For the purpose of this section, the number of inhabitants of a local option district shall be determined by annual population estimates published by the economic development department.
C. Subsection A of this section shall not be construed to prevent [any] a licensee holding a valid license issued under the Liquor Control Act, or [his] the licensee's transferee, from continuing the licensed business or from renewing [his] the license, subject to compliance with the Liquor Control Act and department regulations, notwithstanding that the continuance or renewal may result in an excess over the maximum number of licenses permitted in Subsection A of this section.
D. A beer and wine delivery license is exempt from the provisions of this section."
SECTION 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2016.
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