Pueblo of San Felipe Liquor Control Ordinance, 47214-47221 [E8-18770]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs

[Federal Register Volume 73, Number 157 (Wednesday, August 13, 2008)]
[Notices]
[Pages 47214-47221]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-18770]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Pueblo of San Felipe Liquor Control Ordinance

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: This notice publishes the Pueblo of San Felipe Liquor Control 
Ordinance. The Ordinance regulates and

[[Page 47215]]

controls the possession, sale and consumption of liquor within the 
Pueblo of San Felipe lands. The Pueblo of San Felipe 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 San 
Felipe. 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 August 13, 
2008.

FOR FURTHER INFORMATION CONTACT: Iris A. Drew, Division of Tribal 
Government, Office of Indian Services, 1001 Indian School Road, 
Albuquerque, New Mexico 87104; Telephone (505) 563-3530; Fax (505) 563-
3060; or Elizabeth Colliflower, Office of Indian Services, 1849 C 
Street, NW., Mail Stop 4513-MIB, Washington, DC 20240; Telephone (202) 
513-7627; 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 liquor ordinances for the purpose of regulating liquor 
transactions in Indian Country. The Tribal Council of the Pueblo of San 
Felipe adopted this Liquor Ordinance on April 14, 2008. The purpose of 
this Ordinance is to govern the sale, possession, and distribution of 
alcohol within the lands held by the Pueblo of San Felipe. This notice 
is published in accordance with the authority delegated by the 
Secretary of the Interior to the Assistant Secretary--Indian Affairs. I 
approve this ordinance and certify that this Liquor Sales Ordinance of 
the Pueblo of San Felipe was duly adopted by the Tribal Council on 
April 14, 2008.

    Dated: July 31, 2008.
George Skibine,
Acting Deputy Assistant Secretary for Policy and Economic Development.

The Pueblo of San Felipe's Liquor Control Ordinance reads as follows:

PUEBLO OF SAN FELIPE LIQUOR CONTROL ORDINANCE

Adopted by Resolution No. 2008-86 on April 14, 2008

I. TITLE AND PURPOSE.

    The title of this ordinance is the Pueblo of San Felipe Liquor 
Control Ordinance (Liquor Ordinance). The purpose of this Liquor 
Ordinance is to standardize procedures for the regulation and control 
of the sale and consumption of liquor on the Reservation.

II. 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. No. 83-277, 67 Stat. 586, 18 U.S.C. Sec.  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.

III. DEFINITIONS.

    Except as otherwise provided herein, the following definitions 
apply throughout this Liquor Ordinance:
    A. ``Certified Server'' means any employee of a Liquor Licensee who 
is twenty-one (21) years of age or older, certified to Sell Liquor on 
the Reservation in accordance with this Liquor Ordinance, has 
successfully completed a Liquor server training program approved by the 
Tribal Council, and is certified as having completed such course by the 
entity providing the training program or by the Tribal Council;
    B. ``Commission'' means the Pueblo of San Felipe Liquor Control 
Commission;
    C. ``Enterprise'' means a business wholly-owned by the Pueblo that 
is engaged in, or desires to engage in, the business of Selling Liquor 
on the Reservation;
    D. ``Governor'' means the Governor of the Pueblo or his designee;
    E. ``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 Tribal Council in accordance with this Liquor Ordinance;
    F. ``Liquor'' 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 
percent alcohol, but excluding medicinal bitters. ``Liquor'' includes 
``beer'' and any other alcoholic beverage created by the fermentation 
of any infusion or decoction of barley, malt, and hops, or other 
cereals in water, and includes porter, beer, ale, and ``wine,'' which 
means alcoholic beverages obtained by the fermentation of natural sugar 
contained in fruit or other agricultural products, with or without the 
addition of sugar or other products that do not contain less than one-
half percent (0.5%) nor more than twenty-one percent (21%) alcohol by 
volume;
    G. ``Liquor License'' means a revocable license granted by the 
Tribal Council authorizing the Liquor Licensee named therein to Sell 
Liquor at a specified Licensed Liquor Establishment on the Reservation;
    H. ``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 Tribal Council; 
provided that a ``Liquor Licensee'' may be any eligible Person or the 
Pueblo, including any department, agency, or Enterprise thereof;
    I. ``Minor'' means any individual under the age of twenty-one (21) 
years of age;
    J. ``Package Sale'' means those Sales of Liquor in containers 
filled or packed by a manufacturer or wine bottler Sold by a Liquor 
Licensee in an unbroken package for consumption off the Licensed Liquor 
Establishment premises and not for resale;
    K. ``Person'' means an individual, trust, firm, association, 
partnership, political subdivision, tribal or other government agency, 
municipality, industry, public or private corporation, or any other 
entity whatsoever;
    L. ``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; public conveyances of all kinds and 
character; and all other places of like or similar nature to which the 
general public has been invited, and that generally are used by the 
public;
    M. ``Pueblo'' means the Pueblo of San Felipe;
    N. ``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 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;
    O. ``Sale'' or ``Sell'' means the exchange, barter, traffic, 
donation, with or without consideration, in addition to

