0001|                           SENATE BILL 167
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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|                             DEDE FELDMAN
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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; PROVIDING THE GOVERNING BODY
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0012|     OF A LOCAL OPTION DISTRICT WITH STANDING TO APPEAL A DECISION
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0013|     OF THE SUPERINTENDENT OF REGULATION AND LICENSING REGARDING
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0014|     ISSUANCE OR TRANSFER OF A LICENSE; REQUIRING THE SUPERINTENDENT
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0015|     TO PROVIDE NOTICE OF HIS DECISION; AMENDING SECTIONS OF THE
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0016|     LIQUOR CONTROL ACT.
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0017|     
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0018|     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0019|          Section 1.  Section 60-6B-2 NMSA 1978 (being Laws 1981,
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0020|     Chapter 39, Section 38, as amended) is amended to read:
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0021|          "60-6B-2.  APPLICATIONS.--
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0022|               A.  Before any new license authorized by the Liquor
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0023|     Control Act may be issued by the director, the applicant for
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0024|     the license shall:
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0025|                    (1)  submit to the director a written
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0001|     application for the license under oath, in the form prescribed
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0002|     by and stating the information required by the director,
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0003|     together with a nonrefundable application fee of one hundred
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0004|     fifty dollars ($150); 
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0005|                    (2)  submit to the director for his approval a
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0006|     description, including floor plans, in a form prescribed by the
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0007|     director, which shows the proposed licensed premises for which
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0008|     the license application is submitted.  The area represented by
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0009|     the approved description shall become the licensed premises;
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0010|                    (3)  if the applicant is a corporation, be
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0011|     required to submit as part of its application the following:
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0012|                         (a)  a certified copy of its articles of
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0013|     incorporation or, if a foreign corporation, a certified copy of
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0014|     its certificate of authority;
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0015|                         (b)  the names and addresses of all
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0016|     officers and directors and those stockholders owning ten
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0017|     percent or more of the voting stock of the corporation and the
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0018|     amounts of stock held by each stockholder; provided, however, a
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0019|     corporation may not be licensed if an officer, manager,
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0020|     director or holder of more than ten percent of the stock would
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0021|     not be eligible to hold a license pursuant to the Liquor
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0022|     Control Act, except that the provision of Subsection <s>[B]</s> <u>D</u>
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0023|     of Section 60-6B-1 NMSA 1978 shall not apply if the stock is
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0024|     listed with a national securities exchange;
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0025|                         (c)  the name of the resident agent of
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0001|     the corporation authorized to accept service of process for all
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0002|     purposes, including orders and notices of the director, which
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0003|     agent shall be approved by the director with respect to his
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0004|     character;
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0005|                         (d)  a duly executed power of attorney
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0006|     authorizing the agent described in Subparagraph (c) of this
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0007|     paragraph to exercise full authority, control and
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0008|     responsibility for the conduct of all business and transactions
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0009|     of the corporation within the state relative to the sale of
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0010|     alcoholic beverages under authority of the license requested;
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0011|     and
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0012|                         (e)  such additional information
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0013|     regarding the corporation as the director may require to assure
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0014|     full disclosure of the corporation's structure and financial
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0015|     responsibility;
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0016|                    (4)  if the applicant is a limited partnership,
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0017|     submit as part of its application the following:
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0018|                         (a)  a certified copy of its certificate
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0019|     of limited partnership;
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0020|                         (b)  the names and addresses of all
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0021|     general partners and of all limited partners contributing ten
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0022|     percent or more of the total value of contributions made to the
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0023|     limited partnership or entitled to ten percent or more of the
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0024|     profits earned or other income paid by the limited partnership. 
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0025|     No limited partnership shall receive a license if any partner
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0001|     designated in this subsection would not be eligible to hold a
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0002|     license issued pursuant to the Liquor 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 with
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0010|     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 general
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0013|     partnership, shall file with the application two complete sets
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0014|     of fingerprints of each individual, taken under the supervision
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0015|     of and certified to by an officer of the New Mexico state
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0016|     police, a county sheriff or a municipal chief of police.  If
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0017|     the applicant is a corporation, it shall file two complete sets
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0018|     of fingerprints for each stockholder holding ten percent or
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0019|     more of the outstanding stock, principal officer, director and
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0020|     the agent responsible for the operation of the licensed
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0021|     business.  The fingerprints shall be taken and certified to as
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0022|     provided for an individual or partnership.  If the applicant is
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0023|     a limited partnership, it shall file two complete sets of
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0024|     fingerprints for each general partner and for each limited
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0025|     partner contributing ten percent or more of the total value of
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0001|     contributions made to the limited partnership or entitled to
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0002|     ten percent or more of the profits earned or other compensation
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0003|     by way of income paid by the limited partnership.  The
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0004|     fingerprints shall be taken and certified to as provided for an
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0005|     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 temporary
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0011|     license may be extended by the director for an additional
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0012|     ninety days if the director determines there is not sufficient
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0013|     time to complete the background investigation or obtain reviews
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0014|     of fingerprints from appropriate agencies.  A temporary license
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0015|     shall be surrendered immediately upon order of the director.
