03-13472. Mohegan Tribe of Indians of Connecticut Liquor Control Code

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes the Mohegan Tribe of Indians of Connecticut Liquor Control Code. The Code regulates and controls the possession, sale and consumption of liquor within the boundaries of the Mohegan Indian Reservation, in conformity with the laws of the State of Connecticut where applicable and necessary. Although the Code was adopted on April 11, 2000, it does not become effective until approved by the Department of the Interior and published in the Federal Register because failure to comply with the Code may result in criminal charges.

EFFECTIVE DATE:

This Code is effective on May 30, 2003.

FOR FURTHER INFORMATION CONTACT:

Duane Bird Bear, Office of Tribal Services, 1849 C Street, NW., MS 320-SIB, 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 transactions in Indian country. The Mohegan Tribe of Indians of Connecticut Liquor Code, Resolution No. 2000-05, was duly adopted by the Mohegan Tribal Council on April 11, 2000. The Mohegan Tribe of Indians of Connecticut enacted this ordinance for the purpose of regulating and controlling the possession and sale of liquor on the lands of the Mohegan Tribe. The ordinance governing liquor possession and sale on the lands of the Mohegan Tribe 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.

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 8.1.

I certify that Resolution No. 2000-05, the Mohegan Tribe of Indians of Connecticut Liquor Control Code, was duly adopted by the Mohegan Tribe of Indians on April 11, 2000.

Dated: May 16, 2003.

Aurene M. Martin,

Assistant Secretary—Indian Affairs.

The Mohegan Tribe of Indians of Connecticut Liquor Control Code, Ordinance No. 2000-05, reads as follows:

The Mohegan Tribe of Indians of Connecticut Liquor Control Code

Section I. Title

This Code shall be known as “The Mohegan Tribe Liquor Control Code.”

Section II. Purpose and Authority

The purpose of this Code is to regulate and control the possession, sale and consumption of liquor within the boundaries of the Mohegan Indian Reservation. This Code is enacted pursuant to the Act of August 15, 1953 (Pub. L. 83-277, 67 Stat. 586, 18 U.S.C. 1161). Authority for enactment is derived from Article IX, Section 2 (l), (n), and (p) of the Constitution of The Mohegan Tribe. The enactment of a tribal code governing liquor sales on the Mohegan Indian Reservation and other lands subject to the Tribe's jurisdiction will enhance the ability of the tribal government to control possession, sale and consumption of liquor within the boundaries of the Reservation. This Code is enacted in conjunction with the laws of the State of Connecticut applicable to the sale or distribution of alcoholic beverages, which apply to the service of alcoholic beverages within any gaming facility of the Tribe by virtue of the State of Connecticut—Mohegan Tribe Gaming Compact.

Section III. Definitions

The following words and phrases shall have the following meanings:

a. Alcohol means the product of distillation of any fermented liquid, rectified either once or more often, whatever may be the origin thereof, and includes synthetic ethyl alcohol which is considered nonpotable.

b. Alcoholic liquor or alcoholic beverage includes the four varieties of liquor: alcohol, beer, spirits, and wine—and every liquid or solid, patented or not, containing alcohol, spirits, wine or beer and capable of being consumed by a human being for beverage purposes. Any liquid or solid containing more than one of the four varieties so defined is considered as belonging to that variety which has the higher percentage of alcohol, according to the following order: Alcohol, spirits, wine and beer, except as provided in the definition of “wine” below. The provisions of this chapter shall not apply to any liquid or solid containing less than one-half of 1 percent of alcohol by volume.

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

d. Beer means any beverage obtained by the alcoholic fermentation of an infusion or decoction of barley, malt and hops in drinking water.

e. Commission means the Mohegan Tribal Gaming Commission.

f. Malt Liquor means beer, ale, stout, and porter.

g. MTGA means the Mohegan Tribal Gaming Authority.

h. Reservation means all lands taken into trust for the Mohegan Tribe pursuant to the Mohegan Land Claims Settlement Act, 25 U.S.C. 1775, and any additional lands added to the Mohegan Reservation pursuant to any other applicable federal law.

i. Sale or Sell means the transfer, exchange or barter, by any means whatsoever, for a consideration, by any person, association, partnership, or corporation, of liquor or beer products.

j. Spirits mean any beverage that contains alcohol obtained by distillation mixed with drinkable water and other substances in solution, including brandy, rum, whiskey and gin.

k. State means the State of Connecticut.

l. Tribe means The Mohegan Tribe of Indians of Connecticut.

m. Tribal Council means the Tribal Council of The Mohegan Tribe of Indians of Connecticut.

n. Wholesale Price means the established price for which liquor and beer products are sold for resale on the Reservation by the manufacturers or distributor, exclusive of any discount or other reduction.

o. Wine means any alcoholic beverage obtained by the fermentation of the natural sugar content of fruits, such as grapes or apples or other agricultural products, containing sugar, including fortified wines such as port, sherry and champagne.

