E8-2536. Pit River Tribe Liquor Control Ordinance

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes the Pit River Tribe Liquor Control Ordinance. The Ordinance regulates and controls the possession, sale and consumption of liquor within the Pit River tribal land. The tribal land is located on trust land and this Ordinance allows for the possession and sale of alcoholic beverages. This Ordinance will increase the ability of the tribal government to control the distribution and possession of liquor within their tribal land, 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 Ordinance is effective February 12, 2008.

FOR FURTHER INFORMATION CONTACT:

Fred Doka Jr., Tribal Operations Officer, Pacific Regional Office, 2800 Cottage Way, Sacramento, CA 95825, Telephone [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 Pit River Tribal Council adopted this Liquor Control Ordinance on September 7, 2007. The purpose of this Ordinance is to govern the sale, possession and distribution of alcohol within the Pit River tribal lands.

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 Liquor Control Ordinance of the Pit River Tribe was duly adopted by the Tribal Council on September 7, 2007.

Dated: February 6, 2008.

Carl J. Artman,

Assistant Secretary—Indian Affairs.

The Pit River Tribe Liquor Control Ordinance reads as follows:

Pit River Liquor Control Ordinance

07-03-38

Chapter I—Introduction

Section 101. Title. This ordinance shall be known as the Pit River Liquor Control Ordinance.

Section 102. Authority. This ordinance is enacted pursuant to the Act of August 15, 1953, 67 Stat. 586, codified at 18 U.S.C. 1161, and by the authority of the Pit River Tribal Council.

Section 103. Purpose. The purpose of this ordinance is to regulate and control the possession and sale of liquor on all lands within the jurisdiction of the Pit River Tribe. The enactment of a tribal ordinance governing liquor possession and sale on lands located within the Tribe's jurisdiction will increase the ability of the tribal government to control the sale, distribution and possession of liquor on such lands and will provide an important source of revenue for the continued operation and strengthening of the tribal government and the delivery of tribal government services.

Section 104. Effective Date. This ordinance shall be effective on certification by the Secretary of the Interior and its publication in the Federal Register.

Article 1. Declaration of public policy and purpose.

(a) The introduction, possession, and sale of liquor on lands located within the Tribe's jurisdiction is a matter of special concern to the Tribe.

(b) Federal law currently prohibits the introduction of liquor into Indian Country (18 U.S.C. 1154), except as provided therein and expressly delegates to tribes the decision regarding when and to what extent liquor transactions shall be permitted. (18 U.S.C. 1161).

(c) The Council recognizes that a need exists for strict regulation and control over liquor transactions on lands within the Tribe's jurisdiction, because of the many potential problems associated with the unregulated or inadequately regulated sale, possession, distribution, and consumption of liquor. The Council finds that tribal control and regulation of liquor is necessary to achieve maximum economic benefit to the Tribe, to protect the health and welfare of tribal members, and to address specific concerns relating to alcohol use on lands within the Tribe's jurisdiction.

(d) It is in the best interests of the Tribe to enact a tribal ordinance governing liquor sales on lands within the Tribe's jurisdiction which provides for exclusive purchase, distribution, and sale of liquor only on such lands. Further, the Tribe has determined that said purchase, distribution, and sale shall take place only at tribally-owned enterprises and/or tribally licensed establishments operating on lands within the Tribe's jurisdiction.

Article II. Definitions.

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

(a) “Alcohol” means that substance known as ethyl alcohol, hydrated oxide of ethyl, ethanol, or spirits of wine, from whatever source or by whatever process produced.

(b) “Alcoholic Beverage” is synonymous with the term “liquor” as defined in Article II(e) of this Chapter.

(c) “Bar” means any establishment with special space and accommodations for the sale of liquor by the glass and for consumption on the premises as herein defined.

(d) “Beer” means any beverage obtained by the alcoholic fermentation of an infusion or decoction of pure hops, or pure extract of hops and pure barley malt or other wholesome grain or cereal in pure water and containing the percent of alcohol by volume subject to regulation as an intoxicating beverage in the state where the beverage is located.

(e) “Liquor” includes all fermented, spirituous, vinous, or malt liquor or combinations thereof, and mixed liquor, a part of which is fermented, and every liquid or solid or semisolid or other substance, patented or not, containing distilled or rectified spirits, potable alcohol, beer, wine, brandy, whiskey, rum, gin, aromatic bitters, and all drinks or drinkable liquids and all preparations or mixtures capable of human consumption and any liquid, semisolid, solid, or other substances, which contains more than one half of one percent of alcohol.

