Poarch Band of Creek Indians-Alcohol Beverage Control Ordinance, 39727-39731 [2012-16383]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs

[Federal Register Volume 77, Number 129 (Thursday, July 5, 2012)]
[Notices]
[Pages 39727-39731]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-16383]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Poarch Band of Creek Indians--Alcohol Beverage Control Ordinance

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: This notice publishes the Amendment to the Poarch Band of 
Creek Indians--Alcohol Beverage Control Ordinance. This Ordinance 
regulates and controls the possession, sale and consumption of liquor 
within the Poarch Band of Creek Indians' Indian country. This Ordinance 
allows for the possession and sale of alcoholic beverages within the 
jurisdiction of the Poarch Band of Creek Indians, will increase the 
ability of the tribal government to control the liquor distribution and 
possession of liquor within their Indian country, and at the same time, 
will provide an important source of revenue, the strengthening of the 
tribal government and the delivery of tribal services.

DATES: Effective Date: This Amendment is effective 30 days after 
publication July 5, 2012.

FOR FURTHER INFORMATION CONTACT: Chanda Joseph, Tribal Relations 
Specialist, Eastern Regional Office, Bureau of Indian Affairs, 545 
Marriott Drive, Suite 700, Nashville, Tennessee 37214, Telephone: (615) 
564-6750; Fax: (615) 564-6701; or, De Springer, Office of Indian 
Services, Bureau of Indian Affairs, 1849 C Street NW., MS-4513-MIB, 
Washington, DC 20240; Telephone: (202) 513-7626.

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 purpose of this Ordinance is to 
govern the sale, possession and distribution of alcohol within the 
Poarch Band of Creek Indians' Indian country. On January 19, 2012, the 
Tribal Council of the Poarch Band of Creek Indians duly adopted Tribal 
Council Ordinance TCO 2012-001, amending the Poarch Band of Creek 
Indians Alcoholic Beverage Control Ordinance and the Criminal Code.
    This notice is published in accordance with the authority delegated 
by the Secretary of the Interior to the Assistant Secretary--Indian 
Affairs. I certify that the Tribal Council of the Poarch Band of Creek 
Indians duly adopted Tribal Council Ordinance TCO 2012-001 on January 
19, 2012.

    Dated: June 25, 2012.
Donald E. Laverdure,
Acting Assistant Secretary--Indian Affairs.

    The Poarch Band of Creek Indians--Alcoholic Beverage Control 
Ordinance, as amended, shall read as follows:

Chapter I--General Provisions

Sec.  40-1-1 Title

    This section of Poarch Band of Creek Indians Tribal Code shall be 
known as the ``Alcoholic Beverage Control Ordinance''.

Sec.  40-1-2 Authority and Purpose

    This Ordinance is adopted pursuant to the sovereign authority of 
the Poarch Band of Creek Indians and Article IV, Section 4(k), (m), (n) 
of the Constitution of the Poarch Band of Creek Indians and the Act of 
August 15, 1953, Public Law 83-277, 18 U.S.C. 1161. The introduction, 
possession, transportation, and sale of alcoholic beverages shall be 
lawful within the Indian country under the jurisdiction of the Tribe, 
provided that such introduction, possession, transportation, and sale 
are in conformity with the provisions of this Ordinance and the laws of 
the State of Alabama pursuant to 18 U.S.C. 1161.

