Updated: 1/2009
Status: Possibly permitted
Statute
New Mexico statute, Chapter 60, Article 3-A, § 60-7A-5 provides that it shall be unlawful for any person to manufacture for the purpose of sale, possess for the purpose of sale, offer for sale or sell any alcoholic beverages in the state except under the terms and conditions of the Liquor Control Act. However, § 60-3A-5(C)(2) states that nothing in the Liquor Control Act applies to ethyl alcohol intended for use by those authorized to procure the same tax free, as provided by the acts of congress and regulations promulgated thereunder. Section 60-3A-3(B) defines beer as any alcoholic beverage obtained by the fermentation of any infusion or decoction of barley, malt and hops or other cereals in water, and includes porter, beer, ale and stout.
See also:
NMSA § 60-6A-11 Winegrower’s license.
Discussion
While no provision directly addresses the home production of beer in New Mexico such home production may be within the scope of New Mexico law. It appears that the legislative intent of § 60-7A-5 is to only regulate the manufacture of alcoholic beverages produced for sale. Since home produced beer in not intended to be sold such home produced beer may not be in violation of the liquor control act. In addition, § 60-3A-5 provides exceptions to the New Mexico liquor control act. Section 60-3A-5(C)(2) states that nothing in the liquor control act applies to ethyl alcohol intended for use by those authorized to procure the same tax free, as provided by the acts of congress and regulations promulgated thereunder. If home produced beer can be defined as such ethyl alcohol it would not be in violation of the liquor control act because individuals are authorized to procure home produced beer free from tax as provided by an act of congress and regulations promulgated thereunder.
Special Provisions:
In related case law “Beer” is classified as any alcoholic beverage obtained by fermentation. State v. Spahr, 64 N.M. 395, 328 P.2d 1093 (1958).
State Alcohol Beverage Control Agency
- Alcohol & Gaming Division
- 2550 Cerrillos Road, Second Floor
- Santa Fe, New Mexico 87505
- Phone: 505.476.4875
- Fax: 505.476.4595
Applicable Statutory Material
§ 60-3A-3 Definitions.
As used in the Liquor Control Act:
A. “alcoholic beverages” means distilled or rectified spirits, potable alcohol, brandy, whiskey, rum, gin and aromatic bitters bearing the federal internal revenue strip stamps or any similar alcoholic beverage, including blended or fermented beverages, dilutions or mixtures of one or more of the foregoing containing more than one-half of one percent alcohol, but excluding medicinal bitters;
B. “beer” means any alcoholic beverage obtained by the fermentation of any infusion or decoction of barley, malt and hops or other cereals in water, and includes porter, beer, ale and stout;
C. “brewer” means any person who owns or operates a business for the manufacture of beer;
N. “manufacturer” means a distiller, rectifier, brewer or winer;
O. “minor means any person under twenty-one years of age;
P. “package” means any immediate container of alcoholic beverages which is filled or packed by a manufacturer or wine bottler for sale by the manufacturer or wine bottler to wholesalers;
Q. “person” means an individual, corporation, firm, partnership, copartnership, association or other legal entity;
R. “rectifier” means any person who blends, mixes or distills alcohol with other liquids or substances for the purpose of making an alcoholic beverage for the purpose of sale other than to the consumer by the drink, and includes all bottlers of spirituous liquors;
W. “wine” includes the words “fruit juices” and means alcoholic beverages obtained by the fermentation of the natural sugar contained in fruit or other agricultural products, with or without the addition of sugar or other products, which do not contain less than one-half of one percent nor more than twenty-one percent alcohol by volume;
X. “wine bottler” means any New Mexico wholesaler who is licensed to sell wine at wholesale for resale only and who buys wine in bulk and bottles it for wholesale resale; and
Y. “winer” means any person who owns or operates a business for the manufacture of wine.
§ 60-3A-5 Exemptions from act.
Nothing in the Liquor Control Act applies to:
A. the transportation of alcoholic beverages through New Mexico;
B. the transportation of alcoholic beverages into a United States customs bonded warehouse located in New Mexico; or
C. ethyl alcohol intended for or used for any of the following purposes:
(1) scientific, mechanical, industrial, medical, chemical or culinary purposes;
(2) use by those authorized to procure the same tax free, as provided by the acts of congress and regulations promulgated thereunder; or
(3) in the manufacture of denatured alcohol produced and used as provided by the acts of congress and regulations promulgated thereunder.
§ 60-7A-5 Manufacture, sale or possession for sale when not permitted by Liquor Control Act; criminal penalty; forfeiture.
A. It is unlawful for any person to manufacture for the purpose of sale, possess for the purpose of sale, offer for sale or sell any alcoholic beverages in the state except under the terms and conditions of the Liquor Control Act.
B. Any person who violates the provisions of Subsection A of this section is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
C. Any conveyance used or intended to be used for the unlawful manufacture or sale of alcoholic beverages or any money that is the fruit or instrumentality of unlawful manufacture or sale of alcoholic beverages may be seized and, upon conviction, in the discretion of the court, forfeited and disposed of pursuant to the provisions of Section 30-31-35 NMSA 1978.
Note: The information presented here is to the best of our knowledge and should not be used as a substitute for legal advice specific to the laws of your state.
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