0001| SENATE BILL 326
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0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
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0003| INTRODUCED BY
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0004| JOHN ARTHUR SMITH
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0005|
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO GAMBLING; MAKING ALL GAMBLING IN THE STATE
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0012| ILLEGAL; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA
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0013| 1978.
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0014|
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0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0016| Section 1. [NEW MATERIAL] LEGISLATIVE INTENT
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0017| EXPRESSED.--The legislature's intent in enacting this law
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0018| amending and repealing certain laws relating to gambling is to
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0019| make clear that the public policy of the state is to prohibit
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0020| and make illegal all gambling in New Mexico no matter by whom
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0021| conducted and without regard to its location, except gaming
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0022| permitted to be conducted by an Indian nation, tribe or pueblo
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0023| pursuant to the federal Indian Gaming Regulatory Act.
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0024| Section 2. Section 7-1-2 NMSA 1978 (being Laws 1965,
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0025| Chapter 248, Section 2, as amended) is amended to read:
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0001| "7-1-2. APPLICABILITY.--The Tax Administration Act
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0002| applies to and governs:
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0003| A. the administration and enforcement of the
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0004| following taxes or tax acts as they now exist or may hereafter
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0005| be amended:
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0006| (1) Income Tax Act;
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0007| (2) Withholding Tax Act;
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0008| (3) Gross Receipts and Compensating Tax Act
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0009| and any state gross receipts tax;
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0010| (4) Liquor Excise Tax Act;
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0011| (5) Local Liquor Excise Tax Act;
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0012| (6) any municipal local option gross receipts
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0013| tax;
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0014| (7) any county local option gross receipts
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0015| tax;
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0016| (8) Special Fuels Supplier Tax Act;
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0017| (9) Gasoline Tax Act;
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0018| (10) petroleum products loading fee, which
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0019| fee shall be considered a tax for the purpose of the Tax
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0020| Administration Act;
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0021| (11) Alternative Fuel Tax Act;
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0022| (12) Cigarette Tax Act;
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0023| (13) Estate Tax Act;
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0024| (14) Railroad Car Company Tax Act;
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0025| (15) Investment Credit Act;
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0001| (16) Corporate Income and Franchise Tax Act;
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0002| (17) Uniform Division of Income for Tax
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0003| Purposes Act;
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0004| (18) Multistate Tax Compact;
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0005| (19) Tobacco Products Tax Act;
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0006| (20) Filmmaker's Credit Act; and
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0007| (21) the telecommunications relay service
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0008| surcharge imposed by Section 63-9F-11 NMSA 1978, which
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0009| surcharge shall be considered a tax for the purposes of the
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0010| Tax Administration Act;
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0011| B. the administration and enforcement of the
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0012| following taxes, surtaxes, advanced payments or tax acts as
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0013| they now exist or may hereafter be amended:
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0014| (1) Resources Excise Tax Act;
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0015| (2) Severance Tax Act;
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0016| (3) any severance surtax;
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0017| (4) Oil and Gas Severance Tax Act;
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0018| (5) Oil and Gas Conservation Tax Act;
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0019| (6) Oil and Gas Emergency School Tax Act;
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0020| (7) Oil and Gas Ad Valorem Production Tax
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0021| Act;
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0022| (8) Natural Gas Processors Tax Act;
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0023| (9) Oil and Gas Production Equipment Ad
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0024| Valorem Tax Act;
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0025| (10) Copper Production Ad Valorem Tax Act;
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0001| and
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0002| (11) any advance payment required to be made
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0003| by any act specified in this subsection, which advance payment
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0004| shall be considered a tax for the purposes of the Tax
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0005| Administration Act;
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0006| C. the administration and enforcement of the
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0007| following taxes, surcharges, fees or acts as they now exist or
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0008| may hereafter be amended:
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0009| (1) Weight Distance Tax Act;
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0010| (2) Special Fuels Tax Act;
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0011| (3) the workers' compensation fee authorized
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0012| by Section 52-5-19 NMSA 1978, which fee shall be considered a
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0013| tax for purposes of the Tax Administration Act;
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0014| (4) Uniform Unclaimed Property Act;
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0015| (5) 911 emergency surcharge and the network
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0016| and database surcharge, which surcharges shall be considered
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0017| taxes for purposes of the Tax Administration Act;
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0018| (6) the solid waste assessment fee authorized
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0019| by the Solid Waste Act, which fee shall be considered a tax
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0020| for purposes of the Tax Administration Act; and
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0021| (7) the water conservation fee imposed by
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0022| Section 74-1-13 NMSA 1978, which fee shall be considered a tax
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0023| for the purposes of the Tax Administration Act; [and
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(8) the gaming tax imposed pursuant to the
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Gaming Control Act;] and
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0001| D. the administration and enforcement of all other
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0002| laws, with respect to which the department is charged with
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0003| responsibilities pursuant to the Tax Administration Act, but
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0004| only to the extent that the other laws do not conflict with
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0005| the Tax Administration Act."
