E8-18287. Jicarilla Apache Nation Liquor Ordinance

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes the Jicarilla Apache Nation Amended Liquor Ordinance. The amended Ordinance regulates and controls the possession, sale, and consumption of liquor within the Jicarilla Apache Nation. The Nation is located on trust land and this amended Ordinance allows for the possession and sale of alcoholic beverages within the exterior boundaries of the Jicarilla Indian Reservation. This amended Ordinance will increase the ability of the tribal government to control the distribution and possession of liquor within their 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 Act is effective as of September 8, 2008.

FOR FURTHER INFORMATION CONTACT:

Iris A. Drew, Tribal Government Services Officer, Southwest Regional Office, 1001 Indian School Road, Albuquerque, New Mexico 87104; 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 liquor ordinances for the purpose of regulating liquor transactions in Indian Country. The Jicarilla Apache Nation Legislative Council adopted this amended Liquor Ordinance by Ordinance No. 2007-O-525-12 on December 5, 2007. The purpose of this amended Ordinance is to govern the sale, possession, and distribution of alcohol within the Jicarilla Apache Reservation. 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 amended Liquor Ordinance of the Jicarilla Apache Nation was duly adopted by the Legislative Council on December 5, 2007.

Dated: July 30, 2008.

George T. Skibine,

Acting Deputy Assistant Secretary for Policy and Economic Development.

The Jicarilla Apache Nation Amended Liquor Ordinance reads as follows:

ORDINANCE OF THE LEGISLATIVE COUNCIL

AMENDMENT OF LIQUOR LICENSING ORDINANCE (JICARILLA APACHE NATION CODE, TITLE 22, CHAPTER 1)

ORDINANCE NO. 2007-O-55-12

WHEREAS, Article XI of the Revised Constitution of the Jicarilla Apache Nation (Revised Constitution) vests the inherent powers of the Jicarilla Apache Nation (Nation), including those conferred by Section 16 of the Act of June 18, 1934 (48 Stat. 984), as amended, in the Legislative Council; and

WHEREAS, Article XI of the Revised Constitution authorizes the Legislative Council to enact ordinances to promote to peace, safety, property, health, and general welfare of the people of the Reservation; and

WHEREAS, on March 20, 2000, Ordinance No. 2000-O-133-03 (the Liquor Licensing Ordinance) was adopted repealing and replacing all previous Legislative Council enactments pertaining to the regulation of liquor within the Jicarilla Apache Nation Reservation, which was approved by the Secretary of the Interior on February 11 2003, as published in Volume 68, Federal Register, Pager 6935; and

WHEREAS, the Legislative Council finds that it is in the best interest of the Nation to further amend the Nation's Liquor Licensing Ordinance for the safety and protection of the public; and

NOW, THEREFORE; BE IT ORDAINED, that the Legislative Council of the Jicarilla Apache Nation hereby enacts the following Ordinance to amend Title 22, Chapter 1 of the Jicarilla Apache Nation Code by amending Chapter 1, Sections 4(B) and 8(H), adding to Chapter 1 a new section 9, and by renumbering the existing sections 9 through 13 accordingly. Title 22, Chapter 1, as so amended, shall read as follows:

CHAPTER I: LIQUOR LICENSING

§ 1 DEFINITIONS.

As used in this Chapter the following definitions shall apply.

(A) COMMISSION. The Jicarilla Apache Gaming Regulatory Commission.

(B) INTOXICATION or INTOXICATED. A state in which a person's mental or physical functioning is 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 Liquor License issued by the Nation, 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 beers, 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 Gaming Regulatory Commission to serve or sell liquor, including the grounds and parking lot of such location.

(G) LIQUOR OFFENSES SECTION. J.A.N.C. § 7-2-12.

(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, Toads, stores, shopping centers, and other businesses, government, and other public buildings, schools, churches, public meeting halls, buses, and bus depots within the Nation which are open to and generally used by the public and the ground thereof; it also includes parks and playgrounds and other open spaces within the Nation 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) ENTITY OF THE NATION. Any entity owned by the Jicarilla Apache Nation.

(N) NATION. Referring to territory, NATION means all lands within the territory defined by JANC. § 1-1-5.

(O) LIQUOR LICENSE. A license granted by the Jicarilla Apache Gaming Regulatory Commission in accordance with the provisions of this Chapter to distribute liquor at a liquor establishment.

