E9-7261. Alcoholic Beverage Control Ordinance, Salt River Pima-Maricopa Indian Community

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes an amendment to the Salt River Pima-Maricopa Indian Community's Code of Ordinances, Chapter 14, Articles I and II. This amended Code of Ordinances was last published on May 8, 1998 (63 FR 25516). Chapter 14 of the Code regulates and controls the possession, sale and consumption of liquor within the Salt River Pima-Maricopa Indian Community's trust lands specified in Attachment A of Article II. The Code allows for the possession and sale of alcoholic beverages within Salt River Pima-Maricopa Indian Community trust lands. This Code will increase the ability of the tribal government to control the distribution and possession of liquor within its reservation and at the same time will provide an important source of revenue and strengthening of the tribal government and the delivery of tribal services.

DATES:

Effective Date: This Code is effective as of May 1, 2009.

FOR FURTHER INFORMATION CONTACT:

Jim Steele, Tribal Relations Specialist, Western Regional Office, Bureau of Indian Affairs, 400 N. 5th Street, Two Arizona Center, 12th Floor, Phoenix, Arizona 85001; Telephone [phone]; Fax [phone]; or Elizabeth Colliflower, Office of Tribal Services, 1849 C Street, NW., Mail Stop 4513-MIB, Washington, DC 20240; Telephone [phone]; Fax [phone].

SUPPLEMENTARY INFORMATION:

Pursuant to the Act of August 15, 1953; Public Law 83-277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in Rice v. Rehner, 463 U.S. 713 (1983), the Secretary of the Interior shall certify and publish in the Federal Register notice of adopted or amended liquor ordinances for the purpose of regulating liquor transactions in Indian country. The Salt River Pima-Maricopa Indian Community's Community Council adopted this amendment to the Salt River Pima-Maricopa Indian Community's Code of Ordinances, Chapter 14, Articles 1 and 2, by Ordinance No. SRO-334-08 on June 4, 2008.

This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs. I certify that the Salt River Pima-Maricopa Indian Community Council duly adopted this amendment to the Alcoholic Beverage Control Ordinance on June 4, 2008.

Dated: March 18, 2009.

George T. Skibine,

Deputy Assistant Secretary for Policy and Economic Development.

The amendment to Salt River Pima-Maricopa Indian Community's Code of Ordinances, Chapter 14, Articles 1 and 2, reads as follows:

Salt River Pima-Maricopa

Indian Community

Ordinance Number: SRO-334-08.

To repeal Articles I & II Of Chapter 14 of the Salt River Pima-Maricopa Indian Community Code Of Ordinaces in its entirety and adopt revised Articles I & Ii, to update and provide necessary clarifications to the regulated possession, consumption and sales of alcoholic beverages within the community.

Be it enacted that:

Chapter 14, Article I and II of the Salt River Pima-Maricopa Indian Community Code of Ordinances is repealed in its entirety and revised Articles I and II, Chapter 14 are hereby enacted:

Article I. In General

Sec. 14-1. Violation of chapter.

A person who violates any provision of Chapter 14 of the Code shall be deemed guilty of an offense, and, upon conviction thereof, shall be sentenced to imprisonment for a period not to exceed six (6) months or to a fine not to exceed five thousand dollars ($5,000.00) or both such imprisonment and fine, with costs. (Ord. No. SRO-31-74, 5-29-74; Code 1976, § 14-11-14-16.)

Secs. 14-2-14-09. Reserved.

Article II. Alcoholic Beverage Control

Sec. 14-10. Sovereign Immunity.

Nothing in this Article is intended or shall be construed as a waiver of the sovereign immunity of the Salt River Pima-Maricopa Indian Community.

Sec. 14-11. Title; authority; purpose; etc.

(a) Title. This article shall be known as the Salt River Pima-Maricopa Indian Community Alcoholic Beverage Control Ordinance.

(b)

Authority. This article is enacted pursuant to the Act of August 15, 1953 (Pub. L. 83-277, 67 State. 588, 18 U.S.C. 1161) and Article VII of the Salt River Pima-Maricopa Indian Community Constitution.

