0001|                            HOUSE BILL 263
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0002|     43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003|                            INTRODUCED BY
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0004|                           MIGUEL P. GARCIA
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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 ALCOHOLIC BEVERAGES; CLARIFYING AND EXPANDING THE
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0012|     GROUNDS FOR DENYING AN APPLICATION FOR A LICENSE AND FOR
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0013|     REVOCATION OR SUSPENSION OF A LICENSE PURSUANT TO THE LIQUOR
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0014|     CONTROL ACT; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978.
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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 the
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0005|     director, which shows the proposed licensed premises for which
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0006|     the license application is submitted.  The area represented by
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0007|     the approved description shall become the licensed premises;
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0008|                    (3)  if the applicant is a corporation, be
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0009|     required to submit as part of its application the following:
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0010|                         (a)  a certified copy of its articles of
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0011|     incorporation or, if a foreign corporation, a certified copy of
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0012|     its certificate of authority;
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0013|                         (b)  the names and addresses of all
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0014|     officers and directors and those stockholders owning ten
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0015|     percent or more of the voting stock of the corporation and the
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0016|     amounts of stock held by each stockholder; provided, however, a
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0017|     corporation may not be licensed if an officer, manager,
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0018|     director or holder of more than ten percent of the stock would
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0019|     not be eligible to hold a license pursuant to the Liquor
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0020|     Control Act, except that the provision of Subsection <s>[B]</s> <u>D</u>
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0021|     of Section 60-6B-1 NMSA 1978 shall not apply if the stock is
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0022|     listed with a national securities exchange;
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0023|                         (c)  the name of the resident agent of
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0024|     the corporation authorized to accept service of process for all
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0025|     purposes, including orders and notices of the director, which
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0001|     agent shall be approved by the director with respect to his
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0002|     character;
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0003|                         (d)  a duly executed power of attorney
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0004|     authorizing the agent described in Subparagraph (c) of this
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0005|     paragraph to exercise full authority, control and
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0006|     responsibility for the conduct of all business and transactions
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0007|     of the corporation within the state relative to the sale of
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0008|     alcoholic beverages under authority of the license requested;
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0009|     and
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0010|                         (e)  such additional information
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0011|     regarding the corporation as the director may require to assure
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0012|     full disclosure of the corporation's structure and financial
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0013|     responsibility;
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0014|                    (4)  if the applicant is a limited partnership,
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0015|     submit as part of its application the following:
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0016|                         (a)  a certified copy of its certificate
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0017|     of limited partnership;
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0018|                         (b)  the names and addresses of all
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0019|     general partners and of all limited partners contributing ten
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0020|     percent or more of the total value of contributions made to the
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0021|     limited partnership or entitled to ten percent or more of the
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0022|     profits earned or other income paid by the limited partnership. 
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0023|     No limited partnership shall receive a license if any partner
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0024|     designated in this subsection would not be eligible to hold a
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0025|     license issued pursuant to the Liquor Control Act; and
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0001|                         (c)  such additional information
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0002|     regarding the limited partnership as the director may require
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0003|     to assure full disclosure of the limited partnership's
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0004|     structure and financial responsibility; and
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0005|                    (5)  obtain approval for the issuance from the
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0006|     governing body of the local option district in which the
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0007|     proposed licensed premises are to be located in accordance with
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0008|     the provisions of the Liquor Control Act.
