0001| HOUSE BILL 357
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0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
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0003| INTRODUCED BY
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0004| LISA L. LUTZ
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0005|
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO LIQUOR LICENSES; CHANGING REQUIRED INFORMATION IN
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0012| APPLICATION; BROADENING THE SUPERINTENDENT OF REGULATION AND
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0013| LICENSING'S DISCRETION REGARDING CANCELLATION OF LICENSES FOR
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0014| FAILURE TO ENGAGE IN BUSINESS.
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0015|
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0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0017| Section 1. Section 60-6B-2 NMSA 1978 (being Laws 1981,
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0018| Chapter 39, Section 38, as amended) is amended to read:
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0019| "60-6B-2. APPLICATIONS.--
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0020| A. Before any new license authorized by the Liquor
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0021| Control Act may be issued by the director, the applicant for
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0022| the license shall:
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0023| (1) submit to the director a written
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0024| application for the license under oath, in the form prescribed
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0025| by and stating the information required by the director,
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0001| together with a nonrefundable application fee of one hundred
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0002| fifty dollars ($150);
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0003| (2) submit to the director for his approval a
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0004| description, including floor plans, in a form prescribed by
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0005| the director, which shows the proposed licensed premises for
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0006| which the license application is submitted. The area
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0007| represented by the approved description shall become the
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0008| licensed premises;
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0009| (3) if the applicant is a corporation, be
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0010| required to submit as part of its application the following:
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0011| (a) a certified copy of its articles of
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0012| incorporation or, if a foreign corporation, a certified copy
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0013| of its certificate of authority;
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0014| (b) the names and addresses of all
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0015| officers and directors and those stockholders owning ten
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0016| percent or more of the voting stock of the corporation and the
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0017| amounts of stock held by each stockholder; provided, however,
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0018| a corporation may not be licensed if an officer, manager,
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0019| director or holder of more than ten percent of the stock would
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0020| not be eligible to hold a license pursuant to the Liquor
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0021| Control Act, except that the provision of Subsection [B] D
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0022| of Section 60-6B-1 NMSA 1978 shall not apply if the stock is
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0023| listed with a national securities exchange;
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0024| (c) the name of the resident agent of
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0025| the corporation authorized to accept service of process for
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0001| all purposes, including orders and notices of the director,
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0002| which agent shall be approved by the director with respect to
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0003| his character;
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0004| (d) a duly executed power of attorney
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0005| authorizing the agent described in Subparagraph (c) of this
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0006| paragraph to exercise full authority, control and
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0007| responsibility for the conduct of all business and
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0008| transactions of the corporation within the state relative to
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0009| the sale of alcoholic beverages under authority of the license
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0010| requested; and
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0011| (e) such additional information
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0012| regarding the corporation as the director may require to
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0013| assure full disclosure of the corporation's structure and
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0014| financial responsibility;
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0015| (4) if the applicant is a limited
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0016| partnership, submit as part of its application the following:
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0017| (a) a certified copy of its certificate
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0018| of limited partnership;
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0019| (b) the names and addresses of all
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0020| general partners and of all limited partners contributing ten
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0021| percent or more of the total value of contributions made to
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0022| the limited partnership or entitled to ten percent or more of
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0023| the profits earned or other income paid by the limited
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0024| partnership. No limited partnership shall receive a license
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0025| if any partner designated in this subsection would not be
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0001| eligible to hold a license issued pursuant to the Liquor
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0002| Control Act; and
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0003| (c) such additional information
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0004| regarding the limited partnership as the director may require
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0005| to assure full disclosure of the limited partnership's
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0006| structure and financial responsibility; and
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0007| (5) obtain approval for the issuance from the
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0008| governing body of the local option district in which the
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0009| proposed licensed premises are to be located in accordance
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0010| with the provisions of the Liquor Control Act.
