02-7238. Spokane Tribe of Indians Liquor Code

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes the Spokane Tribal Liquor Code. The Code regulates the control, possession, and sale of liquor on the Spokane Tribe of Indians trust lands, in conformity with the laws of the State of Washington, where applicable and necessary. Although the Code was adopted on January 3, 2001, it does not become effective until published in the Federal Register because the failure to comply with the ordinance may result in criminal charges.

DATES:

This Code is effective on March 26, 2002.

FOR FURTHER INFORMATION CONTACT:

Kaye Armstrong, Office of Tribal Services, 1849 C Street NW., MS 4631-MIB, Washington, DC 20240-4001; telephone [phone].

SUPPLEMENTARY INFORMATION:

Pursuant to the Act of August 15, 1953, Public Law 83-277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in Rice v. Rehner, 463 U.S. 713 (1983), the Secretary of the Interior shall certify and publish in the Federal Register notice of the adopted liquor ordinances for the purpose of regulating liquor transaction in Indian country. The Spokane Tribal Liquor Code, Resolution No. 2001-098, was duly adopted by the Spokane Tribal Business Council on January 3, 2001. The Spokane Tribe of Indians, in furtherance of its economic and social goals, has taken positive steps to regulate retail sales of alcohol and use revenues to combat alcohol abuse and its debilitating effect among individuals and family members within the Spokane Tribe.

This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs by 209 Departmental Manual 9.

I certify that by Resolution No. 2001-098, the Spokane Tribal Liquor Code, was duly adopted by the Spokane Tribal Business Council on January 3, 2001.

Dated: March 11, 2002.

Neal A. McCaleb,

Assistant Secretary—Indian Affairs.

The Spokane Tribal Liquor Code, Resolution No. 2001-098, reads as follows:

CHAPTER 24—LIQUOR CODE

Section 24-1. Purpose

The Spokane Tribe possesses the sovereignty to decide whether to allow liquor transactions on its Reservation. If the Spokane Tribe allows liquor transactions, it also possesses the sovereignty to regulate those transactions. By the enactment of this Code, the Spokane Tribe is permitting liquor transactions that are in conformity with this Code and 18 U.S.C. 1161. The Spokane Tribe also intends this Code to regulate and control the sale, distribution and possession of liquor. This code is adopted pursuant to Article VIII of the Constitution of the Spokane Tribe of Indians.

Section 24-2. Title and Jurisdiction

24-2.01. Title. This Chapter shall be known as the Spokane Tribal Liquor Code.

24-2.02. Jurisdiction. The Spokane Tribe of Indians enacts this Code to apply to all lands under its jurisdiction, namely all lands and water areas within the exterior boundaries of the Spokane Reservation, any extensions of the Reservation, and all Spokane Tribal and allotted Indian lands outside the exterior boundaries of the Spokane Indian Reservation, as well as those lands that fulfill the definition of Indian Country as defined in 18 U.S.C. 1151 and 1154.

Section 24-3. Definitions.

24-3.01. Definitions. For the purposes of this Chapter, unless otherwise required by the context, the following words and phrases shall have the designated meanings:

(1) Alcohol. That substance known as ethyl alcohol, hydrated oxide of ethyl, or spirit of wine, which is commonly produced by the fermentation or distillation of grain, starch, molasses, or sugar, or other substances including all dilutions and mixtures of this substance. This term does not include alcohol which is intended to be or has been denatured and used as a fuel for use in motor vehicles, farm implements and machines or implements of husbandry.

(2) Beer. 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 containing not more than 4% of alcohol by weight, and not less than one-half of 1% of alcohol volume. For purposes of this Chapter any such beverage, including ale, stout and porter containing more than 4% of alcohol by weight shall be regulated the same as beer.

(3) Business Council. The Spokane Tribal Business Council.

(4) Commercial Sale. The transfer, exchange or barter, in any manner or by any means whatsoever for a consideration, by any person, association, partnership, or corporation of liquor and beer products.

(5) Licensed Operator. That person licensed by the Spokane Liquor Commission to operate a liquor outlet.

(6) Liquor. Includes the four varieties of liquor herein defined (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 semi-solid or other substance, patented or not, containing alcohol, spirits, wine and beer, and all drinks or drinkable liquids and all preparations or mixtures capable of human consumption, and any liquid, semi-solid, or other substance, which contains more than 1% of alcohol by weight shall be conclusively deemed to be intoxicating.

(7) Liquor Outlet. A tribally licensed retail sales business selling liquor products by the package or the drink on the lands under the jurisdiction of the Tribe and this Code.

(8) Package. Any container or receptacle used for holding liquor.

(9) Public Place. Includes streets and alleys of towns; highways or roads; buildings and grounds used for school purposes; public halls and grounds adjacent thereto; those parts of establishments where beer or liquor may be sold under this title, soft drink establishments, public buildings, public meeting halls, lobbies, halls of tribal buildings, restaurants, theaters, stores, garages and filling stations which are open to and are generally used by the public and to which the public is permitted to have unrestricted access; publicly owned parks and/or playgrounds; tribal fairgrounds, 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.

