(specially concurring).
{34} I fully concur. I write separately only to discuss a concern I have about this case that unfortunately was not raised by the parties. The issue not raised is whether, in determining probable cause, the actions of the officer should have been considered in the context of the comprehensive regulatory legislation of the Liquor Control Act. This case is troubling because there was a complete lack of utilization of the regulatory process in enforcing a criminal law enacted as part and parcel of regulatory legislation.
{35} The regulatory scheme for the control of the sale of alcohol is contained in the Liquor Control Act. See NMSA 1978, § 60-3A-1 (1984). This is a fairly comprehensive piece of legislation. It covers, among other things, the issuance, denial, suspension, and revocation of licenses, all areas in which law enforcement has no independent authority and must be requested to act by the director of the Alcohol and Gaming Division of the New Mexico Regulation and Licensing Department (the Division). See NMSA 1978, §§ 60-3A-6, -7, -8(A) (2001).
{36} When a licensee is qualified, the director must renew licenses being considered for renewal. See NMSA 1978, § 60-6B-5 (1998) (stating that if, after a hearing on a show cause notice as to why a license should not be renewed, the director finds that the licensee is qualified, the director is required to renew the license). Section 60-6B-5 requires the director by June 1 to have determined whether the licensee seeking renewal of a license is delinquent in taxes. Further, the director must also determine whether any other reason exists why a license should not be renewed. Id. If such a reason exists, the director must initiate a show cause proceeding. Id.
{37} NMSA 1978, § 60-7A-4.1(A) (1993) is the statute under which Plaintiff was arrested and charged. It reads: “It is unlawful for any person to sell or attempt to sell alcoholic beverages at any place other than a licensed premises or as otherwise provided by the Liquor Control Act.” Under NMSA 1978, § 60-4B-A.l(B) (1993), the director of the Division has the authority to request that law enforcement officers investigate licensees or activities that the director has reasonable cause to believe are in violation of the Liquor Control Act. Further, “[wjhenever a person lodges a signed, written complaint with the [Division] alleging that a licensee has violated any of the provisions of the Liquor Control Act ... the director shall request that the department of public safety investigate the complaint.” NMSA 1978, § 60-6C-4(A) (1993).
{38} As indicated, license renewal is mandatory if a licensee is qualified. Plaintiff had been issued licenses for previous license years and submitted her completed application and paid her renewal fee for the license year June 30, 2001, to June 30, 2002. The Division file for Plaintiffs license contained a checklist completed on June 6, 2001, showing that everything for renewal was checked off as completed; and there were no deficiencies outstanding. Agent Carter reviewed this file between July 20 and August 3. On three separate occasions, he requested and received from the Division a faxed printout stating “Lillian holding renewal,” but giving-no explanation. “Lillian” presumably was Lillian Martinez, Deputy Director of the Division. Agent Carter did not discuss the printout with Ms. Martinez. Plaintiff did all she could, short of camping out on the Division’s doorstep, to obtain a routine license renewal.
{39} As of June 30, the Division had no legal basis on which to deny renewal. The delay in renewing the license resulted from a problem solely internal to the Division and had nothing to do with Plaintiff or her license. The State offered no ground justifying renewal delay that permitted it to stop Plaintiff from continuing to sell alcoholic beverages. The license was officially renewed on August 3, which, coincidentally, was the same day Agent Carter arrested Plaintiff and shut down her business. The record does not reflect why the license could not have been officially renewed on June 30, other than perhaps the press of Division business.
{40} It appears that the Division knew that official renewal of Plaintiffs license would be delayed beyond June 30. It also appears that the Division knew Plaintiff was selling alcoholic beverages after June 30. Yet the Division did not warn Plaintiff against continuing to sell alcohol, nor did it ask any law enforcement officer to take action against Plaintiff. Plaintiff, in fact, presented evidence that she was told by someone at the Division that she could continue to sell pending renewal. Agent Carter apparently was not aware of this alleged conversation. However, he was well aware of the administrative delay with no indication whatsoever that the Division had concerns about renewal or about Plaintiff continuing to sell pending renewal. I am not aware of anything in the record showing that Agent Carter inquired whether the Division wanted him to take action against Plaintiff.
