A. Prior to the approval of the issuance of a new license, and prior to the approval of a transfer permitted by Section 60-6B-3 or 60-6B-12 NMSA 1978, the director shall notify the governing body of the director's preliminary approval of the issuance or transfer of the license. Notice to the governing body shall be by certified mail.
B. A governing body that has received a notice of preliminary approval of the issuance or transfer of a license from the department may approve or disapprove the issuance or transfer of the license in accordance with the provisions of this section.
C. Within forty-five days after receipt of a notice of preliminary approval from the department, the governing body shall hold a public hearing on the question of whether the department should approve the proposed issuance or transfer.
D. The governing body shall give notice of the public hearing, as required by Subsection C of this section, and the notice shall:
(1) be published at least twice, with the initial notice published at least thirty days before the hearing, in a newspaper of general circulation within the territorial limits of the governing body;
(2) in addition to required print publication, be published on a local option district's web site, if the district has a web site;
(3) set forth:
(a) the date, time and place of the hearing;
(b) the name and address of the licensee;
(c) the action proposed to be taken by the department;
(d) the location of the licensee's premises; and
(e) such other information as may be required by the department; and
(4) be sent by certified mail to the applicant.
E. The governing body may designate a hearing officer to conduct the hearing. A record shall be made of the hearing.
F. The governing body may disapprove the issuance or transfer of the license if:
(1) the proposed location is within an area where the sale of alcoholic beverages is prohibited by the laws of New Mexico;
(2) the issuance or transfer would be in violation of a zoning or other ordinance of the governing body; or
(3) the issuance or transfer would be detrimental to the public health, safety or morals of the residents of the local option district.
G. Within thirty days after the public hearing, the governing body shall notify the department as to whether the governing body has approved or disapproved the proposed issuance or transfer of the license. If the governing body fails to either approve or disapprove the issuance or transfer of the license within thirty days after the public hearing, the director may give final approval to the issuance or transfer of the license.
H. If the governing body disapproves the issuance or transfer of the license, it shall notify the department within the time required by Subsection G of this section setting forth the reasons for the disapproval. A copy of the minutes of the public hearing shall be submitted to the department by the governing body with the notice of disapproval. If the governing body disapproves of the issuance or transfer of the license, the director shall disapprove the issuance or transfer of the license.
I. If the governing body approves the issuance or transfer of the license, it shall notify the department within the time required by Subsection G of this section of its approval. If the governing body approves of the issuance or transfer of the license, the director shall approve the issuance or transfer of the license.
History: Laws 1981, ch. 39, § 40; 2015, ch. 102, § 6.
ANNOTATIONSThe 2015 amendment, effective July 1, 2015, changed the notice requirements for a hearing prior to the approval of the issuance of a new liquor license or of a transfer of a liquor license; in Subsection A, after "prior to the approval of", deleted "any" and added "a", after "Section", deleted "39 or 113 of the Liquor Control Act" and added "60-6B-3 or 60-6B-12 NMSA 1978", after "governing body of", deleted "his" and added "the director's"; in Subsection B, after "governing body", deleted "which" and added "that"; in the introductory sentence of Subsection D, after "D.", deleted "Notice of the public hearing required by Subsection C of this section shall be given by", and after "governing body", deleted "by" and added "shall give notice of the public hearing, as required by Subsection C of this section, and the notice shall"; in Paragraph (1) of Subsection D, after "(1)", deleted "publishing a notice of the date, time and place of the hearing at least once a week for two consecutive weeks" and added "be published at least twice, with the initial notice published at least thirty days before the hearing", and after the semicolon, deleted "The notice shall"; added Paragraph (2) of Subsection D; redesignated the phrase "set forth:" as Paragraph (3) of Subsection D; added new Subparagraph D(3)(a) and redesignated the succeeding subparagraphs accordingly; deleted the paragraph designation from former Paragraph (2) of Subsection D and deleted "sending a notice"; designated the language from former Paragraph (2) of Subsection D as Paragraph (4) of Subsection D; in Paragraph (4) of Subsection D, after "(4)", added "be sent", and after "mail to the applicant", deleted "of the date, time and place of the public hearing".
Motion to intervene held timely. — Indian tribe political chapter's motion to intervene on appeal in a liquor license transfer case was timely filed, where the proposed transfer site was located within the geographical boundaries of the chapter, and the chapter wished to argue on behalf of the state's position on appeal. Thriftway Mktg. Corp. v. State, 1990-NMCA-115, 111 N.M. 763, 810 P.2d 349.
