A. The maximum number of licenses to be issued under the provisions of Sections 60-6A-2 and 60-6A-3 NMSA 1978 shall be as follows:

(1) in incorporated municipalities, not more than one dispenser's or one retailer's license, including canopy licenses which are replaced by dispenser's licenses as provided in Section 60-6B-16 NMSA 1978, for each two thousand inhabitants or major fraction thereof; and

(2) in unincorporated areas of each county, not more than one dispenser's or one retailer's license, including canopy licenses which are replaced by dispenser's licenses as provided in Section 60-6B-16 NMSA 1978, for each two thousand inhabitants or major fraction thereof, excluding the population of incorporated municipalities within the county.

B. For the purpose of this section, the number of inhabitants of a local option district shall be determined by annual population estimates published by the economic development department.

C. Subsection A of this section shall not be construed to prevent any licensee holding a valid license issued under the Liquor Control Act [60-3A-1 NMSA 1978], or his transferee, from continuing the licensed business or from renewing his license, subject to compliance with the Liquor Control Act and department regulations, notwithstanding that the continuance or renewal may result in an excess over the maximum number of licenses permitted in Subsection A of this section.

History: Laws 1981, ch. 39, § 35; 1988, ch. 12, § 1; 1991, ch. 21, § 39.

The 1991 amendment, effective March 27, 1991, deleted "and tourism" following "development" in Subsection B.

Splitting of single liquor license under lease agreement not permitted. — Splitting of a single liquor license under a lease agreement in order to circumvent this section is not permitted. The state ABC board regulations intend to prevent such splits, and these regulations manifest the public policy of the state; any contracts in violation of the public policy are void. DiGesu v. Weingardt, 1978-NMSC-017, 91 N.M. 441, 575 P.2d 950.

Hearings within scope of director's administrative powers. — It is entirely within the administrative powers of the chief of the division of liquor control (now director) to proceed with hearing to determine whether liquor license had originally been issued without authority under the statute. Petroleum Club Inn Co. v. Franklin, 1963-NMSC-133, 72 N.M. 347, 383 P.2d 824.

Section constitutional. — This section, as now constituted, is clearly constitutional. The police power of the state to regulate and/or prohibit the possession, sale and dispensing of alcoholic beverages has been upheld against constitutional attack so many times that it is unnecessary to cite authority so holding. 1959 Op. Att'y Gen. No. 59-137.

Intent of quota. — The quota provisions of this section are intended to limit the number of liquor licenses allowed in the state. 1979 Op. Att'y Gen. No. 79-03.

Section inapplicable to transfer of existing licenses. — A liquor dispenser's license may not be transferred from one municipality to another even though limitations as to the number of licenses per population apply only to the issuance of new licenses and not to the transfer of existing licenses. A transfer from one municipality to another would be without restriction in this regard but would result in thwarting the legislative intent of limiting the number of licenses that can be issued to any one municipality. 1970 Op. Att'y Gen. No. 70-56.

Quota limitation enforced when licenses issued. — The director cannot legally issue a liquor license to a city without regard to the quota limitation imposed under this section. 1975 Op. Att'y Gen. No. 75-41.

"Major fraction thereof " could only mean more than one half. 1956 Op. Att'y Gen. No. 56-6384.

Each incorporated municipality is eligible for one license even though the population of the municipality is less than a major fraction of 2000. 1961 Op. Att'y Gen. No. 61-48.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 45 Am. Jur. 2d Intoxicating Liquors § 133.

Power to limit the number of intoxicating liquor licenses, 124 A.L.R. 825, 163 A.L.R. 581.

Validity of statutory classifications based on population - intoxicating liquor statutes, 100 A.L.R.3d 850.

48 C.J.S. Intoxicating Liquors § 100.