Ordinances of the Elk Valley Rancheria, California
Last amended: 2002
ORDINANCE NO. 99-37
AN ORDINANCE OF THE TRIBAL COUNCIL OF THE ELK VALLEY RANCHERIA ADOPTING
A NEW ORDINANCE ENTITLED "LIQUOR LICENSING ORDINANCE".
The Tribal Council ("Council") of the Elk Valley Rancheria
("Tribe") does hereby ordain as follows:
Section 1. Declaration of Findings. The Council hereby
finds as follows:
1. Under the Constitution of the Tribe, the Council is charged with the duty of protecting the health, education, and general welfare of the Elk Valley Rancheria.
2. The introduction, possession and sale of alcoholic beverages on the Elk Valley Rancheria is a matter of special concern to the Tribe.
3. Federal law leaves to tribes the decision regarding when and to what extent alcoholic beverage transactions shall be permitted on Indian Rancherias.
4. Present day circumstances make a complete ban on alcoholic beverages within the Elk Valley Rancheria ineffective and unrealistic. At the same time, a need still exists for strict tribal regulation and control over alcoholic beverage distribution.
5. The enactment of a tribal ordinance governing alcoholic beverage sales on the Elk Valley Rancheria and providing for the purchase and sale of alcoholic beverages through tribally licensed outlets will increase the ability of the tribal government to control the distribution, sale and possession of liquor on the Elk Valley Rancheria, and at the same time will provide an important and urgently needed source of revenue for the continued operation of the tribal government and delivery of tribal governmental services.
Section 2 Declaration of Policy. The Council hereby declares
that the policy of the Tribe is to eliminate the evils of unlicensed
and unlawful manufacture, distribution, and sale of alcoholic beverages
on the Elk Valley Rancheria and to promote temperance in the use and
consumption of alcoholic beverages by increasing tribal control over
the possession and distribution of alcoholic beverages on the Rancheria.
Section 3. Adoption of Liquor Licensing Ordinance. A new
ordinance entitled "Liquor Licensing Ordinance" is hereby adopted which
shall provide as follows:
Chapters:
02 General Provisions.
04 Definitions.
06 Prohibition of the Unlicensed Sale of Liquor.
08 Application for License.
10 Issuance, Renewal, and Transfer of Licenses.
12 Revocation of Licenses.
14 Enforcement.
CHAPTER 02 - GENERAL PROVISIONS
Sections:
02.010 Short title.
02.020 Purpose.
02.030 Sovereign immunity preserved.
02.040 Applicability within the Rancheria.
02.050 Possession of Alcoholic Beverages.
02.060 Interpretation and findings.
02.070 Conflicting provisions
02.080 Application of 18 U.S.C. §1161.
02.010 Short title. This ordinance shall be known and cited
as the "Elk Valley Liquor Licensing Ordinance".
02.020 Purpose. The purpose of this Ordinance is to prohibit
the importation, manufacture, distribution and sale of alcoholic beverages
on the Elk Valley Rancheria except pursuant to a license issued by the
Elk Valley Tribal Council under the provisions of this ordinance.
02.030 Sovereign immunity preserved. Nothing in this Ordinance
is intended nor shall be construed as a waiver of the sovereign immunity
of the Elk Valley Rancheria. No officer or employee of the Elk Valley
Rancheria is authorized nor shall he/she attempt to waive the immunity
of the Tribe under the provisions of this ordinance unless such officer
or employee has an express and explicit written authorization from the
Elk Valley Tribal Council.
02.040 Applicability within the Rancheria. This ordinance
shall apply to all persons within the exterior boundaries of the Elk
Valley Rancheria consistent with the applicable federal Indian liquor
laws.
02.050 Possession of Alcoholic Beverages. Nothing in this
Ordinance shall be interpreted as prohibiting the possession, transportation
or consumption of alcoholic beverages within the boundaries of the Elk
Valley Rancheria. Possession, transportation and/or consumption of alcoholic
beverages within the exterior boundaries of the Rancheria in conformity
with the provisions of Federal law relating to the possession, transportation,
or consumption of alcoholic beverages is expressly permitted under this
Ordinance.
02.060 Interpretation and findings. The Elk Valley Tribal
Council in the first instance may interpret any ambiguities contained
in this ordinance.
02.070 Conflicting Provisions. Whenever any conflict occurs
between the provisions of this ordinance or the provisions of any other
ordinance of the Tribe, the stricter of such provisions shall apply.
