TITLE 15 GAMBLING AND LIQUOR CONTROL
CHAPTER 11 ALCOHOLIC BEVERAGES LICENSING
PART 31 ALCOHOL SERVER TRAINING -
CERTIFICATION
15.11.31.1 ISSUING AGENCY: The New Mexico
Regulation and Licensing Department, Alcoholic Beverage Control Division.
[[15.11.31.1 NMAC - Rp, 15
NMAC 11.3.1.1, 4/25/2017; A, 9/28/2021]
15.11.31.2 SCOPE: This rule
applies to all act licensees, lessees, servers, and alcohol server training
providers and instructors.
[15.11.31.2 NMAC - Rp, 15
NMAC 11.3.1.2, 4/25/2017]
15.11.31.3 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.
[15.11.31.3 NMAC - Rp, 15
NMAC 11.3.1.3, 4/25/2017]
15.11.31.4 DURATION: Permanent.
[15.11.31.4 NMAC - Rp, 15
NMAC 11.3.1.4, 4/25/2017]
15.11.31.5 EFFECTIVE DATE: April 25, 2017,
unless a later date is cited at the end of a section.
[15.11.31.5 NMAC - Rp, 15
NMAC 11.3.1.5, 4/25/2017]
15.11.31.6 OBJECTIVE: This rule is
intended to establish standards and procedures for training persons employed in
the alcoholic beverage service industry to enhance their professionalism and to
reduce the incidence of alcohol-related problems statewide, and to comply with
the provisions of the act and the alcohol server education article of the act.
[15.11.31.6 NMAC - Rp, 15
NMAC 11.3.1.6, 4/25/2017]
15.11.31.7 DEFINITIONS: Unless
otherwise defined in 15.10.2 nmac,
terms used in these rules have the same meanings as set forth in the act and
the alcohol server education act:
A. “Applicant”
means a person or entity applying to the division for certification as a
provider, instructor or program.
B. “Approved
test” means a test proctored by a live instructor or a test administered
on-line that has been approved by the division and incorporates at least 20
questions from a list of questions provided by the division. An approved test that is proctored by a live
instructor must be graded by the instructor.
C. “Certified
program” means an on-line or classroom program that is certified by the
division.
D. “Classroom
program” means a program certified by the division in accordance with these
rules that is administered, at least in part by a live instructor and may or
may not include the use of a computer.
E. “Classroom
hour” means 50 minutes of instruction time and 10 minutes of break time.
F. “On-line
program” means a program certified by the division in accordance with these
rules that is designed to be administered via the internet, including the exam,
without the presence of a live instructor.
G. “Personal
identifier” means a person’s social security number or, if a person does
not have a social security number, the person’s individual taxpayer identifier
number.
H. “Proctored
test” means a test administered and supervised by a live instructor.
I. “Server permit” means an
unexpired permit issued by the division to a person who has met all the
requirements to become a server as required by these rules.
J. “Student” means an applicant for a server permit that participates
in a certified program.
[15.11.31.7 NMAC - Rp, 15
NMAC 11.3.1.7, 4/25/2017]
15.11.31.8 SERVER PERMITS: ISSUANCE, DISTRIBUTION, REPLACEMENT:
A. Server
permit required. Every licensee or
lessee who is directly involved in sale, delivery or service of alcoholic
beverages, and all servers must satisfactorily complete a program every three
years to obtain a server permit. No
person shall be employed as a server on a licensed premises, or participate in
the delivery of alcoholic beverages unless that person first obtains a server
permit, except that a person not previously certified must obtain a server
permit within 30 days of employment.
B. Server
permit issuance. Satisfactory
completion of a certified program will be determined by the student earning a
score of eighty percent or higher on an approved test administered at the end of
a classroom program or administered at the end of or after completion of a
module for on-line programs. Each
student who satisfactorily completes a certified program may be issued a server
permit by the division. If the student
has a child support hold placed on him or her by the human services department,
the division shall not issue a server permit to that student until the child
support hold has been lifted.