(P) POLITICAL SUBDIVISION. Any political subdivision or department of the Jicarilla Apache Nation.

§ 2 APPLICABILITY.

This Chapter shall apply to all persons engaging or seeking to engage in the purchase or sale of liquor within the Nation; 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 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 Commission. Denial of recognition of a religion by the Commission shall be subject to immediate review by the Council.

§ 3 JICARILLA APACHE GAMING REGULATORY COMMISSION.

(A) The Jicarilla Apache Gaming Regulatory Commission created by J.A.N.C. § 22-2-7 shall exercise the regulatory authority of the Nation under this Chapter. In addition to the qualifications set forth in J.A.N.C. § 22-2-7(F), 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 member of the Nation will not be disqualified from serving on the Commission on the basis of the Nation's ownership of a liquor establishment.

(B) In addition to the powers and duties under J.A.N.C. § 22-2-7(I), the Commission shall be empowered:

(1) To review applications for a liquor license and either grant a liquor license or deny the application;

(2) To 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 management (sic);

(3) To inspect, on its own initiative or a 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 Jicarilla Apache Police Department, alleged violations by licensees of this Chapter;

(4) To 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) To bring, in the name of the Nation, any civil action in the Nation's 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) To adopt an annual operating budget which shall be subject to the approval of the 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 Council; such as revenues shall be used to fund the operations of the Commission;

(7) To promulgate and adopt regulations, subject to approval by the Council, to assist in the implementation of this Chapter and to govern the purchase and sale of liquor within the Nation; and

(8) To require payment of reasonable fees associated with licensing a liquor establishment additional to those set forth in this Chapter.

§ 4 LICENSING.

(A) General Qualifications for License; Standards for Evaluating a License Application.

(1) Applicants. If the applicant for a Liquor License is an individual person, the person must be an enrolled member of the Jicarilla Apache Nation 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 Nation, entities of the Nation, political subdivisions and enrolled members of the Nation; 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 fifty-one percent (51%) 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 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 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 community and the regulatory goals of this Chapter. The Commission shall not issue a liquor license if the Commission determines that:

(a) The proposed activity is likely to undermine economic development of the Nation;

(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 community, the Commission may consider the following factors among others:

(a) Whether the application is for the operation of a new or existing liquor establishment;

(b) Whether the applicant is in compliance with applicable laws of the Nation and the United States;

(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 within the Nation;

(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 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 Liquor License to any proposed liquor establishment which is located within four hundred (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 liquor license, an applicant must:

(l) Submit to the Commission a written application for the license under oath, on a form prescribed by and stating the information required by the Commission, together with a non-refundable application fee of Five Hundred Dollars ($500.00);

(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;

(4) Submit to the Commission proof of liquor liability insurance as required under § 9 of this Chapter; and

(5) Submit such additional information as the Commission may require.

(C) Fingerprints. If required by the Commission, an applicant for a Liquor License who is not the Nation or a Political Subdivision of the Nation, 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 Jicarilla Apache Police Department 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 Licenses; Special Restrictions on License. The Commission is authorized to establish by regulation various classes of 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 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 Council as provided in J.A.N.C. § 22-1-10.

(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 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 liquor license only for good cause, such as a 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 Liquor License with special restrictions in addition to any imposed on the expired license. Denial of an application to renew a Liquor License or the imposition of special restrictions shall be appealable under J.A.N.C. § 22-1-10.

(G) Amendments of Applicable Law. All Liquor Licenses are subject to any amendment of the Jicarilla Apache Nation Code or regulations of the Commission which may be adopted or made effective after the license is approved.

§ 5 TRANSFER OR LEASE OF LIQUOR LICENSE.

No Liquor License shall be transferred or leased other than with approval of the Commission through the procedure set forth in J.A.N.C. § 22-1-4.

§ 6 REPORTING.

(A) 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.

(B) 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 examinations as it deems necessary.

(C) 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 the Nation's law, there shall be an assessment of One Hundred Dollars ($100.00) for each day a licensee is late in reporting this information to the Commission.

§ 7 VIOLATION OF LIQUOR OFFENSES SECTION.

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

§ 8 RESTRICTIONS ON LIQUOR SALES.