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0006| Section 3. Section 10-15-1 NMSA 1978 (being Laws 1974,
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0007| Chapter 91, Section 1, as amended) is amended to read:
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0008| "10-15-1. FORMATION OF PUBLIC POLICY--PROCEDURES FOR
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0009| OPEN MEETINGS--EXCEPTIONS AND PROCEDURES FOR CLOSED MEETINGS.--
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0010| A. In recognition of the fact that a representative
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0011| government is dependent upon an informed electorate, it is
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0012| declared to be public policy of this state that all persons are
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0013| entitled to the greatest possible information regarding the
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0014| affairs of government and the official acts of those officers
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0015| and employees who represent them. The formation of public
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0016| policy or the conduct of business by vote shall not be
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0017| conducted in closed meeting. All meetings of any public body
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0018| except the legislature and the courts shall be public meetings,
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0019| and all persons so desiring shall be permitted to attend and
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0020| listen to the deliberations and proceedings. Reasonable
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0021| efforts shall be made to accommodate the use of audio and video
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0022| recording devices.
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0023| B. All meetings of a quorum of members of any
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0024| board, commission, administrative adjudicatory body or other
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0025| policymaking body of any state agency, any agency or authority
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0001| of any county, municipality, district or any political
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0002| subdivision, held for the purpose of formulating public policy,
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0003| including the development of personnel policy, rules,
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0004| regulations or ordinances, discussing public business or for
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0005| the purpose of taking any action within the authority of or the
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0006| delegated authority of any board, commission or other
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0007| policymaking body are declared to be public meetings open to
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0008| the public at all times, except as otherwise provided in the
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0009| constitution of New Mexico or the Open Meetings Act. No public
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0010| meeting once convened that is otherwise required to be open
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0011| pursuant to the Open Meetings Act shall be closed or dissolved
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0012| into small groups or committees for the purpose of permitting
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0013| the closing of the meeting.
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0014| C. If otherwise allowed by law or rule of the
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0015| public body, a member of a public body may participate in a
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0016| meeting of the public body by means of a conference telephone
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0017| or other similar communications equipment when it is otherwise
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0018| difficult or impossible for the member to attend the meeting in
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0019| person, provided that each member participating by conference
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0020| telephone can be identified when speaking, all participants are
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0021| able to hear each other at the same time and members of the
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0022| public attending the meeting are able to hear any member of the
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0023| public body who speaks during the meeting.
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0024| D. Any meetings at which the discussion or adoption
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0025| of any proposed resolution, rule, regulation or formal action
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0001| occurs and at which a majority or quorum of the body is in
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0002| attendance, and any closed meetings, shall be held only after
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0003| reasonable notice to the public. The affected body shall
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0004| determine at least annually in a public meeting what notice for
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0005| a public meeting is reasonable when applied to that body. That
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0006| notice shall include broadcast stations licensed by the federal
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0007| communications commission and newspapers of general circulation
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0008| that have provided a written request for such notice.
