A. It is a violation of the Liquor Control Act [60-3A-1 NMSA 1978] for a person, including a person licensed pursuant to the provisions of the Liquor Control Act, or an employee, agent or lessee of that person, if the person knows or has reason to know that the person is violating the provisions of this section, to:
(1) sell, serve or give alcoholic beverages to a minor or permit a minor to consume alcoholic beverages on the licensed premises;
(2) buy alcoholic beverages for or procure the sale or service of alcoholic beverages to a minor;
(3) deliver alcoholic beverages to a minor; or
(4) aid or assist a minor to buy, procure or be served with alcoholic beverages.
B. It is not a violation of the Liquor Control Act, as provided in Subsection A or C of this section, when:
(1) a parent, legal guardian or adult spouse of a minor serves alcoholic beverages to that minor on real property, other than licensed premises, under the control of the parent, legal guardian or adult spouse; or
(2) alcoholic beverages are used in the practice of religious beliefs.
C. It is a violation of the Liquor Control Act for a minor to buy, attempt to buy, receive, possess or permit the minor's self to be served with alcoholic beverages.
D. When a person other than a minor procures another person to sell, serve or deliver alcoholic beverages to a minor by actual or constructive misrepresentation of facts or concealment of facts calculated to cause the person selling, serving or delivering the alcoholic beverages to the minor to believe that the minor is legally entitled to be sold, served or delivered alcoholic beverages and actually deceives that person by that misrepresentation or concealment, then the procurer and not the person deceived shall have violated the provisions of the Liquor Control Act.
E. As used in the Liquor Control Act, "minor" means a person under twenty-one years of age.
F. In addition to the penalties provided in Section 60-6C-1 NMSA 1978, a violation of the provisions of Subsection A of this section is:
(1) a fourth degree felony for an offender, other than a server certified pursuant to Section 60-6E-7 NMSA 1978, who shall be sentenced pursuant to Section 31-18-15 NMSA 1978;
(2) a misdemeanor for a first violation if the offender is a server, certified pursuant to Section 60-6E-7 NMSA 1978, who shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978; or
(3) a fourth degree felony for a second or subsequent violation if the offender is a server, certified pursuant to Section 60-6E-7 NMSA 1978, who shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
G. A violation of the provisions of Subsection C of this section is a misdemeanor and the offender shall be punished as follows:
(1) for a first violation, the offender shall be:
(a) fined an amount not more than one thousand dollars ($1,000); and
(b) ordered by the sentencing court to perform thirty hours of community service related to reducing the incidence of driving while under the influence of intoxicating liquor;
(2) for a second violation, the offender shall:
(a) be fined an amount not more than one thousand dollars ($1,000);
(b) be ordered by the sentencing court to perform forty hours of community service related to reducing the incidence of driving while under the influence of intoxicating liquor; and
(c) have the offender's driver's license suspended for a period of ninety days. If the minor is too young to possess a driver's license at the time of the violation, then ninety days shall be added to the date the offender would otherwise become eligible to obtain a driver's license; and
(3) for a third or subsequent violation, the offender shall:
(a) be fined an amount not more than one thousand dollars ($1,000);
(b) be ordered by the sentencing court to perform sixty hours of community service related to reducing the incidence of driving while under the influence of intoxicating liquor; and
(c) have the offender's driver's license suspended for a period of two years or until the offender reaches twenty-one years of age, whichever period of time is greater.
H. A violation of the provisions of Subsection D of this section is a fourth degree felony and the offender shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
History: 1978 Comp., § 60-7B-1, enacted by Laws 1993, ch. 68, § 22; 1998, ch. 80, § 1; 1998, ch. 101, § 1; 2004, ch. 43, § 1; 2013, ch. 213, § 3.
ANNOTATIONSCross references. — For age of majority, see 28-6-1 NMSA 1978.
For tort liability for alcoholic liquor sales or service, see 41-11-1 NMSA 1978.
Repeals and reenactments. — Laws 1993, ch. 68, § 22 repealed former 60-7B-1 NMSA 1978, as enacted by Laws 1981, ch. 39, § 81, and enacted a new section, effective July 1, 1993.
