Navajo Nation Liquor Regulations, 79158-79163 [E8-30688]
Download as PDF
<![CDATA[
79158
Federal Register / Vol. 73, No. 248 / Wednesday, December 24, 2008 / Notices
OMB Control Number: 1076–0114.
Type of Review: Extension.
Description: These eligibility
application forms are voluntary for
students but are mandatory in
determining a student’s eligibility for
educational services.
Total Number of Respondents: 4,000.
Total Number of Annual Responses:
4,000.
Total Annual Burden Hours: 30
minutes per application × (number of
HINU applications) and 30 minutes per
application × (number of SIPI
applications) = 2000 total burden hours.
Filing fee: $10 per application for
HINU; fee for SIPI included in school
cost but we have estimated a $10 fee per
completed application. We estimate the
total filing fee to be $16,500.00. SIPI has
a number of applications which are
never completed; therefore, their filing
fee is not $3,000, as it would be
otherwise. Dormitory fees may also
apply.
Dated: December 17, 2008
Sanjeev Bhagowalia,
Chief Information Officer—Indian Affairs.
[FR Doc. E8–30615 Filed 12–23–08; 8:45 am]
BILLING CODE 4310–6W–P
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Navajo Nation Liquor Regulations
mstockstill on PROD1PC66 with NOTICES
AGENCY: Bureau of Indian Affairs,
Interior.
ACTION: Notice.
SUMMARY: This notice publishes the
Secretary’s certification of the Navajo
Nation Liquor Regulations. These
Regulations regulate and control the
possession, sale and consumption of
liquor within the Navajo Nation. The
Navajo Nation is located on extensive
reservation lands, and these Regulations
establish a legal framework for licensing
the transportation and sale of alcoholic
beverages within the exterior
boundaries of the Nation. These
regulations will ensure the ability of the
tribal government to control the
distribution and possession of liquor
within the reservation and at the same
time will provide an important source of
revenue. These Regulations provide
solely for civil enforcement (fines)
imposed on parties whose actions are
subject to the licensing provisions set
forth herein. Any violation of these
regulations may also result in
prosecution under other sections of the
Navajo Nation Code, or under relevant
State or Federal law.
VerDate Aug<31>2005
18:45 Dec 23, 2008
Jkt 217001
DATES: Effective Date: These Regulations
are effective as of December 24, 2008.
FOR FURTHER INFORMATION CONTACT:
Irene Herder, Tribal Operations
Specialist, Navajo Regional Office, P.O.
Box 1060, Gallup, New Mexico 87305;
Telephone (505) 863–8207; Fax (505)
863–8292; 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.
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 Navajo Nation is governed by the
Navajo Nation Council, which has
developed a comprehensive legal code
(the Navajo Nation Code, N.N.C.). Title
17, subchapter 12, of the N.N.C. bars the
transportation, sale, and consumption of
alcoholic beverages on the Navajo
Reservation. Section 412 of Title 17 sets
out exceptions to the prohibitions in the
title.
In 2001, the Council amended 17
N.N.C. section 412 to permit use of
alcohol at the Antelope Point
Development Area of the Navajo Nation,
and the Glen Canyon National
Recreation Area. (Resolution CYJ–62–
01). In 2008, the Council again amended
17 N.N.C. section 412, to authorize
transportation, sale, delivery and
consumption on the Navajo Reservation
at authorized casinos. (Resolution CJA–
03–08, passed by the Council January
31, 2008, and signed into law by the
President of the Navajo Nation on
February 11, 2008). By the same
resolution, the Council delegated the
authority to promulgate liquor
regulations to the Navajo Tax
Commission.
The following Liquor Regulations
were adopted and approved by the
Navajo Nation Tax Commission by
Resolution TAX–08–208.
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 these Liquor Regulations of
the Navajo Nation were promulgated by
the Navajo Tax Commission pursuant to
the authority vested in the Commission
by the Navajo Nation Council by
Resolution CJA–03–08.
SUPPLEMENTARY INFORMATION:
PO 00000
Frm 00120
Fmt 4703
Sfmt 4703
Dated: December 19, 2008.
George T. Skibine
Acting Deputy Assistant Secretary for Policy
and Economic Development.
The Navajo Nation’s Liquor
Regulations read as follows:
Navajo Nation Liquor Regulations
1.101. Title. These Liquor Regulations
shall be known as the Navajo Nation
Liquor Regulations (‘‘Liquor
Regulations’’).
1.102. Purpose. The purpose of these
Liquor Regulations is to ensure the
proper transportation, sale, delivery,
and consumption of alcoholic beverages
within the exterior boundaries of the
Navajo Nation and to ensure the health,
safety, and welfare of the Navajo people.
1.103. Authority. The Commission
enacts these Liquor Regulations
pursuant to the authority delegated to
the Commission by the Navajo Nation
Council in 17 N.N.C. § 412.
1.104. Definitions. Except as
otherwise provided herein, the
following definitions apply throughout
these Liquor Regulations:
A. ‘‘Antelope Point’’ means the area
covered by the Antelope Point Resort
and Marina Business Site Lease;
B. ‘‘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;
C. ‘‘Certified Server’’ means any
employee of a Retailer Licensee who is
certified to Sell Liquor on the Navajo
Nation on behalf of the Retailer Licensee
in accordance with these Liquor
Regulations, and who has successfully
completed a liquor server training
program approved by the Office;
D. ‘‘Commission’’ means the Navajo
Tax Commission, delegated by the
Navajo Nation Council to ensure the
proper transportation, sale, delivery,
and consumption of alcoholic
beverages; or any such commission so
delegated by the Navajo Nation;
E. ‘‘Enterprise’’ means a Navajo
Nation Enterprise or entity that is
engaged in, or wishes to engage in, the
business of Selling Liquor within the
Navajo Nation;
F. ‘‘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 potable. ‘‘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
E:\FR\FM\24DEN1.SGM
24DEN1
mstockstill on PROD1PC66 with NOTICES
Federal Register / Vol. 73, No. 248 / Wednesday, December 24, 2008 / Notices
blended or fermented beverages,
dilutions, or mixtures of one or more of
the foregoing containing more than onehalf 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 one half of one percent
(.05%) of alcohol by volume, but not
more than twenty-one percent (21%)
shall be considered liquor;
G. ‘‘Malt Liquor’’ means an alcoholic
drink made from malt, typically having
a higher alcohol content than most Beer
or ale;
H. ‘‘Minor’’ means any individual
under the age of 21;
I. ‘‘Navajo casino facility’’ means a
gaming facility operated by the Navajo
Nation, pursuant to the Indian Gaming
Regulatory Act of 1988 (Pub. L. 100–
497, 25 U.S.C. 2701–2721 and U.S.C.
1166–1168), Navajo Gaming Ordinance,
(5 N.N.C. §§ 2001–2057) and any gaming
compact entered into between the
Navajo Nation and a State;
J. ‘‘Navajo Nation’’ means:
1. When referring to the body politic,
the same meaning as set forth in 1
N.N.C. § 551 et seq.
2. When referring to governmental
territory, the same meaning as set forth
in 7 N.N.C. § 254;
K. ‘‘Navajo Nation Court’’ means any
or all of the courts established by the
Navajo Nation;
L. ‘‘Office’’ means the Office of the
Navajo Tax Commission, charged by the
Commission with the day-to-day
administration of these Liquor
Regulations; or any such administrative
office so charged by the Commission;
M. ‘‘Package Sale’’ means any Sale of
Liquor in containers filled or packed by
a manufacturer or wine bottler and Sold
in an unbroken package for
consumption off the premises
designated in the Retailer License 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 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;
P. ‘‘Retailer License’’ means a
revocable license granted by the Office
authorizing the Licensee named therein
and its Certified Servers to Sell Liquor
at a specified location within the Navajo
Nation;
VerDate Aug<31>2005
18:45 Dec 23, 2008
Jkt 217001
Q. ‘‘Retailer Licensee’’ means the
holder of a valid Retailer License
allowing the Sale of Liquor in a
designated location, as authorized and
granted by the Office;
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
within the Navajo Nation 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. ‘‘Wholesaler’’ means a person
whose place of business is located off
the Navajo Nation and who Sells, or
possesses for the purpose of Sale, any
Liquor for resale by a Retailer Licensee;
U. ‘‘Wholesaler License’’ means a
revocable license granted by the Office
authorizing the Wholesaler named
therein to do business within the Navajo
Nation with a Retailer Licensee;
V. ‘‘Wholesaler Licensee’’ means the
holder of a valid Wholesaler License;
and
W. ‘‘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.
1.105. Powers of Enforcement.
A. The Commission is empowered by
the Navajo Nation Council to regulate
the subject matter of these Liquor
Regulations, pursuant to 17 N.N.C.
