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The Confederated Tribes of the Grand Ronde Community of Oregon [Ordinances]

Last amended: 2003


ORIGINALLY ADOPTED: 9/26/01

DATE AMENDED: SUBJECT: Tobacco Ordinance

RESOLUTION NUMBER: 152-01


Tobacco Ordinance

Tribal Code § 770


(a) AUTHORITY AND PURPOSE:

(1) The authority for this Ordinance is found in the Tribal Constitution under Article III, Section 1.

(2) This Ordinance is for the purpose of regulating the sale and distribution of cigarettes and other tobacco products on the Reservation of the Confederated Tribes of the Grand Ronde Community of Oregon.


(b) DEFINITION:

Unless defined elsewhere in this Ordinance or the context clearly requires otherwise, the definitions in this Section shall apply throughout this Ordinance.

(1) "Cigarette" shall mean any roll for smoking, made wholly or in part of tobacco, irrespective of size or shape and irrespective of whether the tobacco is flavored, adulterated or mixed with an other ingredient, where such roll has a wrapper or cover made of paper or any other material, except where such wrapper is wholly or in the greater part made of natural leaf tobacco.

(2) "Council" shall mean the Tribal Council of the Confederated Tribes of the Grand Ronde Community of Oregon.

(3) "Operator" shall mean any person licensed by the Tribe to operate a tobacco outlet on the Reservation.

(4) "Outlet" shall mean any store, shop, building or place where tobacco products are sold on the Reservation and includes a cigarette vending machine.

(5) "Person" shall include any individual, firm, partnership, copartnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, receiver, trustee, syndicate or any other group or combination acting as a unit.

(6) "Reservation" shall mean all lands held in trust by the United States for the Tribe or its members.

(7) "Tobacco Products" shall include cigarettes, cigars, smoking tobacco, snuff, chewing tobacco and all other kinds and forms of tobacco prepared in such manner as to be suitable for chewing or smoking.

(8) "Tribal Court" shall mean the Tribal Court of the Confederated Tribes of the Grand Ronde Community of Oregon.

(9) "Tribe" or "Tribal" shall mean or refer to the Confederated Tribes of the Grand Ronde Community of Oregon.


(c) TOBACCO SALES LICENSE:

(1) Any person that shall engage in the sale of tobacco products on the Reservation shall first obtain a license for such sales, provided that any outlet engaging in such sales prior to the adoption of this Ordinance shall obtain a license within thirty (30) days from the date of its adoption by the Council.

(2) A tobacco sales license shall be valid for a period of one (1) year from the date of its issuance and shall expire automatically without notice on the expiration date stated in the license.

(3) No tobacco sales license shall be transferable.


(d) PROCEDURE FOR LICENSE APPLICATION AND RENEWAL:

(1) Application for a tobacco sales license shall be on a form approved by the Council, which shall be fully completed by the applicant or a duly authorized representative. The application shall state the name and address of the applicant, the location of the proposed tobacco outlet, the beginning date for which the license is requested, a description of any other retail or commercial business conducted or to be conducted by the applicant at the location of the proposed tobacco outlet, such other information as the Council may require, and shall be signed by the applicant under oath. The application shall be submitted to the Council with the required license fee.

(2) Council action on a license application must be taken at a regular or special meeting. Upon the denial of any application for a tobacco sales license, the applicant may request a hearing before the Council by submitting a written request to the Council not later than seven (7) days after receipt of the Council's decision. The Council shall provide reasonable notice to the applicant of the hearing date, time and location as well as the procedures to be followed. If the Council upholds its decision to deny the license, the applicant may appeal the decision to the Tribal Court, but only on the grounds that the decision was arbitrary and capricious or a violation of Tribal Constitutional rights. Such appeal must be filed with the Tribal Court in writing on or before the fourteenth (14th) day following receipt of the Council's written decision. The Tribal Court shall review, on the record, the decision of the Council. The applicant has the burden of persuading the Tribal Court that the Council's decision is arbitrary or capricious or a violation of Tribal Constitutional rights.

(3) An operator may apply for renewal of a tobacco sales license by filing a renewal application with the Council not less than thirty (30) days prior to the license expiration date. Renewal applications shall be subject to all conditions and requirements applicable to an initial application, including a fee for the issuance of a renewal license, and any additional conditions and requirements deemed necessary by the Council.


(e) CONDITIONS FOR APPLICATION AND APPROVAL OF LICENSE:

(1) No application for a tobacco sales license shall be granted unless:

(A) The applicant has paid the required license fee, initially established at $50.00, as may be changed from time to time by resolution of Council.

(B) The applicant has submitted a completed application form.

(C) The applicant is at least 21 years of age.

(D) The proposed location for the tobacco outlet complies with all applicable building codes and zoning codes.

