44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999
RELATING TO GAMING; ENACTING THE CHARITABLE GAMING ACT; AMENDING AND REPEALING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 17 of this act may be cited as the "Charitable Gaming Act".
Section 2. [NEW MATERIAL] POLICY.--It is the policy of the state to allow only certain organizations to conduct, within the strict parameters set forth in the Charitable Gaming Act, certain games of amusement or chance for the sole purpose of raising money to support their charitable, community, educational, fraternal, political or religious purposes.
Section 3. [NEW MATERIAL] DEFINITIONS.--As used in the Charitable Gaming Act:
A. "alternate game manager" means a member of a qualified organization designated by the officers of that qualified organization and approved by the licensing authority to be in charge of and responsible for the conduct of charitable games during each scheduled session in the absence of the game manager;
B. "amusement game" means a game played for entertainment in which:
(1) the player actively participates;
(2) the outcome depends in part on the skill of the player;
(3) wagers are placed using tokens or credit that may be purchased with money and exchanged for prizes;
(4) only non-cash prizes are awarded;
(5) the outcome is not in the control of the operator;
(6) wagers are placed, winners are determined and the distribution of prizes or property is made in the presence of all players; and
(7) the game is conducted or operated by an organization that has been issued a casino night license in a manner and at locations authorized by rules adopted by the licensing authority pursuant to the Charitable Gaming Act. The games commonly known as cake walks and fishponds shall be treated as amusement games for all purposes pursuant to that act;
C. "bingo" means a game of chance played using paper or hardboard cards or handheld electronic devices that may play up to twelve cards in which:
(1) each paper or hardboard card consists of a five-by-five matrix containing twenty-four numbered spaces and a center space marked "free";
(2) each column of the card is designated by a letter of the word "bingo" with the first column designated as "B" and the fifth column as "O";
(3) numbers between one and fifteen inclusive appear in the first column, numbers between sixteen and thirty inclusive appear in the second column, numbers between thirty-one and forty-five inclusive appear in the third column, numbers between forty-six and sixty inclusive appear in the fourth column and numbers between sixty-one and seventy-five inclusive appear in the fifth column of the card;
(4) at intervals during the game, a caller draws a ping pong ball or other similar object from a receptacle and announces to the players the letter and number appearing on that ball or object;
(5) each player checks his hand-held electronic bingo device or the paper or hardboard card he is playing to determine if there is a match on the player's card with the letter and number called and if there is a match, the player marks the space;
(6) after marking each space that is matched, the player determines whether the ensuing pattern matches a pre-established winning pattern;
(7) if the player believes his card shows the winning pattern of marked spaces, the player immediately calls out "bingo"; and
(8) the caller stops until the win is verified;
D. "casino night" means a fundraising event where money is paid for the opportunity to play the allowed games and to win non-cash prizes;
E. "charitable gaming" and "charitable games" mean those amusement games and games of chance specifically authorized by the Charitable Gaming Act; provided that games of chance or amusement games that are played on electronic gaming equipment are prohibited except for the use of hand-held electronic bingo devices approved by the licensing authority;
F. "community purposes" means purposes of environmental, veterans, volunteer firefighter and employee labor organizations;
G. "day" means a twenty-four-hour period beginning immediately after midnight and ending on the following midnight;
H. "deal" means a finite pool of paper pull-tab tickets all having the same serial number and in which each ticket represents an equal share of the pool. Each deal shall have a predetermined number of tickets, of which the number of winning and losing tickets is predetermined and that has a predetermined percentage of payout. Once the size of a deal is predetermined, the deal shall not be manipulated to alter the size of the deal. Paper pull-tab tickets are removed from the deal as they are purchased until the entire deal is exhausted;
I. "fundraising event" means an event conducted not more than two times in any calendar year for not more than eight consecutive hours in one day, during which amusement games and games of chance are permitted;
J. "game manager" means the member of a qualified organization or an organization licensed to conduct casino nights designated by the officers of that organization and approved by the licensing authority to be in charge of and responsible for the conduct of the charitable games on each scheduled session;
K. "game of chance" means any contest, game or gaming equipment in which the outcome depends in a material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor in determining the outcome;
L. "gaming equipment" means:
(1) a device or mechanism through the operation of which a right to money, credits, deposits or other things of value may be created, in return for a consideration, as the result of the operation of an element of chance;
(2) a device or mechanism that when operated for a consideration does not return the same value or thing of value for the same consideration upon each operation thereof;
(3) a device, mechanism, furniture, fixture, construction or installation designed primarily for use in connection with gambling; and
(4) a subassembly or essential part designed or intended for use in connection with a device, mechanism, furniture, fixture, construction or installation;
M. "gaming premises" means a building, room, enclosure, vehicle, vessel or other place used or intended to be used for charitable gaming; "gaming premises" applies to a place where gaming equipment is found based on the presumption that the gaming equipment is intended to be used for charitable gaming;
