[Federal Register: April 1, 2009 (Volume 74, Number 61)]
[Notices]
[Page 14813-14818]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01ap09-66]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Alcoholic Beverage Control Ordinance, Salt River Pima-Maricopa
Indian Community
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
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SUMMARY: This notice publishes an amendment to the Salt River Pima-
Maricopa Indian Community's Code of Ordinances, Chapter 14, Articles I
and II. This amended Code of Ordinances was last published on May 8,
1998 (63 FR 25516). Chapter 14 of the Code regulates and controls the
possession, sale and consumption of liquor within the Salt River Pima-
Maricopa Indian Community's trust lands specified in Attachment A of
Article II. The Code allows for the possession and sale of alcoholic
beverages within Salt River Pima-Maricopa Indian Community trust lands.
This Code will increase the ability of the tribal government to control
the distribution and possession of liquor within its 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 Code is effective as of May 1, 2009.
FOR FURTHER INFORMATION CONTACT: Jim Steele, Tribal Relations
Specialist, Western Regional Office, Bureau of Indian Affairs, 400 N.
5th Street, Two Arizona Center, 12th Floor, Phoenix, Arizona 85001;
Telephone (602) 379-6786; Fax (602) 379-4100; or Elizabeth Colliflower,
Office of Tribal Services, 1849 C Street, NW., Mail Stop 4513-MIB,
Washington, DC 20240; Telephone (202) 513-7640; Fax (202) 208-5113.
SUPPLEMENTARY INFORMATION: Pursuant to the Act of August 15, 1953;
Public Law 83-277, 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 or amended liquor ordinances for the purpose of regulating
liquor transactions in Indian country. The Salt River Pima-Maricopa
Indian Community's Community Council adopted this amendment to the Salt
River Pima-Maricopa Indian Community's Code of Ordinances, Chapter 14,
Articles 1 and 2, by Ordinance No. SRO-334-08 on June 4, 2008.
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 the Salt River Pima-Maricopa Indian Community
Council duly adopted this amendment to the Alcoholic Beverage Control
Ordinance on June 4, 2008.
Dated: March 18, 2009.
George T. Skibine,
Deputy Assistant Secretary for Policy and Economic Development.
The amendment to Salt River Pima-Maricopa Indian Community's Code
of Ordinances, Chapter 14, Articles 1 and 2, reads as follows:
Salt River Pima-Maricopa
Indian Community
Ordinance Number: SRO-334-08.
To repeal Articles I & II Of Chapter 14 of the Salt River Pima-
Maricopa Indian Community Code Of Ordinaces in its entirety and adopt
revised Articles I & Ii, to update and provide necessary clarifications
to the regulated possession, consumption and sales of alcoholic
beverages within the community.
Be it enacted that:
Chapter 14, Article I and II of the Salt River Pima-Maricopa Indian
Community Code of Ordinances is repealed in its entirety and revised
Articles I and II, Chapter 14 are hereby enacted:
Article I. In General
Sec. 14-1. Violation of chapter.
A person who violates any provision of Chapter 14 of the Code shall
be deemed guilty of an offense, and, upon conviction thereof, shall be
sentenced to imprisonment for a period not to exceed six (6) months or
to a fine not to exceed five thousand dollars ($5,000.00) or both such
imprisonment and fine, with costs. (Ord. No. SRO-31-74, 5-29-74; Code
1976, Sec. 14-11-14-16.)
Secs. 14-2-14-09. Reserved.
Article II. Alcoholic Beverage Control
Sec. 14-10. Sovereign Immunity.
Nothing in this Article is intended or shall be construed as a
waiver of the sovereign immunity of the Salt River Pima-Maricopa Indian
Community.
Sec. 14-11. Title; authority; purpose; etc.
(a) Title. This article shall be known as the Salt River Pima-
Maricopa Indian Community Alcoholic Beverage Control Ordinance.
(b)
Authority. This article is enacted pursuant to the Act of August
15, 1953 (Pub. L. 83-277, 67 State. 588, 18 U.S.C. 1161) and Article
VII of the Salt River Pima-Maricopa Indian Community Constitution.
(c) Purpose. The purpose of this article is to regulate and control
the possession, consumption, and sale of liquor on the Salt River Pima-
Maricopa Indian Community. The enactment of an ordinance governing
liquor possession and sale on the reservation will increase the ability
of the Community government to control reservation liquor distribution
and possession, and at the same time will provide an important source
of revenue for the continued operation and strengthening of the
[[Page 14814]]
Community government and the delivery of Community government services.
