01-12690. Hopland Band of Pomo Indians Liquor Regulation and Licensing Ordinance

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes the Hopland Band of Pomo Indians Liquor Regulation and Licensing Ordinance. The Ordinance regulates the control, possession, and sale of liquor on the Hopland Band of Pomo Indians trust lands, in conformity with the laws of the State of California, where applicable and necessary. Although the Ordinance was adopted on March 2, 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 Ordinance is effective on May 21, 2001.

FOR FURTHER INFORMATION CONTACT:

Kaye Armstrong, Branch of Tribal Relations, Division of Tribal Government 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 adopted liquor ordinances for the purpose of regulating liquor transaction in Indian country. The Hopland Band of Pomo Indians Liquor Regulation and Licensing Ordinance, Resolution No. 01-03-02, was duly adopted by the Tribal Council of the Hopland Band of Pomo Indians on March 2, 2001. The Hopland Band of Pomo 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 effects among individuals and family members within the reservation of the Hopland Band of Pomo Indians.

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

I certify that by Resolution No. 01-03-02, the Hopland Band of Pomo Indians Liquor Regulation and Licensing Ordinance was duly adopted by the Tribal Council on March 2, 2001.

Dated: May 11, 2001.

James H. McDivitt,

Deputy Assistant Secretary—Indian Affairs (Management).

The Hopland Band of Pomo Indians Liquor Regulation and Licensing Ordinance, Resolution No. 01-03-02, reads as follows:

Liquor Regulation and Licensing Ordinance of the Hopland Band of Pomo Indians

Section 1. Declaration of Findings. The Council hereby finds as follows:

1. Under Article IX of the Constitution of the Tribe, the Council has the power to administer Reservation assets and manage all economic affairs of the Tribe, to promote the peace, safety, health, and general welfare of the members of the Tribe, and to promulgate and adopt ordinances as needed by the Tribe.

2. The introduction, possession and sale of alcoholic beverages on the Hopland Indian Reservation (Reservation) is a matter of special concern to the Tribe.

3. Federal law leaves to federally recognized Indian tribes the decision regarding when and to what extent alcoholic beverage transactions shall be permitted on Indian reservations.

4. Present day circumstances make a complete ban on alcoholic beverages within the Reservation ineffective and unrealistic. At the same time, a need still exists for strict tribal regulation and control over alcoholic beverage distribution.

5. The enactment of a tribal ordinance governing alcoholic beverage sales on the Reservation 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 Reservation, 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.

6. In order to help ensure the certification of this Ordinance by the Secretary of the Interior, the Tribe's originally enacted Liquor Ordinance, as subsequently amended, needs to be repealed and this Ordinance enacted in its place.

Section 2. Declaration of Policy. The Council hereby declares that the policy of the Tribe is to eliminate the evils of unlicensed and unlawful manufacture, distribution, and sale of alcoholic beverages on the Reservation and to promote temperance in the use and consumption of alcoholic beverages by increasing tribal control over the possession and distribution of alcoholic beverages on the Reservation.

Section 3. Repeal of All Previously Enacted Liquor Ordinances and Adoption of a new Liquor Licensing Ordinance. All Ordinances previously enacted by the Hopland Tribal Council pertaining to the manufacture, distribution, sale or possession of alcoholic beverages are hereby repealed and a new ordinance entitled Liquor Regulation and Licensing Ordinance is hereby adopted which provides as follows:

Chapters

01. Introduction

02. General Provisions

04. Definitions

06. Prohibition of the Unlicensed Sale of Liquor

08. Application for License

10. Issuance, Renewal, and Transfer of Licenses

12. Revocation of Licenses

14. Enforcement

Chapter 01

Sections

01.010. Title

01.020. Authority

01.030. Purpose

01.040. Effective Date

Section 01.010. Title. This Ordinance shall be known as the Liquor Regulation and Licensing Ordinance of the Hopland Band of Pomo Indians.

Section 01.020. Authority. This Ordinance is enacted pursuant to the Act of August 15, 1953 (Pub L. 83-277, 67 Stat. 588, 18 U.S.C. § 1161), and Article IX of the Constitution of the Hopland Band of Pomo Indians.

Section 01.030. Purpose. The purpose of this ordinance is to regulate and control the possession and sale of liquor on the Hopland Indian 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 will at the same time, provide an important source of revenue for the continued operation and strengthening of the tribal government and the delivery of tribal government services.

Section 01.040. Effective Date. This Ordinance shall be effective on the date that it is published in the Federal Register by the Secretary of the Interior as required by applicable federal law.

