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Notice

Bear River Band of Rohnerville Rancheria-Sale and Consumption of Alcoholic Beverages

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AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes the Bear River Band of Rohnerville Rancheria's Liquor Control Ordinance. The Ordinance regulates and controls the possession, sale and consumption of liquor within the Bear River Band of Rohnerville Rancheria's tribal land. The land is located on trust land and this Ordinance allows for the possession and sale of alcoholic beverages within the Bear River Band of Rohnerville Rancheria's tribal land and will increase the ability of the tribal government to control the tribe's 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 services.

DATES:

Effective Date: This ordinance is effective on March 9, 2005.

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FOR FURTHER INFORMATION CONTACT:

Fred Doka, Acting Tribal Operations Officer, Bureau of Indian Affairs, Pacific Regional Office, 2800 Cottage Way, Sacramento, CA 95825, Phone (916) 978-6067, fax (916) 978-6099; or Ralph Gonzales, Division of Tribal Justice Support, Office of Tribal Services, 1951 Constitution Avenue, NW., MS-320-SIB, Washington, DC 20240; Telephone (202) 513-7629.

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SUPPLEMENTARY INFORMATION:

Pursuant to the Act of August 15, 1953, Public Law 83-277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in Rice v. Rehner, 463 U.S. 713 (1983), the Secretary of the Interior shall certify and publish in the Federal Register notice of adopted liquor ordinances for the purpose of regulating liquor transactions in Indian country. The Bear River Band of Rohnerville Rancheria Tribal Council adopted its Liquor Control Ordinance by Resolution No. 04-87 on June 30, 2004. The purpose of this Ordinance is to govern the sale, possession and distribution of alcohol within the Bear River Band of Rohnerville Rancheria's tribal land.

This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Principal Deputy Assistant Secretary—Indian Affairs by 209 DM 8.l.

I certify that the Tribal Council duly adopted this Liquor Ordinance No. 04-04, of the Bear River Band of Rohnerville Rancheria, on June 20, 2004.

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Dated: March 2, 2005.

Michael D. Olsen,

Acting Principal Deputy Assistant Secretary—Indian Affairs.

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The Bear River Band of Rohnerville Rancheria's Liquor Ordinance No. 04-04 reads as follows:

Resolution No: 04-87

Approved: June 30, 2004

A Resolution by the Bear River Band of Rohnerville Rancheria Tribal Council Adopting and Approving the Liquor Regulation and Licensing Ordinance No. 04-04.

Whereas, the Bear River Band of Rohnerville Rancheria is a federally recognized Indian tribe eligible for all rights and privileges afforded to recognized Tribes; and,

Whereas, the Bear River Band of Rohnerville Rancheria Tribal Council is the governing body of the Bear River Band of Rohnerville Rancheria under the authority of the Constitution of the Bear River Band of Rohnerville Rancheria; and,

Whereas, the Bear River Band of the Rohnerville Rancheria desires to adopt the Liquor Regulation and Licensing Ordinance No. 04-04.

Now Therefore Be it Resolved that the Bear River Band of Rohnerville Rancheria hereby adopts and approves Ordinance No. 04-04, “Liquor Regulation and Licensing Ordinance.”

Be it Further Resolved that the Chairperson is hereby authorized to sign and Members of the Council to attest all necessary documents to make such requests; and,

Be it Finally Resolved the above signatory powers are in full force and effect until specifically revoked by a duly adopted resolution of the Bear River Band of Rohnerville Rancheria Tribal Council.

C*E*R*T*I*F*I*C*A*T*I*O*N

This is to certify that the Bear River Band of Rohnerville Rancheria Tribal Council on June 30, 2004 by a vote of 4 In Favor, 0 Opposed, 0 Abstaining, and 1 Absent.

Attested by:

6/30/04

(Leonard Bowman, Tribal Council Chairperson)

(Date)

Start Printed Page 11689

7/6/04

(Aileen Meyer, Tribal Council Secretary)

(Date)

Tribal Ordinance: No. 04-04

Date Adopted: June 30, 2004

Liquor Regulation and Licensing Ordinance No. 04-04

Article I: Declaration of Public Policy and Purpose

Section 1.1 The introduction, possession and sale of liquor on the lands of the lands of the Bear River Band of Rohnerville Rancheria (“Tribe”) is a matter of special concern to the Tribe.

Section 1.2 Federal law, see, e.g., 18 U.S.C. 1154, 1161, currently prohibits the introduction of liquor into Indian country, except as provided therein and in accordance with State law as interpreted by the Supreme Court in Rice v. Rehner, 463 U.S. 713 (1983), and expressly delegates to the Tribe the decision regarding when and to what extent liquor transactions shall be permitted on lands subject to the Tribe's jurisdiction.