[[Page 47216]]

the selling, supplying, serving for consumption, dispensing, 
delivering, or distributing, by any means whatsoever, of Liquor by any 
Person or the Pueblo, including any tribal department, agency, or 
Enterprise, to any Person or the Pueblo, including any tribal 
department, agency, or Enterprise thereof;
    P. ``Tax Commission'' means the Tax Commission of the Pueblo of San 
Felipe or such other tribal commission, official, council, or agency 
designated by the Tribal Council to carry out the duties of the Tax 
Commission hereunder;
    Q. ``Tribal Council'' means the Pueblo of San Felipe Tribal 
Council;
    R. ``Tribal Courts'' means any or all of the courts established by 
the Pueblo to enforce Pueblo law;
    S. ``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;
    T. ``Wholesaler License'' means a revocable license granted by the 
Tribal Council authorizing the Wholesaler named therein to do business 
on the Reservation with a Liquor Licensee; and
    U. ``Wholesaler Licensee'' means the holder of a valid Wholesaler 
License.

IV. POWERS OF THE TRIBAL COUNCIL.

    In furtherance of this Liquor Ordinance, the Tribal Council shall 
have the following powers and duties:
    A. To publish and enforce such rules and regulations governing the 
Sale and consumption of Liquor at Licensed Liquor Establishments and in 
Public Places on the Reservation as the Tribal Council deems necessary 
and appropriate;
    B. To employ accountants, personnel, inspectors, and such other 
Persons as shall be reasonably necessary to allow the Tribal Council 
and Commission to perform their functions under this Liquor Ordinance;
    C. To authorize, license, restrict, and prohibit, if necessary, the 
Sale of Liquor on the Reservation, including but not limited to Sales 
by all Persons, as well as by any tribal department, agency, or 
Enterprise of the Pueblo;
    D. To establish a Commission with such delegated powers and 
responsibilities as are set forth in this Ordinance; E. To bring suit 
in the San Felipe Tribal Court to enforce this Liquor Ordinance;
    F. To determine violations of this Liquor Ordinance; and
    G. To exercise such other powers as may be necessary to implement 
this Liquor Ordinance and accomplish its purposes.

