Blue Lake Rancheria Ordinances
Amended November 21, 2000
Second Amendment May 6, 2001
AN ORDINANCE OF THE BLUE LAKE RANCHERIA AUTHORIZING AND REGULATING GAMING ON THE BLUE LAKE RANCHERIA
The Blue Lake Rancheria of California, a federally recognized Indian Tribe ("Tribe"), as the beneficial owner the Blue Lake Rancheria ("Reservation"), and acting through its Business Council in the exercise of its inherent sovereign power to enact ordinances and otherwise safeguard and provide for the health, safety and welfare of the Reservation and the members of the Tribe, and Article V, Section 6, of the Constitution of the Blue Lake Rancheria, as amended, hereby enacts this Ordinance which shall hereinafter be cited as the Blue Lake Rancheria Gaming Ordinance of 2000 ("Ordinance"). This Ordinance and any regulations promulgated thereunder shall constitute the entire gaming regulations for the Tribe.
Section 1. Findings and Policy.
This Ordinance is adopted by the Business Council, pursuant to its authority granted under the tribe's Constitution, for the purpose of establishing the terms for gaming on the Reservation for tribal governmental and charitable purposes, and to develop, operate, and regulate such gaming consistent with the findings herein and in conformity with the federal Indian Gaming Regulatory Act 25 U.S.C. § 2701 et seq. ("IGRA"), the Tribal- State Compact and the regulations promulgated thereunder.
The Tribe finds that:
1. Gaming on its Reservation is a valuable means of generating revenues that are needed for economic development, to promote tribal self-sufficiency, economic development, employment, job training, and a strong tribal government, and to fund and ensure essential social programs and services;
2. The Tribe desires to conduct certain forms of gaming to provide needed revenues to the Tribe, and to regulate and control such gaming in a manner that will protect the environment, the Reservation, the health, security and general welfare of the Tribe, the players, and the community; and
3. The Tribe desires to own all gaming on tribal trust lands and all lands within the Reservation, and to manage and regulate such gaming in a manner that will adequately address such special interests and needs of the Tribe.
Section 2. Ownership of Gaming. The Tribe shall have the sole proprietary interest in and responsibility for the conduct of any gaming operation facilities and/or enterprise(s) authorized by this Ordinance, except to the extent the Tribe may contract with and license a person or entity to, operate or manage the enterprise pursuant to the provisions of IGRA and the regulations promulgated thereunder, or as otherwise permitted by law.
Section 3. Definitions. Unless specified otherwise, the terms used herein shall have the same meaning as in IGRA, including but not limited to references to "Net Revenues," "Class I," "Class II," and "Class III" gaming, and except for references to "Commissioners", "Commission", or "Gaming Commission" which shall mean the Blue Lake Rancheria Gaming Commission or its Commissioners, established and described herein.
3.01 "Business Council" shall mean the governing body of the Tribe, as set forth in the tribe's Constitution.
3.02 "Closely Associated Independent Contractor" shall mean any contractor that shares common ownership, officers or directors with any management principal or person related thereto.
3.03 "Compact" shall mean the Tribal-State Gaming Compact between the Blue Lake Rancheria of California, a federally recognized Indian Tribe, and the State of California, approved by the United States Secretary of Interior on May 5, 2000, and published in the Federal Register on May 16, 2000, as amended, if the amendments become effective under the IGRA.
3.04 "Financial Source" shall mean any person extending financing, directly or indirectly, to the tribe's Gaming Facility or Gaming Operation. The term shall not include a Gaming Resource Supplier who provides financing exclusively in connection with the sale or lease of Gaming Resources obtained from that Supplier, or a federally regulated or state-regulated bank, savings and loan, or other federally- or state-regulated lending institution; or any agency of the federal, state, or local government; or any investor who, alone or in conjunction with others, holds less than 10% of any outstanding indebtedness evidenced by bonds issued by the Tribe.
