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  Item No. 4.       
Meeting Date: 02/13/2020  
COMMITTEE: N/A  
CONTACT: Sharon Coll CHAIR: N/A

ACTION REQUESTED:
Public hearing – Hold a public hearing and vote on a restaurant beer and wine liquor license with on premises consumption only for Application No. 1134790, Eli's Bistro Inc., d/b/a/ Eli's Bistro & Bakery, located at 3109 N. Main Street, Roswell, NM 88201. (Stubbs/Holloman)
BACKGROUND:
Initiated by:  Eli's Bistro Inc., d/b/a/ Eli's Bistro & Bakery
 
Under NMSA 1978 § 60-6B-4, the governing body is required to conduct a public hearing on the application and must, by roll call vote, approve or disapprove the requested application.  The hearing is quasi-judicial in nature and must be conducted accordingly.
 
Eli's Bistro Inc., d/b/a/ Eli's Bistro & Bakery, Application No. 1134790, located at 3109 N. Main Street, Roswell, NM 88201, has applied for a beer and wine liquor license with on premises consumption only.
 
In considering whether to approve or disapprove the application, the governing body may only disapprove of the application if it finds substantial evidence to support one of the follows:
 
• The proposed location is within an area which the sale of alcoholic beverages is prohibited by the laws of New Mexico; or
• The issuance or transfer would be in violation of zoning or other ordinance of the governing body; or
• The issuance or transfer of a license would be detrimental to the public health, safety, or morals of the residents of the local option district.  The governing body is required to notify the Director of Alcohol and Gaming Division of the New Mexico Regulation and Licensing Department within thirty (30) days of the public hearing whether it has approved or disapproved the application.  This is done by the City Clerk.
FINANCIAL CONSIDERATION
Notice of the Public Hearing required by the Liquor Control Act shall be given by the governing body by publishing a notice of the date, time, and place of the hearing twice during the 30 days prior to the hearing in a newspaper of general circulation within the territorial limits of the governing body.  The cost associated with this publication is $111.28, and comes from the General Fund.
LEGAL REVIEW:
The City Attorney has provided the notes for the Council’s consideration of the application under the staff recommendation below.
BOARD AND COMMITTEE ACTION:
Due to the time constraints of the Liquor Control Act the applications due not go to a board or committee.
STAFF RECOMMENDATION:
City staff does not make a specific recommendation, but notes the following for the City Council’s consideration:
• Because the Alcohol and Gaming Division has granted preliminary approval of the application, the Applicant has established a prima facie entitlement to the license.  The burden of disapproval then shifts to the City.
• New Mexico case law has held that the Director of Alcohol and Gaming Division of the New Mexico Regulation and Licensing Department may still issue a license to Eli's Bistro Inc., d/b/a/ Eli's Bistro & Bakery, despite municipal disapproval if there is insufficient evidence to support the disapproval, or if the disapproval is not based on the evidence specific to the applicant or the location.  A general disapproval of alcoholic beverage sales is not a valid basis for denial or the license and is consequently not relevant to the decision to be made by the governing body.
• There does not appear to be evidence that the location is in the area where the sale of alcoholic beverages is prohibited by state law.
• There does not appear to be evidence that the sale of alcohol at the location would be in violation of any City zoning law or other ordinance.
Attachments
ATT 1 Eli's Bistro


    

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