TITLE 15 GAMBLING AND LIQUOR CONTROL
CHAPTER 8 TOBACCO PRODUCTS
PART 3 APPLICATIONS AND RENEWALS
15.8.3.1 ISSUING AGENCY: New Mexico Regulation and Licensing
Department, Alcoholic Beverage Control Division.
[15.8.3.1
NMAC – N, 1/1/2021]
15.8.3.2 SCOPE: These rules apply to all licensees and
applicants for licensure under the New Mexico Tobacco Products Act.
[15.8.3.2
NMAC – N, 1/1/2021]
15.8.3.3 STATUTORY AUTHORITY:
Section 61-37-22 NMSA 1978, of the Tobacco Products
Act authorizes the director to make and adopt such rules as necessary to carry
out the duties of the division.
[15.8.3.3
NMAC – N, 1/1/2021]
15.8.3.4 DURATION: Permanent.
[15.8.3.4
NMAC – N, 1/1/2021]
15.8.3.5 EFFECTIVE DATE: January 1, 2021,
unless a later date is cited at the end of a section.
[15.8.3.5
NMAC – N, 1/1/2021]
15.8.3.6 OBJECTIVE: This
rule is intended to establish general standards for the application, renewal,
and transfer of licenses under the act.
[15.8.3.6
NMAC – N, 1/1/2021]
15.8.3.7 DEFINITIONS: Unless
otherwise defined below, terms used in Title 15, Chapter 8 have
the same meanings as set forth in the Tobacco Products Act.
[15.8.3.7
NMAC – N, 1/1/2021]
15.8.3.8 APPLICATIONS FOR NEW LICENSES:
A. The director is
authorized to prescribe all forms necessary for or required by the act or these
rules. All filings with the division
shall be accompanied by such affidavits, documents, fees and other supporting
data as the director shall require.
B. All documents,
records, affidavits, fees, supporting data or information requested by the
division with regard to any application shall be furnished within 30 days from
the date requested by the division, or the application may be disapproved,
unless good cause is shown by the applicant.
C. All applications
for licenses issued pursuant to the act shall be made on the forms prescribed
by the director whether filed electronically, by mail, or in person.
[15.8.3.8
NMAC – N, 1/1/2021]
15.8.3.9 MANUFACTURER LICENSE REQUIREMENTS: An application for a
manufacturer license or manufacturer license renewal shall include:
A. The name,
telephone number, mailing address and email address of the applicant and:
(1) if
the applicant is a firm, partnership or association, the name and address of
each of its members contributing ten percent or more of the total value of
contributions made to the firm, partnership or association and each member
entitled to ten percent or more of the profits earned by the firm, partnership or
association; or
(2) if
the applicant is a corporation, the name and address of its registered agent,
the names and addresses of all officers and directors and those stockholders
owning ten percent or more of the voting stock of the corporation;
B. The address of
the applicant’s principal place of business and every location where the
applicant manufactures tobacco products;
C. Documentation as
required by the division affirming that the applicant will comply with
applicable and proper tobacco products manufacturing practices as required
pursuant to 21 USCA Section 387d(a) and will comply with any applicable health
directives issued by the department of health pursuant to the Public Health
Act;
D. Documentation as
required by the division affirming that the applicant will submit the
applicable ingredient listing to the federal secretary of health and human
services as required pursuant to 21 USCA Section 387d(a)(1);
E. Documentation as
required by the division establishing compliance with all state Taxation and
Revenue Department requirements;
F. A list of all
distributors in which the manufacturer sells tobacco products; and
G. A non-refundable
application fee.
[15.8.3.9
NMAC – N, 1/1/2021]
15.8.3.10 DISTRIBUTOR LICENSE REQUIREMENTS: An application for a distributor license or
distributor license renewal shall include:
A. The name,
telephone number, mailing address and email address of the applicant and:
(1) if
the applicant is a firm, partnership or association, the name and address of
each of its members contributing ten percent or more of the total value of
contributions made to the firm, partnership or association and each member
entitled to ten percent or more of the profits earned by the firm, partnership
or association; or
(2) if
the applicant is a corporation, the name and address of its registered agent,
the names and addresses of all officers and directors and those stockholders
owning ten percent or more of the voting stock of the corporation;
B. The address of
the applicant’s principal place of business and every location from which the
applicant distributes tobacco products;
C. Documentation as
required by the division establishing compliance with all state taxation and revenue
department requirements;
D. A list of all
manufacturers the applicant purchases from and all retailers applicant
distributes to; and
E. A non-refundable
application fee.
