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Notice

Pueblo of Tesuque Liquor Control Ordinance

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AGENCY:

Bureau of Indian Affairs, Department of the Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes the Pueblo of Tesuque Liquor Control Ordinance. The Ordinance regulates and controls the possession, sale and consumption of liquor within the Pueblo of Tesuque Indian Reservation. The Reservation is located on trust land and this Ordinance allows for the possession and sale of alcoholic beverages within the exterior boundaries of the Pueblo of Tesuque Indian Reservation. This Ordinance will increase the ability of the tribal government to control the distribution and possession of liquor within their reservation and at the same time will provide an important source of revenue and strengthening of the tribal government and the delivery of tribal services.

DATES:

Effective Date: This Ordinance is effective as of October 5, 2007.

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FOR FURTHER INFORMATION CONTACT:

Iris A. Drew, Tribal Government Services Officer, Southwest Regional Office, 1001 Indian School Road, Albuquerque, New Mexico 87104; Telephone (505) 563-3530; Fax (505) 563-3060; or Elizabeth Colliflower, Office of Tribal Services, 1849 C Street, NW., Mail Stop 4513-MIB, Washington, DC 20240; Telephone (202) 513-7627; Fax (202) 208-5113.

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SUPPLEMENTARY INFORMATION:

Pursuant to the Act of August 15, 1953; Public Law 82-277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme court in Rice v. Rehner, 463 U.S. 713 (1983), the Secretary of the Interior shall certify and publish in the Federal Register notice of adopted liquor ordinances for the purpose of regulating liquor transactions in Indian country. The Pueblo of Tesuque Tribal Council adopted this Liquor Control Ordinance by Resolution 14-06-18-2007, on June 12, 2007. The purpose of this Ordinance is to govern the sale, possession and distribution of alcohol within the Pueblo of Tesuque Indian Reservation.

This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs. I certify that this Liquor Ordinance of the Pueblo of Tesuque was duly adopted by the Tribal Council on June 12, 2007.

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Dated: October 1, 2007.

Carl J. Artman,

Assistant Secretary—Indian Affairs.

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The Pueblo of Tesuque Liquor Ordinance reads as follows:

Pueblo of Tesuque, Liquor Control Ordinance, Adopted on December 8, 1970 by the Pueblo of Tesuque Tribal Council, and Published in the Federal Register; Vol. 30, No. 79, on page 23, 1971 Amended by Resolution No. 14-06-18-2007 adopted on June 12, 2007.

Section I. Title

This Liquor Ordinance shall be known as the Pueblo of Tesuque Liquor Control Ordinance (“Liquor Ordinance”).

Section II. Purpose

The purpose of this Liquor Ordinance is to regulate and control the possession, sale, and consumption of liquor within the exterior boundaries of the Pueblo of Tesuque.

Section III. Authority

The Pueblo enacts this Liquor Ordinance pursuant to its inherent governmental powers and in accordance with its traditional law, which empowers its Tribal Council to enact Ordinances. This Liquor Ordinance conforms with and also has been enacted pursuant to the Act of August 15, 1953 (Pub. L. 83-277, 67 Stat. 586, 18 U.S.C. 1161). The Sale of Liquor shall be lawful within the Reservation if such Sale complies with this Liquor Ordinance and, to the extent required by federal law, applicable laws of the State of New Mexico.

Section IV. Definitions

Except as otherwise provided herein, the following definitions apply throughout this Liquor Ordinance:

A. “Beer” means any beverage obtained by the alcoholic fermentation of an infusion or decoction of barley, malt, and hops or other cereals in drinking water, and includes porter, beer, ale and stout;

B. “Certified Server” means any employee of a Liquor Licensee who is twenty-one (21) years of age or older, who is certified to Sell Liquor on the Reservation on behalf of the Liquor Licensee in accordance with this Liquor Ordinance, and who has successfully completed a Liquor server training program Start Printed Page 57058approved by the Commission or the Tribal Council;

C. “Commission” means the Pueblo of Tesuque Liquor Licensing Commission;

D. “Commissioner” means a member of the Commission who reviews and decides upon Liquor Licensing applications;

E. “Enterprise” means a business wholly-owned, operated, and/or controlled by the Pueblo that is engaged in, or wishes to engage in, the business of Selling Liquor on the Reservation;

F. “Governor” means the Governor of the Pueblo or his designee;

G. “Liquor” means the product of distillation of any fermented liquid, rectified either once or more often, of whatever the origin, and includes synthetic ethyl alcohol, which is considered nonpotable. “Liquor” includes 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 percent alcohol, but less than twenty-one percent alcohol by volume, including Beer, Spirits, Wine, and Malt Liquor. Beer, Spirits, Wine, and Malt Liquor and liquors or solids containing in excess of 1/2 of 1% (.05%) of alcohol by volume, but not more than twenty-one percent (21%) shall be considered liquor.

