2011-9900. Alcoholic Beverage Control Ordinance of the Paiute Tribe of Utah

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes the Alcoholic Beverage Control Ordinance of the Paiute Tribe of Utah (Tribe). The Ordinance regulates and controls the manufacture, distribution, possession, sale, service and consumption of liquor on all lands within the exterior boundaries of the Tribe and its five (5) constituent Bands. This Ordinance will enhance the ability of the Tribe to control alcohol-related activities within the Tribe's jurisdiction, and at the same time it will provide an important source of revenue for the continued operation and strengthening of the tribal government and the delivery of tribal services.

DATES:

Effective Date: This Ordinance is effective on April 25, 2011.

FOR FURTHER INFORMATION CONTACT:

Sharlot Johnson, Tribal Government Services Officer, Western Regional Office, P.O. Box 10, Phoenix, Arizona 85001, Telephone [phone]; Fax [phone]; or Elizabeth Colliflower, Office of Tribal Services, 1849 C Street, NW., MS 4513-MIB, Washington, DC 20240; Telephone: [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 liquor ordinances for the purpose of regulating liquor transactions in Indian country. The Tribal Council of Paiute Indian Tribe of Utah adopted its Alcoholic Beverage Control Ordinance on June 1, 2010 and enacted Resolution No. 2010-19 on June 1, 2010, requesting certification and publication of the Ordinance in the Federal Register by the Secretary of the Interior. The purpose of this Ordinance is to govern the sale, possession and distribution of alcohol within all tribal lands of the Tribe.

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 this Alcoholic Beverage Control Ordinance was duly adopted by the Tribal Council of the Paiute Indian Tribe of Utah on June 1, 2010.

Dated: March 21, 2011.

Donald Laverdure,

Principal Deputy Assistant Secretary—Indian Affairs.

The Alcoholic Beverage Control Ordinance of the Paiute Indian Tribe of Utah reads as follows:

ALCOHOLIC BEVERAGE CONTROL ORDINANCE OF THE PAIUTE INDIAN TRIBE OF UTAH

SECTION 1. TITLE

This Ordinance shall be known as the Alcoholic Beverage Control Ordinance of the Paiute Indian Tribe of Utah.

SECTION 2. FINDINGS AND PURPOSE

A. The purpose of this Ordinance is to regulate and control the manufacture, distribution, possession, sale, service, and consumption of Alcoholic Beverages within all lands within the exterior boundaries of the Paiute Indian Tribe of Utah Reservation. The enactment of this Ordinance will enhance the ability of the Paiute Indian Tribe of Utah to control alcohol-related activities within the Tribe's jurisdiction, and at the same time will provide an important source of revenue for the continued operation and strengthening of tribal government and the delivery of governmental services.

B. The manufacture, distribution, possession, sale, service, and consumption of Alcoholic Beverages within the Paiute Indian Tribe of Utah Reservation are matters of significant concern and special interest to the Tribe.

C. Federal law currently prohibits the introduction of liquor in Indian country (18 U.S.C. § 1154), except as provided therein, leaving tribes the decision regarding when and to what extent liquor transactions, sales, possession and service shall be permitted on their reservation (18 U.S.C. § 1161).

D. This Ordinance is enacted pursuant to the Act of August 15, 1953, Pub. L. 83-277, 67 Stat. 586, codified at 18 U.S.C. 1161, by the authority of the Tribal Council of the Paiute Indian Tribe of Utah under the Constitution of the Paiute Indian Tribe of Utah, Article V, Section 1.

E. This Ordinance shall apply to all lands within the exterior boundaries of the Paiute Indian Tribe of Utah and its constituent Bands consistent with applicable federal Indian liquor laws.

F. Authorized sales of Alcoholic Beverages on the Paiute Indian Tribe of Utah Reservation shall comply with State of Utah liquor law standards to the extent required by 18 U.S.C. § 1161.

SECTION 3. DEFINITIONS

As used in this Ordinance, the following words and phrases shall have the following meanings, unless the context clearly requires otherwise:

A. “Alcoholic Beverage(s)” means and shall include beer, wine, and liquor, as herein defined.

B. “Bands” means the five constituent Bands of the Paiute Indian Tribe of Utah, the Cedar Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes. “Band” means any one of the five constituent Bands.

C. “Beer” means a product that contains at least 0.5% alcohol by volume, but not more than 4.0% alcohol by volume or 3.2% alcohol by weight, and is obtained by fermentation, infusion, or decoction of any malted grain. Such products may or may not contain hops or other vegetable products. “Beer” includes products referred to as light beer, malt liquor, or malted beverages.

