[Federal Register Volume 80, Number 22 (Tuesday, February 3, 2015)]
[Notices]
[Pages 5778-5781]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-01989]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[145A21000DDAAK3000000/A0T00000.00000]
Pueblo of Acoma--Title 19--Alcoholic Beverage Sales Law of the
Pueblo of Acoma
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
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SUMMARY: This notice publishes the Alcoholic Beverage Sales Law of the
Pueblo of Acoma. The Law regulates and controls the possession, sale
and consumption of liquor within the Pueblo of Acoma. The Law will
increase the ability of the Pueblo of Acoma to control the distribution
and possession of liquor within their Reservation and Indian country,
provide an important source of revenue, and improve the tribal
government's capacity to deliver tribal services.
DATES: Effective Date: This law is effective February 3, 2015.
FOR FURTHER INFORMATION CONTACT: Mr. Ryan Riley, Acting Tribal
Government Officer, Southwest Regional Office, Bureau of Indian
Affairs, 1011 Indian School Road NW., Suite 254, Albuquerque NM 87104;
Telephone: (505) 563-3114; Fax: (505) 563-3101, or Ms. Laurel Iron
Cloud, Bureau of Indian Affairs, Office of Indian Services, 1849 C
Street NW., MS-4513-MIB, Washington, DC 20240; Telephone: (202) 513-
7641.
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 Pueblo of Acoma Tribal Council duly
adopted this law by Resolution No. TC-JUL-22-14 VIa on July 22, 2014.
The Indian Civil Rights Act (ICRA) provides that no Indian tribe in
exercising powers of self-government shall deny to any person within
its jurisdiction the equal protection of its laws or deprive any person
of liberty or property without due process of law. 25 U.S.C. 1302(8).
The U.S. Supreme Court and 10th Circuit have determined that a license,
such as a liquor license or a server permit, is a property interest and
that the process by which a government revokes a license must provide
the licensee notice and an opportunity to be heard prior to revocation.
Bell v. Burson, 402 U.S. 535, 539 (1971); Stidham v. Peace Officer
Stds. & Training, 265 F.3d 1144, 1150 (10th Cir. 2001).
The Acoma Beverage Sales Law published herein states that,
``Notwithstanding any other provision of this Law, a License or Permit
issued hereunder shall not be deemed a property right or vested right
of any kind.'' 19-7-6. This statement is contrary to the weight of
Federal law, but does not have substantive effect on the rights of
licensees and permittees. The substantive provision at 19-7-4 expressly
provides that ``Revocation of a License or Server Permit will occur
only following an opportunity for a hearing before the Tribal Court.''
I certify the Law even though it says that licenses and permits shall
not be considered property rights, because the due process rights of
licensees and permittees are protected under 19-7-4 and in light of the
severability provision at 19-14-1.
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 Pueblo of Acoma Tribal Council duly adopted
the Alcoholic Beverage Sales Law of the Pueblo of Acoma by Resolution
No. TC-JUL-22-14 VIa on July 22, 2014.
Dated: January 22, 2015.
Kevin Washburn,
Assistant Secretary--Indian Affairs.
The Pueblo of Acoma Alcoholic Beverage Sales Law follows:
Chapter 1. Introduction
19-1-1 Title. The title of this law shall be the Alcoholic Beverage
Sales Law of the Pueblo of Acoma.
19-1-2 Authority. This law is being passed and enacted in
accordance with
[[Page 5779]]
the inherent governmental powers of the Pueblo of Acoma, a federally
recognized tribe of Native Americans, which has no written
Constitution, and in conformance with the laws of the State of New
Mexico, as required by 18 United States Code Section 1161. That federal
law allows sale of liquor/alcoholic beverages on Indian land in
conformity with State and tribal law. State Law, Section 60-3A-5.D.
NMSA 1978, exempts the Pueblo from application of the New Mexico Liquor
Control Act provided alcoholic beverages are purchased from New Mexico
wholesalers, and sales, service, possession or consumption are in
accordance with a law approved by the Pueblo and the United States.
19-1-3 Purpose. The purpose of this law is to regulate the sale of
Alcoholic Beverages (as herein defined) within the exterior boundaries
of the Pueblo of Acoma.
19-1-4 Limited Change to Existing Law. Alcoholic beverages may be
sold in compliance with this law, which creates an exception to section
6-20-17 of Pueblo of Acoma written laws (2003). Alcoholic beverages
remain illegal within the Pueblo, except as allowed by this Law.
Chapter 2. Definitions
19-2-1 Definitions. The definitions below apply to this Law Only.