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0011| B. Every applicant for a new license or for a
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0012| transfer of ownership of a license, if an individual or
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0013| general partnership, shall file with the application two
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0014| complete sets of fingerprints of each individual, taken under
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0015| the supervision of and certified to by an officer of the New
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0016| Mexico state police, a county sheriff or a municipal chief of
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0017| police. If the applicant is a corporation, it shall file two
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0018| complete sets of fingerprints for each stockholder holding ten
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0019| percent or more of the outstanding stock, principal officer,
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0020| director and the agent responsible for the operation of the
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0021| licensed business. The fingerprints shall be taken and
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0022| certified to as provided for an individual or partnership. If
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0023| the applicant is a limited partnership, it shall file two
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0024| complete sets of fingerprints for each general partner and for
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0025| each limited partner contributing ten percent or more of the
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0001| total value of contributions made to the limited partnership
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0002| or entitled to ten percent or more of the profits earned or
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0003| other compensation by way of income paid by the limited
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0004| partnership. The fingerprints shall be taken and certified to
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0005| as provided for an individual or partnership.
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0006| C. Upon submission of a sworn affidavit from each
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0007| person who is required to file fingerprints stating that the
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0008| person has not been convicted of a felony in any jurisdiction
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0009| and pending the results of background investigations, a
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0010| temporary license for ninety days may be issued. The
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0011| temporary license may be extended by the director for an
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0012| additional ninety days if the director determines there is not
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0013| sufficient time to complete the background investigation or
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0014| obtain reviews of fingerprints from appropriate agencies. A
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0015| temporary license shall be surrendered immediately upon order
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0016| of the director.
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0017| D. An applicant who files a false affidavit shall
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0018| be denied a license. When the director determines a false
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0019| affidavit has been filed, he shall refer the matter to the
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0020| attorney general or district attorney for prosecution of
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0021| perjury.
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0022| E. If an applicant is not a resident of New
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0023| Mexico, fingerprints may be taken under supervision and
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0024| certification of comparable officers in the state of residence
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0025| of the applicant.
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0001| F. Before issuing a license, the department shall
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0002| hold a public hearing within thirty days after receipt of the
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0003| application pursuant to Subsection [H] K of this section.
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0004| G. An application for transfer of ownership shall
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0005| be filed with the department no later than thirty days after
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0006| the date a person acquired an ownership interest in a license.
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0007| It shall contain [documentation of the actual purchase
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price paid for the license, and] the actual date of sale of
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0009| the license and shall be accompanied by a sworn affidavit from
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0010| the owner of record of the license agreeing to the sale of the
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0011| license to the applicant as well as attesting to the accuracy
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0012| of the information required by this section to be filed with
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0013| the department. No license shall be transferred unless it
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0014| will be placed into operation in an actual location within one
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0015| hundred twenty days of issuance of the license, unless for
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0016| good cause shown the director grants an additional extension
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0017| not to exceed one hundred twenty days.
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0018| H. Whenever it appears to the director that there
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0019| will be more applications for new licenses than the available
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0020| number of new licenses during any time period, a random
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0021| selection method for the qualification, approval and issuance
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0022| of new licenses shall be provided by the director. The random
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0023| selection method shall allow each applicant an equal
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0024| opportunity to obtain an available license, provided that all
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0025| dispenser's and retailer's licenses issued in any calendar
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0001| year shall be issued to residents of the state. For the
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0002| purposes of random selection, the director shall also set a
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0003| reasonable deadline by which applications for the available
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0004| licenses shall be filed. No person shall file more than one
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0005| application for each available license and no more than three
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0006| applications per calendar year.
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0007| I. After the deadline set in accordance with
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0008| Subsection H of this section, no more than ten applications
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0009| per available license shall be selected at random for priority
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0010| of qualification and approval. Within thirty days after the
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0011| random selection for the ten priority positions for each
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0012| license, a hearing pursuant to Subsection K of this section
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0013| shall be held to determine the qualifications of the applicant
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0014| having the highest priority for each available license. If
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0015| necessary, such a hearing shall be held on each selected
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0016| application by priority until a qualified applicant for each
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0017| available license is approved. Further random selections for
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0018| priority positions shall also be held pursuant to this section
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0019| as necessary.
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0020| J. All applications submitted for a license shall
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0021| expire upon the director's final approval of a qualified
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0022| applicant for that available license.
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0023| K. The director shall notify the applicant by
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0024| certified mail of the date, time and place of the hearing.
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0025| The hearing shall be held in Santa Fe. The director may
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0001| designate a hearing officer to take evidence at the hearing.
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0002| The director or the hearing officer shall have the power to
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0003| administer oaths.
