As used in the Liquor Control Act:
A. "alcoholic beverages" means distilled or rectified spirits, potable alcohol, powdered alcohol, frozen or freeze-dried alcohol, brandy, whiskey, rum, gin and aromatic bitters bearing the federal internal revenue strip stamps or any similar alcoholic beverage, including blended or fermented beverages, dilutions or mixtures of one or more of the foregoing containing more than one-half percent alcohol, but excluding medicinal bitters;
B. "beer" means an alcoholic beverage obtained by the fermentation of any infusion or decoction of barley, malt and hops or other cereals in water, and includes porter, beer, ale and stout;
C. "brewer" means a person who owns or operates a business for the manufacture of beer;
D. "cider" means an alcoholic beverage made from the normal alcoholic fermentation of the juice of sound, ripe apples or pears that contains not less than one-half of one percent alcohol by volume and not more than eight and one-half percent alcohol by volume;
E. "club" means:
(1) any nonprofit group, including an auxiliary or subsidiary group, organized and operated under the laws of this state, with a membership of not less than fifty members who pay membership dues at the rate of not less than five dollars ($5.00) per year and who, under the constitution and bylaws of the club, have all voting rights and full membership privileges, and which group is the owner, lessee or occupant of premises used exclusively for club purposes and which group the director finds:
(a) is operated solely for recreation, social, patriotic, political, benevolent or athletic purposes; and
(b) has been granted an exemption by the United States from the payment of the federal income tax as a club under the provisions of Section 501(a) of the Internal Revenue Code of 1986, as amended, or, if the applicant has not operated as a club for a sufficient time to be eligible for the income tax exemption, it must execute and file with the director a sworn letter of intent declaring that it will, in good faith, apply for an income tax exemption as soon as it is eligible; or
(2) an airline passenger membership club operated by an air common carrier that maintains or operates a clubroom at an international airport terminal. As used in this paragraph, "air common carrier" means a person engaged in regularly scheduled air transportation between fixed termini under a certificate of public convenience and necessity issued by the federal aviation administration;
F. "commission" means the secretary of public safety when the term is used in reference to the enforcement and investigatory provisions of the Liquor Control Act and means the superintendent of regulation and licensing when the term is used in reference to the licensing provisions of the Liquor Control Act;
G. "department" means the New Mexico state police division of the department of public safety when the term is used in reference to the enforcement and investigatory provisions of the Liquor Control Act and means the director of the alcoholic beverage control division of the regulation and licensing department when the term is used in reference to the licensing provisions of the Liquor Control Act;
H. "director" means the chief of the New Mexico state police division of the department of public safety when the term is used in reference to the enforcement and investigatory provisions of the Liquor Control Act and means the director of the alcoholic beverage control division of the regulation and licensing department when the term is used in reference to the licensing provisions of the Liquor Control Act;
I. "dispenser" means a person licensed under the provisions of the Liquor Control Act selling, offering for sale or having in the person's possession with the intent to sell alcoholic beverages both by the drink for consumption on the licensed premises and in unbroken packages, including growlers, for consumption and not for resale off the licensed premises;
J. "distiller" means a person engaged in manufacturing spirituous liquors;
K. "golf course" means a tract of land and facilities used for playing golf and other recreational activities that includes tees, fairways, greens, hazards, putting greens, driving ranges, recreational facilities, patios, pro shops, cart paths and public and private roads that are located within the tract of land;
L. "governing body" means the board of county commissioners of a county or the city council or city commissioners of a municipality;
M. "growler" means a clean, refillable, resealable container that has a liquid capacity that does not exceed one gallon and that is intended and used for the sale of beer, wine or cider for consumption off premises;
N. "hotel" means an establishment or complex having a resident of New Mexico as a proprietor or manager and where, in consideration of payment, meals and lodging are regularly furnished to the general public. The establishment or complex must maintain for the use of its guests a minimum of twenty-five sleeping rooms;
