00-14465. Quinault Indian Nation Liquor Control Ordinance

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes the Quinault Indian Nation Liquor Ordinance. The Ordinance regulates the control of, the possession of, and the sale of liquor on the Quinault Indian Nation trust lands, and is in conformity with the laws of the State of Washington, where applicable and necessary. Although the Ordinance was adopted on January 20, 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 June 8, 2000.

FOR FURTHER INFORMATION CONTACT:

Jim D. James, 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 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 Quinault Indian Nation Liquor Ordinance, Resolution No. 00-156-77, was duly adopted by the Quinault Business Committee on January 20, 2000. The Quinault Indian Nation, 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 Quinault Indian Nation.

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.

I certify that by Resolution No. 00-156-77, the Quinault Indian Nation Liquor Ordinance, was duly adopted by the Quinault Business Committee on January 20, 2000.

Dated: June 5, 2000.

Kevin Gover,

Assistant Secretary-Indian Affairs.

The Quinault Business Committee Liquor Ordinance, Resolution No. 00-156-77, reads as follows:

QUINAULT INDIAN NATION'S LIQUOR ORDINANCE, RESOLUTION NO. 00-156-77

TITLE 71

LIQUOR CONTROL

SECTION 71.01 PURPOSE

§ 71.01.010

Purpose

The Quinault Business Committee being vested with the power to protect the public health and to provide for the peace, safety and welfare of residents of the Quinault Indian Nation, hereby adopts this Title for the purpose of regulating the manufacture, distribution, sale, possession and consumption of liquor on the Quinault Indian Nation Reservation and lands under the jurisdiction of the Quinault Indian Nation. It is the Quinault Indian Nation's intent in enacting this Title to prohibit all traffic in liquor on the Quinault Indian Nation except to the extent allowed and permitted under the express terms of this Title. This Title is promulgated pursuant to the constitutional, delegated and inherent authority of the Quinault Indian Nation for the purpose of protecting the welfare, health, peace, and safety of all people residing on the Quinault Indian reservation and on lands under the jurisdiction of the Quinault Indian Nation.

SECTION 71.02 DEFINITIONS

§ 71.02.030

Definitions

The terms used in this Title shall mean:

(a) Alcoholic Beverages. Any distilled spirits, wine and malt beverages as defined in this Ordinance.

(b) Alcoholic Beverage Dealer. Any person who sells or engages in commercial traffic in alcoholic beverages, including manufacturers, retailers, solicitors, transporters and wholesalers.

(c) Commission. The Liquor Control Commission.

(d) Contraband. Any alcoholic beverage introduced into, or possessed, offered for sale or used within, the Quinault Indian Nation contrary to law and any receptacle or container in which such alcoholic beverages are found.

(e) Director. The Director of the Department of Revenue.

(f) Distilled Spirits. Ethyl alcohol, hydrated oxide of ethyl, spirits of wine, whiskey, rum, bandy, gin and other distilled spirits, including all dilutions and mixtures thereof, for nonindustrial use containing not less than one-half of 1 percent of alcohol by volume.

(g) Distiller. Any person who owns, or who himself or through others, directly or indirectly, operates or aids in operating any distillery or other establishment for the production, rectifying, blending or bottling of intoxicating liquor other than beer.

(h) Liquor. Any alcoholic beverage.

(i) Malt Beverage. A beverage made by the alcoholic fermentation of an infusion or location, or combination of both, in potable brewing water, of malted barley with hops, or their parts, or their products, and with or without other malted cereals, and with or without the addition of unmalted or prepared cereals, other carbohydrates or products prepared therefrom, and with or without the addition of carbon dioxide, and with or without other wholesome products suitable for human consumption containing not less than one-half of 1 percent of alcohol by volume and commonly referred to as beer or ale.

(j) Manufacturer. Any person who owns, or who himself or through others, directly or indirectly, operates or aids in operating any facility which produces alcoholic beverages.

(k) Off Sale. The sale of any alcoholic beverage for consumption off the premises where sold.

(l) On Sale. The sale of any alcoholic beverage for consumption only upon the premises where sold.

(m) One-Sale Dealer. Any person who sells, or keeps for sale, any alcoholic beverage for consumption on the premises where sold.

(n) Package. The bottle or immediate container of any alcoholic beverage.

(o) Person. Any individual, firm, partnership, joint venture, association, corporation, municipal corporation, estate, trust, business receiver, or any group or combination acting as a unit and the plural as well as the singular in number.