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0009|               B.  Every applicant for a new license or for a
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0010|     transfer of ownership of a license, if an individual or general
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0011|     partnership, shall file with the application two complete sets
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0012|     of fingerprints of each individual, taken under the supervision
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0013|     of and certified to by an officer of the New Mexico state
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0014|     police, a county sheriff or a municipal chief of police.  If
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0015|     the applicant is a corporation, it shall file two complete sets
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0016|     of fingerprints for each stockholder holding ten percent or
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0017|     more of the outstanding stock, principal officer, director and
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0018|     the agent responsible for the operation of the licensed
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0019|     business.  The fingerprints shall be taken and certified to as
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0020|     provided for an individual or partnership.  If the applicant is
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0021|     a limited partnership, it shall file two complete sets of
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0022|     fingerprints for each general partner and for each limited
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0023|     partner contributing ten percent or more of the total value of
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0024|     contributions made to the limited partnership or entitled to
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0025|     ten percent or more of the profits earned or other compensation
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0001|     by way of income paid by the limited partnership.  The
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0002|     fingerprints shall be taken and certified to as provided for an
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0003|     individual or partnership.  
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0004|               C.  Upon submission of a sworn affidavit from each
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0005|     person who is required to file fingerprints stating that the
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0006|     person has not been convicted of a felony in any jurisdiction
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0007|     and pending the results of background investigations, a
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0008|     temporary license for ninety days may be issued.  The temporary
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0009|     license may be extended by the director for an additional
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0010|     ninety days if the director determines there is not sufficient
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0011|     time to complete the background investigation or obtain reviews
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0012|     of fingerprints from appropriate agencies.  A temporary license
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0013|     shall be surrendered immediately upon order of the director.
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0014|               D.  An applicant who files a false affidavit shall
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0015|     be denied a license.  When the director determines a false
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0016|     affidavit has been filed, he shall refer the matter to the
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0017|     attorney general or district attorney for prosecution of
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0018|     perjury.
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0019|               E.  If an applicant is not a resident of New Mexico,
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0020|     fingerprints may be taken under supervision and certification
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0021|     of comparable officers in the state of residence of the
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0022|     applicant.
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0023|               <u>F.  Every applicant for a new license or a transfer
</u>    |
<u></u>0024| <u>    of ownership of a license shall file with the application two
</u>    |
<u></u>0025| <u>    current photographs of the applicant or, if the applicant is a
</u>    |
<u></u>0001| <u>    legal entity, two current photographs of the agent responsible
</u>    |
<u></u>0002| <u>    for operation of the licensed business for the applicant.  The
</u>    |
<u></u>0003| <u>    director shall determine the size and type of photographs to be
</u>    |
<u></u>0004| <u>    submitted.  One photograph shall be affixed to the license and
</u>    |
<u></u>0005| <u>    the other shall be retained on file by the department.</u>
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0006|               <s>[F.]</s> <u>G.</u>  Before issuing a license, the
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0007|     department shall hold a public hearing within thirty days after
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0008|     receipt of the application pursuant to Subsection <s>[H]</s> <u>L</u> of
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0009|     this section.
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0010|               <s>[G.]</s> <u>H.</u>  An application for transfer of
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0011|     ownership shall be filed with the department no later than
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0012|     thirty days after the date a person acquired an ownership
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0013|     interest in a license; shall contain documentation of the
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0014|     actual purchase price paid for the license, and the actual date
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0015|     of sale of the license; and shall be accompanied by a sworn
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0016|     affidavit from the owner of record of the license agreeing to
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0017|     the sale of the license to the applicant as well as attesting
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0018|     to the accuracy of the information required by this section to
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0019|     be filed with the department.  No license shall be transferred
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0020|     unless it will be placed into operation in an actual location
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0021|     within one hundred twenty days of issuance of the license,
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0022|     unless for good cause shown the director grants an additional
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0023|     extension not to exceed one hundred twenty days.
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0024|               <s>[H.]</s> <u>I.</u>  Whenever it appears to the director
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0025|     that there will be more applications for new licenses than the
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0001|     available number of new licenses during any time period, a
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0002|     random selection method for the qualification, approval and
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0003|     issuance of new licenses shall be provided by the director. 
