[Federal Register Volume 68, Number 28 (Tuesday, February 11, 2003)]
[Notices]
[Pages 6935-6938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-3385]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Jicarilla Apache Liquor Control Ordinance

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: This notice publishes the Jicarilla Apache Liquor Control 
Ordinance. It repeals and replaces all previous tribal enactments 
pertaining to the regulation of liquor on the Jicarilla Apache 
Reservation. The Ordinance regulates the control, possession and sale 
of liquor on the Jicarilla Apache Tribe trust lands, to be in 
conformity with the laws of the State of New Mexico, where applicable 
and necessary. Although the Ordinance was adopted on September 10, 
2001, it does not become effective until published in the Federal 
Register, because the failure to comply with the ordinance may result 
in criminal charges.

EFFECTIVE DATE: This Ordinance is effective on February 11, 2003.

FOR FURTHER INFORMATION CONTACT: Iris Drew, Office of Tribal Services, 
Branch of Tribal Relations, 1951 Constitution Avenue, NW, MS 320-SIB, 
Washington, DC 20245; Telephone (202)513-7628.

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. 71 (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 Jicarilla Apache Tribe Liquor 
Control Ordinance, Resolution No. 2001-O-481-09, was duly adopted by 
the Jicarilla Apache Tribal Council, governing body of the Jicarilla 
Reservation, on September 10, 2001. The Jicarilla Apache Tribe, in 
furtherance of its economic and social goals, has taken positive steps 
to regulate retail sales of alcohol and use revenue to combat alcohol 
abuse and its debilitating effects among individuals and family members 
within the Jicarilla Apache Reservation.
    This notice is published in accordance with the authority delegated 
by the Secretary of the Interior to the Assistance Secretary--Indian 
Affairs by 209 Departmental Manual 8.1.
    I certify that by Resolution No. 2001-O-481-09, the Jicarilla 
Apache Liquor Control Ordinance was duly adopted by the Jicarilla 
Apache Tribal Council, governing body of the Jicarilla Apache Indian 
Reservation, on September 10, 2001.

    Dated: January 31, 2003.
Aurene M. Martin,
Assistant Secretary--Indian Affairs.
    The Jicarilla Apache Liquor Control Ordinance, Resolution No. 2001-
O-481-09, reads as follows:

Title 18, Chapter 4. Liquor Licensing

Sec.  1. Definitions.

    As used in this Chapter the following definitions shall apply:
    (a) Commission. The Jicarilla Apache Alcohol and Gaming Commission.
    (b) Intoxication or Intoxicated. A state in which a person's mental 
or physical functions are noticeably impaired as a result of the use of 
alcohol or drugs.
    (c) Licensed Premises. The area within a Liquor Establishment in 
which the Licensee is authorized to sell Liquor.
    (d) Licensee. Any person who owns a valid, current Tribal Liquor 
License or his or her valid agent or designee.
    (e) Liquor. Distilled or rectified spirits, potable alcohol, 
brandy, whisky, rum, gin, vodka, aromatic bitters, or any similar 
alcoholic beverage, including blended and fermented beverages, 
dilutions or mixtures of one or more of the foregoing, containing more 
than one-half of one percent alcohol, but excluding medicinal bitters. 
Liquor also includes beer, or any other alcoholic beverage created by 
the fermentation of any infusion or decoction of barley, malt and hops 
or other cereals in water, and includes porter, beer, ale, and wine, 
which means alcoholic beverages obtained by the fermentation of natural 
sugar contained in fruit or other agricultural products, with or 
without the addition of sugar or other products, which do not contain 
less than one-half of one percent alcohol by volume.
    (f) Liquor Establishment. A location licensed by the Jicarilla 
Apache Alcohol and Gaming Commission to serve or sell liquor, including 
the grounds and parking lot of such location.
    (g) Liquor Offenses Section. Title 7, Chapter 2, Section 12 of the 
Jicarilla Apache Tribal Code.
    (h) Minor. Any person under the age of twenty-one (21) years.
    (i) Package. Any unbroken, unopened container or receptacle used 
for holding liquor.
    (j) Public Place. Includes streets, plazas, highways, roads, 
stores, shopping centers and other businesses, government and other 
public buildings, schools, churches, public meeting halls, buses and 
bus depots, on the Reservation which are open to and generally used by 
the public, and the grounds thereof; it also includes parks and 
playgrounds and other open spaces on the Reservation which are open to 
and generally used by the public.
    (k) Purchase. Includes the exchange, barter, traffic, or receipt, 
with or without consideration, by any means whatsoever, of liquor.
    (l) Sale. Includes the exchange, barter, traffic, or donation with 
or without consideration, in addition to the selling, supplying, or 
distributing, by any means whatsoever, of liquor.
    (m) Tribal Entity. Any entity owned by the Jicarilla Apache Tribe 
or Nation.
    (n) Tribal Lands. All land within the exterior boundaries of the 
Jicarilla Apache Reservation, all lands held in trust by the United 
States for the Jicarilla Apache Tribe and all lands held by the 
Jicarilla Apache Tribe or Nation subject to a restriction against 
alienation imposed by the United States.
    (o) Tribal Liquor License. A license granted by the Jicarilla 
Apache Alcohol and Gaming Commission in accordance with the provisions 
of this Chapter to distribute liquor at a liquor establishment.
    (p) Tribal Subdivision. Any political subdivision or department of 
the Jicarilla Apache Tribe or Nation.