(p) Quinault Indian Reservation. Shall include the Quinault Indian Reservation and any and all lands owned, leased or under the jurisdiction of the Quinault Indian Nation, whether said lands are trust or allotted or lands held in fee patent status.

(q) Retailer or Retail Dealer. Any person who sells alcoholic beverages for other than resale.

(r) Retail License. An on-or off-sale license issued under the provisions of this Ordinance.

(s) Revenue Department. The Quinault Indian Nation Department of Revenue.

(t) Sale. The transfer, for a consideration, of title to any alcoholic beverage.

(u) Solicitor. Any person employed by a licensed wholesaler within or without the territorial limits of the Quinault Indian Nation, or by any distiller or manufacturer within or without the reservation, who solicits orders of intoxicating liquor from wholesale or retail dealers within the reservation.

(v) Transportation Company or Transporter. Any common carrier or operator of a private vehicle transporting or accepting for transportation any alcoholic beverage destined to be delivered to the Quinault Indian Nation, but not including transportation by carriers in interstate commerce where the shipment originates outside of the State and is destined to a point outside of the State.

(w) Treasurer. The duly elected and acting Treasurer of the Quinault Indian Nation.

(x) Wholesaler. Any person who sells alcoholic beverages to retailer for resale.

(y) Wine. Any liquid either commonly used for beverage purposes, and obtained by the fermentation of the natural sugar content of fruits or other agricultural products containing sugar and containing not less than one-half of 1 percent of alcohol by volume but not more than 24 percent of alcohol by volume.

SECTION 71.03 LIQUOR CONTROL COMMISSION

§ 71.03.010

Liquor Control Commission

There is hereby created a Liquor Control Commission.

(a) The Liquor Control Commission shall consist of five members of the Business Committee appointed to the Commission by the President of the Quinault Indian Nation Business Committee.

(b) The President shall appoint one Commissioner as Chairman of the Liquor Control Commission. The Chairman shall preside at Commission hearings but shall not exercise his power to vote, except in the case of a tie.

(c) A quorum of the Commission shall consist of three members, and a quorum is required to exercise Commission authority.

(d) No Commission member shall participate in any Commission decision in which he has a direct interest or in which any member of his immediate family has a direct interest.

(e) In the absence of a duly constituted Commission, the Business Committee shall act as the Commission.

§ 71.03.020

Powers of the Liquor Control Commission

Commissioners shall be appointed for terms of 2 years, and shall be removed only for cause, after notice and an opportunity for a hearing before the Business Committee. When a vacancy occurs on the Commission, the President shall appoint a new Commissioner for the balance of the term.

(a) The Liquor Control Commission shall have the power to:

(1) Review license application and grant licenses;

(2) Conduct hearings on alleged violations of this Title;

(3) Establish rules and regulations governing the conduct of the Commission and the exercise of the Commission Authority;

(4) Collect taxes when authorized by the Business Committee, impose penalties, suspend and/or revoke licenses when violations of this Title are proved by a preponderance of the evidence; and

(5) Enjoin violations of this Title and enforce the orders of the Commission.

(b) Collections:

(1) Taxes, when authorized by the Business Committee, may be collected by the Commission through assessment and distraint or other necessary means;

(2) Penalties may be collected through the attachment, levy and sale of property or other necessary means; and

(3) Orders suspending or revoking licenses or enjoining the operations of liquor dealers may be enforced by the tribal police acting at the direction of the Commission.

SECTION 71.04 RETAIL LICENSES AND FEES

§ 71.03.010

Introduction, Sale, Possession for Sale and Distribution of Liquor

The introduction for the retail or wholesale sale, possession for the retail or wholesale sale, sale or the manufacture of liquor shall be unlawful within the Quinault Indian Reservation unless pursuant to a license issued by the Liquor Control Commission and in conformity with this Title, regulations adopted pursuant to this Title and the laws of the State of Washington when required by 18 U.S.C. 1161. This Title shall supersede and amend all prior laws inconsistent with this Title, including section 12.10.040.

§ 71.04.020

Retail License

The Liquor Control Commission may issue a retail license for the retail sale of liquor in business establishments within the Quinault Indian Reservation.

§ 71.04.040

Retail Licensing Fee

The fee for an annual retail license shall be $250 and may be increased annually by the Liquor Control Commission.

§ 71.04.050

Other Licenses

The Commission shall only grant Retail Licenses. No licenses for the manufacture of liquor or wholesale of liquor shall be granted until such time as the Business Committee amends this Title authorizing the Commission to grant such licenses under such terms and conditions as the Business Committee deems appropriate.