O. "licensed premises" means the contiguous areas or areas connected by indoor passageways of a structure and the outside dining, recreation and lounge areas of the structure and the grounds and vineyards of a structure that is a winery that are under the direct control of the licensee and from which the licensee is authorized to sell, serve or allow the consumption of alcoholic beverages under the provisions of its license; provided that in the case of a restaurant, "licensed premises" includes a restaurant that has operated continuously in two separate structures since July 1, 1987 and that is located in a local option district that has voted to disapprove the transfer of liquor licenses into that local option district, hotel, golf course, ski area or racetrack and all public and private rooms, facilities and areas in which alcoholic beverages are sold or served in the customary operating procedures of the restaurant, hotel, golf course, ski area or racetrack. "Licensed premises" also includes rural dispenser licenses located in the unincorporated areas of a county with a population of less than thirty thousand, located in buildings in existence as of January 1, 2012, that are within one hundred fifty feet of one another and that are under the direct control of the license holder;
P. "local option district" means a county that has voted to approve the sale, serving or public consumption of alcoholic beverages, or an incorporated municipality that falls within a county that has voted to approve the sale, serving or public consumption of alcoholic beverages, or an incorporated municipality of over five thousand population that has independently voted to approve the sale, serving or public consumption of alcoholic beverages under the terms of the Liquor Control Act or any former act;
Q. "manufacturer" means a distiller, rectifier, brewer or winer;
R. "minor" means a person under twenty-one years of age;
S. "package" means an immediate container of alcoholic beverages that is filled or packed by a manufacturer or wine bottler for sale by the manufacturer or wine bottler to wholesalers;
T. "person" means an individual, corporation, firm, partnership, copartnership, association or other legal entity;
U. "rectifier" means a person who blends, mixes or distills alcohol with other liquids or substances for the purpose of making an alcoholic beverage for the purpose of sale other than to the consumer by the drink, and includes all bottlers of spirituous liquors;
V. "restaurant" means an establishment having a New Mexico resident as a proprietor or manager that is held out to the public as a place where meals are prepared and served primarily for on-premises consumption to the general public in consideration of payment and that has a dining room, a kitchen and the employees necessary for preparing, cooking and serving meals; provided that "restaurant" does not include establishments as defined in rules promulgated by the director serving only hamburgers, sandwiches, salads and other fast foods;
W. "retailer" means a person licensed under the provisions of the Liquor Control Act selling, offering for sale or having in the person's possession with the intent to sell alcoholic beverages in unbroken packages, including growlers, for consumption and not for resale off the licensed premises;
X. "ski area" means a tract of land and facilities for the primary purpose of alpine skiing, snowboarding or other snow sports with trails, parks and at least one chairlift with uphill capacity and may include facilities necessary for other seasonal or year-round recreational activities;
Y. "spirituous liquors" means alcoholic beverages as defined in Subsection A of this section except fermented beverages such as wine, beer, cider and ale;
Z. "wholesaler" means a person whose place of business is located in New Mexico and who sells, offers for sale or possesses for the purpose of sale any alcoholic beverages for resale by the purchaser;
AA. "wine" includes the words "fruit juices" and means alcoholic beverages obtained by the fermentation of the natural sugar contained in fruit or other agricultural products, with or without the addition of sugar or other products, that do not contain less than one-half percent nor more than twenty-one percent alcohol by volume;
BB. "wine bottler" means a New Mexico wholesaler who is licensed to sell wine at wholesale for resale only and who buys wine in bulk and bottles it for wholesale resale;
CC. "winegrower" means a person who owns or operates a business for the manufacture of wine or cider;
DD. "winer" means a winegrower; and
EE. "winery" means a facility in which a winegrower manufactures and stores wine or cider.
History: Laws 1981, ch. 39, § 3; 1984, ch. 58, § 1; 1987, ch. 254, § 23; 1998, ch. 109, § 1; 1999, ch. 64, § 1; 2001, ch. 86, § 2; 2004, ch. 22, § 1; 2009, ch. 139, § 1; 2012, ch. 25, § 1; 2015, ch. 3, § 28; 2015, ch. 102, § 2; 2016, ch. 73, § 1; 2016, ch. 76, § 1; 2019, ch. 29, § 2; 2019, ch. 229, § 3.