Sec.  2. Applicability.

    This Chapter shall apply to all persons engaging or seeking to 
engage in the purchase or sale of liquor on tribal lands; provided, 
however, that nothing in this Chapter shall apply to:
    (a) Liquor used for scientific research or for manufacturing 
products other than liquor;
    (b) Liquor used for medical purposes under the direction of a 
physician or a hospital, or a mental health, health care, or dental 
clinic;
    (c) Liquor contained in preparations not fit for human consumption 
such as cleaning compounds; and
    (d) Liquor for sacramental use under a religion recognized as valid 
by the

[[Page 6936]]

Commission. Denial of recognition of a religion by the Commission shall 
be subject to immediate review by the Tribal Council.

Sec.  3. Jicarilla Apache Alcohol and Gaming Commission.

    The Commission shall succeed to all the powers any duties of the 
Jicarilla Apache Gaming Board created by ordinance 94-O-384-3. Two of 
the members of the Commission shall serve on a part-time basis and one 
on a full-time basis. Each member shall serve for a term of three years 
commencing on the date of appointment; provided that the initial 
Commission appointed after adoption of this ordinance shall consist of 
a full-time member with a four-year term, one part-time member with a 
two-year term and one part-time member with a three-year term. The 
President shall appoint one Commission member to serve as Chairman.
    In addition to the restrictions set forth in Title 18, Chapter 5, 
Section 7(e), no person may serve on the Commission if he or she:
    (1) Has within five (5) years been convicted of a liquor-related 
misdemeanor; or
    (2) Has any direct financial interest in, or is a manager of, any 
liquor establishment. A tribal member will not be disqualified from 
serving on the Commission on the basis of the Tribe's ownership of a 
liquor establishment.
    In addition to the powers and duties under Title 18, Chapter 5, 
Section 7(f), the Commission shall be empowered to:
    (1) Review applications for a tribal liquor license and either 
grant a tribal liquor license or deny the application;
    (2) Conduct, or cause to be conducted, a background investigation 
of any person having or seeking to have an ownership interest in, or 
who is or is seeking to be a manager of, a liquor establishment;
    (3) Inspect, on its own initiative or in response to an affidavit 
based on a reasonable, good faith belief that a violation may have 
occurred, on its own or in collaboration with the tribal police, 
alleged violations by licensees of this Chapter;
    (4) Conduct, on its own initiative or in response to a complaint, 
hearings on alleged violations by licensees of this Chapter. The 
Commission may issue subpoenas and compel any licensee, or his agent or 
servant, to appear before it and to provide any information or 
documents it requires. The Commission may order any licensee to take 
any appropriate action it deems necessary to comply with this Chapter;
    (5) Bring, in the name of the Tribe, any civil action in tribal 
court or in any court of competent jurisdiction of any state or the 
United States to enforce the provisions of this Chapter or to enjoin or 
otherwise prevent any violation of this Chapter. The Commission may 
also refer suspected criminal violations of this Chapter to the 
appropriate governmental authority for investigation and prosecution;
    (6) Adopt an annual operating budget which shall be subject to the 
approval of the Tribal Council and, in accordance with this budget, 
employ a staff as it deems necessary to fulfill its responsibilities 
under this Chapter. The Commission shall submit an annual report of the 
revenues it receives to the Tribal Council; such revenues shall be used 
to fund the operations of the Commission;
    (7) Promulgate and adopt regulations, subject to approval by the 
Tribal Council, to assist in the implementation of this Chapter and to 
govern the purchase and sale of liquor on tribal lands; and
    (8) Require payment of reasonable fees associated with licensing a 
liquor establishment additional to those set forth in this Chapter.