§ 71.04.060

Qualifications for License

No license under this Title shall be issued unless the applicant shall be 21 years of age, has filed a sworn application showing the applicant meets the standards in section 71.04.070 and has paid the license fee.

§ 71.04.070

Standards

An applicant, other than a corporation, must be a legal resident of the United States and a person of good moral character. If the applicant is a corporation, partnership, joint venture, association, municipal corporation, estate, trust, business receiver, Indian tribe or firm, the manager of the licensed premises must be a resident of the United States and a person of good moral character. Officers and directors of corporations, and partners, and directors of corporations, and partners, joint venturers, principals of associations and municipal corporations, trustees, business receivers and members of firms must be legal residents of the United States and person of good moral character. Applicants must also be licensed with the Quinault Indian Nation as entitled to do business on the Quinault Indian Nation and qualified to obtain or have obtained a license to sell liquor from the State of Washington.

(a) The Liquor Control Commission may require the applicant to set forth such other information as is necessary to enable it to determine if a license should be granted.

(b) The Liquor Control Commission shall issue a license only if the qualifications set forth herein are satisfied and if it concludes, within its discretion, that the best interests of the reservation community shall be served. In considering applications, the Commission may take into account the following factors, among others, in determining whether the issuance of a license will serve the best interests of the Nation:

(1) Whether the license applied for is for the operation of a new or an existing retail liquor establishment;

(2) Whether the applicant is in compliance with applicable tribal, state and federal law;

(3) Whether the applicant has violated any provision of this Title, and if so, whether the violation has been remedied;

(4) The location, number and density of retail liquor establishments in the community;

(5) Whether food is sold at the establishment; and

(6) The health and welfare of the public.

§ 71.04.080

Public Comments

Before the issuance of any liquor license, the Commission may, but is not required, to take comments from the public. The Commission, however, shall be the determining authority for the granting of any tribal liquor license. If the Commission denies an application for a liquor license, the applicant may appeal that decision to the Business Committee within 30 days from the date of the Commission's decision. The Business Committee's decision shall be final.

SECTION 71.05 PROHIBITIONS

§ 71.05.010

General Prohibition

It shall be unlawful for any person to introduce for sale, manufacture or manufacture for sale, sell, offer or keep for sale or transport alcoholic beverages for sale on the Quinault Indian Reservation except where the person is licensed to conduct such activities by the Commission and only under the terms, conditions, limitations, and restrictions specified in this Title or regulations adopted pursuant to this Title. In addition to any other civil penalty provided for in this Title, each violation of this section may subject the violator to a civil fine not to exceed $5,000.

§ 71.05.020

Disposal Prohibited on Certain Days

No licensee shall sell alcoholic beverages on those days or at those times prohibited by the State of Washington. In addition, to any other civil penalty provided for in this Title, any licensee who violates this section may be subject to a civil fine not to exceed $500 for each violation.

§ 71.05.030

Prohibition as a Person Under 21 Years of Age

No licensee shall provide directly or by a clerk, agent or servant, intoxicating beverages to any person under the age of 21 years. In addition to any other civil penalty provided for in this Title, any licensee who violates this section may be subject to a civil fine not to exceed $100 for each violation.

(a) In addition, any person who is injured as a result of a violation of this section shall have a right of action against the person who contributed to his injury by providing alcoholic beverages to a minor person. The Tribal Court shall have jurisdiction to hear such actions.

(b) An action under subsection (a) of this section shall be commenced within 2 years after the damage, injury or death.

§ 71.05.040

Prohibition as to Provision to Intoxicated Persons

(a) No licensee shall provide directly or by a clerk, agent or servant, alcoholic beverages to a visibly intoxicated person. In addition to any other civil penalty provided for in this Title, any licensee who violates this section may be subject to a civil fine not to exceed $500 for each violation.

(b) In addition, any person who is injured as a result of a violation of this section shall have a right of action against the person who contributed to his injury by providing alcoholic beverages to a visibly intoxicated person. The Tribal Court shall have jurisdiction to hear such actions.

(c) An action under subsection (b) of this section shall be commenced within 2 years after the damage, injury or death.

§ 71.05.050

Prohibition as to Provision to Pregnant Persons

No licensee shall knowingly provide directly or by a clerk, agent or servant alcoholic beverages to any person who is pregnant. In addition to any other civil penalty provided for in this Title, any licensee who violates this section may be subject to a civil fine not to exceed $500 for each violation.

