2023 New Mexico Statutes › Chapter 3 - Municipalities › Article 38 - Licenses and Taxes › Section 3-38-1 - Licensing; business activities.

The governing body may declare, by ordinance, that the licensing or regulation of a business not otherwise exempt by law is conducive to the promotion of the health and general welfare of the municipality and may impose a license fee on and require a separate license for each place of business conducted by the same person, firm, corporation or association. The license fee shall bear a reasonable relation to the regulation of the business.
History:
1953 Comp., § 14-37-1, enacted by Laws 1965, ch. 300; 1981, ch. 37, § 2.
ANNOTATIONS
Cross references.
— For the Construction Industries Licensing Act,
see
60-13-1 NMSA 1978 et seq.
For licenses for jewelry auctions,
see
61-16-6 NMSA 1978.
Ordinance will not be upheld merely because of its declared purpose.
— Even though the declared purpose of an ordinance is for the exercise of the police power, the whole act will be examined to ascertain its characteristics and to determine whether there is actually an exercise of that power. It will not be upheld merely because of its declared purpose.
City of Lovington v. Hall
, 1961-NMSC-021, 68 N.M. 143, 359 P.2d 769.
Declared purpose is to be given consideration
in aid of interpreting the purpose, reason or occasion for the ordinance.
City of Lovington v. Hall
, 1961-NMSC-021, 68 N.M. 143, 359 P.2d 769.
City cannot bargain away its police power for license fees,
nor divest itself of its duty of preserving public health, by licensing a business which endangers the public health.
Mitchell v. City of Roswell
, 1941-NMSC-007, 45 N.M. 92, 111 P.2d 41.
Businesses subject to licensing.
— Cities are authorized to fix and collect a license fee on cleaning, pressing and tailoring shops, welding shops and machine shops within their limits, as a police or regulatory measure.
Tharp v. City of Clovis
, 1929-NMSC-046, 34 N.M. 161, 279 P. 69.
Power to license.
— Cities and towns could, under their police power, license and regulate the occupation of dray, transfer, taxicab and storage warehouses.
Daniel v. City of Clovis
, 1929-NMSC-061, 34 N.M. 239, 280 P. 260.
Extent of license fee.
— Municipality has power to charge a license fee which does not exceed the probable expense of issuing the license and of regulating the business.
City of Lovington v. Hall
, 1961-NMSC-021, 68 N.M. 143, 359 P.2d 769.
Mere fact that license fees produce some excess revenue
does not render the ordinance invalid, but the fees must be "incidental to regulation and not primarily for the purpose of producing revenue."
City of Lovington v. Hall
, 1961-NMSC-021, 68 N.M. 143, 359 P.2d 769.
Declaration of purpose required.
— There is expressed a legislative intent to allow municipalities to license and regulate provided the governing body shall by ordinance declare that the licensing and regulation is conducive to the promotion of the health and general welfare of the community. 1955 Op. Att'y Gen. No. 55-6096.
Phrase "not otherwise exempt by law" in this section refers
both to the exemptions from licensing and regulation created by the Construction Industries Licensing Act, those created by the Private Investigators' Act and possibly to other statutory exemptions. Section 3-38-3 NMSA 1978 covers occupations the municipality does not seek to regulate under this section. 1969 Op. Att'y Gen. No. 69-72.
Contractors exempt.
— The right of a municipality to both license and regulate resident and nonresident contractors has been taken away by the comprehensive nature of the Construction Industries Licensing Act except in certain minor respects. 1969 Op. Att'y Gen. No. 69-72.
Effect of revenue production.
— The purpose of an ordinance under this section must be to charge license fees to defray the cost of regulation, and any license fee charged primarily to produce revenue would render the ordinance void. 1969 Op. Att'y Gen. No. 69-72.
Some revenue produced by licensing under this section will not, of itself, render the ordinance void. 1969 Op. Att'y Gen. No. 69-72.
Effect of repealing counties' specific statutory authority.
— The repeal of the specific statutory authority of counties to impose license fees and occupational taxes (7-22-1 to 7-22-14 NMSA 1978) would not implicitly repeal a county's authority to exercise those powers pursuant to the statutes governing municipalities since repeals by implication are not favored. The 1979 repeal of 7-22-1 to 7-22-14 NMSA 1978, without a clear expression of legislative intent to limit the authority of counties, would not prevent a county from imposing fees and taxes under this section and 3-38-3 NMSA 1978, but a county would have no more authority in this regard than would a municipality, and the restrictions of this section and 3-38-3 NMSA 1978 would apply. 1979 Op. Att'y Gen. No. 79-09 (decided prior to 1981 repeal and reenactment of 3-38-3 NMSA 1978).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 51 Am. Jur. 2d Licenses and Permits §§ 4 to 38; 56 Am. Jur. 2d Municipal Corporations, Counties, and Other Political Subdivisions §§ 471 to 492; 58 Am. Jur. 2d Occupations, Trades, and Professions §§ 2, 3, 10, 63 et seq.
Laundries, regulations concerning location of, 6 A.L.R. 1597.
Auctions and auctioneers, municipal power to regulate, 11 A.L.R. 474, 100 A.L.R. 834, 161 A.L.R. 706.