Chapter 02—General Provisions

Sections

02.010. Short title

02.020. Purpose

02.030. Sovereign immunity preserved

02.040. Applicability within the Reservation

02.050. Possession of alcoholic beverages

02.060. Interpretation and findings

02.070. Conflicting provisions

02.080. Application of 18 U.S.C. 1161.

02.010. Short title. This ordinance shall be known and cited as the Hopland Liquor Regulation and Licensing Ordinance.

02.020. Purpose. The purpose of this Ordinance is to prohibit the importation, manufacture, distribution and sale of alcoholic beverages on the Hopland Indian Reservation except pursuant to a license issued by the Hopland Tribal Council under the provisions of this Ordinance.

02.030. Sovereign immunity preserved. Nothing in this Ordinance is intended nor shall be construed as a waiver of the sovereign immunity of the Hopland Band of Pomo Indians. No officer or employee of the Hopland Band of Pomo Indians 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 an express and explicit written authorization from the Hopland Tribal Council.

02.040. Applicability within the Reservation. This Ordinance shall apply to all persons within the exterior boundaries of the Hopland Indian Reservation consistent with the applicable federal Indian liquor laws.

02.050. Possession of alcoholic beverages. Nothing in this Ordinance shall be interpreted as prohibiting the possession, transportation or consumption of alcoholic beverages within the boundaries of the Hopland Indian Reservation. Possession, transportation and/or consumption of alcoholic beverages within the exterior boundaries of the Reservation in conformity with the provisions of Federal law relating to the possession, transportation, or consumption of alcoholic beverages is expressly permitted under this Ordinance.

02.060. Interpretation and findings. The Hopland Tribal Council in the first instance may interpret any ambiguities contained in this Ordinance.

02.070. Conflicting provisions. Whenever any conflict occurs between the provisions of this Ordinance or the provisions of any other ordinance of the Tribe, the stricter of such provisions shall apply.

02.080. Application of 18 U.S.C. 1161. The importation, manufacture, distribution and sale of alcoholic beverages on the Hopland Indian Reservation 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.

Chapter 04—Definitions

Sections

04.010. Interpretation

04.020. Alcohol

04.030. Alcoholic beverage

04.040. Beer

04.050. Distilled spirits

04.060. Importer

04.070. Liquor license

04.080. Manufacturer

04.090. Person

04.100. Reservation

04.110. Sale

04.120. Seller

04.130. Tribal Council

04.140. Tribe

04.150. Wine

04.010. 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.

04.020. Alcohol. Alcohol means ethyl alcohol, hydrated oxide of ethyl, or spirits of wine, from whatever source or by whatever process produced.

04.030. 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.

04.040. 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.

04.050. 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.

04.060. Importer. Importer means any person who introduces alcohol or alcoholic beverages into the Hopland Indian Reservation from outside the exterior boundaries of the Reservation for the purpose of sale or distribution within the Reservation, 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.

04.070. Liquor license. Liquor license means a license issued by the Hopland Tribal Council under the provisions of this Ordinance authorizing the sale, manufacture, or importation of alcoholic beverages on or within the Reservation consistent with federal law.

04.080. Manufacturer. Manufacturer means any person engaged in the manufacture of alcohol or alcoholic beverages.

04.090. Person. Person means any individual, whether Indian or non-Indian, receiver, assignee, trustee in bankruptcy, trust, estate, firm, partnership, joint 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 businesses of the Tribe. It shall be interchangeable in this Ordinance with the term seller or licensee.

04.100. Reservation. Reservation means all lands within the exterior boundaries of the Hopland Indian Reservation 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.

04.110. 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 placed for the purchase of such beverages, or soliciting or receiving such beverages.

04.120. Seller. Seller means any person who, while within the exterior boundaries of the Reservation, sells, solicits or receives an order for any alcohol, alcoholic beverages, distilled spirits, beer, or wine.

04.130. Tribal Council. Tribal Council or Council means the Hopland Tribal Council.

04.140. Tribe. Tribe means the Hopland Band of Pomo Indians.

04.150. 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 06—Prohibition of the Unlicensed Sale of Liquor

Sections

06.010. Prohibition of the unlicensed sale of liquor

06.020. Authorization to sell liquor

06.030. Types of licenses

06.010. Prohibition of the unlicensed sale of liquor. No person shall import for sale, manufacture, distribute or sell any alcoholic beverages within the Reservation without first applying for and obtaining a written license from the Council issued in accordance with the provisions of this Ordinance.

06.020. Authorization to sell liquor. Any person applying 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.

06.030. Types of licenses. The 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 of 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 of the premises or at a location other than the one designated in the license.

E. Manufacturer's license means a license authorizing the applicant to manufacture alcoholic beverages for the purpose of sale on the Reservation.

