01-19404. Tuolumne Rancheria Alcoholic Beverage Control Ordinance

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes the Tuolumne Rancheria Alcoholic Beverage Control Ordinance. The Ordinance regulates the control, possession, and sale of liquor on the Tuolumne Rancheria trust lands, in conformity with the laws of the State of California, where applicable and necessary. Although the Ordinance was adopted on November 2, 2000, 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 August 3, 2001.

FOR FURTHER INFORMATION CONTACT:

Kaye Armstrong, Office of Tribal 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 Tuolumne Rancheria Alcoholic Beverage Control Ordinance, No. 00-02, was duly adopted by the Tuolomne Rancheria Tribal Council on November 2, 2000. The Tuolomne Rancheria, 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 Tuolumne Rancheria.

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 8.1.

I certify that Ordinance No. 00-02, the Tuolumne Rancheria Alcoholic Beverage Control Ordinance, was duly adopted by the Tuolumne Rancheria Tribal Council on November 2, 2000.

Dated: July 10, 2001.

Neal A. McCaleb,

Assistant Secretary—Indian Affairs.

The Tuolumne Rancheria Alcoholic Beverage Control Ordinance, No. 00-02, reads as follows:

Alcoholic Beverage Control Ordinance

Article I—Findings and Policy.

The Tribe finds that:

1. Under the inherent sovereignty of the Tribe, this Ordinance shall be deemed an exercise of the Tribe's power for the protection of the welfare, health, peace, morals and safety of the members of the Tribe.

2. The introduction, possession, and sale of alcoholic beverages on the Tribe's lands are matters of special concern to the Tribe.

3. The Tribe's policy is to assure that any possession, importation, sale, or consumption of an alcoholic beverage within the Tribe's jurisdiction, shall occur under the regulation and control of the Tribe as set forth in this Ordinance.

4. This Ordinance shall be construed to comply with federal and tribal laws and with applicable state laws.

Article II—Definitions.

The stated terms are defined as follows unless a different meaning is expressly provided or the context clearly indicates otherwise:

1. Alcoholic Beverage. Alcoholic Beverage shall include alcohol, spirits, liquor, wine, beer, and every 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. mean any intoxicating liquor, beer or any wine, as defined under the provisions of this Ordinance or other applicable law. It shall be interchangeable in this Ordinance with the term liquor.

2. Applicable Law. Applicable Law or laws include federal law, tribal law, and laws of the State of California regarding the possession, sale, use, distribution and control of alcoholic beverages.

3. Community Council. Community Council shall mean the Community Council of the Tuolumne Band of Me-Wuk Indians of the Tuolumne Rancheria of California, which includes all eligible voters and is its governing body.

4. Legal Age. Legal Age shall mean the same as the age requirements of the State of California, which is currently 21 years. If the drinking age for the State of California is repealed or amended to raise or lower the legal age for drinking within California, the Community Council is authorized to amend this Article to match the age limit imposed by applicable state law.

5. Person. Person shall mean any individual, firm, partnership, joint venture, association, corporation, trust, or any other group of combination acting as a unit.

6. Sale. Sale shall mean the exchange of property and/or any transfer of ownership of, title to, or possession of property for a valuable consideration, exchange or barter, in any manner or by any means whatsoever. Sale includes optional sales contracts, leases with options to purchase and other contracts under which possession of property is given to purchaser, buyer, or consumer but title is retained as security for the payment of the purchase price, and includes any transaction whereby, or any consideration, title to alcoholic beverages is transferred from one person to another.

Article III—General Prohibition.

It shall be a violation of tribal law for any person on those lands under the jurisdiction and control of the Tribe to manufacture for sale, to sell, offer or keep for sale, possess, transport, or conduct any transaction involving any alcoholic beverage except in compliance with the terms, conditions, limitations, and restrictions specified in this Ordinance.

Article IV—Powers of Enforcement.

The Tribe, through the Community Council or its duly authorized representatives, in respect to the enforcement of this Ordinance, shall have the power and duty to:

1. Develop, approve, publish, enforce and interpret such rules and regulations as may be necessary for enforcement of this Ordinance regarding the sale, manufacture, and distribution of alcoholic beverages on all lands over which the Tribe has jurisdiction;

2. Employ managers, accountants, security personnel, attorneys, inspectors, and such other persons as shall be reasonably necessary to allow the Community Council to perform its functions;

3. Issue licenses permitting the sale or manufacture or distribution of alcohol on the lands over which the Tribe has jurisdiction;

4. Hold hearings on violations of this Ordinance, as well as hearings for the issuance, denial, suspension, or revocation of licenses hereunder. Notice and the opportunity to be heard will be provided by the Tribe in such cases;

5. Bring suit in the appropriate court of competent jurisdiction to enforce this Ordinance as necessary;

6. Establish, determine, and levy fines and seek damages for violation of this Ordinance;

7. Collect taxes and fees levied or set by the Community Council and to keep records, books, and accounts; and

8. Confiscate liquor sold, possessed or introduced in violation of this Ordinance and to sell or otherwise dispose of such confiscated liquor for the benefit of the Tribe.

Article V—Right to Inspect and Search.

The premises on which alcoholic beverages are sold or distributed shall be open for inspection by the Tribe, through the Community Council or its duly authorized representatives, at all reasonable times for the purpose of ascertaining compliance with the provisions and requirements of this Ordinance. Where warranted, the Tribe shall conduct reasonable searches and may seize goods.

