A call for a tougher Liquor Control Act has business owners up in arms
By Marisa Demarco
It's a significant figure: 1,410. That's how many dispenser liquor licenses there are in New Mexico. None have been added since 1981.
A dispenser license is a permit that allows the sale of beer, wine and hard liquor, the kind needed to run a full-service bar. When a license is revoked, it's erased from the rolls, subtracted from that number, and cannot be resold. When a bar is busted, found in violation of the Liquor Control Act too many times, the number of dispenser licenses shrinks. Because of their rarity, Alcohol and Gaming Division Director Gary Tomada has heard reports of licenses selling for between $200,000 to $350,000, though such figures are based on speculation since all licenses are privately owned these days.
Tomada is the man faced with a decision about proposed changes to the Liquor Control Act--an issue that has bar and restaurant owners up in arms. The rules governing liquor licenses in New Mexico would stiffen significantly if the proposals are adopted, but among the many amendments up for discussion, one in particular is weighing heavily on license holders' minds: a proposal stating that with two citations for selling alcohol to an intoxicated person within a 12-month period, a restaurant or bar could have their costly liquor license revoked.
1,410 ... 1,409 ... 1,408 ...
"For most people, that liquor license, that’s a lifelong investment," says Billy Baldwin, owner of Stone Face Tavern, the Horse & Angel Tavern and Billy's Long Bar, all in Albuquerque. "I think they may have gotten a little overzealous with this."
Only two licenses have been revoked in the last 10 years under the current rules, says Ed Lopez, superintendent of the State Regulation and Licensing Department. But whether that's due to poor enforcement or because the rules themselves aren't strong enough is hard to determine. Still, a good portion of the DWIs in New Mexico trace back to patrons being overserved at bars, "mostly bars whose primary business is alcohol, not food," he adds. "It's directly related to cutting people off when they're visibly intoxicated."
Gov. Bill Richardson convened a task force in 2005 to examine the regulations governing liquor sales in New Mexico "to recommend tougher regulations" that would help curb drunken driving, according to a news release. That task force came up with a list of tweaks to the rules, most of which make up the revisions on the table for discussion at three public hearings, the first of which was Wednesday, July 5, at the National Hispanic Cultural Center (NHCC).
Among other things, amendments include: serving minors or drunk people four times in 12 months would result in a revoked license; serving intoxicated people two times in 12 months would also mean license revocation; the director would have the option of not renewing a license if he considers the business unsafe for the area it's in; employees would be banned from drinking while on duty and couldn't be drunk at their place of work, even if not on duty.
The most frightening proposed change, says lawyer Kerry Morris, who represents TD's Showclubs, is the one that would disallow license holders from having an opportunity to rebut a citation, to say, "Hey, that guy wasn't drunk when we served him." In a June 1 article in the Alibi [News Feature, "Downtown Fights Back"], Peter Olson, communications director for the Department of Public Safety, says a citation is given when a Special Investigations Division (SID) agent witnesses someone serving liquor to a customer exhibiting signs of being drunk. In this case, what's considered drunk is a .14 blood-alcohol level, but a Breathalizer reading is not required as evidence.
Determining if someone is drunk is harder than it sounds, say Morris, who also worked as a prosecutor in DWI cases for two years in the early ’80s. What if the patron is a seasoned drinker and exhibits no outward signs of being drunk, even with a high blood-alcohol content? The proposed revisions would also stipulate that if a person is found drunk two hours after buying alcohol, it can be assumed he or she was above the legal limit when served the last beverage. "It's a nightmare in terms of proof," Morris says. "It's hard for a server who's had some training, or a club owner or a license holder—short of giving a Breathalizer test to each patron when they enter or when they leave or periodically throughout the night—to have any kind of degree of certainty as to the blood-alcohol content of their system."
But Lopez says that argument is nonsense. "My 5-year-old son could identify an intoxicated person," he says. Lopez believes bar owner Baldwin, who as president of the New Mexico Hospitality Retail Association is spearheading the effort to battle the proposed changes, is feeding the debate with misinformation in an effort to divert attention from a lawsuit. Baldwin is facing a lawsuit after a drunk driver killed three people in a taxi on Thanksgiving Day in 2005. The driver is said to have been drinking that night at Baldwin's bar, the Horse & Angel Tavern.
Baldwin declined to comment on the case, because it's still pending. But he did have a few words on Lopez' allegation: "I've been in business 25 years. If I was trying to do that, I would probably be better off if I wasn't saying anything [about the proposals] to try and keep the crosshairs off me."
Thinking It Through
Lopez admits his department probably hasn't thought of all the repercussions surrounding the proposed changes. That's why there are three hearings taking place in Albuquerque, Santa Fe and Las Cruces. The hearings, which are open to the public, all take place this week (July 5, NHCC; July 6, Las Cruces Public Schools Board room; July 8, Santa Fe’s Toney Anaya Building). A report, including public comment, will be prepared after the meetings by the hearing officer. Then it all comes down to Alcohol and Gaming Division Director Tomada. He says he hopes to come to a decision 30 days after the final hearing, though he can't guarantee he will.
The rules are not extreme, Lopez says, adding that neighboring states have even more stringent regulations than New Mexico's proposed changes. In California, three sales-to-intox citations in a three-year period results in revocation. More than three citations in two years gets your license revoked in Arizona. Three in three years is all it takes in Texas.
But remember that number, 1,410? In New Mexico, it hasn't been increased in 25 years, making licenses that much more expensive and difficult to obtain and, one could argue, more sorely missed when revoked without the possibility of resale. Texas has no limit on the number of liquor licenses available in the state. California takes a look at its population every year and decides if more are warranted. Arizona has a limit but released more last year and might do so again in another four years.
"I'm almost afraid to sell any liquor lately," says Jerry Wright, owner of the Great American Land & Cattle Co., a restaurant that also houses a full bar and a wine shop. He's not against all of the proposed changes. Some, he says, are long overdue. "But I could see how overzealous enforcement could pull my license. If someone doesn't like me, if I'm getting sting after sting after sting ..." Wright says he works hard to enforce the rules and takes his responsibility seriously. "I'm trying to be one of the good guys," he says. "I have a good friend who was almost killed by a drunk driver. We have to do something to get those bastards off the street."
Part of Wright's job is to take the occasional sip of wine to make sure the bottle's good. Would he get cited for such an activity if the revisions are adopted? He wonders. What if he sits down to dinner and a glass of red after work? He's the owner, so he doesn't clock in. Who's to say he was or wasn't on duty? "We need clarification," he says.
For more information on the proposed regulation changes or the hearings, go to: www.rld.state.nm.us/agd/.
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