§ 71.05.060

Prohibition Against Cashing Subsistence Checks

No licensee shall, directly or by a clerk, agent or servant, knowingly cash or accept any General Assistance check issued by the Federal, State or tribal government, any aid to families with Dependent Children check issued by the Federal, State or tribal government or any other Federal, State or tribal government subsistence check. In addition to any other civil penalty provided for in this Title, any licensee who violates this section may be subject to a civil fine not to exceed $500 for each violation.

§ 71.05.070

Prohibition Against Drive-Up Windows

No licensee shall sell or provide alcoholic beverages from a drive through window or entrance. In addition to any other civil penalty provided for in this Title, any licensee who violates this section may be subject to a civil fine not to exceed $500 for each violation.

SECTION 71.06 VIOLATIONS OF TITLE/APPEAL

§ 71.06.010

General Penalties

Any person violating this Title or the regulations adopted pursuant to this Title shall, in addition to any other penalties authorized by this Title, be subject to suspension or revocation of their tribal license.

§ 71.06.020

Hearing on Alleged Violations

Anyone having information that a person has violated any provisions of this Title may file with the Department an affidavit specifically setting forth such violation. Upon receipt of such affidavit, the Department shall set the matter for a hearing before the Commission within 60 days. A copy of the affidavit and notice of hearing shall be mailed to the affected person by registered mail not less than 5 days before the hearing. A record of such hearings will be made by stenographic notes or by the use of an electronic recording device. The person shall have the right to be represented by counsel, question witnesses and examine the evidence against him or her as well as to present evidence and witnesses in his or her own defense.

§ 71.06.030

Suspension or Revocation of License

If after such hearing the Commission finds the violation set forth in the affidavit has been proved by preponderance of the evidence, an order shall be served on the licensee revoking or suspending the license for a period of time or imposing such other civil penalties as is provided for in this Title.

§ 71.06.040

Powers of the Chairman

The Chair of the Commission, or his designee, at a hearing under this Title shall have the power to administer oaths and to subpoena and examine witnesses.

§ 71.06.050

Appeal

Any Licensee may appeal the Commission's decision to the Quinault Tribal Court by filing a notice of appeal with the court, clearly stating the grounds therefor, and serving a copy of the notice of appeal by hand on the Director of the Department within 30 days from the date of the decision. The Quinault Tribal Court shall uphold the decision of the Liquor Control Commission unless its finds that the Commission's decision was arbitrary and capricious, an abuse of discretion, or not in accordance with this Title or other applicable law.

SECTION 71.07 CONTRABAND

§ 71.07.010

Contraband Alcoholic Beverages—Container—Forfeiture

The introduction, manufacture, distribution or possession for sale or sale of alcoholic beverages within the Quinault Indian Nation Reservation contrary to this Title is inimical to the public interest and such alcoholic beverages and any receptacle or container of any kind in which said alcoholic beverages are found, are hereby declared to be contraband. No property right shall exist in contraband alcoholic beverages or any receptacle or container wherein such alcoholic beverages are found. Contraband alcoholic beverages and any receptacle or container in which such alcoholic beverages are found are hereby declared forfeited and shall be seized forthwith.

§ 71.07.020

Seizure of Contraband Alcoholic Beverages—Containers—Search Warrant

When an officer of the tribe has probable cause to believe that a person has contraband alcoholic beverages within the Quinault Indian Reservation and a search warrant is required under tribal law or under the Federal Indian Civil Right Act, 25 U.S.C. 1301 et seq., he may apply to the Tribal Court for a warrant to authorize the search of said person and any places, containers conveyances, and receptacles, etc., which the officer has probable cause to believe contain said contraband alcoholic beverages. If the Tribal Court determines that probable cause exists that a person has contraband alcoholic beverages within the territory of the tribe, then the court shall issue a search warrant describing the person, places and things to be searched and the things to be seized. The officer shall execute the search warrant and seize any and all contraband alcoholic beverages found and any receptacles and any containers in which said contraband alcoholic beverages are found.

§ 71.07.030

Judicial Determination as to Nature of Alcoholic Beverages Seized

(a) Within 10 calendar days after the seizure of any alcoholic beverages, or any receptacle or container in which said alcoholic beverages are found, on the grounds that they are contraband, any person claiming an interest therein may initiate an action for a determination as to whether the items seized are contraband by filing a claim with the Tribal Court and serving notice of the claim on the Director of the Department. The Tribal Court shall then schedule a hearing on the matter within 15 calendar days after the filing of the claim.