[15.8.3.10
NMAC – N, 1/1/2021]
15.8.3.11 RETAILER LICENSE REQUIREMENTS: An application for a retailer license or
retailer license renewal shall include:
A. The name,
telephone number, mailing address and email address of the applicant and:
(1) if
the applicant is a firm, partnership or association, the name and address of
each of its members contributing ten percent or more of the total value of
contributions made to the firm, partnership or association and each member
entitled to ten percent or more of the profits earned by the firm, partnership
or association; or
(2) if
the applicant is a corporation, the name and address of its registered agent,
the names and addresses of all officers and directors and those stockholders
owning ten percent or more of the voting stock of the corporation;
B. The address of
the applicant’s principal place of business and every location from which the
applicant sells tobacco products;
C. A list of all
distributors from whom the applicant received tobacco products;
D. Documentation
as required by the division establishing compliance with all state Taxation and
Revenue Department requirements; and
E. A non-refundable
application fee.
[15.8.3.11
NMAC – N, 1/1/2021]
15.8.3.12 NEED FOR MULTIPLE LICENSE
TYPES:
A. A manufacturer
license does not allow a licensee to distribute tobacco products or sell
tobacco products directly to consumers.
B. A distributor
license does not allow a licensee to manufacture tobacco products or sell
tobacco products directly to consumers.
C. A retailer
license does not allow a licensee to manufacture tobacco products or distribute
tobacco products to retailers for resale.
D. Licensees who
wish to conduct any combination of manufacturing, distributing, or retailing
tobacco products at a single location must obtain each of the necessary license
types.
E. Licensees are
not prohibited from holding multiple license types at one location.
[15.8.3.12
NMAC – N, 1/1/2021]
15.8.3.13 LICENSE LOCATION TO BE AT LEAST 300 FEET FROM A SCHOOL:
A. A license shall
not be issued, retained, transferred or renewed if the location for the license
or license transfer is within three hundred feet of a school; provided that
this restriction does not apply to a location at which tobacco products have
been lawfully manufactured, distributed or sold prior to July 1, 2020.
B. For purposes of
the act, the distance to be measured is the distance between the outer boundary
of the licensed location, that is the premises
actually used to sell tobacco products, and the school.
C. Applicant is
responsible from providing proof of distance from a school in a form required
by the division.
[15.8.3.13
NMAC – N, 1/1/2021]
15.8.3.14 DESIGNATION OF RESIDENT AGENT:
A. Except for sole
proprietors, every licensee shall designate a “resident agent” to accept
service of all orders and notices of the division. The resident agent must have:
(1) authority to bind the applicant to matters related to
tobacco product sales and operations;
(2) authority
and ability to accept service of all orders, subpoenas, notices and other legal
documents from the division, including any notice of charge pursuant to the act
on behalf of its principal; and
(3) residency in the state of New Mexico.
B. To designate a
resident agent a licensee shall file an application on a division approved
form. The designation of resident agent
may be terminated upon written notification to the department by either the
licensee or the resident agent. A
licensee shall have 10 days from the date of termination of the agency
relationship to file an application for a new resident agent.
C. A licensee may
designate as many resident agents as it deems necessary for the operation of
business.
D. The designation
of a resident agent shall not relieve the licensee of any responsibilities or
liabilities to the division for violations or compliance with the act.
[15.8.3.14
NMAC – N, 1/1/2021]
15.8.3.15 RENEWAL OF LICENSES:
A. A complete
renewal application and payment of all applicable renewal fees shall be filed
with the division no earlier than sixty days and no later than 30 days before
the license is set to expire.
B. Applicant must
provide proof of meeting all state taxation and revenue department
requirements.
C. The renewal
application shall be in a form prescribed by the director.
D. All licensees
who fail to renew their licenses or who are not issued a renewed license shall
suspend all tobacco product operations until such time as a renewed license is
issued and displayed at the licensed location.