§ 412. The Commission shall have the
following powers and duties:
1. To approve, establish, and publish
such rules and regulations as are
necessary and appropriate to ensure the
proper transportation, sale, delivery and
consumption of alcoholic beverages
within the Navajo Nation in accordance
with 17 N.N.C. § 412;
2. To exercise such other delegated
powers as are necessary and appropriate
to fulfill the purposes of these Liquor
Regulations.
B. The Office is delegated the
authority to enforce these Liquor
Regulations and shall have the
following powers and duties:
1. To adopt policies and procedures
as necessary to implement these Liquor
Regulations, subject to approval by the
Commission;
2. To authorize the Sale of Liquor
within the Navajo Nation in accordance
with 17 N.N.C. § 412;
3. To bring any necessary action to
enforce these Liquor Regulations;
PO 00000
Frm 00121
Fmt 4703
Sfmt 4703
79159
4. To determine penalties and seek
damages for violations of these Liquor
Regulations;
5. To collect fees levied or set in
relation to these Liquor Regulations and
keep accurate records, books, and
accounts; and
6. To employ managers, accountants,
security personnel, inspectors, and
other such persons as may be reasonably
necessary to administer these Liquor
Regulations.
1.106. Limitations.
A. Notwithstanding any other
provision of these Liquor Regulations,
no penalty may be imposed pursuant or
related to these Liquor Regulations 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.
B. Any regulatory action taken by the
Office pursuant to these Regulations
will be civil in nature and will therefore
apply to both Indians and non-Indians.
C. Any alleged activity which would
be deemed a criminal act under tribal,
state, or federal law involving the
transportation, sale, delivery, or
consumption of liquor within the
Navajo Nation will be referred to the
appropriate tribal, state, and/or federal
authorities.
D. Nothing in these Liquor
Regulations, including but not limited
to any penalty imposed by the Office,
shall be construed to bar a similar trial
or punishment to the full extent of any
applicable tribal, state, and/or federal
civil or criminal law.
1.107. Inspection Rights.
A. All premises upon which Liquor is
sold, stored, or distributed shall be open
to inspection by duly authorized tribal
officials or their designees for the
purposes of ascertaining compliance
with these Liquor Regulations and
applicable law.
B. Any Person who prevents or
hinders, or attempts to prevent or
hinder, such inspection shall be in
violation of these Liquor Regulations.
1.108. Authorized Liquor Sales and
Practices.
A. Generally. Except as otherwise
provided herein, Retailer Licensees may
Sell Liquor on the Navajo Nation at such
places and hours permitted by their
Retailer License and allowed by
applicable Navajo Nation law.
B. Sales on Sundays and Election
Days. Except as otherwise limited by the
Navajo Nation Council, the Sale of
Liquor shall be allowed on Sunday and
on any Navajo Nation, federal, or State
election day.
C. Sales Only by Certified Servers. All
Liquor Sales within the Navajo Nation
E:\FR\FM\24DEN1.SGM
24DEN1
mstockstill on PROD1PC66 with NOTICES
79160
Federal Register / Vol. 73, No. 248 / Wednesday, December 24, 2008 / Notices
authorized by these Liquor Regulations
must be made only by Certified Servers.
D. Liquor Sales at the Navajo Casino
Facility. Any Sale of Liquor at a Navajo
casino facility must comply with all
applicable provisions of any Navajo
Nation-State class II gaming compact
between the Navajo Nation and any
State, as it now exists or hereafter may
be amended.
E. Liquor Sales at Antelope Point.
Any Sale of Liquor at Antelope Point
must comply with all applicable laws
and regulations.
F. Wholesale Liquor Transactions. A
Retailer Licensee may purchase Liquor
for resale at a designated location only
from a Wholesaler possessing a valid
Wholesaler License issued by the Office.
A Wholesaler Licensee may Sell Liquor
for resale at a designated location only
to holders of valid Retailer Licenses
issued by the Office, provided that such
Sales are otherwise in conformity with
these Liquor Regulations and applicable
laws of the State.
1.109. Prohibited Liquor Sales and
Practices.
A. No Package Sales; Resale. No
Retailer Licensee shall Sell Liquor on
the Navajo Nation for resale; all such
Sales must be for the personal use and
consumption of the purchaser. Any
Person who is not licensed pursuant to
these Liquor Regulations who purchases
Liquor within the Navajo Nation and resells it, whether in the original
container or not, shall be in violation of
these Liquor Regulations and shall be
subject to penalties pursuant to these
Liquor Regulations.
B. Bringing Liquor onto premises. No
Licensee shall allow any Person to bring
any Liquor for personal consumption
into the premises designated in the
Retailer License.
C. Other Prohibitions on Hours and
Days of Sales. The Navajo Nation
Council may establish other days on
which, or times at which, Sales or
consumption of Liquor is not permitted
within the Navajo Nation. The Office
will provide notice of any such
enactment to all Wholesaler Licensees
and Retailer Licensees doing business
within the Navajo Nation.
D. No Sales to Minors. No Licensee,
Certified Server, or Person shall Sell
Liquor on the Navajo Nation to a Minor;
provided, however, that 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 21 years or older.
E. No Sales to Intoxicated Persons. No
Licensee, Certified Server, or Person
shall Sell Liquor on the Navajo Nation
VerDate Aug<31>2005
18:45 Dec 23, 2008
Jkt 217001
to a Person believed by a Certified
Server to be intoxicated.
F. All Sales Cash. A Retailer Licensee
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
Retailer Licensee from receiving a
delivery of Liquor from a Wholesaler
Licensee if arrangements have been
made to pay for such delivery at a
different time; and provided further that
nothing herein shall preclude the
Retailer Licensee 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 Retailer Licensee from
distributing Liquor to customers
without charge, so long as such
distribution is not otherwise in violation
any provision of these Liquor
Regulations.
G. 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
designated in a Retailer License.
H. All Designated Premises Posted. A
Retailer Licensee shall not make any
Sale of Liquor unless signs are
prominently posted in all premises
designated in the Retail License
informing the customers that removing
Liquor from the premises is a violation
of federal law prohibiting the possession
of alcohol on Indian reservations. In the
case of outdoor sales, such signage shall
be prominently displayed no more than
ten (10) feet from the point of sale.
1.110. Reserved.
1.111. Reserved.
1.112. Licensing.
A. Any Person wishing to Sell Liquor
as a Wholesaler shall obtain and retain
a Wholesaler License for such purpose.
B. Any person wishing to Sell Liquor
as a Retailer shall obtain one of the
following types of License:
1. Retailer License—Restaurant.
2. Retailer License—Hotel/Motel.
3. Retailer License—Special Events.
4. Retailer License—Other. The Office
shall have the authority to issue policies
and procedures regarding the issuance
of other types of licenses, subject to the
Commission’s approval of such policies
and procedures.
C. The pre-conditions to the issuance
of a License include but are not limited
to the following:
1. Compliance with Business and
Procurement Act—Before any License is
issued to an applicant or renewed, the
PO 00000
Frm 00122
Fmt 4703
Sfmt 4703
Office shall make a determination that
such applicant is not ineligible under
the provisions of 12 N.N.C. § 1505(C) of
the Navajo Business and Procurement
Act. If such applicant is determined to
be ineligible, the license application
shall be denied.
2. An applicant who has had a
License revoked is ineligible to apply
for a License within one year of the date
of the revocation.
3. An applicant who has had two or
more License revocations is ineligible to
apply for a License within five years of
the date of the last revocation.
4. An applicant who has been
convicted of a felony or a misdemeanor
involving a crime of moral turpitude is
ineligible for a License.
5. Any applicant who has committed
any of the violations listed in Section
1.119 below is ineligible for a License.