H. “Licensed Liquor Establishment” means a designated physical location within the Reservation from which a Liquor Licensee is authorized to Sell Liquor under the provisions of the Liquor License granted by the Commission in accordance with this Liquor Ordinance;

I. “Liquor License” means a revocable license granted by the Commission authorizing the Liquor Licensee named therein and its Certified Servers to Sell Liquor at a specified Licensed Liquor Establishment on the Reservation;

J. “Liquor Licensee” means the holder of a valid Liquor License allowing the Sale of Liquor in a designated Licensed Liquor Establishment, as authorized and granted by the Commission; provided that a “Liquor Licensee” may be any eligible Person or the Pueblo, including any subdivision thereof or an Enterprise;

K. “Malt Liquor” means an alcoholic drink made from malt, typically having a higher alcohol content than most Beer or ale;

L. “Minor” means any individual under the age of twenty-one (21);

M. “Package Sale” means any Sale of Liquor in containers filled or packed by a manufacturer or wine bottler and Sold by a Liquor Licensee in an unbroken package for consumption off the Licensed Liquor Establishment premises and not for resale;

N. “Person” means an individual, trust, firm, association, partnership, political subdivision, government agency, municipality, industry, public or private corporation, or any other entity whatsoever;

O. “Public Place” means gaming, eating, and commercial or community facilities of every nature that are open to and/or are generally used by the public and to which the public is permitted to have unrestricted access; public conveyances of all kinds and character; and all other places of like or similar nature to which the general public has unrestricted access or to which the general public has been invited, and generally used by the public;

P. “Pueblo” means the Pueblo of Tesuque;

Q. “Reservation” means all lands within the exterior boundaries of the Pueblo's territories, all lands owned by the Pueblo subject to federal restrictions on alienation, and all other lands that are now or may hereafter be acquired or conveyed in fee to, held in trust for the benefit of the Pueblo, or held by the Pueblo subject to restrictions against alienation, whether by purchase, gift, act of Congress, or otherwise;

R. “Sale” or “Sell” means an exchange, transfer, sale, supply, barter, traffic, donation, with or without consideration, serving for consumption, dispensing, delivering, or distributing, by any means whatsoever, of Liquor on the Reservation by any Person;

S. “Spirits” means any beverage that contains alcohol obtained by distillation, mixed with drinkable water and other substances in solution, including brandy, rum, whiskey, and gin.

T. “State” means the State of New Mexico.

U. “Tax Commission” means the Tax Commission of the Pueblo of Tesuque or such other tribal commission, official, council, or subdivision designated by the Tribal Council to carry out the duties of the Tax Commission hereunder;

V. “Tribal Council” means the Pueblo of Tesuque Tribal Council.

W. “Tribal Court” means any or all of the courts established by the Pueblo to enforce its law;

X. “Wholesaler” means a person whose place of business is located off the Reservation and who Sells, or possesses for the purpose of Sale, any Liquor for resale by a Liquor Licensee;

Y. “Wholesaler License” means a revocable license granted by the Commission authorizing the Wholesaler named therein to do business on the Reservation with a Liquor Licensee; and

Z. “Wholesaler Licensee” means the holder of a valid Wholesaler License.

AA. “Wine” means any alcoholic beverage obtained by the fermentation of the natural sugar content of fruits, such as grapes or apples or other agricultural products, containing sugar, including fortified wines such as port, sherry, and champagne.

Section V. Powers of Enforcement

A. The Tribal Council hereby asserts primary regulatory authority over the subject matter of this Liquor Ordinance. The Tribal Council shall have the following powers and duties:

1. To establish, publish and enforce rules and regulations governing the Sale, and distribution of Liquor within the Reservation. Such rules and regulations shall be at least as stringent as the rules and regulations of the State;

2. To employ managers, accountants, security personnel, inspectors, and other such persons as may be reasonably necessary to allow the Tribal Council to perform its functions under this Liquor Ordinance;

3. To establish a Commission to handle the rights and responsibilities of the Commission.

4. To exercise such other powers as are necessary and appropriate to fulfill the purposes of this Liquor Ordinance.

B. The Commission shall have the authority to enforce this Liquor Ordinance and shall have the following powers and duties:

1. To authorize the Sale of Liquor at licensed Liquor establishments and in Public Places within the Reservation that have been specifically approved by a duly adopted Resolution of the Tribal Council.

