A. No injunction or writ of mandamus or other legal or equitable process shall issue in any suit, action or proceeding to prevent or enjoin any finding of guilt or order of suspension or revocation or fine made by a liquor control hearing officer under the provisions of Section 60-6C-4 NMSA 1978. A licensee aggrieved or adversely affected by an order of revocation, suspension or fine shall have the right to appeal to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.

B. No appeal shall have the effect of suspending the operation of the order of suspension, revocation or fine, but the liquor control hearing officer may, for good cause shown and upon such terms and conditions as he may find are just, in his discretion suspend the operation of the order of suspension, revocation or fine pending the appeal. The court shall tax costs against the losing party.

C. For purposes of this section, "licensee" includes a person issued a server permit pursuant to the Alcohol Server Education Article of the Liquor Control Act [Chapter 60, Article 6E NMSA 1978].

History: Laws 1981, ch. 39, § 102; 1987, ch. 255, § 2; 1993, ch. 329, § 6; 1998, ch. 55, § 72; 1999, ch. 265, § 75; 1999, ch. 277, § 1.

Cross references. — For writ of mandamus, see 44-2-1 NMSA 1978.

For procedures governing administrative appeals to the district court, see Rule 1-074 NMRA.

For Rules of Appellate Procedure, see 12-101 NMRA et seq.

1999 amendments. — Laws 1999, ch. 265, § 75, effective July 1, 1999, substituting "Section 39-3-1.1" for "Section 12-8A-1" in Subsection A, was approved April 8, 1999. However, Laws 1999, ch. 277, § 1, effective July 1, 1999, also amending this section by substituting "39-3-1.1 NMSA 1978" for "12-8A-1 NMSA 1978" in Subsection A, and adding Subsection C, was approved later on April 8, 1999. The section is set out as amended by Laws 1999, ch. 277, § 1. See 12-1-8 NMSA 1978.

The 1998 amendment, effective September 1, 1998, rewrote this section to the extent that a detailed comparison is impracticable.

The 1993 amendment, effective June 18, 1993, added the last sentence in Subsection B.

Effect of new evidence appeal. — Any new evidence admitted must relate itself to whether the chief of the division of liquor control (now director of alcohol and gaming division) acted arbitrarily, capriciously or fraudulently, since the proceeding under this section is not de novo. Chiordi v. Jernigan, 1942-NMSC-053, 46 N.M. 396, 129 P.2d 640 (decided under former law).

Where district court did not have jurisdiction to entertain appeal by city for the transfer of a liquor license by director of the department of alcoholic beverage control (now director of alcohol and gaming division) since no statute allows an appeal from the action of director (superintendent) in transferring a liquor license. City of Truth or Consequences v. State, Dep't of ABC, 1973-NMSC-005, 84 N.M. 589, 506 P.2d 333.

Supreme court decides if order sustained by substantial evidence. — Upon review, the supreme court must determine whether the order or findings of the chief of division of liquor control (now director of alcohol and gaming division) were sustained by substantial, competent, relevant and credible evidence. Kearns v. Aragon, 1959-NMSC-102, 65 N.M. 119, 333 P.2d 607 (1958).

Law reviews. — For article, "Constitutional Limitations on the Exercise of Judicial Functions by Administrative Agencies," see 7 Nat. Resources J. 599 (1972).

For article, "Survey of New Mexico Law, 1979-80: Administrative Law," see 11 N.M.L. Rev. 1 (1981).

For annual survey of New Mexico law relating to administrative law, see 12 N.M.L. Rev. 1 (1982).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 45 Am. Jur. 2d Intoxicating Liquors § 207.

48 C.J.S. Intoxicating Liquors § 178.