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0009| E. A public body may recess and reconvene a meeting
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0010| to a day subsequent to that stated in the meeting notice if,
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0011| prior to recessing, the public body specifies the date, time
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0012| and place for continuation of the meeting and, immediately
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0013| following the recessed meeting, posts notice of the date, time
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0014| and place for the reconvened meeting on or near the door of the
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0015| place where the original meeting was held and in at least one
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0016| other location appropriate to provide public notice of the
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0017| continuation of the meeting. Only matters appearing on the
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0018| agenda of the original meeting may be discussed at the
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0019| reconvened meeting.
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0020| F. Meeting notices shall include an agenda
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0021| containing a list of specific items of business to be discussed
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0022| or transacted at the meeting or information on how the public
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0023| may obtain a copy of such an agenda. Except in the case of an
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0024| emergency, the agenda shall be available to the public at least
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0025| twenty-four hours prior to the meeting. Except for emergency
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0001| matters, a public body shall take action only on items
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0002| appearing on the agenda. For purposes of this subsection, an
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0003| "emergency" refers to unforeseen circumstances that, if not
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0004| addressed immediately by the public body, will likely result in
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0005| injury or damage to persons or property or substantial
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0006| financial loss to the public body.
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0007| G. The board, commission or other policymaking body
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0008| shall keep written minutes of all its meetings. The minutes
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0009| shall include at a minimum the date, time and place of the
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0010| meeting, the names of members in attendance and those absent,
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0011| the substance of the proposals considered and a record of any
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0012| decisions and votes taken that show how each member voted. All
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0013| minutes are open to public inspection. Draft minutes shall be
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0014| prepared within ten working days after the meeting and shall be
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0015| approved, amended or disapproved at the next meeting where a
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0016| quorum is present. Minutes shall not become official until
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0017| approved by the policymaking body.
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0018| H. The provisions of Subsections A, B and G of this
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0019| section do not apply to:
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0020| (1) meetings pertaining to issuance,
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0021| suspension, renewal or revocation of a license, except that a
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0022| hearing at which evidence is offered or rebutted shall be open.
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0023| All final actions on the issuance, suspension, renewal or
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0024| revocation of a license shall be taken at an open meeting;
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0025| (2) limited personnel matters; provided that
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0001| for purposes of the Open Meetings Act, "limited personnel
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0002| matters" means the discussion of hiring, promotion, demotion,
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0003| dismissal, assignment or resignation of or the investigation or
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0004| consideration of complaints or charges against any individual
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0005| public employee; provided further that this subsection is not
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0006| to be construed as to exempt final actions on personnel from
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0007| being taken at open public meetings, nor does it preclude an
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0008| aggrieved public employee from demanding a public hearing.
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0009| Judicial candidates interviewed by any commission shall have
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0010| the right to demand an open interview;
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0011| (3) deliberations by a public body in
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0012| connection with an administrative adjudicatory proceeding. For
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0013| purposes of this paragraph, an "administrative adjudicatory
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0014| proceeding" means a proceeding brought by or against a person
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0015| before a public body in which individual legal rights, duties
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0016| or privileges are required by law to be determined by the
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0017| public body after an opportunity for a trial-type hearing.
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0018| Except as otherwise provided in this section, the actual
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0019| administrative adjudicatory proceeding at which evidence is
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0020| offered or rebutted and any final action taken as a result of
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0021| the proceeding shall occur in an open meeting;
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0022| (4) the discussion of personally identifiable
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0023| information about any individual student, unless the student,
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0024| his parent or guardian requests otherwise;
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0025| (5) meetings for the discussion of bargaining
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0001| strategy preliminary to collective bargaining negotiations
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0002| between the policymaking body and a bargaining unit
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0003| representing the employees of that policymaking body and
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0004| collective bargaining sessions at which the policymaking body
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0005| and the representatives of the collective bargaining unit are
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0006| present;
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0007| (6) that portion of meetings at which a
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0008| decision concerning purchases in an amount exceeding two
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0009| thousand five hundred dollars ($2,500) that can be made only
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0010| from one source and that portion of meetings at which the
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0011| contents of competitive sealed proposals solicited pursuant to
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0012| the Procurement Code are discussed during the contract
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0013| negotiation process. The actual approval of purchase of the
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0014| item or final action regarding the selection of a contractor
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0015| shall be made in an open meeting;
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0016| (7) meetings subject to the attorney-client
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0017| privilege pertaining to threatened or pending litigation in
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0018| which the public body is or may become a participant;
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0019| (8) meetings for the discussion of the
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0020| purchase, acquisition or disposal of real property or water
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0021| rights by the public body; and
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0022| (9) those portions of meetings of committees
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0023| or boards of public hospitals that receive less than fifty
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0024| percent of their operating budget from direct public funds and
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0025| appropriations where strategic and long-range business plans
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0001| are discussed [and
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(10) that portion of a meeting of the gaming
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control board dealing with information made confidential
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pursuant to the provisions of the Gaming Control Act].
