TITLE 15 GAMBLING AND LIQUOR CONTROL
CHAPTER 10 ALCOHOLIC
BEVERAGES GENERAL PROVISIONS
PART 70 OPERATION
AND PROFITING BY AUTHORIZED PERSONS AND ALTERNATING
PROPRIETORSHIPS
15.10.70.1 ISSUING AGENCY: The New Mexico
Regulation and Licensing Department, Alcoholic Beverage Control Division.
[15.10.70.1 NMAC - Rp, 15
NMAC 10.7.1, 4/25/2017; A, 9/28/2021]
15.10.70.2 SCOPE: These rules
apply to all licensees and applicants for licensure under the act.
[15.10.70.2 NMAC - Rp, 15
NMAC 10.7.2, 4/25/2017]
15.10.70.3 STATUTORY AUTHORITY: Section 60-3A-10 NMSA 1978 of the act authorizes the
director to make and adopt such rules as necessary to carry out the duties of
the division.
[15.10.70.3 NMAC - Rp, 15
NMAC 10.7.3, 4/25/2017]
15.10.70.4 DURATION: Permanent.
[15.10.70.4 NMAC - Rp, 15
NMAC 10.7.4, 4/25/2017]
15.10.70.5 EFFECTIVE DATE: April 25, 2017,
unless a later date is cited at the end of a section.
[15.10.70.5 NMAC - Rp, 15
NMAC 10.7.5, 4/25/2017]
15.10.70.6 OBJECTIVE: This rule is
intended to establish standards by which licensees may sell alcoholic beverages
under the act.
[15.10.70.6 NMAC - Rp, 15
NMAC 10.7.6, 4/25/2017]
15.10.70.7 DEFINITIONS: Unless
otherwise defined in 15.10.2 nmac,
terms used in these regulations have the same meanings as set forth in the act.
[15.10.70.7 NMAC - Rp, 15
NMAC 10.7.7, 4/25/2017]
15.10.70.8 OPERATION AND PROFITING BY
AUTHORIZED PERSONS:
A. No person other than the licensee or
lessee or employees of the licensee or lessee, shall sell or serve alcoholic
beverages at the licensed premises.
(1) All orders, sales, service,
dispensing, delivery and receipt of payment for alcoholic beverages must be
completed by the licensee or lessee, or employees of the licensee or lessee, or
the employees of a third-party delivery licensee contracted with for delivery
purposes.
(2) Sales of alcoholic beverages by a
licensee or lessee may not be combined with any sales of another person or
entity that is not the licensee or lessee.
Nothing in this section shall prohibit the a licensee and a third-party
delivery licensee from contracting for the delivery of alcoholic beverages to
consumers.
B. Only the licensee or lessee shall
directly profit from the sale of alcoholic beverages sold pursuant to a
license. A person directly profits from
the sale of alcoholic beverages in violation of this rule when any person other
than the licensee or lessee receives any portion of the profits earned, or
receipts, from the sale of alcoholic beverages, except for:
(1) the payment of rent for the licensed
premises based in whole or in part on a percentage of the licensee's gross
sales;
(2) the payment to employees of incentive
compensation based upon a percentage of gross sales;
(3) revenues received by an affiliate of
the licensee from the sale of products other than alcoholic beverages on the
licensed premises;
(4) revenues split by a liquor licensee
and its lessee pursuant to a hotel management agreement approved by the
division, provided that operational control of the licensed premises remain at
all times with the lessee and the split of revenue is reasonable;
(5) such other reasonable splitting of
revenues specifically approved by the director, who may require additional
disclosures and sworn statements as condition for such approval; or
(6) such agreements reviewed and approved
by the division in regards to licensees and third-party delivery licensees
contracting for delivery services to consumers.
C. Except as provided in this part, it
is a violation of the act for any licensee to divide, split, or in any way
share the right to sell alcoholic beverages, with any person not named as a
licensee on the license.