The 2013 amendment, effective June 14, 2013, reduced the penalty for serving alcoholic beverages to minors; changed the knowledge requirement for providing alcohol to minors; in Subsection F, in the introductory sentence, after "of this section is", deleted "a fourth degree felony and the offender"; added Paragraphs (1) and (2) of Subsection F; and in Paragraph (3) of Subsection F, at the beginning of the sentence, added "a fourth degree felony for a second or subsequent violation if the offender is a server, certified pursuant to Section 60-6E-7 NMSA 1978".
The 2004 amendments, effective July 1, 2004, amended Subsection B to include "adult spouse" in Paragraph (1) and to add Paragraph (2), amended Subsection D to clarify the language, and amended Subsections F and G to delete the different penalties for the first, second and third or subsequent offense and amended Subsection H to provide that a violation of Subsection A or D is a fourth degree felony.
1998 amendments. — Laws 1998, ch. 80, § 1, amending this section, effective July 1, 1998, by substituting "a" for "any" and deleting "any" throughout the section, inserting "including a person" preceding "licensed pursuant", and substituting "an" for "any" in Subsection A; adding Subsection B and redesignating the remaining subsections accordingly; substituting "other than" for "except" and "another" for "any other" in Subsection D; and substituting "accept" for "accepts" in Paragraph F(1), and making minor stylistic changes throughout the section, was approved March 9, 1998. However, Laws 1998, ch. 101, § 1, also amending this section, effective July 1, 1998, by substituting "a" for "any" and deleting "any" throughout the section, inserting "including a person" preceding "licensed pursuant", and substituting "an" for "any" in Subsection A; adding Subsection B and redesignating the remaining subsections accordingly; substituting "other than" for "except" and "another" for "any other" in Subsection D; deleting former Subsection E, relating to violation of this section by a minor; adding Subsections F, G and H; and making minor stylistic changes throughout the section, but not giving effect to the first 1998 amendment, was approved March 10, 1998. This section is set out as amended by Laws 1998, ch. 101, § 1. See 12-1-8 NMSA 1978.
Criminal conviction is not a condition precedent to the imposition of a fine. — The criminal conviction of a server under Section 60-7B-1 NMSA 1978 is not a condition precedent to the imposition of a civil fine on the licensee pursuant to Subsection A of Section 60-6C-1NMSA 1978. Town & Country Food Stores, Inc. v. N. M. Regulation & Licensing Dep't, 2012-NMCA-046, 277 P.3d 490.
Where, in a sting operation, the licensee's employee sold beer to a minor; a hearing officer found that the licensee violated Section 60-7B-1 NMSA 1978 and imposed a fine on the licensee; and the district attorney dismissed charges filed against the employee after the employee completed a pre-prosecution program, the criminal conviction of the employee was not a condition precedent to the imposition of the fine under Subsection A of Section 60-6C-1 NMSA 1978. Town & Country Food Stores, Inc. v. N. M.. Regulation & Licensing Dep't, 2012-NMCA-046, 277 P.3d 490.
Section forbids all deliveries to minors. — This section forbids any delivery of alcoholic liquors to a minor not accompanied by parent, guardian or person "in loco parentis," even where person so delivering alcoholic liquors knows that same are intended for use by an adult. State v. Cummings, 1957-NMSC-105, 63 N.M. 337, 319 P.2d 946.
Delivery made in person or through agent. — The accused, to be guilty of delivering liquor to a minor, need not hand it over in person, but would be guilty if the handing over was done by an agent or servant, at the express direction of the principal or master. State v. Cummings, 1957-NMSC-105, 63 N.M. 337, 319 P.2d 946.
Liability for serving minor. — A person may be subject to liability if he or she breaches his or her duty by violating a statute or regulation, such as this section, which prohibits the selling or serving of alcoholic liquor to a minor, the breach of which is found to be the proximate cause of injuries to a third party. MRC Props., Inc. v. Gries, 1982-NMSC-124, 98 N.M. 710, 652 P.2d 732.
It shall not be negligence per se to violate this section. Trujillo v. Trujillo, 1986-NMCA-052, 104 N.M. 379, 721 P.2d 1310, cert. denied, 104 N.M. 289, 720 P.2d 708, overruled by Mendoza v. Tamaya Enters., 2010-NMCA-74, 148 N.M. 534, 238 P.3d 903.
