TITLE 15 GAMBLING AND LIQUOR CONTROL
CHAPTER 10 ALCOHOLIC BEVERAGES GENERAL PROVISIONS
PART 51 SALES - RESTRICTIONS ON SALES
15.10.51.1 ISSUING AGENCY: New
Mexico Regulation and Licensing Department, Alcohol and Gaming Division.
[15.10.51.1 NMAC -
Rp, 15 10.51.1 NMAC, 4/25/2017]
15.10.51.2 SCOPE: These
regulations apply to all licensees and applicants for licensure under the act.
[15.10.51.2 NMAC -
Rp, 15 10.51.2 NMAC, 4/25/2017]
15.10.51.3 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.
[15.10.51.3 NMAC -
Rp, 15 10.51.3 NMAC, 4/25/2017]
15.10.51.4 DURATION:
Permanent
[15.10.51.4 NMAC -
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15.10.51.5 EFFECTIVE DATE: April
25, 2017, unless a later date is cited at the end of a section.
[15.10.51.5 NMAC -
Rp, 15 10.51.5 NMAC, 4/25/2017]
15.10.51.6 OBJECTIVE: This
rule is intended to establish standards by which licensees may sell and serve
alcoholic beverages under the act.
[15.10.51.6 NMAC -
Rp, 15 10.51.6 NMAC, 4/25/2017]
15.10.51.7 DEFINITIONS:
Unless otherwise defined in 15.10.2 NMAC, terms used in these rules have
the same meanings as set forth in the act:
[15.10.51.7 NMAC -
Rp, 15 10.51.7 NMAC, 4/25/2017]
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 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]
15.10.51.9 OPEN CONTAINER RESTRICTIONS:
A. No one shall provide
a person with an open container of an alcoholic beverage for consumption off
the licensed premises or permit removal of an open container from the licensed
premises.
B. No person shall
remove an open container of an alcoholic beverage from a licensed premise.
C. All alcoholic
beverages sold by package, including growlers, must be consumed off-premises.
D. Nothing in this
rule shall prohibit a dispenser or restaurant licensee from allowing the
removal of a partially consumed bottle of wine from the premises pursuant to
Section 60-3A-12 NMSA 1978.
E. A licensee may
permit a customer to remove a growler from the licensed premises, provided that
the licensee cleans the growler before filling it, re-seals the growler, and
provides a sales receipt to the customer.
[15.10.51.9 NMAC -
Rp, 15 10.51.9 NMAC, 4/25/2017]
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. 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]
15.10.51.11 SALES TO INTOXICATED PERSONS:
A. No licensee
shall sell, serve, 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 ninety minutes after sale, service 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.
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]
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.
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]
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]
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 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]
HISTORY OF
15.10.51 NMAC:
Pre-NMAC History: The material
in this part was derived from that previously filed with the commission of
public records, state records center and archives under:
ABC Regulation No.
6A-2 through 6A-5, Sales from Designated Premises Only--Delivery Service
Regulation No. 6A-2 through 6A-5, Interpreting and Exemplifying Section 60-6A-2
through 60-6A-5 NMSA 1978 (1981 and 1984 Supp.), filed 3/26/1985;
AGD 6A-2, Sales
from Licensed Premises Only, filed 9/25/1990;
ABC Regulation No.
6A-7.(A), Shipping Invoices Regulation 6A-7.(A) Interpreting and Exemplifying
Section 60-6A-7 NMSA 1978 (1981 and 1984 Supp.), filed 11/4/1985;
AGD Regulation
6A-7, Shipping Invoices, filed 9/25/1990;
AGD Regulation
7A-1(C), After Hours, filed 9/25/1990;
ABC Regulation No.
7A-16.(A), Sales to Intoxicated Persons Regulation 7A-16(A), Interpreting and
Exemplifying Section 60-7A-16 NMSA 1978 (1981-1984 Supp.), filed 11/4/1985; and
AGD 7A-16, Sales
to Intoxicated Persons, filed 9/25/1990.
History of Repealed Material:
AGD Regulation
6A-7, Shipping Invoices (filed 9/25/1990) repealed 3/31/1997.
15 10.51 NMAC,
Sales - Restrictions on Sales, filed 09/15/2006 - Repealed effective 4/25/2017.
Other History:
AGD 6A-2, Sales
from Licensed Premises Only (filed 9/25/1990); AGD 6A-7, Shipping Invoices
(filed 9/25/1990); AGD-7A-1(C) (filed 9/25/1990); AGD-7A-16, Sales to
Intoxiated Persons (filed 9/25/1990); and AGD-7B-6, Defense to Sale to Minor
(filed 9/25/1990) were all renumbered, reformatted, amended, and replaced by 15
NMAC 10.5.1, Restrictions on Sales, effective 3/31/1997.
15 NMAC 10.5.1,
Restrictions on Sales (filed 3/14/1997) was renumbered, reformatted, amended
and replaced by 15.10.51 NMAC,
Restrictions on Sales, effective 10/15/2006.
15.10.51
NMAC, Sales - Restrictions on Sales (filed 9/15/2006) was replaced by 15.10.51
NMAC Sales - Restrictions on Sales, effective 4/25/2017.