N. "gross receipts" means the total amount of money or the value of other consideration received from players for permission to play charitable games, the rental or sale of equipment and the sale of supplies;
O. "licensee" means a qualified organization that has been issued a license by the licensing authority to conduct charitable games in accordance with the Charitable Gaming Act;
P. "licensing authority" means the alcohol and gaming division of the regulation and licensing department;
Q. "net profit" means the gross receipts minus the total of prizes paid and expenses of conducting charitable games;
R. "permittee" means a person who has been issued a staff permit by the licensing authority;
S. "player" means a natural person who engages on equal terms with other participants and solely as a contestant or bettor in charitable gaming;
T. "paper pull-tabs" means a game of chance in which the player purchases a ticket from a deal and physically removes or uncovers numbers, letters or symbols or a combination or sequence of numbers, letters or symbols to expose a winning or losing ticket. Once the pull-tab is removed by the player, the player will immediately know whether the pull-tab ticket contains a winning combination, thereby entitling the player to a prize;
U. "prize" means cash, merchandise, goods or services awarded to the winner of a charitable game; provided that alcoholic beverages by the drink or in unbroken packages shall not be prizes;
V. "qualified organization" means:
(1) a nonprofit organization that has been in existence in New Mexico continuously for three or more years prior to the time of application for a charitable gaming license, is exempt from the payment of federal and state income taxes under Section 501(c) of the federal Internal Revenue Code of 1986, that has bona fide members and that exists solely for charitable, community, educational, fraternal or religious purposes; or
(2) a political party or election campaign that is required to file campaign finance reports with the secretary of state's office or county clerks' offices; provided, however, that an organization that holds a license issued by the gaming control board shall not be a "qualified organization";
W. "raffle" means a game of chance that is conducted by randomly drawing stubs from tickets that have been sold to players and are drawn at a pre-established date and time, where the ticket stubs contain a number or the player's name and address, are placed in a receptacle designed so that each ticket stub has an equal chance to be drawn as a winner, a winning ticket stub is drawn from all ticket stubs sold and the number or name on a ticket stub drawn from the receptacle is called out, making the player holding the matching ticket stub a winner;
X. "session" means a period of time not to exceed four hours in which games of chance are conducted;
Y. "week" means a seven-day period beginning on Sunday; and
Z. "worker" means a person, either paid or volunteer, who assists in conducting or operating authorized charitable games.
Section 4. [NEW MATERIAL] CHARITABLE GAMING--CONDUCT OF GAMES LIMITED--LICENSING AUTHORITY--POWERS AND DUTIES.--
A. All charitable gaming shall be conducted in accordance with the provisions of the Charitable Gaming Act and rules adopted pursuant to that act.
B. The licensing authority may:
(1) authorize and issue for terms of one year or less, licenses to qualified organizations to conduct charitable games;
(2) authorize and issue for one-time use, licenses to conduct casino nights;
(3) authorize and issue for terms of one year or less, staff permits for game managers, alternate game managers and workers for each licensee;
(4) authorize and issue for terms of one year or less, licenses to sell, distribute, supply or manufacture gaming equipment or supplies for use within this state for charitable games;
(5) authorize and issue for terms of one year or less, licenses to provide business services to licensees;
(6) fine licensees or revoke or suspend charitable gaming licenses for violations of the Charitable Gaming Act or rules adopted pursuant to that act;
(7) temporarily issue or suspend charitable gaming licenses subject to final action by the licensing authority; and
(8) limit by rule the amounts wagered by players at a casino night.
C. The licensing authority shall adopt rules that:
(1) require applications for all licenses and permits and require that all requested information be provided;
(2) require fingerprinting and background checks of a person:
(a) seeking a license, other than a casino night license, or permit pursuant to the provisions of the Charitable Gaming Act;
(b) holding an interest in a charitable gaming operation, building or the equipment to be used for charitable gaming; or
(c) participating as a game manager or alternate game manager or worker in the operation of any charitable game; provided, however, that a person participating as a game manager, alternate game manager or worker solely for a casino night is only required to submit to fingerprinting when deemed necessary by the licensing authority;
(3) establish a schedule of annual license fees;
(4) require identification stamps to be affixed to gaming equipment and set fees for the stamps;
(5) prescribe the method of payment of fees and penalties to be paid to or collected by the licensing authority;
(6) require that every licensee maintain records and submit reports deemed necessary by the licensing authority;
(7) regulate and establish the scope and manner of conducting charitable games;
(8) regulate the collection of and the accounting for fees that may be imposed and collected by a licensee;
(9) cooperate with and secure the cooperation of county, city or other local or state agencies in investigating any matter within the scope of its duties;
(10) restrict the number and hours of charitable games and value of prizes;
(11) regulate the use of handheld electronic bingo devices; and
(12) establish minimum standards for internal control procedures for accounting of gross receipts and granting of prizes from charitable gaming and casino nights and dates on which reports will be due.