(d) Application of 18 U.S.C. 1161. All acts and transactions under
this article shall be in conformity with this article and in conformity
with the laws of the State of Arizona, to the extent required by 18
U.S.C. 1161.
(e) Effective date. This article shall be effective as a matter of
Community law upon approval by the Community Council and effective as a
matter of Federal law when the Assistant Secretary of Indian Affairs
certifies and published this Article in the Federal Register.
Sec. 14-12. Scope.
Except for articles I, II and III of Chapter 14 of the Code of
Ordinances of the Salt River Pima-Maricopa Indian Community, this
article constitutes the entire statutory law of the Community in regard
to the sale and/or distribution of alcoholic beverages within the
Community.
Sec. 14-13. Definitions.
In this article, unless the context otherwise requires:
Alcoholic beverage means beer, wine or other spirituous liquor.
Beer, wine or other spirituous liquor used solely for the purpose of
cooking is excluded from this definition.
Applicant means any partnership, corporation, limited liability
company as well as any natural person that is or are requesting
approval of a Community liquor license.
Community means the Salt River Pima-Maricopa Indian Community.
License means a license issued pursuant to the provisions of this
article.
Licensed premises or premises means a place from which a licensee
is authorized to sell alcoholic beverages under the provisions of this
article.
Licensee means any partnership, corporation or limited liability
company, as well as any natural person who has been authorized to sell
alcoholic beverages for consumption at a particular premises by the
Salt River Pima-Maricopa Indian Community.
Minibar means a closed container, either refrigerated in whole or
in part or non-refrigerated, where access to the interior is restricted
by means of a locking device which requires the use of a key, magnetic
card or similar device.
Office means the alcohol beverage control office or persons within
the Community Regulatory Agency that regulate alcohol and/or liquor
sales and distribution transactions within the Community as created in
Section 14-16(a) of this ordinance.
Person means any partnership, corporation or limited liability
company, as well as any natural person.
Possess means to have any item or substance within the control of a
person or to have any alcoholic beverage within a person's body,
regardless of where the consumption may have taken place.
Public Patio Enclosure means a contiguous patio or a patio that is
not contiguous to the remainder of the licensed premises if the patio
is separated from the remainder of the premises or licensed premises by
a public or private walkway or driveway not to exceed 30 feet, subject
to the rules that the director may adopt to establish criteria for a
noncontiguous premises.
Private residence means a place where an individual or a family
maintains a habitation.
Public place means any place not a private residence, including
within operational motor vehicles or non-residential structures, and
not licensed for the possession of alcoholic beverages.
Sell, sold, buy means and shall include furnish, dispose of, give,
receive or acquire.
Sec. 14-14. Unlawful acts.
(a) It shall be unlawful for any person to deal with alcoholic
beverages in any manner not allowed by this article or the regulations
adopted under this article.
(b) It shall be unlawful for a licensee or other person to give,
sell or cause to be sold or otherwise distribute alcoholic beverages to
a person under the age of twenty-one (21) years.
(c) It shall be unlawful to employ a person under the age of
twenty-one (21) years in any capacity connected with the handling of
alcoholic beverages.
(d) It shall be unlawful for a person under the age of twenty-one
(21) years to buy, possess, or consume alcoholic beverages.
(e) It shall be unlawful for a licensee or an employee of a
licensee to consume alcoholic beverages on or about the licensed
premises during such periods such person is working at the licensed
premises.
(f) It shall be unlawful for a licensee or any other person to sell
alcoholic beverages to an intoxicated or disorderly person, or for a
licensee or employee of a licensee to allow or permit an intoxicated or
disorderly person to remain on the premises.
(g) It shall be unlawful for a licensee to sell alcoholic beverages
in any manner not provided for by this article, the regulations issued
pursuant to this article or the licensee's license.
(h) It shall be unlawful for any person over the age of eighteen
(18) who lawfully exercises dominion and control within any private
residence or the surrounding premises to knowingly permit any person
under the age of twenty-one (21) to possess or consume alcoholic
beverages within the private residence or the surrounding premises.
Sec. 14-15. Lawful commerce.
(a) Alcoholic beverages may be possessed and consumed only at
private residences and licensed premises pursuant to this Chapter, and
may be transported in unbroken containers to such places.