Section IV. Powers of Enforcement

a. The Mohegan Tribal Gaming Commission is hereby delegated primary regulatory authority over the subject matter of this Code. The Commission shall have the following powers and duties:

1. To establish, publish and enforce rules and regulations governing the sale, manufacture, and distribution of liquor on the Reservation. Such rules and regulations shall be at least as stringent as the rules and regulations of the State of Connecticut and shall be approved by the Tribal Council prior to taking effect;

2. To employ managers, accountants, security personnel, inspectors, and other such persons as may be reasonably necessary to allow the Commission to perform its functions;

3. To issue licenses permitting the manufacture, sale and distribution of liquor on the Reservation;

4. To hold hearings on violations of this Code or for the issuance or revocation of licenses hereunder;

5. To bring suit to enforce this Code as necessary;

6. To determine penalties for violations of this Code;

7. To make such reports as may be required;

8. To collect fees levied or set in relation to this Code and keep accurate records, books and accounts; and

9. To exercise such other powers as is necessary and appropriate to fulfill the purposes of this Code.

b. The Commission shall have the authority to authorize the sale of liquor only on those areas of the Reservation that have been approved by the Tribal Council.

Section V. Limitation of Powers

In the exercise of its powers and duties under this Code, the Commission and its individual members shall not accept gratuity, compensation, or other things of value from any liquor producer, wholesaler, retailer, or distributor or from any liquor licensee.

Section VI. Inspection Rights

The premises upon which liquor is sold or distributed shall be open to inspection by the Commission during all hours of operation for the purposes of ascertaining compliance with this Code.

Section VII. Sales of Liquor

a. Tribal Liquor License Required. No sale of any alcoholic beverage shall be made on the Reservation without a tribal liquor license.

b. Sales for Cash. All liquor sales within the Reservation boundaries shall be on a cash or cash equivalent basis, including the use of ATM cards, debit cards, Mohegan Sun Players Club Cards, checks or major credit cards.

c. Sales for Personal Consumption. All sales shall be for the personal use and consumption by 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 Code 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 Code and shall be subject to a fine under this Code.

Section VIII. Licensing

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

1. Satisfactory proof that the applicant is duly licensed by the State to sell alcoholic beverages.

2. Satisfactory completion of a background investigation including but not limited to a determination that the applicant is of good character and reputation and that the applicant is financially responsible.

3. The description and location of the premises in which the alcoholic beverages are to be sold and proof that the applicant is entitled to use such premises for such purposes for the duration of the time period of the license.

4. Agreement by the applicant to accept and abide by all conditions of the license.

5. Payment of a fee established by the Commission.

6. Satisfactory proof that neither the applicant, nor the applicant's spouse, nor any principal owner, officer, shareholder, or director of the applicant, has ever been convicted of a felony or a crime of moral turpitude as defined by the laws of the State.

Section IX. Processing Applications for Tribal Liquor License

The Commission will consider the merits of applications for liquor licenses based on the following factors:

(1) whether the requirements of Section VIII have been met; and

(2) whether granting the license is in the best interests of the Tribe.

No member of the Commission shall be a part of the decision making process if an application is submitted by a Commission member or any person in the immediate family of a Commission member.

Section X. Temporary Permits

The Commission may grant a temporary permit for the sale of liquor, in any form, for a period not to exceed 3 days to any persons applying for the same in connection with a tribal or community activity, provided that the conditions prescribed in Section XI of this Code shall be observed by the permittee. Each permit issued shall specify the types of alcoholic beverages to be sold, the time, date and location permitted. A fee, as set by the Commission, will be assessed on temporary permits.

Section XI. Conditions of the Tribal License

a. Any license issued under this Code shall be subject to such reasonable conditions, as the Commission shall fix, including, but not limited to the following:

1. The license shall be for a term not to exceed 2 years.

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

3. The licensed premises shall be open to inspection by duly authorized tribal officials at all times during regular business hours.