D. The licensing authority shall adopt, amend and repeal other rules deemed necessary to carry out the purposes and provisions of the Charitable Gaming Act.
E. The licensing authority shall perform all other duties necessary to carry out the purposes and provisions of the Charitable Gaming Act.
F. The licensing authority shall not issue, deny, suspend or revoke a license because of the race, gender, creed, color, ethnicity, national origin, disability or political affiliation of members of the applicant.
Section 5. [NEW MATERIAL] AUTHORIZED ACTIVITIES.--
A. A licensee may conduct the following games in compliance with the provisions of the Charitable Gaming Act and rules adopted pursuant to that act:
(1) bingo;
(2) paper pull-tab games; and
(3) raffles.
B. No games regulated by the gaming control board pursuant to the Gaming Control Act may be conducted by a licensee.
C. Charitable gaming shall not be conducted in the state unless it is conducted pursuant to a license issued by the licensing authority.
Section 6. [NEW MATERIAL] CASINO NIGHTS.--
A. Casino nights may be conducted by an organization that has been issued a casino night license by the licensing authority when the casino nights are conducted in accordance with all other requirements of the Charitable Gaming Act and rules of the licensing authority and other applicable laws.
B. An organization licensed to conduct casino nights shall designate a game manager who will be present on the premises where and at the time the casino night is conducted.
C. Casino nights shall not be conducted in the state unless they are conducted pursuant to a license issued by the licensing authority.
D. An organization licensed to conduct casino nights shall:
(1) expend all receipts from the operation of a casino night for the purposes for which the organization licensed to conduct casino nights was chartered, after deducting the cost of prizes and other costs permitted by rule of the licensing authority; and
(2) maintain records, including sales receipts of prizes and other expenditures made to conduct the casino night, for one year following the date of the event that accurately show, at minimum, the gross receipts from each game, details of the permitted costs of conducting the games, costs of prizes and details of the uses for which the gross receipts from the casino night were used.
Section 7. [NEW MATERIAL] CHARITABLE GAMING--LICENSE TO CONDUCT--APPLICATION--FEES.--
A. A qualified organization may apply to the licensing authority for a license to conduct charitable gaming.
B. An application for a license to conduct charitable gaming shall require the following:
(1) the name and address of the applicant;
(2) information required by the licensing authority to verify the applicant's status as a qualified organization;
(3) the names and addresses of the applicant's four highest ranking officers, if any;
(4) the names and addresses of the game manager and alternate game manager;
(5) a list of all workers who will assist the game manager in the operation of the charitable games;
(6) the specific games intended to be held, operated and conducted by the applicant under the license applied for;
(7) the place where the charitable games are intended to be held, operated and conducted by the applicant under the license applied for;
(8) the days and times that charitable games are intended to be held, operated and conducted;
(9) a list of all persons having a managerial or ownership interest in the building in which the charitable gaming will occur;
(10) a list of all persons having a managerial or ownership interest in the equipment to be used for any charitable game;
(11) a statement of operational policies and procedures that describes how the charitable games will be conducted and maintained, including:
(a) a description of the internal control procedures; and
(b) the applicant's administrative and accounting procedures; and
(12) any other information required by the licensing authority.
C. A fee shall be submitted with an application for a license to conduct charitable games. The rate of the license fee shall be set by the licensing authority at a level that covers all or part of the costs of issuing the license. The licensing authority may decline to proceed with its investigation, and no license shall be issued until the license fee is paid.
Section 8. [NEW MATERIAL] CASINO NIGHTS--LICENSE TO CONDUCT--APPLICATIONS--FEES.--
A. A qualified organization or nonprofit organization, as defined in Section 60-2E-3 NMSA 1978, that has been issued a license by the gaming control board pursuant to the provisions of the Gaming Control Act, may apply to the licensing authority for a license to conduct a casino night by completing an application form developed by the licensing authority and providing all information required by the licensing authority.
B. A fee shall be submitted with each application for a license to conduct a casino night. The rate of the fee shall be established by the licensing authority at a level that covers all or part of the costs of issuing the license. The licensing authority may decline to proceed with its investigation, and no license shall be issued until the fee is paid.