(A) Sales Only by Holders of Liquor License and Only at Licensed Premises; Exception. No sales of liquor shall be made within the Nation except by persons holding a Egnor license issued by the Commission 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 members of the Nation 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 a/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 J.A.N.C. § 22-1-10 to the Council.

(2) Alcoholic beverages shall not be sold, served, or consumed on licensed premises during voting hours on the days of any election to any office of the Nation, the United States or the State of New Mexico.

(3) The Council may prohibit the purchase, sale, or consumption of liquor during days and hours in addition to those set forth in this Section 8(B).

(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 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 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 8, 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 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 the Nation or for distribution within the Nation to anyone not holding a Liquor License issued by the Commission, subject to the exception set forth in J.A.N.C. § 22-1-8(A).

(H) Sales only to be made by Certified Servers; Alcohol Server Training Required/or License Renewal. All sales, delivery, and serving of liquor authorized by this Chapter shall be made by persons twenty-one (21) years of age or older; 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. Such certification shall be valid for five (5) years from the date of certification. 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 had a current valid certification that the server 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 Council under the procedure set forth in J.A.N.C. § 22-1-10.

§ 9 LIQUOR LIABILITY INSURANCE.

Each Licensee is required to obtain and maintain liquor liability insurance coverage that will provide, at a minimum, personal injury coverage of one million dollars ($1,000,000.00) per incident and two million dollars ($2,000,000.00) aggregate per policy year. Such insurance must cover the Licensee and every alcohol server employed by the Licensee. Proof of such insurance in a form acceptable to the Commission must be submitted with every Liquor License application and renewal. The Commission must be given no less than thirty (30) calendar days written notice prior to the termination or cancellation of such insurance coverage. Failure to maintain such insurance coverage, or failure to provide the Commission with the required notice prior to cancellation or termination of insurance shall constitute grounds for the revocation of the Licensee's Liquor License and the imposition of sanctions as provided in this Chapter.

§ 10 SUSPENSION OR REVOCATION OF LIQUOR LICENSE; SPECIAL RESTRICTIONS; MONETARY SANCTIONS.

The Commission is authorized to revoke or suspend a 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 Council under J.A.N.C. § 22-1-10. In addition to any civil assessment provided by the Nation's law, the Commission may initiate an action in the Nation's Court for the imposition of monetary sanctions against a licensee for a violation of this Chapter to compensate the Nation for economic losses it suffers, directly or indirectly, as a result of the violation.

§ 11 APPEAL TO COUNCIL.

(A) Appealable Actions. Any person or entity who is denied a Liquor License, or whose Liquor License is suspended or revoked, or whose Liquor License has been limited by special restrictions may appeal the adverse action to the 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 Council.

(C) Stay Pending Appeal. Suspension or revocation of a Liquor License may be stayed pending an appeal under this Section, at the discretion of the Council. The 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 Council on appeals under this Section shall be final and not subject to further appeal or review.

§ 12 PRIVATE RIGHT OF ACTION.

Subject to the limitations of J.A.N.C. § 22-1-12, any person who suffers personal injury or property damage as a result of a violation of J.A.N.C. § 22-1-7 or J.A.N.C. § 22-1-8 shall have a right of action for money damages against the person or entity whose violation caused or contributed to his or her injury.

§ 13 NO WAIVER OF SOVEREIGN IMMUNITY.

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

§ 14 SEVERABILITY.

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

BE IT FURTHER ORDAINED that the amended Ordinance shall be effective upon the date that all requirements of tribal and Federal law are complete, including publication of this Ordinance by the Secretary of the Interior in the Federal Register to the extent such publication is required by law. All violations occurring before that date shall be penalized under the law as it existed when the violation occurred.

CERTIFICATION

The foregoing Ordinance was enacted by the Legislative Council of the Jicarilla Apache Nation on the 5th day of December 2007, by a vote of 8 for, 0 against, and 0 abstaining, at a duly called meeting at which a quorum of the Legislative Council members were present.

/signed/

President

CERTIFICATION

The foregoing Ordinance was enacted by the Legislative Council of the Jicarilla Apache Nation on the 5th day of December 2007, by a vote of 8 for, 0 against, and 0 abstaining, at a duly called meeting at which a quorum of the Legislative Council members were present.

ATTEST:

/signed/

Secretary of the Nation