Liquor Ordinance of the Susanville Indian Rancheria

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

Liquor Ordinance of the Susanville Indian Rancheria

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.

SU-BC-19-97, approving Ordinance No. 97-3, the Liquor Ordinance of the

Susanville Indian Rancheria, was duly adopted and certified by the

General Council of the Susanville Indian Rancheria on May 5, 1997. The

Ordinance provides for the regulation of the sale, possession and

consumption of liquor in the area of the Susanville Indian Rancheria,

under the jurisdiction of the Susanville Indian Rancheria, and is in

conformity with the laws of the State of California.

DATES: This Ordinance is effective August 25, 1997.

FOR FURTHER INFORMATION CONTACT: Bettie Rushing, Division of Tribal

Government Services, 1849 C Street NW, MS 4603-MIB, Washington, DC

20240-4001; telephone (202) 208-3463.

SUPPLEMENTARY INFORMATION: The Liquor Ordinance of the Susanville

Indian Rancheria is to read as follows:

Liquor Ordinance of the Susanville Indian Rancheria

Introduction

101. Title. This Ordinance shall be known as the ``Liquor Ordinance

of the Susanville Indian Rancheria.''

102. Authority. This Liquor Ordinance is enacted pursuant to the

Act of August 15, 1953 (Pub. L. 83-277, and 67 Stat. 586, 18 U.S.C.

1161) and the Constitution of the Susanville Indian Rancheria adopted

on October 10, 1996, and applicable laws.

103. Purpose. The purpose of this Liquor Ordinance is to regulate

and to control the possession and sale of liquor to and on the

Susanville Indian Rancheria. The enactment of a tribal ordinance

governing liquor possession and sale on the Reservation will increase

the ability of the tribal government to control Reservation liquor

distribution and possession, and at the same time will provide an

important source of revenue for the continued operation and

strengthening of the tribal government and the delivery of tribal

government services.

104. Tribal Jurisdiction. This ordinance applies to all lands in

which the Susanville Indian Rancheria holds an ownership interest and

which are defined as Indian country under 18 U.S.C. 1151. At the time

of enacting this ordinance, the Rancheria does not have an ownership

interest in any lands defined by 18 U.S.C. 1154(c) as fee-patented land

in a non-Indian community or rights-of-ways which run through the

Rancheria's lands. This ordinance is in conformity with California

State alcohol laws as required by 18 U.S.C. 1161.

Definitions

201. As used in this Liquor 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 chapter.

204. Bar means any establishment with special space and

accommodations for sale by the glass and for consumption on the

premises of any liquor or alcoholic beverage, as herein defined.

205. Beer means any beverage obtained by the alcoholic fermentation

of an infusion or concoction 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

purpose 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. The Tribal Business Council as used herein means the body

authorized by the Susanville Indian Rancheria constitution to

promulgate all tribal ordinances and regulations.

207. General Council means the general council of the Susanville

Indian Rancheria which is composed of the voting membership of the

Tribe as a whole.

208. Liquor includes 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

substance, 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 Liquor Ordinance, includes stores only a portion

of which are devoted to 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

establishment; public buildings; public meeting halls; lobbies, halls

and dining rooms of hotels, restaurants, theater, 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 unrestricted right of access, and which

are generally used by the public. For the purpose of this Liquor

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 land held in trust by the United States

Government for the benefit of the Susanville Indian Rancheria (see also

Tribal Land).

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 Susanville Indian Rancheria.

217. Tribal Land means any land within the exterior boundaries of

the Reservation which is held in trust by the United States for the

Tribe as a whole including any such land leased to other parties.

218. Trust Account means the account designated by the Tribal

Business Council for deposit of proceeds from

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any tax or fee levied by the Tribal Business Council and relating to

the sale of alcoholic beverages.

219. Trust Agent means the Tribal Chairperson or his or her

designee.

220. 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.

Powers of Enforcement

301. Powers. The Tribal Business Council, in furtherance of this

Liquor 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

Tribal Business Council to perform its functions; all 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 hearings on violations of this Liquor Ordinance or for

the issuance or revocation of licenses hereunder pursuant to sections

501 through 506 ;

e. To bring suit in the appropriate court to enforce this Liquor

Ordinance as necessary;

f. To determine and seek damages for violation of this Liquor

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 Tribal Business

Council, 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 Liquor Ordinance, the Tribal Business Council 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 Tribal Business Council

or its designee at all reasonable times, which includes the hours the

business is open to the public, for the purposes of ascertaining

whether the rules and regulations of this Liquor Ordinance are being

followed.