Section 1.3 The Tribal Council of the Bear River Band of Rohnerville Rancheria (“Tribal Council”) has the power under Article VIII of the Tribe's Constitution to enact ordinances to safeguard and provide for the health, safety and welfare of the members of the Tribe and persons within the Tribe's jurisdiction, and has determined that it is in the Tribe's best interests to enact a tribal ordinance governing the introduction, possession and sale of liquor on the lands subject to the Tribe's jurisdiction, and which limits the purchase, distribution, and/or sale of liquor within the exterior boundaries of the Tribe's trust lands only to premises licensed and regulated by the Tribe.

Section 1.4 The Tribe hereby prohibits the sale or other commercial distribution of liquor on the Tribe's trust lands, except at premises owned and operated by or under supervision of the Tribe and expressly licensed to sell or commercially distribute liquor. This prohibition against the sale or other commercial distribution of liquor shall not apply to the personal use, possession or consumption of liquor in private homes located on tribal trust lands.

Section 1.5 The Tribe finds that violations of this Ordinance would damage the Tribe in the amount of five hundred dollars ($500) per violation, based upon the estimated costs of enforcement, investigation, adjudication and disposition of such violations, and that to defray the costs of enforcing this Ordinance the Tribal Council may, in its discretion, impose a tax on the sale of liquor on the Tribe's trust lands. Based upon the foregoing findings and determinations, the Tribe hereby ordains as follows:

Article II: Definitions

As used in this title, the following words shall have the following meanings, unless the context clearly requires otherwise.

Section 2.1 “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 dilutions and mixtures of this substance.

Section 2.2 “Alcoholic Beverage” has the same meaning as the term “liquor” as defined in Article II, Section 5 of this Ordinance.

Section 2.3 “Bar” means any establishment with special space and accommodations for sale by the glass or other unsealed container and for consumption on the premises, of liquor, as herein defined.

Section 2.4 “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 or cereal in pure water containing not more than four percent (4%) of alcohol by volume. For the purpose of this title, “beer” includes sake (Japanese rice wine), and any such beverage, including ale, stout, and porter, containing more than four percent (4%) of alcohol by weight shall be referred to as “strong beer.”

Section 2.5 “Liquor” means the four varieties of liquor herein defined (alcohol, spirits, wine and beer), and all fermented spiritous, vinous, or malt liquor or combinations thereof, and mixed liquor, or a part of which is fermented, spiritous, vinous, or malt liquor, or otherwise intoxicating; and every other 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 that contains more than one percent (1%) of alcohol by weight, shall be conclusively deemed to be intoxicating.

Section 2.6 “Liquor Store” means any store at which liquor is sold in sealed pre-packaged form, and, for the purpose of this Ordinance, includes any store only a portion of which is devoted to the sale of liquor or beer.

Section 2.7 “Malt liquor” means beer, strong beer, ale, stout and porter.

Section 2.8 “Package” means any container or receptacle used for holding liquor.

Section 2.9 “Public Place” includes gaming facilities, eating facilities and commercial or community facilities of every nature 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 and character; and all other places of like or similar nature to which the general public has unrestricted access or to which the general public has been invited, and which generally are used by the public.

Section 2.10 “Sale” and “Sell” means any exchange, barter, and/or traffic in liquor; and also includes the selling of 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 of wine, by any person to any person. “Sale” and “Sell” includes conditional sales contracts, leases with options to purchase, and any other contract under which possession of property is given to the purchaser, buyer or consumer, but title is retained by the vendor, retailer, manufacturer or wholesaler as security for payment of the purchase price. Specifically included is any transaction whereby, for any consideration, title or possession of alcoholic beverages is transferred from one person or entity to another, and includes the delivery of alcoholic beverages pursuant to an order placed for such beverages, or soliciting or receiving such beverages. “Sale” or “Sell” does not include the gift of alcoholic beverages among family members or personal acquaintances in non-commercial circumstances,

Section 2.11 “Spirits” means any beverage, which contains alcohol obtained by distillation, including wines exceeding seventeen percent (17%) of alcohol by weight.

Section 2.12 “Tribal Council” means the Tribal Council as defined in Article IV of the Constitution of the Bear River Band of Rohnerville Rancheria.

Section 2.13 “General Council” means the enrolled membership of the Bear River Band of Rohnerville Rancheria eighteen years of age or older.

Section 2.14 “Tribal Land” means any land within or without the exterior boundaries of the original Rohnerville Rancheria and any other lands held in trust by the United States for the Bear River Band of Rohnerville Rancheria.

