2019 New Mexico Statutes
Chapter 60 - Business Licenses
Article 6B - License Provisions
Section 60-6B-2 - Applications.
A. Before a new license authorized by the Liquor Control Act [60-3A-1 NMSA 1978] may be issued by the director, the applicant for the license shall:
(1) submit to the director a written application for the license under oath, in the form prescribed by and stating the information required by the director, together with a nonrefundable application fee of two hundred dollars ($200);
(2) submit to the director for approval a description, including floor plans, in a form prescribed by the director, that shows the proposed licensed premises for which the license application is submitted. The area represented by the approved description shall become the licensed premises;
(3) submit the name and street address of a New Mexico resident who is not a felon, who has power of attorney and authority to bind the applicant to matters related to liquor sales and operations and upon whom the director may serve any notice related to ownership or operation of the license, including any notice of charge pursuant to Chapter 60, Article 6C NMSA 1978;
(4) if the applicant is a corporation, be required to submit as part of its application the following:
(a) a certified copy of its articles of incorporation or, if a foreign corporation, a certified copy of its certificate of authority;
(b) the names and addresses of all officers and directors and those stockholders owning ten percent or more of the voting stock of the corporation and the amounts of stock held by each stockholder; provided, however, a corporation may not be licensed if an officer, manager, director or holder of more than a ten percent interest in the applicant entity would not be eligible to hold a license pursuant to the Liquor Control Act; and
(c) such additional information regarding the corporation as the director may require to assure full disclosure of the corporation's structure and financial responsibility;
(5) if the applicant is a limited partnership, submit as part of its application the following:
(a) a certified copy of its certificate of limited partnership;
(b) the names and addresses of all general partners and of all limited partners contributing ten percent or more of the total value of contributions made to the limited partnership or entitled to ten percent or more of the profits earned or other income paid by the limited partnership. A limited partnership shall not receive a license if a partner or holder of a ten percent or greater interest in the applicant entity designated in this subsection would not be eligible to hold a license issued pursuant to the Liquor Control Act; and
(c) such additional information regarding the limited partnership as the director may require to assure full disclosure of the limited partnership's structure and financial responsibility;
(6) if the applicant is a limited liability company, submit as part of its application the following:
(a) a copy of the articles of organization, with a copy of the certificate of filing with the public regulation commission;
(b) the name and addresses of all the managing members and all of the nonmanaging members that own a greater than ten percent interest in the limited liability company. Any direct or indirect parent entity of the limited liability company with an interest of ten percent or more in the applicant entity shall submit application forms and qualify to hold a license; and
(c) such additional information regarding the limited liability company as the director may require to assure full disclosure of the limited liability company's structure and financial responsibility;
(7) if the applicant is a trust, submit as part of its application:
(a) the names and addresses of the trustees;
(b) the names and addresses of any beneficiaries having control over the property of the trust or receiving regular and substantial distributions of principal and income from the trust. Any beneficiary receiving regular and substantial distributions from the trust shall qualify to hold a license. The director may request a copy of the trust agreement for review, which trust agreement need not become part of the application. Affidavits as to the operation and distribution of the principal and income may be requested in lieu of, or in addition to, the copy of the trust agreement that is supplied for review by the department; and
(c) such additional information regarding the trust as the director may require to assure full disclosure of the trust's structure and financial responsibility; and
(8) obtain approval for the issuance from the governing body of the local option district in which the proposed licensed premises are to be located in accordance with the provisions of the Liquor Control Act.