D. “Heavy beer” means a product that contains more than 4.0% alcohol by volume or 3.2% alcohol by weight and is obtained by fermentation, infusion, or decoction of malted grain. Heavy beer is considered liquor for purposes of this Ordinance.

E. “Licensee” means a person or entity that holds an Off-Premise Beer Retail License, as herein defined, and includes any employee or agent of the Licensee.

F. “Liquor” means alcohol, or an alcoholic, spirituous, vinous, fermented, malt, flavored malt beverage, or other liquid, or combination of liquids, a part of which is spirituous, vinous, or fermented, and all other drinks, or drinkable liquids, that contains at least 0.5% alcohol by volume and is suitable to use for beverage purposes. “Liquor” does not include any beverage defined as Beer.

G. “Off-Premise Beer Retail License” shall mean a license issued by the Tribal Council of the Paiute Indian Tribe of Utah in accordance with Utah state law and this Ordinance.

H. “Retailer” means a person engaged in the sale or distribution of an alcoholic beverage to a consumer.

I. “Sale,” “sell” and “to sell” means a transaction, exchange, or barter whereby, for consideration, an alcoholic beverage is either directly or indirectly transferred, solicited, ordered, delivered for value, or by a means or under a pretext is promised or obtained, whether done by a person as a principal, proprietor, or as an agent, servant, or employee.

J. “Tribal Council” shall mean the Tribal Council of the Paiute Indian Tribe of Utah, which is the supreme governing body of the Paiute Indian Tribe of Utah.

K. “Tribal Land(s)” shall mean and reference the geographic area that includes all land included within the definition of “Indian country” as established and described by federal law and that is under the jurisdiction of the Paiute Indian Tribe of Utah, including all tribally and Band owned trust lands located within same as are now in existence or may hereafter be added to.

L. “Tribal Law” means the Constitution of the Paiute Indian Tribe of Utah and all laws, ordinances, codes, resolutions and regulations now and hereafter duly enacted by the Tribe.

M. “Tribe” shall mean the Paiute Indian Tribe of Utah.

N. “Wine” means an alcoholic beverage obtained by the fermentation of the natural sugar content of fruits, plants, honey, or milk, or other like substance, whether or not another ingredient is added.

SECTION 4. JURISDICTION

This Ordinance is in conformity with the laws of the State of Utah as required by 18 U.S.C. § 1161. To the extent permitted by applicable law, the Paiute Indian Tribe of Utah asserts jurisdiction to determine whether Liquor sales and service are permitted within the exterior boundaries of the Paiute Indian Tribe of Utah Reservation.

SECTION 5. RELATION TO OTHER LAWS

All prior codes, ordinances, resolutions and motions of the Paiute Indian Tribe of Utah and its five constituent Bands authorizing, prohibiting, or in any way dealing with the sale or service of Alcoholic Beverages are hereby repealed and are of no further force or effect to the extent they are inconsistent or conflict with the provisions of this Ordinance. No tribal business licensing law or other Tribal Law shall be applied in a manner inconsistent with the provisions of this Ordinance.

SECTION 6. COMPUTATION OF TIME

Unless otherwise provided in this Ordinance, in computing the period of time prescribed or allowed by this Ordinance, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or a legal holiday. For the purposes of this Ordinance, the term “legal holiday” shall mean all legal holidays under tribal or federal law. All documents mailed shall be deemed served at the time of mailing.

SECTION 7. AUTHORIZED SALE OF LIQUOR

No person or entity shall sell Alcoholic Beverages on the Paiute Indian Tribe of Utah Reservation without the prior authorization of the Tribal Council, as set forth in this Ordinance. The Tribal Council shall not authorize the sale of Alcoholic Beverages on the lands of a constituent Band without the express written request of the affected Band by duly adopted Band Resolution.

SECTION 8. PROHIBITIONS

A. General Prohibitions. The unauthorized sale and/or service of Liquor is prohibited within the Paiute Indian Tribe of Utah Reservation, and is hereby declared an offense under Tribal Law. Federal liquor laws applicable to Indian country shall remain applicable to any person, act or transaction which is not authorized by this Ordinance and violators of this Ordinance shall be subject to federal prosecution as well as to legal action in accordance with the law of the Paiute Indian Tribe of Utah.

B. Age Restrictions. No person shall be authorized to sell or serve Liquor within the Paiute Indian Tribe of Utah Reservation unless he or she is at least twenty-one (21) years of age. No person may be served Liquor within the Paiute Indian Tribe of Utah Reservation unless he or she is at least twenty-one (21) years of age. Any person violating this Section shall be guilty of a separate violation of this Ordinance for each and every drink served.