Section 9. [NEW MATERIAL] CHARITABLE GAMING--STAFF PERMITS--APPLICATIONS--FEES.--
A. The game manager, the alternate game manager, the four highest ranking officers of the licensee and each worker shall apply for a staff permit to conduct, operate or manage charitable games.
B. A game manager, alternate game manager or worker conducting a charitable game shall have in his possession his staff permit.
C. An application for a staff permit to conduct, operate or manage charitable games shall require the following:
(1) the name, address and telephone number of the applicant;
(2) a sworn affidavit stating that the applicant has not been convicted of a felony in any jurisdiction; and
(3) other information required by the licensing authority.
D. A fee shall be submitted with each application for a staff permit. The rate of the fee shall be established by the licensing authority at a level that covers all or part of the costs of issuing the permit. The licensing authority may decline to proceed with its investigation, and no permit shall be issued until the permit fee is paid.
Section 10. [NEW MATERIAL] LICENSE TO MANUFACTURE, SUPPLY OR DISTRIBUTE GAMING EQUIPMENT OR SUPPLIES--APPLICATIONS--FEES.--
A. An application for a license to manufacture, supply or distribute gaming equipment or supplies shall require the following:
(1) the name and address of the applicant;
(2) the names and addresses of its four highest ranking officers, if any;
(3) the names and addresses of owners of ten percent or greater interest in the applicant's business, if any;
(4) the specific gaming equipment or supplies to be manufactured, supplied or distributed by the applicant for which the applicant seeks a license; and
(5) other information required by the licensing authority.
B. No person in New Mexico shall manufacture, supply or distribute gaming equipment or supplies for use in charitable games unless he has been issued a license authorizing him to manufacture, supply or distribute gaming equipment or supplies by the licensing authority.
C. A fee shall be submitted with an application for a license to manufacture, supply or distribute gaming equipment or supplies. The rate of the fee shall be established by the licensing authority at a level that covers all or part of the costs of issuing the license. The licensing authority may decline to proceed with its investigation, and no license shall be issued until the license fee is paid.
Section 11. [NEW MATERIAL] CHARITABLE GAMING--BUSINESS SERVICE LICENSES--APPLICATIONS--FEES.--
A. An application for a license to provide business services to licensees shall require the following:
(1) the name and address of the applicant;
(2) the names and addresses of its four highest ranking officers, if any;
(3) the names and addresses of owners of ten percent or greater interest in the applicant's business, if any;
(4) the specific services to be provided by the applicant under the license applied for; and
(5) other information required by the licensing authority.
B. No person shall supply business services to a licensee unless he has been issued a license authorizing him to supply business services to a licensee by the licensing authority.
C. A fee shall be submitted with an application for a license to provide business services to licensees. The rate of the fee shall be established by the licensing authority at a level that covers all or part of the costs of issuing the license. The licensing authority may decline to proceed with its investigation, and no license shall be issued until the license fee is paid.
Section 12. [NEW MATERIAL] CHARITABLE GAMING--LOCATION--PREMISES--OPERATION.--
A. Charitable gaming premises shall comply with all state and local zoning, fire, health, building and similar statutes, rules or ordinances, including those limiting or controlling location of charitable gaming premises.
B. A licensee may allow its premises and the furnishings, gaming equipment or other facilities on the premises to be used by other licensees to engage in charitable gaming. Gaming equipment may not be removed from a licensee's premises to allow its use by other licensees.
C. Each charitable game shall be operated and managed by a game manager designated by the licensee that has a staff permit issued by the licensing authority and is present on the premises where charitable gaming or a casino night is being conducted at all times during the charitable gaming or casino night. Each licensee shall designate no more than one game manager and may designate no more than one alternate game manager.
D. A licensee shall conduct no more than six charitable game sessions in a week and shall conduct no more than two sessions in a day.
E. The gross receipts from charitable games, less reasonable expenses, as defined by rule of the licensing authority, shall be used solely for the charitable purposes of the licensee.
F. All licensees shall generate a minimum net profit to be determined as a percentage of the licensee's gross receipts as follows:
(1) gross receipts of one hundred fifty thousand dollars ($150,000) or less, minimum net profit of eight percent;
(2) gross receipts of one hundred fifty thousand dollars ($150,000) to two hundred fifty thousand dollars ($250,000), minimum net profit of ten percent;
(3) gross receipts of two hundred fifty thousand dollars ($250,000) to three hundred fifty thousand dollars ($350,000), minimum net profit of twelve percent; and
(4) gross receipts over three hundred fifty-thousand dollars ($350,000), minimum net profit of fourteen percent.