(f) “Liquor Store” means any store at which liquor is sold and, for the purpose of this ordinance, including stores only a portion of which are devoted to the sale of liquor or beer.

(g) “Malt Liquor” means beer, strong beer, ale, stout and porter.

(h) “Package” means any container or receptacle used for holding liquor.

(i) “Public Place“ includes state or county or tribal or federal highways or roads; buildings and grounds used for school purposes; public dance halls and grounds adjacent thereto; soft drink establishments, public buildings, public meeting halls, lobbies, halls and dining rooms of hotels, restaurants, theaters, gaming facilities, entertainment centers, stores, garages, and filling stations which are open to and/or are generally used by the public and to which the public is permitted to have unrestricted access; public conveyances of all kinds and character; and all other places of like or similar nature to which the general public has unrestricted right of access, and which are generally used by the public. For the purpose of this ordinance, “Public Place” shall also include any establishment other than a single family home which is designed for or may be used by more than just the owner of the establishment.

(j) “Sale” and “Sell” include exchange, barter and traffic; and also include the selling or supplying or distributing, by any means whatsoever, of liquor, or of any liquid known or described as beer or by any name whatsoever commonly used to describe malt or brewed liquor or of wine by any person to any person.

(k) “Spirits” means any beverage which contains alcohol obtained by distillation, including wines exceeding seventeen percent of alcohol by weight.

(l) “Tribal Council” means the Pit River Tribal Council.

(m) “Wine” means any alcoholic beverage obtained by fermentation of the natural contents of fruits, vegetables, honey, milk, or other products containing sugar, whether or not other ingredients are added, to which any saccharine substances may have been added before, during or after fermentation, and containing not more than seventeen percent of alcohol by weight, including sweet wines fortified with wine spirits, such as port, sherry, muscatel and angelica, not exceeding seventeen percent of alcohol by weight.

Article III. Powers of Enforcement.

Section 1. The Tribal Council. In furtherance of this ordinance, the Tribal Council shall have the following powers and duties:

(a) To publish and enforce rules and regulations adopted by the Tribal Council governing the sale, manufacture, distribution, and possession of alcoholic beverages on lands within the Tribe's jurisdiction;

(b) To employ managers, accountants, security personnel, inspectors and such other persons as shall be reasonably necessary to allow the Tribal Council to perform its functions. Such employees shall be tribal employees;

(c) To authorize a representative in respect to the enforcement of this ordinance to issue licenses permitting the sale or manufacture or distribution of liquor on lands within the Tribe's jurisdiction and to revoke such licenses as provided herein;

(d) To hold hearings on violations of this ordinance or for the issuance or revocation of licenses hereunder;

(e) To bring suit in the appropriate court to enforce this ordinance as necessary;

(f) To authorize a representative in respect to the enforcement of this ordinance to collect taxes and fees levied or set by the Tribal Council and to keep accurate records, books, and accounts;

(h) To determine and seek damages for violation of the ordinance.

Section 2. Limitations on Powers. In the exercise of its powers and duties under this ordinance, the Tribal Council and its individual members shall not:

(a) Accept any gratuity, compensation or other thing of value from any liquor wholesaler, retailer, or distributor or from any licensee;

(b) Waive the immunity of the Tribe from suit without the express consent of the members of the Pit River Tribe.

Section 3. Inspection Rights. The premises on which liquor is sold or distributed shall be open for inspection by the Tribal Council and/or its representative in respect to the enforcement of this ordinance at all reasonable times for the purpose of ascertaining whether the rules and regulations of the Tribal Council and this ordinance are being complied with.

Article IV. Sales of Liquor.

Section 1. License Required. Sales of liquor and alcoholic beverages on lands within the Tribe's jurisdiction may only be made at businesses which hold a Tribal Liquor License.

Section 2. Sales for Cash. All liquor sales on lands within the Tribe's jurisdiction shall be on a cash only basis and no credit shall be extended to any person, organization, or entity, except that this provision does not prevent the payment for purchases with the use of credit or debit cards such as Visa, MasterCard, American Express, etc.