Formal preservation of error not required. — Because applicants at administrative hearings often are not represented by legal counsel, state statutes do not require formal preservation of error before appeal may be taken from these decisions. Dick v. City of Portales, 1994-NMSC-092, 118 N.M. 541, 883 P.2d 127.
Same standard applicable to transfers and issuance of new licenses. — Once voters approve the sale of alcoholic beverages in a community and the proposed location meets zoning and ordinance requirements, denial of either the transfer of a license, or issuance of a new license, must be based on a finding of health, safety, or moral hazards at the location. City of Santa Fe v. Woodard, 1996-NMSC-058, 122 N.M. 449, 926 P.2d 302.
Transfer of license despite municipal disapproval. — Under the Liquor Control Act, Section 60-3A-1 NMSA 1978, the director of the alcohol and gaming division of the New Mexico regulation and licensing department may approve a transfer of a license despite municipal disapproval. The director must so act if the governing body fails to submit evidence supporting its decision or if, on its face, the governing body's decision is not based on evidence pertaining to the specific prospective transferee or location. Southland Corp. v. Manzagol, 1994-NMSC-099, 118 N.M. 423, 882 P.2d 14.
City's disapproval of new license not supported by evidence. — Since there was an absence of substantial evidence to support the conclusion of negative impact upon the health, safety, or morals of residents of the area, the city's disapproval of a restaurant license to sell beer and wine was properly disregarded by the director. City of Santa Fe v. Woodard, 1996-NMSC-058, 122 N.M. 449, 926 P.2d 302.
Day care and transfer of liquor license. — Where evidence was presented to the hearing officers showing that a day care was not an accredited institution and that its employees and owner were not licensed teachers, there was substantial evidence to support the conclusion that the day care was not a "school" for the purposes of a liquor license transfer. Concerned Residents for Neighborhood Inc. v. Shollenbarger, 1991-NMCA-105, 113 N.M. 667, 831 P.2d 603, overruled on other grounds by Regents of Univ. of N.M. v. Hughes, 1992-NMSC-049, 114 N.M. 304, 838 P.2d 458.
Discretion of director. — The word "may" as used in Subsection G invests the director with discretion as to whether to give final approval to the issuance or transfer of a license when a governing body of a county has failed to either approve or disapprove the issuance or transfer of the license within 30 days after a public hearing. Thriftway Mktg. Corp. v. State, 1992-NMCA-092, 114 N.M. 578, 844 P.2d 828.
Disapproval of transfer. — City council's decision to disapprove transfer of a liquor license as part of the administrative licensing process had to be supported by substantial evidence using whole record review. Dick v. City of Portales, 1994-NMSC-092, 118 N.M. 541, 883 P.2d 127.
Disapproval of transfer based on moral considerations. — To support a disapproval of the transfer of ownership of a liquor license alone, any detriment to the morals of the residents of the local option district must relate to the qualifications of the transferee to hold the license. Dick v. City of Portales, 1994-NMSC-092, 118 N.M. 541, 883 P.2d 127.
In a proceeding regarding the transfer of a liquor license, testimony that a greater availability of alcohol would increase the possibility of accidents involving harm in the community was based upon speculation and was irrelevant; it was relevant, if at all, only to general safety concerns and was unsubstantiated with statistics based on facts relevant to the local community. Disapproval of a liquor license transfer must be based upon authentic facts related to a specific prospective licensee or location. Town & Country Food Stores, Inc. v. Hughes, 1994-NMSC-093, 118 N.M. 545, 883 P.2d 131.
The city commission failed to support its finding that the particular liquor license transfer would be detrimental to the safety of the residents and therefore its disapproval was invalid. Town & Country Food Stores, Inc. v. Hughes, 1994-NMSC-093, 118 N.M. 545, 883 P.2d 131.
Constitutionality of moral considerations. — The delegation to a municipality of the legislative authority to disapprove the transfer of a liquor license on moral as well as on safety and health grounds is within the traditional definition of the state's police power and thus constitutional. Dick v. City of Portales, 1993-NMCA-125, 116 N.M. 472, 863 P.2d 1093, rev'd on other grounds, 1994-NMSC-092, 118 N.M. 541, 883 P.2d 127.
No authority to restrict licensee's operation as condition for approval of waiver. — This section confers no express authority on local government to limit or restrict the operation of a licensee as a condition for approving the waiver of the distance requirement imposed by the predecessor of Section 60-6B-10 NMSA 1978, 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.
Delegation of liquor law functions to local governments strictly construed. — Although there is no present question concerning the propriety of certain statutes delegating liquor law functions to local governments, such statutes must be strictly construed against any greater delegation of legislative power than clearly appears in the language used. 1980 Op. Att'y Gen. No. 80-23.