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0005| I. If any meeting is closed pursuant to the
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0006| exclusions contained in Subsection H of this section, the
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0007| closure:
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0008| (1) if made in an open meeting, shall be
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0009| approved by a majority vote of a quorum of the policymaking
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0010| body; the authority for the closure and the subject to be
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0011| discussed shall be stated with reasonable specificity in the
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0012| motion calling for the vote on a closed meeting; the vote shall
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0013| be taken in an open meeting; and the vote of each individual
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0014| member shall be recorded in the minutes. Only those subjects
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0015| announced or voted upon prior to closure by the policymaking
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0016| body may be discussed in a closed meeting; and
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0017| (2) if called for when the policymaking body
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0018| is not in an open meeting, shall not be held until public
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0019| notice, appropriate under the circumstances, stating the
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0020| specific provision of the law authorizing the closed meeting
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0021| and stating with reasonable specificity the subject to be
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0022| discussed is given to the members and to the general public.
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0023| J. Following completion of any closed meeting, the
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0024| minutes of the open meeting that was closed or the minutes of
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0025| the next open meeting if the closed meeting was separately
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0001| scheduled shall state that the matters discussed in the closed
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0002| meeting were limited only to those specified in the motion for
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0003| closure or in the notice of the separate closed meeting. This
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0004| statement shall be approved by the public body under Subsection
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0005| G of this section as part of the minutes."
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0006| Section 4. Section 30-19-1 NMSA 1978 (being Laws 1963,
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0007| Chapter 303, Section 19-1, as amended) is amended to read:
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0008| "30-19-1. DEFINITIONS RELATING TO GAMBLING.--As used in
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0009| Chapter 30, Article 19 NMSA 1978:
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0010| A. "antique gambling device" means a gambling
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0011| device twenty-five years of age or older and substantially in
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0012| original condition that is not used for gambling or commercial
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0013| gambling or located in a gambling place;
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0014| B. "bet" means a bargain in which the parties agree
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0015| that, dependent upon chance, even though accompanied by some
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0016| skill, one stands to win or lose anything of value specified in
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0017| the agreement. A bet does not include:
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0018| (1) bona fide business transactions that are
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0019| valid under the law of contracts, including:
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0020| (a) contracts for the purchase or sale,
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0021| at a future date, of securities or other commodities; and
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0022| (b) agreements to compensate for loss
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0023| caused by the happening of the chance, including contracts for
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0024| indemnity or guaranty and life or health and accident
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0025| insurance;
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0001| (2) offers of purses, prizes or premiums to
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0002| the actual contestants in any bona fide contest for the
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0003| determination of skill, speed, strength or endurance or to the
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0004| bona fide owners of animals or vehicles entered in such
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0005| contest;
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0006| (3) a lottery as defined in this section; or
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0007| (4) betting otherwise permitted by law;
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0008| C. "gambling device" means a contrivance other than
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0009| an antique gambling device [that is not licensed for use
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pursuant to the Gaming Control Act and] that, for a
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0011| consideration, affords the player an opportunity to obtain
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0012| anything of value, the award of which is determined by chance,
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0013| even though accompanied by some skill, whether or not the prize
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0014| is automatically paid by the device;
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0015| D. "gambling place" means a building or tent, a
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0016| vehicle, whether self-propelled or not, or a room within any of
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0017| them [that is not within the premises of a person licensed as
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a lottery retailer or that is not licensed pursuant to the
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Gaming Control Act], one of whose principal uses is:
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0020| (1) making and settling of bets;
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0021| (2) receiving, holding, recording or
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0022| forwarding bets or offers to bet;
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0023| (3) conducting lotteries; or
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0024| (4) playing gambling devices; and
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0025| E. "lottery" means an enterprise wherein, for a
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0001| consideration, the participants are given an opportunity to win
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0002| a prize, the award of which is determined by chance, even
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0003| though accompanied by some skill. ["Lottery" does not include
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the New Mexico state lottery established and operated pursuant
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to the New Mexico Lottery Act or gaming that is licensed and
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operated pursuant to the Gaming Control Act.] As used in this
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0007| subsection, "consideration" means anything of pecuniary value
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0008| required to be paid to the promoter in order to participate in
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0009| a gambling or gaming enterprise."
