No license shall be issued by the director for the sale of alcoholic beverages at a licensed premises where alcoholic beverages were not sold prior to July 1, 1981 that is within three hundred feet of any church or school. A license may be granted for a proposed licensed premises if the owner or lessee has, prior to establishment of a church or school located within three hundred feet of the proposed licensed premises, applied for, been granted and maintained a valid building permit for the construction or renovation of the proposed licensed premises and has filed on a form prescribed by the director a notice of intention to apply for transfer of a license to the proposed licensed premises. A license may be granted for a proposed licensed premises if a person has obtained a waiver from a local option district governing body for the proposed licensed premises. For the purposes of this section, all measurements taken in order to determine the location of licensed premises in relation to churches or schools shall be the straight line distance from the property line of the licensed premises to the property line of the church or school. This provision shall not apply to any church that has been designated as an historical site by the cultural properties review committee and which does not have a regular congregation.
History: Laws 1981, ch. 39, § 45; 1986, ch. 29, § 1; 1997, ch. 223, § 1.
ANNOTATIONSCross references. — For cultural properties review committee, see 18-6-4 NMSA 1978.
The 1997 amendment, effective June 20, 1998, deleted "before the effective date of the Liquor Control Act" at the end of the third sentence, deleted the former fourth and fifth sentences relating to a waiver being granted for licensed premises of at least fifteen stories in class A counties after the effective date of that act, and made minor stylistic changes.
The phrase "property line of the licensed premises" in Section 60-6B-10 NMSA 1978 refers to the outer boundary of the licensed premises themselves, that is, the premises actually used to sell, serve, or consume alcohol. City of Santa Fe v. Tomada, 2014-NMCA-022, cert. granted, 2014-NMCERT-001.
Measurement to the boundary of the licensed premises. — Where the straight-line distance from the actual licensed premises to the north boundary of the school grounds was 377.53 feet and the straight-line distance from the boundary of the real property on which the licensed premised was located to the school grounds was 155.05 feet, the location of the licensed premises did not violate the distance prohibition of Section 60-6B-10 NMSA 1978. City of Santa Fe v. Tomada, 2014-NMCA-022, cert. granted, 2014-NMCERT-001.
Section applies to transfer of license. — Although Section 60-6B-2 NMSA 1978 and this section 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 regulation and licensing deparment granting an application for transfer of a liquor license was reviewable by way of the statutory appeal provided in Subsection M (now Q) of 60-6B-2 NMSA 1978. Regents of Univ. of N.M. v. Hughes, 1992-NMSC-049, 114 N.M. 304, 838 P.2d 458.
Functional test to be used. — Courts should apply a functional test to decide whether property located within 300 feet of a proposed licensed premises is or is not a school; however, this does not mean that only the building or other structure used for educational purposes falls within the definition of "school" and that adjacent property, even if used for a parking lot, may not be considered as meeting the functional test: any such adjacent land used for school purposes, which may include the parking of vehicles used by students in attending classes or otherwise participating in educational or instructional activities, may fall within the definition of "school". Regents of Univ. of N.M. v. Hughes, 1992-NMSC-049, 114 N.M. 304, 838 P.2d 458.
Standards for waiver must be defined and uniformly applied. — Any action taken by a home rule municipality to condition its consent to waive the distance requirement of this section must have uniform application to all persons requesting the waiver and must contain definable standards for the imposition of those conditions. 1980 Op. Att'y Gen. No. 80-23.
Waiver may not be conditioned on restriction of operations. — There is no express authority for a local government to limit or restrict the operation of a licensee as a condition for approving the waiver of the distance requirement imposed by this section, nor can such authority be inferred in view of the state's preemptive role in the regulation of liquor establishments. 1980 Op. Att'y Gen. No. 80-23.
To determine proximity of proposed liquor establishment to an established church or school, the measurement should be made between the limits of the real property of the church or school within which the ordinary and usual activities incident to such institutions are conducted and that portion of the structure in which alcoholic beverages are actually to be sold. 1974 Op. Att'y Gen. No. 74-18.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 45 Am. Jur. 2d Intoxicating Liquors §§ 139, 147 to 152, 156.
"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.
Measurement of distance 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.
48 C.J.S. Intoxicating Liquors § 136.