ITLE 15 GAMBLING AND LIQUOR CONTROL
CHAPTER 10 ALCOHOLIC
BEVERAGES GENERAL PROVISIONS
PART 2 DEFINITIONS
15.10.2.1 ISSUING AGENCY: New Mexico
Regulation and Licensing Department, Alcoholic Beverage Control Division.
[15.10.2.1 NMAC - Rp, 15 NMAC
10.1.1.1, 4/25/2017; A, 9/28/2021]
15.10.2.2 SCOPE: These rules
apply to all licensees and applicants for licensure under the New Mexico Liquor
Control Act.
[15.10.2.2 NMAC - Rp, 15 NMAC
10.1.1.2, 4/25/2017]
15.10.2.3 STATUTORY AUTHORITY: Section 60-3A-10 NMSA 1978 of the Liquor Control Act
authorizes the director to make and adopt such rules as necessary to carry out
the duties of the division.
[15.10.2.3 NMAC - Rp, 15 NMAC
10.1.1.3, 4/25/2017]
15.10.2.4 DURATION: Permanent.
[15.10.2.4 NMAC - Rp, 15 NMAC
10.1.1.4, 4/25/2017]
15.10.2.5 EFFECTIVE DATE: April 25, 2017,
unless a later date is cited at the end of a section.
[15.10.2.5 NMAC - Rp, 15 NMAC
10.1.1.5, 4/25/2017]
15.10.2.6 OBJECTIVE: This rule is
intended to locate all definitions of terms used in the act, or in Title 15,
Chapters 10 and 11, in one rule.
[15.10.2.6 NMAC - Rp, 15 NMAC
10.1.1.6, 4/25/2017]
15.10.2.7 DEFINITIONS: Unless
otherwise defined below, terms used in Title 15, Chapter 10 and Chapter 11,
have the same meanings as set forth in the Liquor Control Act.
A. “The Act” means the New Mexico Liquor
Control Act, Articles 3A, 4B, 4C, 5A, 6A, 6B, 6C, 6E, 7A, 7B and 8A of Chapter
60 NMSA 1978.
B. “Affiliate
of the licensee” means any of the following:
(1) A corporation is an affiliate of a
licensee if:
(a) the corporation,
or its officers, directors or controlling shareholders, owns a majority of
stock of a licensee that is itself a corporation; or
(b) a licensee that
is itself a corporation, or its officers, directors or controlling
shareholders, if the licensee owns a majority of the corporation; or
(c) the company is
owned by the same entities or individuals that own the licensee.
(2) A limited liability company is an affiliate
of a licensee if:
(a) the limited
liability company, or its manager or controlling members, owns a majority of
the stock of a licensee that is a corporation;
(b) a licensee that
is itself a corporation, or its officers, directors or controlling
shareholders, owns the controlling membership interest in the limited liability
company; or
(c) a licensee that
is a corporation is the manager of the limited liability company; or
(d) the
limited liability company is owned by the exact same entities or individuals
that own the licensee.
(3) Any other entity is an affiliate if
there is a demonstration of common ownership with the entity holding the
license.
C. “Alcoholic beverage display area” means
that portion of a licensee’s premises in which all alcoholic beverages on
display for sale are contained.
D. “Applicant”
means (a) an individual 19 years of age or older seeking a server permit under
the Alcohol Server Education Article of the Liquor Act; or (b) a person or
legal entity applying for a liquor license.
E. “Approved
operator” means the the following:
(1) a licensee or lessee approved by
the division to operate a liquor license;
(2) the licensee’s or lessee’s officers,
directors, managers, and members owning a ten percent interest or greater in
the licensee or lessee; and
(3) the licensee’s or lessee’s principle
officer or an individual appointed to act on the principle officer’s behalf.
F. “Bartender”
means a person who pours alcohol into a container, or who opens alcohol in containers,
for immediate service and consumption on the premises, except for the service
of wine or beer at a customer’s table in a restaurant.
G. “Bed
and breakfast” means a business establishment that offers temporary lodging
with meals included and has a guest capacity of 20 or fewer persons.
H. “Bona fide guest” means a
person whose presence in a non-profit club is in response to a specific
invitation by a member of the club and for whom the member assumes
responsibility.
I. “Cider” means an alcoholic beverage made from the normal alcoholic
fermentation of the juice of sound, ripe apples or pears that contains not less
than one-half of one percent alcohol by volume and not more than eight and
one-half percent of alcohol by volume.