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0004|     The random selection method shall allow each applicant an equal
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0005|     opportunity to obtain an available license, provided that all
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0006|     dispenser's and retailer's licenses issued in any calendar year
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0007|     shall be issued to residents of the state.  For the purposes of
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0008|     random selection, the director shall also set a reasonable
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0009|     deadline by which applications for the available licenses shall
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0010|     be filed.  No person shall file more than one application for
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0011|     each available license and no more than three applications per
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0012|     calendar year.
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0013|               <s>[I.]</s> <u>J.</u>  After the deadline set in accordance
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0014|     with Subsection <s>[H]</s> <u>I</u> of this section, no more than ten
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0015|     applications per available license shall be selected at random
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0016|     for priority of qualification and approval.  Within thirty days
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0017|     after the random selection for the ten priority positions for
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0018|     each license, a hearing pursuant to Subsection <s>[K]</s> <u>L</u> of
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0019|     this section shall be held to determine the qualifications of
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0020|     the applicant having the highest priority for each available
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0021|     license.  If necessary, such a hearing shall be held on each
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0022|     selected application by priority until a qualified applicant
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0023|     for each available license is approved.  Further random
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0024|     selections for priority positions shall also be held pursuant
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0025|     to this section as necessary.
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0001|               <s>[J.]</s> <u>K.</u>  All applications submitted for a
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0002|     license shall expire upon the director's final approval of a
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0003|     qualified applicant for that available license.
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0004|               <s>[K.]</s> <u>L.</u>  The director shall notify the applicant
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0005|     by certified mail of the date, time and place of the hearing. 
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0006|     The hearing shall be held in Santa Fe.  The director may
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0007|     designate a hearing officer to take evidence at the hearing. 
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0008|     The director or the hearing officer shall have the power to
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0009|     administer oaths.        <s>[L.]</s> <u>M.</u>  In determining whether
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0010|     a license shall be issued, the director shall take into
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0011|     consideration <u>the provisions of Section 60-6B-2.1 NMSA 1978
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<u></u>0012| <u>    and</u> all <u>other</u> requirements of the Liquor Control Act.  In
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0013|     the issuance of a license, the director shall specifically
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0014|     consider the nature and number of prior violations of the
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0015|     Liquor Control Act by the applicant or of any citations issued
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0016|     within the prior five years against a license held by the
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0017|     applicant or in which the applicant had an ownership interest
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0018|     required to be disclosed under the Liquor Control Act.  The
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0019|     director shall disapprove the issuance or give preliminary
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0020|     approval of the issuance of the license based upon a review of
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0021|     all documentation submitted and any investigation deemed
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0022|     necessary by the director.
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0023|               <s>[M.]</s> <u>N.</u>  Before any new license is issued for a
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0024|     location, the director shall cause a notice of the application
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0025|     therefor to be posted conspicuously, on a sign not smaller than
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0001|     thirty inches by forty inches, on the outside of the front wall
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0002|     or front entrance of the immediate premises for which the
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0003|     license is sought or, if no building or improvements exist on
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0004|     the premises, the notice shall be posted at the front entrance
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0005|     of the immediate premises for which the license is sought, on a
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0006|     billboard not smaller than five feet by five feet.  The
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0007|     contents of the notice shall be in the form prescribed by the
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0008|     department, and such posting shall be over a continuous period
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0009|     of twenty days prior to preliminary approval of the license.
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0010|               <s>[N.]</s> <u>O.</u>  No license shall be issued until the
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0011|     posting requirements of Subsection <s>[M]</s> <u>N</u> of this section
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0012|     have been met.
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0013|               <s>[O.]</s> <u>P.</u>  All costs of publication and posting
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0014|     shall be paid by the applicant.
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0015|               <s>[P.]</s> <u>Q.</u>  It is unlawful for any person to remove
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0016|     or deface any notice posted in accordance with this section. 
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0017|     Any person convicted of a violation of this subsection shall be
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0018|     punished by a fine of not more than three hundred dollars
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0019|     ($300) or by imprisonment in the county jail for not more than
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0020|     one hundred twenty days or by both.