V. LIQUOR CONTROL COMMISSION.

    A. Establishment. There is hereby established the Pueblo of San 
Felipe Liquor Control Commission.
    B. Composition; Qualifications.
    1. The Commission shall consist of three (3) members appointed by 
the Tribal Council.
    2. All Commissioners shall be members of the Pueblo.
    3. No more than one Commissioner may be a member of the San Felipe 
Tribal Council. No Commissioner who is a member of the Tribal Council 
may vote in the Tribal Council on any licensing or other decision 
recommended to the Tribal Council by the Commission.
    4. No person shall be eligible or qualified to serve, or continue 
to serve, as a Commissioner who:
    a. Has been convicted of a felony; or
    b. Is an employee of or has any financial interest in any Licensee 
or applicant for a Liquor License.
    C. Powers and Duties of the Commission. The Commission shall have 
the following powers and duties:
    1. To receive and investigate all applications for licenses under 
this Ordinance;
    2. To inspect the premises and have access to all books and records 
of Licensees to monitor and assure compliance with this Ordinance;
    3. To investigate all reported or suspected violations of this 
Ordinance;
    4. To enforce this Ordinance and to recommend to the Tribal Council 
decisions and other actions on license applications, suspension or 
revocation of licenses, assessment of civil penalties, filing of 
judicial proceedings, and any and all other actions the Tribal Council 
may take under this Ordinance;
    5. To hold such hearings, sit and act at such times and places, 
take testimony, and receive such evidence as the Commission deems 
relevant in fulfilling its duties;
    6. To keep minutes, records, and books in which shall be kept a 
true, faithful, and correct record of all proceedings of the 
Commission;
    7. To recommend to the Tribal Council such regulations and fee 
schedules as the Commission believes are necessary and appropriate to 
implement and enforce this Ordinance;
    D. Terms; Compensation; Meetings.
    1. Each Commissioner shall serve for a three (3) year term.
    2. Upon adoption of this Ordinance, one Commissioner shall be 
appointed for a one-year term, one Commissioner shall be appointed for 
a two-year term, and one Commissioner shall be appointed for a three-
year term. Thereafter, all Commissioners shall be appointed for full 
three-year terms. A Commissioner whose term has expired shall serve 
until his or her replacement is appointed.
    3. Service as a Commissioner shall not be a full-time position. 
Commissioners shall meet on a monthly basis or more frequently from 
time to time as may be needed.
    4. Commissioners shall be paid a stipend in such amount and at such 
frequency as shall be determined by the Tribal Council.
    E. Termination of Commissioners. A Commissioner may be terminated 
by the Tribal Council only for cause and only in accordance with the 
following procedures:
    1. Termination of a Commissioner shall be initiated by the Governor 
with written notice to the Commissioner and the Tribal Council, 
specifying the cause for termination.
    2. The cause for termination shall be limited to:
    a. conviction in any court of a felony, of a liquor- or drug-
related crime within the last three (3) years, or of a crime involving 
dishonesty;
    b. failure to meet or maintain the qualifications for Commissioners 
set forth herein;
    c. gross neglect of duty; or
    d. malfeasance in office, or conduct which amounts to gross and 
intentional disregard of the laws and procedures applicable to the 
affairs of the Commission.

VI. AUTHORIZED LIQUOR SALES AND PRACTICES.

    A. Generally.
    1. It shall be unlawful to possess Liquor anywhere on the 
Reservation, including within private homes, except as authorized by 
this Liquor Ordinance.
    2. Except as otherwise provided herein, Liquor Licensees may Sell 
Liquor on the Reservation at Licensed Liquor Establishments during all 
hours allowed for Liquor Sales by Pueblo and State of New Mexico law; 
provided that the Tribal Council may impose more stringent hours of 
operation upon a Licensed Liquor Establishment on a case-by-case basis.
    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 of New Mexico election day to the 
same extent authorized by the State of New Mexico.
    C. Sales Only by Certified Servers. All Liquor Sales on the 
Reservation authorized by this Liquor Ordinance shall be made only by 
Certified Servers. Upon the request of the Governor, the

[[Page 47217]]