J. “Commercial gambling” means any of the following:
(1) participating
in the earnings of or operating a gambling place;
(2) receiving,
recording or forwarding bets or offers to bet;
(3) possessing
one or more facilities with the intent to receive, record or forward bets or
offers to bet;
(4) becoming
a custodian of anything of value that was bet or offered to be bet;
(5) conducting
a lottery in which either the consideration or the prize are of value;
(6) possessing
one or more facilities to conduct a lottery or betting with intent to do so; or
(7) setting
up for use for the purpose of gambling, or collecting the proceeds of, a
gambling device or game.
K. “Commercial
gambling” does not mean the following:
(1) activities
authorized pursuant to the New Mexico Lottery Act;
(2) the
conduct of activities on the licensed premises of the holder of a club license
that is regulated by the New Mexico Bingo and Raffle Act at Sections 60-2B-1 to
-14 NMSA 1978, or is specifically exempted from regulation by the provisions of
the New Mexico Bingo and Raffle Act; and
(3) gaming
authorized pursuant to the Gaming Control Act, Sections 60-2E-1 to -62 NMSA
1978, on the premises of a gaming operator licensee licensed pursuant to that
act.
L. “Controlling
shareholders” means persons or entities who own fifty percent or more of
the outstanding shares of stock in a corporation.
M. “Controlled access area” means that
portion of a licensed premises under the licensee’s or lessee’s direct control
where the licensee or lessee stores, sells, serves, delivers, and provides a
place for patrons to consume alcoholic beverages.
N. “Craft distiller” means a person or
entity that is engaged in bona fide manufacture of spirituous liquors, holds a
valid federal license to produce spirituous liquors, and owns or controls fully
operational distilling equipment.
O. “Delivery” means the
transporting of alcoholic beverages from a licensed premises to consumers, off
of a licensed premises, at or near the time of purchase, constituting a sale of
alcoholic beverages. Delivery does not
include curbside pickup by consumers while seated in a motor vehicle, unless
written approval has been granted by the division.
P. “Director”
means the director of the alcohol and gaming division.
Q. “Division”
means the alcoholic beverage control division of the New Mexico regulation and
licensing department.
R. “Employee”
means any person, whether paid or not, who works under the direction of a
licensee or lessee or a licensee’s or lessee’s designate selling or serving
alcoholic beverages.
S. “Fast food establishment” means an establishment dispensing food
for consumption on and off premises that tends to have any of the following
characteristics: a menu consisting solely of pre-cooked items or items prepared
in advance and heated quickly, placement of orders at a fast serve drive-
through window, service of food solely in disposable wrapping or containers, or
a menu that exclusively sells hamburgers, sandwiches, salads and other fast
foods.
T. “Growler”
means a clean, refillable, resealable container, including crowlers, that
traditionally has a liquid capacity of sixty-four fluid ounces, but does not
exceed one gallon, and that is intended and used for the sale of beer, wine, or
cider for consumption off-premises.
U. “Howler” means a clean,
refillable, resealable container, that has a liquid capacity that does not
exceed thirty-two fluid ounces, and is intended and used for the sale of
cocktails containing spirituous liquor.
V. “Independent
contractor” means a person who has obtained the right to own, teach or
otherwise use an approved alcohol server education program.
W. “Large premises licensee” means a
retailer or a dispenser for which alcoholic beverages constitute less than
sixty percent of sales, and whose establishment contains 20,000 or more square
feet of merchandise display space.
X. “Legal
entity” means a corporation, general partnership, limited partnership,
limited liability company, association or other entity, including but not limited
to, entities for which registration is required with the New Mexico office of
the secretary of state, other than an individual.
Y. “Licensee”
means the holder of any license or permit authorizing the sale of alcoholic
beverages issued under the provisions of the act, but does not mean the holder
of a server permit.
Z. “Manufacture”
means the process of a licensee using
the licensee’s own equipment on the licensed premises to do one of the
following:
(1) for
small brewers or winegrowers, or any large manufacturer of wine or beer, the
creation of ethyl alcohol, from basic ingredients through a fermentation
process;
(2) for
craft distillers, brandy manufacturers and any large manufacturer of distilled
spirits, the purification of ethyl alcohol from basic ingredients through a
distillation process;
(3) for
rectifiers and wine blenders, the blending or mixing of spirituous liquors with
other alcoholic or non-alcoholic liquids, or non-alcoholic substances.