{41} As far as I can tell, Agent Carter could easily have reported to the director that he had reasonable cause to believe that Plaintiff was in violation of the Act, and could easily have consulted with the director on what action should be taken. Were the director to agree, after ascertaining the status of license renewal and the cause for delay in issuance of a renewal license, the director could then have requested a further investigation, if one were necessary, or could have requested the agent take action against the licensee. Unquestionably in this case, the question of whether Plaintiff was in violation of law could have been discussed and likely resolved. Perhaps the director might even have attempted to discuss the matter with the licensee or have given written notice of a problem or potential violation of the Act, along the same lines as is described in Section 60-6B-5 for a possible non-renewal and in Section 60-6C-4(D) for charges filed against a licensee. Section 60-6B-5 states that:
If the director determines that the license should not be renewed, he shall enter an order requiring the licensee, after notice, to show cause why his license should be renewed, and he shall conduct a hearing on the matter. If, after the hearing, the director finds that the licensee is qualified, he shall renew the license.
Section 60-6C-4(D) states that “[a]fter charges have been filed, the director shall issue a signed order for the licensee to appear at a hearing to explain, on the basis of any ground set out in the charge, why the license should not be revoked or suspended or why the licensee should not be fined, or both.”
{42} Interestingly, the State relies on a Division regulation, 15.11.22.8(C) NMAC (2001). See 15.10.61.1 NMAC (2006). Regulation 15.11.22.8(C) states:
C. All licensees who fail to renew their licenses or who are not issued a renewed license shall suspend all alcoholic beverage operations until such time as a renewed license is issued and displayed on the licensed premises. A temporary suspension must be obtained if the license ceases to operate for more than ten (10) consecutive days.
My interest in this regulation goes beyond the unanswered question of whether it applies to the circumstances in this ease. What is of interest is that the State argues that it applies, which brings the issues here squarely within the regulatory process.
{43} The meaning given to Section 60-6B-5 in the opinion is that it carries out a policy of protecting the public and does not permit under any circumstances a licensee to continue to sell alcoholic beverages without having a renewed license in hand. Were the issue to have been raised in this case, perhaps a conclusion could be drawn that Section 60-6B-5 ought to be interpreted more broadly. It is significant that the sale of alcoholic beverages is the subject of comprehensive regulatory legislation. I cannot believe that the Legislature intended that a business person be arrested and her business shut down as occurred in the present case. Note NMSA 1978, § 60-6B-14 (1988) and NMSA 1978, § 60-6B-15 (1988) regarding canopy licenses. The Legislature specifically mentions what would appear to be competing economic policy, namely, State revenues, avoiding loss of taxes and fee revenues, avoiding loss of many jobs, and promoting a stable business climate. Why would it be all right to punish someone who jumped through all the hoops and satisfied the requirements, by shutting down her business because the Division was backlogged?
{44} An interpretation given to Section 60-6B-5 essentially gives a law enforcement officer probable cause to arrest on July 1 of the year whenever a license has not been formally renewed by June 30, based solely on knowledge of only two circumstances: (1) a license submitted for renewal has not yet been officially issued, and (2) the licensee sold alcoholic beverages on July 1. This interpretation permits arrest and business shut down under such circumstances, requiring neither director nor Division involvement in law enforcement’s action, nor any Division action to inform the licensee that she may or may not continue to sell after June 30 while the Division delays the renewal because of work overload.
{45} Given the opportunity to engage in an interpretation of the law based on the context of the regulatory scheme, it is arguable that the decision whether the licensee should be permitted to continue to sell while the license is in the hopper be made administratively by the director, pursuant to a regulation. Under such an interpretation, Section 60-6B-5 would not, under the circumstances here, give law enforcement carte blanche to independently take action.
{46} It seems to me that the regulatory investigative process, the status of the regulatory renewal process, and the manner in which the regulatory authority interprets the law should be the important, if not critical considerations, in order to assess whether there is probable cause to believe that a licensee is committing a felony by selling alcoholic beverages while the Division’s official renewal is delayed because of its own internal backlog. If serious questions exist in regard to propriety of renewal of a license, at the very least, the licensee should be notified of this and should be notified, as well, in writing whether he or she can continue to sell alcoholic beverages while the questions are cleared up. Whether a licensee can or should be allowed to continue to sell during a delay beyond June 30 should be handled first by regulatory authority and process. Or, the Division should adopt a regulation clearly and specifically barring sale after June 30 under any circumstances if a license renewal is not in the licensee’s hands by June 30.
{47} One final, but important note. What I have discussed in this special concurrence is not something overlooked in the majority opinion. It was not the majority’s place to address any of this and the majority did not address any of this because the parties did not make the arguments. However, I felt it necessary to bring out what appears to me to be critical deficiencies in the administrative and law enforcement processes.