New Mexico Register /
Volume XXXII, Issue 18 / September 28, 2021
This is an amendment to
15.10.51 NMAC, Sections 1, 8, 10 through 14 and adding new Sections 15 and 16,
effective 9/28/2021.
15.10.51.1 ISSUING AGENCY: New Mexico
Regulation and Licensing Department, [Alcohol and Gaming] Alcoholic
Beverage Control Division.
[15.10.51.1 NMAC - Rp, 15
10.51.1 NMAC, 4/25/2017; A, 9/28/2021]
15.10.51.8 SALES FROM LICENSED PREMISES ONLY: Licensees
shall sell, offer to sell, and serve alcoholic beverages for promotional or
otherwise commercial purposes only from the controlled access area of a
licensed premises approved by the director, including premises licensed through
special event permits pursuant to 15.11.25 NMAC.
[15.10.51.8 NMAC - Rp, 15
10.51.8 NMAC, 4/25/2017; A, 9/28/2021]
15.10.51.10 AFTER HOURS SALES OR SERVICE OF
ALCOHOLIC BEVERAGES:
A. Licensees may not sell, serve or
allow the consumption of alcoholic beverages on the licensed premises except
during the hours permitted by the Liquor Control Act.
[B. Nothing herein is intended to
prohibit any licensee from opening after 7:00 a.m. on any day when the sale of
alcoholic beverages is not prohibited.
C.] B. A licensee whose primary business activity
on the licensed premises is the sale of alcoholic beverages for consumption on
the licensed premises may not open the licensed premises to the public or to
club members for any purpose or business after the lawful established closing
times provided for in the Liquor Control Act, unless permitted by the director
in writing.
[15.10.51.10 NMAC - Rp, 15
10.51.10 NMAC, 4/25/2017; A, 9/28/2021]
15.10.51.11 SALES TO INTOXICATED PERSONS:
A. No licensee shall sell, serve, deliver,
procure or aid in the procurement of alcoholic beverages to an intoxicated
person if the licensee knows or has reason to know that the person is obviously
intoxicated.
In addition to other commonly
recognized tests of intoxication, a blood alcohol content level of .14 or
higher on breath or blood test taken not more than one and one-half hour or 90
minutes after sale, service, delivery or consumption of alcoholic
beverages shall be presumptive evidence that the person was intoxicated at the
time of the last sale. For purposes of
this rule, a “sale” shall mean the time at which the person actually paid for
the last alcoholic beverage served by the licensee to the intoxicated person,
or when the alcoholic beverage is delivered to the intoxicated person’s address
for delivery, when applicable.
B. The following practices are
prohibited on a licensed premises:
(1) games or contests that involve
drinking alcoholic beverages or the awarding of alcoholic beverage drinks as
prizes;
(2) the sale or delivery to a person of
an unlimited number of alcoholic beverage drinks during any set period of time
for a fixed price;
(3) the sale or delivery of two or more
alcoholic beverage drinks for the price of one;
(4) the sale or delivery of alcoholic
beverages by the drink for less than half the usual, customary, or established
price for a drink of that type on the licensed premises;
(5) the sale or delivery of alcoholic
beverages by the drink for less than cost;
(6) the advertising of the practices
prohibited by this regulation; or
(7) the sale or service of a bottle of
spirits for on-premises consumption.
C. The two drink rule:
(1) No licensee shall serve or otherwise
allow any person to have more than two unconsumed, opened alcoholic beverage
drinks on a licensed premises at any one time.
(2) Examples of Paragraph (1)
of Subsection C of 15.10.51.11 NMAC, include but are not limited to, the
following:
(a) a licensee shall
not sell, serve or allow any person to have at any one time a beer flight that
exceeds the equivalent total volume of two drinks;
(b) a licensee shall
not sell, serve, or allow any person to have at any one time a wine flight that
exceeds the equivalent total volume of two drinks; and
(c) a licensee shall
not sell, serve or allow any person to have at any one time a spiritous liquor
flight that exceeds the equivalent total volume of two drinks.
D. Nothing contained in this regulation
shall prohibit a licensee from:
(1) including one alcoholic beverage
drink per person as part of a meal package when approved by the director in
writing;
(2) selling wine by the bottle or carafe [,
or beer in a pitcher,] when sold with a meal;
(3) selling wine by the bottle or carafe,
or beer in a pitcher, to more than one person;
(4) offering free tastes;
(5) offering free alcoholic beverage
drinks to registered guests in its hotel when approved by the director in
writing;
(6) utilizing a "free drink
coupon" which is limited to one drink per day per patron or giving a
patron a free drink as a gesture of good will or friendship; free drinks as a
gesture of good will or friendship may not be advertised and may not be given
at any established interval or based on the purchases by the customer; or
(7) offering to customers product
promotions such as sweepstakes, rebates on non-alcoholic beverage items, or
goods that are not or do not include alcoholic beverages.
[15.10.51.11 NMAC - Rp, 15
10.51.11 NMAC, 4/25/2017; A, 9/28/2021]
15.10.51.12 “BYOB” EXCEPTION: PRIVATE PARTIES ON
LICENSED PREMISES: No person or entity may bring
alcoholic beverages, previously purchased, onto a licensed premises or onto any
public premises, or consume alcoholic beverages purchased by package on a
licensed premises, except as provided in this section.
A. A licensee may allow a private party
at which the host provides his own alcoholic beverages to be held on the
licensed premises, the host must be able to provide the licensee with a
receipt for the alcohol being served at the event, showing where the alcohol
was purchased.