Sec.  4. Licensing.

    (a) General Qualifications for License; Standards for Evaluating A 
License Application.
    (1) Applicants. If the applicant for a tribal liquor license is an 
individual person, the person must be an enrolled member of the 
Jicarilla Apache Tribe who has not been convicted of a liquor-related 
misdemeanor within the last five (5) years or a felony, and who is at 
least twenty-one (21) years of age. If the applicant is a corporation, 
partnership, or other business entity, majority ownership and control 
of the entity must be held by the Jicarilla Apache Tribe, tribal 
entities, tribal subdivisions and enrolled members of the Tribe; and 
the manager of the proposed licensed premises must be a person who has 
not been convicted of a liquor-related misdemeanor within the last five 
(5) years or a felony, and who is at least twenty-one (21) years of 
age. For purposes of this section, majority ownership and control means 
the right to 51 percent or more of the profits and losses of the entity 
and the power to direct the management, policy and operations of the 
entity. No person may own or control ten percent (10%) or more of an 
entity holding a Tribal Liquor License if that person has been 
convicted of a liquor-related misdemeanor within the last five (5) 
years or a felony, or is less than twenty-one (21) years of age.
    (2) Evaluation of Application. The Commission shall issue a Tribal 
liquor license only if the qualifications set forth in this Chapter are 
satisfied and, in addition, if the Commission concludes within its 
discretion that issuing the license will serve the best interests of 
the Reservation community and the regulatory goals of this Chapter. The 
Commission shall not issue a tribal liquor license if the Commission 
determines that:
    (A) The proposed activity is likely to undermine economic 
development on the Reservation;
    (B) The proposed activity is likely to impose undue burdens on 
public safety;
    (C) The applicant has failed to demonstrate financial capability to 
meet all obligations of this Chapter, or
    (D) The applicant has failed to identify adequate procedures to 
prevent violations of this Chapter on the proposed licensed premises.
    (3) Factors to be Considered by Commission. In deciding whether a 
proposed license will serve the best interests of the Reservation 
community, the Commission may consider the following factors, among 
others:
    (A) Whether the application is for the operation of a new or an 
existing Liquor Establishment;
    (B) Whether the applicant is in compliance with applicable tribal 
and federal law;
    (C) Whether the applicant has violated any provision of this 
Chapter, and if so, whether the violation has been remedied;
    (D) The location, number and density of liquor establishments on 
the Reservation;
    (E) Whether food is sold at the establishment; and
    (F) The health and welfare of the public.
    (4) Public Comments. Before the issuance of any Tribal liquor 
license, the Commission shall allow comments from the public at a time 
and place advertised in a local newspaper of general circulation.
    (5) Location of Licensed Premises. The Commission shall not grant a 
Tribal liquor license to any proposed liquor establishment which is 
located within 400 feet of the property boundary of a church or school. 
The Commission may designate other areas that are similarly to be 
protected.
    (b) Specific License Application Requirements.
    In order to apply for a Tribal liquor license, an applicant must:
    (1) Submit to the Commission a written application for the license 
under oath, on a form prescribed by and stating the information 
required by the