Sec.  40-1-3 Definitions

    As used in this Ordinance, the following words shall have the 
following meanings unless the context clearly requires otherwise:
    (a) ``Alcoholic Beverages'' means any alcoholic, spirituous, 
vinous, fermented or other alcoholic beverage, or combination of 
liquors and mixed liquor, a part of which is spirituous, vinous, 
fermented or otherwise alcoholic, and all drinks or drinkable liquids, 
preparations or mixtures intended for beverage purposes, which contain 
one-half of one percent or more of alcohol by volume, and shall include 
liquor, Beer, and wine, both fortified and table wine.
    (b) ``Applicant'' means any individual, entity, or enterprise 
seeking to sell or serve Alcoholic Beverages within Indian Country 
under the jurisdiction of the Tribe by submitting an application for a 
license or permit.
    (c) ``Indian Country'' means land under the jurisdiction of an 
Indian tribe as defined by 18 U.S.C. Sec.  1151.
    (d) ``Minor'' means any person under age twenty-one (21) years of 
age.
    (e) ``Tribe'' or ``Tribal'' means the Poarch Band of Creek Indians.
    (f) ``Tribal Council'' means the duly elected governing body of the 
Poarch Band of Creek Indians.
    (g) ``Ordinance'' means Poarch Band of Creek Indians Alcoholic 
Beverage Control Ordinance.

Sec.  40-1-4 Sovereign Immunity

    Nothing contained in this Ordinance is intended to nor does in any 
way limit, alter, restrict, or waive the Tribe's sovereign immunity.

[[Page 39728]]

Sec.  40-1-5 Severability

    If any clause, sentence, paragraph, section, or part of this 
Ordinance shall, for any reason be adjudicated by any court of 
competent jurisdiction, to be invalid or unconstitutional, such 
judgment shall not affect, impair, or invalidate the remainder thereof, 
but shall be confined in its operation to the clause, sentence, 
paragraph, section, or part thereof directly involved in the 
controversy in which the judgment shall have been rendered.

Sec.  40-1-6 Prior Inconsistent Law

    Upon the effective date of this Ordinance, any prior, inconsistent 
resolutions, policies, ordinances and/or procedures of the tribal 
government and tribal enterprises are hereby superseded and/or amended 
to comply with this Ordinance.

Sec.  40-1-7 Effective Date

    This Ordinance may be amended in accordance with the Tribal 
Constitution. All amendments shall be subject to the final approval of 
the Secretary of the Interior before they become effective. This 
Ordinance shall be deemed effective January 1, 2012 or upon approval by 
the Secretary of the Interior or whichever is later.

Chapter II--Administration

Sec.  40-2-1 Delegation of Authority

    The Tribal Council authorizes the Public Safety Department to 
oversee and enforce this Ordinance.

Sec.  40-2-2 Primary Functions of Public Safety Department

    The Public Safety Department shall have the authority and 
responsibility to:
    (a) Administer and enforce all provisions of this Ordinance;
    (b) Deny issue, or restrict alcoholic beverage control renewal 
licenses and permits to any Applicant that operates within the Indian 
Country under the jurisdiction of the Tribe;
    (c) Revoke or suspend alcoholic beverage control licenses or 
permits of any licensee or permittee that operates within the Indian 
Country under the jurisdiction of the Tribe after notice and an 
opportunity to be heard has been provided to licensee or permittee;
    (d) Maintain a current list of licensees and permittees for 
purposes of ensuring compliance with tribal and state license laws;
    (e) Monitor licensee's compliance with this Ordinance and any 
conditions placed on any license or permit issued pursuant to the 
Ordinance;
    (f) Ensure licensees are conducting employee TIPS training for new 
hires and as a part of ongoing employment;
    (g) Establish forms and internal policies and procedures necessary 
to carry out the purposes of this Ordinance;
    (h) Promulgate and enforce written rules and regulations not 
inconsistent with this Ordinance;
    (i) Investigate any reports of a violation of this Ordinance and, 
if applicable, coordinate investigations and prosecutions with other 
law enforcement agencies;
    (j) Impose civil sanctions and penalties in accordance with this 
Ordinance; and
    (k) Submit any reports requested by Tribal Council regarding any 
aspect of the administration or enforcement of this Ordinance.

