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

RELATING TO STATE AGENCIES; PROVIDING FOR THE ALCOHOL AND GAMING DIVISION OF THE REGULATION AND LICENSING DEPARTMENT; MAKING THE DIRECTOR OF THE DIVISION A COVERED EMPLOYEE UNDER THE PROVISIONS OF THE PERSONNEL ACT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 9-16-4 NMSA 1978 (being Laws 1983, Chapter 297, Section 20, as amended) is amended to read:

"9-16-4. DEPARTMENT ESTABLISHED.--There is created in the executive branch the "regulation and licensing department". The department shall not be a cabinet department. The department shall consist of but not be limited to [five] six divisions as follows:

A. the administrative services division;

B. the construction industries division;

C. the financial institutions division;

D. the securities division; [and]

E. the manufactured housing division; and

F. the alcohol and gaming division."

Section 2. Section 9-16-7 NMSA 1978 (being Laws 1983, Chapter 297, Section 23) is amended to read:

"9-16-7. DIVISION DIRECTORS.--The superintendent shall appoint, with the approval of the governor, "directors" of the divisions established within the department. The positions so appointed are exempt from the Personnel Act, except for the director of the alcohol and gaming division, who shall be covered by the provisions of that act."

Section 3. Section 10-9-4 NMSA 1978 (being Laws 1961, Chapter 240, Section 4, as amended) is amended to read:

"10-9-4. COVERAGE OF SERVICE.--The Personnel Act and the service cover all state positions except:

A. officials elected by popular vote or appointed to fill vacancies to elective offices;

B. members of boards and commissions and heads of agencies appointed by the governor;

C. heads of agencies appointed by boards or commissions;

D. directors of department divisions, except as specifically provided otherwise by law;

E. those in educational institutions and in public schools;

F. those employed by state institutions and by state agencies providing educational programs and who are required to hold valid certificates as certified school instructors as defined in Section 22-1-2 NMSA 1978 issued by the state board of education;

G. those in the governor's office;

H. those in the state militia or the commissioned officers of the New Mexico state police division of the department of public safety;

I. those in the judicial branch of government;

J. those in the legislative branch of government;

K. not more than two assistants and one secretary in the office of each official listed in Subsections A, B and C of this section, excluding members of boards and commissions in Subsection B of this section;

L. those of a professional or scientific nature which are temporary in nature;

M. those filled by patients or inmates in charitable, penal or correctional institutions;

N. state employees if the personnel board in its discretion decides that the position is one of policymaking; and

O. disadvantaged youth under twenty-two years of age regularly enrolled or to be enrolled in a secondary educational institution approved by the state board of education or in an accredited state institution of advanced learning or vocational training and who are to be employed for not more than seven hundred twenty hours during any calendar year:

(1) the term "disadvantaged youth" shall be defined for purposes of this exemption by regulation duly promulgated by the board; and

(2) the board shall:

(a) require that all the criteria of this subsection have been met;

(b) establish employment lists for the certification of the highest-standing candidates to the prospective employers; and

(c) establish the pay rates for such employees."

Section 4. 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. "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. "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. "brewer" means any person who owns or operates a business for the manufacture of beer;

D. "club" means:

(1) any nonprofit group, including an auxiliary or subsidiary group, organized and operated [under] pursuant to 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] pursuant to 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] pursuant to 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] that 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. "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] director of the alcohol and gaming division of the regulation and licensing department when the term is used in reference to the licensing provisions of the Liquor Control Act;

F. "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] alcohol and gaming division of the regulation and licensing department when the term is used in reference to the licensing provisions of the Liquor Control Act;

G. "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] director of the alcohol and gaming division of the regulation and licensing department when the term is used in reference to the licensing provisions of the Liquor Control Act;

H. "dispenser" means any person licensed [under] pursuant to 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. "distiller" means any person engaged in manufacturing spirituous liquors;

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

K. "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. "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. "local option district" means any county [which] that has voted to approve the sale, serving or public consumption of alcoholic beverages, or any incorporated municipality [which] that falls within a county [which] that 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. "manufacturer" means a distiller, rectifier, brewer or winer;

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

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

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

R. "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. "restaurant" means any establishment having a New Mexico resident as a proprietor or manager [which] that 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. "retailer" means any person licensed [under] pursuant to 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. "spirituous liquors" means alcoholic beverages as defined in Subsection A of this section except fermented beverages such as wine, beer and ale;

V. "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. "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. "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. "winegrower" means any person who owns or operates a business for the manufacture of wine; and

Z. "winer" means a winegrower."