(c) Purpose. The purpose of this article is to regulate and control the possession, consumption, and sale of liquor on the Salt River Pima-Maricopa Indian Community. The enactment of an ordinance governing liquor possession and sale on the reservation will increase the ability of the Community government to control reservation liquor distribution and possession, and at the same time will provide an important source of revenue for the continued operation and strengthening of the Community government and the delivery of Community government services.

(d) Application of 18 U.S.C. 1161. All acts and transactions under this article shall be in conformity with this article and in conformity with the laws of the State of Arizona, to the extent required by 18 U.S.C. 1161.

(e) Effective date. This article shall be effective as a matter of Community law upon approval by the Community Council and effective as a matter of Federal law when the Assistant Secretary of Indian Affairs certifies and published this Article in the Federal Register.

Sec. 14-12. Scope.

Except for articles I, II and III of Chapter 14 of the Code of Ordinances of the Salt River Pima-Maricopa Indian Community, this article constitutes the entire statutory law of the Community in regard to the sale and/or distribution of alcoholic beverages within the Community.

Sec. 14-13. Definitions.

In this article, unless the context otherwise requires:

Alcoholic beverage means beer, wine or other spirituous liquor. Beer, wine or other spirituous liquor used solely for the purpose of cooking is excluded from this definition.

Applicant means any partnership, corporation, limited liability company as well as any natural person that is or are requesting approval of a Community liquor license.

Community means the Salt River Pima-Maricopa Indian Community.

License means a license issued pursuant to the provisions of this article.

Licensed premises or premises means a place from which a licensee is authorized to sell alcoholic beverages under the provisions of this article.

Licensee means any partnership, corporation or limited liability company, as well as any natural person who has been authorized to sell alcoholic beverages for consumption at a particular premises by the Salt River Pima-Maricopa Indian Community.

Minibar means a closed container, either refrigerated in whole or in part or non-refrigerated, where access to the interior is restricted by means of a locking device which requires the use of a key, magnetic card or similar device.

Office means the alcohol beverage control office or persons within the Community Regulatory Agency that regulate alcohol and/or liquor sales and distribution transactions within the Community as created in Section 14-16(a) of this ordinance.

Person means any partnership, corporation or limited liability company, as well as any natural person.

Possess means to have any item or substance within the control of a person or to have any alcoholic beverage within a person's body, regardless of where the consumption may have taken place.

Public Patio Enclosure means a contiguous patio or a patio that is not contiguous to the remainder of the licensed premises if the patio is separated from the remainder of the premises or licensed premises by a public or private walkway or driveway not to exceed 30 feet, subject to the rules that the director may adopt to establish criteria for a noncontiguous premises.

Private residence means a place where an individual or a family maintains a habitation.

Public place means any place not a private residence, including within operational motor vehicles or non-residential structures, and not licensed for the possession of alcoholic beverages.

Sell, sold, buy means and shall include furnish, dispose of, give, receive or acquire.

Sec. 14-14. Unlawful acts.

(a) It shall be unlawful for any person to deal with alcoholic beverages in any manner not allowed by this article or the regulations adopted under this article.

(b) It shall be unlawful for a licensee or other person to give, sell or cause to be sold or otherwise distribute alcoholic beverages to a person under the age of twenty-one (21) years.

(c) It shall be unlawful to employ a person under the age of twenty-one (21) years in any capacity connected with the handling of alcoholic beverages.

(d) It shall be unlawful for a person under the age of twenty-one (21) years to buy, possess, or consume alcoholic beverages.

(e) It shall be unlawful for a licensee or an employee of a licensee to consume alcoholic beverages on or about the licensed premises during such periods such person is working at the licensed premises.

(f) It shall be unlawful for a licensee or any other person to sell alcoholic beverages to an intoxicated or disorderly person, or for a licensee or employee of a licensee to allow or permit an intoxicated or disorderly person to remain on the premises.

(g) It shall be unlawful for a licensee to sell alcoholic beverages in any manner not provided for by this article, the regulations issued pursuant to this article or the licensee's license.

(h) It shall be unlawful for any person over the age of eighteen (18) who lawfully exercises dominion and control within any private residence or the surrounding premises to knowingly permit any person under the age of twenty-one (21) to possess or consume alcoholic beverages within the private residence or the surrounding premises.

Sec. 14-15. Lawful commerce.

