Any municipality containing more than five thousand persons according to the latest United States census, whether the county in which that municipality is situated has adopted the local option provisions of the Liquor Control Act or any former act or not, or any county in the state may adopt local option in the county or municipality upon the following terms and conditions:

A. the qualified electors of a proposed local option district may petition the governing body by filing a petition in the appropriate office to hold an election for the purpose of determining whether the county or municipality shall adopt the local option provisions of the Liquor Control Act. If the number of the signatures of the electors on the petition equals or exceeds five percent of the number of qualified electors of the district, the governing body shall call an election within ninety days of the verification of the petition; provided that the date is not in conflict with the provisions of Section 1-24-1 NMSA 1978. The governing body shall refuse to recognize the petition if more than three months have elapsed between the date of the first signature and the filing of the petition. The election also may be initiated by a resolution adopted by the governing body of the proposed local option district without a petition having been submitted;

B. the election shall be called, conducted, counted and canvassed pursuant to the provisions of the Local Election Act [Chapter 1, Article 22 NMSA 1978];

C. except as otherwise provided in this section, contests, recounts and rechecks shall be permitted as provided for in the case of candidates. Applications for contests, recounts or rechecks may be filed by any person who voted in the election, and service shall be made upon the county clerk or municipal clerk as the case may be;

D. if a majority of all the votes cast at the election is cast in favor of the sale, service or public consumption of alcoholic beverages in the county or municipality, the chair of the governing body shall declare by order entered upon the records of the county or municipality that the county or municipality has adopted the local option provisions of the Liquor Control Act and shall notify the department of the results;

E. if an election is held under the provisions of the Liquor Control Act in a county that contains within its limits a municipality of more than five thousand persons according to the latest United States census, it is not necessary for the qualified electors in the municipality to file a separate petition asking for a separate or different vote on the question of adopting the local option provisions of the Liquor Control Act by the municipality. The election in the county shall be conducted so as to separate the votes in the municipality from those in the remaining parts of the county. If a majority of the voters in the county, including the voters in the municipality, votes against the sale, service or public consumption of alcoholic beverages in the county, the county shall not adopt the local option provisions of the Liquor Control Act; but if a majority of the votes in the municipality is in favor of the sale, service or public consumption of alcoholic beverages, the municipality shall have adopted the local option provisions of the Liquor Control Act. Nothing contained in this subsection shall prevent any municipality from having a separate election under the terms of this section;

F. a county or municipality composing a local option district under the provisions of the Liquor Control Act or a former act may vote to discontinue the sale, service or public consumption of alcoholic beverages in the local option district; the discontinuance shall become effective on the ninetieth day after the local option election is held; and

G. nothing in this section shall invalidate any local option election held pursuant to any former act prior to July 1, 1981.

History: Laws 1981, ch. 39, § 15; 1985, ch. 208, § 124; 1987, ch. 323, § 27; 2018, ch. 79, § 98; 2019, ch. 212, § 235.

Cross references. — For registration for elections, see 1-4-1 NMSA 1978 et seq.

The 2019 amendment, effective April 3, 2019, revised the timing of an election for the purpose of determining whether the county or municipality shall adopt the local option provisions of the Liquor Control Act, and provided that the election may also be initiated by a resolution adopted by the governing body of the proposed local option district without a petition having been submitted; in Subsection A, after "governing body shall call an election within", deleted "seventy-five" and added "ninety", after "verification of the petition;", added "provided that the date is not in conflict with the provisions of Section 1-24-1 NMSA 1978", after "The", deleted "date of the filing of the petition shall be the date of the filing of the last petition that brings the number of signatures up to the required five percent; provided, however, that the", and after "filing of the petition.", deleted "necessary to bring the number of signatures on the petition up to five percent" and added the remainder of the subsection; in Subsection B, after "counted and canvassed", deleted "substantially in the manner provided by law for general elections within the county or special elections within the municipality, except as otherwise provided in this section" and added "pursuant to the provisions of the Local Election Act"; deleted former Subsection C and redesignated former Subsections D and E as Subsections C and D, respectively; in Subsection C, after "case of candidates", deleted "for county office in general elections or as provided for in the case of special elections within the municipality"; deleted former Subsection F and redesignated former Subsections G through I as Subsections E through G, respectively; and in Subsection E, deleted "registered" preceding "qualified electors".