(b) Alcoholic beverages may be sold at licensed premises only under
the conditions under which the license is issued.
(c) The Community may from time to time issue licenses for the sale
of alcoholic beverages subject to the provisions of this article and
the regulations adopted pursuant to this article.
Sec. 14-16. Office of alcohol beverage control, duties of director;
issuance of license, revocation, hearings.
(a) Office. The office of alcohol beverage control (``Office'') is
hereby established within the Community's Regulatory Agency. The
director of the Office will be the alcohol beverage hearing officer who
will be responsible to the Community manager and whose duties may be
delegated from time to time to assistant hearing officers or other
employees of the office. All of the positions of the Office will be
filled and will be conducted in accordance with the Community's
established policies and procedures.
(b) Regulations. The Community Council shall have the authority to
issue such regulations, consistent with the provisions of this Article,
that aid in the effective administration of the purpose and intent of
this Article. The Community Council may issue regulations for the
purpose of carrying out the provisions of this article, including the
following:
(1) The establishment of a procedure for the application of a
license, including the public hearings process;
(2) The providing of uniform standards or qualifications that all
licensees must meet;
(3) Any and all information required by applicants for licenses,
and for the verification of such information. Applicants shall include,
in the case of a corporation, all shareholders of more than five (5)
percent of the corporate
[[Page 14815]]
stock and all officers and directors of the corporation; in the case of
limited liability companies, all of its managing members; and, in the
case of a partnership, all of the partners;
(4) The establishment of fees for the application, renewal
application and annual license;
(5) The establishment of hours within which licensed premises may
be open for business;
(6) The establishment of standards for operation of the licensed
premises and for the audit of any records;
(7) The development of distinct classes of licenses for the sale of
(i) all alcoholic beverages, (ii) only beer, (iii) only wine, or (iv)
only beer and wine;
(8) The procedures for revocation and suspension of licenses; and
(9) Any necessary regulations that further the intent of this
ordinance and provide for the limited and regulated sales of alcohol
within the Community.
(c) Beverage restrictions. Licenses may only be issued for premises
operated under the following classifications as defined herein; and
such licenses may be restricted to the sale of (i) all alcoholic
beverages, (ii) only beer, (iii) only wine, or (iv) only beer and wine.
(d) Designated area. Licenses may be issued for premises located
only on land described on the designated area map attached to Ordinance
No. SRO-301-05. This designated area map, identified as the ``Liquor
License Area Map'' (see attachment A, incoporated herein by reference)
shall be in the official records of the Community in the Office of the
Council Secretary. Upon majority vote by the Community council and
publication in the Community's newspaper, the Community council may
amend the Liquor License Area Map.
(e) Premises which may be licensed. Licenses may only be issued for
premises as defined in this subsection (e) or its subsections.
(1) Hotel-motel license.
a. The alcohol beverage hearing officer may issue a hotel-motel
license to any hotel or motel that operates either a restaurant (as
defined below) or a bar in the hotel or motel, provided that the
applicant is otherwise qualified to hold a license.
b. The holder of a hotel-motel license is authorized to sell and
serve alcoholic beverages solely for consumption on the licensed
premises. For the purpose of this section ``licensed premises'' shall
include all minibars located within guest rooms accommodations, public
bar rooms, outdoor patio enclosures, outdoor pool areas, public
restaurant rooms, facilities, areas, and private banquet or meeting
rooms located within the hotel-motel premises or connected to the
hotel-motel premises by a covered walkway or joined to the hotel-motel
premises by a common roof line, all of which shall be deemed to be
``in'' the hotel-motel for purposes of this Chapter if and to the
extent they are contained within the licensed premises as provided for
in the applicable hotel-motel license. The licensed premises may
include parcels that are leased pursuant to two or more separate
leases.
c. ``Restaurant'' means an establishment which derives at least
forty (40) percent of its gross revenue from the sale of food.
(2) Casino license.
a. The alcohol beverage hearing officer may issue a casino license
to any casino authorized to operate as a casino by the Community.
b. The holder of a casino license is authorized to sell and serve
alcoholic beverages solely for consumption on the licensed premises.
For the purpose of this section, ``licensed premises'' shall include
all public bar rooms, gaming areas, private banquet or meeting rooms,
restaurants, other food service facilities, outdoor patio enclosures,
and land contiguous to the casino facility.