2. To bring suit in any court of competent jurisdiction to enforce this Liquor Ordinance as necessary;

3. To determine penalties and seek damages for violations of this Liquor Ordinance; and

4. To collect fees levied or set in relation to this Liquor Ordinance and keep accurate records, books, and accounts.

Section VI. Limitations

A. In the exercise of its powers and duties under this Liquor Ordinance, the Tribal Council, Commission, and their individual members shall not accept gratuities, compensation, or other things of value from any Liquor Licensee, Wholesaler, retailer, or distributor.

B. Notwithstanding any other provision of this Liquor Ordinance, no penalty may be imposed pursuant or related to this Liquor Ordinance in contravention of any limitation imposed by the Indian Civil Rights Act of 1968, 82 Stat. 77, 25 U.S.C. 1301, et seq., or other applicable federal law.

C. No violations of this Liquor Ordinance shall be construed to be a criminal act, and as such, this Liquor Ordinance is intended to be applicable to Indians and non-Indians alike.

D. If any act prohibited under this Liquor Ordinance would be deemed a criminal act under state or federal law, and if the person so acting is non-Indian, the Pueblo shall cause the non-Indian to be referred to state and/or federal authorities for criminal investigation and possible prosecution under applicable state and/or federal criminal law.

E. If any act prohibited under this Liquor Ordinance would be deemed a criminal act under state or federal law, and if the individual so acting is an Indian, the Pueblo may prosecute the individual in Tribal Court, and, if found guilty, such Indian shall be punished in accordance with the criminal laws of the Pueblo.

F. Nothing in this Liquor Ordinance, including but not limited to any penalty imposed by the Tribal Court or Commission, shall be construed to bar a similar trial or punishment to the full extent of any applicable state and/or federal civil or criminal law.

Section VII. Inspection Rights

A. All premises upon which Liquor is sold, stored, or distributed, including any Licensed Liquor Establishment, shall be open to inspection by Pueblo, Tribal law enforcements officers, federal inspectors and federal law enforcement officers for the Start Printed Page 57059purposes of ascertaining compliance with this Liquor Ordinance and applicable law.

B. Any Person who prevents or hinders, or attempts to prevent or hinder, such inspection shall be in violation of this Liquor Ordinance.

Section VIII. Authorized Liquor Sales and Practices

A. Generally. Except as otherwise provided herein, Liquor Licensees may Sell Liquor on the Reservation at such places and hours permitted by their Liquor License and allowed by applicable Pueblo and State law.

B. Sales on Sundays and Election Days. Except as otherwise limited by the Tribal Council, the Sale of Liquor shall be allowed on Sunday and on any Pueblo, federal, or State election day to the same extent authorized by the State.

C. Sales Only by Certified Servers. All Liquor Sales on the Reservation authorized by this Liquor Ordinance must be made only by Certified Servers who have been certified by the entity providing the training program. Annually, and upon the request of the Tesuque Governor or the Commission, a Liquor Licensee must submit proof that all its employees Selling Liquor are Certified Servers.

D. Liquor Sales at Gaming Facility. Any Sale of Liquor at a gaming facility must comply with all applicable provisions of any tribal-state class III gaming compact between the Pueblo and the State, as it now exists or hereafter may be amended.

E. Wholesale Liquor Transactions. A Liquor Licensee may purchase Liquor for resale at a Licensed Liquor Establishment only from a Wholesaler possessing a valid Wholesale License. A Wholesale Licensee may Sell Liquor for resale at a Licensed Liquor Establishment only to holders of valid Liquor Licenses issued by the Commission, provided that such Sales are otherwise in conformity with this Liquor Ordinance and applicable laws of the State.

Section IX. Prohibited Liquor Sales and Practices

A. Resale. No Liquor Licensee shall Sell Liquor on the Reservation for resale; all such Sales must be for the personal use and consumption of the purchaser. Resale of any Liquor purchased from other than a licensed wholesaler within the exterior boundaries of the Reservation is prohibited. Any Person who is not licensed pursuant to this Liquor Ordinance who purchases Liquor within the boundaries within the Reservation and re-sells it, whether in the original container or not, shall be in violation of this Liquor Ordinance and shall be subject to penalties under this Liquor Ordinance.