D. Liabilities of Licensee. The
Licensee shall be accountable for all
violations of its License and these
Liquor Regulations, and for all taxes,
fees, and penalties that may be charged
against its License.
E. License is Not a Property Right.
Notwithstanding any other provision of
these Liquor Regulations, a License is a
mere permit for a fixed duration of time.
A License shall not be deemed a
property right or vested right of any
kind, nor shall the granting of a License
give rise to a presumption of legal
entitlement to the granting of such
License for a subsequent time period.
F. Licenses Non-transferable. No
License issued by the Office shall be
assigned or transferred in any manner.
G. Licenses or letter of denial.
1. After considering the information
submitted on the application for a
License, the Office shall grant and issue
a License if it concludes that granting
the License will serve the best interests
of the Navajo Nation.
2. The Office shall deny the
application if it finds that granting a
License would be contrary to the best
interests of the Navajo Nation,
considering such factors as the
applicant’s compliance history with
applicable Navajo Nation and federal
law, whether the applicant is currently
in violation of any Navajo Nation law,
the number and density of locations
selling liquor on the Navajo Nation,
whether the applicant will operate a
new or existing establishment, or any
other reason bearing on the health,
safety, and welfare of the Navajo Nation
community or the economic security of
the Navajo Nation.
3. The Office shall send the applicant
a final written decision within thirty
days after the application is received by
the Office, explaining the grounds for its
E:\FR\FM\24DEN1.SGM
24DEN1
mstockstill on PROD1PC66 with NOTICES
Federal Register / Vol. 73, No. 248 / Wednesday, December 24, 2008 / Notices
decision either granting or denying the
application for a License.
4. Failure of the Office to issue a
License or a letter of denial within thirty
days shall be deemed a denial.
H. Appeal. A letter of denial for a
License shall be considered an adverse
action and may be appealed in
accordance with these Liquor
Regulations.
1.113. Wholesaler License.
A. Term.
1. A separate License must be secured
and maintained for each calendar year
or portion thereof, ending on December
31st.
2. Regardless of when the License is
issued, it expires at midnight December
31st.
B. Fee.
1. Beer/Wine.
a. The fee for the initial term of a
Wholesaler License to Sell Beer and
Wine shall be $500.
b. The fee for subsequent renewals of
the same License shall be $200 per year.
2. Spirits.
a. The fee for the initial term of a
Wholesaler License to Sell Spirits shall
be $700.
b. The fee for subsequent renewals of
the same License shall be $250 per year.
C. Condition. A copy of the License
shall be carried at all times in any
vehicle used to transport liquor
pursuant to this License.
1.114. Retailer License—Restaurant.
A. Term.
1. A separate License shall be secured
and maintained for each calendar year
or portion thereof, ending on December
31st.
2. Regardless of when the License is
issued, it expires at midnight December
31st.
B. Fee.
1. Beer/Wine.
a. The fee for the initial term of a
Retailer License for a restaurant Selling
Beer and Wine shall be $1,000.
b. The fee for subsequent renewals of
the same License shall be $250 per year.
2. Spirits.
a. The fee for the initial term of a
Retailer License for a restaurant selling
Spirits shall be $1,500.
b. The fee for subsequent renewals of
the same License shall be $500 per year.
C. Conditions.
1. The Retailer License shall be for a
specific location. The Licensee may not
transfer the License to any other person,
even if such person takes over operation
of the premises designated in the
Retailer License. Nor may the Licensee
use the license for any location operated
by the Licensee, other than the premises
designated in the Retailer License.
2. The Retailer License shall at all
times be on public display at the
VerDate Aug<31>2005
18:45 Dec 23, 2008
Jkt 217001
location designated in the Retailer
License.
3. The Location where Liquor is sold
shall not be closer than 300 feet to any
existing church or school.
1.115. Retailer License—Hotel/Motel.
A. Term.
1. A separate License shall be secured
and maintained for each calendar year
or portion thereof, ending on December
31st.
2. Regardless of when the License is
issued, it expires at midnight December
31st.
B. Fee.
1. Beer/Wine.
a. The fee for the initial term of a
Retailer License for a Hotel/Motel
Selling Beer and Wine shall be $1,000.
b. The fee for subsequent renewals of
the same License shall be $250 per year.
2. Spirits.
a. The fee for the initial term of a
Retailer License for a Hotel/Motel
selling Spirits shall be $1,500.
b. The fee for subsequent renewals of
the same License shall be $500 per year.
C. Conditions.
1. The Retailer License shall be for a
specific location and may not be
transferred or used for any location
other than that identified on the face of
the License.
2. The Retailer License shall at all
times be on public display at the
location designated in the Retailer
License.
3. The Location where Liquor is sold
shall not be closer than 300 feet to any
existing church or school.
1.116. Retailer License—Special
Event.
A. Term. The term of the License shall
be for the term of the special event.
B. Fee.
1. Beer/Wine. The fee for a Retailer
License for a Special Event Selling
Beer/Wine shall be $300.
2. Spirits. The fee for a Retailer
License for a Special Event Selling
Spirits shall be $500.
C. Conditions.
1. The Retailer License shall be for a
specific location and shall not be
transferred or used for any location
other than that identified on the face of
the License.
2. The Retailer License shall at all
times be on public display at the
location designated in the Retailer
License.
3. The Location where Liquor is sold
shall not be closer than 300 feet to any
existing church or school.
1.117 License Renewal.
A. If a Wholesaler Licensee or a
Retailer Licensee fails to renew a
License before December 31st of any
year, the Licensee is hereby suspended
PO 00000
Frm 00123
Fmt 4703
Sfmt 4703
79161
from Selling Liquor until such Licensee
renews the License or obtains a new
License.
B. So long as the Licensee renews the
License by January 15th, the issuance of
the License shall be treated as a
renewal, and the fee shall be calculated
accordingly; provided, provided,
however, that there shall also be a $50
late fee assessed.
C. If the Licensee fails to renew the
License by 5:00 p.m. on January 15th,
the Licensee must submit a new
application for a License and pay the
initial License application fee.
D. In order to be eligible for renewal
of a License, the Licensee must be in
compliance with all terms and
conditions of such License and these
Liquor Regulations.
1.118. Recordkeeping and Reporting.
The Office shall maintain
recordkeeping and reporting
requirements for Licensees, in
accordance with policies and
procedures, including but not limited
to, periodic reports of the amount of
liquor sold or delivered within the
Navajo Nation during a particular
period.
1.119. Violations.
These Liquor Regulations apply to all
persons licensed to transport or sell
Liquor within the Navajo Nation.
Violations of these Liquor Regulations
include, but are not limited to, the
following:
A. Violating any term or condition of
the License;
B. Selling Liquor within the Navajo
Nation without a License;
C. Buying Liquor within the Navajo
Nation from an unlicensed person;
D. Selling Liquor within the Navajo
Nation to a minor;
E. Selling Liquor within the Navajo
Nation to an intoxicated person;
F. Permitting an uncertified server to
sell or serve Liquor within the Navajo
Nation;
G. Failing to allow inspection of
premises designated in a Retailer
License or vehicles used to deliver
Liquor within the Navajo Nation;
H. Failure to present documents
required by these Regulations upon a
request by the Office;
I. Failing to display License;
J. Being convicted of a felony or a
misdemeanor involving a crime of moral
turpitude;
K. Permitting repeated acts of
violence or disorderly conduct on or
near the premises designated in the
Retailer License;
L. Submitting false or fraudulent
information on a License application;
and
M. Violating any applicable Navajo
Nation or federal law.
E:\FR\FM\24DEN1.SGM
24DEN1
mstockstill on PROD1PC66 with NOTICES
79162
Federal Register / Vol. 73, No. 248 / Wednesday, December 24, 2008 / Notices
1.120. Penalties.
Penalty amounts shall be set for each
violation of these Liquor Regulations in
accordance with policies and
procedures.
1.121. Appeals.
A. A Person may appeal any adverse
action taken pursuant to these
Regulations, including but not limited
to, denial of an application for a
License, issuance of a penalty, denial of
a request for approval of a Certified
Server program, or revocation of a
License.
B. Appeals shall follow the following
process.