ANNOTATIONSCross references. — For Section 501(a) of the Internal Revenue Code of 1986, see 26 U.S.C. § 501(a).
2019 Multiple Amendments. — Laws 2019, ch. 29, § 2, effective June 14, 2019, and Laws 2019, ch. 229, § 3, effective July 1, 2019, enacted different amendments to this section that can be reconciled. Pursuant to 12-1-8 NMSA 1978, Laws 2019, ch. 229, § 3, as the last act signed by the governor, is set out above and incorporates both amendments. The amendments enacted by Laws 2019, ch. 29, § 2 and Laws 2019, ch. 229, § 3 are described below. To view the session laws in their entirety, see the 2019 session laws on NMOneSource.com.
The nature of the difference between the amendments is that Laws 2019, ch. 29, § 2, renamed the alcohol and gaming division to the alcoholic beverage control division, and Laws 2019, ch. 229, § 3, revised the definition of "cider" as used in the Liquor Control Act, and included cider in the definition of certain terms.
Laws 2019, ch. 29, § 2, effective June 14, 2019, renamed the alcohol and gaming division to the alcoholic beverage control division; in Subsection G, after "director of the", deleted "alcohol and gaming" and added "alcoholic beverage control"; and in Subsection H, after "director of the", deleted "alcohol and gaming" and added "alcoholic beverage control".
Laws 2019, ch. 229, § 3, effective July 1, 2019, revised the definition of "cider" as used in the Liquor Control Act, and included cider in the definition of certain terms; in Subsection D, after "ripe apples", added "or pears", and after "not more than", deleted "seven" and added "eight and one-half"; in Subsection Y, after "beer,", added "cider"; in Subsection CC, after "manufacture of wine", added "or cider"; and in Subsection EE, after "stores wine", added "or cider".
2016 Multiple Amendments. — Laws 2016, ch. 76, § 1, effective May 18, 2016, defined "ski area" as used in the Liquor Control Act and included "ski area" within the definition of "licensed premises", from which a licensee is authorized to sell, serve or allow the consumption of alcoholic beverages; in Subsection O, after each occurrence of "golf course,", added "ski area"; and added Subsection X and redesignated the succeeding subsections accordingly.
Laws 2016, ch. 73, § 1, effective July 1, 2016, included "growlers" within the definitions of "dispenser" and "retailer", allowing dispensers and retailers to sell alcoholic beverages in growlers; in Subsection I, after "unbroken packages,", added "including growlers"; and in Subsection W, after "unbroken packages", added "including growlers".
2015 Multiple Amendments. — Laws 2015, ch. 102, § 2, effective July 1, 2015, in Subsection A, after "potable alcohol," added "powdered alcohol, frozen or freeze-dried alcohol; added Subsection D and redesignated former Subsections E through K as Subsections F through L, respectively; and added Subsection M and redesignated the remaining subsections accordingly.
Laws 2015, ch. 3, § 28, effective July 1, 2015, in Subsection F, after "'department' means the", deleted "special investigations" and added "New Mexico state police"; in Subsection G, after "'director' means the", deleted "director" and added "chief"; and after the present language "chief of the", deleted "special investigations" and added "New Mexico state police".
The 2012 amendment, effective May 16, 2012, clarified the meaning of "licensed premises" to include certain rural dispenser licenses; in Subsection M, in the first sentence after "in the case of a restaurant", deleted "including" and added "'licensed premises' includes", and after "golf course or racetrack", deleted "'licensed premises' includes" and added "and"; and added the last sentence.
The 2009 amendment, effective June 19, 2009, in Subsection M, after "lounge areas of the structure", added "and the grounds and vineyards of a structure that is a winery"; and added Subsection BB.