A. Alcoholic Beverage. The term ``Alcoholic Beverage'' includes the
four varieties of liquor commonly referred to as alcohol, spirits, wine
and beer, and all fermented spirituous, vinous or malt liquor or
combinations thereof and mixed liquor a part of which is fermented,
spirituous, vinous or malt liquor, or otherwise intoxicating and every
liquid or solid or semisolid or other substances patented or not,
containing alcohol, spirits, wine or beer excluding any prescription or
over-the-counter medicine, any product not fit for human consumption
and wine used for sacramental purposes.
B. Enterprise. The term ``Enterprise'' means a person engaged in or
desiring to engage in the business of selling Alcoholic Beverages.
C. Intoxicated Person. The term ``Intoxicated Person'' means a
person whose mental or physical functioning is substantially impaired
as a result of the use of alcohol or drugs.
D. License. The term ``License'' means a license or authorization
by the Tribal Council for an Enterprise to sell Alcoholic Beverages at
a designated location.
E. Licensed Establishment. The term ``Licensed Establishment''
means:
1. A designated location within the physical area of Pueblo of
Acoma tribal land, excluding lands which have been assigned to an
individual tribal member, or;
2. A certain space or area within a building on Pueblo of Acoma
tribal lands (which have not been assigned to an individual tribal
member), designated by the Pueblo of Acoma Tribal Council as a place
where Alcoholic Beverages can be sold. A Licensed Establishment may be
a designated area, such as an amphitheater.
F. Licensee. The term ``Licensee'' means an Enterprise which holds
a Pueblo of Acoma Liquor License and is authorized by the Tribal
Council to sell and serve Alcoholic Beverages in a Licensed
Establishment.
G. Minor. The term ``Minor'' means any person under the age of
twenty-one (21) years.
H. Permitted Server. The term ``Permitted Server'' means any
individual who is an owner or employee of a Licensee and who is
authorized to sell, serve, or dispense Alcoholic Beverages under such
rules and regulations as the Pueblo may adopt. A Permitted Server may
not be a Minor.
I. Person. The term ``Person'' means an individual, corporation,
limited liability company, partnership, joint venture, association,
trust unincorporated organization or business, government, Native
American Tribe (including the Pueblo and its Enterprises), or any
agency, instrumentality, or subdivision thereof.
J. Pueblo. The term ``Pueblo'' means the Pueblo of Acoma, a
federally-recognized tribe of Native Americans located within the
exterior boundaries of the State of New Mexico.
K. Server Permit. The term ``Server Permit'' means a permit to
serve Alcoholic Beverages issued by this Pueblo to a Permitted Server.
L. Tribal Council. The term ``Tribal Council'' means the Pueblo of
Acoma Tribal Council.
M. Wholesaler. The term ``Wholesaler'' means a person whose place
of business is located in New Mexico and who sells, offer for sale or
possesses for the purpose of sale any Alcoholic Beverages for resale by
a purchaser which is a Licensee.
Chapter 3. General
19-3-1 [Jurisdiction]. The sales of Alcoholic Beverages shall be
lawful within the exterior boundaries of the Pueblo of Acoma and on all
other lands of the Pueblo over which the Pueblo has jurisdiction,
provided that such sale is made in conformance with federal law, and is
authorized by this Law.
Chapter 4. Sales Allowed
19-4-1 [Sales on Pueblo Lands]. Sales of Alcoholic Beverages on
Pueblo lands are authorized only if the sale occurs in a Licensed
Establishment owned or operated by a Licensee.
19-4-2 [Sales at Licensed Establishment]. Sales of Alcoholic
Beverages at a Licensed Establishment may be made only by a Permitted
Server.
19-4-3 [Sales to Individuals]. No sale of Alcoholic Beverages shall
be made to a person under the age of twenty-one (21), or to an
Intoxicated Person.
Chapter 5. Licenses and Permits
19-5-1 Licensees.
A. Licensed Seller. Acoma Business Enterprises (ABE) directed by
the Acoma Business Board is expressly recognized as a Licensee. Sale of
Alcoholic Beverages may occur only in a Licensed Establishment owned or
operated by a Licensee.
B. Licensed Establishments. Licensed Establishments are places
which meet the requirements of Chapter 6 of this Alcoholic Beverage
Sales Law.
C. Term and Renewal. Licenses shall be issued for a period not to
exceed five (5) years, and may be renewable at the discretion of the
Pueblo upon the submission of a properly completed renewal application,
accompanied by the applicable license renewal fee, as established from
time to time by the Pueblo.
