04-10531. Coyote Valley Reservation of California Liquor Control Ordinance

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes the Coyote Valley Reservation of California Liquor Ordinance. The ordinance regulates and controls the possession and sale of liquor on the Coyote Valley Reservation of California.

EFFECTIVE DATE:

This Ordinance is effective on May 10, 2004.

FOR FURTHER INFORMATION CONTACT:

Duane T. Bird Bear, Office of Tribal Services, Bureau of Indian Affairs, 1951 Constitution Avenue, NW., MS-320-SIB, Washington, DC 20240; 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 adopted liquor ordinances for the purpose of regulating liquor transactions in Indian country. The Tribal Council of the Coyote Valley Band of Pomo Indians adopted a Tribal Liquor Ordinance on March 6, 2003. The purpose of this ordinance is to regulate and to control the possession and sale of liquor on the Coyote Valley Reservation of California.

This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs by 209 DM 8.

I certify that the Liquor Control Ordinance of the Coyote Band of Pomo Indians was duly adopted by the Coyote Valley Tribal Council by enactment of Council Resolution No. 03-06-03 on March 6, 2003.

David W. Anderson,

Assistant Secretary—Indian Affairs.

The Liquor Control Ordinance of the Coyote Valley Band of Pomo Indians reads as follows:

Ordinance No. 03-01-03; Liquor Control Ordinance of the Coyote Valley Band of Pomo Indians

Chapter I—Introduction

101. Title. This Ordinance shall be known as the “Liquor Ordinance of the Coyote Valley Band of Pomo Indians.”

102. Authority. This ordinance is enacted pursuant to the Act of August 15, 1953 (Pub. L. 83-277, 67 Stat. 586, 18 U.S.C. 1161), pursuant to the Tribe's inherent sovereign authority and Article VII Sections 1(i) and (n) of the Document Embodying the Laws, Customs and Traditions of the Coyote Valley Band of Pomo Indians adopted on October 4, 1980, under which the Band has been operating, as well as any other applicable laws.

103. Purpose. The purpose of the Liquor Ordinance is to regulate and to control the possession and sale of liquor on the Coyote Valley Reservation. The enactment of a tribal ordinance governing liquor possession and sale on the Reservation will increase the ability of the tribal government to control Reservation liquor distribution and possession, and at the same time will provide an important source of revenue for the continued operation and strengthening of the tribal government and the delivery of tribal government services.

104. Tribal Jurisdiction. This ordinance applies to all lands in which the Coyote Valley Band of Pomo Indians holds an ownership interest and which are defined as Indian country under 18 U.S.C 1151. At the time of enacting this ordinance the Reservation does not have an ownership interest in any lands defined by 18 U.S.C. 1154(c) as fee-patented land in a non-Indian community or rights-of-ways which run through the Reservation's lands. This ordinance is intended to be in conformity with the California State alcohol laws as required by 18 U.S.C. 1161.

Chapter 2—Definitions

201. As used in this Liquor Ordinance, the following words shall have the following meanings unless the context clearly requires otherwise.

202. Alcohol means that substance known as ethyl alcohol, hydrated oxide of alcohol, or spirit of wine which is commonly produced by the fermentation or distillation of grain, starch, molasses, or sugar, or other substance including all dilutions of this substance.

203. Alcoholic Beverage is synonymous with the term “Liquor” as defined in section 208 of this chapter.

204. Bar means any establishment with special space and accommodations for sale by the glass and or for consumption on the premises of any liquor or alcoholic beverage, as herein defined.

205. Beer means any beverage obtained by the alcoholic fermentation of an infusion or concoction of pure hops, or pure extract of hops, or pure extract of hops and pure barley malt or other wholesome grain of cereal in pure water containing not more than four percent of alcohol by volume. For the purpose of this title, any such beverage, including ale, stout, and porter, containing more than four percent of alcohol by weight shall be referred to as “Strong Beer.”

206. The Tribal Council as used herein means the body authorized by the 1980 Coyote Valley Tribal Constitution to promulgate all tribal ordinances and regulations.