Article VI—Sales and Possession of Alcohol.

The sale and possession of alcohol on tribal lands shall be governed by the following:

1. The possession or introduction of alcoholic beverages within the exterior boundaries of the Tribe's Rancheria or on other Indian Lands of the Tribe shall be lawful if such possession or introduction is in conformity with Applicable Laws.

2. The sale of alcoholic beverages by business entities owned by and subject to the control of the Tribe shall be lawful; provided that such sales are in conformity with Applicable Laws.

3. The Tribe is authorized to sell alcoholic beverages by the drink at special events if such sale is authorized by the Tribe, provided that such sales are in conformity with Applicable Laws.

4. The sale of alcoholic beverages shall be for the personal use and consumption of the purchaser, and the resale of alcoholic beverages is prohibited unless such person or entity is licensed to do so pursuant to this Ordinance and such resale is authorized under tribal and other Applicable Laws.

Article VII—Licensing and Enforcement.

No tribal license shall issue under this Ordinance except upon a sworn application filed with the Tribe containing full and complete information including but not limited to the following:

1. A completed application form containing the name and address of the applicant, and including all principal officers, directors, and stockholders holding a 10% or greater interest in the corporation, and each partner in a partnership.

2. Information regarding other licenses applied for or held, a statement that applicant has not been convicted of a felony or violated applicable alcoholic beverage laws, and the notarized signature of applicant. The Tribe may request other information, including fingerprints, as part of the licensing process, and a licensing and investigation fee.

3. All applicants must provide specific information regarding the location(s) where applicant proposes to do business, as well as the type of liquor transaction for which application is made (for example, a retail license authorizing applicant to sell alcoholic beverages at retail to be consumed off the premises; or a retail license authorizing the applicant to sell only beer and wine at retail to be consumed only on the premises).

4. Any license granted must be renewed at least every two years, and can be transferred only with the written consent of the Tribe.

5. The Tribe may revoke, suspend, or deny a license at any time, based on violation, misrepresentation, failure to renew in a timely manner, failure to provide information requested by the Tribe, and other good cause shown. Applicants or licensees whose licenses are denied, suspended, or revoked may request a hearing before the Tribe.

6. Any person determined by the Tribe to be in violation of the Ordinance shall be subject to civil fines and penalties, based on a schedule of fines applicable to such violations. Penalties may include the imposition of criminal sanctions and penalties, as warranted, consistent with all applicable law.

7. In investigating applicants, the Tribe shall consider whether the applicant is in compliance with all Applicable Laws, and whether such licensing will serve the best interests of the Tribe. All applicants must prove their suitability to obtain a tribal license and to qualify for a state liquor license.

8. Applicant has the burden of providing satisfactory proof that applicant is of good character, has a good reputation in the tribal and local community, and that applicant is financially responsible and meets all other licensing standards established by the Tribe.

9. The Tribe is authorized hereunder to promulgate regulations and procedures consistent with the licensing requirements established in this Ordinance.

Article VIII—Licensing Hearings.

All applications for a tribal liquor license shall be reviewed and considered by the Tribe, and the Tribe may convene a hearing to take evidence regarding the application. The Community Council shall determine whether to grant or deny the application based on the following criteria:

1. Whether all suitability requirements have been met;

2. Whether all requirements of this Ordinance have been addressed; and

3. Whether the Community Council, in its discretion, determines that granting the license is in the best interests of the Tribe.

In the event an applicant is a member of the Community Council, the member shall not vote on the application or participate in the hearings as a Community Council member.

Article IX—Conditions of the Tribal License.

Any tribal license issued under this title shall be subject to such conditions as the Community Council shall establish, 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 establishment, both inside and outside the licensed premises.

3. The licensed premises shall be subject to patrol and inspection by duly authorized tribal enforcement or other tribal officials or their designee, and by such other law enforcement officials as may be authorized by law at all times during regular business hours, and after hours as deemed necessary and prudent by such officials.

4. No alcoholic beverages shall be sold, served, disposed of, delivered or consumed on the licensed premises except in conformity with the hours and days prescribed by the Community Council and by the laws of the State of California to the extent applicable.

5. 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 license give rise to a presumption of legal entitlement to the granting of such license for a subsequent time period.

Article X—Tribally-Owned Establishments

The Tribe's Community Council may issue, by resolution, an appropriate license to a tribally-owned establishment upon such determination as is necessary to assure compliance with applicable laws.

Article XI—Sovereign Immunity.

Nothing contained in this Ordinance is intended to, nor does it in any way limit, alter, restrict, or waive the sovereign immunity of the Tribe or any of its agencies from unconsented suit or other such action of any kind.

Article XII—Severability, Prior Enactments, Amendment, Compliance with Law, & Effective Date.

1. If any provision or application of this ordinance is determined by an agency or court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Ordinance shall remain and be unaffected thereby.

2. All prior tribal laws, ordinances, or resolutions which are or may be determined to be inconsistent with the provisions of this Ordinance are hereby repealed to the extent inconsistent with this Ordinance.

3. This Ordinance may be amended by majority vote of the Community Council at any time at a duly noticed meeting. Any such amendment shall become effective upon publication by the Secretary of the Interior in the Federal Register, unless applicable law does not require such publication for the amendment to become effective.

4. All provisions of this Ordinance shall comply with 18 U.S.C. 1161.

5. 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.