The 2018 amendment, effective July 1, 2018, made conforming changes as a result of the repeal of the School Election Law and the Municipal Election Code; deleted "municipal" preceding "elections" throughout the section; and in Subsection F, after each occurrence of "primary", added "or", after "general", deleted "municipal or school district".

Contest and recount provisions of Election Code are inapplicable to local option elections. State ex rel. Denton v. Vinyard, 1951-NMSC-030, 55 N.M. 205, 230 P.2d 238 (decided under prior law).

Discretion as to denial of transfers. — Once a municipality has decided to allow liquor sales, the discretion the city council has to deny a transfer on moral grounds must be based on the moral effects of the operation by a specific applicant or at a particular location. Dick v. City of Portales, 1994-NMSC-092, 118 N.M. 541, 883 P.2d 127.

"Local option district" defined. — The term "local option district" must be read to mean any county which has voted to approve the sale of alcoholic beverages, or any incorporated municipality which falls within such a county, or any incorporated municipality over 5,000 which has independently approved the sale of alcoholic beverages. 1981 Op. Att'y Gen. No. 81-09.

For the purpose of placing the question of Sunday sales on the general election ballots, each county except Roosevelt and Curry, which have rejected local option district status, and the incorporated municipalities of Clovis and Portales, which have independently voted to become local option districts, are considered "local option districts." 1982 Op. Att'y Gen. No. 82-15.

Election invalid when it conflicts with state or municipal election. — The provision of Subsection A, which requires election to be called within 60 (now 75) days after filing of the petition, is invalidated when it conflicts with a state or municipal election, since it was evident intention of the legislature not to have a local option election conflict therewith. 1944 Op. Att'y Gen. No. 44-4477.

Where initial petition bears insufficient signatures, the board of county commissioners must accept additional names submitted and consider the aggregate of petitions submitted within the three-month period. 1951 Op. Att'y Gen. No. 51-5379.

"General election" defined. — The term "general election" has been defined as the biennial election held throughout the state for choosing state and county officers and national representatives in the congress. 1977 Op. Att'y Gen. No. 77-17.

Election under this section may be held in conjunction with county bond election so long as the scheduling and other requirements of the two elections are compatible. 1981 Op. Att'y Gen. No. 81-09.

"Manner" defined. — "Manner" is defined as the mode or method in which something is done or happens: a mode of procedure or way of acting. 1977 Op. Att'y Gen. No. 77-17.

Absent Voter Act applicable. — The Absent Voter Act, Sections 1-6-1 to 1-6-18 NMSA 1978, is applicable to local option district elections, thereby directing the absentee voting procedures to be followed in such elections. 1977 Op. Att'y Gen. No. 77-17.

Law reviews. — For comment, "Intoxicating Liquors - Price Control - Fair Trade and Minimum Markups," see 4 Nat. Resources J. 189 (1964).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 45 Am. Jur. 2d Intoxicating Liquors § 85.

Federal constitutional and legislative provisions as to intoxicating liquor as affecting state legislation, 26 A.L.R. 672, 70 A.L.R. 132.

Submission of question to electors of municipality as only way in which sale of intoxicants may be entirely prohibited, under state liquor control act, 113 A.L.R. 1386.

Constitutional and statutory provisions establishing local option as reviving, modifying, or repealing by implication prior laws penalizing transportation, 134 A.L.R. 434.

Operation and effect, in dry territory, of general state statute making sale or possession for sale of intoxicating liquor, without a license, an offense, 8 A.L.R.2d 750.

Change of "wet" or "dry" status fixed by local option election by change of name, character or boundaries of voting unit without later election, 25 A.L.R.2d 863.

Inclusion or exclusion of first and last days in computing the time for performance of an act or event which must take place a certain number of days before a known future date, 98 A.L.R.2d 1331.

48 C.J.S. Intoxicating Liquors § 71.