02.080 Application of 18 U.S.C §1161. The importation,
manufacture, distribution and sale of alcoholic beverages on the Elk
Valley Rancheria shall be in conformity with this Ordinance and in conformity
with the laws of the State of California as that phrase or term is used
in 18 U.S.C. §1161.
Sections:
04.010 Interpretation.
04.020 Alcohol.
04.030 Alcoholic beverages.
04.040 Beer.
04.050 Distilled spirits.
04.060 Importer.
04 .070 Liquor license.
04.080 Manufacturer.
04 090 Person.
04.100 Rancheria.
04.110 Sale.
04.120 Seller.
04.130 Tribal Council
04.140 Tribe.
04.150 Wine.
04.010 Interpretation. In construing the provisions of this
ordinance, the following words or phrases shall have the meaning designated
unless a different meaning is expressly provided or the context clearly
indicates otherwise.
04.020 Alcohol. "Alcohol" means ethyl alcohol,
hydrated oxide of ethyl, or spirits of wine, from whatever source or
by whatever process produced.
04.030 Alcoholic beverage. "Alcoholic beverage" includes all
alcohol, spirits, liquor, wine, beer, and any liquid or solid containing
alcohol, spirits, wine or beer, and which contains one-half of one percent
or more of alcohol by volume and which is fit for beverage purposes
either alone or when diluted, mixed, or combined with other substances.
It shall be interchangeable in this ordinance with the term "liquor".
04.040 Beer."Beer" means any alcoholic beverage obtained
by the fermentation of 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, and also includes sake, otherwise known as Japanese rice wine.
04.050 Distilled spirits. "Distilled spirits" means any alcoholic
beverage obtained by the distillation of fermented agricultural products,
and includes alcohol for beverage use, spirits of wine, whiskey, rum,
brandy, and gin, including all dilutions and mixtures thereof.
04.060 Importer. "Importer" means any person who introduces
alcohol or alcoholic beverages into the Elk Valley Rancheria from outside
the exterior boundaries of the Rancheria for the purpose of sale or
distribution within the Rancheria, provided however, the term importer
as used herein shall not include a wholesaler licensed by any state
or tribal government selling alcoholic beverages to a seller licensed
by a state or tribal government to sell at retail.
04.070 Liquor License. "Liquor license" means a license
issued by the Elk Valley Tribal Council under the provisions of this
ordinance authorizing the sale, manufacture, or importation of alcoholic
beverages on or within the Rancheria consistent with federal law.
04.080 Manufacturer. "Manufacturer" means any person
engaged in the manufacture of alcohol or alcoholic beverages.
04.090 Person. "Person" means any individual, whether
Indian or non-Indian, receiver, assignee, trustee in bankruptcy, trust,
estate, firm, partnership, joint corporation, association, society,
or any group of individuals acting as a unit, whether mutual, cooperative,
fraternal, non-profit or otherwise, and any other Indian tribe, band
or group, whether recognized by the United States Government or otherwise.
The term shall also include the businesses of the Tribe. It shall be
interchangeable in this ordinance with the term "seller" or "licensee".
04.100 Rancheria. "Rancheria" means all lands within the
exterior boundaries of the Elk Valley Rancheria and such other lands
as may hereafter be acquired by the Tribe, whether within or without
said boundaries, under any grant, transfer, purchase, gift, adjudication,
executive order, Act of Congress, or other means of acquisition.
04.110 Sale. "Sale" means the exchange of property and/or
any transfer of the ownership of, title to, or possession of property
for a valuable consideration, exchange or barter, in any manner or by
any means whatsoever. It 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 the payment of the purchase price. Specifically, it shall
include any transaction whereby, for any consideration, title to alcoholic
beverages is transferred from one person to another, and includes the
delivery of alcoholic beverages pursuant to an order placed for the
purchase of such beverages, or soliciting or receiving such beverages.
04.120 Seller. "Seller" means any person who, while
within the exterior boundaries of the Rancheria, sells, solicits or
receives an order for any alcohol, alcoholic beverages, distilled spirits,
beer, or wine.
04.130 Tribal Council. "Tribal Council" or "Council"
means the Elk Valley Tribal Council.
04.140 Wine. "Wine" means the product obtained from
the normal alcoholic fermentation of the juice of the grapes or other
agricultural products containing natural or added sugar or any such
alcoholic beverage to which is added grape brandy, fruit brandy, or
spirits of wine, which is distilled from the particular agricultural
product or products of which the wine is made, and other rectified wine
products.