Section 3. Sale for Personal Consumption. All sales shall be for the personal use and consumption of the purchaser. Resale of any alcoholic beverage purchased on lands within the Tribe's jurisdiction is prohibited. Any person who is not licensed pursuant to this ordinance who purchases an alcoholic beverage on lands within the Tribe's jurisdiction and sells it, whether in the original container or not, shall be guilty of a violation of this ordinance and shall be subject to paying damages to the Tribe as set forth herein.

Article V. Licensing.

Section 1. Procedure. In order to control the proliferation of establishments on lands within the Tribe's jurisdiction which sell or serve liquor by the bottle or by the drink, all persons or entities which desire to sell liquor on lands within the Tribe's jurisdiction must apply to the Tribe for a license to sell or serve liquor.

Section 2. Application. Any person or entity applying for a license to sell or serve liquor on lands within the Tribe's jurisdiction must fill in the application provided for this purpose by the Tribe and pay such application fee as may be set from time to time by the Tribal Council for this purpose. Said application must be filled out completely in order to be considered.

Section 3. Issuance of License. The Tribal Council or, if so authorized, a representative in respect to the enforcement of this ordinance, may issue a license if it believes that such issuance is in the best interests of the Tribe and its members.

Section 4. Period of License. Each license may be issued for a period not to exceed two (2) years from the date of issuance.

Section 5. Renewal of License. A licensee may renew its license if the licensee has complied in full with this ordinance provided however, that the Tribal Council's representative in respect to the enforcement of this ordinance, or in the absence thereof the Tribal Council may refuse to renew a license if it finds that doing so would not be in the best interests of the health and safety of the Tribe.

Section 6. Revocation of License. The Tribal Council's representative in respect to the enforcement of this ordinance or, in the absence thereof, the Tribal Council may revoke a license for reasonable cause upon notice and hearing at which the licensee is given an opportunity to respond to any charges against it and to demonstrate why the license should not be suspended or revoked.

Section 7. Transferability of License. Licenses issued by the Tribal Council's representative in respect to the enforcement of this ordinance or, in the absence thereof, the Tribal Council shall not be transferable and may only be utilized by the person or entity in whose name it was issued.

Article VI. Taxes.

Section 1. Sales Tax. There is hereby levied and shall be collected a tax on each retail sale of liquor or alcoholic beverage on lands within the Tribe's jurisdiction in the amount of one percent (1%) of the retail sales price. All taxes from the sale of liquor and alcoholic beverages on lands within the Tribe's jurisdiction shall be paid over to the General Fund of the Tribe.

Section 2. Taxes Due. All taxes for the sale of liquor and alcoholic beverages on lands within the Tribe's jurisdiction are due on the 15th day of the month following the end of the calendar quarter for which the taxes are due.

Section 3. Delinquent Taxes. Past due taxes shall accrue interest at 2% per month.

Section 4. Reports. Along with payment of the taxes imposed herein, the taxpayer shall submit a quarterly accounting of all income from the sale or distribution of liquor, as well as for the taxes collected.

Section 5. Audit. As a condition of obtaining a license, the licensee must agree to the review or audit of its books and records relating to the sale of liquor and alcoholic beverages on lands within the Tribe's jurisdiction. Said review or audit may be done periodically by the Tribe through its agents or employees whenever, in the opinion of the Tribal Council or its representative for purposes of enforcing this ordinance, such a review or audit is necessary to verify the accuracy of reports.

Article VII. Rules, Regulations, and Enforcement.

Section 1. In any proceeding under this ordinance, conviction of one unlawful sale or distribution of liquor shall establish prima facie intent of unlawfully keeping liquor for sale, selling liquor or distributing liquor in violation of this ordinance.

Section 2. Any person who shall sell or offer for sale or distribute or transport in any manner liquor in violation of this ordinance, or who shall operate or shall have liquor for sale in his possession without a license, shall be guilty of a violation of this ordinance, subjecting him or her to civil damages assessed by the Tribal Council.

Section 3. Any person within the boundaries of lands within the Tribe's jurisdiction who buys liquor from any person other than a properly licensed facility shall be guilty of a violation of this ordinance.

Section 4. Any person who keeps or possesses liquor upon his person or in any place or on premises conducted or maintained by his principal or agent with the intent to sell or distribute it contrary to the provisions of this title, shall be guilty of a violation of this ordinance.

Section 5. Any person who knowingly sells liquor to a person who appears to be intoxicated shall be guilty of a violation of this ordinance.