B. Bringing Liquor onto Licensed Liquor Establishment Premises. No Person shall bring any Liquor for personal consumption into any Licensed Liquor Establishment where Liquor is authorized to be Sold by the drink, unless such Liquor was purchased on such premises, or unless the possession or distribution of such Liquor on such premises is otherwise authorized under the provisions of this Liquor Ordinance.

C. Other Prohibitions on Hours and Days of Sales. The Tribal Council may, by duly enacted resolution, establish other days on which, or times at which, Sales or consumption of Liquor is not permitted within the Reservation. The Tribal Council shall give prompt notice of any such enactment to all Wholesaler Licensees, Liquor Licensees, and Licensed Liquor Establishments doing business within the Reservation.

D. No Sales to Minors. No Person shall Sell Liquor on the Reservation to a Minor. It shall be a defense to an alleged violation of this Section that the Minor presented to the Seller of the Liquor an apparently valid identification document showing the Minor's age to be twenty-one (21) years or older.

E. No Sales to Intoxicated Persons. No Person shall Sell Liquor on the Reservation to a Person believed to be intoxicated.

F. Sales Must Be Made by Adults. No Minor shall take any order, make any delivery, or accept payment for any Sale of Liquor within the Reservation, or otherwise have any direct involvement in any such Sale.

G. All Sales Cash. A Licensed Liquor Establishment shall not make any Sale of any Liquor without receiving payment therefore by cash, check, or credit card at or about the time the Sale is made; provided that nothing herein shall preclude the Licensed Liquor Establishment from receiving a delivery of Liquor from a duly authorized Wholesaler if arrangements have been made to pay for such delivery at a different time; and provided further that nothing herein shall preclude the Licensed Liquor Establishment from allowing a customer to purchase more than one item in sequence, and to pay for all such purchases at the conclusion thereof, so long as payment is made in full before the customer has left the premises; and provided further that nothing herein shall prevent the Licensed Liquor Establishment from distributing Liquor to customers without charge, so long as such distribution is not otherwise in violation of any provision of this Liquor Ordinance.

H. Open Containers Prohibited. No Person shall have an open container of any Liquor in any automobile, whether moving or standing still, or in a Public Place, other than on the premises of a Licensed Liquor Establishment or in Public Places as authorized by a duly adopted Resolution of the Tribal Council. This Section shall not apply to empty containers.

Section X. Licensing

A. Pueblo of Tesuque Licensing Commission

1. All applications for Liquor Licenses will be reviewed and decided upon by the Pueblo of Tesuque Liquor Licensing Commission.

2. This Commission will be made of up three individuals from the Pueblo.

3. These individuals shall be referred to as “Commissioners.”

4. The Commission shall be made up of the following commissioners:

a. One member shall be the tax administrator for the Pueblo; and

b. Two members shall be tribal members selected by the Tribal Council.

B. General Eligibility; Applications

1. The Pueblo, including any Pueblo governmental entity, or an Enterprise, is deemed eligible to be a Liquor Licensee without further application under this Liquor Ordinance except as such licensing pertains to the designation of the Licensed Liquor Establishment itself. If the applicant is an Enterprise of the Pueblo, the Enterprise shall be the named Liquor Licensee.

2. Any other Person that wants to Sell Liquor on the Reservation must demonstrate general eligibility and apply to become a Liquor Licensee on the application forms, accompanied by the fee, and in the manner prescribed by the Commission. Any Person that is currently employed by the Pueblo or an Enterprise of the Pueblo is not eligible to be a Liquor Licensee.

C. Additional Tribal Liquor License Requirements

No License shall be issued under this Liquor Ordinance except upon a sworn application filed with the Commission containing a full and complete showing of the following:

1. Satisfactory proof that the applicant is duly licensed by the State to sell Liquor;

2. The description and location of the premises in which the Liquor is to be sold and proof that the applicant is entitled to use such premises for such purpose for the duration of the time period of the Liquor License.

3. Agreement by the applicant to accept and abide by all conditions of the Liquor License and this Liquor Ordinance.

4. Payment of a fee established by the Commission.

5. Satisfactory proof that neither the applicant, nor the applicant's spouse, nor any principal owner, officer, shareholder, or director of the applicant, has ever been convicted of a felony or a crime of moral turpitude as defined by the laws of the State.