H. Gross receipts from charitable games shall be recorded and reported as set forth by rule of the licensing authority. Records shall disclose gross receipts from all sources, all expenses incurred to conduct all charitable games, the nature and value of all prizes and distributions of net profit. Reports shall disclose gross receipts from all sources, the nature and value of all prizes and distributions of net profits.
I. No less than once every three years or more often as required by the licensing authority, a review of the records of a licensee to determine whether that licensee is operating in compliance with rules of and the operational policies and procedures approved by the licensing authority shall be conducted by an independent certified public accountant engaged by the licensee. A copy of the review and certification by the accountant that the accounting is accurate and that the licensee has complied with the provisions of the Charitable Gaming Act shall be submitted to the licensing authority by a date to be determined by the licensing authority.
J. Gaming equipment and supplies for any charitable games shall be provided by distributors licensed by the licensing authority, unless the gaming equipment and supplies are owned by the licensee. Gaming equipment owned by the licensee shall be provided by distributors, suppliers or manufacturers licensed or otherwise approved by the licensing authority.
K. Gaming equipment and supplies used for charitable games must be tested by a tester approved by the licensing authority and certified for accuracy annually, and the certification provided to the licensing authority.
L. The maximum aggregate amount that may be awarded for bingo prizes shall not exceed two thousand five hundred dollars ($2,500) per session.
Section 13. [NEW MATERIAL] CHARITABLE GAMING GROSS RECEIPTS TAX--ADMINISTRATION.--
A. For the privilege of offering charitable gaming to the public, the "charitable gaming gross receipts tax" is imposed in the amount of one-fourth of one percent on the gross receipts of each licensee from all games of chance conducted by that licensee.
B. The charitable gaming gross receipts tax shall be paid monthly on the twenty-fifth day of each month on the gross receipts from charitable games conducted in the preceding month to the taxation and revenue department on forms developed by that department.
C. The tax shall be administered pursuant to the Tax Administration Act.
Section 14. [NEW MATERIAL] COMPLIANCE--WARRANTLESS SEARCH AND ENFORCEMENT.--
A. The special investigations division of the department of public safety shall enforce the Charitable Gaming Act by monitoring the activities of licensees for compliance with the law and rules adopted pursuant to that act. The special investigations division shall investigate complaints against licensees and may issue administrative or criminal citations for violations of any provision of law.
B. An agent of the special investigations division of the department of public safety is authorized to enter the premises of a licensee at any time without a warrant to investigate pursuant to the provisions of the Charitable Gaming Act or to enforce the provisions of that act.
C. Upon request by the licensing authority, the special investigations division shall investigate licensees or activities that the licensing authority has reasonable cause to believe are in violation of the Charitable Gaming Act.
D. Within thirty days after issuance of an administrative or criminal citation pursuant to the provisions of the Charitable Gaming Act, the issuing agency shall report the citation to the licensing authority.
E. Upon receipt of an administrative citation, the licensing authority shall initiate administrative adjudicatory proceedings.
Section 15. [NEW MATERIAL] ADMINISTRATIVE ADJUDICATORY PROCEEDINGS.--
A. Administrative adjudicatory proceedings may be either formal or informal.
B. In conducting either formal or informal administrative adjudicatory proceedings, the licensing authority shall afford all parties an opportunity for full and fair hearing after reasonable notice.
C. The notice shall include:
(1) a short and plain statement of the matters of fact and law asserted and the proposed administrative adjudicatory action;
(2) an explanation of the informal and formal administrative adjudication processes;
(3) the name, title, address, telephone and fax numbers of the person to whom the licensee should respond; and
(4) a date and time within which the licensee should respond.
D. The licensing authority may make informal disposition of any administrative adjudicatory proceeding by stipulation, agreed settlement, consent order or default.
E. If the licensee and the licensing authority are unable to make informal disposition of an administrative citation, either party may request a hearing in writing. The hearing shall be conducted in accordance with the procedures described in Sections 12-8-10 through 12-8-13 NMSA 1978.