B. Except for individual officers, directors, shareholders, members or partners of entities that are publicly traded on a national stock exchange and for individuals who have been fingerprinted for another New Mexico license and had no prior criminal or arrest record, every applicant for a new license or for a transfer of ownership of a license shall file with the application two complete sets of fingerprints taken under the supervision of and certified to by an officer of the New Mexico state police, a county sheriff, a municipal chief of police, a police officer in a foreign country or an individual qualified to take fingerprints by virtue of training or experience, for each of the following individuals:
(1) if the applicant is a person, for the applicant;
(2) if the applicant or the holder of a ten percent or greater interest in the applicant entity is a corporation, for each principal officer, for each member of the board of directors and for each stockholder with a ten percent or greater interest in the applicant entity;
(3) if the applicant or the holder of a ten percent or greater interest in the applicant entity is a general partnership, for each partner;
(4) if the applicant or the holder of a ten percent or greater interest in the applicant entity is a limited partnership, for each general partner, for each limited partner holding a ten percent or greater interest in the applicant entity and for any principal officers of the limited partnership;
(5) if the applicant or the holder of a ten percent or greater interest in the applicant entity is a limited liability company, for each managing member, for each member who owns a ten percent or greater interest in the applicant entity and for any principal officer of the limited liability company; and
(6) if the applicant is a trust, for each trustee and for each beneficiary who has control over trust property and income or who receives substantial and regular distributions from the trust.
C. Upon submission of a sworn affidavit from each person who is required to file fingerprints stating that the person has not been convicted of a felony in any jurisdiction and pending the results of background investigations, a temporary license for ninety days may be issued. The temporary license may be extended by the director for an additional ninety days if the director determines there is not sufficient time to complete the background investigation or obtain reviews of fingerprints from appropriate agencies. A temporary license shall be surrendered immediately upon order of the director.
D. An applicant who files a false affidavit shall be denied a license. When the director determines a false affidavit has been filed, the director shall refer the matter to the attorney general or district attorney for prosecution of perjury.
E. If an applicant is not a resident of New Mexico, fingerprints may be taken under supervision and certification of comparable officers in the state of residence of the applicant.
F. Before issuing a license, the department shall hold a public hearing within thirty days after receipt of the application pursuant to Subsection K of this section.
G. An application for transfer of ownership shall be filed with the department no later than thirty days after the date a person acquired an ownership interest in a license. It shall contain the actual date of sale of the license and shall be accompanied by a sworn affidavit from the owner of record of the license agreeing to the sale of the license to the applicant as well as attesting to the accuracy of the information required by this section to be filed with the department. A license shall not be transferred unless it will be placed into operation in an actual location within one hundred twenty days of issuance of the license, unless for good cause shown the director grants an additional extension for a length of time determined by the director.
H. Whenever it appears to the director that there will be more applications for new licenses than the available number of new licenses during any time period, a random selection method for the qualification, approval and issuance of new licenses shall be provided by the director. The random selection method shall allow each applicant an equal opportunity to obtain an available license, provided that all dispenser's and retailer's licenses issued in a calendar year shall be issued to residents of the state. For the purposes of random selection, the director shall also set a reasonable deadline by which applications for the available licenses shall be filed. A person shall not file more than one application for each available license and no more than three applications per calendar year.
I. After the deadline set in accordance with Subsection H of this section, no more than ten applications per available license shall be selected at random for priority of qualification and approval. Within thirty days after the random selection for the ten priority positions for each license, a hearing pursuant to Subsection K of this section shall be held to determine the qualifications of the applicant having the highest priority for each available license. If necessary, such a hearing shall be held on each selected application by priority until a qualified applicant for each available license is approved. Further random selections for priority positions shall also be held pursuant to this section as necessary.
J. All applications submitted for a license shall expire upon the director's final approval of a qualified applicant for that available license.
K. The director shall notify the applicant by certified mail of the date, time and place of the hearing. The hearing shall be held in Santa Fe. The director may designate a hearing officer to take evidence at the hearing. The director or the hearing officer shall have the power to administer oaths.
L. In determining whether a license shall be issued, the director shall take into consideration all requirements of the Liquor Control Act. In the issuance of a license, the director shall specifically consider the nature and number of prior violations of the Liquor Control Act by the applicant or of any citations issued within the prior five years against a license held by the applicant or in which the applicant had an ownership interest required to be disclosed under the Liquor Control Act. The director shall disapprove the issuance or give preliminary approval of the issuance of the license based upon a review of all documentation submitted and any investigation deemed necessary by the director.
