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