Section 16. [NEW MATERIAL] DENIAL, SUSPENSION OR REVOCATION OF A LICENSE OR PERMIT.--
A. The licensing authority may deny an application, fine a person or organization holding a license or permit issued by the licensing authority or suspend or revoke a license or permit issued by the licensing authority, if the applicant or person or organization holding the license or permit:
(1) has violated, failed or refused to comply with the provisions, requirements, conditions, limitations or duties imposed by the Charitable Gaming Act, or a rule adopted by the licensing authority pursuant to that act;
(2) causes, aids, abets or conspires with another to cause a person to violate a law of this state or a rule of the licensing authority;
(3) misrepresents or fails to disclose a material fact to the licensing authority or otherwise obtains a license or permit by fraud, misrepresentation, concealment or through inadvertence or mistake;
(4) is subject to current prosecution or pending charges, or a conviction that is under appeal, for any of the offenses included pursuant to Paragraph (3) of this subsection;
(5) has been convicted of, forfeited bond upon a charge of or pleaded guilty to any crime, whether a felony or misdemeanor;
(6) denies the licensing authority or its authorized representatives, including authorized local law enforcement agencies, access to a place where a charitable game is conducted or fails to produce promptly for inspection or audit a book, record, document or item required by law or licensing authority rule;
(7) fails to display its license in full view of the public at all times during the operation of the charitable game on the premises where the game is conducted; or
(8) fails to prove, by clear and convincing evidence, that he is qualified to hold a license or permit in accordance with the provisions of the Charitable Gaming Act.
B. No license shall be suspended or revoked without informal disposition by the parties or administrative adjudicatory proceedings.
Section 17. [NEW MATERIAL] PENALTIES.--The licensing authority shall adopt rules setting forth uniform standards of penalties concerning fines, suspensions and revocations.
Section 18. Section 30-19-6 NMSA 1978 (being Laws 1963, Chapter 303, Section 19-6, as amended) is amended to read:
"30-19-6. PERMISSIVE LOTTERY.--
A. Nothing in [Article 19] Chapter 30, Article 19
NMSA 1978 shall [be construed to] apply to [any]:
(1) a sale or drawing of [any] a prize at
[any] a fair held [in this state] for the benefit of [any] a
church, public library or religious society [situate or being]
located in this state, or for charitable purposes when all the
proceeds of [such] the fair [shall] are required to be
expended in this state for the benefit of [such] the church,
public library, religious society or charitable purposes; or
(2) a lottery [shall be] operated for the
benefit of [the organization or] a church, public library or
religious society for a charitable purpose only when the
entire proceeds of the lottery go to the [organization or]
church, public library or religious society for a charitable
purpose [and]. No part of [such] the proceeds may go to any
individual member or employee [thereof] of the church, library
or religious society.
B. Nothing in [Article 19] Chapter 30, Article 19
NMSA 1978 shall [be held to] prohibit [any] a bona fide motion
picture theater from offering prizes of cash or merchandise
for advertising purposes, in connection with [such] its
business or for the purpose of stimulating business, whether
or not any consideration other than a monetary consideration
in excess of the regular price of admission is [exacted] paid
for participation in drawings for prizes.
C. Nothing in [Article 19] Chapter 30, Article 19
NMSA 1978 shall [be held to] apply to [any] a bona fide county
fair, including fairs for more than one county, [which shall
have] that has been held annually at the same location for at
least two years and [which shall offer] offers prizes of
livestock or poultry in connection with [such] the fair when
the proceeds of [such] the drawings [shall be] are used for
the benefit of [said] the fair.
D. Nothing in [Article 19] Chapter 30, Article 19
NMSA 1978 shall [be construed to] apply to [any lottery
operated by an organization exempt from the state income tax
pursuant to Subsection C of Section 7-2-4 NMSA 1978 and not
subject to the provisions of Subsection A of this section;
provided that:
(1) no more than two lotteries shall be
operated in any year by such an organization;
(2) all the gross proceeds less the
reasonable cost of prizes of any lottery operated by such an
organization shall be expended in the state for the benefit of
the organization or public purposes; and
(3) no part of the proceeds of any lottery
shall go to any individual member or employee of any
organization except as payment for the purchase of prizes at
no more than the reasonable retail price] games conducted
pursuant to the provisions of the Charitable Gaming Act."