207. Liquor includes the four varieties of liquor herein defined (alcohol, spirits, wine, and beer), and all fermented spirituous, vinous, or malt liquor or combination thereof, and mixed liquor, or otherwise intoxicating; and every liquid of solid or semisolid or other substance, patented or not, containing alcohol, spirits, wine or beer, and all drinks or drinkable liquids and all preparations or mixtures capable of human consumption and any liquid, semisolid, solid or substance which contains more than one percent of alcohol by weight shall be conclusively deemed to be intoxicating.

208. Liquor Store means any store at which liquor is sold and, for the purpose of this Liquor Ordinance, includes stores only a portion of which are devoted to the sale of liquor or beer.

209. Malt Liquor means beer, strong beer, ale, stout, and porter.

210. Package means any container or receptacle used for holding liquor.

211. Public Place includes state or county or Tribal or federal highways or roads; buildings and grounds used for school/recreational purposes; public dance halls and grounds adjacent thereto, soft drink establishment; public meeting halls; lobbies, halls and dining rooms of hotels, restaurants, theater, gaming facilities, entertainment centers, store, garages, and filling stations which are open to and/or generally used by the public and to which the public is permitted to have unrestricted access; public conveyances of all kinds of character; and 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 Liquor 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.

212. Reservation means lands held in trust by the United States Government for the benefit of the Coyote Valley Band of Pomo Indians (see also Tribal Land).

213. 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 wine by any person to any person.

214. Spirits means any beverage which contains alcohol obtained by distillation including wines exceeding seventeen percent of alcohol by weight.

215. Tribe means the Coyote Valley Band of Pomo Indians.

216. Tribal Lands mean any lands within the exterior boundaries of the Reservation including land leased to other parties.

217. Trust Account means the account designated by the Tribal Council for deposit of proceeds from any tax or fee levied by the Tribal Council and relating to the sale of alcoholic beverages.

218. Trust Agent means the Tribal Chairperson and his or her designee.

219. Wine means any alcoholic beverage obtained by fermentation of fruits (grapes, berries, apples, etc.) 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 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.

Chapter III—Powers of Enforcement

301. Powers. The Tribal Council, in the furtherance of this Liquor Ordinance, shall have the following powers and duties:

(a) To publish and enforce the rules and regulations governing the sale, manufacture, and distribution of alcoholic beverages on the Reservation;

(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; all such employees shall be Tribal employees;

(c) To issue licenses permitting the sale or manufacture or distribution of liquor on the Reservation;

(d) To hold hearings on violations of this Liquor Ordinance or for the issuance or revocation of licenses hereunder pursuant to sections 501 through 506;

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

(f) To determine and seek damages for the violation of this Liquor Ordinance; and

(g) To collect taxes and fees levied or set by the Tribal Council, and to keep accurate records, books and accounts.

302. Limitation on Powers. In the exercise of its powers and duties under this Liquor Ordinance, the Tribal Council and its individual members shall not accept any gratuity, compensation or other thing of value from any licensee or any liquor wholesaler, retailer or distributor.

303. Inspection Rights. The premises on which liquor is sold or distributed shall be open for inspection by the Tribal Council or its designee at all reasonable times, which include the hours the business is open to the public, for the purpose of ascertaining whether the rules or regulations of the Liquor Ordinance are being followed.

Chapter IV—Sales of Liquor

401. Tribal Liquor License Required; Tribally Owned Businesses. No sales of alcoholic beverages shall be made within the exterior boundaries of the Reservation except at a tribally licensed or tribally owned business licensed by both the Tribe and the State of California. Nothing in this section shall prohibit a tribal licensee or the Tribe from purchasing liquor from an off-reservation source for resale on the Reservation or the delivery to the Tribe for a tribal licensee of liquor purchased from off-reservation sources for resale on the Reservation.

402. Sale only on Tribal Land. All liquor sales within the exterior boundaries of the Reservation shall be on Tribal Land, including leases thereon.