1. Appeals shall be made first to the
Office. Upon notice of any adverse
action by the Office, a Person may
request a conference with the Office.
a. To be entitled to a conference, the
Person must make a written request
within the time prescribed by the notice
of the adverse action.
b. The request for a conference must
identify the disputed notice of
assessment or notice of denial of refund
or notice of other adverse action, state
the determination sought, and contain a
short and plain statement of the relevant
facts and law.
c. After receiving a timely request and
within a reasonable period of time, the
Office shall confer with the Person filing
the appeal. The Office and the Person
may agree on a suitable location for the
conference or may agree to hold the
conference by telephone and to
exchange written documentation by
mail. The Office and the Person may
agree to confer more than once.
d. Within sixty days following the
conclusion of the conference, the Office
will issue a written conference decision.
If the Office denies in whole or in part
the relief that the Person requests, then
the decision shall state the basis for the
denial of relief.
2. Within thirty days after the
issuance of the decision of the Office,
the Person may appeal the decision to
the Office of Hearings and Appeals. If
the Person fails to appeal within that
time period, then the decision of the
Office is final and not subject to review
by appeal to a hearing officer or to any
court.
a. A request for a hearing before a
hearing officer must be in writing and
contain a short and plain statement of
the facts and law forming the basis for
the relief sought. The Person appealing
the decision must sign the request for
Hearing.
b. The hearing officer has the
authority to enter pre-hearing orders.
Where necessary, the hearing officer
may confer with the parties before
entering pre-hearing orders. Such orders
VerDate Aug<31>2005
18:45 Dec 23, 2008
Jkt 217001
may, for example, eliminate or narrow
disputes concerning questions of fact or
law, establish identities and subject
matter of testimony of witnesses, require
the identification and disclosure of
documents, or provide for the time,
place, and duration of hearings. Prehearing orders will control the course of
the hearing.
c. At the request of the parties, the
hearing officer shall issue subpoenas for
the attendance of witnesses at hearings
and for production of books, records,
maps, documents, or physical evidence.
Any witness subject to a subpoena may
petition the hearing officer to vacate or
modify the subpoena served on the
witness. The hearing officer shall
promptly notify the party who requested
the subpoena and proceed to rule on the
petition. The hearing officer may
investigate the grounds of the petition
or, upon the petition itself, may deny or
grant the petition, in whole or in part.
The hearing officer’s rulings on
petitions to quash subpoenas are not
subject to interlocutory appeal to any
court.
d. The hearing officer shall preside
over these hearings and shall conduct
them according to the following
provisions.
i. All documents filed by any party at
a hearing shall be served personally or
by first-class mail, postage prepaid, at
the last known address, on all parties,
including the Office, and proof of
service must be filed on record.
ii. Oral evidence shall be taken only
on oath or affirmation.
iii. Each party may call and examine
witnesses, introduce exhibits, crossexamine opposing witnesses, impeach
any witness regardless of which party
first called the witness to testify, and
may rebut any evidence presented. A
party, a party’s employee, or a party’s
agent, may be called by the opposing
party and be examined as if under crossexamination. The hearing officer may
question any witness, may call the
appellant as a witness, or may call as a
witness any person who is present at the
hearing.
iv. Any privileges that apply in civil
actions before Navajo courts shall be
followed.
v. Any relevant evidence, including
affidavits and other forms of hearsay,
shall be admitted if such evidence is of
the sort upon which responsible persons
are accustomed to rely in the conduct of
serious affairs. The hearing officer shall
be liberal in admitting evidence, but
objections to its admission, and
comments or observations of its weight,
are relevant in weighing the evidence.
The hearing officer may deny admission
PO 00000
Frm 00124
Fmt 4703
Sfmt 4703
of evidence that is irrelevant,
untrustworthy, or unduly repetitious.
vi. All evidence will be offered and
made part of the record and the hearing
officer shall not consider any other
factual information, except for matters
officially noticed.
vii. Where after proper notice a
Person or its authorized representative
fails to appear, the hearing officer may
proceed with the hearing, dispose of the
issues raised, and enter a final order.
viii. Reasonable continuances may be
granted for good cause.
ix. Prior to entering an order, the
hearing officer will afford the parties a
reasonable time in which to submit any
post-hearing memoranda, proposed
findings of fact, and proposed
conclusions of law.
e. The hearing conducted under this
part concludes when the hearing officer
enters findings of fact, conclusions of
law, and a final order. The final order
issued by the hearing officer shall be a
matter of public record, and all final
orders issued shall be available for
public inspection.
f. A party may file a petition for
rehearing. Such petition will allege as
grounds for rehearing either a mistake of
law or fact, or the discovery of new
evidence which by due diligence could
not have been discovered by the party
at the time of the hearing. The petition
must set out in some detail the mistake
in law or fact claimed, or summarize the
new evidence that has become available,
specifically mentioning the source of
such evidence and what it would tend
to establish. The hearing officer will
have wide discretion in accepting or
rejecting such petitions.
3. The decision of the hearing officer
entered under this part may be appealed
to the Navajo Supreme Court within 30
days. If not timely appealed, the hearing
officer’s order is binding on the parties
and may not be appealed to any court.
a. The rules of Appellate Procedure of
the Navajo Supreme Court shall govern
the conduct of appeals from orders of
the hearing officer rendered under this
section.
b. Appeal to the Navajo Supreme
Court shall be limited to the record on
appeal.
c. The record on appeal will be based
on the findings, conclusions, and order
of the hearing officer.
C. In all administrative and judicial
proceedings governed by this section,
the orders, assessments, factual
findings, and legal conclusions of the
Office are presumed correct unless the
Person filing the appeal demonstrates
otherwise. In all factual hearings, the
Person filing the appeal has the burden
of proving by a preponderance of the
E:\FR\FM\24DEN1.SGM
24DEN1
mstockstill on PROD1PC66 with NOTICES
Federal Register / Vol. 73, No. 248 / Wednesday, December 24, 2008 / Notices
evidence the existence of an asserted
fact, except where another standard is
provided by statute or these Liquor
Regulations.
1.122. Revenue.
All revenue collected pursuant to
these Liquor Regulations shall be used
to defray the expenses of administering
the Liquor Regulations.
1.123. Certified Servers.
A. Every employee of a Retailer
Licensee who Sells Liquor must be a
Certified Server 21 years of age or older.
B. The Office will adopt policies and
procedures regarding the certification of
servers.
C. The Office shall have authority to
approve certification programs offered
by third-party providers and may adopt
policies regarding minimum
requirements of such programs.
D. The Office may revoke any
certification issued under this Section if
the Certified Server violates any
provision of these Liquor Regulations,
the policies and procedures issued
pursuant to them, any applicable Navajo
Nation law, makes a material
misstatement on the application for
certification, is convicted of a felony, or
for other good cause shown.
E. The denial or revocation of a
certification is an appealable action.
1.124. Transportation Through the
Navajo Nation.
Nothing in these Liquor Regulations
shall apply to the otherwise lawful
transportation of Liquor through the
Navajo Nation 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 Navajo Nation.
1.125. Sovereign Immunity.
Nothing in these Liquor Regulations is
intended to be, nor shall be construed
as, a waiver of the sovereign immunity
of the Navajo Nation. No employee,
officer, or agent of the Office shall be
authorized, nor shall he or she attempt,
to waive the immunity of the Navajo
Nation.
1.126. Jurisdiction.
Except as otherwise provided in these
Liquor Regulations, any and all actions
pertaining to alleged violations of these
Liquor Regulations, or seeking any relief
against the Navajo Nation, its officers,
employees, or agents arising under these
Liquor Regulations, shall be brought in
the Navajo Nation Courts, which courts
shall have exclusive jurisdiction
consistent with the inherent sovereignty
and immunity of the Navajo Nation and
applicable federal and Navajo Nation
law.
1.127. Severability.
If any provisions of these Liquor
Regulations or the application of any
VerDate Aug<31>2005
18:45 Dec 23, 2008
Jkt 217001
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 these Liquor Regulations
and its application to any other Person
or circumstances, and, to this end, the
provisions of these Liquor Regulations
are severable.
1.128. Effective Date.
These Liquor Regulations shall be
effective on such date as the Secretary
of the Interior certifies these Liquor
Regulations and publishes the same in
the Federal Register.