C. Providers’
duty to inform the division of student’s satisfactory completion. Within 10 business days of satisfactory
completion of any certified program, the provider who administered the program
shall submit to the director a server permit application for each student who
satisfactorily completed the program, including their name, personal
identifier, address, date of birth, and any other information required by the
director on forms prescribed by the division and in accordance with methods
prescribed by the division, including electronic submission. Server permits will be numbered sequentially
to provide a unique number for each student who satisfactorily completes a
program. Any application received by the
division more than 10 business days after the date the course was completed
will subject the provider to a late fee of five dollars ($5) per application. Any incomplete application received by the
division shall be returned to the provider for completion.
D. Division
will distribute permits. The
division will prepare and distribute the server permits to the student within 120
days of satisfactory completion of a certified program. Providers are required to store original
server permit applications in a secured manner for six months from the date of
satisfactory completion of the certified program. After six months from the date of
satisfactory completion, providers may destroy the original server permit
applications through shredding or another method that ensures the information
cannot be stolen or otherwise re-used.
E. Temporary
Server Permits. Providers who
administer a classroom program may issue temporary server permits by recording
the test grade on the server permit application and issuing a designated copy
of the application to the student.
Providers who administer on-line programs may issue temporary server
permits by allowing the student to print out a computer generated document,
containing information as required by the director, upon satisfactory
completion of the program by student.
Temporary server permits are valid for 120 days from the date the exam
is successfully completed. Photocopies
of the designated copy of the application or computer print-out are not valid
temporary server permits. If the server
loses the temporary server permit, it is the responsibility of the provider to
supply a replacement temporary server permit.
Providers are required to inform all students that it will take up to 120
days from the date the exam is successfully completed for the server to receive
a permanent permit from the division and that if the server needs a replacement
temporary server permit the server may obtain one from the provider.
F. Replacement
server permits. Requests for
replacement server permits must be submitted in writing to the division. Requests must be made by the server, must be
submitted on forms prescribed by the division and must be accompanied by a ten
dollar ($10.00) replacement fee in the form of a cashier’s check or money
order. If the request is made in person,
the server must present a valid, government issued identification card. If the request is made by mail, the server
must enclose a photocopy of a valid, government issued identification card. A request to change the name of the server
may, in lieu of a valid, government issued identification card, include a copy
of a marriage certificate, divorce decree, or court order.
G. 18,
19 and 20 year olds. Pursuant to Subsection B of 60-7B-11 NMSA 1978, a
person between the ages of 18 years and 21 years old may only serve alcohol in
a restaurant. A provider may offer its
program to a student between the ages of 18 years and 21 years old, provided
that the student is given notice that the server permit will only allow the
student to serve in a restaurant and that he or she will not be eligible to
participate in the delivery of alcoholic beverages, serve in a bar or retail
location, or in a restaurant as a bartender, even with a server permit, until
he or she reaches the age of 21 years.
[15.11.31.8 NMAC - Rp, 15
NMAC 11.3.1.8; A, 9/28/2021]
15.11.31.9 PROVIDER, INSTRUCTOR AND PROGRAM CERTIFICATION;
RENEWAL:
A. Certification
required: Any person seeking
certification as a provider, instructor or program must submit an application
to the director for approval in accordance with this section. An on-line program and a classroom program cannot
be combined into one application.
B. Applications for providers and programs:
(1) Providers and instructors:
(a) the name and
qualifications of the provider or the name and qualifications of the
instructor(s), including a resume, references and the name of the certified
program that applicant intends to administer;
(b) for providers, a
surety bond from a surety company authorized to transact business in New
Mexico, or other evidence of financial responsibility, covering all instructors
in the amount of five thousand dollars ($5,000). Any independent contractor who obtains the
right to own, teach or otherwise use a program, but is not covered under the
provider’s surety bond, will be required to obtain certification as a provider,
including posting a surety bond as required in the alcohol server education
article or providing other evidence of financial responsibility. The surety bond shall be continuous, shall
name the division as payee, and shall assure the satisfactory performance of
all contracts with students, including tuition refund agreements, and the
maintenance of student records;
(c) for in-classroom
providers and instructors, the physical addresses of each location where the
program will be offered and the dates when the program will be offered. A maximum of 40 students per class or the
maximum occupant load permitted by the state or local fire marshal, whichever
is less, will be permitted;
(d) for on-line
providers, the name and address of all entities owning, profiting, or both from
the administration of the on-line course;
(e) fees that will
be charged to take the program;
(f) for providers a
copy of applicant’s business license;
(g) for providers a
copy of applicant’s tax registration certificate;
(h) a form, prescribed
by the director, authorizing a background check for all providers and
instructors. Persons convicted of a
felony or crimes of moral turpitude may not be certified as providers or
instructors at the discretion of the director.