D. Upon 30 days' written notice, a licensee
shall demonstrate compliance with this rule.
Failure to demonstrate compliance will result in initiation of
proceedings against the licensee by the director, pursuant to Section 60-6C-1
NMSA 1978 et seq. Evidence of compliance
will be provided as follows:
(1) proof that all employees are paid by
the approved operator or that the employees are providing such services as bona
fide volunteers, consisting of copies of canceled paychecks or equivalent
documents for the most recent three-month period; and
(2) proof that receipts of the licensed
business are deposited directly into a bank account in the sole name of the
approved operator, consisting of copies of bank records showing deposits and
the name of the approved operator and signatories on the account; and
(3) proof of operation by the
licensee or lessee, consisting of copies of all real estate lease agreements,
concession agreements, management agreements, contracts for delivery or
contracts of any kind to which the licensee or lessee is a party with other
persons for operation or profit-sharing in the operation; and
(4) proof that receipts of the business
are not shared with non-licensed parties, consisting of copies of all canceled
checks for the most recent three-month period with explanations of payments to
persons other than suppliers, the approved operator, or employees of the
approved operator.
[15.10.70.8 NMAC - Rp, 15
NMAC 10.7.8, 4/25/2017; A, 9/28/2021]
15.10.70.9 EMPLOYMENT
BY MULTIPLE LICENSEES:
A. No person shall receive valuable
consideration from a manufacturer or wholesaler for services performed while
working as an employee, contractor, or other agent for a holder of a retailer,
dispenser, restaurant or club license.
B. Any person receiving valuable
consideration as described in Subsection A of 15.10.70.9 NMAC or any person who
knowingly provides such consideration, shall be in violation of these rules and
subject to fines and penalties as provided in these rules. Such violations may also be considered by the
division in the granting of applications pursuant to Subsection C of 15.11.21.15
NMAC, and the renewal of licenses pursuant to Paragraph (2) of Subsection B of 15.11.22.8
NMAC.
[15.10.70.9 NMAC - N, 4/25/2017]
15.10.70.10 ALTERNATING
PROPRIETORSHIPS:
A. An
“alternating proprietorship” is an arrangement in which two or more entities
may alternate using a licensed premises, equipment and employees to manufacture
alcoholic beverages. Alternating
proprietorships allow existing, duly licensed New Mexico winegrowers, small
brewers and craft distillers to use excess capacity and provide opportunity to
begin on a small scale, without investing in premises and equipment.
B. Each
licensee participating in an alternating proprietorship must separately
manufacture alcoholic beverages, whereby each
licensee’s product must be separate and identifiable from the product of any
other parties to the alternating proprietorship, including prior to
fermentation, during fermentation, during cellar storage, and as finished
product after production and before removal from the premises.
C. An
alternating proprietorship may only occur between licensees of the same license
type.
D. Filing
of written agreement:
(1) Any bona
fide alternating propietorship between one or more duly licensed craft
distillers, winegrowers or small brewers shall be documented through a written
agreement signed by each licensee or its resident agent.
(2) The
agreement shall quantify the extent to which the licensed premises, employees
and equipment may be used by each duly-licensed licensee.
(3) All
parties to the agreement shall furnish a true and correct copy to the division.
E. All
alternating proprietorships must be approved in advance by the Division: Any determination pursuant to this section
shall be interpreted consistent with the United State Code of Federal
Regulations at Part 27, Section 19.693, Part 27, Section 25.52, and with all
relevant United States alcohol and tobacco tax and trade bureau industry circulars.
F. All
alternating proprietorships must be approved by the United States department of
the treasury, alcohol and tobacco tax and trade bureau prior to final approval
by the division.
G. A small
brewer, winegrower, or craft distiller license whose production plan wholly
relies upon an alternating proprietorship shall not be entitled to any off-site
premises as otherwise provided by the act.
[15.10.70.10 NMAC - N, 4/25/2017]
HISTORY OF 15.10.70 NMAC: [RESERVED]