Section 19. Section 60-2E-3 NMSA 1978 (being Laws 1997, Chapter 190, Section 5) is amended to read:
"60-2E-3. DEFINITIONS.--As used in the Gaming Control Act:
A. "affiliate" means a person who, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with a specified person;
B. "affiliated company" means a company that:
(1) controls, is controlled by or is under common control with a company licensee; and
(2) is involved in gaming activities or involved in the ownership of property on which gaming is conducted;
C. "applicant" means a person who has applied for a license or for approval of an act or transaction for which approval is required or allowed pursuant to the provisions of the Gaming Control Act;
D. "application" means a request for the issuance of a license or for approval of an act or transaction for which approval is required or allowed pursuant to the provisions of the Gaming Control Act, but "application" does not include a supplemental form or information that may be required with the application;
E. "associated equipment" means equipment or a mechanical, electromechanical or electronic contrivance, component or machine used in connection with gaming;
F. "board" means the gaming control board;
G. "certification" means a notice of approval by the board of a person required to be certified by the board;
H. "certified technician" means a person certified by a manufacturer licensee to repair and service gaming devices, but who is prohibited from programming gaming devices;
I. "company" means a corporation, partnership, limited partnership, trust, association, joint stock company, joint venture, limited liability company or other form of business organization that is not a natural person;
J. "distributor" means a person who supplies gaming devices to a gaming operator but does not manufacture gaming devices;
K. "equity security" means an interest in a company that is evidenced by:
(1) voting stock or similar security;
(2) a security convertible into voting stock or similar security, with or without consideration, or a security carrying a warrant or right to subscribe to or purchase voting stock or similar security;
(3) a warrant or right to subscribe to or purchase voting stock or similar security; or
(4) a security having a direct or indirect participation in the profits of the issuer;
L. "executive director" means the chief
administrative officer appointed by the board pursuant to
[Section 9 of the Gaming Control Act] Section 60-2E-7 NMSA
1978;
M. "finding of suitability" means a certification of approval issued by the board permitting a person to be involved directly or indirectly with a licensee, relating only to the specified involvement for which it is made;
N. "game" means an activity in which, upon payment of consideration, a player receives a prize or other thing of value, the award of which is determined by chance even though accompanied by some skill; "game" does not include an activity played in a private residence in which no person makes money for operating the activity except through winnings as a player;
O. "gaming" means offering a game for play; "gaming" does not include amusement games and games of chance approved by the alcohol and gaming division of the regulation and licensing department to be offered for play solely at charitable gaming events or casino nights and that are operated pursuant to the provisions of the Charitable Gaming Act;
P. "gaming activity" means any endeavor associated with the manufacture or distribution of gaming devices or the conduct of gaming;
Q. "gaming device" means associated equipment or a gaming machine and includes a system for processing information that can alter the normal criteria of random selection that affects the operation of a game or determines the outcome of a game; "gaming device" does not include:
(1) a system or device that affects a game solely by stopping its operation so that the outcome remains undetermined; or
(2) amusement games and gaming equipment approved by the alcohol and gaming division of the regulation and licensing department to be used solely to conduct charitable games and casino nights pursuant to the Charitable Gaming Act;
R. "gaming employee" means a person connected directly with a gaming activity; "gaming employee" does not include:
(1) bartenders, cocktail servers or other persons engaged solely in preparing or serving food or beverages;
(2) secretarial or janitorial personnel;
(3) stage, sound and light technicians; or
(4) other nongaming personnel;
S. "gaming establishment" means the premises on or in which gaming is conducted;
T. "gaming machine" means a mechanical,
electromechanical or electronic contrivance or machine that, upon insertion of a coin, token or similar object, or upon payment of any consideration, is available to play or operate a game, whether the payoff is made automatically from the machine or in any other manner; "gaming machine" does not include amusement games and gaming equipment approved by the alcohol and gaming division of the regulation and licensing department to be used solely to conduct charitable games and casino nights pursuant to the Charitable Gaming Act;
U. "gaming operator" means a person who conducts gaming;
V. "holding company" means a company that directly or indirectly owns or has the power or right to control a company that is an applicant or licensee, but a company that does not have a beneficial ownership of more than ten percent of the equity securities of a publicly traded corporation is not a holding company;
W. "immediate family" means natural persons who are related to a specified natural person by affinity or consanguinity in the first through the third degree;
X. "independent administrator" means a person who administers an annuity, who is not associated in any manner with the gaming operator licensee for which the annuity was purchased and is in no way associated with the person who will be receiving the annuity;
Y. "institutional investor" means a state or federal government pension plan or a person that meets the requirements of a qualified institutional buyer as defined in Rule 144A of the federal Securities Act of 1933, and is:
(1) a bank as defined in Section 3(a)(6) of the federal Securities Exchange Act of 1934;
(2) an insurance company as defined in Section 2(a)(17) of the federal Investment Company Act of 1940;