19-5-2 Permitted Servers.
A. Any individual, including an individual employed by the Pueblo,
who become a Permitted Server, shall apply for a Server Permit on such
form and pursuant to such rules and regulations as the Pueblo may
adopt. The application shall be submitted to the Acoma Office of
Taxation and Assessment and must contain, among other document(s)
showing that the individual has taken the requisite alcohol server
training program as may be required of individuals selling Alcoholic
Beverages under the laws of the State of New Mexico.
B. Server Permits, unless sooner revoked, shall be issued for a
period of up to five (5) years from the date that the Permitted Server
has completed an alcohol server training program.
C. Each Manager of each Licensed Establishment shall be a Permitted
Server.
19-5-3 Fingerprint Procedures.
A. The Pueblo may require two sets of fingerprints from any or all
of the
[[Page 5780]]
individuals identified in section 19-5-2 above.
B. All applicants to become a Permitted Server and any other
individual required to submit fingerprints hereunder must consent that
the fingerprints may be processed by local and National law enforcement
agencies and all other available agencies. If the search, by virtue of
the fingerprint submission, reveals any adverse information which was
not shown on the application, the individual concerned will be given an
opportunity to explain the circumstance of such omission or challenge
the authenticity of the revealed information.
C. Any cost associated with supplying the complete sets of
fingerprints and the investigation thereafter will be borne exclusively
by the Permitted Server applicant.
Chapter 6. Licensed Establishments
19-6-1 [Sales and Serving]. Sales and serving of Alcoholic
Beverages may occur only in a Licensed Establishment.
19-6-2 [Identification of Licensed Establishment]. Each Licensed
Establishment shall be identified by a map showing its designated
location and the perimeters of the land and/or building, or portion
thereof, together with a general description of the premises, which map
and description shall be filed with the Pueblo together with a
documented approval by the Acoma Business Board requesting the Acoma
Tribal Council for a License to operate a Licensed Establishment. A
parcel of land not containing a building, so long as the perimeters
thereof are defined, may be a Licensed Establishment including, but not
limited to, an amphitheater, or an area(s) adjacent to the Acoma Casino
& Hotel, conference center, restaurant and coffee shop complex (such as
outdoor cafes and special event tents).
19-6-3 [Designated Location]. A designated location authorized by
the Tribal Council to sell Alcoholic Beverages shall be deemed to be a
Licensed Establishment upon filing the map and description required
under section 19-6-2 and approval by Resolution of the Tribal Council.
19-6-4 [Location of Licensed Establishment]. No Licensed
Establishment shall be located closer than 500 feet from any church,
school, or military installation. A Licensed Establishment shall be
specifically designated as to whether it is permitted to sell Alcoholic
Beverages by the package and/or by the drink.
19-6-5 [Limits on Types of Sales]. Tribal Council can restrict or
limit the scope or types of sales of alcoholic beverages allowed at
each Licensed Establishment.
19-6-6 [Purchase of Alcohol from NM Wholesalers]. A Licensed
Establishment shall only purchase alcoholic beverages for resale from
New Mexico wholesalers.
Chapter 7. License and Server Permit Approvals and Denials
19-7-1 [Grant, Denial or Renewal of License]. The granting, denial
or renewal of a License shall be within the discretion of the Pueblo of
Acoma Tribal Council.
19-7-2 [Grant, Denial or Renewal of Server Permit]. The granting,
denial or renewal of a Server Permit shall be within the discretion of
the Pueblo of Acoma Office of Taxation and Assessment.
19-7-3 [Termination or Revocation of License or Server Permit; For
Cause]. A License or a Server Permit may be terminated or revoked for
cause. Cause shall include:
A. A violation of this Law;
B. A violation of the Gaming Compact between the Pueblo and the
State of New Mexico;
C. A violation of any rules and regulations adopted by the Pueblo
to implement this Law;
D. A sale of Alcoholic Beverages outside a Licensed Establishment
or in violation of its License;
E. The conviction of a Licensee or a Permitted Server of a felony
or of a misdemeanor involving a violation of any alcoholic beverage
law;
F. A material misstatement in the application for a License or
Server Permit;
G. Allowing illegal activities within the Licensed Establishment.
19-7-4 [Revocation of License or Server Permit; Hearing].
Revocation of a License or Server Permit will occur only following an
opportunity for a hearing before the Tribal Court. Decisions of the
Tribal Court shall be final and not subject to further review.
Revocation proceedings can be initiated by the Administrator of this
Law (see Section 19-10-2).