(10) Regulations. Those rules and policy regulations made by the Spokane Liquor Commission.

(11) Spirits. Any beverage which contains alcohol obtained by distillation, including wines exceeding 24% of alcohol by volume.

(12) Spokane Liquor Commission. The Board that shall administer this Chapter and is empowered as set out in Section 24-4 of this Chapter.

(13) Tribe. The Spokane Tribe of Indians.

(14) Wine. Any alcoholic beverage obtained by fermentation of fruits (grapes, berries, apples, et. cetera) or other agricultural product containing sugar, to which any saccharine substances may have been added before, during or after fermentation, and containing not more than twenty-four percent of alcohol by volume, including sweet wines fortified with wine spirits, such as port, sherry, muscatel and angelica, not exceeding twenty-four percent of alcohol by volume.

Section 24-4. Membership and Powers of the Spokane Liquor Commission

24-4.01. Membership. The Spokane tribal Business Council shall be the Spokane Liquor Commission. The Council may, if it so wishes, appoint others as a Commission to serve in its stead. That Commission shall be composed of no less than five and no more than seven members.

24-4.02. General Powers. The Commission is empowered to:

(1) Administer this Code by exercising general control, management, and supervision of all liquor sales, places of sale and sales outlets as well as exercising all powers necessary to accomplish the purposes of this Code;

(2) Adopt and enforce rules and regulations in furtherance of the purposes of this Code and in the performance of its administrative functions;

(3) License each liquor outlet within the jurisdiction of the Spokane Tribe of Indians;

(4) Examine the records of each liquor outlet at a time and place convenient to both the licensed operator and the Commission;

(5) Revoke any license issued to a liquor outlet at its informed discretion;

(6) Inspect the physical premises of each liquor outlet;

(7) Designate any area, upon application of the owner, where public consumption of liquor may occur;

Section 24-5. Licensing of Liquor Outlet

24-5.01. License Required. Each liquor outlet is required to possess a license granted by the Commission.

Section 24-6. Application for Liquor Outlet License

24-6.01. Application. Applications for a liquor outlet license may be obtained at the Tribal Office. Completed applications shall be submitted to the Liquor Commission. Members of the Spokane Tribe of Indians shall have preference over other applicants for licenses.

24-6.02. Application Fee. Each application shall be accompanied by an application charge or fee of $100.00, which shall be non-refundable, even if the applicant is not granted a license. The application fee for special use liquor license to be issued under 24-6.04 shall be $15.00.

24-6.03. Grant of License. The Commission shall review the application and may, if it deems necessary, request additional information and documentation from the applicant. If the Commission is satisfied that the applicant is a suitable and reputable person, the Commission may issue a license for the sale of liquor products. The Commission shall state on the license whether the license is for the sale of liquor by the drink, by the package, or both. A license shall only entitle the operator to one outlet. A license may be granted for the sale of only beer or wine by the drink.

24-6.04. License Renewal. A license shall be issued for the period of two years. This license shall be non-transferrable. The license shall be renewable every two years at the discretion of the Commission, with the operator filing a new application and paying the filing fee. The Commission may also issue a special use liquor permit to persons paying the necessary application fee under 24-6.02 for a maximum period of three (3) days as long as the liquor to be sold or distributed is in conjunction with regularly scheduled community or social events.

24-6.05. Limitation on Licenses. The Commission shall carefully limit the number of licenses and limit the location of the licenses to protect the health, safety and welfare of the people. The number and location of the licenses is within the sole discretion of the Commission.

24-6.06. Designation of Public Use Area. An applicant may apply for a designation as a public use area. The applicant shall be responsible for obtaining a liquor license and shall so indicate in its application that the application is for the purpose of consumption of liquor on the premises. All provisions of this Chapter shall apply to any area so designated unless specifically excluded.

Section 24-7. Restrictions on Liquor Outlets

24-7.01. Sales to Minors. No licensed operator shall give, sell or otherwise supply liquor to any person under 21 years of age, either for his or her own use or for the use of his or her parents or for the use of any other person.

24-7.02. Consumption of Liquor Upon Licensed Premises Prohibited. No licensed operator shall permit any person to open or consume liquor on his or her premises or any premises adjacent thereto and in his or her control, unless the operator has a license to sell liquor by the drink or has otherwise been designated under this chapter as a location where public consumption of liquor may occur.

24-7.03. Conduct on Licensed Premises

(1) No Tribal operator shall be disorderly, boisterous or intoxicated on the licensed premises or on any public premises adjacent thereto which are under his or her control, nor shall he or she permit any disorderly, boisterous or intoxicated person to be thereon; nor shall he or she use or allow the use of profane or vulgar language thereon.

(2) No operator or employee shall consume liquor, beer or wine while working on the licensed premises.

(3) No operator shall permit suggestive, lewd or obscene conduct or acts on his or her premises.

24-7.04. Employment of Minors. No person under the age of 21 years shall be employed in any service in connection with the sale or handling of liquor, either on a paid or voluntary basis, except as otherwise provided herein. Employees 18 years or older may sell and handle beer or wine not to be consumed on the premises provided that there is direct supervision by an adult 21 years of age or older.