Tribal Council, or the Commission, a Liquor Licensee shall submit proof 
that all its employees Selling Liquor on the Reservation are Certified 
Servers.
    D. Liquor Sales at Gaming Facility. Any Sale of Liquor at a gaming 
facility shall comply with all applicable provisions of any Tribal-
State Class III gaming compact between the Pueblo of San Felipe and the 
State of New Mexico, as it now exists or hereafter may be amended.
    E. Wholesale Liquor Transactions. A Liquor Licensee shall purchase 
Liquor for resale at a Licensed Liquor Establishment on the Reservation 
only from a Wholesaler possessing a valid Wholesaler License issued by 
the Tribal Council. A Wholesaler Licensee shall Sell Liquor for resale 
at a Licensed Liquor Establishment on the Reservation only to holders 
of valid Liquor Licenses issued by the Tribal Council; provided that 
such Sales are otherwise in conformity with this Liquor Ordinance and 
applicable laws of the State of New Mexico.

VII. PROHIBITED LIQUOR SALES AND PRACTICES.

    A. Resale. No Liquor Licensee shall Sell Liquor on the Reservation 
for resale; all such Sales shall be for the personal use of the 
purchaser.
    B. Bringing Liquor Onto Licensed Liquor Establishment Premises. No 
Person shall bring any Liquor for personal consumption onto any 
Licensed Liquor Establishment premises 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. 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 purchaser presented to the Seller of the 
Liquor an apparently valid identification document showing the 
purchaser's age to be twenty-one (21) years or older.
    D. No Sales to Intoxicated Persons. No Person shall Sell Liquor on 
the Reservation to a Person believed to be intoxicated.
    E. Sales Must Be Made by Adults. No Person 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, 
who is less than twenty-one (21) years of age.
    F. Payment at Time of Sale. A Licensed Liquor Establishment shall 
not make any Sale of any Liquor without receiving payment therefor 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 leaves 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 or tribal-state class III gaming compact between the 
Pueblo of San Felipe and the State of New Mexico, as it now exists or 
hereafter may be amended.
    G. Open Containers Prohibited. No Person shall have an open 
container of any Liquor in a Public Place, other than on the premises 
of a Licensed Liquor Establishment, or in any automobile, whether 
moving or standing still. This Section shall not apply to empty 
containers such as aluminum cans or glass bottles collected for 
recycling.
    H. Other Prohibitions on Hours and Days of Sale. 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.

VIII. LICENSING.

    A. Liquor Licenses for Licensed Liquor Establishments.
    1. General Eligibility; Applications.
    a. The Pueblo is hereby 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, provided that any Enterprise of the Pueblo must 
apply for a Liquor License in the same manner and the same extent as 
any other applicant for a Liquor License. If the applicant is an 
Enterprise of the Pueblo, the Enterprise shall be the named Liquor 
Licensee.
    b. Any other Person that wants to Sell Liquor on the Reservation 
must demonstrate eligibility and apply to become a Liquor Licensee on 
the application forms, accompanied by the fee, and in the manner 
prescribed by the Tribal Council. No Person currently employed by the 
Pueblo or an Enterprise of the Pueblo is eligible to be a Liquor 
Licensee. Any individual applying for a Liquor License shall 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 of a 
felony at any time. If such Person is a corporation, partnership, or 
other business entity, the manager of the proposed Licensed Liquor 
Establishment shall 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 of a felony at any time. The Tribal Council 
may require that an applicant for a Liquor License 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 by a Pueblo, state, or federal law enforcement officer. 
In such a case, the Tribal Council may issue a temporary Liquor License 
pending the results of the background clearance, subject to revocation 
at any time.
    2. Licensed Liquor Establishments.
    a. In its application for a Liquor License, the applicant shall 
request that the Tribal Council designate and license a specific 
location on the Reservation where the Liquor Licensee is authorized to 
Sell Liquor. The applicant shall, at a minimum, submit a map showing 
the location of the proposed site 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.
    b. No Licensed Liquor Establishment shall be located closer than 
three hundred (300) feet from any church, kiva, plaza, or school.
    c. The Tribal Council, in its 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 Article X of this Liquor Ordinance.
    3. Evaluation of and Decision on Applications.