Additional documentation regarding disposition of any charges may be
requested by the director prior to approval of any application for
certification;
(i) application
fees in the amount of three hundred fifty dollars ($350) per provider and one
hundred dollars ($100) per instructor; in instances where the applicant is
applying to be both a provider and instructor, i.e. the provider and instructor
are the same person, only the three hundred fifty ($350) application fee is
required to be paid; and
(j) any other
relevant information as may be required by the director.
(2) Programs:
(a) a description of
program content that meets the minimum requirements contained in Subsection D
of 15.11.31.9 NMAC and 15.11.31.10 NMAC, including a copy of the classroom
program’s handbook or a copy of the on-line program’s quick reference materials
to be distributed to and retained by students after satisfactory completion of
the program. All programs should include
real life examples and should be administered, at least in part, in an
interactive way;
(b) all proposed
programs must include a minimum of four and one-half (4 ½) classroom hours or
the equivalent for on-line programs;
(c) a copy of
applicant’s business license;
(d) a copy of
applicant’s tax registration certificate;
(e) for on-line
programs:
(i) a
description of the procedure for electronic transmission of the student’s full
name, address, personal identifier, driver’s license or other government-issued
identification number and state of issuance, date of birth, phone number,
e-mail address, sex, height, weight, hair color, eye color, test score and test
completion date within 10 days of a student’s successful completion of the
program, including a description of the security measures that will be taken to
ensure that the information is stored and transmitted in a secure manner. The electronic transmission of the student’s
information should meet the data security standards prescribed by the payment card
industry security council or the equivalent as determined by the director, and
in a format approved by the director;
(ii) a
description of any and all security measures taken to ensure that the person
who is taking the course is the same person who will receive credit for taking
the course and who will submit to the proctored exam at the end of the course;
(iii) proof
to the satisfaction of the director that the average user will take at least four
clock hours or the equivalent to complete course;
(iv) proof
to the satisfaction of the director that students cannot fast-forward or skip
through the course materials.
(f) any other
reasonably relevant information as may be required by the director;
C. Completeness
check: When the division receives an
application for certification as a provider, instructor or program, the
division will check the application for completeness.
(1) if the application is incomplete, the
division will contact the applicant for additional information;
(2) if the application is complete, the
division shall review the application.
D. Standards
for certification: An application
for certification may be granted if the standards identified in this section
are met.
(1) Providers
and instructors: In reviewing
applications for certification as a provider or instructor the division shall
consider:
(a) whether all the
information required by these rules has been submitted and is accurate and
valid;
(b) the
qualifications and references of the applicant, including whether the applicant
has 3 or more years of experience related to the sale or service of alcoholic
beverages;
(c) the results of
the background check;
(d) whether
applicant is 21 years of age or older;
(e) whether
applicant has ever been found guilty of or admitted guilt to a violation
of the liquor control act;
(f) whether
applicant intends to teach a program certified by the state of New Mexico in
accordance with these rules;
(g) any other
reliable and relevant information, as determined by the director.
(2) Programs: In reviewing applications for certification
as a program the division shall consider:
(a) whether the
information required by these rules has been submitted and is accurate and
valid;
(b) whether the
program includes all content required by law, currently contained in Subsection
B of 60-6E-5 NMSA 1978;
(c) whether the
program includes comprehensive training on how to detect obvious signs of
intoxication, focusing both on the sale of alcohol for off-premise and
on-premise consumption;
(d) whether the
program includes an up-to-date sample photo of a driver’s license issued to a
minor by the New Mexico motor vehicle division of the New Mexico department of
taxation and revenue and training on how to detect a fake or fabricated
identification card;
(e) whether the
program includes photos and examples of bars, restaurants, convenience stores
and other retail settings, including self-checkout, to ensure a balance in
preparing servers to sell alcohol for consumption both on-premise and
off-premise;
(f) whether the
program includes management-specific training, including strategies for
management to support servers working under their supervision;
(g) whether the
program is reviewed and revised annually to ensure current comprehensive
training;
(h) whether the
program is interactive and includes real life instructional examples;
(i) for on-line
programs whether it is easy to navigate and user-friendly; and
(j) any other reliable
and relevant information, as determined by the director.