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0021|               <s>[Q.]</s> <u>R.</u>  Any person aggrieved by any decision
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0022|     made by the director as to the approval or disapproval of the
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0023|     issuance of a license may appeal to the district court of
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0024|     jurisdiction by filing a petition in the court within thirty
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0025|     days from the date of the decision of the director, and a
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0001|     hearing on the matter may be held in the district court.  If
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0002|     the disapproval is based upon local option district disapproval
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0003|     pursuant to Subsection H of Section 60-6B-4 NMSA 1978, the
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0004|     local option district shall be a necessary party to any appeal. 
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0005|     The decision of the director shall continue in force, pending a
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0006|     reversal or modification by the district court, unless
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0007|     otherwise ordered by the court.  Any appeal from the decision
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0008|     of the district court to the supreme court shall be permitted
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0009|     as in other cases of appeals from the district court to the
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0010|     supreme court."
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0011|          Section 2.  A new section of the Liquor Control Act,
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0012|     Section 60-6B-2.1 NMSA 1978, is enacted to read:
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0013|          "60-6B-2.1.  [<u>NEW MATERIAL</u>]  GROUNDS FOR REFUSAL TO
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0014|     ISSUE A LICENSE.--The director may refuse to approve an
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0015|     application for issuance of a new license or transfer of
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0016|     ownership of a license under the Liquor Control Act if the
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0017|     director has reasonable grounds to believe that:
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0018|               A.  the granting of the license is not demanded by
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0019|     public interest or convenience;
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0020|               B.  the applicant:
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0021|                    (1)  is in the habit of using alcoholic
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0022|     beverages, habit-forming drugs or controlled substances to
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0023|     excess;
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0024|                    (2)  has made false statements to the director
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0025|     or any employee of the department;
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0001|                    (3)  is incompetent or physically unable to
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0002|     carry on the management of the establishment proposed to be
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0003|     licensed;
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0004|                    (4)  has been convicted of a violation of an
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0005|     alcoholic beverage law of this state or a political subdivision
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0006|     of the state or has been convicted at any time of a felony;
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0007|                    (5)  is not of good repute and moral character;
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0008|                    (6)  if previously licensed under the Liquor
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0009|     Control Act, did not have a record of compliance with that act
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0010|     or the regulations adopted pursuant to that act when licensed;
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0011|                    (7)  is not the legitimate owner of the
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0012|     business proposed to be licensed or has not disclosed any
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0013|     person who has an ownership interest in the applicant's
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0014|     business that is required to be disclosed; or
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0015|                    (8)  cannot demonstrate financial
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0016|     responsibility sufficient to adequately meet the requirements
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0017|     of the business proposed to be licensed; or
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0018|               C.  there is a history of serious and persistent
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0019|     problems involving disturbances, lewd or unlawful activities or
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0020|     noise either on the premises proposed to be licensed or
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0021|     involving patrons of the establishment in the immediate
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0022|     vicinity of the premises if the activities in the immediate
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0023|     vicinity of the premises are related to the sale or service of
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0024|     alcoholic beverages by a person licensed under the Liquor
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0025|     Control Act.  Behavior that constitutes grounds for refusal of
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0001|     a license pursuant to this subsection, where related to the
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0002|     sale or service of alcoholic beverages, includes but is not
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0003|     limited to obtrusive or excessive noise, music or sound
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0004|     vibrations; public drunkenness; fights; altercations;
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0005|     harassment; unlawful drug sales; litter related to or resulting
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0006|     from the consumption of alcoholic beverages; trespassing on
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0007|     private property; and public urination.  A history of such
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0008|     behavior in or related to premises currently or previously
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0009|     operated by the applicant may be considered when reasonable
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0010|     inference may be made that similar activities will occur in or
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0011|     related to the premises proposed to be licensed."