(a) Alcoholic beverages may be possessed and consumed only at private residences and licensed premises pursuant to this Chapter, and may be transported in unbroken containers to such places.

(b) Alcoholic beverages may be sold at licensed premises only under the conditions under which the license is issued.

(c) The Community may from time to time issue licenses for the sale of alcoholic beverages subject to the provisions of this article and the regulations adopted pursuant to this article.

Sec. 14-16. Office of alcohol beverage control, duties of director; issuance of license, revocation, hearings.

(a) Office. The office of alcohol beverage control (“Office”) is hereby established within the Community's Regulatory Agency. The director of the Office will be the alcohol beverage hearing officer who will be responsible to the Community manager and whose duties may be delegated from time to time to assistant hearing officers or other employees of the office. All of the positions of the Office will be filled and will be conducted in accordance with the Community's established policies and procedures.

(b) Regulations. The Community Council shall have the authority to issue such regulations, consistent with the provisions of this Article, that aid in the effective administration of the purpose and intent of this Article. The Community Council may issue regulations for the purpose of carrying out the provisions of this article, including the following:

(1) The establishment of a procedure for the application of a license, including the public hearings process;

(2) The providing of uniform standards or qualifications that all licensees must meet;

(3) Any and all information required by applicants for licenses, and for the verification of such information. Applicants shall include, in the case of a corporation, all shareholders of more than five (5) percent of the corporate stock and all officers and directors of the corporation; in the case of limited liability companies, all of its managing members; and, in the case of a partnership, all of the partners;

(4) The establishment of fees for the application, renewal application and annual license;

(5) The establishment of hours within which licensed premises may be open for business;

(6) The establishment of standards for operation of the licensed premises and for the audit of any records;

(7) The development of distinct classes of licenses for the sale of (i) all alcoholic beverages, (ii) only beer, (iii) only wine, or (iv) only beer and wine;

(8) The procedures for revocation and suspension of licenses; and

(9) Any necessary regulations that further the intent of this ordinance and provide for the limited and regulated sales of alcohol within the Community.

(c) Beverage restrictions. Licenses may only be issued for premises operated under the following classifications as defined herein; and such licenses may be restricted to the sale of (i) all alcoholic beverages, (ii) only beer, (iii) only wine, or (iv) only beer and wine.

(d) Designated area. Licenses may be issued for premises located only on land described on the designated area map attached to Ordinance No. SRO-301-05. This designated area map, identified as the “Liquor License Area Map” (see attachment A, incoporated herein by reference) shall be in the official records of the Community in the Office of the Council Secretary. Upon majority vote by the Community council and publication in the Community's newspaper, the Community council may amend the Liquor License Area Map.

(e) Premises which may be licensed. Licenses may only be issued for premises as defined in this subsection (e) or its subsections.

(1) Hotel-motel license.

a. The alcohol beverage hearing officer may issue a hotel-motel license to any hotel or motel that operates either a restaurant (as defined below) or a bar in the hotel or motel, provided that the applicant is otherwise qualified to hold a license.

b. The holder of a hotel-motel license is authorized to sell and serve alcoholic beverages solely for consumption on the licensed premises. For the purpose of this section “licensed premises” shall include all minibars located within guest rooms accommodations, public bar rooms, outdoor patio enclosures, outdoor pool areas, public restaurant rooms, facilities, areas, and private banquet or meeting rooms located within the hotel-motel premises or connected to the hotel-motel premises by a covered walkway or joined to the hotel-motel premises by a common roof line, all of which shall be deemed to be “in” the hotel-motel for purposes of this Chapter if and to the extent they are contained within the licensed premises as provided for in the applicable hotel-motel license. The licensed premises may include parcels that are leased pursuant to two or more separate leases.

c. “Restaurant” means an establishment which derives at least forty (40) percent of its gross revenue from the sale of food.

(2) Casino license.

a. The alcohol beverage hearing officer may issue a casino license to any casino authorized to operate as a casino by the Community.

b. The holder of a casino license is authorized to sell and serve alcoholic beverages solely for consumption on the licensed premises. For the purpose of this section, “licensed premises” shall include all public bar rooms, gaming areas, private banquet or meeting rooms, restaurants, other food service facilities, outdoor patio enclosures, and land contiguous to the casino facility.