6. If such Person is an individual, he or she must be at least twenty-one (21) years of age, and not have been convicted of a Liquor-related misdemeanor within the last five (5) years or a felony; and

7. If such Person is a corporation, partnership, or other business entity, the manager of the proposed Licensed Liquor Establishment must be an individual at least twenty-one (21) years of age, who has not been convicted of a Liquor-related misdemeanor within the last five (5) years or a felony.

8. Any non-Tribal applicant for a Liquor License must submit to a background investigation by filing with the application two (2) complete sets of his or her fingerprints taken under the supervision of and certified to by a Tribe or federal law enforcement officer. In such a case, the Commission may issue a temporary Liquor License pending the results of the background clearance, subject to revocation at any time, with or without cause.

C. Licensed Liquor Establishments

1. In its application for a Liquor License, the applicant also must request that the Commission designate and license a specific location where the Liquor Licensee is authorized to Sell Liquor on the Reservation. The applicant shall, at a minimum, submit a map showing the location of the proposed Start Printed Page 57060site and the perimeters of the land and building, together with a general description of the premises. A parcel of land not containing a building may be a Licensed Liquor Establishment, including but not limited to areas within and adjacent to a racetrack and/or golf course. The applicant shall submit such request on the forms and in the manner prescribed by the Commission.

2. No Licensed Liquor Establishment shall be located closer than three hundred (300) feet from any church, kiva, plaza, or school.

3. The Commission, in its sole discretion, may place terms, conditions, and/or restrictions on the Sale of Liquor at a Licensed Liquor Establishment, including but not limited to the hours and days of operation and the type of Liquor Sold; provided that a Liquor Licensee may appeal the imposition of any special restrictions as provided in this Liquor Ordinance.

Section XI. Processing Applications for Tribal Liquor License

A. After considering the information submitted on the application for a Liquor License, the Commission shall grant and issue a Liquor License if it concludes that the Liquor License will serve the best interests of the Pueblo and the regulatory goals of this Liquor Ordinance.

B. The Commission shall deny the application if it finds that granting a Liquor License would be contrary to the best interests of the Pueblo or the regulatory goals of this Liquor Ordinance, considering such factors as the applicant's compliance history with applicable Pueblo and federal law, whether the applicant is currently in violation of any Pueblo law, the number and density of Licensed Liquor Establishments on the Reservation, whether the applicant will operate a new or existing establishment, whether food will be sold on the premises, or any other reason bearing on the health, safety, and welfare of the Reservation community or the economic security of the Pueblo.

C. The Commission shall send the applicant a final written decision explaining the grounds for its decision either granting or denying the application for a Liquor License.

D. No member of the Commission shall be involved in any decision making process involving an application submitted by a member or member of the immediate family of a member of the Commissioner.

Section XII. Temporary Permits

Upon request, the Commission may, in its sole discretion, issue special events liquor permits authorizing specific Sales of Liquor for specific time periods not to exceed three (3) days on such terms as may be established by the Commission; provided that an applicant for a special events liquor permit must be at least twenty-one (21) years of age and not have been convicted of a Liquor-related felony or misdemeanor within the last five (5) years. Each permit issued shall specify the types of alcoholic beverages to be sold, the time, date and location permitted. A fee, as set by the Commission, will be assessed on temporary permits.

Section XIII. Conditions of the Tribal License

A. Any license issued under this Liquor Ordinance shall be subject to such reasonable conditions, as the Commission shall fix, including, but not limited to the following:

1. The license shall be for a term not to exceed two (2) years.

2. An application for a renewal of a Liquor License may not be made more than ninety (90), nor less than sixty (60) days prior to the expiration of the Liquor License, made on such forms as prescribed by the Tribal Council or Commission, and shall be accompanied by any required fees. Denial of an application for renewal of a Liquor License is appealable as provided in this Liquor Ordinance.

3. The Licensee shall at all times maintain an orderly, clean, and neat establishment, both inside and outside the Licensed Liquor Establishment.

4. The Licensed Liquor Establishment shall be open to inspection by duly authorized tribal officials at all times during regular business hours.

5. All acts and transactions under authority of a Liquor License shall be in conformity with applicable law and shall be in accordance with this Liquor Ordinance and such Liquor License issued.

6. No Minor shall be sold, served, delivered, given, or allowed to consume Alcoholic Beverages.

7. There shall be no discrimination in the operations under the Liquor License by reason of race, color, creed, sexual orientation, or national origin.