403. Sales for Cash. All liquor sales within the Reservation boundaries 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 use of ATM cards, debit cards, or major credit cards such as MasterCard, Visa, American Express, etc.

404. Sales for Personal Consumption. All sales shall be for the personal use and consumption of the purchaser. Resale of any alcoholic beverage purchased within the exterior boundaries of the Reservation is prohibited. Any person who is not licensed pursuant to this Liquor Ordinance who purchases an alcoholic beverage within the boundaries of the Reservation, and sells it, whether in the original container or not, shall be guilty of a violation of this Liquor Ordinance and shall be subject to paying damages to the Tribe as set forth herein.

Chapter V—Licensing

501. Application for Tribal Liquor License Requirements. No Tribal license shall be issued under this Liquor Ordinance except upon a sworn application filed with the Tribal Council containing a full and complete showing of the following:

(a) Satisfactory proof that the applicant is or will be duly licensed by the State of California to sell alcoholic beverages;

(b) Satisfactory proof that the applicant is of good character and reputation and that the applicant is financially responsible;

(c) The description of the premises in which the alcoholic beverages are to be sold and proof that the applicant is the owner of such premises or the lessee of such premises for at least the term of the license;

(d) Agreement by the applicant to accept and abide by all conditions of the Tribal license;

(e) Payment of a fee established from time to time by the Tribal Council. Said fee is established initially at two hundred and fifty dollars ($250.00) but can be changed by Tribal Council resolution at any time;

(f) Satisfactory proof that neither the applicant, nor the applicant's spouse, nor any principal owner, officer, shareholder, or director of the applicant, if an entity, has ever been convicted of a felony or a crime of moral turpitude as defined by the laws of the State of California; and

(g) Satisfactory proof that the notice of application has been posted in a prominent, noticeable place on the premises where alcoholic beverages are to be sold for at least 30 days prior to consideration by the Tribal Council and has been published at least twice in such local newspaper serving the community that may be affected by the license as the Tribal Council may authorize. The notice shall state the date, time, and place when the application shall be considered by the Tribal Council pursuant to section 502 of this ordinance.

502. Hearing on Application for Tribal Liquor License. All applications for a Tribal Liquor License shall be considered by the Tribal Council in open session at which the applicant, his, her or its attorney, and any persons protesting the application shall have the right to be present, and to offer sworn, oral or documentary evidence relevant to the application. After the hearing, the Tribal Council, by secret ballot, shall determine whether to grant or deny the application based on: (1) Whether the requirements of section 501 have been met; and (2) whether the Tribal Council, in its discretion, determines that granting the license is in the best interest of the Tribe. In the event that the applicant is a member of the immediate family of a Tribal Council member, such Tribal Council member shall not vote on the application or participate in the hearings as a Tribal Council member. For purposes of this section “immediate family member” shall be defined as mother, father, brother, sister spouse or child.

503. Temporary Permits. The Tribal Council or its designee may grant a temporary permit for the sale of liquor for a period not to exceed three (3) days to any person applying for the same in connection with a Tribal or community activity, provided that the applicable conditions prescribed in section 504 of this Liquor Ordinance shall be observed by the permittee. Each permit issued shall specify the types of alcoholic beverages to be sold. Further, a fee of fifty dollars ($50.00) will be assessed on temporary permits.

504. Conditions of a Tribal Liquor License. Any tribal liquor license issued under this Liquor Ordinance shall be subject to such reasonable conditions as the Tribal Council shall fix, including but not limited to, the following;

(a) The license shall be for a term not to exceed one (1) year.

(b) The licensee shall at all times maintain an orderly, clean and neat establishment, both inside and outside the licensed premises.

(c) The licensed premises shall be subject to patrol by Tribal law enforcement personnel and other such law enforcement officials as may be authorized under federal, California or Tribal law.

(d) The licensed premises shall be open to inspection by duly authorized Tribal officials at all times during the regular business hours.