M. Before a new license is issued for a location, the director shall cause a notice of the application for the license to be posted conspicuously, on a sign not smaller than thirty inches by forty inches, on the outside of the front wall or front entrance of the immediate premises for which the license is sought or, if no building or improvements exist on the premises, the notice shall be posted at the front entrance of the immediate premises for which the license is sought, on a billboard not smaller than five feet by five feet. The contents of the notice shall be in the form prescribed by the department, and such posting shall be over a continuous period of twenty days prior to preliminary approval of the license. The director shall prescribe the manner in which the posting may be accomplished by the licensee, the licensee's representative or the director's designee.
N. A license shall not be issued until the posting requirements of Subsection M of this section have been met.
O. All costs of publication and posting shall be paid by the applicant.
P. It is unlawful for a person to remove or deface a notice posted in accordance with this section. A person convicted of a violation of this subsection shall be punished by a fine of not more than three hundred dollars ($300) or by imprisonment in the county jail for not more than one hundred twenty days or by both.
Q. A person aggrieved by a decision made by the director as to the approval or disapproval of the issuance of a license may appeal to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978. If the disapproval is based upon local option district disapproval pursuant to Subsection H of Section 60-6B-4 NMSA 1978, the local option district shall be a necessary party to an appeal. The decision of the director shall continue in force, pending a reversal or modification by the district court, unless otherwise ordered by the court.
History: Laws 1981, ch. 39, § 38; 1983, ch. 6, § 1; 1989, ch. 118, § 1; 1993, ch. 329, § 4; 1998, ch. 55, § 1; 1998, ch. 93, § 1; 1999, ch. 265, § 74; 2003, ch. 246, § 2; 2007, ch. 220, § 1.
ANNOTATIONSCross references. — For definitions of "department" and "director," see 60-3A-3 NMSA 1978.
For the Parental Responsibility Act, see Chapter 40, Article 5A NMSA 1978.
For procedures governing administrative appeals to the district court, see Rule 1-074 NMRA.
The 2007 amendment, effective June 15, 2007, added Paragraph (3) of Subsection A; eliminated the exception that corporations whose stock is listed on a national securities exchange do not have to provide the names and addresses of officers and directors and stockholders; eliminated from Paragraph (3) of Subsection A the requirement that a corporation state the name of its resident agent and the requirement that a power of attorney authorize the resident agent to conduct the corporation's business in New Mexico; adds Paragraphs (6) and (7) of Subsection A; excepted certain persons from the requirement to submit fingerprints; and added Paragraphs (1) through (6) of Subsection B.
The 2003 amendment, effective July 1, 2003, substituted "two hundred dollars ($200)" for "one hundred fifty dollars ($150)" in Paragraph A(1).
The 1999 amendment, effective July 1, 1999, in Subsection Q, substituted "pursuant to the provisions of Section 39-3-1.1 NMSA 1978" for "pursuant to the provisions of Section 12-8A-1 NMSA 1978."
1998 amendments. — Laws 1998, ch. 55, § 71, amending Subsection Q to provide for appeals pursuant to Section 12-8A-1 (compiled as Section 39-3-1.1 NMSA 1978), was approved March 9, 1998. However, Laws 1998, ch. 93, § 1, amending Subsection G by deleting "documentation of the actual purchase price paid for the license" following "shall contain" near the beginning of the second sentence and revising the last sentence to permit the director to grant extensions for a period of time determined by the director, was approved March 10, 1998. The section is set out as amended by Laws 1998, ch. 93, § 1. See 12-1-8 NMSA 1978.
The 1993 amendment, effective June 18, 1993, substituted "shall" for "must" in Subparagraph (c) of Paragraph (3) of Subsection A; deleted the former last sentence of Subsection B, which read: "Licenses may be issued by the department pending the results of any investigation based on the fingerprints submitted"; added present Subsections C, D, and G, redesignating former Subsections C through M accordingly and making related reference changes in Subsections I and O; rewrote the last sentence of Subsection M; deleted "retailer's or dispenser's" before "license" and "where alcoholic beverages are not then being sold" after "location" near the beginning of Subsection N; deleted "the hearing for the" after "prior to" near the end of Subsection N; and added the present second sentence of Subsection R.