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0012|          Section 3.  Section 60-6B-5 NMSA 1978 (being Laws 1981, 
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0013|     Chapter 39, Section 41) is amended to read:
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0014|          "60-6B-5.  EXPIRATION AND RENEWAL OF LICENSES.--All
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0015|     licenses provided for in the Liquor Control Act shall expire on
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0016|     June 30 of each year and may be renewed from year to year under
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0017|     the rules and regulations of the department, <u>which shall
</u>    |
<u></u>0018| <u>    include a requirement that the licensee include with his
</u>    |
<u></u>0019| <u>    license renewal two current photographs of the licensee or, if
</u>    |
<u></u>0020| <u>    the licensee is a legal entity, two current photographs of the
</u>    |
<u></u>0021| <u>    agent responsible for operation of the licensed premises.</u>  The
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0022|     director shall determine whether any of the licensees under his
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0023|     jurisdiction are delinquent in any taxes administered by the
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0024|     taxation and revenue department as of June 1 of each year.  The
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0025|     director shall also determine whether or not there exists any
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0001|     other reason why a license should not be renewed.  If the
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0002|     director determines that the license should not be renewed, he
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0003|     shall enter an order requiring the licensee, after notice, to
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0004|     show cause why his license should be renewed, and he shall
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0005|     conduct a hearing on the matter. If, after the hearing, the
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0006|     director finds that the licensee is qualified, he shall renew
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0007|     the license."
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0008|          Section 4.  Section 60-6C-1 NMSA 1978 (being Laws 1981,
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0009|     Chapter 39, Section 97, as amended) is amended to read:
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0010|          "60-6C-1.  GROUNDS FOR SUSPENSION, REVOCATION OR
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0011|     ADMINISTRATIVE FINE--REPORTING REQUIREMENT.--
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0012|               A.  The director may suspend or revoke the license
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0013|     or permit or fine the licensee in an amount not more than ten
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0014|     thousand dollars ($10,000), or both, when he finds that any
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0015|     licensee <s>[has]</s>:
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0016|                    (1) <u>has</u> violated any provision of the Liquor
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0017|     Control Act or any regulation or order promulgated pursuant to
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0018|     that act;
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0019|                    (2) <u>has</u> been convicted of a felony pursuant
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0020|     to the provisions of the Criminal Code, the Liquor Control Act
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0021|     or federal law; <s>[or]</s>
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0022|                    <u>(3)  is in the habit of using alcoholic
</u>    |
<u></u>0023| <u>    beverages, habit-forming drugs or controlled substances to
</u>    |
<u></u>0024| <u>    excess;</u>
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0025|                    <u>(4)  is insolvent, incompetent or physically
</u>    |
<u></u>0001| <u>    unable to carry on the management of the establishment that is
</u>    |
<u></u>0002| <u>    the licensed premises; or</u>  
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0003|                    <s>[(3)]</s> <u>(5) has</u> permitted his licensed
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0004|     premises to remain a public nuisance in the neighborhood where
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0005|     it is located after written notice from the director that
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0006|     investigation by the department has revealed that the
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0007|     establishment is a public nuisance in the neighborhood. <u>The
</u>    |
<u></u>0008| <u>    licensee's establishment shall be considered a public nuisance
</u>    |
<u></u>0009| <u>    if the director finds that there is a history of serious and
</u>    |
<u></u>0010| <u>    persistent problems involving disturbances, lewd or unlawful
</u>    |
<u></u>0011| <u>    activities or noise either on the licensed premises or
</u>    |
<u></u>0012| <u>    involving patrons of the establishment in the immediate
</u>    |
<u></u>0013| <u>    vicinity of the licensed premises if the activities in the
</u>    |
<u></u>0014| <u>    immediate vicinity of the licensed premises are related to the
</u>    |
<u></u>0015| <u>    sale or consumption of alcoholic beverages on the licensed
</u>    |
<u></u>0016| <u>    premises.  Behavior that constitutes a public nuisance when
</u>    |
<u></u>0017| <u>    related to the sale or consumption of alcoholic beverages
</u>    |
<u></u>0018| <u>    includes but is not limited to obtrusive or excessive noise,
</u>    |
<u></u>0019| <u>    music or sound vibrations; public drunkenness; fights;
</u>    |
<u></u>0020| <u>    altercations; harassment; unlawful drug sales; litter related
</u>    |
<u></u>0021| <u>    to or resulting from the consumption of alcoholic beverages;