Sales of Liquor

401. Tribal Liquor License Required; Tribally Owned Businesses. No

sales of Alcoholic Beverages shall be made within the exterior

boundaries of the Reservation, except at a tribally-licensed or

tribally-owned business operated on tribal land within the exterior

boundaries of the Reservation. Nothing in this section shall prohibit a

tribal licensee or the Tribe from purchasing liquor from an off-

reservation source for resale on the Reservation or the delivery to the

Tribe for a tribal licensee of liquor purchased from off-reservation

sources for resale on the Reservation.

402. Sale only on Tribal Land. All Liquor sales within the exterior

boundaries of the Reservation shall be on Tribal Land, including leases

thereon.

403. 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 ATM cards, debit cards, or major

credit cards such as MasterCard, Visa, American Express, etc.

404. 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 Liquor

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 violation of this Liquor Ordinance and shall be

subject to paying damages to the Tribe as set forth herein.

Licensing

501. Applicable for Tribal Liquor License Requirements. No Tribal

license shall be issued under this Liquor Ordinance except upon a sworn

application filed with the Tribal Business Council 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 to sell Alcoholic Beverages;

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 Alcoholic Beverages

are to be sold and proof that the applicant is the owner of such

premises or the 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 fee established from time to time by the Tribal

Business Council. Said fee is established initially at $250.00 but can

be changed by Tribal Business Council resolution at any time;

f. Satisfactory proof that neither the applicant, nor the

applicant's spouse, nor any principal owner, officer, shareholder, or

director of the applicant, if an entity, has ever been convicted of a

felony or a crime of moral turpitude as defined by the laws of the

State of California;

g. Satisfactory proof that notice of the application has been

posted in a prominent, noticeable place on the premises where Alcoholic

Beverages are to be sold for at least 30 days prior to consideration by

the Tribal Business Council and has been published at least twice in

such local newspaper serving the community that may be affected by the

license as the Tribal Business Council may authorize. The notice shall

state the date, time, and place when the application shall be

considered by the Tribal Business Council 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

Tribal Business Council in open session at which the applicant, his,

her or its 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 Tribal

Business Council, 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 Tribal Business Council, 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 Tribal Business Council, or the applicant is a member of the

immediate family of a Tribal Business Council member, such Tribal

Business Council member shall not vote on the application or

participate in the hearings as a Tribal Business Council member.

503. Temporary Permits. The Tribal Business Council or its designee

may grant a temporary permit for the sale of Liquor for a period not to

exceed three (3) days to any person applying to the same in connection

with a Tribal or community activity, provided that the

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conditions prescribed in section 504 of this Liquor Ordinance shall be

observed by the permittee. Each permit issued shall specify the types

of Alcoholic Beverages to be sold. Further, a fee of $50.00 will be

assessed on temporary permits.

504. Conditions of a Tribal Liquor License. Any Tribal liquor

license issued under this Liquor Ordinance shall be subject to such

reasonable conditions as the Tribal Business Council shall fix

including but not limited to the following:

a. The license shall be for a term not to exceed one (1) year.

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 Tribal law

enforcement personnel and such other law enforcement officials as may

be authorized under federal, California, or Tribal 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 Liquor or Alcoholic 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

Tribal Business Council, 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

Tribal Business Council.

g. All acts and transactions under authority of the Tribal liquor

license shall be in conformity with the laws of the State of

California, with this Liquor Ordinance, and with any Tribal liquor

license issued pursuant to this Liquor 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 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 Liquor 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 a license/permit in a subsequent time period.

506. Assignment or Transfer. No Tribal license issued under this

Liquor Ordinance shall be assigned or transferred without the prior

written approval of the Tribal Business Council expressed by formal

resolution.

Rules, Regulations, and Enforcement

601. Sale 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 Liquor Ordinance, or who

shall operate or shall have Liquor in his possession with intent to

sell or distribute without a license or permit, shall be guilty of a

violation of this Liquor Ordinance.

602. Purchases From Other Than Licensed or Allowed Facilities. Any

person who, within the boundaries of the Reservation, buys Liquor from

any person other than at a properly licensed or allowed facility shall

be guilty of a violation of this Liquor 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 Liquor 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 of such person who shall knowingly

permit any person to drink any Liquor in any public conveyances 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 Liquor

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 possession any Alcoholic Beverage. No person shall permit

any other person under the age of 21 years to consume Liquor on his

premises or any premises under his control except in those situations

set out in this Section. Any person violating this Section shall be

guilty of a separate violation of this Liquor 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 Liquor 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 Liquor

Ordinance.

608. Use of False or Altered Identification. Any person who

attempts to purchase an Alcoholic Beverage through the use of a false

or altered identification shall be guilty of violating this Liquor

Ordinance.

