0001| HOUSE BILL 461 | 0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998 | 0003| INTRODUCED BY | 0004| MIGUEL P. GARCIA | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| AN ACT | 0011| RELATING TO LIQUOR LICENSE LEASING; REQUIRING HEARINGS; | 0012| DECLARING AN EMERGENCY. | 0013| | 0014| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0015| Section 1. A new section of the Liquor Control Act is | 0016| enacted to read: | 0017| "[NEW MATERIAL] AGENT LESSEE--HEARINGS REQUIRED-- | 0018| NOTICE--PENALTIES.-- | 0019| A. Before a license issued by the director may be | 0020| leased by an agent lessee, the proposed agent lessee and the | 0021| licensee shall: | 0022| (1) submit to the director a written | 0023| application on a form provided by the department requesting | 0024| licensure of the agent lessee; | 0025| (2) submit to the director all information | - 1 - 0001| required by the director, including all information required | 0002| of a new license applicant pursuant to Section 60-6B-2 NMSA | 0003| 1978; and | 0004| (3) appear before the director or a hearing | 0005| officer in a hearing held on the record in Santa Fe to | 0006| determine if the proposed agent lessee is qualified to be | 0007| licensed, all requirements of the Liquor Control Act have been | 0008| met and the transfer of control of the license to the proposed | 0009| agent lessee furthers the policy of the Liquor Control Act to | 0010| protect the health, safety and morals of the public. | 0011| B. Each person who is required to file fingerprints | 0012| pursuant to rules of the department shall submit an affidavit | 0013| stating that the person has not been convicted of a felony in | 0014| any jurisdiction. An applicant for a license as an agent | 0015| lessee who files a false affidavit shall be denied a license | 0016| to act as an agent lessee. When the director determines a | 0017| false affidavit has been filed, he shall refer the matter to | 0018| the attorney general or district attorney for prosecution of | 0019| perjury. | 0020| C. The director shall notify the licensee and | 0021| proposed agent lessee by certified mail of the date, time and | 0022| place of the hearing. The director shall cause a notice of | 0023| intent to license an agent lessee to be posted in a manner | 0024| that conforms with the provisions of Subsection M of Section | 0025| 60-6B-2 NMSA 1978 for a continuous period of at least twenty | - 2 - 0001| days prior to the hearing. The contents of the notice of | 0002| intent to license an agent lessee shall state the date, time | 0003| and place of the hearing to be held regarding the application | 0004| and shall provide an address to which comments may be sent | 0005| regarding the licensure of the agent lessee for inclusion in | 0006| the record. | 0007| D. In determining whether a license shall be | 0008| issued, the director shall take into consideration the record | 0009| of the hearing and all requirements of the Liquor Control Act. | 0010| In the issuance of a license the director shall specifically | 0011| consider the nature and number of violations of the Liquor | 0012| Control Act by the applicant or the licensee or of citations | 0013| issued within the prior five years against a license held or | 0014| operated pursuant to a lease by the applicant or the licensee | 0015| or against a license in which the applicant or licensee had an | 0016| ownership interest required to be disclosed pursuant to | 0017| provisions of the Liquor Control Act. The director shall | 0018| approve or disapprove the issuance of the license based upon a | 0019| review of all documentation. | 0020| E. No license shall be issued until all | 0021| requirements of the Liquor Control Act are satisfactorily | 0022| completed as determined by the director. | 0023| F. All costs of posting a notice of intent to | 0024| license an agent lessee shall be paid by the licensee. | 0025| G. It is unlawful for any person to remove or | - 3 - 0001| deface a notice posted in accordance with this section. A | 0002| person convicted of a violation of this subsection shall be | 0003| punished by a fine of not more than three hundred dollars | 0004| ($300) or by imprisonment in the county jail for not more than | 0005| one hundred twenty days or both." | 0006| Section 2. Section 60-3A-3 NMSA 1978 (being Laws 1981, | 0007| Chapter 39, Section 3, as amended) is amended to read: | 0008| "60-3A-3. DEFINITIONS.--As used in the Liquor Control | 0009| Act: | 0010| A. "agent lessee" means a person who operates a | 0011| liquor license pursuant to a lease agreement with a licensee, | 0012| who compensates the licensee for the use of the license and | 0013| who is entitled to all profits and responsible for all losses | 0014| from the operation of the license; | 0015| ~~[A.]