[Federal Register Volume 60, Number 134 (Thursday, July 13, 1995)]
[Notices]
[Pages 36190-36193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17190]
[[Page 36189]]
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Part III
Department of the Interior
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Bureau of Indian Affairs
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Chemehuevi Indian Tribe Liquor Licensing Ordinance; Notice
Federal Register / Vol. 60, No. 134 / Thursday, July 13, 1995 /
Notices
[[Page 36190]]
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Chemehuevi Indian Tribe 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. I certify that Resolution No.
CHEM. R. 94-10-F, a resolution to repeal Tribal Ordinance No. 4, 7, 14,
and 18, rescind Tribal Resolution 94-06-G, and adopt a new ordinance
entitled ``Liquor License Ordinance,'' was duly adopted by the
Chemehuevi Tribal Council of the Chemehuevi Indian Tribe of the
Chemehuevi Reservation, California, on October 29, 1994. The Ordinance
provides for the regulation of the sale, possession, consumption,
distribution and manufacture of liquor in the area of Indian Country
under the jurisdiction of the Chemehuevi Indian Tribe of California.
DATES: This ordinance is effective as of July 13, 1995.
FOR FURTHER INFORMATION CONTACT: Branch of Judicial Services, Division
of Tribal Government Services, 1849 C St., NW., Mail-Stop 2611-MIB,
Washington, DC 20240-4001; Telephone (202) 208-4400.
SUPPLEMENTARY INFORMATION: The Chemehuevi Indian Tribe Liquor Licensing
Ordinance reads as follows:
Chemehuevi Liquor Licensing Ordinance
Section 1. Declaration of Findings. The Council hereby finds as
follows:
1. Under the Constitution of the Tribe, the Council is charged with
the duty of protecting the health, education, and general welfare of
the Chemehuevi Indian Tribe.
2. The introduction, possession and sale of alcoholic beverages on
the Chemehuevi Indian Reservation is a matter of special concern to the
Tribe.
3. Federal law leaves to 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 Chemehuevi Indian 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 Chemehuevi Indian Reservation and providing for the
purchase and sale of alcoholic beverages through tribally licensed
outlets will increase the ability of the tribal government of control
the distribution, sale and possession of liquor on the Chemehuevi
Indian 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.
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 Chemehuevi Indian Reservation and to promote temperance in the use
and consumption of alcoholic beverages increasing tribal control over
the possession and distribution of alcoholic beverages on the
Reservation.
Section 3. Repeal of Ordinance Number 18 and Adoption of Liquor
Licensing Ordinance. To the extent not previously repealed either
expressly or by implication, Ordinances Nos. 4, 7, 14, and 18 are
hereby expressly repealed.
Liquor Licensing Ordinance
Chapters:
02 General Provisions
04 Definitions
06 Prohibition of the Unlicensed Sale of Liquor on the Reservation
08 Application for License
10 Issuance, Renewal, and Transfer of Licenses
12 Revocation of Licenses
14 Enforcement
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 Interpretation and findings.
02.060 Conflicting provisions.
02.070 Application of 18 U.S.C. 1161.
02.010 Short Title. This ordinance shall be known and cited as the
``Chemehuevi Liquor Licensing Ordinance''.
02.020 Purpose. The purpose of this ordinance is to prohibit the
importation, manufacture, distribution and sale of alcoholic beverages
on the Chemehuevi Indian Reservation except pursuant to a license
issued by the Chemehuevi Tribal Council under the provisions of this
ordinance.
02.030 Sovereign immunity preserved. Nothing in this ordinance is
intended or shall be construed as a waiver of the sovereign immunity of
the Chemehuevi Indian Tribe. No officer or employee of the Chemehuevi
Indian Tribe 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 expressed and explicit written
authorization from the Chemehuevi Tribal Council.
02.040 Applicability within the reservation. This ordinance shall
apply to all persons within the exterior boundaries of the Chemehuevi
Indian Reservation consistent with the applicable federal Indian liquor
laws.
02.050 Interpretation and findings. The Chemehuevi Tribal Council
in the first instance may interpret any ambiguities contained in this
ordinance.
02.060 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.
02.070 Application of 18 U.S.C. 1161. The importation, manufacture,
distribution and sale of alcoholic beverages on the Chemehuevi 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. Sec. 1161.
Chapter 04
Definitions
Sections:
04.010 Interpretation.
04.020 Alcohol.
04.030 Alcoholic beverages.
04.040 Beer.
04.050 Distilled spirits.
04.060 Importer.
04.070 Liquor license.
04.080 Manufacturers.
04.090 Person.
04.100 Reservation.
04.110 Sale.
04.120 Seller.
04.130 Tribal Council.
04.140 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,
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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 or 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 Chemehuevi 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 Chemehuevi 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 Chemehuevi 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
Chemehuevi Tribal Council.
04.140 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. ``Manufacturers license'' means a license authorizing the
applicant to manufacture alcoholic beverages for the purpose of sale on
the reservation.
Chapter 08
Applications for Licenses
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.
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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 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.
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 license; and
E. Manufacturers 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.
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 the applicant has misrepresented any facts in the
application or given any false information to the Council in order to
obtain a license.
Chapter 10
Issuance, Renewal and Transfer of Licenses
Sections:
10.010 Public hearing.
10.020 Council action on the application.
10.030 Multiple locations.
10.040 Calendar year time limit.
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 the 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.
In the case of the sale of alcoholic beverages on boats a separate
license shall be issued for each boat regardless of the fact that the
boats are moored at one location or owned by one person.
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 license.
12.020 Accusations.
12.030 Hearing.
12.010 Revocation of license. 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 on the licensed premises or any immediate adjacent area
leased, assigned or rented by the licensee constituting a nuisance
within a reasonable time after receipt of
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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 General penalties.
14.020 Initiation of action.
14.010 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
under a separate ordinance adopted by the Council.
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 of the Chemehuevi Tribal Code.
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 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.
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 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 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.
Dated: July 6, 1995.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 95-17190 Filed 7-12-95; 8:45 am]
BILLING CODE 4310-02-P