Section 2.15 “Wine” means any alcoholic beverage obtained by fermentation of any fruits (grapes, berries, apples, etc.), or fruit juice and containing not more than seventeen percent (17%) of alcohol by weight, including sweet wines fortified with wine spirits, such as port, sherry, muscatel and angelica, not exceeding seventeen percent (17%) of alcohol by weight.

Article III: Powers of Enforcement

Section 3.1 The Tribal Council, in furtherance of this Ordinance, shall have the following powers and duties:

(a) To publish and enforce such rules and regulations governing the sale, manufacture and distribution of alcoholic beverages in public places on the tribal lands as the Tribal Council may deem necessary;

(b) To employ managers, accountants, security personnel, inspectors and such other persons as shall be reasonably necessary to allow the Tribal Council to perform its functions under this Ordinance;

(c) To issue licenses permitting the sale, manufacture and/or distribution of liquor on the Tribe's trust lands;

(d) To hold hearings on violations of this Ordinance or for the issuance or revocation of licenses hereunder;

(e) To bring suit in any court of competent jurisdiction to enforce this Ordinance as the Tribal Council determines is necessary;

(f) To determine and seek damages for violation of this Ordinance;

(g) To make reports to the General Council at least semi-annually concerning the implementation of this Ordinance;

(h) To set, levy and collect sales taxes and fees on liquor distribution, sales and/or consumption in commercial premises, and the issuance of liquor licenses, and to keep accurate records, books and accounts of such taxes and fees and expenditures therefrom; and, Start Printed Page 11690

(i) To exercise such other powers as the Tribal Council may determine by duly-enacted resolution may be necessary to implement this Ordinance and accomplish its purposes.

Section 3.2 Limitation on Powers. In the exercise of its powers and duties under this Ordinance, the Tribal Council and its individual members and staff shall not:

(a) Accept any gratuity, compensation or other thing of value from any liquor wholesaler, retailer or distributor, or from any licensee; or,

(b) Waive the Tribe's immunity from suit without the express and separate consent of the General Council.

Section 3.3 Inspection Rights. The public places on or within which liquor is sold, distributed or consumed shall be open for inspection by the Tribal Council at all reasonable times for the purposes of ascertaining compliance with this Ordinance and other regulations promulgated pursuant thereto. The Tribal Council may delegate all or part of its inspection authority to the Tribal Gaming Commission or other subordinate tribal entity or agency, or may contract with third parties for this purpose.

Article IV: Sale of Liquor

Section 4.1 License Required. No sales of alcoholic beverages shall be made on or within the exterior boundaries of the Tribe's trust lands as defined in this Ordinance, except at a business duly licensed by the Tribal Council.

Section 4.2 Sales for Cash. All liquor sales on the Tribe's trust lands shall be on a cash only basis, and no credit shall be extended to any person, organization or entity in connection with any such sales, except that this provision does not prevent the payment for purchases with the use of cashiers' or personal checks, money orders, payroll checks, or debit cards or credit cards issued by any federally-or state-regulated financial institution.

Section 4.3 Sales for Personal Consumption. Except as may be specifically licensed by the Tribal Council, all retail sales of liquor shall be for the personal use and consumption of the purchaser or members of the purchaser's household, including guests, who are over the age of twenty-one (21). Resale of any alcoholic beverage purchased within the exterior boundaries of tribal trust lands is prohibited. Any person who is not licensed pursuant to this Ordinance who purchases an alcoholic beverage within the boundaries of tribal trust lands and re-sells it, whether in the original container or not, shall be guilty of a violation of this Ordinance and shall be subjected to exclusion from tribal trust lands or liability for money damages of up to five hundred dollars ($500), or both, as determined by the Tribal Council after giving the alleged violator due notice and an opportunity to be heard concerning the fact of the alleged violation and the appropriateness of any penalty.

Article V: Licensing

Section 5.1 Procedure. In order to control the proliferation of establishments on tribal trust lands that sell or provide liquor by the bottle or by the drink, all persons or entities that desire to sell liquor within the exterior boundaries of tribal trust lands or on other Tribal Land must apply to the Tribal Council for a license to sell or provide liquor; provided, however, that no license is necessary to provide liquor for non-commercial purposes within a private single-family residence on tribal trust lands for which no money is requested or paid.

Section 5.2 State Licensing. No person shall be allowed or permitted to sell or provide liquor on tribal trust lands if s/he does not also have a license from the State of California to sell or provide such liquor. If such license from the State is revoked or suspended, the Tribal license shall automatically be revoked or suspended as well.