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0016|               D.  An applicant who files a false affidavit shall
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0017|     be denied a license.  When the director determines a false
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0018|     affidavit has been filed, he shall refer the matter to the
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0019|     attorney general or district attorney for prosecution of
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0020|     perjury.
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0021|               E.  If an applicant is not a resident of New Mexico,
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0022|     fingerprints may be taken under supervision and certification
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0023|     of comparable officers in the state of residence of the
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0024|     applicant.
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0025|               F.  Before issuing a license, the department shall
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0001|     hold a public hearing within thirty days after receipt of the
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0002|     application pursuant to Subsection <s>[H]</s> <u>K</u> of this section.
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0003|               G.  An application for transfer of ownership shall
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0004|     be filed with the department no later than thirty days after
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0005|     the date a person acquired an ownership interest in a license;
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0006|     shall contain documentation of the actual purchase price paid
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0007|     for the license, and the actual date of sale of the license;
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0008|     and shall be accompanied by a sworn affidavit from the owner of
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0009|     record of the license agreeing to the sale of the license to
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0010|     the applicant as well as attesting to the accuracy of the
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0011|     information required by this section to be filed with the
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0012|     department.  No license shall be transferred unless it will be
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0013|     placed into operation in an actual location within one hundred
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0014|     twenty days of issuance of the license, unless for good cause
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0015|     shown the director grants an additional extension not to exceed
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0016|     one hundred twenty days.
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0017|               H.  Whenever it appears to the director that there
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0018|     will be more applications for new licenses than the available
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0019|     number of new licenses during any time period, a random
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0020|     selection method for the qualification, approval and issuance
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0021|     of new licenses shall be provided by the director.  The random
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0022|     selection method shall allow each applicant an equal
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0023|     opportunity to obtain an available license, provided that all
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0024|     dispenser's and retailer's licenses issued in any calendar year
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0025|     shall be issued to residents of the state.  For the purposes of
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0001|     random selection, the director shall also set a reasonable
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0002|     deadline by which applications for the available licenses shall
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0003|     be filed.  No person shall file more than one application for
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0004|     each available license and no more than three applications per
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0005|     calendar year.
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0006|               I.  After the deadline set in accordance with
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0007|     Subsection H of this section, no more than ten applications per
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0008|     available license shall be selected at random for priority of
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0009|     qualification and approval.  Within thirty days after the
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0010|     random selection for the ten priority positions for each
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0011|     license, a hearing pursuant to Subsection K of this section
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0012|     shall be held to determine the qualifications of the applicant
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0013|     having the highest priority for each available license.  If
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0014|     necessary, such a hearing shall be held on each selected
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0015|     application by priority until a qualified applicant for each
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0016|     available license is approved.  Further random selections for
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0017|     priority positions shall also be held pursuant to this section
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0018|     as necessary.
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0019|               J.  All applications submitted for a license shall
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0020|     expire upon the director's final approval of a qualified
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0021|     applicant for that available license.
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0022|               K.  The director shall notify the applicant by
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0023|     certified mail of the date, time and place of the hearing.  The
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0024|     hearing shall be held in Santa Fe.  The director may designate
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0025|     a hearing officer to take evidence at the hearing.  The
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0001|     director or the hearing officer shall have the power to
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0002|     administer oaths.        L.  In determining whether a license
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0003|     shall be issued, the director shall take into consideration all
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0004|     requirements of the Liquor Control Act.  In the issuance of a
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0005|     license, the director shall specifically consider the nature
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0006|     and number of prior violations of the Liquor Control Act by the
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0007|     applicant or of any citations issued within the prior five
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0008|     years against a license held by the applicant or in which the
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0009|     applicant had an ownership interest required to be disclosed
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0010|     under the Liquor Control Act.  The director shall disapprove
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0011|     the issuance or give preliminary approval of the issuance of
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0012|     the license based upon a review of all documentation submitted
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0013|     and any investigation deemed necessary by the director.