(3) In addition to the other standards
listed above, all providers and instructors shall hold current server
certification at all times when providing instruction.
E. Expiration
of certification: Provider, instructor
and program certificates expire on December 31 each year.
F. Renewal:
Renewal applications for provider,
instructor and program certifications must be submitted no later than November
30 of each year. Renewal applications
must include renewal fees in the amount of three hundred and fifty dollars ($350)
per provider, one hundred dollars ($100) per instructor. Late renewal applications will be subject to
a late fee of thirty dollars ($30) per day.
(1) Renewal applications for providers
and instructors must include names and qualifications of the provider or
instructors and proof that the provider is covered by a surety bond in the
amount of five thousand dollars ($5,000) of a surety company authorized to
transact business in New Mexico;
(2) Renewal applications for programs
shall include a summary of all proposed changes to program content from the
prior year and any updates that have been made or will be made to the program,
including where those changes can be found in the program materials. At a minimum, programs must be updated
annually to reflect changes to the law, updated statistical information and an
up-to-date sample photo of a driver’s license issued to a minor by the New Mexico
motor vehicle division of the New Mexico department of taxation and revenue if
applicable.
G. Pro-rated
fees: The initial certification fee
for providers, programs and instructors will be prorated, as follows:
(1) certification obtained before April 1
of any year will be subject to the full amount of the annual certification fee;
(2) certification obtained on or after
April 1 and before July 1 will be subject to three-fourths of the annual fee;
(3) certification obtained on or after
July 1 and before October 1 will be subject to one-half of the annual fee; and
(4) certification obtained on or after
October 1 will be subject to one-fourth the annual fee.
H. Transferability:
Provider, instructor and program
certifications are non-transferrable.
I. Probation, suspension or revocation: The director may place a provider or
instructor on probation if the director has a reasonable belief that the
provider or instructor is not in compliance with one or more of the
requirements of the statutes or division rules.
The director shall send a notice of probation to the provider,
instructor or both specifying the provisions with which the provider or
instructor is not in compliance along with an order to show cause why the
provider or instructor certification should not be suspended. If the provider or instructor fails to show
cause why his or her certification should not be suspended, the director may
suspend the provider or instructor certification for a reasonable period of
time. The director shall determine the
period of probation or suspension depending upon the number and nature of the
violations. If the provider or
instructor is placed on probation, the director shall review the provider or
instructor’s operations periodically during the probationary period. At anytime, a provider or instructor that is
placed on probation or suspension may request a hearing. The director may only revoke a provider or
instructor certification for cause after a hearing.
J. Cancellation: A provider or
instructor certification shall automatically be cancelled if the provider or
instructor ceases to offer classes for 60 days or more, or upon written notice
form the provider.
[15.11.31.9 NMAC - Rp, 15
NMAC 11.3.1.9, 4/25/2017]
15.11.31.10 ADMINISTRATION OF CERTIFIED SERVER
TRAINING PROGRAM:
A. Providers’
responsibility in administering a certified program: It is the responsibility of providers to
ensure that they and any instructors employed by them are teaching a certified
program.
B. Course
materials: Providers shall ensure that each student is
provided complete course materials at the beginning of each certified
program. Providers who administer an
on-line program shall ensure that each student either has electronic access to
course materials or is able to print out course materials for quick reference
after satisfactory completion of the program.
All course materials shall be presented by instructors in a manner that
does not indicate which material is selected for the proctored test.
C. Prior
approval required: Providers must obtain prior
approval from the director before changing the required content of a certified
program.