E. Licenses shall
be renewed in the name of the licensee shown on division records, regardless of
who pays the renewal fee.
F. Any licensee
that fails to submit a properly completed renewal application, including all
applicable fees, by the renewal deadline must pay a late renewal fee in the
amount of three hundred fifty dollars ($350) plus ten dollars ($10) per day for
each additional day the renewal application is late.
G. The division may
waive late fees if the licensee shows good cause for not filing a timely
renewal application, taking into consideration hardship to the licensee, and
whether the licensee filed a late renewal application the preceding five years.
H. Any license not
renewed shall be subject to cancellation and shall not be reinstated, unless
the renewal application is filed with the division within 30 days of the
expiration date of the license. All
applicable fees must be paid and all citations must be resolved prior to a
license being reinstated after being subject to cancellation.
I. A licensee who
fails to get its license reinstated following expiration may apply for a new
license by filing an application with the division.
J. A license shall
not be renewed with any outstanding citations for violations of the act, or
these rules, unless the applicant is currently making good faith efforts to
resolve said citations with the division.
[15.8.3.15
NMAC – N, 1/1/2021]
15.8.3.16 APPLICATION FEES AND RENEWAL FEES:
A. Manufacturer
license application fees are as follows:
(1) Application
fee for each licensed location: $750;
(2) Renewal
fee for each licensed location: $400;
B. Distributor
license application fees are as follows:
(1) Application
fee for each licensed location: $750;
(2) Renewal
fee for each licensed location: $400;
C. Retailer license
application fees are as follows:
(1) Application
fee for each licensed location: $750;
(2) Renewal
fee for each licensed location: $400.
[15.8.3.16
NMAC – N, 1/1/2021]
15.8.3.17 CHANGE IN OWNERSHIP
A. A change in
ownership occurs when:
(1) if the licensee is a corporation: when a total of ten
percent or more of its stock is transferred or when there is a merger or
consolidation of the licensee with another entity;
(2) if the licensee is a limited liability company: when ten
percent or more of the membership interests are transferred or when there is a
merger or consolidation of the licensee with another entity;
(3) if the licensee is a general partnership: when there is any
change or removal of any general partners;
(4) if
the licensee is a limited partnership: when there is any change of general
partners, or any change of limited partners contributing ten percent or more of
the total value of the contributions made to the limited partnership or any
change in the limited partners entitled to ten percent or more of the profits
earned, or other compensation by way of income paid by the limited partnership;
(5) if the licensee is a trust: when there is any change in the
trustees or beneficiaries; or
(6) if
the licensee is any other legal entity that is not a corporation, limited liability
company, general partnership, or limited partnership: any person or entity
becomes the owner of ten percent or more interest through one or more
transactions or when a total of ten percent or more interest in the licensee
entity or license has been transferred.
B. Within 60 days
of a change in ownership, licensee must submit an application with the division
for issuance of an initial license as licenses shall not be transferred from
licensee to another person pursuant to Section 61-37-10 NMSA 1978.
C. A temporary
license may be issued if application process exceeds the 60 days. Issuance of a temporary license, pending the
application process for a new license due to a change in ownership, does not
indicate or guarantee the issuance of a new license to applicant.
[15.8.3.17
NMAC – N, 1/1/2021]
15.8.3.18 BUSINESS NAME CHANGE:
A. Any licensee
that changes the doing business name under which it operates a license issued
pursuant to the act must file an application for change of DBA (“doing business
as”) name with the division together with the application filing fee.
B. DBA name change,
or any change, shall not be knowingly attractive to minors.
C. If the division
approves the application, the division shall change the name on its records and
issue a license which reflects the new name.
The licensee may not use the new name until a license is issued.
[15.8.3.18
NMAC – N, 1/1/2021]
15.8.3.19 TRANSFER OF LOCATION:
A. Approval from
the division is required before a licensee may transfer a license from one
location to another.
B. Licensee must
submit an application in a form prescribed by the division along with all
supporting documents to establish the license is not within 300 feet of a
school and does not violate a zoning or other ordinance of the governing body
of the location, as required by the act.
[15.8.3.19
NMAC – N, 1/1/2021]
History of 15.8.3 NMAC: [RESERVED]