Bureau of Indian Affairs, Interior.
Notice.
This notice publishes the Tribal Liquor Ordinance No. 2008–01 of the Habematolel Pomo of Upper Lake. The Ordinance regulates and controls the possession, sale and consumption of liquor within the Indian Country of the Habematolel Pomo of Upper Lake. The land is trust land and this Ordinance allows for the possession and sale of alcoholic beverages within the jurisdiction of the Habematolel Pomo of Upper Lake. This Ordinance will increase the ability of the tribal government to control the distribution and possession of liquor within their jurisdiction, and at the same time will provide an important source of revenue, the strengthening of the tribal government and the delivery of tribal services.
Sophia Torres, Tribal Government Specialist, Pacific Regional Office, Bureau of Indian Affairs, 2800 Cottage Way, Sacramento, CA 95825, Phone: (916)978–6073; Fax: (916)916–6099: or De Springer, Office of Indian Services, Bureau of Indian Affairs, 1849 C Street NW., MS–4513–MIB, Washington, DC 20240; Telephone (202) 513–7640.
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
This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs. I certify that the Habermatolel Pomo of Upper Lake Executive Council duly adopted the Tribal Liquor Ordinance No 2008–01 of the Habematolel Pomo of Upper Lake by Resolution No. 04–12–03 on April 16, 2012.
The Tribal Liquor Ordinance No 2008–01 of the Habematolel Pomo of Upper Lake shall read as follows:
This Ordinance shall be known as the “Liquor Ordinance of the Habematolel Pomo of Upper Lake.”
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. section 1161), as interpreted by Rice v. Renner, 463 U.S. 713 (1983) and the Constitution of the Habematolel Pomo of Upper Lake, a federally recognized Indian tribe (“Tribe”), approved on May 12, 2004 and the Tribe's inherent sovereign authority.
The purpose of this Liquor Ordinance is to regulate and to control the possession and sale of liquor on lands within the jurisdiction of the Habematolel Pomo of Upper Lake. The enactment of a tribal ordinance governing liquor possession and sale on Tribal Lands will increase the ability of the Tribal Government to control 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.
This Ordinance applies to all lands in which the Habematolel Pomo Of Upper Lake 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 Habematolel Pomo of Upper Lake do 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 Tribal lands. This Ordinance is in conformity with California State alcohol laws as required by 18 U.S.C. 1161.
As used in this Liquor Ordinance, the following words shall have the following meanings unless the context clearly requires otherwise.
A. “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.
B. “Alcoholic Beverage” is synonymous with the term “Liquor” as defined in Letter F of this Article.
C. “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.
D. “Beer” means any alcoholic beverage obtained by the fermentation or any infusion or decoction of barley, malt, hops, or any other similar product, or any combination thereof in water, and includes ale, porter, brown, stout, lager beer, small beer, and strong beer but does not include sake, known as Japanese rice wine.
E. “Executive Council” as used herein means the body authorized by the Habematolel Pomo of Upper Lake Constitution to promulgate all tribal ordinances and regulations.
E. “General Membership” means the general membership of the Habematolel Pomo of Upper Lake which is composed
F. “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.
G. “Liquor License” the license authorized to be issued to those who have met the qualifications of this Ordinance at Article VIII, which grants a licensee the ability to sell Alcohol or Liquor on Tribal Lands.
H. “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.
I. “Malt Liquor” means Beer, strong beer, ale, stout, and porter.
J. “Package” means any container or receptacle used for holding liquor.
K. “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.
L. “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.
M. “Spirits” means any beverage which contains alcohol obtained by distillation including wines exceeding seventeen percent of alcohol by weight.
N. “Tribe” means the Habematolel Pomo of Upper Lake.
O. “Tribal Designee” is a person designated by the majority of the Executive Council to fulfill a specific task pursuant to this Liquor Ordinance.
P. “Tribal Land” means any land held in trust by the United States for the Tribe as a whole including any such land that is leased by the Tribe in trust or lands that may be leased by the Tribe to another party.
Q. “Liquor Trust Account” means the account designated by the Executive Council for deposit of proceeds from any tax or fee levied by the Executive Council and relating to the sale of alcoholic beverages.
R. “Taxpayer” is the licensee who is obligated to pay taxes from the sale of alcoholic beverages pursuant to this Liquor Ordinance.
S. “Trust Agent” means the Executive Council (see “Executive Council”) or their designee.
T. “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.
a. To publish and enforce the rules and regulations governing the sale, manufacture, and distribution of Alcoholic Beverages on Tribal Lands.
b. To employ managers, accountants, security personnel, inspectors, and such other persons as shall be reasonably necessary to allow the Executive 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 Tribal Lands;
d. To hold hearings on violations of this Liquor Ordinance or for the issuance or revocation of licenses hereunder pursuant to Section VI;
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 to the General Membership; as may be required herein;
h. To collect taxes and fees levied or set by the Executive Council, and to keep accurate records, books and accounts; and
i. To exercise such other powers as are necessary and appropriate to fulfill the purposes of this Ordinance and as may be defined in the Tribe's Constitution, Article X, Sections 1 and 2.
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 moral character and reputation 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 Executive Council. Said fee is established initially at $250.00 annually but can be changed by Executive 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 thirty (30) days prior to consideration by the Executive Council and has been published at least twice in a local newspaper serving the community that may be affected by the license as the Executive Council may authorize. The notice shall state the date, time, and place when the application shall be considered by the Executive Council pursuant to Section 2 of this ordinance.
a. The license shall be for an initial term not to exceed one (1) year and may be extended up to 5 years at the discretion of the Executive Council.
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, State, or Tribal law.
d. The licensed premises shall be open to inspection by duly authorized Tribal Designee at all times during the regular business hours.
e. Subject to the provisions of subsection “g” of this section, no Liquor or 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 enacted by the Executive 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, State or Federal, Election days, or when a referendum is held by the Tribe, and including special days of observation as designated by the Executive 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 Liquor License by reason of race, color, gender, creed, religion or sexual preference.
Section 5. 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.
Section 6. Assignment or Transfer. No Tribal license issued under this Liquor Ordinance shall be assigned or transferred without the prior written approval of the Executive Council expressed by formal, written resolution and/or transfer order.
a. For the payment of all necessary personnel, administrative costs, and legal fees for the administration and enforcement of this Liquor Ordinance and its activities.
b. The remainder shall be turned over to the Liquor Trust Account of the Tribe.
Section 1. Nothing contained in this Liquor Ordinance is intended to nor does in anyway limit, alter, restrict, or expressly or unequivocally waive the Tribe's sovereign immunity from un-consented suit or action.