(e) Subject to the provisions of subsection “g” of this section, no liquor or alcoholic beverages shall be sold, served, disposed of, delivered, or given to any person, or consumed on the licensed premises except in conformity with the hours and days prescribed by the laws of the State of California, and in accordance with the hours fixed by the Tribal Council, provided that the licensed premises shall not operate or open earlier, or operate or close later, than is permitted by the laws of the State of California.

(f) No liquor shall be sold within 200 feet of a polling place on Tribal election days, or when a referendum or initiative is held of the voting members of the Tribe, and including special days of observation as designated by the Tribal Council.

(g) All acts and transactions under the authority of the Tribal liquor license shall be in conformity with the laws of the State of California, with this Liquor Ordinance, and with any Tribal liquor license issued pursuant to this Liquor Ordinance.

(h) No person under the age permitted under the laws of the State of California shall be sold, served, delivered, given, or allowed to consume alcoholic beverages in the licensed establishment or area.

(i) There shall be no discrimination in the operations under the tribal license by reason of race, color, or creed.

505. Licenses not a Property Right. Notwithstanding any other provision of this Liquor Ordinance, a Tribal liquor license is a mere permit for a fixed duration of time. A Tribal liquor license shall not be deemed a property right or vested right of any kind, nor shall the granting of a tribal liquor ordinance give rise to a presumption of legal entitlement to a license/permit in a subsequent time period.

506. Assignment or Transfer. No Tribal license issued under this Liquor Ordinance shall be assigned or transferred without the prior written approval of the Tribal Council expressed by formal resolution.

Chapter VI—Regulations and Enforcement

601. Sale or Possession with Intent to Sell Without a Permit. Any person who shall sell or offer for sale or distribute or transport in any manner, any liquor in violation of this Liquor Ordinance, or who shall operate or shall have liquor in his or her possession with intent to sell or distribute without a license or permit, shall be guilty of a violation of this Liquor Ordinance.

602. Purchase From Other Than Licensed or Allowed Facilities. Any person who, within the boundaries of the Reservation, buys liquor from any person other than at a properly licensed or allowed facility shall be guilty of a violation of this Liquor Ordinance.

603. Sales to Persons under the Influence of Liquor. Any person who sells Liquor to a person apparently under the influence of liquor shall be guilty of a violation of this Liquor Ordinance.

604. Consuming Liquor in Public Conveyance. Any person engaged 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 any liquor in any public conveyances shall be guilty of an offense. Any person who shall drink any liquor in a public conveyance shall be guilty of a violation of this Liquor Ordinance.

605. Consumption or Possession of Liquor by Persons Under 21 Years of Age. No person under the age of 21 years shall consume, acquire or have in his or her possession any alcoholic beverage. No person shall permit any other person under the age of 21 years 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 Liquor Ordinance for each and every drink consumed.

606. Sales of Liquor to Persons Under 21 Years of Age. Any person who shall sell or provide liquor to any person under the age of 21 years shall be guilty of a violation of this Liquor Ordinance for each sale or drink provided.

607. Transfer of Identification to a Minor. Any person who transfers in any manner an identification of age to a minor for purpose of permitting such minor to obtain liquor shall be guilty of an offense; provided that corroborative testimony of a witness other than the minor shall be a requirement of finding a violation of this Liquor Ordinance.

608. Use of False or Altered Identification. Any person who attempts to purchase an alcoholic beverage through the use of false or altered identification shall be guilty of a violation of this Liquor Ordinance.

609. Acceptable Identification. Where there may be the question of a person's right to purchase liquor by reason of his or her age, such person shall be required to present any of the following cards of identification which shows his or her correct age and bears his or her signature and photograph:

(1) A driver's license of any state or identification card issued by any state department of motor vehicles;

(2) United States active military duty; or

(3) A passport.