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0010| Section 5. Section 30-19-3 NMSA 1978 (being Laws 1963,
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0011| Chapter 303, Section 19-3) is amended to read:
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0012| "30-19-3. COMMERCIAL GAMBLING.--
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0013| A. Commercial gambling consists of [either]:
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0014| [A.] (1) participating in the earnings of
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0015| or operating a gambling place;
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0016| [B.] (2) receiving, recording or
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0017| forwarding bets or offers to bet;
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0018| [C.] (3) possessing facilities with the
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0019| intent to receive, record or forward bets or offers to bet;
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0020| [D.] (4) for gain, becoming a custodian
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0021| of anything of value, bet or offered to be bet;
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0022| [E.] (5) conducting a lottery where both
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0023| the consideration and the prize are money or [whoever with
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intent to conduct a lottery, possesses] possessing
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0025| facilities to conduct such a lottery with the intent to do
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0001| so; or
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0002| [F.] (6) setting up a gambling device
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0003| for use or for the purpose of gambling, or collecting the
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0004| proceeds of any gambling device.
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0005| B. Whoever commits commercial gambling is guilty
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0006| of a fourth degree felony."
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0007| Section 6. Section 30-19-15 NMSA 1978 (being Laws 1979,
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0008| Chapter 4, Section 1) is amended to read:
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0009| "30-19-15. UNLAWFUL TO ACCEPT [FOR PROFIT] ANYTHING OF
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0010| VALUE TO BE TRANSMITTED OR DELIVERED FOR GAMBLING--PENALTY.--
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0011| A. It is unlawful for any person to, directly or
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0012| indirectly, knowingly accept for a fee, property, salary or
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0013| reward anything of value from another to be transmitted or
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0014| delivered for gambling or pari-mutuel wagering on the results
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0015| of a race, sporting event, contest or other game of skill or
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0016| chance or any other unknown or contingent future event or
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0017| occurrence whatsoever.
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0018| [B. None of the provisions of this act shall be
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construed to prohibit the operation or continued operation of
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bingo programs presently conducted for charitable purposes.
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C. Any] B. A person violating [any of] the
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0022| provisions of this section is guilty of a fourth degree
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0023| felony."
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0024| Section 7. Section 60-7A-19 NMSA 1978 (being Laws 1981,
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0025| Chapter 39, Section 96, as amended) is amended to read:
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0001| "60-7A-19. COMMERCIAL GAMBLING ON LICENSED PREMISES.--
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0002| A. It is a violation of the Liquor Control Act for
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0003| a licensee to knowingly allow commercial gambling on the
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0004| licensed premises.
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0005| B. In addition to any criminal penalties, any
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0006| person who violates Subsection A of this section may have his
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0007| license suspended or revoked or a fine imposed, or both,
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0008| pursuant to the Liquor Control Act.