Sec.  40-2-3 Rules and Regulations

    (a) Rules and regulations that the Public Safety Department deems 
necessary to administer its responsibilities under this Ordinance shall 
be promulgated only upon thirty (30) days' notice of the proposed 
rulemaking action, which shall be provided to the Tribal Council and 
posted at the tribal offices.
    (b) The notice shall specify the purpose of the proposed 
regulation, the draft language of the proposed regulation, the factors 
the Public Safety Department has considered in its determination to 
enact the proposed regulation, and the Public Safety Office's address 
at which the Public Safety Department shall receive comments.
    (c) During the notice period, the Public Safety Department shall 
receive comments regarding the proposed regulation at the designated 
mailing address.
    (d) The comments received by the Public Safety Department shall be 
considered by the Public Safety Department at a public meeting, and the 
Public Safety Department shall make a final determination regarding the 
need for the proposed regulation on the basis of all the information 
available. All final determinations of the Public Safety Department 
shall be recorded in writing.
    (e) Any final rules and regulations shall be provided to the Tribal 
Council. No later than thirty (30) days after the final determination 
of the Public Safety Department, the Tribal Council may veto the final 
rules or regulations or a portion thereof. A veto requires a \2/3\ vote 
of the total membership of the Tribal Council. All members of the 
Tribal Council do not need to be present. Regulations will not be 
effective until the date the veto period expires or the date that the 
Tribal Council exercises its right to veto, whichever date is earlier. 
If the Tribal Council vetoes any clause, sentence, paragraph, section, 
or part of the final rules and regulations, then the Tribal Council 
shall clarify which, if any, provisions shall become effective at the 
time that it exercises its right to veto.

Chapter III--Requirements and Conditions

Sec.  40-3-1 License or Permit Required

    No person shall engage in the sale of any alcoholic beverage within 
the Indian Country under the jurisdiction of the Tribe, unless duly 
licensed or permitted to do so by the State of Alabama and the Tribe in 
accordance with the terms of the Ordinance. A separate license or 
permit shall be required for each location where Alcoholic Beverages 
are to be sold or served.

Sec.  40-3-2 Privilege and Duties

    (a) Notwithstanding any other provision of this Ordinance, a tribal 
alcoholic beverage license or permit is a mere permit for a fixed 
duration of time. A tribal alcoholic beverage license or permit is a 
revocable privilege and shall not be deemed a property right or vested 
right of any kind nor shall the granting of a tribal alcoholic beverage 
license or permit give rise to a presumption or legal entitlement to 
the granting of such license or permit for a subsequent time period.
    (b) Applicants and licensees shall have a continuing duty to 
provide any materials, assistance or other information required by the 
Public Safety Department and to fully cooperate in any investigation 
conducted by or on behalf of the Public Safety Department. If any 
information provided on the application changes or becomes inaccurate 
in any way, the Applicant or licensee shall promptly notify the 
Commission of such changes or inaccuracies.
    (c) Acceptance of a license by the licensee constitutes an 
agreement on the part of the licensee to be bound by the provisions of 
this Ordinance, applicable laws, and applicable rules and regulations 
as they are now, or as they may hereafter be amended or restated, and 
to cooperate fully with the Public Safety Department.
    (d) It is the responsibility of the licensee to remain informed of 
the contents of this Ordinance and all other applicable laws, rules, 
regulations, amendments, provisions, and conditions, and ignorance 
thereof will not excuse violations.

[[Page 39729]]

Sec.  40-3-3 Assignment or Transfer

    No tribal license or permit issued under this Ordinance shall be 
assigned or transferred without the written approval of the delegated 
authority as expressed by formal resolution and upon satisfaction of 
the conditions required for a license or permit as set out in Sec.  40-
3-4 of this Ordinance.