(3) Golf course clubhouse license.
a. The alcohol beverage hearing officer may issue a golf course
clubhouse license to any golf course clubhouse.
b. The holder of a golf course clubhouse license is authorized to
sell and serve alcoholic beverages solely for consumption on the
licensed premises and only to patrons of the golf course facility. For
the purpose of this section, ``licensed premises'' shall include all
restaurants and other food service facilities, private banquet or
meeting rooms, bar rooms, outdoor patio enclosures, lounge facilities
within the golf course clubhouse, and golf course enclosure. For
purposes of this section a ``golf course clubhouse'' means a clubhouse
located on a golf course. For purposes of this section a ``golf course
enclosure'' means substantially undeveloped land, including amenities
such as landscaping, irrigation systems, paths and golf greens and
tees, that may be used for golfing or golfing practice by the public or
by members and guests of a private club.
(4) Hotel-Motel Restaurant License.
a. The alcohol beverage hearing officer may issue a hotel-motel
restaurant license to any restaurant located in a hotel-motel.
b. The hotel-motel restaurant shall be regularly open for the
serving of food to guests for compensation and is an establishment
which derives at least forty (40) percent of its gross revenue from the
sale of food.
(f) Issuance of licenses, hearings.
(1) Applicant's Burden. Licenses will be issued by the director of
the Office after a hearing and upon a determination by the alcohol
beverage hearing officer that the following criteria has been met by a
satisfactory showing by the applicant that:
a. The public convenience requires the issuance of the license; and
b. The best interests of the Community will be substantially served
by the issuance of the license.
(2) Inappropriate Purpose. In order to prevent the proliferation of
spirituous liquor licenses, the Office may deny a license to an
applicant after determining that the applicant's business is
inappropriate for the sale of spirituous liquor. An inappropropriate
applicant or business is one that cannot clearly demonstrate that the
sale of spirituous liquor is directly connected to its primary purpose
and that the sale of liquor is not merely incidental to its primary
purpose.
(3) Background Investigation. The Office shall do a criminal
history background check qualification on any applicant for a license
under this article.
(4) Public Hearing. The alcohol beverage hearing officer shall
determine after a hearing has been held whether and under what
conditions a license shall be issued.
a. The hearing shall be announced by notice in the Community
newspaper.
b. Notice shall be given no less than ten (10) days prior to such
hearing.
c. The hearing shall be conducted by the alcohol beverage hearing
officer in an informal manner with rules adopted pursuant to this
article calculated to assure full disclosure of all relevant
information.
d. Professional attorneys shall not be permitted to represent
parties at any such hearing or hearings on appeal.
e. The alcohol beverage hearing officer shall hear all relevant
issues and, within thirty days (30) days after the hearing is
concluded, shall issue a written decision.
f. The decision will contain the findings of fact relied on by the
alcohol beverage hearing officer for the decision as well as the
decision.
g. The findings of fact and decision shall be filed with the clerk
of the Salt River Pima-Maricopa Indian Community Court and distributed
by the Office within two (2) days after such filing to the applicant,
any other person who files a notice of appearance with the alcohol
beverage hearing officer before the hearing is adjourned, and the
secretary of the Salt River Pima-Maricopa Indian Community.
[[Page 14816]]
(5) Appeals. A decision of the alcohol beverage hearing officer
issued after the public hearing may be appealed to the Salt River Pima-
Maricopa Indian Community Court by the applicant, the Community, or any
Community member who has filed a notice of appearance. Appeals shall be
taken from any decision of the alcohol beverage hearing officer in the
following manner:
a. Notice of appeal. Written notice of appeal shall be given within
ten (10) days after the day the written and executed decision by the
alcoholic beverage hearing officer is filed with the clerk of the Salt
River Pima-Maricopa Indian Community Court.
1. The notice of appeal shall state all the grounds for appeal
relied on by the appellant.
2. The notice of appeal shall not be amended once it is filed.
3. The appellee may file a short written response to the grounds
for appeal within ten (10) days after the notice of appeal is filed.
4. The notice of appeal and response shall be mailed to the
opposing party on the day it is filed.
5. If the appellant is the applicant for the license, the appellee
shall in all cases be the alcohol beverage hearing officer. If the
appellant is a person who filed a notice of appearance or the
Community, the appellee shall in all cases be the applicant.