Section applies to transfer of license. — Although this section and Section 60-6B-10 NMSA 1978 refer only to a license "issued", the sections apply equally to the transfer of a license; therefore, the decision by the director of the alcohol and gaming division of the department of regulation and licensing granting an application for transfer of a liquor license was reviewable by way of the statutory appeal provided in Subsection M (now Q) of this section. Regents of Univ. of N.M. v. Hughes, 1992-NMSC-049, 114 N.M. 304, 838 P.2d 458.
Posting requirements must be satisfied before license issued. — This section clearly shows that there is no authority on the part of the chief of liquor control (now director of division of alcohol and gaming) to issue any license until the provisions in the statute with reference to posting are fulfilled. Baca v. Grisolano, 1953-NMSC-028, 57 N.M. 176, 256 P.2d 792.
Posting conspicuous notice mandatory. — This section specifies how and where the notice of application shall be posted. It is precise and clear. This statute is mandatory. Baca v. Grisolano, 1953-NMSC-028, 57 N.M. 176, 256 P.2d 792.
"Conspicuous" defined. — The word "conspicuous" means: "Obvious to the eye or mind; plainly visible, manifest, attracting or tending to attract attention, as by reason of size, brilliance, contrast or station." Baca v. Grisolano, 1953-NMSC-028, 57 N.M. 176, 256 P.2d 792.
Meaning of "such posting". — The language "such posting" in the last sentence of former Subsection C (now Subsection M) means that it must be conspicuous and it must be on the front entrance of the immediate premises. Baca v. Grisolano, 1953-NMSC-028, 57 N.M. 176, 256 P.2d 792.
When notice not posted "conspicuously". — A notice was not posted conspicuously where it was posted back on unimproved property at a distance sufficient so that it could not be read by anyone at the edge of the highway and at the fence at the front of the premises but could be read only by those who took the trouble to climb over, or crawl through and go back to the post to read the notice thereon placed. Baca v. Grisolano, 1953-NMSC-028, 57 N.M. 176, 256 P.2d 792.
Purpose of posting requirement. — The purpose behind the requirement that there be a posting of the liquor license application is to give notice to any interested person who may wish to protest it. Yarbrough v. Montoya, 1950-NMSC-006, 54 N.M. 91, 214 P.2d 769.
Protests acceptable in either oral or written form. — As no provision is made for a hearing of the protest of individuals, it seems that this section concerning posting of notice contemplates protests may be in writing or oral. Baca v. Grisolano, 1953-NMSC-028, 57 N.M. 176, 256 P.2d 792; Yarbrough v. Montoya, 1950-NMSC-006, 54 N.M. 91, 214 P.2d 769.
Right of appeal from director's decision limited. — Since a right of appeal exists only with reference to the issuance or refusal to issue of liquor licenses, and appeal does not lie from a decision of the chief of the division of liquor control (now director of alcohol and gaming division) denying application for the change of location in authorized use of the existing license. Taggader v. Montoya, 1949-NMSC-068, 54 N.M. 18, 212 P.2d 1049.
Generally, court cannot modify or overrule director's orders. — As long as the chief of the division of liquor control (now director of alcohol and gaming division) acts within the provisions of the law, courts cannot modify or overrule his administrative orders, or otherwise question the expediency or wisdom shown in issuing or revoking of liquor licenses. Yarbrough v. Montoya, 1950-NMSC-006, 54 N.M. 91, 214 P.2d 769.
District court cannot usurp administrative functions. — The district court does not have the administrative function of determining whether or not a liquor permit should be granted. The Liquor Control Act gives the court authority only to determine whether, upon the facts and law, the action of the official in cancelling the license was based upon an error of law or was unsupported by substantial evidence or clearly arbitrary or capricious; otherwise it would be a delegation of administrative authority to the district court in violation of the constitution. Floeck v. Bureau of Revenue, 1940-NMSC-014, 44 N.M. 194, 100 P.2d 225; Baca v. Grisolano, 1953-NMSC-028, 57 N.M. 176, 256 P.2d 792.
District court cannot pass upon legislative policy. — It is not for the courts to pass upon the wisdom of a legislative policy which removes from the municipality or county a segment of home rule which has long been associated with the liquor traffic. Sprunk v. Ward, 1947-NMSC-060, 51 N.M. 403, 186 P.2d 382.