B. Liabilities of Liquor Licensee. Except as otherwise provided herein, each Liquor Licensee shall be accountable for all violations of its Liquor License and this Liquor Ordinance, and for all taxes, fees, and penalties that may be charged against its Liquor License or Licensed Liquor Establishment.

C. Classes of Liquor Licenses. The Commission may establish by regulation classes of Liquor Licenses and the activities authorized with each class, including but not limited to restaurants, bars, and Package Sales.

D. Transfer, Assignment, or Lease of Liquor License. No Liquor Licensee shall transfer, assign, or lease a Liquor License without the prior written approval of the Commission.

E. License is Not a Property Right. Notwithstanding any other provision of this Liquor Ordinance, a Liquor License is a mere permit for a fixed duration of time. A Liquor License shall not be deemed a property right or vested right of any kind, nor shall the granting of a Liquor License give rise to a presumption of legal entitlement to the granting of such license for a subsequent time period.

F. Wholesaler—Wholesaler License Required. A Wholesaler shall apply for a Wholesaler License on such forms, accompanied by such fee, and in such manner as may be prescribed by the Commission. No Wholesaler shall Sell, offer for Sale, or ship Liquor to a Liquor Licensee for sale at a Licensed Liquor Establishment on the Reservation except pursuant to a Wholesaler License.

Section XIV. Rules, Regulations, and Enforcement

A. Sale or possession with intent to sell without a permit. Any Person who shall Sell or offer for Sale, or distribute or transport in any manner, any Liquor in violation of this Liquor Ordinance, or who shall have Liquor in his possession with intent to Sell or distribute without a License or permit shall be in violation of this Liquor Ordinance.

B. Purchases from other than licensed or allowed facilities. Any Person who, within the boundaries of the Reservation, buys Liquor from any Person other than a Liquor Licensee shall be in violation of this Liquor Ordinance.

C. Consumption or possession of Liquor by Minors. No Minor shall consume, acquire, or have in his or her possession any Liquor. No Person shall permit any Minor to consume Liquor as set out in this Section.

D. Sales of Liquor to Minors. Any Person who shall Sell or provide Liquor to any Minor shall be in violation of this Liquor Ordinance for every Sale or drink provided.

E. Transfer of identification to a minor. Any Person who transfers in any manner an identification of age to a Minor for the purpose of permitting such Minor to obtain Liquor shall be in violation of this Liquor Ordinance; provided, that corroborative testimony of a witness other than the Minor shall be a requirement of finding a violation of this Liquor Ordinance.

F. Use of False or Altered Identification. Any Person who attempts to purchase Liquor through the use of a false or altered identification shall be in violation of this Liquor Ordinance.

G. Acceptable Identification. If there is a question of a Person's right to purchase Liquor, such Person shall be required to present any one of the following cards of identification which shows his or her correct age and bears his or her signature and photograph: (1) A valid driver's license of any state or identification card issued by any state department of motor vehicles; (2) United States active duty military ID; (3) a passport.; or (4) a recognized tribal identification card.

H. Happy Hours. The Commission may adopt a policy or regulations on the conduct of happy hours at Licensed Liquor Establishments wherein Liquor is Sold on certain occasions or at certain times for a price substantially lower than at other times. The Commission also may request that each Licensed Liquor Establishment conducting Happy Hour establish written policies on Happy Hour for approval or disapproval by the Commission.

I. Violations of This Liquor Ordinance

1. Civil Liabilities. Any Person authorized to enforce this Liquor Ordinance in the name of the Pueblo may bring a civil action in the Tribal Court against any Person who engaged in an activity or activities prohibited herein and may recover monetary damages, civil fines not exceeding five hundred dollars ($500.00) per violation, attorney fees, injunctive relief, and/or any other relief that is just and equitable under the circumstances, including but not limited to orders for the violator: Start Printed Page 57061

a. To perform up to one hundred and twenty (120) hours of community service on the Reservation;

b. To make restitution; and/or

c. To disgorge any monetary benefit derived from engaging in the prohibited activities.

2. Exclusion from Reservation. For good and sufficient cause found, the Tribal Court may exclude from the Reservation any Person who engages in an activity or activities prohibited by this Liquor Ordinance to the extent such exclusion is not inconsistent with Pueblo law.