[FR Doc. E8–30688 Filed 12–23–08; 8:45 am]
BILLING CODE 4310–02–P
DEPARTMENT OF THE INTERIOR
Bureau of Reclamation
Yakima River Basin Water Storage
Feasibility Study; Benton, Yakima, and
Kittitas Counties, Washington INT–FES
08–65
AGENCY: Bureau of Reclamation,
Interior.
ACTION: Notice of Availability of the
Final Planning Report and
Environmental Impact Statement.
SUMMARY: Pursuant to section 102(2)(C)
of the National Environmental Policy
Act (NEPA) of 1969, as amended, the
Bureau of Reclamation (Reclamation)
has prepared a combined Final Planning
Report and Environmental Impact
Statement (Final PR/EIS) on the Yakima
River Basin Water Storage Feasibility
Study (Storage Study). The cooperating
agencies on this study are the
Washington Department of Ecology
(Ecology), Yakima County, the U.S.
Department of the Army: Yakima
Training Center and the Seattle District
of the U.S. Corps of Engineers, and the
U.S. Department of Energy: Office of
River Protection.
The purpose of the Storage Study is
to evaluate alternatives that would
create additional water storage for the
Yakima River Basin and assess their
potential to supply the water needed for
ecosystem aquatic habitat, basin-wide
agriculture, and municipal demands.
The need for the study is based on the
existing finite water supply and limited
storage capability of the Yakima River
Basin in low water years. This finite
supply and limited storage capacity do
not meet the water supply demands in
all years and result in significant
adverse impact to the Yakima River
Basin’s economy, which is agriculturebased, and to the basin’s aquatic habitat,
specifically, anadromous fisheries. The
PO 00000
Frm 00125
Fmt 4703
Sfmt 4703
79163
study seeks to identify means of
increasing water storage available,
including storage of Columbia River
water, for purposes of improving
anadromous fish habitat and meeting
irrigation and municipal water supply
needs.
DATES: Written comments on the Final
PR/EIS will be accepted through
February 2, 2009.
ADDRESSES: Written comments on the
Final PR/EIS should be addressed to the
Bureau of Reclamation, Upper Columbia
Area Office, Attention: David
Kaumheimer, Environmental Programs
Manager, 1917 Marsh Road, Yakima,
Washington 98901–2058. Comments
may also be submitted electronically to
storagestudy@pn.usbr.gov. Requests for
paper or CD copies of the Final PR/EIS
may be made to (509) 575–5848, ext.
612.
See the SUPPLEMENTARY INFORMATION
section on public review for locations
where copies of the Final PR/EIS are
available for public review. Information
on this project can also be found at
https://www.usbr.gov/pn/programs/
storage_study/.
FOR FURTHER INFORMATION: Contact
David Kaumheimer, Environmental
Programs Manager, Telephone: (509)
575–5848, extension 232.
SUPPLEMENTARY INFORMATION:
Background Information
Reclamation has undertaken this
study to explore ways to augment water
supplies in the Yakima River Basin for
the benefit of anadromous fish, irrigated
agriculture, and municipal water supply
under the authority of Public Law 108–
7, Title II, Section 214 which was
passed by Congress on February 20,
2003. Public Law 108–7 states:
The Secretary of the Interior, acting
through the Bureau of Reclamation, shall
conduct a feasibility study of options for
additional water storage in the Yakima River
Basin, Washington, with emphasis on the
feasibility of storage of Columbia River water
in the potential Black Rock Reservoir and the
benefit of additional storage to endangered
and threatened fish, irrigated agriculture, and
municipal water supply. There are
authorized to be appropriated such sums as
may be necessary to carry out this Act.
Ecology was a joint lead with
Reclamation in the preparation of the
Draft PR/EIS, in order to meet
compliance under the State
Environmental Policy Act (SEPA).
However, they elected to become a
cooperating agency on the Final PR/EIS
as they believe they may not have
fulfilled their requirements under
Washington State law to identify and
evaluate all reasonable water supply
E:\FR\FM\24DEN1.SGM
24DEN1
]]>Agencies
[Federal Register Volume 73, Number 248 (Wednesday, December 24, 2008)]
[Notices]
[Pages 79158-79163]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-30688]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Navajo Nation Liquor Regulations
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: This notice publishes the Secretary's certification of the
Navajo Nation Liquor Regulations. These Regulations regulate and
control the possession, sale and consumption of liquor within the
Navajo Nation. The Navajo Nation is located on extensive reservation
lands, and these Regulations establish a legal framework for licensing
the transportation and sale of alcoholic beverages within the exterior
boundaries of the Nation. These regulations will ensure the ability of
the tribal government to control the distribution and possession of
liquor within the reservation and at the same time will provide an
important source of revenue. These Regulations provide solely for civil
enforcement (fines) imposed on parties whose actions are subject to the
licensing provisions set forth herein. Any violation of these
regulations may also result in prosecution under other sections of the
Navajo Nation Code, or under relevant State or Federal law.
DATES: Effective Date: These Regulations are effective as of December
24, 2008.
FOR FURTHER INFORMATION CONTACT: Irene Herder, Tribal Operations
Specialist, Navajo Regional Office, P.O. Box 1060, Gallup, New Mexico
87305; Telephone (505) 863-8207; Fax (505) 863-8292; 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 Navajo Nation is governed by the Navajo Nation Council, which
has developed a comprehensive legal code (the Navajo Nation Code,
N.N.C.). Title 17, subchapter 12, of the N.N.C. bars the
transportation, sale, and consumption of alcoholic beverages on the
Navajo Reservation. Section 412 of Title 17 sets out exceptions to the
prohibitions in the title.
In 2001, the Council amended 17 N.N.C. section 412 to permit use of
alcohol at the Antelope Point Development Area of the Navajo Nation,
and the Glen Canyon National Recreation Area. (Resolution CYJ-62-01).
In 2008, the Council again amended 17 N.N.C. section 412, to authorize
transportation, sale, delivery and consumption on the Navajo
Reservation at authorized casinos. (Resolution CJA-03-08, passed by the
Council January 31, 2008, and signed into law by the President of the
Navajo Nation on February 11, 2008). By the same resolution, the
Council delegated the authority to promulgate liquor regulations to the
Navajo Tax Commission.
The following Liquor Regulations were adopted and approved by the
Navajo Nation Tax Commission by Resolution TAX-08-208.
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 these Liquor Regulations of the Navajo Nation
were promulgated by the Navajo Tax Commission pursuant to the authority
vested in the Commission by the Navajo Nation Council by Resolution
CJA-03-08.
Dated: December 19, 2008.
George T. Skibine
Acting Deputy Assistant Secretary for Policy and Economic Development.
The Navajo Nation's Liquor Regulations read as follows:
Navajo Nation Liquor Regulations
1.101. Title. These Liquor Regulations shall be known as the Navajo
Nation Liquor Regulations (``Liquor Regulations'').
1.102. Purpose. The purpose of these Liquor Regulations is to
ensure the proper transportation, sale, delivery, and consumption of
alcoholic beverages within the exterior boundaries of the Navajo Nation
and to ensure the health, safety, and welfare of the Navajo people.
1.103. Authority. The Commission enacts these Liquor Regulations
pursuant to the authority delegated to the Commission by the Navajo
Nation Council in 17 N.N.C. Sec. 412.
