44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO LIQUOR LICENSE LEASING; REQUIRING HEARINGS; DECLARING AN EMERGENCY.

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] AGENT LESSEE--HEARINGS REQUIRED--NOTICE--PENALTIES.--

A. Before a license issued by the director may be leased by an agent lessee, the proposed agent lessee and the licensee shall:

(1) submit to the director a written application on a form provided by the department requesting licensure of the agent lessee;

(2) submit to the director all information required by the director, including all information required of a new license applicant pursuant to Section 60-6B-2 NMSA 1978; and

(3) appear before the director or a hearing officer in a hearing held on the record in Santa Fe to determine if the proposed agent lessee is qualified to be licensed, all requirements of the Liquor Control Act have been met and the transfer of control of the license to the proposed agent lessee furthers the policy of the Liquor Control Act to protect the health, safety and morals of the public.

B. Each person who is required to file fingerprints pursuant to rules of the department shall submit an affidavit stating that the person has not been convicted of a felony in any jurisdiction. An applicant for a license as an agent lessee who files a false affidavit shall be denied a license to act as an agent lessee. When the director determines a false affidavit has been filed, he shall refer the matter to the attorney general or district attorney for prosecution of perjury.

C. The director shall notify the licensee and proposed agent lessee by certified mail of the date, time and place of the hearing. The director shall cause a notice of intent to license an agent lessee to be posted in a manner that conforms with the provisions of Subsection M of Section 60-6B-2 NMSA 1978 for a continuous period of at least twenty days prior to the hearing. The contents of the notice of intent to license an agent lessee shall state the date, time and place of the hearing to be held regarding the application and shall provide an address to which comments may be sent regarding the licensure of the agent lessee for inclusion in the record.

D. In determining whether a license shall be issued, the director shall take into consideration the record of the hearing and all requirements of the Liquor Control Act. In the issuance of a license the director shall specifically consider the nature and number of violations of the Liquor Control Act by the applicant or the licensee or of citations issued within the prior five years against a license held or operated pursuant to a lease by the applicant or the licensee or against a license in which the applicant or licensee had an ownership interest required to be disclosed pursuant to provisions of the Liquor Control Act. The director shall approve or disapprove the issuance of the license based upon a review of all documentation.

E. No license shall be issued until all requirements of the Liquor Control Act are satisfactorily completed as determined by the director.

F. All costs of posting a notice of intent to license an agent lessee shall be paid by the licensee.

G. It is unlawful for any 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 both."

Section 2. Section 60-3A-3 NMSA 1978 (being Laws 1981, Chapter 39, Section 3, as amended) is amended to read:

"60-3A-3. DEFINITIONS.--As used in the Liquor Control Act:

A. "agent lessee" means a person who operates a liquor license pursuant to a lease agreement with a licensee, who compensates the licensee for the use of the license and who is entitled to profits and responsible for losses from the operation of the license;

[A.] B. "alcoholic beverages" means distilled or rectified spirits, potable alcohol, brandy, whiskey, rum, gin and aromatic bitters bearing the federal internal revenue strip stamps or any similar alcoholic beverage, including blended or fermented beverages, dilutions or mixtures of one or more of the foregoing containing more than one-half of one percent alcohol, but excluding medicinal bitters;

[B.] C. "beer" means any alcoholic beverage obtained by the fermentation of any infusion or decoction of barley, malt and hops or other cereals in water, and includes porter, beer, ale and stout;

[C.] D. "brewer" means any person who owns or operates a business for the manufacture of beer;

[D.] E. "club" means:

(1) any nonprofit group, including an auxiliary or subsidiary group, organized and operated under the laws of this state with a membership of not less than fifty members who pay membership dues at the rate of not less than five dollars ($5.00) per year and who, under the constitution and bylaws of the club, have all voting rights and full membership privileges and which group is the owner, lessee or occupant of premises used exclusively for club purposes and which group the director finds:

(a) is operated solely for recreation, social, patriotic, political, benevolent or athletic purposes; and

(b) the proposed licensee has been granted an exemption by the United States from the payment of the federal income tax as a club under the provisions of Section 501(a) of the Internal Revenue Code of 1986, as amended, or, if the applicant has not operated as a club for a sufficient time to be eligible for the income tax exemption, it must execute and file with the director a sworn letter of intent declaring that it will, in good faith, apply for such exemption as soon as it is eligible; or

(2) an airline passenger membership club operated by an air common carrier which maintains or operates a clubroom at an international airport terminal. For the purposes of this paragraph, "air common carrier" means a person engaged in regularly scheduled air transportation between fixed termini under a certificate of public convenience and necessity issued by the civil aeronautics board;