6. In the event there is more than one notice of appeal filed, the
appeals shall be consolidated by the clerk and only one response shall
be filed to the consolidated appeals.
b. Costs. There shall be posted with the clerk of the Salt River
Pima-Maricopa Indian Community Court a cash fee of twenty-five dollars
($25.00) to cover court costs.
c. Grounds for appeal. The court shall determine the appeal upon
the findings of fact and decision entered in the case by the alcohol
beverage hearing officer.
d. Findings of fact. The findings of fact shall be presumed to be
without reversible error. The presumption may be overcome by a sworn
written statement presented to the court at the time of the filing of
the notice of appeal which establishes, on the basis of the statement,
any one or more of the following grounds:
1. That a witness ready and willing to testify at the time of the
hearing on behalf of the appellant was not allowed by the alcohol
beverage hearing officer to take the witness stand and testify, and
such testimony would have materially altered the decision of the
alcohol beverage hearing officer.
2. That the alcohol beverage hearing officer refused to admit
documentary or other physical evidence, and such evidence would have
materially altered the decision of the alcohol beverage hearing
officer.
3. That after the hearing, the appellant discovered material
evidence which, with reasonable diligence, could not have been
discovered and produced at the hearing, and such evidence would have
materially altered the decision of the alcohol beverage hearing
officer.
4. In the event the court finds the presumption is overcome
pursuant to this subsection, the court shall remand the case back to
the alcohol beverage hearing officer for the limited purpose of hearing
only the excluded or new evidence and any evidence presented in
rebuttal to such evidence.
5. The hearing will be held within ten (10) days after the order of
the court has been filed and served upon the appellants and appellee.
6. At the conclusion of such remand hearing, the alcohol beverage
hearing officer shall, within ten (10) days of the hearing, make and
enter such amended findings of fact and decision as the alcohol
beverage hearing officer determines that the evidence adduced at the
remand hearing requires. If the alcohol beverage hearing officer
determines that the prior findings of fact requires no amendment, the
alcohol beverage hearing officer will issue a decision reaffirming its
prior findings of fact and decision.
7. The findings of fact and decision will be transmitted to the
court and such findings of fact and decision will not be subject to a
separate appeal.
e. Decision by the Court. The court shall determine whether the
decision is supported by the findings of fact and the law.
1. Any party to the case may request an opportunity to appear
before the court prior to its decision to give the court such party's
view of the case.
2. The other party or parties shall be given adequate notice of the
hearing and an opportunity to present such party's or parties' view of
the case. Such views shall be presented orally by the parties or their
advocates and shall only deal with the grounds relied on by the
appellant as set out in the notice of appeal.
3. The hearing shall be limited to one hour and the time will be
equally divided between the appellant and the appellee.
4. If the court finds that the previous decision is incorrect, it
shall issue a new decision correctly stating the decision. Such
decision shall be final and not subject to rehearing, review or appeal.
(7) Authority of the Office.
a. Inspection of Premises. The office or the beverage control
officer may, in enforcing the provisions of this Article, inspect the
premises.
b. Records of application, permit and proceedings. A complete
record of all applications, actions taken thereon, and any licenses
issued shall be maintained by the Community and shall be open for
public inspection at the office.
c. License Term. Licenses shall be issued for a period of one year
and are renewable on application to the office which will renew upon
payment of the renewal application fee and annual license fee.
d. Transfer of License. Licenses issued under this article are
nontransferable without the prior written approval of the alcohol
beverage hearing officer after the application process has been
completed.
e. Citation. The office of alcohol beverage control or the Salt
River Police Department may cite a licensee to appear before the
alcohol beverage hearing officer for a revocation hearing upon
allegations of violations under this Article.
f. Revocation or Suspension of License. Any license issued pursuant
to this article may be revoked or suspended after a hearing before the
alcohol beverage hearing officer upon a finding that the licensee is
operating the premises in violation of this article, the regulations
adopted pursuant to it, the laws of the Community, or pursuant to
finding that that the license would not have been originally issued had
the facts in evidence at the time of any revocation hearing had been
known at the time of the application for a license.
14-16a. Miscellaneous.
a. Severability. If any provision of this Article shall be
determined invalid or unenforceable by a court of competent
jurisdiction, such determination shall not be held to invalidate or
render unenforceable the remainder of this Article, and to this end,
the provisions of this Article are severable.
b. Amendment. This Article may be amended by a majority vote of the
SRPMIC Council or by the SRPMIC initiative or referendum process.
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[FR Doc. E9-7261 Filed 3-31-09; 8:45 am]
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