1.104. Definitions. Except as otherwise provided herein, the
following definitions apply throughout these Liquor Regulations:
A. ``Antelope Point'' means the area covered by the Antelope Point
Resort and Marina Business Site Lease;
B. ``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;
C. ``Certified Server'' means any employee of a Retailer Licensee
who is certified to Sell Liquor on the Navajo Nation on behalf of the
Retailer Licensee in accordance with these Liquor Regulations, and who
has successfully completed a liquor server training program approved by
the Office;
D. ``Commission'' means the Navajo Tax Commission, delegated by the
Navajo Nation Council to ensure the proper transportation, sale,
delivery, and consumption of alcoholic beverages; or any such
commission so delegated by the Navajo Nation;
E. ``Enterprise'' means a Navajo Nation Enterprise or entity that
is engaged in, or wishes to engage in, the business of Selling Liquor
within the Navajo Nation;
F. ``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 potable.
``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
[[Page 79159]]
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 one half of one percent
(.05%) of alcohol by volume, but not more than twenty-one percent (21%)
shall be considered liquor;
G. ``Malt Liquor'' means an alcoholic drink made from malt,
typically having a higher alcohol content than most Beer or ale;
H. ``Minor'' means any individual under the age of 21;
I. ``Navajo casino facility'' means a gaming facility operated by
the Navajo Nation, pursuant to the Indian Gaming Regulatory Act of 1988
(Pub. L. 100-497, 25 U.S.C. 2701-2721 and U.S.C. 1166-1168), Navajo
Gaming Ordinance, (5 N.N.C. Sec. Sec. 2001-2057) and any gaming
compact entered into between the Navajo Nation and a State;
J. ``Navajo Nation'' means:
1. When referring to the body politic, the same meaning as set
forth in 1 N.N.C. Sec. 551 et seq.
2. When referring to governmental territory, the same meaning as
set forth in 7 N.N.C. Sec. 254;
K. ``Navajo Nation Court'' means any or all of the courts
established by the Navajo Nation;
L. ``Office'' means the Office of the Navajo Tax Commission,
charged by the Commission with the day-to-day administration of these
Liquor Regulations; or any such administrative office so charged by the
Commission;
M. ``Package Sale'' means any Sale of Liquor in containers filled
or packed by a manufacturer or wine bottler and Sold in an unbroken
package for consumption off the premises designated in the Retailer
License 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 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;
P. ``Retailer License'' means a revocable license granted by the
Office authorizing the Licensee named therein and its Certified Servers
to Sell Liquor at a specified location within the Navajo Nation;
Q. ``Retailer Licensee'' means the holder of a valid Retailer
License allowing the Sale of Liquor in a designated location, as
authorized and granted by the Office;
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 within the Navajo Nation 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. ``Wholesaler'' means a person whose place of business is located
off the Navajo Nation and who Sells, or possesses for the purpose of
Sale, any Liquor for resale by a Retailer Licensee;
U. ``Wholesaler License'' means a revocable license granted by the
Office authorizing the Wholesaler named therein to do business within
the Navajo Nation with a Retailer Licensee;
V. ``Wholesaler Licensee'' means the holder of a valid Wholesaler
License; and
W. ``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.
1.105. Powers of Enforcement.
A. The Commission is empowered by the Navajo Nation Council to
regulate the subject matter of these Liquor Regulations, pursuant to 17
N.N.C. Sec. 412. The Commission shall have the following powers and
duties:
1. To approve, establish, and publish such rules and regulations as
are necessary and appropriate to ensure the proper transportation,
sale, delivery and consumption of alcoholic beverages within the Navajo
Nation in accordance with 17 N.N.C. Sec. 412;
2. To exercise such other delegated powers as are necessary and
appropriate to fulfill the purposes of these Liquor Regulations.
B. The Office is delegated the authority to enforce these Liquor
Regulations and shall have the following powers and duties:
1. To adopt policies and procedures as necessary to implement these
Liquor Regulations, subject to approval by the Commission;
2. To authorize the Sale of Liquor within the Navajo Nation in
accordance with 17 N.N.C. Sec. 412;
3. To bring any necessary action to enforce these Liquor
Regulations;
4. To determine penalties and seek damages for violations of these
Liquor Regulations;
5. To collect fees levied or set in relation to these Liquor
Regulations and keep accurate records, books, and accounts; and
6. To employ managers, accountants, security personnel, inspectors,
and other such persons as may be reasonably necessary to administer
these Liquor Regulations.
1.106. Limitations.
A. Notwithstanding any other provision of these Liquor Regulations,
no penalty may be imposed pursuant or related to these Liquor
Regulations 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.
B. Any regulatory action taken by the Office pursuant to these
Regulations will be civil in nature and will therefore apply to both
Indians and non-Indians.
C. Any alleged activity which would be deemed a criminal act under
tribal, state, or federal law involving the transportation, sale,
delivery, or consumption of liquor within the Navajo Nation will be
referred to the appropriate tribal, state, and/or federal authorities.
D. Nothing in these Liquor Regulations, including but not limited
to any penalty imposed by the Office, shall be construed to bar a
similar trial or punishment to the full extent of any applicable
tribal, state, and/or federal civil or criminal law.
1.107. Inspection Rights.
A. All premises upon which Liquor is sold, stored, or distributed
shall be open to inspection by duly authorized tribal officials or
their designees for the purposes of ascertaining compliance with these
Liquor Regulations and applicable law.
B. Any Person who prevents or hinders, or attempts to prevent or
hinder, such inspection shall be in violation of these Liquor
Regulations.
1.108. Authorized Liquor Sales and Practices.
A. Generally. Except as otherwise provided herein, Retailer
Licensees may Sell Liquor on the Navajo Nation at such places and hours
permitted by their Retailer License and allowed by applicable Navajo
Nation law.
B. Sales on Sundays and Election Days. Except as otherwise limited
by the Navajo Nation Council, the Sale of Liquor shall be allowed on
Sunday and on any Navajo Nation, federal, or State election day.
C. Sales Only by Certified Servers. All Liquor Sales within the
Navajo Nation
[[Page 79160]]
authorized by these Liquor Regulations must be made only by Certified
Servers.
D. Liquor Sales at the Navajo Casino Facility. Any Sale of Liquor
at a Navajo casino facility must comply with all applicable provisions
of any Navajo Nation-State class II gaming compact between the Navajo
Nation and any State, as it now exists or hereafter may be amended.
E. Liquor Sales at Antelope Point. Any Sale of Liquor at Antelope
Point must comply with all applicable laws and regulations.
F. Wholesale Liquor Transactions. A Retailer Licensee may purchase
Liquor for resale at a designated location only from a Wholesaler
possessing a valid Wholesaler License issued by the Office. A
Wholesaler Licensee may Sell Liquor for resale at a designated location
only to holders of valid Retailer Licenses issued by the Office,
provided that such Sales are otherwise in conformity with these Liquor
Regulations and applicable laws of the State.
1.109. Prohibited Liquor Sales and Practices.
A. No Package Sales; Resale. No Retailer Licensee shall Sell Liquor
on the Navajo Nation for resale; all such Sales must be for the
personal use and consumption of the purchaser. Any Person who is not
licensed pursuant to these Liquor Regulations who purchases Liquor
within the Navajo Nation and re-sells it, whether in the original
container or not, shall be in violation of these Liquor Regulations and
shall be subject to penalties pursuant to these Liquor Regulations.
B. Bringing Liquor onto premises. No Licensee shall allow any
Person to bring any Liquor for personal consumption into the premises
designated in the Retailer License.
C. Other Prohibitions on Hours and Days of Sales. The Navajo Nation
Council may establish other days on which, or times at which, Sales or
consumption of Liquor is not permitted within the Navajo Nation. The
Office will provide notice of any such enactment to all Wholesaler
Licensees and Retailer Licensees doing business within the Navajo
Nation.
D. No Sales to Minors. No Licensee, Certified Server, or Person
shall Sell Liquor on the Navajo Nation to a Minor; provided, however,
that 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 21 years or
older.
E. No Sales to Intoxicated Persons. No Licensee, Certified Server,
or Person shall Sell Liquor on the Navajo Nation to a Person believed
by a Certified Server to be intoxicated.
F. All Sales Cash. A Retailer Licensee 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 Retailer Licensee from receiving a
delivery of Liquor from a Wholesaler Licensee if arrangements have been
made to pay for such delivery at a different time; and provided further
that nothing herein shall preclude the Retailer Licensee 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 Retailer Licensee from
distributing Liquor to customers without charge, so long as such
distribution is not otherwise in violation any provision of these
Liquor Regulations.
G. 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 designated in a
Retailer License.
H. All Designated Premises Posted. A Retailer Licensee shall not
make any Sale of Liquor unless signs are prominently posted in all
premises designated in the Retail License informing the customers that
removing Liquor from the premises is a violation of federal law
prohibiting the possession of alcohol on Indian reservations. In the
case of outdoor sales, such signage shall be prominently displayed no
more than ten (10) feet from the point of sale.