Gasoline filling stations, regulation or authorization of, 18 A.L.R. 101, 29 A.L.R. 450, 34 A.L.R. 507, 42 A.L.R. 978, 49 A.L.R. 767, 55 A.L.R. 256, 79 A.L.R. 918, 96 A.L.R. 1337.
Pool and billiard rooms and bowling alleys, licensing and regulation, 20 A.L.R. 1482, 29 A.L.R. 41, 53 A.L.R. 149, 72 A.L.R. 1339.
Suspected intention, refusal of license because of suspicion of intended violation of its conditions, 27 A.L.R. 325.
Junk dealers, regulation of, 30 A.L.R. 1427, 45 A.L.R.2d 1391.
Heating contractors, validity of municipal regulations, 33 A.L.R. 146.
Plumbers and plumbing, validity of regulations as to, 36 A.L.R. 1342, 22 A.L.R.2d 816.
Liability as affected by license issued by municipal officer, 42 A.L.R. 1208.
Dry cleaning and dyeing establishments, public regulation of, 49 A.L.R. 110, 128 A.L.R. 678.
"Taxicab stands," validity of municipal regulation requiring vehicles for hire to make use of, 55 A.L.R. 132, 76 A.L.R. 885, 109 A.L.R. 1381.
Permit or license, wrongful revocation, liability of municipality in damages for, 55 A.L.R. 434.
Personal liability of public officer for refusing to grant application for license, 85 A.L.R. 298.
Electricians and installation of electrical work, municipal regulation, 96 A.L.R. 1506.
Barbershops, regulating hours of closing, 98 A.L.R. 1093.
Newspapers, ordinance regulating hours of sale of on streets, 107 A.L.R. 1275.
Questioning issuance, right of holder of license from public to question propriety of issuing license to other persons, 109 A.L.R. 1259.
Vending machines, regulation as to sale of cigarettes by, 111 A.L.R. 755, 151 A.L.R. 1195.
Plumbers, reasonableness of license fee, 114 A.L.R. 573.
Building or construction contractors, validity, construction, and application of regulations as to business of, 118 A.L.R. 676.
Plumbing or plumbing work within statute or ordinance requiring license or other regulation, 125 A.L.R. 718.
"Catch-all" law: validity of statute or municipal ordinance which provides generally that occupations or businesses, for which no specific license tax has been imposed, shall be subject to a license tax of a specified amount or rate, 134 A.L.R. 841.
Juke boxes or other mechanical musical devices, validity of municipal regulation of, 151 A.L.R. 1178.
Change in law pending application for permit or license, 169 A.L.R. 584.
"Grandfather clause" of statute or ordinance regulating or licensing business or occupation, 4 A.L.R.2d 667.
Regulation of practice of photography, 7 A.L.R.2d 416.
Magazine subscriptions, validity of municipal regulation of solicitation of, 9 A.L.R.2d 728.
Validity of municipal ordinance imposing requirements on outside producers of milk to be sold in city, 14 A.L.R.2d 103.
Tourist or trailer camps, motor courts, or motels, maintenance or regulation by public authorities of, 22 A.L.R.2d 774.
Right of person wrongfully refused license upon proper application therefor to do act for which license is required, 30 A.L.R.2d 1006.
Watchmaking, watch repairing and the like, 34 A.L.R.2d 1326.
House-to-house canvassing, validity of ordinance prohibiting or restricting, 35 A.L.R.2d 355.
Municipality's liability and damages for its refusal to grant permit, license, or franchise, 37 A.L.R.2d 694.
Collection and commercial agencies or representatives thereof, 54 A.L.R.2d 881.
Validity, right to attack validity of statute, ordinance, regulation relating to occupational or professional license as affected by applying for, or securing, license, 65 A.L.R.2d 660.
Payment of license taxes to prevent closing of, or interference with, business as involuntary so as to permit recovery, 80 A.L.R.2d 1040.
Psychologists, 81 A.L.R.2d 791.
Garbage or rubbish removal services, 83 A.L.R.2d 799.
Self-service laundries, 87 A.L.R.2d 1007.
Undertakers, funeral directors, or embalmers, validity of ordinance relating to, 89 A.L.R.2d 1338.
Correspondence schools or their canvassers or solicitors, 92 A.L.R.2d 522.
Single or isolated transactions as falling within provisions of commercial or occupational licensing requirements, 93 A.L.R.2d 90.
Debt adjusting business, 95 A.L.R.2d 1354.
Sale of merchandise on streets and highways, or their use for such purpose, authorization, prohibition, or regulation by municipality of, 14 A.L.R.3d 896.
Intoxicating liquor, validity of municipal regulation more restrictive than state regulation as to time for selling or serving, 51 A.L.R.3d 1061.
Pardon as restoring public office or license or eligibility therefor, 58 A.L.R.3d 1191.
Laundry: applicability of city ordinance requiring license for laundry to supplier of coin-operated laundry machines intended for use in apartment building, 65 A.L.R.3d 1296.
Regulation of the business of tattooing, 81 A.L.R.3d 1212.
53 C.J.S. Licenses §§ 10, 11; 62 C.J.S. Municipal Corporations § 234 et seq.