(3) Golf course clubhouse license.

a. The alcohol beverage hearing officer may issue a golf course clubhouse license to any golf course clubhouse.

b. The holder of a golf course clubhouse license is authorized to sell and serve alcoholic beverages solely for consumption on the licensed premises and only to patrons of the golf course facility. For the purpose of this section, “licensed premises” shall include all restaurants and other food service facilities, private banquet or meeting rooms, bar rooms, outdoor patio enclosures, lounge facilities within the golf course clubhouse, and golf course enclosure. For purposes of this section a “golf course clubhouse” means a clubhouse located on a golf course. For purposes of this section a “golf course enclosure” means substantially undeveloped land, including amenities such as landscaping, irrigation systems, paths and golf greens and tees, that may be used for golfing or golfing practice by the public or by members and guests of a private club.

(4) Hotel-Motel Restaurant License.

a. The alcohol beverage hearing officer may issue a hotel-motel restaurant license to any restaurant located in a hotel-motel.

b. The hotel-motel restaurant shall be regularly open for the serving of food to guests for compensation and is an establishment which derives at least forty (40) percent of its gross revenue from the sale of food.

(f) Issuance of licenses, hearings.

(1) Applicant's Burden. Licenses will be issued by the director of the Office after a hearing and upon a determination by the alcohol beverage hearing officer that the following criteria has been met by a satisfactory showing by the applicant that:

a. The public convenience requires the issuance of the license; and

b. The best interests of the Community will be substantially served by the issuance of the license.

(2) Inappropriate Purpose. In order to prevent the proliferation of spirituous liquor licenses, the Office may deny a license to an applicant after determining that the applicant's business is inappropriate for the sale of spirituous liquor. An inappropropriate applicant or business is one that cannot clearly demonstrate that the sale of spirituous liquor is directly connected to its primary purpose and that the sale of liquor is not merely incidental to its primary purpose.

(3) Background Investigation. The Office shall do a criminal history background check qualification on any applicant for a license under this article.

(4) Public Hearing. The alcohol beverage hearing officer shall determine after a hearing has been held whether and under what conditions a license shall be issued.

a. The hearing shall be announced by notice in the Community newspaper.

b. Notice shall be given no less than ten (10) days prior to such hearing.

c. The hearing shall be conducted by the alcohol beverage hearing officer in an informal manner with rules adopted pursuant to this article calculated to assure full disclosure of all relevant information.

d. Professional attorneys shall not be permitted to represent parties at any such hearing or hearings on appeal.

e. The alcohol beverage hearing officer shall hear all relevant issues and, within thirty days (30) days after the hearing is concluded, shall issue a written decision.

f. The decision will contain the findings of fact relied on by the alcohol beverage hearing officer for the decision as well as the decision.

g. The findings of fact and decision shall be filed with the clerk of the Salt River Pima-Maricopa Indian Community Court and distributed by the Office within two (2) days after such filing to the applicant, any other person who files a notice of appearance with the alcohol beverage hearing officer before the hearing is adjourned, and the secretary of the Salt River Pima-Maricopa Indian Community.

(5) Appeals. A decision of the alcohol beverage hearing officer issued after the public hearing may be appealed to the Salt River Pima-Maricopa Indian Community Court by the applicant, the Community, or any Community member who has filed a notice of appearance. Appeals shall be taken from any decision of the alcohol beverage hearing officer in the following manner:

a. Notice of appeal. Written notice of appeal shall be given within ten (10) days after the day the written and executed decision by the alcoholic beverage hearing officer is filed with the clerk of the Salt River Pima-Maricopa Indian Community Court.

1. The notice of appeal shall state all the grounds for appeal relied on by the appellant.

2. The notice of appeal shall not be amended once it is filed.

3. The appellee may file a short written response to the grounds for appeal within ten (10) days after the notice of appeal is filed.

4. The notice of appeal and response shall be mailed to the opposing party on the day it is filed.

5. If the appellant is the applicant for the license, the appellee shall in all cases be the alcohol beverage hearing officer. If the appellant is a person who filed a notice of appearance or the Community, the appellee shall in all cases be the applicant.