Sec.  40-3-4 Conditions of the Tribal License or Tribal Permit

    Any Tribal license or permit issued under this Ordinance shall be 
subject to such reasonable conditions as the Public Safety Department 
shall determine, including, but not limited to the following:
    (a) The licensee or permittee shall at all times maintain an 
orderly, clean, and neat establishment, both inside and outside the 
licensed premises.
    (b) The licensee or permittee shall be subject to patrol by the 
Public Safety Department, and such other law enforcement officials as 
may be authorized under Tribal or federal law.
    (c) The licensee or permittee shall be open to inspection by duly 
authorized Tribal officials at all times during the regular business 
hours.
    (d) The licensee or permittee shall not sell Alcoholic Beverages 
within 200 feet of a polling place on tribal election days and 
including on special days of observance as designated by the Tribal 
Council.
    (e) The licensee or permittee shall perform all acts and 
transactions under authority of the Tribal alcoholic beverage license 
or permit in conformity with this Ordinance and the terms of the Tribal 
license or permit.
    (f) The licensee or permittee shall sell Alcoholic Beverages only 
for the personal use and consumption of the purchaser. Resale of any 
alcoholic beverage is prohibited.
    (g) The licensee or permittee shall not sell, serve, deliver, or 
give any person under the age of 21 Alcoholic Beverages in the licensed 
establishment or at a permitted event. A licensee or permittee shall 
not allow any person under the age of 21 to consume Alcoholic Beverages 
in the licensed establishment or permitted event. Where there may be a 
question of a person's right to purchase an Alcoholic Beverage by 
reason of his or her age, such person shall be required to present any 
one of the following cards of identification which shows his or her 
correct age and bears his or her signature and photograph:
    (1) A driver's license of any state or identification card issued 
by any state department of motor vehicles;
    (2) United States active duty military ID;
    (3) A passport; or
    (4) A Poarch Creek tribal identification card or other recognized 
tribal identification card.

Sec.  40-3-5 License Term

    A license shall be for a term of one year. License renewals are 
required each year.

Sec.  40-3-6 Permit Term

    A permit shall be for a term of no more than three (3) days.

Chapter IV--License and Permit Process

Sec.  40-4-1 Initial License

(a) Application
    An Applicant shall file an application for an initial alcoholic 
beverage license with the Public Safety Department. The initial 
application shall include, but not be limited to, the following 
information:
    (1) The name and address of the Applicant;
    (2) The description of the premises in which the Alcoholic 
Beverages are to be sold;
    (3) Certification that the Applicant's establishment is not located 
closer than 500 feet from any church or school;
    (4) Evidence that the Applicant is or will be duly licensed by the 
State of Alabama;
    (5) Agreement by the Applicant to accept and abide by all 
conditions of the tribal license; and
    (6) Agreement by the Applicant to:
    (i) Post notice in a prominent, noticeable place on the premises 
where Alcoholic Beverages are to be sold for at least 30 days prior to 
consideration by Tribal Council for licensure, and
    (ii) Publish notice at least twice in a local newspaper serving the 
community that may be affected by the license.
    The notices shall state the date, time and place when the 
application shall be considered by the Tribal Council.
(b) Public Hearing
    (1) If a complete application and all required documentation are 
received, the Public Safety Department shall schedule a public hearing 
before the Tribal Council.
    (2) The Applicant shall provide notice of the public hearing by:
    (i) Posting notice in a prominent, noticeable place on the premises 
where Alcoholic Beverages are to be sold for at least 30 days prior to 
consideration by Tribal Council, and
    (ii) Publishing notice at least twice in a local newspaper serving 
the community that may be affected by the license.
    The public hearing notice shall state the date, time, and place 
when the application shall be considered by the Tribal Council.
    (3) The Applicant and any person(s) supporting or opposing the 
application shall have the right to be present and to offer sworn oral 
or documentary evidence relevant to the application.
(c) Disposition of Application
    After the hearing, the Tribal Council shall determine whether to 
grant or deny the application, based on whether the Council, in its 
discretion, determines that granting the license is in the best 
interests of the Tribe. The decision of the Tribal Council shall be 
final and not subject to appeal.

Sec.  40-4-2 Renewal License

Application
    Renewals applications shall be submitted each year no later than 
sixty (60) days prior to the expiration of the current license. The 
renewal application shall include, but not be limited to, the following 
information:
    (1) Name and address of the Applicant;
    (2) Description of the premises in which the Alcoholic Beverages is 
sold, if there has been any changes since the last license application;
    (3) Certification that the Applicant's establishment is not located 
closer than 500 feet from any church or school;
    (4) Evidence that the Applicant is or will be duly licensed by the 
State of Alabama;
    (5) Agreement by the Applicant to accept and abide by all 
conditions of the Tribal license; and
    (6) Documentation of any violations which occurred during the past 
licensed year and corrective actions in place to remedy the situation.
(a) Disposition of Application
    After review of renewal application, the Public Safety Department 
shall determine whether to grant or deny the application based on the 
following:
    (1) Whether the Applicant is in current compliance with the 
requirements and conditions for licensing as set forth in Sec.  40-3-4;
    (2) Whether the Public Safety Department in its discretion 
determines that granting the renewal license is in the best interests 
of the Tribe; and
    (3) The decision of the Public Safety Department may be appealed in 
accordance with Chapter V herein.