Section 6. Any person engaging wholly or in part in the business of carrying passengers for hire, and every agent, servant, or employee of such person, who shall knowingly permit any person to drink liquor in any public conveyance shall be guilty of an offense. Any person who shall drink liquor in a public conveyance shall be guilty of a violation of this ordinance.

Section 7. No person under the age of 21 years shall consume, acquire or have in his possession any liquor or alcoholic beverage. No person shall permit any other person under the age of 21 to consume liquor on his premises or any premises under his control except in those situations set out in this section. Any person violating this section shall be guilty of a separate violation of this ordinance for each and every drink so consumed.

Section 8. Any person who shall sell or provide any liquor to any person under the age of 21 years shall be guilty of a violation of this ordinance for each such sale or drink provided.

Section 9. Any person who transfers in any manner an identification of age to a person under the age of 21 years for the purpose of permitting such person to obtain liquor shall be guilty of an offense; provided, that corroborative testimony of a witness other than the underage person shall be a requirement of finding a violation of this ordinance.

Section 10. Any person who attempts to purchase an alcoholic beverage through the use of false or altered identification which falsely purports to show the individual to be over the age of 21 years shall be guilty of violating this ordinance.

Section 11. Any person guilty of a violation of this ordinance shall be liable to pay the Tribe the amount of $500 per violation as civil damages to defray the Tribe's cost of enforcement of this ordinance.

Section 12. When requested by the provider of liquor, any person shall be required to present official documentation of the bearer's age, signature and photograph. Official documentation includes one of the following:

(1) Tribal identification card;

(2) Driver's license or identification card issued by any state department of motor vehicles;

(3) United States Active Duty Military;

(4) Passport.

Section 13. Liquor which is possessed, including for sale, contrary to the terms of this ordinance is declared to be contraband. Any tribal agent, employee or officer who is authorized by the Tribal Council to enforce this section shall seize all contraband and preserve it in accordance with the provisions established for the preservation of impounded property.

Section 14. Upon being found in violation of the ordinance, the party shall forfeit all right, title and interest in the items seized which shall become the property of the Tribe.

Article VII. Abatement.

Section 1. Any room, house, building, vehicle, structure, or other place where liquor is sold, manufactured, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this ordinance or of any other tribal law relating to the manufacture, importation, transportation, possession, distribution, and sale of liquor, and all property kept in and used in maintaining such place, is hereby declared to be a nuisance.

Section 2. The Chairman of the Tribal Council or, if the Chairman fails or refuses to do so, by a majority vote, the Tribal Council shall institute and maintain an action in the name of the Tribe to abate and perpetually enjoin any nuisance declared under this article. In addition to all other remedies at tribal law, the Court may also order the room, house, building, vehicle, structure, or place closed for a period of one (1) year or until the owner, lessee, tenant, or occupant thereof shall give bond of sufficient sum of not less than $25,000 payable to the Tribe and conditioned that liquor will not be thereafter manufactured, kept, sold, bartered, exchanged, given away, furnished, or otherwise disposed of there in violation of the provisions of this ordinance or of any other applicable tribal law and that he will pay all fines, costs and damages assessed against him for any violation of this ordinance or other tribal liquor laws. If any conditions of the bond be violated, the bond may be recovered for the use of the Tribe.

Section 3. In all cases where any person has been found in violation of this ordinance relating to the manufacture, importation, transportation, possession, distribution, and/or sale of liquor, an action may be brought to abate as a nuisance any real estate or other property involved in the violation of the ordinance and violation of this ordinance shall be prima facie evidence that the room, house, building, vehicle, structure, or place against which such action is brought is a public nuisance.

Article IX. Revenue.

Revenue provided for under this ordinance, from whatever source, shall be expended for administrative costs incurred in the enforcement of this ordinance. Excess funds shall be subject to appropriation by the Tribal Council for essential governmental and social services.

Article X. Severability and Effective Date.

Section 1. If any provision or application of this ordinance is determined by review to be invalid, such determination shall not be held to render ineffectual the remaining portions of this ordinance or to render such provisions inapplicable to other persons or circumstances.

Section 2. This ordinance shall be effective on such date as the Secretary of the Interior certifies this ordinance and publishes the same in the Federal Register.

Section 3. Any and all prior enactments of the Tribal Council which are inconsistent with the provisions of this ordinance are hereby rescinded.

Article XI. Amendment.

This ordinance may only be amended by a vote of the Tribal Council and subsequent review by the appropriate official of the Department of the Interior and publication in the Federal Register.