24-7.05. Display of License. Any Tribal operator issued a license shall frame under glass and display the license on the premises.

24-7.06. Operator's Premises Open to Commission Inspection. The premises of all Tribal operators, including vehicles used in connection with liquor sales, shall be open at all times to inspection by the Commission.

24-7.07. Hours of Operation. All liquor outlets, with the exception of grocery stores or convenience stores selling only beer or wine, shall close by 3:00 a.m. and not reopen before 6:00 a.m.

24-7.08. Records Confidential. All records of the Commission shall be confidential.

Section 24-8. Sovereign Immunity Preserved

24-8.01. No Waiver of Sovereign Immunity. Nothing in this Chapter is intended or shall be construed as a waiver of the sovereign immunity of the Spokane Tribe of Indians or its officials. No official, agent or employee of the tribe is authorized, nor shall he or she attempt, to waive the immunity of the Tribe or its officials.

Section 24-9. Tribal Liability and Credit

24-9.01. No Liability by Tribe. An operator is forbidden to represent or give the impression to any supplier or any other person with whom he or she does business that he or she is an official representative of the Tribe or Commission authorized to pledge Tribal credit or financial responsibility for any of the expenses of his or her business operation. The operator shall hold the Spokane Indian Tribe and the Spokane Liquor Commission harmless from all claims of liability of whatever nature.

Section 24-10. Insurance

24-10.01. Insurance. The operator shall maintain at his or her expense adequate insurance covering liability, fire, theft, vandalism and other insurable risks. The Commission or the Tribal Business Committee may establish as a condition of any license higher limits and any additional coverage it deems advisable.

Section 24-11. Revocation of Operator's License

24-11.01. Grounds for Revocation. Failure of an operator to abide by the provisions of this Chapter and any additional regulations or requirements imposed by the Spokane Liquor Commission will constitute grounds for revocation of the operator's license.

24-11.02. Notice of Revocation. If by a majority vote of the members of the Spokane Liquor Commission, it is decided that grounds exist for the revocation of a license of any operator, notice shall be given to the operator of a hearing at which the grounds and evidence of such a revocation shall be presented by the Commission, and an opportunity shall be presented to the operator to answer any charges, produce evidence, and make argument on his or her behalf. Such hearing shall be held within ten days of such notice, but may be continued to a later date if both the Commission and the operator consent.

24-11.03. Request for a Rehearing. If after notice and hearing, the Commission revokes an operator's license, the operator may within ten days after such revocation, petition the Commission for a rehearing. The petition shall state the basis for a rehearing, including all newly discovered evidence or information not before the Commission at the first hearing. The Commission shall grant or deny the request for a rehearing within twenty days of the receipt of the petition.

24-11.04. Judicial Review of Revocation. An operator whose license was revoked may petition the Spokane Tribal Court for review of the decision within twenty days of the written decision of the Commission. The appeal shall be on the record and shall not be heard de novo. If the Court finds that the order of the Spokane Liquor Commission was arbitrary and capricious, clearly erroneous, in violation of the Constitution of the Spokane Tribe of Indians, in violation of the Constitutional rights of Indians as set forth in 25 U.S.C. 1301-1303, made upon unlawful procedures or some other error of law, the Court shall vacate the order of the Commission and remand to the Commission for the re-issuance of a license.

24-11.05. Scope of Review Limited to Issue of Revocation. By authorizing such a review of its decision, the Spokane Tribe is not waiving its sovereign immunity explicitly or implicitly, but providing operators with a judicial review of its decisions. Thus suits against the Spokane tribe of Indians or its officials for damages or any other relief are not authorized by this Chapter.

24-11.06. Judicial Review Not Granted to Those Denied a License Upon Application. An application for a liquor license is a privilege and not a right. Thus a simple denial of an application for a license is not entitled to judicial review in the Spokane Tribal Court.

24-11.07. Emergency Powers. If for an extremely serious reason, such as the keeping of the peace or the health and welfare of the people, the Commission finds it necessary to close the premises of a liquor outlet, it may do so provided that a hearing is provided to the licensed operator within three days (excluding weekends and holidays) of the closing of the liquor outlet.

Section 24-12. Violations

24-12.01. Any person(s) who shall violate any provision of this Chapter shall be subject to one or all of the following civil remedies:

(1) A civil penalty of up to $500.00 per occurrence per day and confiscation of all proceeds of such activities.

(2) A civil injunction against continued violations of this Chapter.

(3) Exclusion from the Spokane Reservation in conformity with Chapter 21 of the Spokane Tribal Code.

(4) If licensed operators, the revocation of the liquor outlet license.

Section 24-13. Severability

24-13.01. Severability. If any provision of this Chapter or its application to any person or circumstance is held invalid, the remainder of the Chapter or the application of the provision to other persons or circumstances is not affected.

Section 24-14. Previous Liquor Codes and Ordinances Abrogated

24-14.01. Previous Code Provisions Abrogated. It is the intent of the Spokane Indian Tribe and of the Spokane Business Committee that this liquor code cited above totally supersedes and stands in the place of any previously existing codes and ordinances relating to liquor.