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0004| L. In determining whether a license shall be
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0005| issued, the director shall take into consideration all
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0006| requirements of the Liquor Control Act. In the issuance of a
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0007| license, the director shall specifically consider the nature
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0008| and number of prior violations of the Liquor Control Act by
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0009| the applicant or of any citations issued within the prior five
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0010| years against a license held by the applicant or in which the
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0011| applicant had an ownership interest required to be disclosed
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0012| under the Liquor Control Act. The director shall disapprove
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0013| the issuance or give preliminary approval of the issuance of
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0014| the license based upon a review of all documentation submitted
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0015| and any investigation deemed necessary by the director.
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0016| M. Before any new license is issued for a
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0017| location, the director shall cause a notice of the application
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0018| therefor to be posted conspicuously, on a sign not smaller
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0019| than thirty inches by forty inches, on the outside of the
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0020| front wall or front entrance of the immediate premises for
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0021| which the license is sought or, if no building or improvements
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0022| exist on the premises, the notice shall be posted at the front
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0023| entrance of the immediate premises for which the license is
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0024| sought, on a billboard not smaller than five feet by five
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0025| feet. The contents of the notice shall be in the form
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0001| prescribed by the department, and such posting shall be over a
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0002| continuous period of twenty days prior to preliminary approval
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0003| of the license.
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0004| N. No license shall be issued until the posting
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0005| requirements of Subsection M of this section have been met.
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0006| O. All costs of publication and posting shall be
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0007| paid by the applicant.
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0008| P. It is unlawful for any person to remove or
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0009| deface any notice posted in accordance with this section. Any
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0010| person convicted of a violation of this subsection shall be
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0011| punished by a fine of not more than three hundred dollars
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0012| ($300) or by imprisonment in the county jail for not more than
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0013| one hundred twenty days or by both.
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0014| Q. Any person aggrieved by any decision made by
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0015| the director as to the approval or disapproval of the issuance
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0016| of a license may appeal to the district court of jurisdiction
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0017| by filing a petition in the court within thirty days from the
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0018| date of the decision of the director, and a hearing on the
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0019| matter may be held in the district court. If the disapproval
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0020| is based upon local option district disapproval pursuant to
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0021| Subsection H of Section 60-6B-4 NMSA 1978, the local option
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0022| district shall be a necessary party to any appeal. The
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0023| decision of the director shall continue in force, pending a
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0024| reversal or modification by the district court, unless
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0025| otherwise ordered by the court. Any appeal from the decision
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0001| of the district court to the supreme court shall be permitted
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0002| as in other cases of appeals from the district court to the
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0003| supreme court."
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0004| Section 2. Section 60-6B-7 NMSA 1978 (being Laws 1981,
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0005| Chapter 39, Section 43, as amended) is amended to read:
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0006| "60-6B-7. CANCELLATION OF LICENSE FOR FAILURE TO ENGAGE
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0007| IN BUSINESS.--
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0008| A. Any license issued under the provisions of the
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0009| Liquor Control Act shall be canceled if the licensee fails to
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0010| commence operation of the licensed business within one hundred
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0011| twenty days after the license is issued and to continuously
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0012| operate during customary hours and days of operation for that
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0013| type of business; provided, however, the director may extend
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0014| [such] that period [when construction or major renovation
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of a proposed licensed premises is planned by the licensee]
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0016| for a length of time determined by the director.
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0017| B. If after the one-hundred-twenty-day period or
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0018| additional extension period specified in Subsection A of this
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0019| section the licensee ceases to operate the licensed business
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0020| during customary hours and days for that type of business for
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0021| more than ten days, he shall notify the director in writing
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0022| within five days of the cessation.
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0023| C. The director may grant temporary suspensions in
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0024| the operation of the licensed business upon receipt of the
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0025| notice provided in Subsection B of this section. [However,
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no licensee shall be granted a single temporary suspension in
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the operation of the licensed business for any period in
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excess of ninety days and no more than two such ninety-day
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temporary suspensions in any one license year, unless the
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director determines that circumstances warrant the granting of
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a longer period of temporary suspension] A temporary
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0007| suspension shall be for a period determined appropriate by the
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0008| director.
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0009| D. The license of any person failing to comply
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0010| with any provision of this section shall be canceled after
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0011| notice and hearing complying with the provisions of Section
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0012| 60-6C-4 NMSA 1978."
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0013|
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