19-7-5 [Non-Transferable or Assignable]. No transfer or assignment
of a License shall be made without the approval in writing of the
Tribal Council.
19-7-6 [No Property or Vested Right]. Notwithstanding any other
provision of this Law, a License or Permit issued hereunder shall not
be deemed a property right or vested right of any kind. Nor shall the
granting of any License or Permit give rise to a presumption or legal
entitlement to the renewal of such License or Permit.
Chapter 8. Prohibited Sales and Practices
19-8-1 [Licensee and Permitted Servers]. No Licensee or Permitted
Server shall:
A. Sell, serve or dispense Alcoholic Beverages to any person who is
obviously intoxicated;
B. Award Alcoholic Beverages as prizes;
C. Sell Alcoholic Beverages to a Minor;
D. Knowingly sell Alcoholic Beverages to an adult purchasing such
liquor on behalf of a Minor or an Intoxicated Person; or
E. Allow a person to bring Alcoholic Beverages onto the premises of
a Licensed Establishment.
Chapter 9. Enforcement
19-9-1 Criminal Penalties.
A. A Permitted Server who is subject to the criminal jurisdiction
of the Pueblo and is found guilty of violating any portion of this Law,
or is found guilty of having made any materially false statement or
concealed any material facts in his/her application for a Server Permit
granted pursuant to the provisions of this Law, shall have his/her/its
Server Permit immediately revoked subject to reinstatement after a
hearing pursuant to 19-7-4, and such individual shall be subject to a
fine not to exceed $500.00 for each violation.
B. Any person subject to the jurisdiction of the Pueblo who is
found guilty of purchasing Alcoholic Beverages on behalf of a minor or
an intoxicated person shall be subject to a fine not to exceed $500.00
for each violation or not to exceed one (1) month in jail, or both.
C. Any Minor subject to the jurisdiction of the Pueblo purchasing,
attempting to purchase, or found in possession of Alcoholic Beverages
shall be subject to a fine not to exceed $500.00 for each violation.
19-9-2 Civil Penalties.
A. Any Permitted Server who violates any provision of this Law or
regulations promulgated hereunder may be subject to revocation of his/
her Server Permit as well as immediate termination of his/her
employment, and to such other civil sanctions as are provided in this
Law or rules and regulations implementing it.
B. Any non-member of the Pueblo who purchases Alcoholic Beverages
on behalf of a Minor or an Intoxicated Person shall be subject to
exclusion from Pueblo lands.
Chapter 10. Rules and Regulations; Administration
19-10-1 Rules and Regulations. The Tribal Council may adopt and
enforce
[[Page 5781]]
rules and regulations to implement this Law. The rules and regulations
will be in conformance with New Mexico State law, if applicable, and
with this Law.
19-10-2 Administration. The Pueblo of Acoma Office of Taxation and
Assessment shall be responsible for implementation of this Law.
19-10-3 Training. Each person empowered to issue Server Permits
shall satisfy all education and training requirements for issuance of a
Server Permit.
Chapter 11. Liability Insurance
19-11-1 [Liquor Liability Insurance]. Any Licensee authorized by
this Law shall obtain the requisite Liquor Liability Insurance in an
amount not less than two million dollars ($2,000,000) per occurrence,
or such higher amount set by Resolution of Tribal Council or terms of
the Gaming Compact between the Pueblo and the State of New Mexico.
Chapter 12. Wholesaler Licensing
19-12-1 [Exemptions for Licensing Fees and Background Checks]. All
Wholesalers supplying alcoholic beverages to the Sky City Food &
Beverage Department will be exempt from any licensing fees and
background checks.
Chapter 13. Amendment
19-13-1 [Effective Date]. This Law is the Alcoholic Beverage Sales
Law of the Pueblo of Acoma. This Law shall be effective upon the final
approval of this Law by the Secretary of the Interior or his designated
representative.
19-13-2 [Amendment]. This law may be amended by the Tribal Council,
to become effective after federal approval and publication of notice in
the Federal Register.
Chapter 14. Severability
19-14-1 [Valid Provisions Continue in Effect]. In the event any
provision of this Law is declared invalid or unconstitutional by a
court of competent jurisdiction, all other provisions shall not be
affected and shall remain in full force and effect.
Chapter 15. Sovereign Immunity
19-15-1 [Pueblo's Sovereign Immunity Not Waived]. The sovereign
immunity of the Pueblo of Acoma is not waived by this Law.
[FR Doc. 2015-01989 Filed 2-2-15; 8:45 am]
BILLING CODE 4310-4J-P