B. If the host provides his own
alcoholic beverages, no alcoholic beverages may be sold to any guest at the
private party by the host, the licensee, or anyone else. The alcoholic
beverages must be served to the guests by persons who hold valid current server
permits.
C. If the private party is held during
hours that the licensed premises is open to the public, the area where the
private party is to be held must be closed to the public and security provided
to prevent persons without invitations from entering.
D. Private parties must be held on days
and at times during which the licensee is authorized to sell or serve alcoholic
beverages.
E. A licensee may receive alcoholic
beverages donated by a licensed New Mexico wholesaler to the host of the private
party and may serve the donated alcoholic beverages at a private party if the
wholesaler provides the licensee with an invoice for the donated alcoholic
beverages.
[15.10.51.12 NMAC - Rp, 15
10.51.12 NMAC, 4/25/2017; A, 9/28/2021]
15.10.51.13 ALCOHOL
SERVICE BY EMPLOYEES ONLY:
A. All
alcoholic beverages sold or served to members of the public pursuant to a
liquor license must be sold or served by a person who has a valid alcohol
server permit and is an employee or independent contractor of the licensee.
B. Except
as provided in this sub-section, self-service of alcoholic beverages is not
permitted in an establishment licensed to sell alcohol:
(1) A
person may self-serve beer from a pitcher that has been previously served to
that person if in compliance with Subsection D of 15.10.51.11 NMAC, above.
(2) A
person may self-serve wine from a bottle or carafe that has been previously
served to that person if in compliance with Subsection D of 15.10.51.11 NMAC,
above.
C. Devices
that allow a non-employee in a licensed premises to self-serve themselves an
alcoholic beverage are prohibited, except that nothing in this paragraph shall
prevent the otherwise lawful sale or service of alcoholic beverages from a
“mini-bar” in a “hotel” as defined in Subsection N of 60-3A-3 NMSA 1978.
D. No
licensee, agent, lessee, contractor or employee of the licensee shall consume
alcoholic beverages while on duty [or be present on the licensed premises]
with the following exceptions:
(1) owners,
employees, contractors, licensed wholesalers and licensed retailers may drink
alcoholic beverages for product training and evaluation purposes, but must not
become impaired;
(2) entertainers
who contract with a licensed establishment and are not involved in the sale or
service of alcoholic beverages may consume alcoholic beverages; and
(3) the
licensee, lessee, or an owner or operator may consume alcoholic beverages
provided that such consumption does not result in impairment.
[15.10.51.13 NMAC; N, 4/25/2017;
A, 9/28/2021]
15.10.51.14 GAMBLING
ON LICENSED PREMISES:
[A.] An entity holding a valid license
issued under the act may conduct any activities on the licensed premises that
are excluded from the definition of commercial gambling pursuant to Subsection
C of Section 60-7A-19 NMSA 1978.
[B. Except
as noted in Subsection A of 15.10.51.14 NMAC, any licensee may only conduct
commercial gambling on what is otherwise a licensed premises if the licensee
either:
(1) temporarily
suspends the license for the entire premises, or
(2) temporarily
suspends the portion of the licensed premises on which the gambling will occur,
subject to the following conditions:
(a) gambling
may be conducted in areas of the licensed premises that are physically
segregated from areas in which alcoholic beverages are being sold, served, or
consumed. The areas must be separated by
walls or other physical obstructions limiting movement of customers between the
areas;
(b) no
alcohol may be sold, served, or consumed within the physical area in which gambling
is being conducted;
(c) appropriate
signs must be posted within the areas in which gambling is being conducted
advising customers that alcoholic beverages may not be sold, served, or
consumed within those areas; and
(d) customers
are prohibited from participating in gambling in areas in which alcoholic
beverages are being sold, served, or consumed.
C. Nothing in this rule shall be
construed to authorize any forms of gambling within any licensed premises other
than as specifically provided herein and in the act.
D. Any temporary suspension described
in Subsection B of 15.51.14 NMAC, must be requested by application provided by
the division, and approved in writing by the division prior to the date of the
suspension.]
[15.10.51.14 NMAC; N,4/25/2017;
A, 9/28/2021]
15.10.51.15 SALES
OF CERTAIN SPIRITOUS LIQUORS:
A. A licensee shall not sell spiritous liquor
in a closed container of three fluid ounces or less, for consumption off the
licensed premises, except for:
(1) Sales in which 10 containers of three
fluid ounces or less are packaged together by the manufacturer and meant for
sale as a single unit.
(2) Sales in which a container of
three fluid ounces or less are packaged by the manufacturer, as a value-added
product, in conjunction with a spirits purchase of 750 millilliters or larger.
B. Nothing within this section shall
prohibit the sales of spiritous liquors in open containers of three fluid
ounces or less, for consumption on the licensed premises.
C. The division reserves the right to
prohibit sales of containers of three fluid ounces or less, of alcoholic
beverages with an alcohol by volume of fifteen percent or greater.
[15.10.51.15 NMAC – N, 9/28/2021]
15.10.51.16 SALES
OF ALCOHOLIC BEVERAGES TO MOTOR VEHICLES PROHIBITED: An entity holding a valid license issued under the
act shall not sell, serve, or deliver alcoholic beverages to a customer in a
motor vehicle through a drive-up window, curbside pickup, or other means in
which the customer remains in the motor vehicle during the transfer of the
alcoholic beverage, unless written approval is granted by the division.
[15.10.51.16 NMAC – N, 9/28/2021]