[E.] F. "commission" means the secretary of public safety when the term is used in reference to the enforcement and investigatory provisions of the Liquor Control Act and means the superintendent of regulation and licensing when the term is used in reference to the licensing provisions of the Liquor Control Act;

[F.] G. "department" means the special investigations division of the department of public safety when the term is used in reference to the enforcement and investigatory provisions of the Liquor Control Act and means the superintendent of regulation and licensing when the term is used in reference to the licensing provisions of the Liquor Control Act;

[G.] H. "director" means the director of the special investigations division of the department of public safety when the term is used in reference to the enforcement and investigatory provisions of the Liquor Control Act and means the superintendent of regulation and licensing when the term is used in reference to the licensing provisions of the Liquor Control Act;

[H.] I. "dispenser" means any person licensed under the provisions of the Liquor Control Act selling, offering for sale or having in his possession with the intent to sell alcoholic beverages both by the drink for consumption on the licensed premises and in unbroken packages for consumption and not for resale off the licensed premises;

[I.] J. "distiller" means any person engaged in manufacturing spirituous liquors;

[J.] K. "governing body" means the board of county commissioners of a county or the city council or city commissioners of a municipality;

[K.] L. "hotel" means any establishment or complex having a resident of New Mexico as a proprietor or manager and where, in consideration of payment, meals and lodging are regularly furnished to the general public. The establishment or complex must maintain for the use of its guests a minimum of twenty-five sleeping rooms;

[L.] M. "licensed premises" means the contiguous areas or areas connected by indoor passageways of a structure and the outside dining, recreation and lounge areas of the structure [which] that are under the direct control of the licensee and from which the licensee is authorized to sell, serve or allow the consumption of alcoholic beverages under the provisions of its license; provided that in the case of a restaurant, hotel or racetrack, "licensed premises" includes all public and private rooms, facilities and areas in which alcoholic beverages are sold or served in the customary operating procedures of the restaurant, hotel or racetrack;

[M.] N. "local option district" means any county which has voted to approve the sale, serving or public consumption of alcoholic beverages, or any incorporated municipality which falls within a county which has voted to approve the sale, serving or public consumption of alcoholic beverages, or any incorporated municipality of over five thousand population which has independently voted to approve the sale, serving or public consumption of alcoholic beverages under the terms of the Liquor Control Act or any former act;

[N.] O. "manufacturer" means a distiller, rectifier, brewer or winer;

[O.] P. "minor" means any person under twenty-one years of age;

[P.] Q. "package" means any immediate container of alcoholic beverages which is filled or packed by a manufacturer or wine bottler for sale by the manufacturer or wine bottler to wholesalers;

[Q.] R. "person" means an individual, corporation, firm, partnership, copartnership, association or other legal entity;

[R.] S. "rectifier" means any person who blends, mixes or distills alcohol with other liquids or substances for the purpose of making an alcoholic beverage for the purpose of sale other than to the consumer by the drink, and includes all bottlers of spirituous liquors;

[S.] T. "restaurant" means any establishment having a New Mexico resident as a proprietor or manager which is held out to the public as a place where meals are prepared and served primarily for on-premises consumption to the general public in consideration of payment and which has a dining room, a kitchen and the employees necessary for preparing, cooking and serving meals; provided that "restaurant" does not include establishments as defined in regulations promulgated by the director serving only hamburgers, sandwiches, salads and other fast foods;

[T.] U. "retailer" means any person licensed under the provisions of the Liquor Control Act selling, offering for sale or having in his possession with the intent to sell any alcoholic beverages in unbroken packages for consumption and not for resale off the licensed premises;

[U.] V. "spirituous liquors" means alcoholic beverages as defined in Subsection [A] B of this section except fermented beverages such as wine, beer and ale;

[V.] W. "wholesaler" means any person whose place of business is located in New Mexico and who sells, offers for sale or possesses for the purpose of sale any alcoholic beverages for resale by the purchaser;

[W.] X. "wine" includes the words "fruit juices" and means alcoholic beverages obtained by the fermentation of the natural sugar contained in fruit or other agricultural products, with or without the addition of sugar or other products, which do not contain less than one-half of one percent nor more than twenty-one percent alcohol by volume;

[X.] Y. "wine bottler" means any New Mexico wholesaler who is licensed to sell wine at wholesale for resale only and who buys wine in bulk and bottles it for wholesale resale;

[Y.] Z. "winegrower" means any person who owns or operates a business for the manufacture of wine; and

[Z.] AA. "winer" means a winegrower."

Section 3. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.