Cahuilla Band of Indians Liquor Control Ordinance

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.

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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

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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

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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