Section 5.3 Application. Any person applying for a license to sell or provide liquor on tribal trust lands shall complete and submit an application provided for this purpose by the Tribal Council, and pay such application fee as may be set from time to time by the Tribal Council for this purpose. Incomplete applications will not be considered.

Section 5.4 Issuance of License. The Tribal Council may issue a license if it believes that the issuance of such license would be in the best interest of the Tribe, the residents of tribal trust lands and the surrounding community. Licensure is a privilege, not a right, and the decision to issue any license rests in the sole discretion of the Tribal Council.

Section 5.5 Duration of License. Each license may be issued for a period not to exceed two (2) years from the date of issuance.

Section 5.6 Renewal of License. A licensee may renew its license if it has complied in full with this Ordinance and has maintained its licensure with the State of California; however, the Tribal Council may refuse to renew a license if it finds that doing so would not be in the best interests of the health and safety of the members of the Tribe.

Section 5.7 Suspension or Revocation of License. The Tribal Council may suspend or revoke a license for reasonable cause upon notice and hearing at which the licensee shall be given an opportunity to respond to any charges against it and to demonstrate why the license should not be suspended or revoked. The licensee shall have the burden of going forward and proving by a preponderance of the evidence that the Tribal Council should not suspend or revoke the license.

Section 5.8 Transferability of Licenses. Licenses issued by the Tribal Council shall not be transferable and may only be utilized by the persons or entities in whose name issued.

Article VI: Taxes

Section 6.1 Sales Tax. There is hereby levied and shall be collected a tax on each retail sale of alcoholic beverages on tribal trust lands in the amount of one percent (1%) of the retail sales price. The tax imposed by this section shall apply to all retail sales of liquor on tribal trust lands, and to the extent permitted by law shall preempt any tax imposed on such liquor sales by the State of California.

Section 6.2 Payment of Taxes to the Tribe. All taxes from the sale of alcoholic beverages to tribal trust lands shall be paid over to the General Treasury of the Tribe and be subject to the distribution by the Tribal Council in accordance with its usual appropriation procedures for essential governmental and social services, including operation of the Tribal Council and administration of this Ordinance.

Section 6.3 Taxes Due. All taxes upon the sale of alcoholic beverages on tribal trust lands are due on the first day of the month following the end of the calendar quarter for which the taxes are due. Past due taxes shall accrue interest at 1.5% per month, or eighteen percent (18%) per annum.

Section 6.4 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 said beverages as well as for the taxes collected.

Section 6.5 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 tribal trust lands. Said review or audit may be done periodically by the Tribal Council through its agents or employees whenever in the discretion of the Tribal Council such a review is necessary to verify the accuracy of reports.

Article VII: Rules, Regulations and Enforcement

Section 7.1 In any proceeding under this title, proof by a preponderance of the evidence of one unlawful sale or distribution of liquor shall suffice to establish prima facie intent or purpose of unlawfully keeping liquor for sale, selling liquor or distributing liquor in violation of this title.

Section 7.2 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 without a license required by this Ordinance, shall be guilty of a violation of this Ordinance and subject to civil damages assessed by the Tribal Council. Nothing in this Ordinance shall apply to the possession or transportation of any quantity of liquor by members of the Tribe for their personal or other non-commercial use, and the non-commercial possession, transportation, sale, consumption or other disposition of liquor in locations on tribal trust lands other than “public places” as defined herein shall be governed solely by the laws of the State of California.

Section 7.3 Any person within the boundaries of tribal trust lands who, in a public place, buys liquor from any person or entity other than at a properly-licensed facility and in accordance with this Ordinance shall be guilty of a violation of this Ordinance.

Section 7.4 Any person who sells liquor to a person apparently under the influence of liquor shall be guilty of a violation of this Ordinance.

Section 7.5 No person under the age of twenty-one (21) years shall consume, acquire Start Printed Page 11691or have in his/her possession any alcoholic beverages. Any person violating this Section in a public place shall be guilty of a separate violation of this Ordinance for each and every drink or container of alcoholic beverages so consumed, acquired or possessed.

Section 7.6 Any person who, in a public place, shall sell or provide any liquor to any person under the age of twenty-one (21) years shall be guilty of a violation of this Ordinance for each such sale or drink provided.

Section 7.7 Any person guilty of a violation of this Ordinance shall be liable to pay the Tribe up to five hundred dollars ($500) per violation as civil damages to defray the Tribe's cost of enforcement of this Ordinance. The amount of such damages in each case shall be determined by the Tribal Council based upon a preponderance of the evidence available to the Tribal Council after the person alleged to have violated this Ordinance has been given due notice and an opportunity to respond to such allegations.