D. Proctored
tests: Proctored tests must be
administered in person immediately after completion of a classroom
program. Students may not have access to
course materials during administration of the proctored test. Exam questions
must be rotated on a regular basis to ensure exam validity and security. Providers may allow an applicant who fails
the test to re-take it at another time in the presence of an instructor. Proctored tests must be graded by a certified
instructor and cannot be graded by a student.
E. On-line
tests: On-line tests must be available to be administered
immediately after students complete the course or complete a particular module
of the course. Exam questions must be
rotated on a regular basis to ensure exam validity and security. Students may not have access to course
materials during administration of the on-line test. Providers administering on-line tests shall
provide the necessary security measures to the satisfaction of the director to
combat the potential for cheating.
Examples of security measures include, but are not limited to, shuffling
exam questions each time a new exam begins, prohibit students from stopping and
resuming the exam session, implement a reasonable time limit on the exam,
present security questions at random throughout the exam. The results of the on-line test must be given
to the student after completion of the on-line test, and providers shall
provide a score report indicating wrong answers by referencing course content
section.
F. ADA
compliance: Providers and instructors are required to
comply with the Americans with Disabilities Act (ADA) and ensure that students
with disabilities are provided with reasonable accomodation for instructional
and learning purposes to the extent required by law.
G. Administration
of on-line programs: Providers who administer an
on-line program without the presence of a live instructor must ensure the
following:
(1) a secure login process is in
place to confirm the identity of the person taking the course;
(2) students may not be allowed
to fast-forward through the instruction portion of the course;
(3) students must have adequate
access to a help desk or customer service to resolve technical problems without
delaying the flow of instruction, as well as access to a person who can answer
substantive questions that may arise in the course of the training within 72
hours of the student asking the question;
(4) no advertisements appear
during course instruction; and
(5) students either have
electronic access to course materials or are able to print out course materials
for quick reference after satisfactory completion of the on-line program as
required by these rules.
[15.11.31.10 NMAC - Rp, 15
NMAC 11.3.1.10, 4/25/2017]
15.11.31.11 SURETY BOND; EVIDENCE OF FINANCIAL
RESPONSIBILITY: The purpose of the surety bond is to ensure
that the provider’s students will be reimbursed for fees paid for the program
if the provider or instructor fails to conduct the program to completion.
[15.11.31.11 NMAC - Rp, 15
NMAC 11.3.1.12, 4/25/2017]
15.11.31.12 VIOLATION OF PROVIDER AND PROGRAM
REQUIREMENTS: The director may fine or decertify any
program, or refuse to renew certification, when the director determines that:
A. a provider, instructor or an agent,
knowingly provided false information to the director, advisory committee or
division with regard to completion of a certified program by any person;
B. a provider, instructor or an agent,
failed to conduct the program as certified by the division;
C. any person filing an application
with the division for certification of a provider, instructor or program
knowingly submitted false information to the director, advisory committee or
division;
D. a provider failed to provide to the
division complete, timely reports of applicants who satisfactorily completed
the program; or
E. a provider or instructor otherwise
failed to comply with the alcohol server education article or these rules.
[15.11.31.12 NMAC - Rp, 15
NMAC 11.3.1.13, 4/25/2017]
15.11.31.13 [RESERVED]
HISTORY OF 15.11.31 NMAC:
Pre-NMAC History: [RESERVED]
History of Repealed Material:
15 NMAC 11.3.1.7.1 - Repealed
7/15/1999
15 NMAC 11.3.1.7.2 - Repealed
7/15/1999
15 NMAC 11.3.1.7.4 - Repealed
7/15/1999
15 NMAC 11.3.1.7.6 - Repealed
7/15/1999
15 NMAC 11.3.1.7.7 - Repealed
7/15/1999
15 NMAC 11.3.1, Alcoholic
Beverages Licensing - Alcohol Server Training - Certification, filed 3/14/1997
- Repealed effective 4/25/2017.
NMAC History:
15 NMAC 11.3.1, Alcoholic
Beverages Licensing - Alcohol Server Training - Certification (filed 3/14/1997) was replaced by 15 NMAC 11.3.1, Alcoholic Beverages Licensing -
Alcohol Server Training - Certification, effective 4/25/2017.