A. Whenever a person lodges a signed, written complaint with the department alleging that a licensee has violated any of the provisions of the Liquor Control Act [60-3A-1 NMSA 1978], unless the complaint is deficient on its face, the director shall request that the department of public safety investigate the complaint.
B. The department of public safety shall investigate the complaint and make a written report to the director.
C. If the director believes from the report that probable cause exists for filing charges against the licensee for the revocation or suspension of his license or permit or for fining him, or for both, he or his designee shall file in the department a charge against the licensee in the name of the state, stating the nature of the grounds relied upon for the filing, the approximate date of the alleged violation and the names and addresses of the witnesses who are expected to give testimony or evidence against the licensee.
D. After charges have been filed, the director shall issue a signed order for the licensee to appear at a hearing to explain, on the basis of any ground set out in the charge, why the license should not be revoked or suspended or why the licensee should not be fined, or both.
E. The director shall keep the original of the charge and the order to show cause on file in his office.
F. The director shall appoint a hearing officer no later than ten days prior to the date set for the hearing at which the licensee shall appear to explain why his license should not be revoked or suspended or why the licensee should not be fined, or both.
G. The director shall have a copy of the charge and a copy of the order to show cause sent to the licensee or the licensee's resident agent at the agent's last known address by certified mail at least fourteen days before the date set for the hearing on the order to show cause.
H. At any hearing on an order to show cause, the director shall cause a record of hearing to be made, which shall record:
(1) the style of the proceedings;
(2) the nature of the proceedings, including a copy of the charge and a copy of the order to show cause;
(3) the place, date and time of the hearing and all continuances or recesses of the hearing;
(4) the appearance or nonappearance of the licensee;
(5) if the licensee appears with an attorney, the name and address of the attorney;
(6) a record of all evidence and testimony and a copy or record of all exhibits introduced in evidence;
(7) the findings of fact and law as to whether or not the licensee has violated the Liquor Control Act [60-3A-1 NMSA 1978] as set out in the charge; and
(8) the decision of the director.
I. If the licensee fails to appear without good cause at the time and place designated in the order to show cause for the hearing, the director shall order the nonappearance of the licensee to be entered in the record of hearing and shall order the license revoked or suspended or the licensee fined, or both, on all the grounds alleged in the charge, and shall cause the record of hearing to show the particulars in detail. In such a case, there shall be no reopening, appeal or review of the proceedings.
J. If the licensee admits guilt on all grounds set out in the charge, the director shall order the revocation or suspension of the license or the licensee fined, or both, and cause a record of hearing to be made showing the facts and particulars of his order of revocation or suspension of the license or fine of the licensee, or both. In such a case, there shall be no review or appeal of the proceedings.
K. If the licensee appears at the hearing and does not testify or denies guilt of any or all of the grounds set out in the charge, the hearing shall proceed as follows:
(1) the director or the hearing officer shall administer oaths to all witnesses, the department shall cause all testimony and evidence in support of the grounds alleged in the charge to be presented in the presence of the licensee and the director shall allow the licensee or his attorney to cross-examine all witnesses;
(2) the licensee shall be allowed to present testimony and evidence he may have in denial or in mitigation of the grounds set out in the charge;
(3) the department shall have the right to cross-examine the licensee or any witness testifying in his favor;
(4) the department shall present any evidence or testimony in rebuttal of that produced by the licensee;
(5) the director or the hearing officer shall make a finding on each ground alleged and a finding of the guilt or innocence of the licensee on each ground;
(6) if the licensee is found guilty on any ground alleged and proved, the director shall make his order of revocation or suspension of the license or fine of the licensee, or both; and
(7) the rules of evidence shall not be required to be observed, but the order of suspension or revocation or fine, or both, shall be based upon substantial, competent and relevant evidence and testimony appearing in the record of hearing.
L. No admission of guilt, admission against interest or transcript of testimony made or given in any hearing pursuant to this section shall be received or used in any criminal proceedings wherein the licensee is a defendant; provided, however, if the licensee commits perjury in a hearing, the evidence shall be admissible in a perjury trial if otherwise competent and relevant.
M. The director shall adopt reasonable regulations setting forth uniform standards of penalties concerning fines and suspensions imposed by the director.
History: Laws 1981, ch. 39, § 100; 1993, ch. 68, § 13.
ANNOTATIONSCross references. — For service of process, see Rule 1-004 NMRA.