(E) The Council determines that there is adequate demand for a tobacco outlet at the proposed location.

(F) The Council determines that the applicant is of good moral character.

(2) The conditions described in this Section are not exclusive and the Council may impose any other conditions which it deems necessary to safeguard and promote the safety, health and general welfare of members of the Tribe.


(f) REVENUE STAMP REQUIREMENT:

No cigarette package shall be sold which does not bear a revenue stamp of the State of Oregon.


(g) TRIBAL SOVEREIGN IMMUNITY/LIABILITY:

No operator shall attempt or be authorized to waive the sovereign immunity of the Tribe from suit. Nor shall any operator attempt or be authorized to create any liability on behalf of the Tribe.


(h) OPERATING WITHOUT A LICENSE:

No person shall engage in the business of selling or distributing tobacco products on the Reservation without having in effect a valid tobacco sales license issued pursuant to this Ordinance.


(i) REVOCATION OF LICENSE:

(1) Failure of an operator to abide by any provision of this Ordinance and any conditions set forth herein or imposed by Council may result in revocation of the operator's tobacco sales license by the Council as well as the assessment of civil penalties in accordance with Section (j) of this Ordinance.

(2) Prior to revocation of a tobacco sales license, the operator shall have the right to a hearing before the Council. The Council shall provide reasonable notice to the operator of the hearing date, time and location as well as the procedures to be followed. An operator may appeal a revocation decision by the Council to the Tribal Court, but only on the grounds that the decision was arbitrary and capricious or a violation of Tribal Constitutional rights. Such appeal must be filed with the Tribal Court in writing on or before the fourteenth (14th) day following receipt of the Council's written decision. The Tribal Court shall review, on the record, the decision of the Council. The operator has the burden of persuading the Tribal Court that the Council's decision is arbitrary or capricious or a violation of Tribal Constitutional rights.


(j) CIVIL PENALTIES:

(1) The Council may assess a penalty, in an amount not to exceed $1,000.00 for each violation, against any person who engages in the business of selling or distributing tobacco products on the Reservation in violation of this Ordinance.

(2) Upon the assessment of a penalty, the person against whom the penalty was assessed may request a hearing before the Council by submitting a written request to the Council not later than seven (7) days after receipt of assessment. The Council shall provide reasonable notice to the person against whom the penalty was assessed of the hearing date, time and location as well as the procedures to be followed. If the Council upholds its decision to assess a penalty, the person against whom the penalty was assessed may appeal the decision to the Tribal Court, but only on the grounds that the decision was arbitrary and capricious or a violation of Tribal Constitutional rights. Such appeal must be filed with the Tribal Court in writing on or before the fourteenth (14th) day following receipt of the Council's written decision. The Tribal Court shall review, on the record, the decision of the Council. The person against whom the penalty was assessed has the burden of persuading the Tribal Court that the Council's decision is arbitrary or capricious or a violation of Tribal Constitutional rights.

(3) The Council hereby specifically finds that such penalties are reasonably necessary and are related to the expense of governmental administration necessary in maintaining law and order and public safety on the Reservation and in managing, protecting and developing the natural resources on the Reservation. It is the legislative intent of the Council that all violations of this Ordinance, whether committed by tribal members, nonmember Indians, or non-Indians, be considered civil in nature rather than criminal.


(k) ENFORCEMENT:

(1) The Council, through the Tribal Attorney, may seek enforcement of this Ordinance in Tribal Court against any person who engages in the business of selling or distributing tobacco products on the Reservation in violation of this Ordinance.

(2) The Tribal Court, upon presentation of an affidavit or other evidence showing probable cause to believe that a tobacco outlet is being operated in violation of this Ordinance, may issue an order directing the seizure of all tobacco products from wherever purchased and by whomever owned from such tobacco outlet. Within three days of such seizure, and after adequate notice to the person operating such outlet, a hearing shall be held in Tribal Court at which time such person shall be given an opportunity to present evidence in defense of his or her activities. If the Tribal Court shall determine by a preponderance of the evidence that such tobacco outlet was being operated in violation of this Ordinance, the Court may do any of the following or combination of the following:

(A) Declare a forfeiture to the Tribe of all or any part of the tobacco products seized as described above.

(B) Order such other relief as the Tribal Court deems appropriate and consistent with this Ordinance.


(l) SEVERABILITY:

If a court of competent jurisdiction finds any provision of this Ordinance to be invalid or illegal under applicable Federal or Tribal law, such provision shall be severed from this Ordinance and the remainder of this Ordinance shall remain in full force and effect.

I certify this to be a true copy of the Confederated Tribes of the Grand Ronde Community of Oregon Tobacco Ordinance.

 

                                                                   
June Sell-Sherer, Tribal Council Secretary

 

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