Section applies to unlicensed persons as well as licensed dealers. State v. Cummings, 1957-NMSC-105, 63 N.M. 337, 319 P.2d 946.
Contents of information charging defendant with offense. — Information charging that defendant delivered alcoholic liquor to a minor, contrary to provision of this section, was not fatally defective in failing to set out that such minor was not accompanied by a parent, guardian or other person having custody. State v. Cummings, 1957-NMSC-105, 63 N.M. 337, 319 P.2d 946.
Charge of defendant in the information with contributing to delinquency of a minor by selling alcoholic liquors to him was adequate. State v. Sena, 1950-NMSC-027, 54 N.M. 213, 219 P.2d 287.
Probable cause for arrest for possession of alcohol. — Probable cause to believe that a child wrongfully possessed or consumed alcohol sufficient to justify an arrest and warrantless search was not shown by the fact that the child's friend smelled of alcohol, or by the child's admission that he consumed a beer outside the officer's presence. State v. Tywayne H., 1997-NMCA-015, 123 N.M. 42, 933 P.2d 251, cert. denied, 123 N.M. 83, 934 P.2d 277.
Right to jury trial is privilege which may be waived, and if a right to jury trial existed in this case, where appellant was charged with giving alcoholic beverages to minors, appellant, by proceeding without demand or objection to trial before the court without a jury, waived the privilege granted by the constitution. State v. Marrujo, 1968-NMSC-118, 79 N.M. 363, 443 P.2d 856.
Conviction may be based upon uncorroborated evidence of minor. State v. Hunter, 1933-NMSC-069, 37 N.M. 382, 24 P.2d 251.
Adult's custody no defense if not within statutory exemptions. — Where minor was in custody of an adult who does not hold such legal relationship to the minor as to come within exemptions of the statute, the fact of adult's custody is no defense. State v. Sifford, 1947-NMSC-067, 51 N.M. 430, 187 P.2d 540.
Breach of section as tort liability. — An allegation of a breach of the duty under this section which caused injury to plaintiffs states a claim for relief. Walker v. Key, 1984-NMCA-067, 101 N.M. 631, 686 P.2d 973 (decided under former Section 60-7B-1.1 NMSA 1978).
Minor cannot legally bring alcoholic beverages into state. — A minor, whether or not accompanied by spouse, guardian or parents, cannot legally bring alcoholic beverages into the state of New Mexico. 1962 Op. Att'y Gen. No. 62-21.
Sale of liquor to minor wife accompanied by adult spouse authorized. — Liquor may be sold to a minor wife when she is accompanied by her adult spouse. 1944 Op. Att'y Gen. No. 44-4462.
Minor police officer may receive or possess liquor. — This section does not prohibit a police officer who is under the age of 21 years and in the lawful performance of his duties from receiving or possessing liquor. 1975 Op. Att'y Gen. No. 75-59.
Law reviews. — For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M. L. Rev. 331 (1976).
For note, "Children's Law: Investigating Detention of Juveniles in New Mexico: Providing Greater Protection than Miranda Rights for Children in the Area of Police Questioning State of New Mexico v. Javier M.," see 32 N.M. L. Rev. 353 (2002).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 45 Am. Jur. 2d Intoxicating Liquors § 141.
Criminal offense of selling liquor to minor (or person under specified age) as affected by ignorance or mistake regarding purchaser's age, 12 A.L.R.3d 991.
Serving liquor to minor in home as unlawful sale or gift, 14 A.L.R.3d 1186.
What constitutes violation of enactment prohibiting sale of intoxicating liquor to minor, 89 A.L.R.3d 1256.
Intoxicating liquors: employer's liability for furnishing or permitting liquor on social occasion, 51 A.L.R.4th 1048.
Social host's liability for injuries incurred by third parties as a result of intoxicated guest's negligence, 62 A.L.R.4th 16.
Tort liability of college or university for injury suffered by student as a result of own or fellow student's intoxication, 62 A.L.R.4th 81.
Social host's liability for death or injuries incurred by person to whom alcohol was served, 54 A.L.R.5th 313.
48 C.J.S. Intoxicating Liquors § 259.