[Federal Register Volume 64, Number 89 (Monday, May 10, 1999)]
[Notices]
[Pages 25056-25059]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11593]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Elk Valley Rancheria Liquor Licensing Ordinance
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
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SUMMARY: This Notice is published in accordance with authority
delegated by the Secretary of the Interior to the Assistant Secretary--
Indian Affairs by 209 DM 8, and in accordance with the Act of August
15, 1953, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme
Court in Rice v. Rehner, 463 U.S. 713 (1983). I certify that the Elk
Valley Rancheria Liquor Licensing Ordinance was duly adopted and
certified by Resolution No. 97-16 of the Elk Valley Tribal Council on
July 9, 1997. The Ordinance provides for the regulation of the sale,
possession and consumption of liquor in the area of the Susanville
Indian Rancheria, under the jurisdiction of the Susanville Indian
Rancheria, and is in conformity with the laws of the State of
California.
DATES: This ordinance is effective as of May 10, 1999.
FOR FURTHER INFORMATION CONTACT: Jim James, Office of Tribal Services,
Division of Tribal Government Services, 1849 C Street, NW, MS 4631 MIB,
Washington, DC 20240-4401; telephone (202) 208-4400.
SUPPLEMENTARY INFORMATION: The Elk Valley Rancheria Liquor Licensing
Ordinance is to read as follows:
Elk Valley Rancheria Liquor Licensing Ordinance
An Ordinance of the Tribal Council of the Elk Valley Rancheria
Regulating the sale, distribution and control of alcoholic beverages on
the Elk Valley Rancheria.
Chapter 1. General Provisions
Section 1.1 Declaration of findings. The Tribal Council of the Elk
Valley Rancheria hereby finds as follows:
A. Under the Constitution of the Tribe, Article V, Section 1(1),
the Tribal Council is charged with the duty of protecting the safety
and welfare of the Elk Valley Rancheria.
B. The Introduction, possession and sale of alcoholic beverages on
the Elk Valley Rancheria is a matter of special concern to the tribe.
C. Federal law leaves to Tribes the decision regarding when and to
what extent alcoholic beverage transactions shall be permitted on
Indian reservations.
D. Present day circumstances make a complete ban on alcoholic
beverages within the Elk Valley Rancheria ineffective and unrealistic.
At the same time, a need still exists for strict Tribal regulation and
control over alcoholic beverage distribution.
E. The enactment of an Ordinance governing alcoholic beverage sales
on the Elk Valley Rancheria and providing for the purchase and sale of
alcoholic beverages through Tribally licensed outlets will increase the
ability of the Tribal government to control the distribution, sale, and
possession of liquor on the Elk Valley Rancheria, and at the same time
will provide an important and urgently needed source of revenue for the
continued operation of the Tribal government and delivery of Tribal
governmental services.
Section 1.2 Declaration of Policy. Under the inherent sovereignty
of the Tribe, the Elk Valley Rancheria Liquor Licensing Ordinance shall
be deemed an exercise of the Tribe's power, for the protection of the
welfare, health, peace, morals, and safety of the people of the Tribe,
and all its provisions shall be liberally construed for the
accomplishment of that purpose, and it is declared to be public policy
that the sale and possession of alcoholic beverages affects the public
interest of the people, and should be regulated to the extent of
prohibiting all sale and possession of acholic beverages, except as
provided in this Ordinance. In order to provide for Tribal control over
liquor sales and possession within the Reservation, and to provide a
source of revenue for the continued operation of the Tribal government
and the delivery of Tribal governmental services, the Tribal Council
promulgates this Ordinance.
Section 1.3 Repeal of Prior Liquor Ordinances. To the extent not
previously repealed, either expressly or by implication, any prior
Liquor
[[Page 25057]]
Ordinance remaining in effect is hereby expressly repealed.
Section 1.4 Short Title. This Ordinance shall be known and cited
as the ``Elk Valley Rancheria Liquor Licensing Ordinance.''
Section 1.5 Purpose. The purpose of this Ordinance is to prohibit
the importation, manufacture, distribution and sale of alcoholic
beverages on the Elk Valley Rancheria, except pursuant to a license
issued by the Tribal Council under the provisions of this Ordinance.