[[Page 47218]]

    a. All applications, together with the applicable fee, shall be 
submitted to the Commission, which shall gather and review all 
necessary information. Based on its review, the Commission shall 
forward the information to the Tribal Council with a recommended 
decision.
    b. After considering the information submitted on the application 
for a Liquor License and the recommendation of the Commission, the 
Tribal Council 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.
    c. The Tribal Council shall deny the application if it finds that 
granting a Liquor License would be contrary to the best interests of 
the Pueblo and the regulatory goals of this Liquor Ordinance.
    d. In making their recommended and final determinations, the 
Commission and the Tribal Council shall consider 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.
    e. The Tribal Council shall send the applicant a final written 
decision explaining the grounds for its decision either granting or 
denying the application for a Liquor License.
    4. Liquor License Term; Renewal.
    a. Except as otherwise determined by the Tribal Council, the term 
of a Liquor License shall be three (3) years.
    b. Notwithstanding the three-year term, every Liquor Licensee shall 
pay an annual licensing fee to be determined by the Commission subject 
to the approval of the Tribal Council.
    c. An application for a renewal of a Liquor License may be made not 
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 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.
    5. Liabilities of Liquor Licensee. Except as otherwise provided 
herein, each Liquor Licensee shall be accountable for all violations of 
the Liquor License and this Liquor Ordinance and for all taxes, fees, 
and penalties that may be charged against the Liquor License or 
Licensed Liquor Establishment.
    B. Classes of Liquor Licenses. The Tribal Council 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.
    C. 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 Tribal Council. Applications for the 
transfer, assignment, or lease of a Liquor License shall be submitted 
to the Commission, which shall conduct any applicable investigation and 
make its recommendation to the Tribal Council. Liquor Licenses issued 
hereunder shall not be deemed a property right or vested right of any 
kind, nor shall the granting of any Liquor License give rise to a 
presumption or legal entitlement to a renewal thereof.
    D. Special Events Liquor Permits. Upon request, the Tribal Council 
may in its discretion issue Special Events Liquor Permits authorizing 
specific Sales of Liquor for specific time periods not to exceed one 
(1) week, on such terms as may be recommended by the Commission and 
established by the Tribal Council; 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 misdemeanor within 
the last five (5) years or of a felony at any time. Applications for a 
Special Events Permit shall be submitted to the Commission, which shall 
conduct any applicable investigation and make its recommendation to the 
Tribal Council.
    E. Wholesaler-Wholesaler License Required. No Wholesaler shall 
Sell, offer for Sale, or ship Liquor to a Liquor Licensee for resale at 
a Licensed Liquor Establishment on the Reservation except with a 
Wholesaler License. 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. Applications for a Wholesaler License 
shall be submitted to the Commission, which shall conduct any 
applicable investigation and make its recommendation to the Tribal 
Council.
    F. Suspension and Revocation of Liquor License or Wholesaler 
License. The Tribal Council, upon the recommendation of the Commission, 
may suspend or revoke any Liquor License or Wholesaler License issued 
under this Section on the following grounds:
    1. Violation of any provision of this Liquor Ordinance or any 
regulations promulgated hereunder or of the Liquor laws of the State of 
New Mexico;
    2. Violation of any Pueblo law;
    3. 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;
    4. Making a material misstatement on the application for a Liquor 
License or Wholesaler License;
    5. Being convicted, while holding a Liquor License or Wholesaler 
License, of a misdemeanor involving a violation of a Liquor law or a 
felony;
    6. Allowing the repeated or continuing occurrence of conduct that 
constitutes a nuisance or dangerous behavior within the Licensed Liquor 
Establishment or on its premises;
    7. Within the Licensed Liquor Establishment or on its premises, 
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; and
    8. Any other good cause shown.
    G. Notice of Intent to Revoke or Suspend a Liquor License or 
Wholesaler License or to Impose Special Restrictions. The Commission 
shall provide written notice of 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 given by 
certified mail, return receipt requested, to the last known address of 
the Liquor Licensee or Wholesaler Licensee in the Pueblo's records. 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 seven (7) days from the day the notice is 
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. During