~~ B. "alcoholic beverages" means distilled | 0016| or rectified spirits, potable alcohol, brandy, whiskey, rum, | 0017| gin and aromatic bitters bearing the federal internal revenue | 0018| strip stamps or any similar alcoholic beverage, including | 0019| blended or fermented beverages, dilutions or mixtures of one | 0020| or more of the foregoing containing more than one-half of one | 0021| percent alcohol, but excluding medicinal bitters; | 0022| ~~[B.]~~ C. "beer" means any alcoholic beverage | 0023| obtained by the fermentation of any infusion or decoction of | 0024| barley, malt and hops or other cereals in water, and includes | 0025| porter, beer, ale and stout; | - 4 - 0001| ~~[C.]~~ D. "brewer" means any person who owns or | 0002| operates a business for the manufacture of beer; | 0003| ~~[D.]~~ E. "club" means: | 0004| (1) any nonprofit group, including an | 0005| auxiliary or subsidiary group, organized and operated under | 0006| the laws of this state with a membership of not less than | 0007| fifty members who pay membership dues at the rate of not less | 0008| than five dollars ($5.00) per year and who, under the | 0009| constitution and bylaws of the club, have all voting rights | 0010| and full membership privileges and which group is the owner, | 0011| lessee or occupant of premises used exclusively for club | 0012| purposes and which group the director finds: | 0013| (a) is operated solely for recreation, | 0014| social, patriotic, political, benevolent or athletic purposes; | 0015| and | 0016| (b) the proposed licensee has been | 0017| granted an exemption by the United States from the payment of | 0018| the federal income tax as a club under the provisions of | 0019| Section 501(a) of the Internal Revenue Code of 1954, as | 0020| amended or, if the applicant has not operated as a club for a | 0021| sufficient time to be eligible for the income tax exemption, | 0022| it must execute and file with the director a sworn letter of | 0023| intent declaring that it will, in good faith, apply for such | 0024| exemption as soon as it is eligible; or | 0025| (2) an airline passenger membership club | - 5 - 0001| operated by an air common carrier which maintains or operates | 0002| a clubroom at an international airport terminal. For the | 0003| purposes of this paragraph, "air common carrier" means a | 0004| person engaged in regularly scheduled air transportation | 0005| between fixed termini under a certificate of public | 0006| convenience and necessity issued by the civil aeronautics | 0007| board; | 0008| ~~[E.]~~ F. "commission" means the secretary of | 0009| public safety when the term is used in reference to the | 0010| enforcement and investigatory provisions of the Liquor Control | 0011| Act and means the superintendent of regulation and licensing | 0012| when the term is used in reference to the licensing provisions | 0013| of the Liquor Control Act; | 0014| ~~[F.]~~ G. "department" means the special | 0015| investigations division of the department of public safety | 0016| ~~[department]~~ when the term is used in reference to the | 0017| enforcement and investigatory provisions of the Liquor Control | 0018| Act and means the superintendent of regulation and licensing | 0019| when the term is used in reference to the licensing provisions | 0020| of the Liquor Control Act; | 0021| ~~[G.]~~ H. "director" means the director of the | 0022| special investigations division of the department of public | 0023| safety ~~[department]~~ when the term is used in reference to | 0024| the enforcement and investigatory provisions of the Liquor | 0025| Control Act and means the superintendent of regulation and | - 6 - 0001| licensing when the term is used in reference to the licensing | 0002| provisions of the Liquor Control Act; | 0003| ~~[H.]~~ I. "dispenser" means any person licensed | 0004| under the provisions of the Liquor Control Act selling, | 0005| offering for sale or having in his possession with the intent | 0006| to sell alcoholic beverages both by the drink for consumption | 0007| on the licensed premises and in unbroken packages for | 0008| consumption and not for resale off the licensed premises; | 0009| ~~[I.]~~ J. "distiller" means any person engaged | 0010| in manufacturing spirituous liquors; | 0011| ~~[J.]~~ K. "governing body" means the board of | 0012| county commissioners of a county or the city council or city | 0013| commissioners of a municipality; | 0014| ~~[K.]