3. Suspension and Revocation of Liquor License or Wholesaler License. In addition to any civil penalties, any Liquor License or Wholesaler License issued hereunder may be suspended or revoked on the following grounds:

a. Violation of any provision of this Liquor Ordinance or any regulations promulgated hereunder or of the applicable liquor laws of the State;

b. Violation of any applicable Pueblo law;

c. Violation of the terms, conditions, and scope of a Liquor License or Wholesaler License and/or otherwise Selling Liquor in violation of a Liquor License or Wholesaler License;

d. Making a material misstatement on the application for a Liquor License or Wholesaler License;

e. As a Liquor Licensee or Wholesaler Licensee, being convicted of a felony;

f. Allowing a nuisance or dangerous behavior to occur within the Licensed Liquor Establishment or on its premises;

g. Allowing the sale, possession, purchase, manufacture, or transfer of drug-related paraphernalia, prohibited drugs, or other controlled substances, except for the possession of controlled substances for which the person in possession has a valid prescription; provided that, for purposes of this Liquor Ordinance, “prohibited drug” means any substance the sale, possession, purchase, manufacture, or transfer of which is prohibited by federal, state, or Pueblo criminal drug provisions, and which has not been obtained by its possessor pursuant to a valid prescription, and “controlled substance” includes all prohibited drugs; or

h. Any other good cause shown.

4. Temporary Revocation or Suspension of a Liquor License or Wholesaler License Without Notice. In the event of an emergency and/or to protect the health, safety, and welfare of the public present on the Reservation, the Commission may temporarily revoke or suspend a Liquor License or Wholesaler License without prior notice for a period not exceeding thirty (30) days.

5. Notice.

a. Except as provided in subpart 4 of this section, the Commission shall provide written notice of its intent to revoke or suspend a Liquor License or Wholesaler License or to impose special restrictions for a violation of this Liquor Ordinance. Such notice shall be received in person or by certified mail, return receipt requested, to the last known address of the Liquor Licensee or Wholesaler Licensee, at least ten (10) days in advance of the hearing. The notice will be delivered in person or by certified mail with the Commission retaining proof of service. The notice will set out the rights of the alleged violator, including but not limited to the right to have an attorney present, and the right to speak, to present witnesses, and to cross-examine any adverse witnesses.

b. If the Liquor Licensee or Wholesaler Licensee cannot be so served with notice, the Liquor Licensee or Wholesaler Licensee may be served by publication in a newspaper of general circulation in the area once each week for two (2) consecutive weeks. The Liquor Licensee or Wholesaler Licensee shall have at least ten (10) days from the day the notice was delivered, or from the date of last publication, to show cause why the Liquor License or Wholesaler License should not be revoked or suspended or the special restrictions imposed.

6. Hearing. The Commission shall afford the Liquor Licensee or Wholesaler Licensee an opportunity to appear and be heard, either in person or through a representative, and to submit such evidence as may be relevant.

I. Possession of Liquor Contrary to This Liquor Ordinance. Liquor obtained, possessed, or controlled in violation of this Liquor Ordinance is declared to be contraband. Any Pueblo agent, employee, or officer who is authorized by the Tribal Council or Commission to enforce this Section shall have the authority to, and shall, seize all contraband.

J. Disposition of Seized Contraband. Any Pueblo agent, employee, or officer seizing contraband shall preserve the contraband in accordance with applicable tribal and federal law, and the party previously in possession or control of the contraband shall forfeit all right, title, and interest in the items seized, which shall become the property of the Pueblo.

Section XV. Certified Servers

A. Application Requirements. Every employee of a Liquor Licensee, who Sells Liquor at a Licensed Liquor Establishment, must be a Certified Server twenty-one (21) years of age or older. Such employee shall apply for certification on such forms, accompanied by such fee, and in such manner as may be prescribed by the Commission. The application for certification shall contain:

1. The name and address of the applicant;

2. A list of all the applicant's jobs and employment for the preceding three (3) years;

3. A list of all residences for the preceding three (3) years, including street address, city, and state, and dates of residence at each address;

4. A signed statement that the applicant agrees to abide by this Liquor Ordinance and consents to the personal jurisdiction of the Pueblo for purposes of Liquor regulation and enforcement of this Liquor Ordinance; and

5. Evidence (i.e., certificate of completion) that the applicant has successfully completed a liquor server education training program approved by the Commission.

B. Certification Term. A Certified Server's certification shall be valid for five (5) years from the date of his or her successful completion of the liquor server education training program.