3.05 "Gaming" shall mean an activity in which a person stakes or risks something of value on the outcome of a contest of chance or a future contingent event, not under his or her control or influence, upon an agreement or understanding that the person, or someone else, will receive something of value in the event of a certain outcome, but shall not include bona fide business transactions.
3.06 "Gaming Activities" shall mean any Class I, Class II, or Class III gaming activity conducted by or under the jurisdiction of the Tribe.
3.07 "Gaming Commission" or "Commission" shall mean the Blue Lake Rancheria Gaming Commission, as established herein to monitor the Gaming Activities, investigate wrongdoing, conduct background investigations, issue licenses, and perform other duties as set forth in this Ordinance or that are required for the regulation of Gaming on the Reservation.
3.08 "Gaming Contractor" shall mean any person or entity that supplies gaming devices or other gaming equipment, personnel, or services (including gaming management or consulting services) to any gaming activity or enterprise.
3.09 "Gaming Employee" means any person who (a) operates, maintains, repairs, assists in any Class III gaming activity, or is in any way responsible for supervising such gaming activities or persons who conduct, operate, account for, or supervise any such gaming activity, (b) is in a category under federal or tribal gaming law requiring licensing, (c) is an employee of the Commission with access to confidential information, or (d) is a person whose employment duties require or authorize access to areas of the Gaming Facility that are not open to the public.
3.10 "Gaming Enterprise" shall mean any gaming business, event, enterprise or activity conducted by or under the jurisdiction of the Tribe.
3.11 "Gaming Facility" or "Facility" means any building in which Class III gaming activities or gaming operations occur, or in which the business records, receipts, or other funds of the gaming operation are maintained (but excluding offsite facilities primarily dedicated to storage of those records, and financial institutions), and all rooms, buildings, and areas, including parking lots and walkways, a principal purpose of which is to serve the activities of the Gaming Operation, provided that nothing herein prevents the conduct of Class II gaming as defined under IGRA) therein.
3.12 "Gaming Operation" means the business enterprise that offers and operates Class III Gaming Activities, whether exclusively or otherwise.
3.13 "Gaming Resources" means any goods or services provided or used in connection with Class III Gaming Activities, whether exclusively or otherwise, including, but not limited to, equipment, furniture, gambling devices and ancillary equipment, implements of gaming activities such as playing cards and dice, furniture designed primarily for Class III gaming activities, maintenance or security equipment and services, and Class III gaming consulting services. "Gaming Resources" does not include professional accounting and legal services.
3.14 "Gaming Resource Supplier" means any person or entity who, directly or indirectly, manufactures, distributes, supplies, vends, leases, or otherwise purveys Gaming Resources to the Gaming Operation or Gaming Facility, provided that the Commission may exclude a purveyor of equipment or furniture that is not specifically designed for, and is distributed generally for use other than in connection with, Gaming Activities, if the purveyor is not otherwise a Gaming Resource Supplier as described by of Section 6.4.5 of the Compact, the compensation received by the purveyor is not grossly disproportionate to the value of the goods or services provided, and the purveyor is not otherwise a person who exercises a significant influence over the Gambling Operation.
3.15 "Key Employee" shall mean a person who performs one or more of the following functions: bingo caller, counting room supervisor, chief of security, custodian of gaming supplies or cash, floor manager, pit boss, dealer, croupier, approver of credit, or custodian of gaming devices including those persons with access to cash and accounting records within such devices. If not otherwise included, any other person whose total cash compensation is in excess of $50,000 per year, and the four (4) most highly compensated persons in the Gaming Enterprise are included in the definition of key employees. At the discretion of the Gaming Commission, other positions or persons may be included under and subject to the requirements for key employees.
3.16 "Management Contractor" means any Gaming Resource Supplier with whom the Tribe has contracted for the management of any Gaming Activity or Gaming Facility, including, but not limited to, any person who would be regarded as a management contractor under IGRA.
3.17 "National Indian Gaming Commission" ("NIGC") shall mean the commission established under IGRA.