[[Page 47219]]

this time, 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. The Commission shall make its recommendation to the Tribal 
Council, together with its written findings in support of its 
recommendation, within three (3) business days after any hearing. The 
final decision of the Tribal Council suspending, revoking, or imposing 
special restrictions is appealable to the Tribal Court as provided in 
this Liquor Ordinance.
    H. 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 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. Such temporary suspension or revocation is 
appealable to the Tribal Court as provided in this Liquor Ordinance.

IX. CERTIFIED SERVERS.

    A. Application Requirements. Every employee of a Liquor Licensee, 
twenty-one (21) years of age or older, who Sells Liquor at a Licensed 
Liquor Establishment on the Reservation must be a Certified Server. An 
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 and its courts 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 the Liquor server education training program 
approved by the Tribal Council or a signed statement that the applicant 
agrees to take such program within thirty (30) days of his or her first 
day of employment and will not Sell Liquor at the Licensed Liquor 
Establishment on the Reservation until then.
    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. Upon recommendation of the Commission, the Tribal 
Council 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 misdemeanor involving a violation of a Liquor law or a 
felony, or for other good cause shown. Such revocation is appealable to 
the Tribal Court as provided in this Liquor Ordinance.

X. HAPPY HOURS.

    Subject to approval of the Tribal Council, 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 
Tribal Council also may request that each Licensed Liquor Establishment 
conducting Happy Hours establish written policies on Happy Hours for 
approval or disapproval by the Commission.

XI. APPEALS TO TRIBAL COURT.

    A. Appealable Actions. Any Person that is denied a Liquor License 
or a Wholesaler License, or whose Liquor License or Wholesaler License 
is suspended, revoked, limited by special restrictions, 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 may appeal the adverse action to the Tribal Court. Any 
Liquor Licensee wishing to challenge the assessed amount of the Liquor 
Excise Tax and/or interest may appeal the assessment to the Tribal 
Court. Except as otherwise provided, 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. If no appeal to the Tribal Court 
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 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.

XII. LIQUOR EXCISE TAX.

    A. Tax Imposed. For the privilege of Selling Liquor within the 
Reservation, there is hereby levied an excise tax known as the ``Liquor 
Excise Tax'' upon each Sale of Liquor in whatever package or container. 
The incidence of the Liquor Excise Tax shall be upon all Liquor 
Licensees Selling Liquor at Licensed Liquor Establishments on the 
Reservation; provided that reimbursement for the Liquor Excise Tax 
imposed hereunder may be collected by the Liquor Licensee from the 
purchaser on all Sales of Liquor by adding the Liquor Excise Tax to the 
sales price of the Liquor Sold.
    B. Rate of Liquor Excise Tax. The initial rate of the Liquor Excise 
Tax shall be five percent (5%) of the Selling price of the Liquor; 
provided that the Tribal Council may hereafter set the rate of the 
Liquor Excise Tax by regulations.
    C. Resale Exemption. A Wholesaler possessing a valid Wholesaler 
License shall be exempt from imposition of the Liquor Excise Tax on all 
transactions involving Sales of Liquor to Liquor Licensees on the 
Reservation for resale at Licensed Liquor Establishments on the 
Reservation.
    D. Monthly Report and Remittance. All Liquor Excise Taxes levied 
are due and payable by Liquor Licensees on or before the twenty-fifth 
(25th) day of the calendar month immediately following the month in 
which the Liquor Excise Taxes accrue. Every Liquor Licensee subject to 
the Liquor Excise Tax shall complete and file with the Tribal 
Comptroller and the Tax Commission a return for the preceding tax 
period on a form prescribed and furnished by the Tribal Comptroller or 
Tax Commission, setting forth such information as required. The return 
shall be accompanied by a remittance of the amount of the Liquor Excise 
Tax due. The return shall be signed by the Liquor Licensee, as the 
taxpayer, or an authorized agent of the Liquor Licensee.
    E. Retention of Invoices and Records; Inspection. Every Liquor 
Licensee shall maintain file copies of all the invoices under which the 
Liquor Licensee purchased Liquor for at least five (5) years from the 
end of the year following the Liquor Licensee's purchase date. Every 
Liquor Licensee also shall maintain file copies of all the invoices