[[Page 6937]]

Commission, together with a nonrefundable application fee of five 
hundred dollars ($500);
    (2) Submit to the Commission for its approval floor plans which 
show the proposed licensed premises for which the license application 
is submitted;
    (3) Submit to the Commission an area map designating the location 
of the proposed licensed premises; and
    (4) Submit such additional information as the Commission may 
require.
    (c) Fingerprints.
    If required by the Commission, a non-tribal applicant for a Tribal 
liquor license, if an individual, shall file with the application two 
complete sets of the applicant's fingerprints taken under the 
supervision of and certified to by an officer of the tribal police or a 
state, county or municipal police department. If the applicant is a 
corporation, it shall, upon request by the Commission, file two 
complete sets of fingerprints of each principal officer, and of the 
agent responsible for the operation of the licensed business and the 
receipt of service. If the applicant is a limited partnership, it 
shall, upon request by the Commission, submit two complete sets of 
fingerprints of each general partner, and of the agent responsible for 
the operation of the licensed business and the receipt of service. If 
the applicant is a limited liability company or other business entity, 
it shall, upon request by the Commission, submit fingerprints as 
required by the Commission. The Commission may issue a temporary 
license pending resolution of the background clearances, subject to 
revocation by the Commission at any time, with or without cause.
    (d) Classes of License; Special Restrictions on License.
    The Commission is authorized to establish by regulation various 
classes of tribal liquor licenses and to specify the activities 
authorized by each class, including but not limited to licenses for 
restaurants, bars, package sales, home brewing, and special events. 
When the Commission grants a tribal liquor license, it may grant such 
license with any special restrictions, such as restrictions on type of 
liquor served or hours of operation, as it deems appropriate. The 
Commission shall explain in writing the reasons for imposing any 
special restrictions on a license. A licensee may appeal the imposition 
of any special restrictions to the Tribal Council as provided in 
Section 10 of this Chapter.
    (e) Commission Action on Application.
    After reviewing the complete application, the Commission shall send 
the applicant a proposed decision on the application. The applicant 
shall have twenty (20) working days to respond in writing to the 
proposed decision, and may request a hearing before the Commission. The 
Commission may conduct a hearing on any application on its own 
initiative, with notice to the applicant. Following any hearing on the 
application and the expiration of the time allowed for a written 
response to the proposed decision, the Commission shall issue a final 
written decision. The written decision shall include findings of fact 
and an explanation of the grounds for the decision.
    (f) Annual Renewal of License.
    Each person or entity holding a tribal liquor license shall apply 
to renew that license annually on a form provided by the Commission 
with a nonrefundable renewal fee in an amount set by regulation of the 
Commission. The Commission may decline to renew a tribal liquor license 
only for good cause, such as repeated and intentional violation of any 
of the provisions of this Chapter, or failure to submit in a timely 
manner the renewal application and the renewal fee. The Commission may 
renew a tribal liquor license with special restrictions in addition to 
any imposed on the expired license. Denial of an application to renew a 
tribal liquor license or the imposition of special restrictions shall 
be appealable under Section 10 of this Chapter.
    (g) Amendments of Applicable Law.
    All tribal liquor licenses are subject to any amendment of the 
tribal code or regulations of the Commission which may be adopted or 
made effective after the license is approved.

Sec.  5. Transfer or Lease of Tribal Liquor License.

    No tribal liquor license shall be transferred or leased other than 
with approval of the Commission through the procedure set forth in 
Section 4 of this Chapter.