Section 1.6 Sovereign Immunity preserved. Nothing in this
Ordinance is intended or shall be construed as a waiver of the
sovereign immunity of the Elk Valley Rancheria. No officer or employee
of the Elk Valley Rancheria is authorized nor shall he/she attempt to
waive the immunity of the Tribe under the provisions of this ordinance
unless such officer or employee has express, specific written
authorization from the Tribal Council.
Section 1.7 Applicability within the Reservation. This Ordinance
shall apply to all persons within the exterior boundaries of the Elk
Valley Rancheria consistent with the applicable federal Indian liquor
laws.
Section 1.8 Interpretation and Findings. The Tribal Council, in
the first instance, may interpret any ambiguities contained in this
Ordinance.
Section 1.9 Application of 18 U.S.C. 1161. The importation,
manufacture, distribution and sale of alcoholic beverages on the Elk
Valley Rancheria shall be in conformity with this Ordinance and in
conformity with the laws of the State of California as that phrase or
term is used in 18 U.S.C. 1161.
Section 1.10 Severability. If any part or provision of this
Ordinance or the application thereof to any persons or circumstance is
held invalid, the remainder of the Ordinance, including the application
of such part or provision to other persons or circumstances, shall not
be affected thereby and shall continue in full force and effect. To
this end the provisions of this Ordinance are severable.
Section 1.11 Effective Date. 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.
Chapter 2. Definitions
Section 2.1 Interpretation. In construing the provisions of this
Ordinance, the following words or phrases shall have the meaning
designated unless a different meaning is expressly provided or the
context clearly indicates otherwise.
Section 2.2 Alcohol. ``Alcohol'' means ethyl alcohol, hydrated
oxide of ethyl, or spirits of wine, from whatever source or by whatever
process produced.
Section 2.3 Alcoholic Beverage. ``Alcoholic beverage'' includes
all alcohol, spirits, liquor, wine, beer, and any liquid or solid
containing alcohol, spirits wine or beer, and which contains one half
of one percent or more of alcohol by volume and which is fit for
beverage purposes either alone or when diluted, mixed, or combined with
other substances. It shall be interchangeable in this Ordinance with
the term ``liquor'.
Section 2.4 Beer. ``Beer'' means any alcoholic beverage obtained
by the fermentation of any infusion or decoction of barley, malt, hops,
or any other similar product, or any combination thereof in water, and
includes ale, porter, brown, stout, lager beer, small beer, and strong
beer, and also includes sake, otherwise known as Japanese rice wine.
Section 2.5 Tribal Council. ``Tribal Council'' means the governing
body of the Elk Valley Rancheria as provided for under article IV,
Sect. 1 of the Tribal Constitution.
Section 2.6 Distilled Spirits. ``Distilled spirits'' means any
alcoholic beverage obtained by the distillation of fermented
agricultural products, and includes alcohol for beverage use, spirits
of wine, whiskey, rum, brandy, and gin, including all dilutions and
mixtures thereof.
Section 2.7 Importer. ``Importer'' means any person who introduces
alcohol or alcoholic beverages into the Elk Valley Rancheria from
outside the exterior boundaries thereof for the purpose of sale or
distribution within the Rancheria, provided however, the term importer
as used herein shall not include a wholesaler licensed by any state or
tribal government selling alcoholic beverages to a seller licensed by a
state or tribal government to sell at retail.
Section 2.8 Liquor License. ``Liquor license'' means a license
issued by the Tribal Council under the provision of this Ordinance
authorizing the sale, manufacture, or importation of alcoholic
beverages on or within the Rancheria, consistent with federal law.
Section 2.9 Manufacturer. ``Manufacturer'' means any persons
engaged in the manufacture of alcohol or alcoholic beverages.
Section 2.10 Person. ``Person'' means any individual, whether
Indian or non-Indian, receiver, assignee, trustee in bankruptcy, trust,
estate, firm, partnership, joint venture, corporation, association,
society, or any group of individuals acting as a unit, whether mutual,
cooperative, fraternal, non-profit or otherwise, and any other Indian
tribe, band or group, whether recognized by the United States
Government or otherwise. The term shall also include the business
enterprises of the Tribe. It shall be interchangeable in the Ordinance
with the term ``seller'' or ``licensee.''