The 1993 amendment, effective July 1, 1993, rewrote this section to the extent that a detailed comparison is impracticable.
Offer of proof. — In administrative proceedings, where a party's proffered evidence is denied on the ground of relevance, the party has a right to make an offer of proof to show on appeal what the content of the evidence was as well as testimony in regard to the evidence that would bear on relevance. ERICA, Inc. v. N.M. Regulation & Licensing Dep't, 2008-NMCA-065, 144 N.M. 132, 184 P.3d 444.
Purpose of proceeding. — The object of an administrative proceeding to revoke a liquor license is not intended as a punishment of the licensee. The purpose is to ensure so far as possible the decent and orderly conduct of a business affecting the public health, morals, safety and welfare. Kearns v. Aragon, 1959-NMSC-102, 65 N.M. 119, 333 P.2d 607.
Proceeding in nature of civil action. — A proceeding before the chief of division of liquor control (now director of alcohol and gaming division) to revoke a liquor license is not a criminal proceeding; rather it is an administrative proceeding in the nature of a civil action. Kearns v. Aragon, 1959-NMSC-102, 65 N.M. 119, 333 P.2d 607; Lake v. Garcia, 1978-NMSC-035, 91 N.M. 608, 577 P.2d 1254.
Section requires the director to sign order to show cause issued to licensee. Absent the director's signature, the process is void. Any order issued pursuant to defective process is null and void for lack of jurisdiction. Lasley v. Baca, 1981-NMSC-041, 95 N.M. 791, 626 P.2d 1288.
Revocation proceedings are not governed by rules of criminal prosecutions. In such proceedings the offense need not be established beyond a reasonable doubt. Kearns v. Aragon, 1959-NMSC-102, 65 N.M. 119, 333 P.2d 607.
Certain constitutional defenses not available. — The constitutional defenses of unreasonable search and seizure and self-incrimination are not available in revocation proceedings. Kearns v. Aragon, 1959-NMSC-102, 65 N.M. 119, 333 P.2d 607.
Testimony of entrapped witnesses competent. — In proceedings before the chief of division of liquor control (now director of alcohol and gaming division), even assuming that the action of the state police officers constituted entrapment, this fact alone does not render witnesses' testimony unsubstantial, incompetent, irrelevant or incredible. The mere circumstance, standing alone, that the state's witnesses were engaged in a species of entrapment does not render their testimony unworthy of belief. Kearns v. Aragon, 1959-NMSC-102, 65 N.M. 119, 333 P.2d 607.
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.
Determination of facts required prior to cancellation. — Before cancelling a license pursuant to this duty, the chief of division (now director of alcohol and gaming division) must, of necessity, 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.
When order suspending license fatally defective. — Order suspending liquor license was fatally defective in that the record did not contain a copy of the charge and a copy of the order to show cause, as required by this section. Jumbo, Inc. v. State ex rel. Branch, 1970-NMSC-025, 81 N.M. 223, 465 P.2d 280.
Liquor control hearing officer presides only at hearings that result from formal charges looking toward suspension or revocation of an existing license. Other hearings under the liquor laws, such as hearings on whether a new license should be issued in a given locality or whether an existing license should be transferred to a new location, need not be heard by a liquor control hearing officer, but can be heard by the chief of the division of liquor control (now director of alcohol and gaming division). 1963 Op. Att'y Gen. No. 63-103.
Law reviews. — For article, "Constitutional Limitations on the Exercise of Judicial Functions by Administrative Agencies," see 7 Nat. Resources J. 599 (1972).
For note, "On Building Better Laws for New Mexico's Environment," see 4 N.M. L. Rev. 105 (1973).
For article, "Survey of New Mexico Law, 1979-80: Administrative Law," see 11 N.M.L. Rev. 1 (1981).
For annual survey of New Mexico law relating to administrative law, see 12 N.M.L. Rev. 1 (1982).
For annual survey of New Mexico law relating to administrative law, see 13 N.M.L. Rev. 235 (1983).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 45 Am. Jur. 2d Intoxicating Liquors § 206.
Entrapment to commit offense against laws regulating sales of liquor, 55 A.L.R.2d 1322.
Availability in state court of defense of entrapment where accused denies committing acts which constitute offense charged, 5 A.L.R.4th 1128.
48 C.J.S. Intoxicating Liquors § 177.