~~ L. "hotel" means any establishment or | 0015| complex having a resident of New Mexico as a proprietor or | 0016| manager and where, in consideration of payment, meals and | 0017| lodging are regularly furnished to the general public. The | 0018| establishment or complex must maintain for the use of its | 0019| guests a minimum of twenty-five sleeping rooms; | 0020| ~~[L.]~~ M. "licensed premises" means the | 0021| contiguous areas or areas connected by indoor passageways of a | 0022| structure and the outside dining, recreation and lounge areas | 0023| of the structure ~~[which]~~ that are under the direct control | 0024| of the licensee and from which the licensee is authorized to | 0025| sell, serve or allow the consumption of alcoholic beverages | - 7 - 0001| under the provisions of its license; provided that in the case | 0002| of a restaurant, hotel or racetrack, "licensed premises" | 0003| includes all public and private rooms, facilities and areas in | 0004| which alcoholic beverages are sold or served in the customary | 0005| operating procedures of the restaurant, hotel or racetrack; | 0006| ~~[M.]~~ N. "local option district" means any | 0007| county which has voted to approve the sale, serving or public | 0008| consumption of alcoholic beverages or any incorporated | 0009| municipality which falls within a county which has voted to | 0010| approve the sale, serving or public consumption of alcoholic | 0011| beverages or any incorporated municipality of over five | 0012| thousand population which has independently voted to approve | 0013| the sale, serving or public consumption of alcoholic beverages | 0014| under the terms of the Liquor Control Act or any former act; | 0015| ~~[N.]~~ O. "manufacturer" means a distiller, | 0016| rectifier, brewer or winer; | 0017| ~~[O.]~~ P. "minor" means any person under twenty- | 0018| one years of age; | 0019| ~~[P.]~~ Q. "package" means any immediate | 0020| container of alcoholic beverages which is filled or packed by | 0021| a manufacturer or wine bottler for sale by the manufacturer or | 0022| wine bottler to wholesalers; | 0023| ~~[Q.]~~ R. "person" means an individual, | 0024| corporation, firm, partnership, copartnership, association or | 0025| other legal entity; | - 8 - 0001| ~~[R.]~~ S. "rectifier" means any person who | 0002| blends, mixes or distills alcohol with other liquids or | 0003| substances for the purpose of making an alcoholic beverage for | 0004| the purpose of sale other than to the consumer by the drink, | 0005| and includes all bottlers of spirituous liquors; | 0006| ~~[S.]~~ T. "restaurant" means any establishment | 0007| having a New Mexico resident as a proprietor or manager which | 0008| is held out to the public as a place where meals are prepared | 0009| and served primarily for on-premises consumption to the | 0010| general public in consideration of payment and which has a | 0011| dining room, a kitchen and the employees necessary for | 0012| preparing, cooking and serving meals; provided that | 0013| "restaurant" does not include establishments as defined in | 0014| regulations promulgated by the director serving only | 0015| hamburgers, sandwiches, salads and other fast foods; | 0016| ~~[T.]~~ U. "retailer" means any person licensed | 0017| under the provisions of the Liquor Control Act selling, | 0018| offering for sale or having in his possession with the intent | 0019| to sell any alcoholic beverages in unbroken packages for | 0020| consumption and not for resale off the licensed premises; | 0021| ~~[U.]~~ V. "spirituous liquors" means alcoholic | 0022| beverages as defined in Subsection A of this section except | 0023| fermented beverages such as wine, beer and ale; | 0024| ~~[V.]~~ W. "wholesaler" means any person whose | 0025| place of business is located in New Mexico and who sells, | - 9 - 0001| offers for sale or possesses for the purpose of sale any | 0002| alcoholic beverages for resale by the purchaser; | 0003| ~~[W.]~~ X. "wine" includes the words "fruit | 0004| juices" and means alcoholic beverages obtained by the | 0005| fermentation of the natural sugar contained in fruit or other | 0006| agricultural products, with or without the addition of sugar | 0007| or other products, ~~[which]~~ that do not contain less than | 0008| one-half of one percent nor more than twenty-one percent | 0009| alcohol by volume; | 0010| ~~[X.]~~ Y. "wine bottler" means any New Mexico | 0011| wholesaler who is licensed to sell wine at wholesale for | 0012| resale only and who buys wine in bulk and bottles it for | 0013| wholesale resale; and | 0014| ~~[Y.]~~ Z. "winer" means any person who owns or | 0015| operates a business for the manufacture of wine." | 0016| Section 3. EMERGENCY.--It is necessary for the public | 0017| peace, health and safety that this act take effect | 0018| immediately. | 0019| |