[[Page 47220]]

under which the Liquor Licensee Sold Liquor for at least five (5) years 
from the end of the year following the end of the year in which the 
Sale was made. All invoices required to be kept under this Section may 
be inspected by the Tax Commission and the Commission, along with any 
stock of Liquor in the possession of the Liquor Licensee, and the Tax 
Commission or the Commission may contact any Wholesaler to verify 
quantities of Liquor sold and delivered to any Liquor Licensee.
    F. Use of Tax Revenues. The Pueblo shall use revenues from the 
Liquor Excise Tax for the benefit of the Reservation and Pueblo 
community. In appropriating these tax revenues, the Tribal Council 
shall give priority to:
    1. Strengthening the Pueblo's government, including but not limited 
to improving its justice system to enforce this Liquor Ordinance;
    2. Improving the Pueblo's health, education, and other social 
services programs;
    3. Developing and enhancing alcohol and drug abuse prevention 
activities and community services that relate specifically to the needs 
of the Pueblo, its members, and the entire Reservation populace; and
    4. Funding the stipends to be paid to the Commissioners.
    G. Imposition of Interest on Taxes. All Liquor Excise Taxes, fees, 
or other charges not paid when due shall bear interest from the date 
such Liquor Excise Taxes, fees, or charges become due until the date 
paid. Interest shall be imposed on any unpaid amount from the date the 
payment was due, without regard to any extension of time or stay of 
payment, to the date payment is received. The annual rates of interest 
shall be as follows until otherwise established in regulations:
    1. Interest due to the Pueblo shall be computed at the rate of one 
and one-half percent (1.5%) per month, or any fraction of the month, 
from the last day of the month following the period for which the 
amount or any portion of it should have been returned until the date of 
payment.
    2. Notwithstanding the above, if demand is made for the payment of 
any Liquor Excise Tax, and if such amount is paid within ten (10) days 
after the date of such demand, no interest on the Liquor Excise Tax so 
paid shall be imposed for the period after the date of demand.
    H. Other Costs and Penalties. The Tax Commission may charge 
administrative costs and expenses incurred by it in collecting the 
Liquor Excise Tax from Liquor Licensees that fail to pay the tax when 
due.
    I. Appeals. Any Person upon whom tax and/or interest has been 
assessed under this Article may appeal the accuracy and amount of the 
assessment to the Tribal Court. All such appeals shall be filed with 
the Tribal Court within three (3) months of the assessment. Tax 
assessments being appealed shall be paid under protest pending the 
appeal and shall be deposited into an interest-bearing account pending 
such appeal.