Section 2.11 Rancheria. ``Rancheria'' means all lands within the
exterior boundaries of the Elk Valley Rancheria and such other lands as
may hereafter be acquired by the Tribe, whether within or without said
boundaries, under any grant, transfer, purchase, gift, adjudication,
executive order, Act of Congress, or other means of acquisition.
Section 2.12 Sale. ``Sale'' means the exchange of property and/or
any transfer of the ownership of, title to, or possession of property
for a valuable consideration, exchange or barter, in any manner or by
any means whatsoever. It includes conditional sales contracts, leases
with options to purchase, and any other contract under which possession
of property is given to the purchaser, buyer, or consumer but title is
retained by the vendor, retailer, manufacturer, or wholesaler, as
security for the payment of the purchase price. Specifically, it shall
include any transaction whereby, for any consideration, title to
alcoholic beverages is transferred from one person to another, and
includes the delivery of alcoholic beverages pursuant to an order. The
term ``sale'' shall also specifically include the transfer of alcoholic
beverages from one person to another pursuant to a complimentary or
free beverage policy, promotion, plan, or scheme of the seller.
Section 2.13 Seller. ``Seller'' means any person who, while within
the exterior boundaries of the Rancheria, sells, solicits or receives
an order for any alcohol, alcoholic beverages, distilled spirits, beer,
or wine.
Section 2.14 Wine. ``Wine'' means the product obtained from the
normal alcoholic fermentation of the juice of the grapes or other
agricultural products containing natural or added sugar or any such
alcoholic beverage to which is added grape brandy, fruit brandy, or
spirits of wine, which is distilled from the particular agricultural
product or products of which the wine is made, and other rectified wine
products.
Chapter 3. Prohibition of the Unlicensed Sale of Liquor
Section 3.1 Prohibition of the Unlicensed Sale of Liquor. No
person shall import for sale, manufacture,
[[Page 25058]]
distribute or sell alcoholic beverages within the Reservation without
first applying for and obtaining a written license from the Tribal
Council issued in accordance with the provisions of this Ordinance.
Section 3.2 Authorization to Sell Liquor. Any person for and
obtaining a liquor license under the provisions of this Ordinance shall
have the right to engage only in those liquor transactions expressly
authorized by such license and only at those specific places or areas
designated in said license.
Section 3.3 Types of Licenses. The Tribal Council shall have the
authority to issue the following types of liquor licenses within the
Reservation:
A. ``Retail on-sale general license'' means a license authorizing
the applicant to sell alcoholic beverages at retail to be consumed by
the buyer only on the premises or at the location designated in the
license.
B. ``Retail on-sale beer and wine license'' means a license
authorizing the applicant to sell beer and wine at retail to be
consumed by the buyer only on the premises or at the location
designated in the license.
C. ``Retail off-sale general license'' means a license authorizing
the applicant to sell alcoholic beverages at retail to be consumed by
the buyer off the premises or at a location other than the one
designated in the license.
D. ``Retail off-sale beer and wine license'' means a license
authorizing the applicant to sell beer and wine at retail to be
consumed by the buyer off the premises or at a location other than the
one designated in the license.
E. ``Manufacturers license'' means a license authorizing the
applicant to manufacture alcoholic beverages for the purpose of sale on
the Rancheria.
Chapter 4. Applications for Licenses
Section 4.1 Application Form and Content. An application for
licensing under this Ordinance shall be made to the Tribal Council and
shall contain the following information:
A. The name and address of the applicant. In the case of a
corporation, the names and addresses of all of the principal officers,
directors and stockholders of the corporation. In the case of a
partnership, the name and address of each partner.
B. The specific area, location and/or premises for which the
license is applied for.
C. The type of liquor license applied for (i.e. retail on-sale
general license, etc.).
D. Whether the applicant has a California state liquor license.
E. A statement by the applicant to the effect that the applicant
has not been convicted of a felony and has not violated and will not
violate or cause or permit to be violated any of the provisions of this
Ordinance or any of the provisions of the California Alcoholic Beverage
Control Act.