609. Acceptable Identification. Where there may be a question of a

person's right to purchase Liquor by reason of his or her age, such

person shall be required to present any one of the following cards of

identification which shows his or her correct age and bears his or her

signature and photograph: (1) A driver's license of any state or

identification card issued by any state department of motor vehicles;

(2) United States active duty military; or (3) a passport.

610. Violations of this Liquor Ordinance. Any person guilty of a

violation of this Ordinance shall be liable to pay the Tribe a civil

fine not to exceed $500 per violation as civil damages to defray the

Tribe's cost of enforcement of this Liquor Ordinance. In addition to

any penalties so imposed, any license or permit issued hereunder may be

suspended or canceled by the Tribal Business Council for the violation

of any of the provisions of this Liquor Ordinance, or of the Tribal

license or permit, upon hearing before the Tribal Business Council

after 10 days notice to the licensee. The decision of the Tribal

Business Council shall be final and no appeal therefrom allowed. The

Tribal Business Council shall grant all persons in any hearing

regarding violations, penalties, or license suspensions under this

Ordinance all the rights and due process granted by the Indian Civil

Rights Act, 25 U.S.C. 1302, et seq. Notice of a Tribal Business Council

hearing regarding an alleged violation of this Ordinance shall be given

to the affected individual(s) or entity(ies) at least 10 days in

advance of the hearing. The notice will be delivered in person or by

certified mail with The Tribal Business Council retaining proof of

service. The notice will set out the right of the alleged violator to

be represented by counsel retained by the alleged violator, the right

to speak and to present witnesses and to cross-examine any witnesses

against them.

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611. Possession of Liquor Contrary to This Liquor Ordinance.

Alcoholic Beverages which are possessed contrary to the terms of this

Liquor Ordinance are declared to be contraband. Any Tribal agent,

employee, or officer who is authorized by the Tribal Business Council

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 the

appropriate California law code. Upon being found in violation of this

Liquor Ordinance by the Tribal Business Council, the party shall

forfeit all right, title and interest in the items seized which shall

become the property of the Tribe.

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. 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 Trust

Agent of the Tribe.

703. Taxes Due. All taxes from 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

taxpayer shall submit an accounting for the quarter of all income from

the sale or distribution of Alcoholic 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 Tribal Business Council, such a review

or audit is necessary to verify the accuracy of reports.

Profits

801. Disposition of Proceeds. The gross proceeds collected by the

Tribal Business Council from all licensing provided under this Liquor

Ordinance, or the imposition of civil penalties for violating this

Ordinance, or 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 Trust Account of the

Tribe.

Severability and Miscellaneous

901. Severability. If any provision or application of this Liquor

Ordinance is determined upon review by a court of competent

jurisdiction to be invalid, such adjudication shall not be held to

render ineffectual the remaining portions of this Ordinance or to

render such provisions inapplicable to other persons or circumstances.

902. Prior Enactments. Any and all prior ordinances, resolutions or

enactments of the Tribal Business Council which are inconsistent with

the provisions of this Liquor Ordinance are hereby rescinded.

903. Conformance with Tribal, State and Federal Law. This Ordinance

conforms with all Rancheria tribal law and governing documents such as

the Constitution and By-Laws. All provisions and transactions under

this Ordinance shall be in conformity with California State law

regarding alcohol to the extent required by 19 U.S.C. 1161 and with all

federal laws regarding alcohol in Indian country.

904. Enforcement. All actions brought by the Tribal Business

Council to enforce the provisions of this Ordinance shall be filed in

the Tribal Court of the Susanville Indian Rancheria. In the absence of

a tribal court, said actions shall be filed in Federal court in the

Eastern District of California and be appealable in the federal court

system. If the federal court should determine that it lacks

jurisdiction over said action, it shall be filed in the California

state court in Lassen County with the subject matter jurisdiction and

venue over the action. The first court system to have jurisdiction over

an enforcement action, analyzing first, tribal court; second, Federal

court; and third, state courts shall have exclusive jurisdiction over

such actions.

905. Effective Date. This Liquor Ordinance shall be effective after

the Secretary of the Interior certifies the Ordinance and publishes it

in the Federal Register.

Amendment

1001. Amendment or Repeal. This Ordinance may be amended or

repealed by a majority vote of the Tribal Business Council or by the

General Council at a properly held meeting. Amendments of this

Ordinance need not be published in the Federal Register to become

effective.

Sovereign Immunity.

1101. Nothing contained in this Liquor Ordinance is intended to nor

does in anyway limit, alter, restrict, or waive the Tribe's sovereign

immunity from unconsented suit or action.

Dated: August 18, 1997.

Ada E. Deer,

Assistant Secretary--Indian Affairs.

[FR Doc. 97-22534 Filed 8-22-97; 8:45 am]

BILLING CODE 4310-02-U