1.110. Reserved.
1.111. Reserved.
1.112. Licensing.
A. Any Person wishing to Sell Liquor as a Wholesaler shall obtain
and retain a Wholesaler License for such purpose.
B. Any person wishing to Sell Liquor as a Retailer shall obtain one
of the following types of License:
1. Retailer License--Restaurant.
2. Retailer License--Hotel/Motel.
3. Retailer License--Special Events.
4. Retailer License--Other. The Office shall have the authority to
issue policies and procedures regarding the issuance of other types of
licenses, subject to the Commission's approval of such policies and
procedures.
C. The pre-conditions to the issuance of a License include but are
not limited to the following:
1. Compliance with Business and Procurement Act--Before any License
is issued to an applicant or renewed, the Office shall make a
determination that such applicant is not ineligible under the
provisions of 12 N.N.C. Sec. 1505(C) of the Navajo Business and
Procurement Act. If such applicant is determined to be ineligible, the
license application shall be denied.
2. An applicant who has had a License revoked is ineligible to
apply for a License within one year of the date of the revocation.
3. An applicant who has had two or more License revocations is
ineligible to apply for a License within five years of the date of the
last revocation.
4. An applicant who has been convicted of a felony or a misdemeanor
involving a crime of moral turpitude is ineligible for a License.
5. Any applicant who has committed any of the violations listed in
Section 1.119 below is ineligible for a License.
D. Liabilities of Licensee. The Licensee shall be accountable for
all violations of its License and these Liquor Regulations, and for all
taxes, fees, and penalties that may be charged against its License.
E. License is Not a Property Right. Notwithstanding any other
provision of these Liquor Regulations, a License is a mere permit for a
fixed duration of time. A License shall not be deemed a property right
or vested right of any kind, nor shall the granting of a License give
rise to a presumption of legal entitlement to the granting of such
License for a subsequent time period.
F. Licenses Non-transferable. No License issued by the Office shall
be assigned or transferred in any manner.
G. Licenses or letter of denial.
1. After considering the information submitted on the application
for a License, the Office shall grant and issue a License if it
concludes that granting the License will serve the best interests of
the Navajo Nation.
2. The Office shall deny the application if it finds that granting
a License would be contrary to the best interests of the Navajo Nation,
considering such factors as the applicant's compliance history with
applicable Navajo Nation and federal law, whether the applicant is
currently in violation of any Navajo Nation law, the number and density
of locations selling liquor on the Navajo Nation, whether the applicant
will operate a new or existing establishment, or any other reason
bearing on the health, safety, and welfare of the Navajo Nation
community or the economic security of the Navajo Nation.
3. The Office shall send the applicant a final written decision
within thirty days after the application is received by the Office,
explaining the grounds for its
[[Page 79161]]
decision either granting or denying the application for a License.
4. Failure of the Office to issue a License or a letter of denial
within thirty days shall be deemed a denial.
H. Appeal. A letter of denial for a License shall be considered an
adverse action and may be appealed in accordance with these Liquor
Regulations.
1.113. Wholesaler License.
A. Term.
1. A separate License must be secured and maintained for each
calendar year or portion thereof, ending on December 31st.
2. Regardless of when the License is issued, it expires at midnight
December 31st.
B. Fee.
1. Beer/Wine.
a. The fee for the initial term of a Wholesaler License to Sell
Beer and Wine shall be $500.
b. The fee for subsequent renewals of the same License shall be
$200 per year.
2. Spirits.
a. The fee for the initial term of a Wholesaler License to Sell
Spirits shall be $700.
b. The fee for subsequent renewals of the same License shall be
$250 per year.
C. Condition. A copy of the License shall be carried at all times
in any vehicle used to transport liquor pursuant to this License.
1.114. Retailer License--Restaurant.
A. Term.
1. A separate License shall be secured and maintained for each
calendar year or portion thereof, ending on December 31st.
2. Regardless of when the License is issued, it expires at midnight
December 31st.
B. Fee.
1. Beer/Wine.
a. The fee for the initial term of a Retailer License for a
restaurant Selling Beer and Wine shall be $1,000.
b. The fee for subsequent renewals of the same License shall be
$250 per year.
2. Spirits.
a. The fee for the initial term of a Retailer License for a
restaurant selling Spirits shall be $1,500.
b. The fee for subsequent renewals of the same License shall be
$500 per year.
C. Conditions.
1. The Retailer License shall be for a specific location. The
Licensee may not transfer the License to any other person, even if such
person takes over operation of the premises designated in the Retailer
License. Nor may the Licensee use the license for any location operated
by the Licensee, other than the premises designated in the Retailer
License.
2. The Retailer License shall at all times be on public display at
the location designated in the Retailer License.
3. The Location where Liquor is sold shall not be closer than 300
feet to any existing church or school.
1.115. Retailer License--Hotel/Motel.
A. Term.
1. A separate License shall be secured and maintained for each
calendar year or portion thereof, ending on December 31st.
2. Regardless of when the License is issued, it expires at midnight
December 31st.
B. Fee.
1. Beer/Wine.
a. The fee for the initial term of a Retailer License for a Hotel/
Motel Selling Beer and Wine shall be $1,000.
b. The fee for subsequent renewals of the same License shall be
$250 per year.
2. Spirits.
a. The fee for the initial term of a Retailer License for a Hotel/
Motel selling Spirits shall be $1,500.
b. The fee for subsequent renewals of the same License shall be
$500 per year.
C. Conditions.
1. The Retailer License shall be for a specific location and may
not be transferred or used for any location other than that identified
on the face of the License.
2. The Retailer License shall at all times be on public display at
the location designated in the Retailer License.
3. The Location where Liquor is sold shall not be closer than 300
feet to any existing church or school.
1.116. Retailer License--Special Event.
A. Term. The term of the License shall be for the term of the
special event.
B. Fee.
1. Beer/Wine. The fee for a Retailer License for a Special Event
Selling Beer/Wine shall be $300.
2. Spirits. The fee for a Retailer License for a Special Event
Selling Spirits shall be $500.
C. Conditions.
1. The Retailer License shall be for a specific location and shall
not be transferred or used for any location other than that identified
on the face of the License.
2. The Retailer License shall at all times be on public display at
the location designated in the Retailer License.
3. The Location where Liquor is sold shall not be closer than 300
feet to any existing church or school.
1.117 License Renewal.
A. If a Wholesaler Licensee or a Retailer Licensee fails to renew a
License before December 31st of any year, the Licensee is hereby
suspended from Selling Liquor until such Licensee renews the License or
obtains a new License.
B. So long as the Licensee renews the License by January 15th, the
issuance of the License shall be treated as a renewal, and the fee
shall be calculated accordingly; provided, provided, however, that
there shall also be a $50 late fee assessed.
C. If the Licensee fails to renew the License by 5:00 p.m. on
January 15th, the Licensee must submit a new application for a License
and pay the initial License application fee.
D. In order to be eligible for renewal of a License, the Licensee
must be in compliance with all terms and conditions of such License and
these Liquor Regulations.
1.118. Recordkeeping and Reporting.
The Office shall maintain recordkeeping and reporting requirements
for Licensees, in accordance with policies and procedures, including
but not limited to, periodic reports of the amount of liquor sold or
delivered within the Navajo Nation during a particular period.
1.119. Violations.
These Liquor Regulations apply to all persons licensed to transport
or sell Liquor within the Navajo Nation. Violations of these Liquor
Regulations include, but are not limited to, the following:
A. Violating any term or condition of the License;
B. Selling Liquor within the Navajo Nation without a License;
C. Buying Liquor within the Navajo Nation from an unlicensed
person;
D. Selling Liquor within the Navajo Nation to a minor;
E. Selling Liquor within the Navajo Nation to an intoxicated
person;
F. Permitting an uncertified server to sell or serve Liquor within
the Navajo Nation;
G. Failing to allow inspection of premises designated in a Retailer
License or vehicles used to deliver Liquor within the Navajo Nation;
H. Failure to present documents required by these Regulations upon
a request by the Office;
I. Failing to display License;
J. Being convicted of a felony or a misdemeanor involving a crime
of moral turpitude;
K. Permitting repeated acts of violence or disorderly conduct on or
near the premises designated in the Retailer License;
L. Submitting false or fraudulent information on a License
application; and
M. Violating any applicable Navajo Nation or federal law.
[[Page 79162]]
1.120. Penalties.
Penalty amounts shall be set for each violation of these Liquor
Regulations in accordance with policies and procedures.