Sec.  6. Reporting.

    Every licensee shall keep, in current and available form on the 
licensed premises, records of all purchases, sales, quantities on hand 
and such other information as the Commission may reasonably require, 
including but not limited to, copies of audits, tax returns, and any 
forms that the Commission may require to be filled out. The Commission 
may require a licensee to provide it with periodic reports, and it may 
require the production of any book, record, document, invoice, or 
voucher kept, maintained, received, or issued by any such licensee in 
connection with his or her business. If a licensee fails or refuses to 
furnish within a reasonable period of time any reports or information 
requested by the Commission, the Commission or its designee may enter 
the premises of such licensee where the records are kept and make such 
examination as it deems necessary.
    A licensee who is convicted of a violation of the Liquor Offenses 
Section shall, within two (2) working days of such conviction, report 
the conviction to the Commission. In addition to any other civil 
assessment imposed under tribal law, there shall be an assessment of 
$100 for each day a licensee is late in reporting this information to 
the Commission.

Sec.  7. Violation of Liquor Offenses Section.

    Any violation of the Liquor Offenses Section by a licensee is a 
violation of this Chapter.

Sec.  8. Restrictions on Liquor Sales.

    (a) Sales Only by Holders of Tribal Liquor License and Only at 
Licensed Premises; Exception.
    No sale of liquor shall be made within tribal lands except by 
persons holding a tribal liquor license and except at licensed 
premises; provided, however, that nothing in this Chapter shall 
prohibit social gifts of liquor to someone who would not otherwise be 
prevented from obtaining liquor under this Chapter or other applicable 
law. The Commission may issue a special use permit to enrolled tribal 
members authorizing specific sales of liquor for specific time periods 
not to exceed one (1) week, on terms to be established by its 
regulations.
    (b) Hours and Days of Business; Election Days.
    (1) Liquor may be sold, served, or consumed on any licensed 
premises only during hours authorized by the Commission. The Commission 
shall set hours of operation for each liquor establishment 
individually, subject to appeal under Section 10 of this Chapter to the 
Tribal Council.
    (2) Alcoholic beverages shall not be sold, served, or consumed on 
licensed premises during voting hours on the days of any tribal, state, 
or federal election.
    (3) The Tribal Council may prohibit the purchase, sale, or 
consumption of liquor during days and hours in addition to those set 
forth in this Section.
    (4) Nothing in this Section 8(b) shall prohibit, or authorize the 
prohibition of, the consumption at any time of liquor in guest rooms of 
hotels or by people in

[[Page 6938]]

their own homes, or by people who are guests in the home of another.
    (c) Sales to be Made by Adults.
    All sales of liquor pursuant to this Chapter shall be made by 
persons twenty-one (21) years of age or older.
    (d) Evidence of Age and Identity.
    Evidence of age and identity of a purchaser of liquor must be shown 
by a current and valid driver's license or a United States passport, 
which contains the signature, birth date, and picture of the holder of 
the license or passport, or any other form of identification acceptable 
to the Commission.
    (e) Demand for Identification.
    Liquor establishments shall have the authority to demand of any 
person the production of proper evidence of age and identity before 
making a sale of liquor to such person.
    (f) Right/Duty to Refuse Sale.
    A liquor establishment shall have the authority and duty to refuse 
to sell liquor to any person who is unable to produce proper evidence 
of age and identity as prescribed by this Section, any person who the 
seller believes is already under the influence of liquor, or to anyone 
else if the seller reasonably believes that the transaction would lead 
to a violation of this Chapter. The operator of a liquor establishment 
shall have the authority to require that a person who the operator 
reasonably believes is already under the influence of liquor vacate the 
licensed premises.
    (g) Wholesale Liquor Distributors.
    A person holding a valid tribal liquor license may purchase liquor 
from any wholesale liquor distributor validly licensed in the 
jurisdiction of its principal place of business. Wholesale liquor 
distributors are expressly prohibited from selling liquor within tribal 
lands or for distribution within tribal lands to anyone not holding a 
tribal liquor license, subject to the exception set forth in Section 
8(a) of this Chapter.
    (h) Sales Only to Be Made by Certified Servers; Alcohol Server 
Training Required for License Renewal.
    All sales of liquor authorized by this Chapter shall be made by 
persons who have successfully completed a liquor server training 
program approved by the Commission and are certified as having 
completed the course by the Commission or the entity that provides the 
training program. Any licensee seeking renewal of a license shall 
submit to the Commission, as a condition of license renewal, proof that 
each server employed by the licensee during the prior licensing year 
has completed an alcohol server program approved by the Commission.
    (i) Happy Hours.
    The Commission may adopt a policy on happy hours and on pricing 
schemes where liquor is sold on certain occasions or at certain times 
for a price that is substantially lower than the price it is sold for 
at other times. The Commission may at any time request from a liquor 
establishment a written description of its policies on such happy hours 
and pricing schemes and either approve or disapprove such policies. 
Disapproval of such a policy shall be appealable to the Tribal Council 
under the procedure set forth in Section 10 of this Chapter.