The 2004 amendment, effective February 28, 2004, amended Subsection M to add after "a restaurant", "including a restaurant that has operated continuously in two separate structures since July 1, 1987 and that is located in a local option district that has voted to disapprove the transfer of liquor licenses into that local option district".
The 2001 amendment, effective July 1, 2001, substituted "director of the alcohol and gaming division of the regulation and licensing department" for "superintendent of regulation and licensing" in Subsections F and G, and made stylistic changes throughout the section.
The 1999 amendment, effective July 1, 1999, added Subsection J, redesignated former Subsections J through Z as Subsections K through AA, inserted "golf course" in two places in Subsection M, and made minor stylistic changes.
The 1998 amendment, effective July 1, 1998, substituted "1986" for "1954" near the middle of Paragraph D(1)(b); in Subsections F and G inserted "department of" near the beginning and deleted "department" following "safety"; made a minor stylistic change in Subsections X and Y; substituted "winegrower" for "winer" at the beginning of Subsection Y; and added Subsection Z.
Section classifies "beverages" as alcoholic without regard to minimum contents. — This section classifies all distilled or rectified spirits, potable alcohol, brandy, whiskey, rum, gin, aromatic bitters bearing the federal internal revenue strip stamps or any similar alcoholic beverage, including all blended or fermented beverages, as alcoholic liquors without regard to minimum alcoholic contents. "Beer" is classified as any alcoholic beverage obtained by fermentation. State v. Spahr, 1958-NMSC-103, 64 N.M. 395, 328 P.2d 1093.
Finding beyond reasonable doubt that beer met definition not required. — Trial court committed no fundamental error when it failed on its own motion to instruct the jury they must find beyond a reasonable doubt the beer claimed to have been sold contained more than one-half of one percent of alcohol which is the statutory definition of alcoholic liquor as it relates to beer. State v. Baize, 1958-NMSC-064, 64 N.M. 168, 326 P.2d 367.
Nor instruction to find beyond reasonable doubt required. — The refusal of the court to instruct the jury they must find beyond a reasonable doubt that beer alleged to have been sold contained more than one-half of one percent alcohol was not error. State v. Spahr, 1958-NMSC-103, 64 N.M. 395, 328 P.2d 1093.
Meaning of "dispenser". — Dispenser is any person "selling, offering for sale or having in his possession with intent to sell, alcoholic liquors by the drink or in packages" and a dispenser "sells" by the drink, not just "serves," and the word "sell" is not limited to liquor in packages. State ex rel. Maloney v. Sierra, 1970-NMSC-144, 82 N.M. 125, 477 P.2d 301.
"Licensed premises". — Since this section limits the use of the license only to the "licensed premises," this section will not permit the licensing of two or more totally independent structures under a single liquor license where one of the structures is already licensed as a full service lounge and the licensee proposes to operate a restaurant which would provide full service liquor sales in another structure located several hundred yards away from the lounge. 1987 Op. Att'y Gen. No. 87-10.
Electoral history determines whether city and county separate "local option districts". — In order for a city to constitute a separate local option district, it is essential that the city have a population in excess of five thousand residents and that the city have voted in favor of the sale of alcoholic liquors within its distinct limits, and will depend on the electoral history of the governmental subdivisions with respect to the approval of the sale of alcoholic liquors within their respective geographical limits. 1971 Op. Att'y Gen. No. 71-116, overruled by 1982 Op. Att'y Gen. No. 82-15.
Veterans' clubs qualify for "club" license. — Legally constituted chapters of the American Legion and the Veterans of Foreign Wars do qualify for the issuance of a "club" license under this section. 1959 Op. Att'y Gen. No. 59-118.
Meaning of "beverage". — Fitness for beverage purposes is an essential attribute of intoxicating liquor, and, notwithstanding a liquor contains the requisite amount of alcohol, it is not an intoxicating liquor if it is unfit for beverage purposes. The word "beverage," as used in the statutes relating to intoxicating liquors, means a liquor that is capable of being drunk, and, in determining whether a liquor is capable of being used as a beverage, the test applied is not limited to the case of an average individual with average tastes. 1959 Op. Att'y Gen. No. 59-190.
