Attorney General Opinions and Advisory Letters

Opinion No. 79-21

May 4, 1979

OPINION OF: Jeff Bingaman, Attorney General

BY: Arthur J. Waskey, Assistant Attorney General

TO: James R. Baca, Director, Department of Alcoholic Beverage Control, Lew Wallace Building, State Capitol, Santa Fe, New Mexico 87503

ALCOHOLIC BEVERAGES

The transfer of a liquor license may be approved from a location within the corporate limits of a municipality to a location within the same county but outside the corporate limits of the municipality and its five-mile buffer zone.

QUESTIONS

May the transfer of a liquor license be approved from a location within the corporate limits of a municipality to a location within the same county but outside the corporate limits of the municipality and its five-mile buffer zone?

CONCLUSIONS

Yes.

ANALYSIS

Section 60-7-29(B) NMSA 1978 specifically provides for the transfer of a liquor license from within the corporate limits of a municipality to a location within five miles of the corporate limits of the municipality. However, there is no express authorization in the Liquor Control Act, Sections 7-17-1 to 7-17-11, 7-24-1 to 7-24-7 and 60-3-1 to 60-11-4 NMSA 1978, for the direct transfer of a liquor license from a location within a municipality to a location within the county but beyond the five mile zone of the municipality.

Nevertheless, a recent opinion by the New Mexico Supreme Court indicates that the approval of a direct transfer of a liquor license from within a municipality to a location in the county beyond the five-mile zone would be legal and proper. In State ex rel. Anaya v. Jaramillo, State Bar of New Mexico Bulletin and Advance Opinions, Vol. 18, No. 16, April 19, 1979, the Supreme Court confirmed its earlier unreported decision in Benavidez v. Department of Alcoholic Beverage Control, No. 10,353, where it was held that Section 60-7-29, supra, does not prohibit the "transfer . . . of a liquor license from within the five-mile zone to a place inside the county but outside the territorial limits of the incorporated municipality and the surrounding five-mile zone."

Thus, since Section 60-7-29, supra, expressly authorizes transfers of liquor licenses from within the corporate limits of a municipality to a location within that municipality's five-mile buffer zone, and since the Supreme Court now interprets Section 60-7-29, supra, as allowing the transfer from a five-mile zone to an unincorporated area outside that five-mile zone, the transfer from a municipality to an unincorporated area outside the five-mile zone could legally be accomplished in two steps. This being the case, there is no logical reason to require a two-step transfer, and we are of the opinion that the Director of the Department of Alcoholic {*52} Beverage Control can validly approve transfers directly from a location within the corporate limits of a municipality to a location inside the county but outside the corporate limits of the municipality and its surrounding five-mile zone.

ATTORNEY GENERAL

Jeff Bingaman, Attorney General