Sec.  9. Suspension or Revocation of Liquor License; Special 
Restrictions; Monetary Sanctions.

    The Commission is authorized to revoke or suspend a tribal liquor 
license or to impose special restrictions on a license for a violation 
or violations of any provision of this Chapter, after the licensee is 
given at least seven (7) calendar days notice of the proposed action 
and the opportunity to appear and to be heard before the Commission, 
either in person or through a representative, and to submit such 
evidence as the Commission deems relevant to the matter at issue. Such 
suspensions, revocations, and imposition of special restrictions are 
appealable to the Tribal Council under Section 10 of this Chapter. In 
addition to any civil assessment provided by tribal law, the Commission 
may initiate an action in Tribal Court for the imposition of monetary 
sanctions against a Licensee for a violation of this Chapter, to 
compensate the Tribe for economic losses it suffers, directly or 
indirectly, as a result of the violation.

Sec.  10. Appeal to Tribal Council.

    (a) Appealable Actions. Any person or entity who is denied a tribal 
liquor license, or whose tribal liquor license is suspended or revoked, 
or whose tribal liquor license has been limited by special restrictions 
may appeal the adverse action to the Tribal Council within thirty (30) 
days of final action by the Commission.
    (b) Record on Appeal. The record on appeal shall consist of the 
final written decision of the Commission, all evidence presented to or 
relied on by the Commission, a taped or transcribed record of any 
hearing, and any other records of the Commission or any other 
information requested by the Tribal Council.
    (c) Stay Pending Appeal. Suspension or revocation of a tribal 
liquor license may be stayed pending an appeal under this Section, at 
the discretion of the Tribal Council. The Tribal Council may request 
that the appellant post an appeal bond in an amount set by the Council.
    (d) Decision of Council Final. All decisions of the Tribal Council 
on appeals under this section shall be final.

Sec.  11. Private Right of Action.

    Subject to the limitations of Section 12 of this Chapter, any 
person who suffers personal injury or property damage as a result of a 
violation of Section 7 or Section 8 of this Chapter shall have a right 
of action for money damages against the person or entity whose 
violation of Section 7 or Section 8 of this Chapter caused or 
contributed to his or her injury.

Sec.  12. No Waiver of Sovereign Immunity.

    Nothing in this Chapter is intended to be or shall be construed as 
authorizing any waiver of the sovereign immunity of the Jicarilla 
Apache Tribe or any of its subdivisions or of any business entity owned 
in whole or in part by the Tribe.

Sec.  13. Severability.

    If any provision of this Ordinance is found to be invalid or 
unenforceable, all remaining provisions shall be given full force and 
effect the fullest extent practicable.

[FR Doc. 03-3385 Filed 2-10-03; 8:45 am]
BILLING CODE 4310-4J-P