Alcoholic concoction within scope of liquor laws if "beverage". — In order to permit salted (cooking) wines to be sold in food store outlets without the payment of excise tax, the question must first be, either judicially or administratively, determined: "is the concoction in question capable of being used as a beverage?" If the answer is in the affirmative, then because of its alcoholic content, it would definitely be within the scope of the law pertaining to the sale of alcoholic liquors. If the question is answered in the negative, then no liquor tax would have to be paid on it and the product could be marketed in food stores without a license. 1959 Op. Att'y Gen. No. 59-190.
Meaning of "package". — In keeping with the usages expressed by and implied from the term "package," such refers to the individual bottles, cans or crocks, as the case may be. 1957 Op. Att'y Gen. No. 57-243.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 45 Am. Jur. 2d Intoxicating Liquors §§ 9, 22.
Right of state to interfere with shipment of liquor through its territory, 27 A.L.R. 108.
Forbidding prescription, or restricting the amount, of intoxicating liquor for medicinal purposes, 49 A.L.R. 588.
What is a "meal" within contemplation of constitutional or statutory provisions relating to intoxicating liquors, 93 A.L.R. 962.
What amounts to "restaurant" or "restaurant business" within intoxicating liquor law, 105 A.L.R. 566.
State statute or ordinance prohibiting or regulating transportation of intoxicating liquor as interference with interstate commerce, 110 A.L.R. 931, 138 A.L.R. 1150.
Reasonableness of statutory or local regulations prohibiting sale or license for sale of intoxicating liquors within prescribed distance from church, school or other institution, 119 A.L.R. 643.
Constitutionality of statute providing for sale of intoxicating liquor by a state or state agencies, 121 A.L.R. 300.
Constitutionality, construction, and application of statutes designed to prevent or limit control of retail liquor dealers by manufacturers, wholesalers, or importers, 136 A.L.R. 1238.
Validity, construction, and application of statute or ordinance requiring closing, during certain hours, of places where intoxicating liquor is sold, as affected by fact that such places are also used for other business, 139 A.L.R. 756.
Regulations regarding bringing into state intoxicating liquor intended for personal use of consignee or carrier, 155 A.L.R. 816.
Construction and application of constitutional or statutory provision respecting taxation or regulation of sale or purchase of food or drink for consumption off the premises, 167 A.L.R. 206.
"Grandfather clause" of statute or ordinance, 4 A.L.R.2d 667.
Construction and application of statute or ordinance respecting amusements on premises licensed for sale of intoxicating liquor, 4 A.L.R.2d 1216.
Sale of liquor to women, 9 A.L.R.2d 541.
Zoning regulations in respect of intoxicating liquors, 9 A.L.R.2d 877, 65 A.L.R.4th 555.
Price regulation, 14 A.L.R.2d 699.
"School," "schoolhouse," or the like within statute prohibiting liquor sales within specified distance thereof, 49 A.L.R.2d 1103.
"Church" or the like, within statute prohibiting liquor sales within specified distance thereof, 59 A.L.R.2d 1439.
Regulations forbidding employees or entertainers from drinking or mingling with patrons, or soliciting drinks from them, 99 A.L.R.2d 1216.
Measurement of distances for purposes of enactment prohibiting sale, or license for sale, of intoxicating liquor within given distance from church, university, school, or other institution or property as base, 4 A.L.R.3d 1250.
Validity and construction of statute or ordinance respecting employment of women in places where intoxicating liquors are sold, 46 A.L.R.3d 369.
Validity of statute or ordinance making it an offense to consume or have alcoholic beverages in open package in motor vehicle, 57 A.L.R.3d 1071.
Validity, construction, and effect of statutes, ordinances or regulations prohibiting or regulating advertising of intoxication liquors, 20 A.L.R.4th 600.
48 C.J.S. Intoxicating Liquors §§ 1, 29, 35.