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0009| C. As used in this section, [(1)] "commercial
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0010| gambling" means:
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0011| [(a)] (1) participating in the earnings
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0012| of or operating a gambling place;
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0013| [(b)] (2) receiving, recording or
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0014| forwarding bets or offers to bet;
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0015| [(c)] (3) possessing facilities with the
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0016| intent to receive, record or forward bets or offers to bet;
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0017| [(d)] (4) for gain, becoming a custodian
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0018| of anything of value bet or offered to be bet;
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0019| [(e)] (5) conducting a lottery where both
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0020| the consideration and the prize are money, or whoever with
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0021| intent to conduct a lottery possesses facilities to do so; or
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0022| [(f)] (6) setting up for use for the
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0023| purpose of gambling, or collecting the proceeds of, any
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0024| gambling device or game [and
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(2) "commercial gambling" does not mean:
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(a) activities authorized pursuant to
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the New Mexico Lottery Act;
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(b) the conduct of activities pursuant
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to Subsection D of Section 30-19-6 NMSA 1978; and
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(c) gaming authorized pursuant to the
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Gaming Control Act on the premises of a gaming operator
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licensee licensed pursuant to that act]."
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0008| Section 8. REPEAL.--
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0009| A. Sections 6-24-1 through 6-24-34 NMSA 1978 (being
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0010| Laws 1995, Chapter 155, Sections 1 through 34, as amended) are
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0011| repealed.
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0012| B. Sections 11-13-1 and 11-13-2 NMSA 1978 (being
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0013| Laws 1997, Chapter 190, Sections 1 and 2) are repealed.
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0014| C. Sections 21-1-4.3 and 21-1-4.4 NMSA 1978 (being
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0015| Laws 1996, Chapter 71, Sections 3 and 4) are repealed.
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0016| D. Sections 30-19-6 and 30-19-7.2 NMSA 1978 (being
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0017| Laws 1963, Chapter 303, Section 19-6 and Laws 1997, Chapter
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0018| 101, Section 1, as amended) are repealed.
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0019| E. Section 40-3-9.1 NMSA 1978 (being Laws 1997,
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0020| Chapter 190, Section 67) is repealed.
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0021| F. Sections 60-1-1 through 60-1-15 and 60-1-15.2
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0022| through 60-1-26 NMSA 1978 (being Laws 1933, Chapter 55, Section
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0023| 1, Laws 1977, Chapter 245, Section 123, Laws 1933, Chapter 55,
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0024| Section 2, Laws 1955, Chapter 87, Section 2, Laws 1973, Chapter
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0025| 323, Sections 3 and 4, Laws 1991, Chapter 7, Section 1, Laws
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0001| 1933, Chapter 55, Sections 3 through 7, Laws 1973, Chapter 323,
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0002| Section 7, Laws 1975, Chapter 189, Section 1, Laws 1933,
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0003| Chapter 55, Sections 8 and 9, Laws 1992, Chapter 110, Section
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0004| 2, Laws 1993, Chapter 300, Section 1, Laws 1933, Chapter 55,
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0005| Section 10, Laws 1977, Chapter 161, Section 2, Laws 1965,
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0006| Chapter 270, Section 1, Laws 1933, Chapter 55, Section 11, Laws
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0007| 1947, Chapter 94, Sections 1 and 2, Laws 1975, Chapter 190,
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0008| Section 1, Laws 1973, Chapter 323, Sections 10 and 11, Laws
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0009| 1991, Chapter 195, Sections 6 and 4 and Laws 1987, Chapter 333,
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0010| Section 3, as amended) are repealed.
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0011| G. Sections 60-2B-1 through 60-2B-14 NMSA 1978
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0012| (being Laws 1981, Chapter 259, Sections 1 through 14, as
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0013| amended) are repealed.
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0014| H. Sections 60-2D-1 through 60-2D-18 (being Laws
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0015| 1991, Chapter 233, Sections 1 through 18) are repealed.
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0016| I. Sections 60-2E-1 through 60-2E-61 NMSA 1978
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0017| (being Laws 1997, Chapter 190, Sections 3 through 63) are
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0018| repealed.
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0019| Section 9. EFFECTIVE DATE.--The effective date of the
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0020| provisions of this act is July 1, 1998.
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0021|
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