Court's authority under section is limited to determining whether under the facts and law, the action of the chief (now director of alcohol and gaming division) was based on error of law, was not supported by substantial evidence or was patently arbitrary or capricious. Yarbrough v. Montoya, 1950-NMSC-006, 54 N.M. 91, 214 P.2d 769.
License renewal pending approval. — Where the liquor chief (now director of alcohol and gaming division) had suspended a liquor license, but the district court had set this order aside, the dealer was entitled to a renewal license subject to revocation or termination in case the district court's judgment should be reversed, on appeal. State v. Romero, 1944-NMSC-054, 49 N.M. 127, 158 P.2d 850.
Aggrieved person needs direct interest to obtain relief. — A person aggrieved must be a person having a direct interest, pecuniary or otherwise, one different from the public as a whole. Padilla v. Franklin, 1962-NMSC-083, 70 N.M. 243, 372 P.2d 820.
Aggrieved person must differ from interests of public. — Individual and institutional appellants who did not set forth nor show such a direct or pecuniary interest in the matter in controversy as to make them "aggrieved persons" were not entitled to relief under this section, since their interests in the public health, safety and morals of a community were no different than the interests of the public as a whole. Runyan v. Jaramillo, 1977-NMSC-061, 90 N.M. 629, 567 P.2d 478.
Jurisdiction of appeal from decision of district court. — The court of appeals had original appellate jurisdiction over an order of the division; however, for judicial economy and because the court of appeals requested direction as to the application of case law, the supreme court could decide the merits of the case. City of Santa Fe v. Woodard, 1996-NMSC-058, 122 N.M. 449, 926 P.2d 302.
Standing necessary for appeal. — Present owner of a liquor license which he claimed was within the 10-mile limit which could prevent the issuance of a new license to opposing party, had a direct pecuniary interest as distinguished from the public as a whole, and was an aggrieved person who had standing to appeal the decision of the chief of division of liquor control (now director of alcohol and gaming division). Runyan v. Jaramillo, 1977-NMSC-061, 90 N.M. 629, 567 P.2d 478.
One appealing solely as remonstrant lacks standing. — One who appeals solely as a remonstrant challenging the jurisdiction of the chief of division (now director of alcohol and gaming division) in regard to the issuance of licenses to other applicants has no standing under this section. Padilla v. Franklin, 1962-NMSC-083, 70 N.M. 243, 372 P.2d 820.
Writ of mandamus available as remedy when no right to appeal. — The fact that a city has no right to an appeal does not mean that it cannot bring an action for a writ of mandamus. City of Santa Rosa v. Jaramillo, 1973-NMSC-119, 85 N.M. 747, 517 P.2d 69.
When issuance of writ of mandamus erroneous. — Where a letter from the division of liquor control (now director of alcohol and gaming division) clearly shows that the application had been considered and in fact that the application cannot be processed because the quota of one license to each 2000 people has been more than filled in Rio Arriba county, there can be no doubt this amounted to a final decision on the division's part to refuse the application. A decision is a determination arrived at after consideration, an opinion formed, or a course of action decided upon. The applicant's remedy upon being advised of the decision was by appeal to the district court of Santa Fe county as expressly provided by this section. It follows that the district court erred in entering its judgment ordering the issuance of a peremptory writ of mandamus. Armijo v. Armijo, 1967-NMSC-102, 77 N.M. 742, 427 P.2d 258.
Law reviews. — For comment on Continental Oil Co. v. Oil Conservation Comm'n, 70 N.M. 310, 373 P.2d 809 (1962), see 3 Nat. Resources J. 178 (1963).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 45 Am. Jur. 2d Intoxicating Liquors §§ 160, 183, 187, 189, 190, 192, 194, 195.
Grant or renewal of liquor license as affected by fact that applicant held such license in the past, 2 A.L.R.2d 1239.
Transfer of retail liquor license or permit from one location to another, 98 A.L.R.2d 1123.
48 C.J.S. Intoxicating Liquors §§ 116, 138, 142, 168.