AA. “Member” means:
(1) a person who pays annual membership dues to a holder of a club license pursuant to Section 60-6A-5 NMSA 1978, at the rate of not less than five dollars ($5.00) per year and who, under the constitution and bylaws of the club, has been voted as a member by the current membership, and has all voting rights and full membership privileges as described in Subsection E of Section 60-3A-3 NMSA 1978;
(2) the adult spouse and the adult children of a member or of a deceased member as defined in Paragraph (1) of Subsection B of 15.10.54.7 NMAC;
(3) a member of an official auxiliary or subsidiary group of a club licensed pursuant to Section 60-6A-5 NMSA 1978, who has been issued a personal identification card in accordance with the rules of the club, as described in Section 60-7A-13 NMSA 1978; the club licensee must furnish proof to the director, upon request, of the applicable rules governing personal identification cards, and of the relationship between the club and the official auxiliary or subsidiary group; or
(4) a person who pays membership dues and is a member of a class of a club licensed pursuant to Section 60-6A-5 NMSA 1978, but are persons without full voting rights or full membership privileges, so long as such members are provided for in the articles of incorporation, bylaws, charter, constitution or resolution of the board of directors or other appropriate governing body of the entity holding the club license; members described in this paragraph may not purchase, be served or consume alcoholic beverages within the bar or lounge area of the licensed premises, but may purchase, be served or consume alcoholic beverages in other areas of the licensed premises while engaged in activities whose primary purpose is other than the consumption of alcoholic beverages.
BB. “Primary
activity”, “primarily” or “primarily engaged in” means the principal use of
a licensed premises or area within a licensed premises at any given time. If more than fifty percent of the annual
total gross receipts are derived from the sale of alcoholic beverages for
consumption on the licensed premises, the primary activity shall be deemed to
be the sale of alcoholic beverages for consumption on the licensed
premises. If more than sixty percent of
the annual total gross receipts are from the sale of alcoholic beverages for
consumption off the licensed premises, the primary activity shall be deemed to
be the sale of alcoholic beverages for consumption off the licensed premises.
CC. “Principal officer” means an officer of
the organization who, regardless of title, has responsibility for implementing
the decisions of the organization's governing body with respect to the liquor
license, or for supervising the management, administration, or operation of the
organization’s interest in the license.
Such officer may include the president, one or more vice-presidents,
secretary, or treasurer of the licensee, the manager or managers of a limited
liability company, a managing member of a member-managed, LLC or the president,
vice-president, secretary or treasurer of any corporation, or the manager or
managers of a limited liability company holding a direct or indirect interest
in the license, which requires that corporation or limited liability company to
be disclosed if that officer or manager has the authority to do any act on
behalf of the licensee.
DD. “Priority
application” means one of the first 10 applications received during any
filing period or, if more than 10 are received on the first day of the filing
period, the 10 applications randomly selected by the director pursuant to
15.11.27.10 NMAC.
EE. “Private party” means an event open
only to invited guests and not open or advertised to the general public in
which there is no financial consideration in exchange for alcoholic beverages. “Private party” does not include alcohol
industry promotional events or other events with a commercial purpose.
FF. “Public Celebration” means any state fair, county fair, community fiesta,
cultural or artistic performance or event, professional athletic competition
and events or activities held on an intermittent basis that are open or
advertised to the general public.
GG. “Public nuisance” means loitering of
habitual drunkards or intoxicated persons, lewd or indecent displays,
profanity, rowdiness, undue noise, consumption of alcoholic beverages in the
parking lot of the licensed premises, use of weapons on the licensed premises
or in the parking lot, lack of adequate security outside of the licensed
premises, lack of adequate lighting outside of the licensed premises, vandalism
to vehicles or other property, or other disturbances or activities offensive to
the average citizen or to the residents of the neighborhood in which the
licensed premises are located or failure to comply with all public health orders
issued during a public health emergency.
HH. “Restaurant” means any establishment, except a “fast food”
establishment, having a New Mexico resident as a proprietor or manager that is
held out to the public as a place where food is prepared on-site from basic
ingredients and served primarily for on-premises consumption to the general
public in consideration of payment; that has a dining room, a commercial
kitchen, and the employees necessary for preparing, cooking and serving meals.
II. “Restaurant with beer and wine
license” means a restaurant A license.
JJ. “Restaurant
with spirits license” means a restaurant B license.
KK. “Restricted area” means an area of a licensed premises that is
restricted to persons age 21and older in accordance with the act and these
rules where the primary activity in that area is the sale or consumption of
alcoholic beverages.
LL. “School” means:
(1) a public or private educational
institution accredited as such by the state or federal government;
(2) a discernible building or group of
buildings generally recognized as a preschool, kindergarten, elementary,
secondary, middle school, junior high, high school or combination thereof; or
(3) a center for attendance where
educational instruction is offered by certified school instructors; a “school”
must be located in a zoning area of the local option district that permits
schools, but shall not include a home school as defined in Public School Code,
or adult career training classes, or facilities used exclusively for daycare
services.