610. Violations of this Liquor Ordinance. Any person guilty of a violation of this Ordinance shall be liable to pay the Tribe a civil fine not to exceed $500 per violation as civil damages to defray the Tribe's cost of enforcement of this Liquor Ordinance. In addition to any penalties so imposed, any license or permit issued hereunder may be suspended or cancelled by the Tribal Council for the violation of any of the provisions of this Liquor Ordinance, or of the Tribal license or permit, upon hearing before the Tribal Council after ten (10) days notice to the licensee. The decision of the Tribal Council shall be final and no appeal therefrom allowed. The Tribal Council shall grant all persons in any hearing regarding violations, penalties, or license suspension or cancellations under this Ordinance all the rights and due process granted by the Indian Civil Rights Act, 25 U.S.C. 1302 et seq. Notice of a Tribal Council hearing regarding an alleged violation of this Ordinance shall be given to the affected individual(s) or entity(ies) at least 10 days in advance of the hearing. The notice will be delivered in person or by certified mail with the Tribal Council retaining proof of service. The notice will set out the right of the alleged violator to be represented by counsel retained by the alleged violator the right to speak and present witnesses and to cross examine any witnesses against them.

611. Possession of Liquor Contrary to This Liquor Ordinance. Alcoholic beverages which are possessed contrary to the terms of this Liquor Ordinance are declared to be contraband. Any Tribal agent, employee or officer who is authorized by the Tribal Council to enforce this section shall have the authority to, and shall, seize all contraband.

612. Disposition of Seized Contraband. Any officer seizing contraband shall preserve the contraband in accordance with the appropriate California law code. Upon being found in violation of this Liquor Ordinance by the Tribal Council, the party shall forfeit all right, title and interest in the items seized which shall become the property of the Tribe.

Chapter IX—Severability and Miscellaneous

901. Severability. If any provisions or application of this Liquor Ordinance is determined upon review by a court of competent jurisdiction to be invalid, such adjudication shall not be held to render ineffectual the remaining portions of this Ordinance or to render such provisions inapplicable to other persons or circumstances.

902. Prior Enactments. Any and all prior ordinances, resolutions or enactments of the Tribal Council which are inconsistent with the provisions of this Liquor Ordinance are hereby rescinded.

903. Conformance with Tribal State and Federal Law. This Ordinance conforms with all tribal law and governing documents such as the Tribal Constitution. All provisions and transactions under this Ordinance shall be in conformity with California State law regarding alcohol to the extent required by 18 U.S.C. 1161 and with all federal laws regarding alcohol in Indian country.

904. Enforcement. All actions brought by the Tribal Council to enforce the provisions of this Ordinance shall be filed in the Tribal Court of the Coyote Valley Band of Pomo Indians or in an inter-tribal Court of competent jurisdiction. In the absence of a Tribal Court or Inter-tribal Court, said actions shall be filed in Federal court in the northern district of California. The Coyote Valley Band of Pomo Indians shall have exclusive jurisdiction if a Tribal Court is in place. If the Tribe is participating in an inter-tribal court and has no Tribal Court, the inter-tribal court shall have exclusive jurisdiction. If there is neither a Tribal Court or Inter-Tribal Court in which to file, then the Federal court in the northern district of California shall have exclusive jurisdiction.

905. Effective Date. This Liquor Ordinance shall be effective after the Secretary of Interior certifies the Ordinance and publishes it in the Federal Register.

Chapter X—Amendment

1001. Amendment or Repeal. This Ordinance may be amended or repealed by a majority vote of the Tribal Council at a properly held meeting. Amendments of this Ordinance need not be published in the Federal Register to become effective.

Chapter XI—Sovereign Immunity

1101. Nothing contained in this Liquor Ordinance is intended to nor does it in any way limit, alter, restrict, or waive the Tribe's sovereign immunity from unconsented suit or action.

Certification

The foregoing, Liquor Ordinance of the Coyote Valley Band of Pomo Indians, was introduced and adopted by the Coyote Valley Tribal Council on the 6th day of March 2003 at a regular meeting, at which a quorum was present, by the following vote: AYES—6; NOES—0; ABSTAIN—0.

Priscilla Hunter,

Chairwoman.

Attested:

Darlene Crabtree,

Secretary.