4. Alcoholic beverages shall be sold, served, disposed of, delivered or given to any person, and consumed on the licensed premises in conformity with the hours and days prescribed by the laws of the State, and in accordance with the hours fixed by the Commission.

5. All acts and transactions under authority of a liquor license shall be in conformity with State and federal law, and shall be in accordance with this Code and any license issued pursuant to this Code.

6. No person under the age permitted under the laws of the State (21 years) shall be sold, served, delivered, given, or allowed to consume alcoholic beverages.

7. There shall be no discrimination in the operations under the license by reason of race, color, or creed.

Section XII. License Not a Property Right

Notwithstanding any other provision of this Code, a liquor license is a mere permit for a fixed duration of time. A liquor license shall not be deemed a property right or vested right of any kind, nor shall the granting of a liquor license give rise to a presumption of legal entitlement to the granting of such license for a subsequent time period.

Section XIII. Assignment or Transfer

No license issued under this Code shall be assigned or transferred without the written approval of the Commission expressed in a formal resolution.

Section XIV. Rules, Regulations, and Enforcement

a. 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 Code, or who shall operate or shall have liquor in his possession with intent to sell or distribute without a license or permit shall be guilty of a violation of this Code.

b. Purchases from other than licensed or allowed facilities. Any person who, within the boundaries of the Reservation, buys liquor from any person other than a licensed facility shall be guilty of a violation of this Liquor Code.

c. 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 liquor. 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 Code for each and every alcoholic beverage.

d. 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 Code for every sale or drink provided.

e. Transfer of identification to a minor. Any person who transfers in any manner an identification of age to a minor for the 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 Code.

f. Use of False or Altered Identification. Any person who attempts to purchase an alcoholic beverage through the use of a false or altered identification shall be guilty of violating this Code.

g. Acceptable Identification. Where there may be a question of a person's right to purchase liquor by reason of his or her age, such person shall be required to present any one 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 duty military ID; (3) a passport; or (4) a Mohegan tribal identification card or other recognized tribal identification card.

h. Violations of this Liquor Code. Any person guilty of a violation of this Code 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 Code. In addition to any fine so imposed, any license or permit issued hereunder may be suspended or canceled by the Commission for the violation of any of the provisions of this Code, or of the license or permit, upon hearing before the Commission. The decision of the Commission shall be final and no appeal therefrom shall be allowed. The Commission shall grant all persons in any hearing regarding violations, fine, or license suspensions under this Code all the rights and due process granted by the Indian Civil Rights Act, 25 U.S.C. 1302, et seq. Notice of a Commission hearing regarding an alleged violation of this Code shall be given to the affected individual(s) or entity(ies) by certified mail at least 10 days in advance of the hearing. The notice will be delivered in person or by certified mail with the Commission retaining proof of service. The notice will set out the rights of the alleged violator, including but not limited to the right to an attorney to represent the alleged violator, the right to speak and to present witnesses and to cross-examine any witnesses against them.

i. Possession of Liquor Contrary to this Liquor Code. Beverages containing alcoholic liquor which are possessed contrary to the terms of this Code are declared to be contraband. Any tribal agent, employee, or officer who is authorized by the Commission to enforce this Section shall have the authority to, and shall, seize all contraband.

j. Disposition of Seized Contraband. Any officer seizing contraband shall preserve the contraband in accordance with applicable Tribal and State law. Upon being found in violation of this Code by the Commission, the party shall forfeit all right, title and interest in the items seized which shall become the property of the Tribe.

Section XV. Profits

a. Disposition of Proceeds. The gross proceeds collected by the Commission from licensing shall be distributed as follows:

1. For the payment of all necessary personnel, administrative costs, and legal fees for the administration of the provisions of this Code.

2. The remainder shall be turned over to the account of the Mohegan Tribe of Indians of Connecticut.

Section XVI. Severability

If a court of competent jurisdiction invalidates any part of this Code, all valid parts that are severable from the invalid part shall remain in effect. If a part of this Code is invalid in one or more of its applications, that part shall remain in effect in all valid applications that are severable from the invalid applications.

Section XVII. Sovereign Immunity

Nothing contained in this Code is intended to nor does in any way limit, alter, restrict, or waive the Tribe's sovereign immunity.

Section XVIII. Effective Date

The Mohegan Tribe hereby approves The Mohegan Tribe of Indians of Connecticut Liquor Control Code. Dated the 11th day of April 2000 at Uncasville, Connecticut.