1.121. Appeals.
A. A Person may appeal any adverse action taken pursuant to these
Regulations, including but not limited to, denial of an application for
a License, issuance of a penalty, denial of a request for approval of a
Certified Server program, or revocation of a License.
B. Appeals shall follow the following process.
1. Appeals shall be made first to the Office. Upon notice of any
adverse action by the Office, a Person may request a conference with
the Office.
a. To be entitled to a conference, the Person must make a written
request within the time prescribed by the notice of the adverse action.
b. The request for a conference must identify the disputed notice
of assessment or notice of denial of refund or notice of other adverse
action, state the determination sought, and contain a short and plain
statement of the relevant facts and law.
c. After receiving a timely request and within a reasonable period
of time, the Office shall confer with the Person filing the appeal. The
Office and the Person may agree on a suitable location for the
conference or may agree to hold the conference by telephone and to
exchange written documentation by mail. The Office and the Person may
agree to confer more than once.
d. Within sixty days following the conclusion of the conference,
the Office will issue a written conference decision. If the Office
denies in whole or in part the relief that the Person requests, then
the decision shall state the basis for the denial of relief.
2. Within thirty days after the issuance of the decision of the
Office, the Person may appeal the decision to the Office of Hearings
and Appeals. If the Person fails to appeal within that time period,
then the decision of the Office is final and not subject to review by
appeal to a hearing officer or to any court.
a. A request for a hearing before a hearing officer must be in
writing and contain a short and plain statement of the facts and law
forming the basis for the relief sought. The Person appealing the
decision must sign the request for Hearing.
b. The hearing officer has the authority to enter pre-hearing
orders. Where necessary, the hearing officer may confer with the
parties before entering pre-hearing orders. Such orders may, for
example, eliminate or narrow disputes concerning questions of fact or
law, establish identities and subject matter of testimony of witnesses,
require the identification and disclosure of documents, or provide for
the time, place, and duration of hearings. Pre-hearing orders will
control the course of the hearing.
c. At the request of the parties, the hearing officer shall issue
subpoenas for the attendance of witnesses at hearings and for
production of books, records, maps, documents, or physical evidence.
Any witness subject to a subpoena may petition the hearing officer to
vacate or modify the subpoena served on the witness. The hearing
officer shall promptly notify the party who requested the subpoena and
proceed to rule on the petition. The hearing officer may investigate
the grounds of the petition or, upon the petition itself, may deny or
grant the petition, in whole or in part. The hearing officer's rulings
on petitions to quash subpoenas are not subject to interlocutory appeal
to any court.
d. The hearing officer shall preside over these hearings and shall
conduct them according to the following provisions.
i. All documents filed by any party at a hearing shall be served
personally or by first-class mail, postage prepaid, at the last known
address, on all parties, including the Office, and proof of service
must be filed on record.
ii. Oral evidence shall be taken only on oath or affirmation.
iii. Each party may call and examine witnesses, introduce exhibits,
cross-examine opposing witnesses, impeach any witness regardless of
which party first called the witness to testify, and may rebut any
evidence presented. A party, a party's employee, or a party's agent,
may be called by the opposing party and be examined as if under cross-
examination. The hearing officer may question any witness, may call the
appellant as a witness, or may call as a witness any person who is
present at the hearing.
iv. Any privileges that apply in civil actions before Navajo courts
shall be followed.
v. Any relevant evidence, including affidavits and other forms of
hearsay, shall be admitted if such evidence is of the sort upon which
responsible persons are accustomed to rely in the conduct of serious
affairs. The hearing officer shall be liberal in admitting evidence,
but objections to its admission, and comments or observations of its
weight, are relevant in weighing the evidence. The hearing officer may
deny admission of evidence that is irrelevant, untrustworthy, or unduly
repetitious.
vi. All evidence will be offered and made part of the record and
the hearing officer shall not consider any other factual information,
except for matters officially noticed.
vii. Where after proper notice a Person or its authorized
representative fails to appear, the hearing officer may proceed with
the hearing, dispose of the issues raised, and enter a final order.
viii. Reasonable continuances may be granted for good cause.
ix. Prior to entering an order, the hearing officer will afford the
parties a reasonable time in which to submit any post-hearing
memoranda, proposed findings of fact, and proposed conclusions of law.
e. The hearing conducted under this part concludes when the hearing
officer enters findings of fact, conclusions of law, and a final order.
The final order issued by the hearing officer shall be a matter of
public record, and all final orders issued shall be available for
public inspection.
f. A party may file a petition for rehearing. Such petition will
allege as grounds for rehearing either a mistake of law or fact, or the
discovery of new evidence which by due diligence could not have been
discovered by the party at the time of the hearing. The petition must
set out in some detail the mistake in law or fact claimed, or summarize
the new evidence that has become available, specifically mentioning the
source of such evidence and what it would tend to establish. The
hearing officer will have wide discretion in accepting or rejecting
such petitions.
3. The decision of the hearing officer entered under this part may
be appealed to the Navajo Supreme Court within 30 days. If not timely
appealed, the hearing officer's order is binding on the parties and may
not be appealed to any court.
a. The rules of Appellate Procedure of the Navajo Supreme Court
shall govern the conduct of appeals from orders of the hearing officer
rendered under this section.
b. Appeal to the Navajo Supreme Court shall be limited to the
record on appeal.
c. The record on appeal will be based on the findings, conclusions,
and order of the hearing officer.
C. In all administrative and judicial proceedings governed by this
section, the orders, assessments, factual findings, and legal
conclusions of the Office are presumed correct unless the Person filing
the appeal demonstrates otherwise. In all factual hearings, the Person
filing the appeal has the burden of proving by a preponderance of the
[[Page 79163]]
evidence the existence of an asserted fact, except where another
standard is provided by statute or these Liquor Regulations.
1.122. Revenue.
All revenue collected pursuant to these Liquor Regulations shall be
used to defray the expenses of administering the Liquor Regulations.
1.123. Certified Servers.
A. Every employee of a Retailer Licensee who Sells Liquor must be a
Certified Server 21 years of age or older.
B. The Office will adopt policies and procedures regarding the
certification of servers.
C. The Office shall have authority to approve certification
programs offered by third-party providers and may adopt policies
regarding minimum requirements of such programs.
D. The Office may revoke any certification issued under this
Section if the Certified Server violates any provision of these Liquor
Regulations, the policies and procedures issued pursuant to them, any
applicable Navajo Nation law, makes a material misstatement on the
application for certification, is convicted of a felony, or for other
good cause shown.
E. The denial or revocation of a certification is an appealable
action.
1.124. Transportation Through the Navajo Nation.
Nothing in these Liquor Regulations shall apply to the otherwise
lawful transportation of Liquor through the Navajo Nation 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 Navajo Nation.
1.125. Sovereign Immunity.
Nothing in these Liquor Regulations is intended to be, nor shall be
construed as, a waiver of the sovereign immunity of the Navajo Nation.
No employee, officer, or agent of the Office shall be authorized, nor
shall he or she attempt, to waive the immunity of the Navajo Nation.
1.126. Jurisdiction.
Except as otherwise provided in these Liquor Regulations, any and
all actions pertaining to alleged violations of these Liquor
Regulations, or seeking any relief against the Navajo Nation, its
officers, employees, or agents arising under these Liquor Regulations,
shall be brought in the Navajo Nation Courts, which courts shall have
exclusive jurisdiction consistent with the inherent sovereignty and
immunity of the Navajo Nation and applicable federal and Navajo Nation
law.
1.127. Severability.
If any provisions of these Liquor Regulations 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 these Liquor
Regulations and its application to any other Person or circumstances,
and, to this end, the provisions of these Liquor Regulations are
severable.
1.128. Effective Date.
These Liquor Regulations shall be effective on such date as the
Secretary of the Interior certifies these Liquor Regulations and
publishes the same in the Federal Register.
[FR Doc. E8-30688 Filed 12-23-08; 8:45 am]
BILLING CODE 4310-02-P