6. In the event there is more than one notice of appeal filed, the appeals shall be consolidated by the clerk and only one response shall be filed to the consolidated appeals.

b. Costs. There shall be posted with the clerk of the Salt River Pima-Maricopa Indian Community Court a cash fee of twenty-five dollars ($25.00) to cover court costs.

c. Grounds for appeal. The court shall determine the appeal upon the findings of fact and decision entered in the case by the alcohol beverage hearing officer.

d. Findings of fact. The findings of fact shall be presumed to be without reversible error. The presumption may be overcome by a sworn written statement presented to the court at the time of the filing of the notice of appeal which establishes, on the basis of the statement, any one or more of the following grounds:

1. That a witness ready and willing to testify at the time of the hearing on behalf of the appellant was not allowed by the alcohol beverage hearing officer to take the witness stand and testify, and such testimony would have materially altered the decision of the alcohol beverage hearing officer.

2. That the alcohol beverage hearing officer refused to admit documentary or other physical evidence, and such evidence would have materially altered the decision of the alcohol beverage hearing officer.

3. That after the hearing, the appellant discovered material evidence which, with reasonable diligence, could not have been discovered and produced at the hearing, and such evidence would have materially altered the decision of the alcohol beverage hearing officer.

4. In the event the court finds the presumption is overcome pursuant to this subsection, the court shall remand the case back to the alcohol beverage hearing officer for the limited purpose of hearing only the excluded or new evidence and any evidence presented in rebuttal to such evidence.

5. The hearing will be held within ten (10) days after the order of the court has been filed and served upon the appellants and appellee.

6. At the conclusion of such remand hearing, the alcohol beverage hearing officer shall, within ten (10) days of the hearing, make and enter such amended findings of fact and decision as the alcohol beverage hearing officer determines that the evidence adduced at the remand hearing requires. If the alcohol beverage hearing officer determines that the prior findings of fact requires no amendment, the alcohol beverage hearing officer will issue a decision reaffirming its prior findings of fact and decision.

7. The findings of fact and decision will be transmitted to the court and such findings of fact and decision will not be subject to a separate appeal.

e. Decision by the Court. The court shall determine whether the decision is supported by the findings of fact and the law.

1. Any party to the case may request an opportunity to appear before the court prior to its decision to give the court such party's view of the case.

2. The other party or parties shall be given adequate notice of the hearing and an opportunity to present such party's or parties' view of the case. Such views shall be presented orally by the parties or their advocates and shall only deal with the grounds relied on by the appellant as set out in the notice of appeal.

3. The hearing shall be limited to one hour and the time will be equally divided between the appellant and the appellee.

4. If the court finds that the previous decision is incorrect, it shall issue a new decision correctly stating the decision. Such decision shall be final and not subject to rehearing, review or appeal.

(7) Authority of the Office.

a. Inspection of Premises. The office or the beverage control officer may, in enforcing the provisions of this Article, inspect the premises.

b. Records of application, permit and proceedings. A complete record of all applications, actions taken thereon, and any licenses issued shall be maintained by the Community and shall be open for public inspection at the office.

c. License Term. Licenses shall be issued for a period of one year and are renewable on application to the office which will renew upon payment of the renewal application fee and annual license fee.

d. Transfer of License. Licenses issued under this article are nontransferable without the prior written approval of the alcohol beverage hearing officer after the application process has been completed.

e. Citation. The office of alcohol beverage control or the Salt River Police Department may cite a licensee to appear before the alcohol beverage hearing officer for a revocation hearing upon allegations of violations under this Article.

f. Revocation or Suspension of License. Any license issued pursuant to this article may be revoked or suspended after a hearing before the alcohol beverage hearing officer upon a finding that the licensee is operating the premises in violation of this article, the regulations adopted pursuant to it, the laws of the Community, or pursuant to finding that that the license would not have been originally issued had the facts in evidence at the time of any revocation hearing had been known at the time of the application for a license.

14-16a. Miscellaneous.

a. Severability. If any provision of this Article shall be determined invalid or unenforceable by a court of competent jurisdiction, such determination shall not be held to invalidate or render unenforceable the remainder of this Article, and to this end, the provisions of this Article are severable.

b. Amendment. This Article may be amended by a majority vote of the SRPMIC Council or by the SRPMIC initiative or referendum process.