[Federal Register Volume 61, Number 186 (Tuesday, September 24, 1996)]
[Notices]
[Pages 50045-50048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24366]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Cahuilla Band of Indians Liquor Control 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 the Cahuilla
Band of Indians Liquor Control Ordinance was duly adopted and certified
by the Cahuilla General Council of the Cahuilla Band of Indians on
September 10, 1994, and August 31, 1996, Resolutions numbered 96-01 and
96-20. The Ordinance provides for the regulation of the sale,
possession and consumption of liquor on the Cahuilla Indian Reservation
and is in conformity with the laws of the State of California.
DATES: This Ordinance is effective as of September 24, 1996.
FOR FURTHER INFORMATION CONTACT: Bettie Rushing, Division of Tribal
Government Services, 1849 C Street NW, MS 4603-MIB, Washington, D.C.
20240-4001; telephone (202) 208-3463.
SUPPLEMENTARY INFORMATION: The Cahuilla Band of Indians Liquor control
Ordinance is to read as follows:
Cahuilla Band of Indians Liquor Control Ordinance
Section I--Introduction
101. Title. This ordinance shall be known as the ``Liquor Ordinance
of the Cahuilla Band of Indians.''
102. Purpose. The purpose of this ordinance is to regulate and
control the possession and sale of liquor on the Cahuilla Indian
Reservation.
[[Page 50046]]
Section II--Definitions
201. As used in this 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 ethyl, or spirit of wine which is commonly produced
by the fermentation or distillation of grain, starch, molasses, or
sugar, or other substances including all dilutions of this substance.
203. ``Alcoholic Beverage'' is synonymous with the term ``Liquor''
as defined in Section 208 of this Section.
204. ``Bar'' means any establishment with special space and
accommodations for sale by the glass and for consumption on the
premises of beer, as herein defined.
205. ``Beer'' means any beverage obtained by the alcoholic
fermentation of an infusion or decoction of pure 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 purposes 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. ``Committee'' means the Liquor Licensing Committee of the
Cahuilla Band of Indians, whose members shall be selected by the
Cahuilla General Council.
207. ``General Council'' means the General Council of the Cahuilla
Band of Indians which is composed of the voting membership of the
Tribe.
208. ``Liquor'' including 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 or 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 other substances, which contain more than one
percent of alcohol by weight shall be conclusively deemed to be
intoxicating.
209. ``Liquor Store'' means any store at which liquor is sold, and
for the purposes of this ordinance, includes a store at which only a
portion of which is devoted to the sale of liquor or beer.
210. ``Malt Liquor'' means beer, strong beer, ale, stout, and
porter,
211. ``Package'' means any container or receptacle used for holding
liquor.
212. ``Public Place'' includes state or county or tribal or federal
highways or roads; buildings and grounds used for school purposes;
public dance halls and grounds adjacent thereto; soft drink
establishments, public buildings, public meeting halls, lobbies, halls
and dining rooms of hotels, restaurants, theaters, gaming facilities,
entertainment centers, store garages, and filling stations which are
open to and/or are generally used by the public and to which the public
is permitted to have unrestricted access; public conveyances of all
kinds of character; and all other places of like or similar nature to
which the general public has right of access, and which are generally
used by the public. For the purposes of this 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.
213. ``Reservation'' means the Cahuilla Indian Reservation, which
is held in trust by the United States Government for the benefit of the
Cahuilla Band of Indians.
214. ``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.
215. ``Spirits'' means any beverage, which contains alcohol
obtained by distillation, including wines exceeding seventeen percent
of alcohol by weight.
216. ``Tribe'' means the Cahuilla Band of Indians.
217. ``Reservation Land'' means any land within the exterior
boundaries of the Reservation which is held in trust by the United
States for the Tribe.
218. ``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.
Section III--Powers of Enforcement
301. Powers. The Committee, in furtherance of the 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
Committee to perform its functions, subject to approval of the General
Council. 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 hearing on violations of this ordinance or for the
issuance or revocation of licenses hereunder;
e. To bring suit in the appropriate court to enforce this ordinance
as necessary;
f. To determine and seek damages for violation of this ordinance;
g. To make such reports as may be required by the General Council;
h. To collect taxes and fees levied or set by the Committee, and to
keep accurate records, books and accounts; and
i. To exercise such other powers as are delegated by the General
Council.