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0014|               M.  Before any new license is issued for a location,
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0015|     the director shall cause a notice of the application therefor
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0016|     to be posted conspicuously, on a sign not smaller than thirty
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0017|     inches by forty inches, on the outside of the front wall or
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0018|     front entrance of the immediate premises for which the license
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0019|     is sought or, if no building or improvements exist on the
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0020|     premises, the notice shall be posted at the front entrance of
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0021|     the immediate premises for which the license is sought, on a
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0022|     billboard not smaller than five feet by five feet.  The
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0023|     contents of the notice shall be in the form prescribed by the
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0024|     department, and such posting shall be over a continuous period
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0025|     of twenty days prior to preliminary approval of the license.
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0001|               N.  No license shall be issued until the posting
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0002|     requirements of Subsection M of this section have been met.
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0003|               O.  All costs of publication and posting shall be
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0004|     paid by the applicant.
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0005|               P.  It is unlawful for any person to remove or
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0006|     deface any notice posted in accordance with this section.  Any
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0007|     person convicted of a violation of this subsection shall be
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0008|     punished by a fine of not more than three hundred dollars
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0009|     ($300) or by imprisonment in the county jail for not more than
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0010|     one hundred twenty days or by both.
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0011|               Q.  Any person, <u>including the governing body of a
</u>    |
<u></u>0012| <u>    local option district</u>, aggrieved by any decision made by the
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0013|     director as to the approval or disapproval of the issuance of a
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0014|     license may appeal to the district court of jurisdiction by
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0015|     filing a petition in the court within thirty days from the date
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0016|     of the decision of the director, and a hearing on the matter
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0017|     may be held in the district court.  If the disapproval is based
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0018|     upon local option district disapproval pursuant to Subsection H
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0019|     of Section 60-6B-4 NMSA 1978, the local option district shall
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0020|     be a necessary party to any appeal.  The decision of the
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0021|     director shall continue in force, pending a reversal or
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0022|     modification by the district court, unless otherwise ordered by
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0023|     the court.  Any appeal from the decision of the district court
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0024|     to the supreme court shall be permitted as in other cases of
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0025|     appeals from the district court to the supreme court."
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0001|          Section 2.  Section 60-6B-4 NMSA 1978 (being Laws 1981,
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0002|     Chapter 39, Section 40) is amended to read:
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0003|          "60-6B-4.  ISSUANCE OR TRANSFER OF LICENSE--APPROVAL OF
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0004|     APPROPRIATE GOVERNING BODY.--
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0005|               A.  Prior to the approval of the issuance of a new
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0006|     license, and prior to the approval of any transfer permitted by
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0007|     Section <s>[39 or 113 of the Liquor Control Act]</s> <u>60-6B-3 or
</u>    |
<u></u>0008| <u>    60-6B-12 NMSA 1978</u>, the director shall notify the governing
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0009|     body of his preliminary approval of the issuance or transfer of
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0010|     the license.  Notice to the governing body shall be by
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0011|     certified mail.
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0012|               B.  A governing body <s>[which]</s> <u>that</u> has received a
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0013|     notice of preliminary approval of the issuance or transfer of a
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0014|     license from the department may approve or disapprove the
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0015|     issuance or transfer of the license in accordance with the
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0016|     provisions of this section.
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0017|               C.  Within forty-five days after receipt of a notice
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0018|     of preliminary approval from the department, the governing body
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0019|     shall hold a public hearing on the question of whether the
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0020|     department should approve the proposed issuance or transfer.
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0021|               D.  Notice of the public hearing required by
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0022|     Subsection C of this section shall be given by the governing
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0023|     body by:
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0024|                    (1)  publishing a notice of the date, time and
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0025|     place of the hearing at least once a week for two consecutive
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0001|     weeks in a newspaper of general circulation within the
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0002|     territorial limits of the governing body.  The notice shall set
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0003|     forth:
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0004|                         (a)  the name and address of the
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0005|     licensee;
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0006|                         (b)  the action proposed to be taken by
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0007|     the department;
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0008|                         (c)  the location of the licensee's
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0009|     premises; and
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0010|                         (d)  such other information as may be
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0011|     required by the department; and
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0012|                    (2)  sending a notice by certified mail to the
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0013|     applicant of the date, time and place of the public hearing.
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0014|               E.  The governing body may designate a hearing
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0015|     officer to conduct the hearing.  A record shall be made of the
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0016|     hearing.
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0017|               F.  The governing body may disapprove the issuance
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0018|     or transfer of the license if:
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0019|                    (1)  the proposed location is within an area
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0020|     where the sale of alcoholic beverages is prohibited by the laws
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0021|     of New Mexico;
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0022|                    (2)  the issuance or transfer would be in
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0023|     violation of a zoning or other ordinance of the governing body;
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0024|     or
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0025|                    (3)  the issuance or transfer would be
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0001|     detrimental to the public health, safety or morals of the
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0002|     residents of the local option district.
