Hold a public hearing and vote on a Restaurant B – Beer Wine and Spirits Liquor License with on-premises consumption only with patio service for Backdraft Barbeque, LLC located at 301 N. Railroad Avenue, Roswell, NM 88201. (Halvorson/Yntema)

Initiated by: Backdraft BBQ, LLC d\b\a Backdraft BBQ, LLC

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. Backdraft BBQ, LLC located at 301 N. Railroad Ave, Roswell, NM 88201, has applied for a Restaurant B-Beer, Wine and Spirits Liquor License with on-premises consumption only with patio service.

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 following:

• The proposed location is within an area where the sale of alcoholic beverages is prohibited by the laws of New Mexico; or
• The issuance or transfer would be in violation of the 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.

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 City Attorney has provided the notes for the Council’s consideration of the application under the staff recommendation below.

Due to the Liquor Control Act's time constraints, the applications do not go to a board or committee.

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 Backdraft BBQ, LLC., located at 301 N. Railroad Avenue, Roswell, NM 88201, 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.