CHAPTER 06 - PROHIBITION OF THE UNLICENSED
SALE OF LIQUOR
Sections:
06.010 Prohibition of the unlicensed sale of liquor.
06 020 Authorization to sell liquor.
06.030 Types of licenses.
06.010 Prohibition of the unlicensed sale of liquor. No person
shall import for sale, manufacture, distribute or sell any alcoholic
beverages within the Rancheria without first applying for and obtaining
a written license from the Council issued in accordance with the provisions
of this ordinance.
06.020 Authorization to sell liquor. Any person applying
for and obtaining a liquor license under the provisions of this ordinance
shall have the right to engage only in those liquor transactions expressly
authorized by such license and only at those specific places or areas
designated in said license.
06.030 Types of licenses. The Council shall have the authority
to issue the following types of liquor licenses within the Rancheria:
A. "Retail on-sale general license" means a license authorizing the applicant to sell alcoholic beverages at retail to be consumed by the buyer only on the premises or at the location designated in the license.
B. "Retail on-sale beer and wine license" means a license authorizing the applicant to sell beer and wine at retail to be consumed by the buyer only on the premises or at the location designated in the license.
C. "Retail off-sale general license" means a license authorizing the applicant to sell alcoholic beverages at retail to be consumed by the buyer off of the premises or at a location other than the one designated in the license.
D. "Retail off-sale beer and wine license" means a license authorizing the applicant to sell beer and wine at retail to be consumed by the buyer off of the premises or at a location other than the one designated in the license.
E. "Manufacturer's license" means a license authorizing the applicant to manufacture alcoholic beverages for the purpose of sale on the Rancheria.
CHAPTER 08 - APPLICATIONS FOR
LICENSES
Sections:
08.010 Application form and content.
08.020 Fee accompanying application.
08.030 Investigation; denial of application.
08.010 Application form and content. An application for a
license shall be made to the Council and shall contain the following
information:
A. The name and address of the applicant. In the case of a corporation, the names and addresses of all of the principal officers, directors and stockholders of the corporation. In the case of a partnership, the name and address of each partner.
B. The specific area, location and/or premises for which the license is applied for.
C. The type of liquor transaction applied for (i.e. retail on-sale general license, etc.).
D. Whether the applicant has a state liquor license.
E. A statement by the applicant to the effect that the applicant has not been convicted of a felony and has not violated and will not violate or cause or permit to be violated any of the provisions of this ordinance or any of the provisions of the California Alcoholic Beverage Control Act.
F. The signature and fingerprint of the applicant. In the case of a partnership, the signature and fingerprint of each partner. In the case of a corporation, the Signature and fingerprint of each of the officers of the corporation under the seal of the corporation.
G. The application shall be verified under oath, notarized and accompanied by the license fee required by this ordinance.
08.020 Fee accompanying application. The Council shall by
resolution establish a fee schedule for the issuance, renewal and transfer
of the following types of licenses:
A. Retail on-sale general license;
B. Retail on-sale beer and wine license;
C. Retail off-sale general license;
D. Retail off-sale beer and wine liquor; and
E. Manufacturer's license.
08.030 Investigation; denial of application. Upon receipt
of an application for the issuance, transfer or renewal of a license
and the application fee required herein, the Council shall make a thorough
investigation to determine whether the applicant and the premises for
which a license is applied for qualify for a license and whether the
provisions of this ordinance have been complied with, and shall investigate
all matters connected therewith which may affect the public welfare
and morals. The Council shall deny an application for issuance, renewal
or transfer of a license if either the applicant or the premises for
which a license is applied for does not qualify for a license under
this ordinance or if the applicant has misrepresented any facts in the
application or given any false information to the Council in order to
obtain a license.
The Council further may deny any application for issuance, renewal or transfer of a license if the Council cannot make the findings required by Section 10.20 of this Ordinance or the Council finds that the issuance of such a license would tend to create a law enforcement problem, or if issuance of said license would be a detriment to the health, safety and welfare of the Tribe or its members.
CHAPTER 10 - ISSUANCE, RENEWAL AND TRANSFER
OF LICENSES
Sections:
10.010 Public hearing.
10.020 Council action on the application.
10.030 Multiple locations.
10.040 Calendar year time limit.
10.050 Transfer of licenses.
10.010 Public hearing. Upon receipt of an application for
issuance, renewal or transfer of a license, and the payment of all fees
required under this ordinance, the Secretary of the Council shall set
the matter for a public hearing. Notice of the time and place of the
hearing shall be given to the applicant and the public at least ten
(10) calendar days before the hearing. Notice shall be given to the
applicant by prepaid U.S. mail at the address listed in the application.
