[Federal Register Volume 76, Number 79 (Monday, April 25, 2011)]
[Notices]
[Pages 22913-22917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9900]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Alcoholic Beverage Control Ordinance of the Paiute Tribe of Utah
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
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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
[[Page 22914]]
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 (602) 379-6786; Fax (602) 379-4100; or
Elizabeth Colliflower, Office of Tribal Services, 1849 C Street, NW.,
MS 4513-MIB, Washington, DC 20240; Telephone: (202) 513-7640.
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. Sec. 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. Sec. 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. Sec. 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
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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. Sec. 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
[[Page 22916]]
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. Sec. Sec. 32A-
10-103 and 62A-15-401.
F. Separation of Alcoholic Beverages from Non-Alcoholic Beverages.
In accordance with Utah Code Ann. Sec. 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. Sec. 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.
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Jeanine Borchardt, Tribal Chairwoman
ATTEST:
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Patrick Charles, Tribal Council Secretary
[FR Doc. 2011-9900 Filed 4-22-11; 8:45 am]
BILLING CODE 4310-4J-P