Sec.  40-4-3 Permit

(a) Application
    An Applicant seeking to sell or serve Alcoholic Beverages for no 
more than three (3) days shall file an application

[[Page 39730]]

for a permit with the Public Safety Department. The application shall 
be filed no later than thirty (30) days prior to the event. The permit 
application shall include, but not be limited to, the following 
information:
    (1) The name and address of the Applicant;
    (2) The description of the premises in which the Alcoholic 
Beverages are to be sold;
    (3) Certification that the Applicant's establishment is not located 
closer than 500 feet from any church or school;
    (4) Evidence that the Applicant is or will be duly licensed by the 
State of Alabama; and
    (5) Agreement by the Applicant to accept and abide by all 
conditions of the Tribal license.
(b) Disposition of Application
    After review of a permit application, the Public Safety Department, 
in its discretion, shall determine whether it is in the best interests 
of the Tribe to grant or deny the application. The decision of the 
Public Safety Department may be appealed in accordance with Chapter V 
herein.

Chapter V--Appeals and Enforcement

Sec.  40-5-1 Civil Violations; Sanctions and Penalties

    (a) Any licensee or permittee who violates any of the provisions in 
this Ordinance or any rules and regulations promulgated under this 
Ordinance is subject to the imposition of civil penalties for such 
violation.
    (b) To the fullest extent permitted by law, the Tribal Court shall 
have jurisdiction over any action brought by the Public Safety 
Department to enforce any and all penalties and/or sanctions provided 
for within this Ordinance.
    (c) Based on the severity of the civil violation, the Public Safety 
Department shall determine what sanctions and/or penalties are 
warranted, including, but not limited to, the following:
    (1) Suspension, restriction, or revocation of a license or permit;
    (2) Issuance of a Notice of Violation and a corrective action plan;
    (3) Issuance of a civil fine not to exceed $500 per violation;
    (4) Initiation of an action in Tribal Court for appropriate 
injunctive relief if any alleged violation of the Ordinance or of the 
terms of any license or permit poses a threat to public health, safety 
or welfare; and
    (5) Any other sanctions and/or penalties the Public Safety 
Department deems necessary to carry out the purposes of this Ordinance; 
however, the sanction and/or penalty may not violate any applicable 
laws.
    (d) Any civil penalties issued under this Ordinance are in addition 
to, and do not supersede or limit any other remedies which may be 
available to the Tribe, including the filing of any action for 
injunctive relief in Tribal Court, or the filing of a criminal action 
in any court of competent jurisdiction.

Sec.  40-5-2 Appeals and Hearings

    (a) Any action or decision taken by the Public Safety Department 
may be appealed by filing a written notice of appeal with the Tribal 
Chairman no later than fourteen (14) days after the appellant receives 
the written notice of the Public Safety Department's action or 
decision. The written notice of appeal shall include:
    (1) A copy of the final decision; and
    (2) The specific grounds for the appeal.
    (b) All hearings shall be conducted by rules and regulations 
established in accordance with Tribal law.
    (c) The appellant shall have the burden of proving by clear and 
convincing evidence that the Public Safety Department acted 
arbitrarily, unreasonably, or contrary to tribal law.
    (d) The Tribal Council shall have thirty (30) days from the date of 
the hearing to issue a written decision to the Appellant.
    (e) The decision of the Tribal Council shall be final and not 
subject to further appeal.