Notice shall be given to the public by publication in a newspaper of
general circulation sold on the Rancheria. The notice published in the
newspaper shall include the name of the applicant and the type of license
applied for and a general description of the area where liquor will
be sold. At the hearing, the Council shall hear from any person who
wishes to speak for or against the application. The Council shall have
the authority to place time limits on each speaker and limit or prohibit
repetitive testimony.
10.020 Council action on the application. Within thirty (30)
days of the conclusion of the public hearing, the Council shall act
on the matter. The Council shall have the authority to deny, approve,
or approve with conditions the application. Before approving the application,
the Council shall find: (1) that the site for the proposed premises
has adequate parking, lighting, security and ingress and egress so as
not to adversely affect adjoining properties or businesses, and (2)
that the sale of alcoholic beverages at the proposed premises is consistent
With the tribe's Zoning Ordinance.
Upon approval of an application, the Council shall issue a license to the applicant in a form to be approved from time to time by the Council by resolution. All businesses shall post their tribal liquor licenses issued under this ordinance in a conspicuous place upon the premises where alcoholic beverages are sold, manufactured or offered for sale.
10.030 Multiple locations. Each license shall be issued to
a specific person. Separate licenses shall be issued for each of the
premises of any business establishment having more than one location.
10.040 Term of license. Temporary licenses. All licenses
issued by the Council shall be issued on a calendar year basis and shall
be renewed annually; provided, however, that the Council may issue special
licenses for the sale of alcoholic beverages on a temporary basis for
premises temporarily occupied by the licensee for a picnic, social gathering,
or similar occasion at a fee to be established by the Council by resolution.
10.050 Transfer of licenses. Each license issued or renewed
under this ordinance is separate and distinct and is transferable from
the licensee to another person and/or from one premises to another premises
only with the approval of the Council. The Council shall
have the authority to approve, deny, or approve with conditions any
application for the transfer of any license. In the case of a transfer
to a new person, the application for transfer shall contain all of the
information required of an original applicant under Section 08.010 of
this ordinance. In the case of a transfer to a new location, the application
shall contain an exact description of the location where the alcoholic
beverages are proposed to be sold.
CHAPTER 12 - REVOCATION OF
LICENSES
Sections:
12.010 Revocation of license.
12.020 Accusations.
12.030 Hearing.
12.010 Revocation of license. The Council shall revoke a license
upon any of the following grounds:
A. The misrepresentation of a material fact by an applicant in obtaining a license or a renewal thereof.
B. The violation of any condition imposed by the Council on the issuance, transfer or renewal of a license.
C. A plea, verdict, or judgment of guilty, or the plea of nolo contendere to any public offense involving moral turpitude under any federal or state law prohibiting or regulating the sale, use, possession, or giving away of alcoholic beverages or intoxicating liquors.
D. The violation of any tribal ordinance.
E. The failure to take reasonable steps to correct objectionable conditions constituting a nuisance on the licensed premises or any immediately adjacent area leased, assigned or rented by the licensee within a reasonable time after receipt of a notice to make such corrections has been received from the Council or its authorized representative.
12.020 Accusations. The Council, on its own motion through
the adoption of an appropriate resolution meeting the requirements of
this section, or any person may initiate revocation proceedings by filing
an accusation with the Secretary of the Council. The accusation shall
be in writing and signed by the maker, and shall state facts showing
that there are specific grounds under this ordinance which would authorize
the Council to revoke the license or licenses of the licensee against
whom the accusation is made. Upon receipt of an accusation, the Secretary
of the Council shall cause the matter to be set for a hearing before
the Council. Thirty (30) days prior to the date set for the hearing,
the Secretary shall mail a copy of the accusation along with a notice
of the day and time of the hearing before the Council. The notice shall
command the licensee to appear and show cause why the licensee's license
should not be revoked. The notice shall state that the licensee has
the right to file a written response to the accusation, verified under
oath and signed by the licensee ten (10) days prior to the hearing date.
12.030 Hearing. Any hearing held on any accusation shall
be held before a majority of the Council under such rules of procedure
as it may adopt. Both the licensee and the person filing the accusation,
including the Tribe, shall have the right to present witnesses to testify
and to present written documents in support of their positions to the
Council. The Council shall render its decision within sixty (60) days
after the date of the hearing. The decision of the Council shall be
final and non-appealable.