C. Revocation. The Commission may revoke any certification issued under this Section if the Certified Server violates any provision of this Liquor Ordinance or any regulations promulgated hereunder, violates any applicable Pueblo law, makes a material misstatement on the application for certification, is convicted of a felony, or for other good cause shown.

Section XVI. Appeals to Tribal Court

A. Appealable Actions. Any Person or entity that is denied a Liquor License or a Wholesaler License, or whose Liquor License or Wholesaler License is limited by special restrictions, is suspended, revoked, or denied renewal, may appeal the adverse action to the Tribal Court. Any Person that is denied a certification or whose status as a Certified Server has been revoked or deemed unacceptable may appeal the adverse action to the Tribal Court. All appeals hereunder must be filed with the Tribal Court within [thirty (30)] days of the date of the adverse action or be forever barred; provided that, if no appeal is timely made as provided herein, an action is final and shall not be subject to further appeal in any forum or court.

B. Rules; Stay; Bond. The procedural rules of the Tribal Court appropriate for administrative appeals, or such other procedural rules that may be established by regulation to govern such appeals, shall apply. Upon request, the Tribal Court in its discretion may stay a suspension or revocation pending an appeal and/or require that the appellant post an appeal bond in such amount as it may be set by the Tribal Court.

C. Decision of Tribal Court Final. All decisions of the Tribal Court on appeals under this Section are final and not further appealable in any forum or court.

Section XVII. Inspection of Licensed Liquor Establishment Premises

A. All premises used in the storage or Sale of Liquor or any premises or parts of premises used or in any way connected, physically or otherwise, with a Licensed Liquor Establishment shall at all times be open to inspection by any Pueblo or federal inspectors or federal law enforcement officers.

B. Any Person, being on such premises and having charge thereof, who refuses or fails to admit a Pueblo or federal inspector or Pueblo or federal law enforcement officer demanding to enter therein in pursuance of this Section in the execution of his or her duty, or who obstructs or attempts to obstruct the entry of such inspector or officer, shall be deemed to have violated this Liquor Ordinance.

Section XVIII. Transportation Through Reservation

Nothing in this Liquor Ordinance shall apply to the otherwise lawful transportation of Liquor through the Reservation by Persons remaining on public highways or other paved facilities for motor vehicles provided that such Liquor is not Sold, or offered for Sale, within the Reservation. Start Printed Page 57062

Section XIX. Profits

A. Disposition of Proceeds. The gross proceeds collected by the Commission from licensing shall be distributed as follows:

1. For the payment of all necessary personnel, administrative costs, and legal fees for the administration of the provisions of this Liquor Ordinance.

2. The remainder shall be remitted to the General Fund Account of the Tribe.

Section XX. Sovereign Immunity

Nothing in this Liquor Ordinance is intended nor shall be construed as a waiver of the sovereign immunity of the Pueblo. No employee, officer, or agent of the Pueblo shall be authorized, nor shall he or she attempt, to waive the immunity of the Pueblo.

Section XXI. Jurisdiction; Conflicts With Other Laws

A. Jurisdiction. Exceptions as otherwise provided in this Liquor Ordinance, any and all actions pertaining to alleged violations of this Liquor Ordinance, or seeking any relief against the Pueblo, its officers, employees, or agents arising under this Liquor Ordinance, shall be brought in the Tribal Court, which court shall have exclusive jurisdiction consistent with the inherent sovereignty and immunity of the Pueblo and applicable federal and Pueblo law.

B. Conflicts with Other Laws. If this Liquor Ordinance is determined to conflict with any other Pueblo law of general application, this Liquor Ordinance shall control.

Section XXII. Severability

If any provisions of this Liquor Ordinance or the application of any provision to any Person or circumstances is held invalid or unenforceable by a court of competent jurisdiction, such holding shall not invalidate or render unenforceable the remainder of this Liquor Ordinance and its application to any other Person or circumstances, and, to this end, the provisions of this Liquor Ordinance are severable.

Section XXIII. Effective Date

This Liquor Ordinance shall be effective on such date as the Secretary of the Interior certifies this Liquor Ordinance and publishes the same in the Federal Register, and it supersedes any and all prior Liquor Ordinances that have been so adopted and certified.

Section XXIV. Amendment

This Liquor Ordinance may be amended by a resolution adopted by a majority vote of the Tribal Council.

End Supplemental Information

[FR Doc. E7-19740 Filed 10-4-07; 8:45 am]

BILLING CODE 4310-4J-P