302. Limitation on Powers. In the exercise of its powers and duties
under this ordinance, the Committee and its individual members shall
not accept any gratuity, compensation or other thing of value from any
liquor wholesaler, retailer, or distributor or from any licensee.
303. Inspection Rights. The premises on which liquor is sold or
distributed shall be open for inspection by the Committee at all
reasonable time for the purposes of ascertaining whether the rules and
regulations of this ordinance are being complied with.
Section IV--Sales of Liquor
401. Licenses Required. No sales of alcoholic beverages shall be
made, except at a tribally-licensed or tribally-owned business operated
on Reservation land within the exterior boundaries of the Cahuilla
Indian Reservation.
402. 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 major credit cards.
403. Sale 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 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
[[Page 50047]]
violation of this ordinance and shall be subjected to paying damages to
the Tribe as set forth herein.
Section V--Licensing
501. Applicable for Tribal Liquor License Requirements. No tribal
license shall issue under this ordinance except upon a sworn
application filed with the Committee 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.
b. Satisfactory proof that the applicant is of good character and
reputation among the people of the Reservation and that the applicant
is financially responsible.
c. The description of the premises in which the intoxicating
beverages are to be sold, proof that the applicant is the owner of such
premises, or 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 license fee as prescribed by the Committee.
f. Satisfactory proof that neither the applicant nor the
applicant's spouse has ever been convicted of a felony.
g. Satisfactory proof that notice of the application has been
posted in a prominent, noticeable place on the premises where
intoxicating beverages are to be sold for at least 30 days prior to
consideration by the Committee and has been published at least twice in
such local newspaper serving the community that may be affected by the
license. The notice shall state the date, time, and place when the
application shall be considered by the Committee 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
Committee in open session at which the applicant, his/her attorney, and
any person 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 Committee, 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 Committee, 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 General Council,
or a member of the immediate family of a General Council member, such
member shall not vote on the application or participate in the hearings
as a Committee member.
503. Temporary Permits. The Committee or their designee may grant a
temporary permit for the sale of intoxicating beverages 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
conditions prescribed in Section 504 of this ordinance shall be
observed by the permittee. Each permit issued shall specify the types
of intoxicating beverages to be sold. Further, a fee, as set by the
Committee, will be assessed on temporary permits.
504. Conditions of the Tribal License. Any tribal license issued
under this title shall be subject to such reasonable conditions as the
Committee shall fix, including, but not limited to the following:
a. The license shall be for a term not to exceed 2 years.
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 the tribal
police department, and such other law enforcement officials as may be
authorized under applicable 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 intoxicating 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
Committee, 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 is held of the people of the
tribe, and including special days of observation as designated by the
Committee.
g. All acts and transactions under authority of the tribal liquor
license shall be in conformity with the laws of the State of
California, as required by federal law, and shall be in accordance with
this ordinance and any tribal license issued pursuant to this
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 and/or area.
i. There shall be no discrimination in the operations under the
tribal license by reason of race, color, or creed.
505. License Not a Property Right. Notwithstanding any other
provision of this 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 license give rise to a presumption of legal
entitlement to the granting of such license for a subsequent time
period.
506. Assignment or Transfer. No tribal license issued under this
ordinance shall be assigned or transferred without the written approval
of the Committee expressed by formal resolution.
Section VI--Rules, Regulations, and Enforcement
601. Sales 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 ordinance, or who shall
operate or shall have liquor in his/her possession with intent to sell
or distribute without a permit, shall be guilty of a violation of this
ordinance.
602. Purchases From Other Than Licensed Facilities. Any person
within the boundaries of the Reservation who buys liquor from any
person other than at a properly licensed facility shall be guilty of a
violation of this 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 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 or such person who shall knowingly
permit any person to drink any liquor in any public conveyance 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 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/her possession any alcoholic beverage. No person shall
permit any other person under the age of 21 to consume liquor on his/
her premises or any premises under his/her control except in those
situations set out in this section. Any person violating this section
shall be guilty of a separate
[[Page 50048]]
violation of this ordinance for each and every drink so 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 ordinance for each sale or
drink provided.
