A. Any license issued under the provisions of the Liquor Control Act [60-3A-1 NMSA 1978] shall be canceled if the licensee fails to commence operation of the licensed business within one hundred twenty days after the license is issued and to continuously operate during customary hours and days of operation for that type of business; provided, however, the director may extend that period for a length of time determined by the director.
B. If after the one-hundred-twenty-day period or additional extension period specified in Subsection A of this section the licensee ceases to operate the licensed business during customary hours and days for that type of business for more than ten days, he shall notify the director in writing within five days of the cessation.
C. The director may grant temporary suspensions in the operation of the licensed business upon receipt of the notice provided in Subsection B of this section. A temporary suspension shall be for a period determined appropriate by the director.
D. The license of any person failing to comply with any provision of this section shall be canceled after notice and hearing complying with the provisions of Section 60-6C-4 NMSA 1978.
History: Laws 1981, ch. 39, § 43; 1984, ch. 58, § 4; 1998, ch. 93, § 2.
ANNOTATIONSCross references. — For definition of "director," see 60-3A-3G NMSA 1978.
The 1998 amendment, effective May 20, 1998, in Subsection A, substituted "that" for "such" and "for a length of time determined by the director" for "when construction or major renovation of a proposed licensed premises is planned by the licensee" near the end; inserted "or additional extension period" near the beginning of Subsection B; and rewrote the last sentence in Subsection C.
Determination of facts required prior to cancellation. — Before cancelling a license pursuant to this section, the chief of division (now director of alcohol and gaming division) must determine the facts which would authorize the cancellation. Crowe v. State ex rel. McCulloch, 1971-NMSC-017, 82 N.M. 296, 480 P.2d 691.
License cannot be cancelled by operation of law as to do so would relieve the chief of division (now director of alcohol and gaming division) of his duties to make a determination of facts authorizing the cancellation and to effect the cancellation pursuant thereto. Crowe v. State ex rel. McCulloch, 1971-NMSC-017, 82 N.M. 296, 480 P.2d 691.
When mandamus lies to compel cancellation. — Where the director has a clear and present legal duty to cancel the liquor license in question because of nonuse in compliance with this statute, he has no discretionary matters to consider, and mandamus will lie to compel action by the director. City of Santa Rosa v. Jaramillo, 1973-NMSC-119, 85 N.M. 747, 517 P.2d 69.
Legislative intent. — The clear wording of this section indicates that the legislature intended that, except in rare instances, liquor licensees should keep the usual hours on the usual days that bars and package stores are customarily open. 1963 Op. Att'y Gen. No. 63-121.
Provisions of section are mandatory. 1975 Op. Att'y Gen. No. 75-32.
Meaning of "shall". — This section is mandatory and the word "shall" means "must." 1967 Op. Att'y Gen. No. 67-140.
Law reviews. — For article, "An Administrative Procedure Act for New Mexico," see 8 Nat. Resources J. 114 (1968).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 13 Am. Jur. 2d Cancellation of Instruments § 6; 39 Am. Jur. 2d Intoxicating Liquors § 196.
48 C.J.S. Intoxicating Liquors § 175.