MM. “Securities listed on a national
securities exchange” means securities
listed or approved for listing on the New York stock exchange or American stock
exchange, or designated or approved for designation for inclusion on the
national market system by the national association of securities dealers, inc.
NN. “Serve” means to pour, or otherwise
personally provide alcoholic beverages to another person.
OO. “Shipping” means the use of a registered common carrier
by a licensee to transport alcoholic beverages.
Shipping does not include delivery of alcoholic beverages.
PP. “Small brewer” means a person or entity
that is engaged in bona fide manufacture of beer, holds a valid New Mexico
small brewer license and federal brewer’s notice of license to produce malt
beverages, demonstrates bona fide brewing operations; owns or controls fully
operational brewing equipment such as two or more of the following: fermenting
vessels, brew house, and brite or holding tanks with capacity for commercial
production, and does not produce more than 200,000 barrels of total product per
year.
QQ. “Small premises licensee” means a retailer or a dispenser for which alcoholic
beverages constitute less than sixty percent of sales, and whose establishment
contains less than 20,000 square feet of merchandise display space.
RR. “Split” means a half-bottle of wine or champagne containing
not more than 375 ml of wine or champagne.
SS. “Taste” or “tastes” means offering smaller than usual drink
sizes of alcoholic beverages to the public at no cost for the sole purpose of
promoting the product, in quantities of .5 ounces or less if the product is
undiluted spirituous liquors, and 1.5 ounces or less for all other alcoholic
beverages.
TT. “Transferable license” means a license that may be assigned, transferred or
leased pursuant to Section 60-6A-19 NMSA 1978, provided that the license holder
has met all requirements of the act and these rules.
UU. “Unaccompanied minor” means a minor
that is not under the direct supervision of their parent, adult spouse, or
adult legal guardian.
VV. “Unbroken, original package” means the sealed, unopened glass, plastic or aluminum
container holding the alcoholic beverage, but does not mean the cardboard or
other packaging holding the containers together.
WW. “Unrestricted area” means an area of a licensed premises in which minors
are allowed to enter unaccompanied by a parent, adult spouse or legal guardian,
because the primary activity in that area is not the sale, service or
consumption of alcoholic beverages.
XX. “Winegrower” means a person or entity that is engaged in bona fide
manufacture of wine, holds a valid New Mexico winegrower’s license and federal
basic permit to manufacture wine, who owns or controls fully operational
winemaking equipment with capacity for commercial production.
[15.10.2.7 NMAC - Rp, 15 NMAC
10.1.1.7, 4/25/2017; A, 9/28/2021]
HISTORY OF 15.10.2 NMAC:
Pre-NMAC Regulatory Filing
History: The material in this part was
derived from that previously filed with the State Records Center and Archives
under:
ABC Regulation No. 4B-5,
Definition Regulation 4B-5 Interpreting and Exemplifying Section 60-4B-5 NMSA
1978 (1981 Repl. Pamp.), filed 03/23/1982.
ABC Regulation No. 4B-5.(B),
Definition Regulation 4B-5(B), Interpreting and Exemplifying Section 60-4B-5
NMSA 1978 (1981-1984 Supp.), filed 11/04/1985.
AGD Regulation 4B-5(B),
Definition, filed 09/25/1990.
ABC Regulation No. 6B-10(2),
Definition of School” Interpreting and Exemplifying Section 60-6B-10 NMSA 1978,
filed 12/16/1983.
ABC Regulation No. 6B-10(B),
Definition of School” Regulation 6B-10(B), Interpreting and Exemplifying
Section 60-6B-10 NMSA 1978 (1981-1984 Supp.), filed 11/04/1985.
AGD Regulation 6B-10(B),
Definition of School,” filed 09/25/1990.
AGD 6B-10(C), Premises
Licensed Prior to 1981, filed 09/25/1990.
AGD Regulation 7A-1(C), After
Hours, filed 09/25/1990.
ABC Regulation No.
6C-1(3).(A), Public Nuisances Regulation 6C-1(3)(A), Interpreting and
Exemplifying Section 60-6C-1(3) NMSA 1978 (1981-1984 Supp.), filed 11/04/1985.
AGD 6C-1, Public Nuisances,
filed 09/25/1990.
History of Repealed Material:
15 NMAC 10.1.1, Definitions,
filed 07/02/1999 - Repealed effective 4/25/2017.