F. The signature and fingerprint of the applicant. In the case of a
partnership, the signature and fingerprint of each partner. In the case
of a corporation, the signature and fingerprint of each of the officers
of the corporation under the seal of the corporation. In the case of a
tribal business enterprise, the signature and fingerprint of the
officers of the enterprise or any persons maintaining day-to-day
control and management of the enterprise, whichever is applicable.
G. The application shall be verified under oath, notarized and
accompanied by the license fee required by this Ordinance.
Section 4.2 Fee Accompany Application. The Tribal Council shall by
resolution establish a fee schedule for the issuance, renewal and
transfer of the following types of licenses:
A. Retail on-sale general license;
B. Retail on-sale beer and wine license;
C. Retail off-sale general license;
D. Retail off-sale beer and wine license; and E. Manufacturers
license.
Section 4.3 Investigation. Upon receipt of an application for the
issuance, transfer or renewal of a license and the application fee
required herein, the Tribal Council shall make a thorough investigation
to determine whether the applicant and the premises for which a license
is applied for qualify for a license and whether the provisions of the
Ordinance have been complied with, and shall investigate all matters
connected therewith which may affect the health, safety and welfare of
the Tribe.
Section 4.4 Denial of Application. An application shall not be
denied, except for good cause. However, the Tribal Council shall deny
an application for issuance, renewal, or transfer of a license if
either the applicant or the proposed premises:
A. has not complied with application procedures;
B. does not meet application requirements;
C. would tend to create a law enforcement problem;
D. obtained a license on the basis of false, misleading , or
misrepresented information; or
E. fails to qualify for the issuance of findings of the Tribal
required by Section 5.2 of this Ordinance.
Chapter 5. Issuance, Renewal and Transfer of Licenses
Section 5.1 Public Hearing. Upon receipt of proper application for
issuance, renewal or transfer of a license, and the payment of all fees
required under this Ordinance, the Secretary of the Tribal Council
shall set the matter for a public hearing. Notice of the time and place
of the hearing shall be given to the applicant and the public at least
ten calendar days before the hearing. Notice shall be given to the
applicant by prepaid U.S. mail at the address listed in the
application. Notice shall be given to the public by publication in a
newspaper of general circulation sold on the Rancheria. The notice
published in the newspaper shall include the name of the applicant and
the type of license applied for and a general description of the area
where liquor will be sold. At the hearing, the Tribal Council shall
hear from any person who wishes to speak for or against the
application. The Tribal Council shall have the authority to place time
limits on each speaker and limit or prohibit repetitive testimony.
Section 5.2 Tribal Council Action on the Application. Within
thirty (30) days of the conclusion of the public hearing, the Tribal
Council shall act on the matter. The Tribal Council shall have the
authority to deny, approve, or approve with conditions the application.
Before approving the application, the Tribal Council shall find: (1)
that the applicant has met all procedural requirements of the
application process; (2) that investigation of the application has not
produced any information that would disqualify the applicant from
obtaining a license under this Ordinance; (3) that the site for the
proposed premises has adequate parking, lighting, security and ingress
and egress so as not to adversely affect adjoining properties or
businesses; and (4) that the sale of alcoholic beverages at the
proposed premises is consistent with the Tribe's Zoning Ordinance.
Upon approval of an application the Tribal Council shall issue a
license to the applicant in a form to be approved from time to time by
the Tribal Council by resolution. All businesses shall post their
Tribal liquor license issued under the Ordinance in a conspicuous place
upon the premises where alcoholic beverages are sold, manufactured or
offered for sale.
Section 5.3 Multiple Locations. Each license shall be issued to a
specific person. Separate license shall be issued for each of the
premises of any business
[[Page 25059]]
establishment having more than one location.
Section 5.4 Term of License. Temporary license. All licenses
issued by the Tribal Council shall be issued on a calendar year basis
and shall be renewed annually; provided, however, that the Tribal
Council may issue special licenses for the sale of alcoholic beverages
on a temporary basis for premises temporarily occupied by the licensee
for a picnic, social gathering or similar occasion at a fee to be
established by the Tribal Council by resolution.