C. No Credit Liquor Sales. The sale of Liquor authorized by this Ordinance shall be upon a cash basis only. Payment for Liquor shall be by cash, credit card, or check.

SECTION 9. LICENSING IN GENERAL

Pursuant to Utah state law, a state license, issued by the Utah Department of Alcoholic Beverage Control, is required for the sale and service of Alcoholic Beverages within the state. However, a state license is not required for “to go” sales of Beer. Utah state law provides that only a local license is required for the sale of Beer for consumption off the premises. Accordingly, pursuant to Utah state law and this Ordinance, the Tribal Council shall have the authority to issue, suspend and revoke Off-Premise Beer Retail Licenses. All other licenses for the sale and/or service of Alcoholic Beverages on Tribal Lands must be issued by the State of Utah, with approval by the Tribe and the affected Band, and in accordance with federal, state, and Tribal Law, including this Ordinance.

SECTION 10. OFF-PREMISE BEER RETAIL LICENSES

As set forth in this Ordinance and in conformity with Utah state law, the Tribal Council shall have the authority to issue, suspend and revoke Off-Premise Beer Retail Licenses. An Off-Premise Beer Retail License shall entitle the Licensee to sell Beer on the licensed premises in original containers, of a size not to exceed two liters, for consumption off the premises.

A. Eligibility. Only applicants operating on Tribal Lands shall be eligible to receive an Off-Premise Beer Retail License issued by the Tribe.

B. Application for an Off-Premise Beer Retail License.

1. Application Process. Applicants meeting the eligibility requirements of this Ordinance, as well as applicable federal, state and/or Tribal Law, must apply to the Tribal Council for an Off-Premise Beer Retail License. The applicant shall file a written application with the Tribal Council, in a form prescribed and approved by the Tribal Council. The application shall be accompanied by a nonrefundable application fee, as set by the Tribal Council, and such other information and/or documentation as the Tribal Council may require.

2. Action on the Application. The Tribal Council shall have the authority to deny, approve, or approve with conditions, an application for an Off-Premise Beer Retail License or for the renewal of such license, consistent with the laws of the Tribe and with this Ordinance.

3. Denial of License or Renewal. An application may be denied for one or more of the following reasons.

a. The applicant has materially misrepresented facts contained in the application;

b. The applicant is presently not in compliance with this Ordinance or other tribal or federal law, or with the applicable laws of the State of Utah;

c. The applicant has failed to complete the application properly, has failed to provide required information and/or documentation, and/or has failed to tender the appropriate fee;

d. The Tribal Council finds that granting the license (or renewal thereof) would create a threat to the peace, safety, morals, health or welfare of the Tribe, and/or is otherwise not in the best interest of the Tribe or tribal members.

4. Temporary Denial. If the application is denied solely on the basis of Section 10-B-3(c), the Tribal Council shall, within fifteen (15) days of receipt of the application, issue a written notice of temporary denial to the applicant. Such notice shall set forth the reasons for denial and shall state that the denial will become permanent if the problem(s) is not corrected within fifteen (15) days following receipt of the notice.

5. Cure. If an applicant is denied a license, the applicant may cure the deficiency and resubmit the application for consideration. Each re-submission will be treated as a new application for license or renewal of a license.

6. Investigation. Upon receipt of an application for the issuance or renewal of a license, the Tribal Council shall make a thorough investigation to determine whether the applicant and the premises for which a license is applied qualify for a license and whether the provisions of this Ordinance have been complied with.

7. Term and Renewal of License. Each license shall be issued for a period not to exceed one (1) year from the original date of issuance and may be renewed thereafter on a year-to-year basis, in compliance with this Ordinance and any rules and/or regulations hereafter adopted by the Tribe. The applicant shall renew a license by, not less than sixty (60) days prior to the expiration of the license, submitting a written renewal application to the Tribal Council on the prescribed form.

8. Posting of License. The Licensee shall post and keep posted its Off-Premise Beer Retail License on the licensed premises.

C. Prohibited Actions. It shall be unlawful for any person to sell Beer for off-premises consumption without first having obtained an Off-Premise Beer Retail License from the Tribe. It shall also be unlawful for an Off-Premise Beer Retail Licensee to permit the consumption of Beer or other Alcoholic Beverages on the licensed premises.

D. No Employment of Minors. The Licensee shall not employ any person at the licensed premises at which Beer is sold unless the person to be employed is at least twenty-one (21) years of age.