XIII. ENFORCEMENT.

    A. Civil Liability. Subject to the approval of the Tribal Council, 
the Commission may bring a civil action in the Tribal Court in the name 
of the Pueblo against any Person engaged in an activity or activities 
prohibited herein and may recover a civil fine not exceeding five 
thousand dollars ($5,000.00) per violation, attorneys' fees, injunctive 
relief, and/or any other relief that is just and equitable under the 
circumstances from the Tribal Court, including but not limited to 
orders for the offending Person:
    1. to perform up to one hundred and twenty (120) hours of community 
service on the Reservation;
    2. to make restitution for the cost of any damages; and/or
    3. to return to the Pueblo any monetary benefit derived from 
engaging in the activities prohibited by this Liquor Ordinance.
    B. Order of Exclusion.
    1. For good and sufficient cause found, the Tribal Court may refer 
to the Tribal Council for exclusion proceedings under traditional 
Pueblo law any Indian Person who engages in an activity or activities 
prohibited by this Liquor Ordinance.
    2. For good and sufficient cause found, the Tribal Court may 
include within an injunctive order under Subsection A an order barring 
a Person from entering or remaining on the Reservation.
    C. Limitations.
    1. 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. Sec.  1301 et seq., or other applicable 
Federal law.
    2. Nothing in this Liquor Ordinance shall be construed to authorize 
the criminal trial or punishment by the Tribal Court of any non-Indian 
except to the extent allowed under Federal law. When any provision of 
this Liquor Ordinance is violated by a 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 
law. It is the intent of the Pueblo that any non-Indian referred to 
State and/or Federal authorities be criminally prosecuted to the full 
extent of applicable State and/or Federal criminal law.
    3. Nothing in this Liquor Ordinance, including but not limited to 
any civil or criminal trial or punishment by the Tribal Court or Tribal 
Council of any Indian or non-Indian authorized hereunder, 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.
    D. Surrender of Liquor. Any Person suspected of having violated any 
provision of this Liquor Ordinance shall, in addition to any other 
civil penalty imposed hereunder, be required to surrender any Liquor in 
such Person's possession to the Commission or to the Pueblo or federal 
law enforcement officer making the arrest or issuing the complaint, as 
applicable.
    E. Inspection of Licensed Liquor Establishment Premises.
    1. 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 Pueblo or 
federal law enforcement officers, including but not limited to 
Commission staff.
    2. Every 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 thereby be deemed to have violated this Liquor 
Ordinance.

XIV. TRANSPORTATION THROUGH RESERVATION.

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

XV. TRIBAL COUNCIL PLAN TO ASSURE PUBLIC SAFETY.

    Before the Tribal Council issues any Liquor License pursuant to 
this Liquor Ordinance, the Commission shall develop and submit to the 
Tribal

[[Page 47221]]

Council for adoption a Plan setting forth procedures for the assurance 
of police, fire, rescue, and other governmental services necessary to 
assure the safety of the public in connection with the Sale and Service 
of Liquor on the Reservation. No Liquor License may be issued until the 
Tribal Council has adopted the Plan required by this Section.

XVI. SOVEREIGN IMMUNITY.

    Nothing in this Liquor Ordinance is intended nor shall be construed 
as a waiver of the sovereign immunity of the Pueblo, provided, however, 
that the Pueblo waives its immunity to the sole and limited extent 
necessary to permit Persons to exercise any appeal to the Tribal Court 
as permitted by this Liquor Ordinance. No employee, officer, or agent 
of the Pueblo shall be authorized, nor shall he or she attempt, to 
waive the immunity of the Pueblo.

XVII. JURISDICTION; CONFLICTS WITH OTHER LAWS.

    A. Jurisdiction. Subject to Article XII(C), any and all actions 
pertaining to alleged violations of this Liquor Ordinance, or appealing 
any action of the Pueblo or any officer, employee, or agent of the 
Pueblo with respect to any matter addressed by or 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 Pueblo and 
Federal 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.

XVIII. SEVERABILITY.

    If any provision of this Liquor Ordinance or the application of any 
provision to any Person or circumstance is held invalid or 
unenforceable by the Tribal Court, 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.

XIX. 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.

XX. AMENDMENT.

    This Liquor Ordinance may be amended by a resolution adopted by a 
majority vote of the Tribal Council. No such amendment shall take 
effect until certified by the Secretary of the Interior and published 
in the Federal Register.

[FR Doc. E8-18770 Filed 8-12-08; 8:45 am]
BILLING CODE 4310-4J-P