Sections:
14.010 General penalties.
14.020 Initiation of action.
14.010 General penalties. Any person adjudged to be in
violation of this ordinance shall be subject to a civil penalty of not
more than Five Hundred Dollars ($500.00) for each such violation. The
Council may adopt by resolution a separate schedule of fines for each
type of violation, taking into account its seriousness and the threat
it may pose to the general health and welfare of tribal members. Such
schedule may also provide, in the case of repeated violations, for imposition
of monetary penalties greater than the Five Hundred Dollars ($500.00)
limitation set forth above. The penalties provided for herein shall
be in addition to any criminal penalties which may hereafter be imposed
under a separate ordinance adopted by the Council.
The penalties provided for herein shall be in addition to any criminal penalties which may hereafter be imposed in conformity with federal law by separate Chapter or provision of this Ordinance or by a separate ordinance of the Elk Valley Tribal Code.
14.020 Initiation of action. Any violation of this ordinance
shall constitute a public nuisance. The Council may initiate and maintain
an action in tribal court or any court of competent jurisdiction to
abate and permanently enjoin any nuisance declared under this ordinance.
Any action taken under this section shall be in addition to any other
penalties provided for this ordinance.
Section 4. Severability. If any part or provision of this
ordinance or the application thereof to any person or circumstance is
held invalid, the remainder of the Ordinance, including the application
of such part or provision to other persons or circumstances, shall not
be affected thereby and shall continue in full force and affect. To
this end the provisions of this ordinance are severable.
Section 5. Effective Date. 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.
The foregoing ordinance was adopted on the 6 day of February, 1999, at a regular meeting of the Elk Valley Tribal Council, by the following vote:
AYES: 9
NOES: 0
ABSENT: 0
/s/
John Green, Chairman
ATTESTED:
/s/
Tribal Secretary
Elk Valley Rancheria Resolution 99-38
A RESOLUTION OF THE TRIBAL COUNCIL OF THE ELK VALLEY RANCHERIA TO
ADOPT A FEE SCHEDULE FOR THE ISSUANCE, RENEWAL, AND TRANSFER OF LIQUOR
LICENSES.
WHEREAS: the Elk Valley Rancheria ("Tribe") is a federally recognized Indian Tribe with the Elk Valley Tribal Council as its governing body; andWHEREAS: under article V of the Constitution of the Elk Valley Rancheria, the Tribal Council has the power to administer Reservation assets and manage all economic affairs of the Tribe, promote the peace, safety, health, and general welfare of the tribe and has the authority to promulgate and adopt ordinances as needed for the Elk Valley Rancheria; and
WHEREAS: pursuant to this authority, the Elk Valley Tribal Council has adopted a Liquor licensing ordinance, known as the "Liquor Control Ordinance 99-37 of the Elk Valley Rancheria" ("Liquor Ordinance") regulating the manufacture, distribution, sale and consumption of alcoholic beverages on the Elk Valley Rancheria ("Reservation"); and
WHEREAS: the Secretary of the Interior, pursuant to the authority delegated to him by Title 18 of the United States Code 1161 , has certified and published in the Federal Register the tribe's Liquor Ordinance; and
WHEREAS: the Tribal Council has determined that it is in the best interests of the Tribe. All agencies and departments of the Elk Valley Rancheria are exempt from the tribe's liquor license fee;
NOW, THEREFORE, BE IT RESOLVED: that the Tribal Council hereby levies the following fees for the issuance of the following liquor licenses:
A. Retail on-sale on premises general liquor license-$250.00;
B. Retail on-sale on premises beer and wine license-$250.00;
C. Retail off-sale off premises general liquor license-$100.00;
D. Retail off-sale beer off premises and wine license-$l00.00;
E. Manufacturing of any form of alcoholic beverage-$500.00; and
BE IT FURTHER RESOLVED: that the Elk Valley Rancheria, its agencies, departments, and all businesses shall be exempt from the payment of all fees established by this Resolution.
CERTIFICATION
The foregoing Resolution was adopted by the Tribal Council of the Elk Valley Rancheria at a duly convened meeting, with a quorum present, held on this 21st day of June 1999, with 6 for, 0 against, 2 absent, 0 abstaining.
| /s/ John D. Green/ Tribal Chairperson |
________________ |
| Attested: | |
|
/s/ Machelle Strom/ Acting Council Secretary |
________________ Date |
Ordinances of the Elk Valley Rancheria, California