607. Transfer of Identification to 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 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 which falsely purports to show the individual to
be over the age of 21 years shall be guilty of violating this
ordinance.
609. Violation of This Ordinance. Any person guilty of a violation
of this ordinance shall be liable to pay the Tribe a penalty not to
exceed $500 per violation as civil damages to defray the Tribe's cost
of enforcement of this ordinance. In addition to any penalties so
imposed, any license issued hereunder may be suspended or canceled by
the Committee for the violation of any of the provisions of this
ordinance, or of the tribal license, upon hearing before the Committee
after 10 days notice to the licensee. The decision of the Committee
shall be final.
610. Acceptable Identification. Where there may be a question of a
person's right to purchase liquor by reason of his/her age, such person
shall be required to present any one of the following issued cards of
identification which shows his/her correct age and bears his/her
signature and photograph:
1. Driver's license of any state or identification card issued by
any State Department of Motor Vehicles;
2. United States Active Duty Military;
3. Passport.
611. Possession of Liquor Contrary to This Ordinance. Alcoholic
beverages which are possessed contrary to the terms of this ordinance
are declared to be contraband. Any tribal agent, employee, or officer
who is authorized by the Committee 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 applicable
law. Upon being found in violation of the ordinance by the Committee,
the party shall forfeit all right, title and interest in the items
seized which shall become the property of the Tribe.
Section VII--Taxes
701. Sales Tax. There is hereby levied and shall be collected a tax
on each sale of alcoholic beverages on the Reservation in the amount of
one percent (1%) of the amount actually collected, including payments
by major credit cards. The tax imposed by this section shall apply to
all retail sales of liquor on the Reservation and shall preempt any tax
imposed on such liquor sales by the State of California.
702. Payment of Taxes to Tribe. All taxes from the sale of
alcoholic beverages on the Reservation shall be paid over to the agent
of the Tribe.
703. Taxes Due. All taxes for the sale of alcoholic beverages on
the Reservation are due within thirty (30) days of the end of the
calendar quarter for which the taxes are due.
704. Reports. Along with payment of the taxes imposed herein, the
taxpayers shall submit an accounting for the quarter of all income from
the sale or distribution of said beverages as well as for the taxes
collected.
705. Audit. As a condition of obtaining a license, the licensee
must agree to the review or audit of its books and records relating to
the sale of alcoholic beverages on the Reservation. Said review or
audit may be done annually by the Tribe through its agents or employees
whenever, in the opinion of the Committee, such a review or audit is
necessary to verify the accuracy of reports.
Section VIII--Profits
801. Disposition of Proceeds. The gross proceeds collected by the
Committee from all licensing provided from the taxation of the sales of
alcoholic beverages on the Reservation shall be distributed as follows:
a. For the payment of all necessary personnel, administrative
costs, and legal fees for the operation and its activities.
b. The remainder shall be turned over to the account of the Tribe.
Section IX--Severability and Miscellaneous
901. Severability. If any provision or application of this
ordinance is determined by review to be invalid, such adjudication
shall not be held to render ineffectual the remaining portions of this
title or to render such provisions inapplicable to other persons or
circumstances.
902. Prior Enactments. All prior enactments of the Committee which
are inconsistent with the provisions of this ordinance are hereby
rescinded.
903. Conformance with California Laws. All acts and transactions
under this ordinance shall be in conformity with the laws of the State
of California as that term is used in 18 U.S.C. 1161.
904. Effective Date. This ordinance shall be effective on September
24, 1996.
Section X--Amendment
1001. This ordinance may only be amended or repealed by a majority
vote of those actually voting in a mailed ballot vote to the General
Council.
Section XI--Sovereign Immunity
1101. Nothing contained in this ordinance is intended to, nor does
in any way, limit, alter, restrict, or waive the Tribe's sovereign
immunity from unconsented suit.
Dated: September 18, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-24366 Filed 9-23-96; 8:45 am]
BILLING CODE 4310-02-P