</u>    |
<u></u>0022| <u>    trespassing on private property; and public urination.</u>
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0023|               B.  The director shall suspend or revoke the license
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0024|     or permit and may fine the licensee in an amount not to exceed
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0025|     ten thousand dollars ($10,000), or both, when he finds that any
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0001|     licensee or:
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0002|                    (1)  his employee or agent knowingly has sold,
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0003|     served or given any alcoholic beverage to a minor in violation
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0004|     of Section 60-7B-1 NMSA 1978 or to an intoxicated person in
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0005|     violation of Section 60-7A-16 NMSA 1978, on two separate
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0006|     occasions within any twelve-month period; or
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0007|                    (2)  his agent has made any material false
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0008|     statement or concealed any material facts in his application
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0009|     for the license or permit granted him pursuant to the
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0010|     provisions of the Liquor Control Act.
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0011|               C.  In addition to other penalties provided in this
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0012|     section, any retailer or dispenser who violates the provisions
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0013|     of Section 60-7A-16 or 60-7B-1 NMSA 1978 by selling, serving or
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0014|     delivering alcoholic beverages to an intoxicated person or a
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0015|     minor through a drive-up window at a minimum shall have:
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0016|                    (1)  upon a first violation of this subsection,
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0017|     the privilege to sell alcoholic beverages or any other goods
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0018|     from his drive-up window suspended by the director for a period
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0019|     of two weeks;
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0020|                    (2)  upon a second violation of this
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0021|     subsection, the privilege to sell alcoholic beverages or any
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0022|     other goods from his drive-up window suspended by the director
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0023|     for a period of thirty days;
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0024|                    (3)  upon a third violation of this subsection,
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0025|     the privilege to sell alcoholic beverages or any other goods
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0001|     from his drive-up window suspended by the director for a period
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0002|     of sixty days; and
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0003|                    (4)  upon a fourth violation of this subsection
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0004|     within two years of any other violations of Section 60-7A-16 or
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0005|     60-7B-1 NMSA 1978, the privilege to sell alcoholic beverages or
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0006|     any other goods from his drive-up window revoked by the
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0007|     director and the drive-up window permanently closed.
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0008|               D.  Any licensee aggrieved by a revocation,
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0009|     suspension or fine proposed to be imposed by the director
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0010|     pursuant to this section shall be entitled to the hearing
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0011|     procedures set forth in <s>[Article 6C of]</s> Chapter 60, <u>Article
</u>    |
<u></u>0012| <u>    6C</u> NMSA 1978 before the revocation, suspension or fine shall
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0013|     be effective.
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0014|               E.  Any charge filed against a licensee by the
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0015|     department and the resulting disposition of the charge shall be
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0016|     reported to the department of public safety and local law
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0017|     enforcement agencies whose jurisdictions include the licensed
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0018|     establishment."
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0019|          Section 5.  A new section of the Liquor Control Act is
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0020|     enacted to read:
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0021|          "[<u>NEW MATERIAL</u>]  DISPLAY OF LICENSE WITH CURRENT
    |
0022|     PHOTOGRAPH.--It is a violation of the Liquor Control Act for a
    |
0023|     licensee not to post in a conspicuous place on the licensed
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0024|     premises his license that includes a current photograph of the
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0025|     licensee or the licensee's agent who is responsible for
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0001|     operation of the licensed premises."
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0002|                              
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