(3) an investment company registered under Section 8 of the federal Investment Company Act of 1940;
(4) an investment adviser registered under Section 203 of the federal Investment Advisers Act of 1940;
(5) collective trust funds as defined in Section 3(c)(11) of the federal Investment Company Act of 1940;
(6) an employee benefit plan or pension fund that is subject to the federal Employee Retirement Income Security Act of 1974, excluding an employee benefit plan or pension fund sponsored by a publicly traded corporation registered with the board; or
(7) a group comprised entirely of persons specified in Paragraphs (1) through (6) of this subsection;
Z. "intermediary company" means a company that:
(1) is a holding company with respect to a company that is an applicant or licensee; and
(2) is a subsidiary with respect to any holding company;
AA. "key executive" means an executive of a licensee or other person having the power to exercise significant influence over decisions concerning any part of the licensed operations of the licensee or whose compensation exceeds an amount established by the board in a regulation;
BB. "license" means an authorization required by the board for engaging in gaming activities;
CC. "licensee" means a person to whom a valid license has been issued;
DD. "manufacturer" means a person who manufactures, fabricates, assembles, produces, programs or makes modifications to any gaming device for use or play in New Mexico or for sale, lease or distribution outside New Mexico from any location within New Mexico;
EE. "net take" means the total of the following, less the total of all cash paid out as losses to winning patrons and those amounts paid to purchase annuities to fund losses paid to winning patrons over several years by independent administrators:
(1) cash received from patrons for playing a game;
(2) cash received in payment for credit extended by a licensee to a patron for playing a game; and
(3) compensation received for conducting a game in which the licensee is not a party to a wager;
FF. "nonprofit organization" means:
(1) a bona fide chartered or incorporated branch, lodge, order or association, in existence in New Mexico prior to January 1, 1997, of a fraternal organization that is described in Section 501(c)(8) or (10) of the federal Internal Revenue Code of 1986 and that is exempt from federal income taxation pursuant to Section 501(a) of that code; or
(2) a bona fide chartered or incorporated post, auxiliary unit or society of, or a trust or foundation for the post or auxiliary unit, in existence in New Mexico prior to January 1, 1997, of a veterans' organization that is described in Section 501(c)(19) or (23) of the federal Internal Revenue Code of 1986 and that is exempt from federal income taxation pursuant to Section 501(a) of that code;
GG. "person" means a legal entity;
HH. "premises" means land, together with all buildings, improvements and personal property located on the land;
II. "progressive jackpot" means a prize that increases over time or as gaming machines that are linked to a progressive system are played and upon conditions established by the board may be paid by an annuity;
JJ. "progressive system" means one or more gaming machines linked to one or more common progressive jackpots;
KK. "publicly traded corporation" means a corporation that:
(1) has one or more classes of securities registered pursuant to the securities laws of the United States or New Mexico;
(2) is an issuer subject to the securities laws of the United States or New Mexico; or
(3) has one or more classes of securities registered or is an issuer pursuant to applicable foreign laws that the board finds provide protection for institutional investors that is comparable to or greater than the stricter of the securities laws of the United States or New Mexico;
LL. "registration" means a board action that authorizes a company to be a holding company with respect to a company that holds or applies for a license or that relates to other persons required to be registered pursuant to the Gaming Control Act;
MM. "subsidiary" means a company, all or a part of whose outstanding equity securities are owned, subject to a power or right of control or held, with power to vote, by a holding company or intermediary company; and
NN. "work permit" means a card, certificate or permit issued by the board, whether denominated as a work permit, registration card or otherwise, authorizing the employment of the holder as a gaming employee."
Section 20. Section 60-7A-19 NMSA 1978 (being Laws 1981, Chapter 39, Section 96, as amended) is amended to read:
"60-7A-19. COMMERCIAL GAMBLING ON LICENSED PREMISES.--
A. It is a violation of the Liquor Control Act for a licensee to knowingly allow commercial gambling on the licensed premises.
B. In addition to any criminal penalties, any person who violates Subsection A of this section may have his license suspended or revoked or a fine imposed, or both, pursuant to the Liquor Control Act.
C. As used in this section:
(1) "commercial gambling" means:
(a) participating in the earnings of or operating a gambling place;
(b) receiving, recording or forwarding bets or offers to bet;
(c) possessing facilities with the intent to receive, record or forward bets or offers to bet;
(d) for gain, becoming a custodian of anything of value bet or offered to be bet;
(e) conducting a lottery where both the consideration and the prize are money, or whoever with intent to conduct a lottery possesses facilities to do so; or
(f) setting up for use for the purpose of gambling, or collecting the proceeds of, any gambling device or game; and
(2) "commercial gambling" does not mean:
(a) activities authorized pursuant to the New Mexico Lottery Act;
(b) the conduct of activities pursuant
to Subsection D of Section 30-19-6 NMSA 1978; [and]
(c) gaming authorized pursuant to the Gaming Control Act on the premises of a gaming operator licensee licensed pursuant to that act; and
(d) charitable gaming authorized pursuant to the Charitable Gaming Act."
Section 21. REPEAL.--Effective June 30, 1999, Sections 60-2B-1 through 60-2B-14 NMSA 1978 (being Laws 1981, Chapter 259, Sections 1 through 14, as amended) are repealed.
Section 22. EFFECTIVE DATE.--The effective date of the provisions of Sections 1 through 20 of this act is July 1, 1999.