Section 5.5 Transfer of Licenses. Each license issued or renewed
under this Ordinance is separate and distinct and is transferable from
the licensee to another person and/or from one premises to another
premises only with the approval of the Tribal Council. The Tribal
Council shall have the authority to approve, deny or approve with
conditions any application for the transfer of any license. In the case
of a transfer to a new person, the application for transfer shall
contain all of the information required of an original applicant under
Section 4.1 of this Ordinance. In the case of a transfer to a new
location, the application shall contain an exact description of the
location where the alcoholic beverages are proposed to be sold.
Chapter 6. Revocation of Licenses
Section 6.1 Revocation of License. The Tribal Council shall revoke
a license upon any of the following grounds:
A. The misrepresentation of a material fact by an applicant in
obtaining a license or a renewal thereof.
B. The violation of any condition imposed by the Tribal Council on
the issuance, transfer, or renewal of a license.
C. A plea, verdict, or judgment of guilty, or the plea of nolo
contendere to any public offense involving moral turpitude under any
federal or state law prohibiting or regulating the sale, use,
possession, or giving away of alcoholic beverages or intoxicating
liquors.
D. The violation of any tribal Ordinance.
E. The failure to take reasonable steps to correct objectionable
conditions on the licenses premises or any immediate adjacent area
leased, assigned or rented by the licensee constituting a nuisance
within a reasonable time after receipt of a notice to make such
corrections has been received from the Tribal Council or its authorized
representative.
Section 6.2 Accusations. The Tribal Council on its own motion,
through the adoption of an appropriate resolution meeting the
requirements of this Section, or any person, may initiate revocation
proceedings by filing an accusation with the Secretary of the Tribal
Council. The accusation shall be in writing and signed by the maker,
and shall state facts showing that there are specific grounds under
this Ordinance which would authorize the Tribal Council to revoke the
license or licenses of the licensee against whom the accusation is
made. Upon receipt of any accusation which meets the foregoing
requirements, the Secretary shall cause the matter to be set for
hearing before the Tribal Council. Thirty days prior to the date set
for the hearing, the Secretary shall mail a copy of the accusation
along with a notice of the day and time of the hearing before the
Tribal Council. The notice shall command the licensee to appear and
show cause why the licensee's license should not be revoked. The notice
shall state that the licensee has the right to file a written response
to the accusation, verified under oath and signed by the licensee ten
days prior to the hearing date.
Section 6.3 Hearing. Any hearing held on any accusation shall be
held before a quorum of the Tribal Council under such rules of
procedure as it may adopt. Both the licensee and the person filing the
accusation, including the Tribe, shall have the right to present
witnesses to testify and to present written documents in support of
their positions to the Tribal Council. The Tribal Council shall render
its decision within 60 days after the date of the hearing. The decision
of the Tribal Council shall be final and non-appealable.
Chapter 7. Enforcement
Section 7.1 General Penalties. Any person adjudged to be in
violation of this Ordinance shall be subject to a civil penalty of not
more than Five Hundred Dollars ($500.00) for each such violation. The
Tribal Council may adopt by resolution a separate schedule of fines for
each type of violation, taking into account its seriousness and the
threat it may pose to the general health and welfare of tribal members.
Such schedule may also provide, in the case of repeated violations, for
imposition of monetary penalties greater than the Five Hundred Dollars
($500.00) limitation set forth above. The penalties provided for herein
shall be in addition to any criminal penalties which may hereafter be
imposed in conformity with federal law by separate Chapter, or
provision of this Ordinance or by a separate Ordinance adopted by the
Tribal Council.
Section 7.2 Initiation of Action. Any violation of this Ordinance
shall constitute a public nuisance. The Tribal Council may initiate and
maintain an action in tribal court or any court of competent
jurisdiction to abate and permanently enjoin any nuisance declared
under this Ordinance. Any action taken under this Section shall be in
addition to any other penalties provided for this Ordinance.
Dated: April 30, 1999.
Kevin Gover,
Assistant Secretary--Indian Affairs.
[FR Doc. 99-11593 Filed 5-6-99; 8:45 am]
BILLING CODE 4310-02-P