Chapter 08—Application for License

Sections

08.010. Application form and content

08.020. Fee accompanying application

08.030. Investigation; denial of application.

08.010. Application form and content. An application for a license shall be made to the 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 transaction applied for (i.e. retail on-sale general license, etc.).

D. Whether the applicant has a 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 fingerprints of each partner. In the case of a corporation, the signature and fingerprints of each of the officers of the corporation under the seal of the corporation.

G. The application shall be verified under oath, notarized and accompanied by the license fee required by this Ordinance.

08.020. Fee accompanying application. The 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 liquor; and

E. Manufacturer's license.

08.030. Investigation; denial of application. Upon receipt of an application for the issuance, transfer or renewal of a license and the application fee required herein, the 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 this Ordinance have been complied with, and shall investigate all matters connected therewith which may affect the public welfare and morals. The Council shall deny an application for issuance, renewal or transfer of a license if either the applicant or the premises for which a license is applied for does not qualify for a license under this Ordinance or if the applicant has misrepresented any facts in the application or given any false information to the Council in order to obtain a license.

The Council further may deny any application for issuance, renewal or transfer of a license if the Council cannot make the findings required by Section 10.20 of this Ordinance or the Council finds that the issuance of such a license would tend to create a law enforcement problem, or if issuance of said license would be a detriment to the health, safety and welfare of the Tribe or its members.

Chapter 10—Issuance, Renewal and Transfer of Licenses

Sections

10.010. Public hearing.

10.020. Council action on application.

10.030. Multiple locations.

10.040. Term of License/Temporary License.

10.050. Transfer of licenses.

10.010. Public hearing. Upon receipt of an application for issuance, renewal or transfer of a license, and the payment of all fees required under this Ordinance, the Secretary of the 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 (10) 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 Reservation. 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 Council shall hear from any person who wishes to speak for or against the application. The Council shall have the authority to place time limits on each speaker and limit or prohibit repetitive testimony.

10.020. Council action on application. Within thirty (30) days of the conclusion of the public hearing, the Council shall act on the matter. The Council shall have the authority to deny, approve, or approve with conditions the application. Before approving the application, the Council shall find: (1) 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 (2) that the sale of alcoholic beverages at the proposed premises is consistent with the Tribe's Zoning Ordinance.

Upon approval of an application, the Council shall issue a license to the applicant in a form to be approved from time to time by the Council by resolution. All businesses shall post their tribal liquor licenses issued under this Ordinance in a conspicuous place upon the premises where alcoholic beverages are sold, manufactured or offered for sale.

10.030. Multiple locations. Each license shall be issued to a specific person. Separate licenses shall be issued for each of the premises of any business establishment having more than one location.

10.040. Term of license/Temporary licenses. All licenses issued by the Council shall be issued on a calendar year basis and shall be renewed annually; provided, however, that the 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 Council by resolution.

10.050. 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 Council. The 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 08.010 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 12—Revocation of Licenses

Sections

12.010. Revocation of licenses

12.020. Accusations

12.030. Hearing

12.010. Revocation of licenses. The 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 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 constituting a nuisance on the licensed premises or any immediately adjacent area leased, assigned or rented by the licensee within a reasonable time after receipt of a notice to make such corrections has been received from the Council or its authorized representative.

12.020. Accusations. The 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 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 Council to revoke the license or licenses of the licensee against whom the accusation is made. Upon receipt of an accusation, the Secretary of the Council shall cause the matter to be set for a hearing before the Council. Thirty (30) 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 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 (10) days prior to the hearing date.

12.030. Hearing. Any hearing held on any accusation shall be held before a majority of the 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 Council. The Council shall render its decision within sixty (60) days after the date of the hearing. The decision of the Council shall be final and non-appealable.

Chapter 14—Enforcement

Sections

14.010. Right to inspect

14.020. General penalties

14.030. Initiation of action

14.010. Right to Inspect. Any premises within the area under the jurisdiction of this Ordinance on which liquor is sold or distributed shall be open for inspection by representatives of the Council at all reasonable times during business hours for the purposes of ascertaining whether the rules and regulations of this Ordinance are being complied with.

14.020. 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 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 enacted by the Hopland Tribal Council.

14.020. Initiation of action. Any violation of this Ordinance shall constitute a public nuisance. The Council may initiate and maintain an action in tribal court, or, if the tribal court does not have jurisdiction over the action, in the United States District Court for the Northern District of California, 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.

Section 4. Severability. If any part or provision of this Ordinance or the application thereof to any person or circumstance is held invalid, the remainder of this 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 affect. To this end the provisions of this Ordinance are severable.

Section 5. 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.