E. Alcohol Training and Education. The Tribe shall require the Licensee of an Off-Premise Beer Retail License to comply with the requirements of Utah state law regarding alcohol training and education for off-premise consumption, including Utah Code Ann. §§ 32A-10-103 and 62A-15-401.

F. Separation of Alcoholic Beverages from Non-Alcoholic Beverages. In accordance with Utah Code Ann. § 32A-10-102(5) and R81-10-1, an Off-Premise Beer Retailer must display Beer products in an area that is visibly separate and distinct from the area where non-alcoholic beverages are displayed.

G. Required Signage. A Licensee holding a Off-Premise Beer Retail License shall conform with the sign requirements of applicable Utah state law, including Utah Code Ann. § 32A10-102(5) and R81-10-1.

H. Tribe's Right to Inspect. The Tribe shall have the right to inspect the licensed premises during regular business hours for the purpose of insuring the Licensee's compliance with all provisions of this Ordinance and other applicable law.

I. Record requirements. Holders of Off-Premise Beer Retail Licenses shall maintain records which shall disclose the gross sale of Beer during each and every year. Such records shall be available for inspection and audit by the Tribe at any time following the end of each year and for eighteen (18) months thereafter. Failure of a Licensee to properly maintain the required records or failure to submit such records for inspection and audit shall be cause for suspension or revocation of an Off-Premise Beer Retail License.

J. Conformity with State Law. A Licensee holding an Off-Premise Beer Retail License issued by the Tribe shall conform with all applicable Utah state law, including, but not limited to, those provisions of Utah state law specifically described and referenced in this Ordinance.

SECTION 11. PENALTIES

Any person or entity found to be in violation of this Ordinance, including any lawful rule or regulation promulgated pursuant thereto, and/or other applicable federal, state or Tribal Law, shall be subject to penalties, including, but not limited to, suspension or revocation of the license by the Tribal Council. Violations shall be subject to a civil fine of not more than Five Hundred Dollars ($500.00) for each such violation. The Tribal Council may adopt by Resolution a schedule of fines for each violation, taking into account the severity of the offense and threat the violation may pose to the general health and welfare. Such schedule may also provide for the imposition of increased monetary penalties for repeated violations. The civil penalties provided for in this section shall be in addition to any criminal penalties that may be imposed under applicable law.

SECTION 12. COLLECTION OF APPLICABLE FEES, TAXES AND/OR FINES

The Tribal Council shall have the authority to collect all applicable and lawful fees, taxes, and/or fines from person or Licensee as imposed under this Ordinance.

SECTION 13. REQUEST FOR RECONSIDERATION

Any person or entity may request reconsideration of the Tribal Council's decision to deny an application, approve an application with conditions, deny a request for renewal, or revoke a license by formally submitting a written request for reconsideration to the Tribal Council. The Tribal Council shall respond to any such request for reconsideration within fifteen (15) days. The applicant shall have the right to present witnesses to testify and to present written documents in support of his or her position. The Tribal Council shall render its decision within sixty (60) days after the date of the hearing. The decision of the Tribal Council shall be final.

SECTION 14. SOVEREIGN IMMUNITY PRESERVED

Nothing in this Ordinance is intended as or shall be construed as a waiver of the sovereign immunity of the Tribe.

SECTION 15. LIBERAL CONSTRUCTION

Provisions of this Ordinance shall be liberally construed to achieve the purposes set forth, whether clearly stated or apparent from the context of the language used herein.

SECTION 16. SEVERABILITY

If any provision or provisions of this Ordinance is/are held invalid by a court of competent jurisdiction, this Ordinance shall continue in effect as if the invalid provision(s) was/were not a part hereof.

SECTION 17. EFFECTIVE DATE

This Ordinance shall be effective following approval by the Paiute Indian Tribe of Utah Tribal Council and approval by the Secretary of the Interior or his/her designee and publication in the Federal Register as provided by federal law.

ENACTMENT

BE IT ORDAINED BY THE TRIBAL COUNCIL OF THE PAIUTE INDIAN TRIBE OF UTAH: That this Alcoholic Beverage Control Ordinance of the Paiute Indian Tribe of Utah was fully considered by the Tribal Council at a duly called meeting, at which a quorum was present and that the same was passed by a vote of 5 in favor, 0 opposed, 0 abstained, and 0 absent this 1 day of June, 2010.

/s/

Jeanine Borchardt, Tribal Chairwoman

ATTEST:

/s/

Patrick Charles, Tribal Council Secretary