Sec.  40-5-3 Criminal Violations

    Violations of the Alcoholic Beverage Control Ordinance by any 
person subject to the criminal jurisdiction of the Tribe may be 
prosecuted under the Poarch Band of Creek Indians Criminal Code (Title 
8).
    Be it further ordained that the Tribal Council hereby adds the 
following provision to the Criminal Code as subsection (a) of Sec.  8-
7-1 and all other subsections in Sec.  8-7-1 shall be renumbered 
accordingly:
    (a) Alcoholic Beverages. Alcoholic Beverages shall mean any 
alcoholic, spirituous, vinous, fermented or other alcoholic beverage, 
or combination of liquors and mixed liquor, a part of which is 
spirituous, vinous, fermented or otherwise alcoholic, and all drinks or 
drinkable liquids, preparations or mixtures intended for beverage 
purposes, which contain one-half of one percent or more of alcohol by 
volume, and shall include liquor, beer, and wine, both fortified and 
table wine.
    Be it further ordained that the Tribal Council hereby amends Sec.  
8-7-5 of the Criminal Code as follows:

Sec.  8-7-5 Unlawful Possession of Alcoholic Beverages

    (a) A person commits the crime of unlawful possession of alcoholic 
beverages if:
    (1) A person possess, sells, trades, transports, manufactures, or 
distributes any Alcoholic Beverage, except as provided in the Poarch 
Band of Creek Indians Alcoholic Beverage Control Ordinance; or
    (2) A person purchases or buys Alcoholic Beverages from any person 
or entity does not have a license or permit as required by the 
Alcoholic Beverage Control Ordinance.
    (b) Unlawful possession of alcoholic beverages except as provided 
in the Poarch Band of Creek Indians Alcoholic Beverage Control 
Ordinance is a Class B Misdemeanor.
    Be it further ordained that the Tribal Council hereby enacts Sec.  
8-7-6 through Sec.  8-7-8 of the Criminal Code as follows:

Sec.  8-7-6 Furnishing Alcoholic Beverages to Minors

    (a) A person commits the crime of furnishing alcoholic beverages to 
minors if the person:
    (1) Sells, delivers, furnishes, or gives away Alcoholic Beverages 
to any person under the age of 21, or permits any person under the age 
of 21 to drink, consume, or possess any Alcoholic Beverages; or
    (2) Transfers in any manner an identification of age to a minor for 
the purpose of permitting such minor to obtain any Alcoholic Beverage.
    (b) Furnishing alcoholic beverages to minors is a Class C 
Misdemeanor.

Sec.  8-7-7 Possession of Alcoholic Beverages by Minors

    (a) Notwithstanding the provisions of Section 8-7-5, a person 
commits the crime of possession of alcoholic beverages by minors if the 
person:
    (1) Purchases, acquires, consumes, possesses, or transports any 
Alcoholic Beverages within the Indian Country under the jurisdiction of 
the Tribe while under the age of 21; or
    (2) Knowingly uses or attempts to use a false, forged, or deceptive 
driver's license to obtain or attempt to obtain Alcoholic Beverages.
    Provided, however, it shall not be unlawful for a person under the 
age of 21 who is an employee of an off-premises retail licensee to 
handle, transport, or sell any Alcoholic Beverage if the person is 
acting within the line and scope of his or her employment. There must 
be an adult employee of the licensee present at all times a licensed 
establishment is open for business.

[[Page 39731]]

    (b) Unlawful possession of alcoholic beverages is a Class C 
Misdemeanor.

Sec.  8-7-8 Fraudulent Submissions in Connection With a License or 
Permit

    (a) A person commits the crime of fraudulent submissions in 
connection with a license or permit if the person makes, provides, or 
swears to any false or fraudulent statement, contention, or 
documentation in connection with an application for an alcoholic 
beverage license or permit under the Poarch Band of Creek Indians 
Alcoholic Beverage Control Ordinance.
    (b) Fraudulent submissions in connection with a license or permit 
shall be considered a Class C Misdemeanor.

[FR Doc. 2012-16383 Filed 7-3-12; 8:45 am]
BILLING CODE 4310-4J-P