(b) The Tribal Court shall, upon good cause shown, permit discovery to be taken on an expedited basis. The Tribal Court shall regulate the manner and timing of such discovery; provided that when the Tribal Court orders expedited discovery, the time for a hearing may be postponed for a period of 60 days. All discovery shall be completed prior to the hearing date.

(c) The Nation shall have the burden to establish a prima facie case that items seized are contraband, and after such proof is made, the burden shall shift to the claimant to prove by a preponderance of the evidence that the items seized are not contraband.

(d) If the Tribal Court determines that the items seized by the Nation are not contraband, the court shall order the return of the items to the claimant after the time for filing an appeal has elapsed. If the court determines that the items seized are contraband, the court shall declare the items to be contraband and the Nation may dispose of the contraband as it deems fit after the time for filing an appeal has elapsed.

(e) The Nation may appeal an adverse decision of the Tribal Court under this section to the Appellate Court by filing a notice of appeal within 10 calendar days of the date of the decision of the Tribal Court. Filing of the notice of appeal by the Nation shall automatically stay the decision of the Tribal Court. The Appellate Court shall uphold the decision of the Tribal Court unless it is clearly erroneous.

(f) The claimant may appeal an adverse decision of the Tribal Court under this section to the Appellate Court by filing a notice of appeal within 10 calendar days of the date of the decision of the Tribal Court and posting an appeal bond in an amount set by the Tribal Court. The Tribal Court shall set the appeal bond in an amount sufficient to pay for the storage of the items in dispute during the pendency of the appeal and any court costs which may be incurred by the Nation on the appeal. Filing of the notice of appeal by the claimant and payment of the appeal bond shall automatically stay the decision of the Tribal Court. The Appellate Court shall uphold the decision of the Tribal Court unless it is clearly erroneous.

SECTION 71.08 EXCEPTION

§ 71.08.010

Exceptions to this Title

The provisions of this Ordinance shall not apply to the sale of alcoholic beverages, or to ethanol, used or intended for use, for the following purposes:

(a) For scientific research or manufacturing products other than liquor;

(b) Medical use under the direction of a physician, medical or dental clinic, or hospital;

(c) In preparation not fit for human consumption such as cleaning compounds and toilet products, or flavoring extracts;

(d) By persons exempt from regulation in accordance with the laws of the United States; or

(e) For sacramental use such as wines delivered to priests, rabbis, and ministers.

SECTION 71.09 MISCELLANEOUS PROVISION

§ 71.09.010

Agreement by Licensee to Grant Access for Inspection Purposes

Every licensee under this Title, as a condition of the grant of tribal license, consents to the inspection of his premises, including all buildings, safes, cabinets, lockers and storerooms thereon. Such inspection shall be available upon the demand of the Commission. These inspections shall be conducted by a duly appointed designee of the Commission, or tribal police. All books and records dealing with the sale and ownership of alcoholic beverages shall be open for inspection purposes by the Commission.

§ 71.09.020

Transferability

No license issued pursuant to this Title shall be transferable; provided, however, upon death of an individual licensee, the personal representative of the estate may operate under a valid license for 60 days after the licensee's death, so long as said personal representative shall apply to the Commission for a new license within said 60-day period.

§ 71.09.030

Server Training

Every person who serves alcoholic beverages on the premises of an on-sale licensee shall attend 8 hours of training in a server training program approved by the Commission or the State of Washington on the latter of his or her 60th day of employment or within 60 days after the effective date of this Title.

§ 71.09.040

Tribal Sovereign Immunity

No provision of this Title shall be construed to permit the recovery of money damages against the tribe. No provision of this Title shall be construed to waive the sovereign immunity of the tribe.

§ 71.09.050

Consent to Civil Jurisdiction

A licensee shall stipulate in the license that for the purpose of this Title the licensee shall be subject to the civil jurisdiction of the Quinault Tribal Court.

SECTION 71.10 SEVERABILITY

§ 71.10.010

Severability

If for any reason, or circumstances, any provision(s) or section(s) of this Title are held invalid by the appropriate court of jurisdiction, the remainder of this Title and other provisions or sections shall not be affected in the application of this Title or to any person covered by this Title.

SECTION 71.11 EFFECTIVE DATE OF TITLE

§ 71.11.010

Continued Operation under existing Tribal or State License

This Title is effective after its adoption by the Business Committee. Any Licensee operating under an existing tribal or state license may continue to operate thereunder until December 31, 1998, provided that the licensee complies with all of the provisions contained herein. After December 31, 1998, any person operating under an existing state license, must apply with the Commission for a tribal license.