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0003|               G.  Within thirty days after the public hearing, the
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0004|     governing body shall notify the department as to whether the
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0005|     governing body has approved or disapproved the proposed
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0006|     issuance or transfer of the license.  If the governing body
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0007|     fails to either approve or disapprove the issuance or transfer
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0008|     of the license within thirty days after the public hearing, the
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0009|     director may give final approval to the issuance or transfer of
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0010|     the license.
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0011|               H.  If the governing body disapproves the issuance
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0012|     or transfer of the license, it shall notify the department
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0013|     within the time required by Subsection G of this section
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0014|     setting forth the reasons for the disapproval.  A copy of the
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0015|     minutes of the public hearing shall be submitted to the
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0016|     department by the governing body with the notice of
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0017|     disapproval.  If the governing body disapproves of the issuance
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0018|     or transfer of the license, the director shall disapprove the
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0019|     issuance or transfer of the license.
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0020|               I.  If the governing body approves the issuance or
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0021|     transfer of the license, it shall notify the department within
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0022|     the time required by Subsection G of this section of its
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0023|     approval.  If the governing body approves of the issuance or
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0024|     transfer of the license, the director shall approve the
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0025|     issuance or transfer of the license.
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0001|               <u>J.  Within five days of the director's decision to
</u>    |
<u></u>0002| <u>    approve or disapprove the issuance or transfer of a license,
</u>    |
<u></u>0003| <u>    the director shall notify the governing body of his decision. 
</u>    |
<u></u>0004| <u>    The director shall provide notice to the governing body by
</u>    |
<u></u>0005| <u>    certified mail</u>."
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0006|          Section 3.  EFFECTIVE DATE.--The effective date of the
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0007|     provisions of this act is July 1, 1997.
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0008|                                  
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0009|       
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0010|   
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0011|                      FORTY-THIRD LEGISLATURE
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0012|                        FIRST SESSION, 1997
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0013|   
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0014|   
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0015|                                                February 3, 1997
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0016|   
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0017|   Mr. President:
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0018|   
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0019|       Your JUDICIARY COMMITTEE, to whom has been referred
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0020|   
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0021|                          SENATE BILL 167
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0022|   
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0023|   has had it under consideration and reports same with
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0024|   recommendation that it DO PASS, and thence referred to the
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0025|   PUBLIC AFFAIRS COMMITTEE.
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0001|   
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0002|                                Respectfully submitted,
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0003|   
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0004|   
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0005|   
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0006|                                
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0007|   __________________________________
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0008|                                Fernando R. Macias, Chairman 
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0009|   
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0010|   
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0011|   
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0012|   Adopted_______________________   Not
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0013|   Adopted_______________________
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0014|             (Chief Clerk)                          (Chief Clerk)
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0015|   
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0016|   
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0017|                     Date ________________________
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0018|   
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0019|   
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0020|   The roll call vote was <u> 5 </u> For <u> 0 </u> Against
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0021|           Yes:    5
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0022|           No:     None
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0023|                Excused:     Sanchez, Tsosie, Vernon
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0024|           Absent: None
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0025|   
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0001|   
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0002|   S0167JU1
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0003|   
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0004|     
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0005|   
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0006|                      FORTY-THIRD LEGISLATURE
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0007|                        FIRST SESSION, 1997
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0008|   
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0009|   
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0010|                                                  March 14, 1997
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0011|   
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0012|   Mr. President:
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0013|   
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0014|       Your PUBLIC AFFAIRS COMMITTEE, to whom has been
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0015|   referred
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0016|   
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0017|                          SENATE BILL 167
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0018|   
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0019|   has had it under consideration and reports same with
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0020|   recommendation that it DO PASS.
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0021|   
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0022|                                Respectfully submitted,
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0023|   
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0024|   
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0025|   
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0001|                                
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0002|   __________________________________
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0003|                                Shannon Robinson, Chairman 
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0004|   
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0005|   
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0006|   
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0007|   Adopted_______________________   Not
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0008|   Adopted_______________________
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0009|             (Chief Clerk)                          (Chief Clerk)
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0010|   
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0011|   
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0012|   
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0013|                     Date ________________________
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0014|   
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0015|   
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0016|   The roll call vote was <u> 5 </u> For <u> 0 </u> Against
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0017|           Yes:    5
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0018|           No:     0
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0019|                Excused:     Garcia, Vernon, Rodarte, Smith

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0020|           Absent: None
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0021|   
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0022|   
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0023|   S0167PA1
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