TITLE 15 GAMBLING AND LIQUOR CONTROL
CHAPTER 8 TOBACCO PRODUCTS
PART 7 HEARING PROCEDURE
15.8.7.1 ISSUING AGENCY: New Mexico Regulation and Licensing
Department, Alcoholic Beverage Control Division.
[15.8.7.1
NMAC – N, 1/1/2021]
15.8.7.2 SCOPE: These rules apply to all licensees and
applicants for licensure under the New Mexico Tobacco Products Act.
[15.8.7.2
NMAC – N, 1/1/2021]
15.8.7.3 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.
[15.8.7.3
NMAC – N, 1/1/2021]
15.8.7.4 DURATION: Permanent.
[15.8.7.4
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15.8.7.5 EFFECTIVE DATE: January 1, 2021,
unless a later date is cited at the end of a section.
[15.8.7.5
NMAC – N, 1/1/2021]
15.8.7.6 OBJECTIVE: This
rule is intended to establish the hearing procedures for the suspension or
revocation of a license and the imposition of administrative penalties.
[15.8.7.6
NMAC – N, 1/1/2021]
15.8.7.7 DEFINITIONS: Unless
otherwise defined below, terms used in Title 15, Chapter 8 have
the same meanings as set forth in the Tobacco Products Act.
[15.8.7.7
NMAC – N, 1/1/2021]
15.8.7.8 COMPLAINTS AND
INVESTIGATION:
A. The division, the
department of public safety, and the appropriate law enforcement authorities in
each county and municipality may investigate any allegation of a violation and
inspect licensed locations for compliance with the act
and the rules promulgated thereof, and licensee’s compliance during an
inspection is required.
B. Whenever
probable cause exists that a licensee has violated a provision of the act or
these rules, a citation may be issued to the licensee for such violation and a
copy of the citation shall be filed in the division.
[15.8.7.8
NMAC – N, 1/1/2021]
15.8.7.9 INFORMAL CONFERENCE:
A. Whenever
probable cause exists that a licensee has violated a provision of the act or
these rules, a citation may be issued to the licensee for such a
violation. An informal conference may be
held with the licensee to determine whether a compromise of the penalty for the
violation would be in the best interest of the state.
B. When a citation
is issued at the licensed premises, a copy of the citation may be provided to
the licensee, or the resident agent, or given to an employee who indicates he
is in charge, or, if no such employee is in charge, to any employee. Providing an employee with the citation shall
be considered the same as giving it ot
the licensee. Citations may be mailed to
the licensee.
C. A copy of the
citation shall be filed in the division.
D. The fines and
suspension imposed shall not exceed those which could be imposed after hearing.
E. Any portion of
the fine or penalties imposed may be suspended.
[15.8.7.9
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15.8.7.10 ADMINISTRATIVE PROCEEDINGS, ORDER TO SHOW CAUSE AND
HEARING:
A. If a violation
of the act is not resolved through informal conference, a formal charge
document shall be filed in the division.
Charges filed in the division against a licensee will state 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.
B. Licensees will
receive an 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.
C. A hearing
officer will be appointed no later than ten days prior to the date set for the
hearing at which the licensee shall appear to explain why licensee’s license
should not be revoked or suspended or why the licensee should not be fined, or
both.
D. At any hearing
on an order to show case, a record of hearing will be made, to include:
(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 Act as set out in the charge; and
(8) the decision of the director.
E. 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 nonappearance of the licensee will be
entered in the record of hearing and an order revoking or suspending the
license or imposing a fine, or both, on all the grounds alleged in the
charge. In such case, there shall be no
reopening, appeal or review of the proceedings.
F. If the licensee
admits guilt on all grounds set out in the charge, an order revoking or
suspending the license or imposing a fine on licensee, or both. In such a case, there shall be no reopening,
appeal or review of the proceedings.
G. 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 will administer oaths to all witnesses, the
division will 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
licensee, or licensee’s attorney, will be allowed the opportunity to
cross-examine all witnesses;
(2) the licensee will be allowed to present testimony and
evidence in denial or in mitigation of the grounds set out in the charge;
(3) the division will have the opportunity to cross-examine the
licensee or any witness testifying in licensee’s favor;
(4) the division will have the opportunity to present any
evidence or testimony in rebuttal of that produced by the licensee;
(5) the director or the hearing officer will make a finding on
each ground alleged and a finding of guilt or innocence of the licensee on each
ground;
(6) if the licensee is found guilty on any ground alleged and
proved, the director will 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.
[15.8.7.10
NMAC – N, 1/1/2021]
History of 15.8.7 NMAC: [RESERVED]