Section 7.8 Whenever it reasonably appears to a licensed purveyor of liquor that a person seeking to purchase liquor is under the age of twenty-seven (27) years, the prospective purchaser shall be required to present any one of the following officially-issued cards of identification which shows his/her correct age and bears his/her signature and photograph:

(a) Driver's license of any state or identification card issued by any state Department of Motor Vehicles;

(b) United States Active Duty Military;

(c) Passport; or,

(d) Gaming license, work permit or other identification issued by the Tribal Council, if said license, permit or identification contains the bearer's correct age, signature and photograph.

Article VIII: Abatement

Section 8.1 Any public place where liquor is sold, manufactured, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this Ordinance, and all property kept in and used in maintaining such place, is hereby declared to be a public nuisance.

Section 8.2 The Tribal Chairperson, upon authorization by a majority of the Tribal Council, or, if he/she fails to do so, a majority of the Tribal Council acting at a duly-called meeting at which a quorum is present, shall direct the tribal department of public safety or equivalent department of the tribal government to abate any such nuisance. If necessary, the Tribal Council shall be authorized to institute and maintain an action in a court of competent jurisdiction in the name of the Tribe to abate and perpetually enjoin any nuisance declared under this title. Upon establishment that probable cause exists to find that a nuisance exists, restraining orders, temporary injunctions and permanent injunctions may be granted in the cause as in other injunction proceedings, and upon final judgment against the defendant the court may also order the room, structure or place closed for a period of one (1) year or until the owner, lessee, tenant or occupant thereof shall give bond of sufficient sum of not less than twenty-five thousand dollars ($25,000) payable to the Tribe and conditioned that liquor will not be thereafter manufactured, kept, sold, bartered, exchanged, given away, furnished or otherwise disposed of therein in violation of the provision of this Ordinance or of any other applicable tribal law, and that she will pay all fines, costs and damages assessed against him/her for any violation of this Ordinance or other Tribal laws. If any conditions of the bond should be violated, the whole amount may be recovered for the use of the Tribe.

Section 8.3 In all cases where any person has been found responsible for a violation of this Ordinance relating to manufacture, importation, transportation, possession, distribution and sale of liquor, an action may be brought in a court of competent jurisdiction to abate as a public nuisance the use of any real estate or other property involved in the violation of this Ordinance, and proof of violation of this Ordinance shall be prima facie evidence that the room, house, building, vehicle, structure, or place against which such action is brought, is a public nuisance. Unless a tribal court has been established or designated by contract at the time any such action is to be filed, the Tribal Council shall sit as the tribal court for the purpose of ordering the abatement of such nuisance.

Article IX: Profits

Section 9.1 The gross proceeds collected by the Tribal Council from all licensing of the sale of alcoholic beverages on tribal trust lands, and from proceedings involving violations of this Ordinance, shall be distributed as follows:

(a) First, for the payment of all necessary personnel, administrative costs, and legal fees incurred in the enforcement of this Ordinance; and,

(b) Second, the remainder shall be turned over to the General Fund of the Tribe and expended by the Tribal Council for governmental services and programs on tribal trust lands.

Article X: Severability and Effective Date

Section 10.1 If any provision or application of this Ordinance is determined by judicial 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.

Section 10.2 This Ordinance shall be effective on such date as the Secretary of the Interior certifies this Ordinance and publishes the same in the Federal Register.

Section 10.3 Any and all prior enactments of the Tribe that are inconsistent with the provisions of this Ordinance are hereby rescinded and repealed.

Section 10.4 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, but only to the extent required by the laws of the United States.

Article XI: Amendment

This Ordinance may only be amended by majority vote of more than 50% of the Tribal Council attending a duly noticed meeting at which a quorum is present.

Article XII: Certification and Effective Date

This is to certify that the Bear River Band of Rohnerville Rancheria Tribal Council adopted the foregoing Ordinance at a duly held, noticed and convened meeting on June 30, 2004 of the Tribal Council at which a quorum of at least three (3) members were present by a vote of 4 in Favor, 0 Opposed, 0 Abstaining and 0 Absent as attested to and certified by the Tribal Chairman and Tribal Secretary, and shall be effective upon approval by the Secretary of the Interior or his designee as provided by federal law.

Attested by:

(Leonard Bowman, Tribal Council Chairperson)

Date

(Aileen Meyer, Tribal Council Secretary)

(Date)

End Supplemental Information

[FR Doc. 05-4560 Filed 3-8-05; 8:45 am]

BILLING CODE 4310-4J-P