3.18 "Net Revenues" shall mean gross gaming revenues from all Gaming Activities of a Gaming Enterprise, less amounts paid out as, or paid for, prizes and less total gaming-related operating expenses, excluding management fees.
3.19 "Person" shall mean any natural person or entity, including but not limited to corporations, partnerships and trusts or any group or combination acting as a unit.
3.20 "Primary Management Official" shall mean the person who has management responsibility for a management contract; any person who has authority to hire and fire employees or to set up working policy for the Gaming Enterprise; or the chief financial officer or other person who has financial management responsibility. At the discretion of the Gaming Commission, other positions or persons may be included under and subject to the requirements for primary management officials.
3.21 "Related to" shall refer to persons who are related to each other in the first degree as a father, mother, sister, brother, or child.
3.22 "Reservation" shall mean all lands within the exterior boundaries of the Blue Lake Rancheria restored as Indian Country by the 1985 Stipulation for Entry of Judgment (Humboldt County), the 1986 Stipulation to Restoration of Indian Country (Humboldt, Mendocino, Lake, Plumas and Tuolumne Counties) and Order and any lands the title to which is held by the United States of America in trust for the Tribe or is subject to a restriction by the United States against alienation and over which the Tribe exercises governmental power, and any other land designated by the Secretary of the Interior ·as reservation land for the Blue Lake Rancheria.
3.23 "State" shall mean the State of California.
3.24 "State Gaming Agency" shall mean the California State Gambling Control Commission or such other Agency of the State as the State designates to perform the functions of the State Gaming Agency as defined in the Compact.
3.25 "Tribal Court" shall mean any court established by the Tribe to hear disputes provided the court is a separate and independent branch of tribal government (whether a stand-alone court or a court serving multiple tribes) and the court complies with due process requirements as contained in the Indian Civil Rights Act, 25 U.S.C. §1302. In the absence of a Tribal Court, the term "Tribal Court" shall refer to arbitration pursuant to Section 11.16.
3.26 "Tribal Member" shall mean any duly enrolled member of the Tribe.
Section 4. Gaming Commission.
4.01 Establishment of Gaming Commission. There is established by the Tribe a Commission, acting under the authority of the Tribe, to be known as the Blue Lake Rancheria Gaming Commission. The Gaming Commission shall be composed of three (3) persons who would themselves qualify for licensing under this Ordinance, and shall be appointed by the Business Council.
4.02 Qualifications for Office. The following are the qualifications for serving as a Commissioner:
(1) At least one Commissioner must be a tribal member;
(2) At least one Commissioner shall have a legal or law enforcement background;
(3) At least one Commissioner shall have at least five years of business experience;
(4) All Commissioners must be determined to meet the suitability standard contained in Section 9.05(2) and shall be subject to a background investigation as provided in Section 10. The Business Council shall conduct the suitability determination for the appointment of the first Commissioners. Thereafter, no Commissioner shall be qualified and seated until the Commission has determined that he or she meets the suitability standards set forth herein.
4.03 Disqualifications for Office. The following persons may not serve as Commissioners:
(1) Employees of any Gaming Enterprise on the Reservation;
(2) Persons related to any Gaming Contractor (including any principal thereof or Closely Associated Independent Contractor);
(3) Persons who would not be eligible to be officers of the Tribe pursuant to the tribe's Constitution; and
(4) No more than one member of the Business Council.
4.04 Terms of Office. The Business Council shall appoint two members of the Commission for an initial term of two (2) years. The remaining member of the Commission shall be appointed by the Business Council for an initial term of three (3) years. Thereafter all terms of the Commissioners shall be three (3) years.
4.05 Removal from Office. Commissioners may only be removed from office before the expiration of their terms by a majority vote of the Business Council for neglect of duty, misconduct, malfeasance, or other acts that would render such persons unqualified for such duties or for licensure hereunder. Commissioners may not be removed for exercising their discretion or judgment or for how they voted on a particular issue. A Commissioner can only be removed from office by an affirmative vote of at least four (4) members of the Business Council after being served with a ten (10) day written notice setting froth the grounds for removal and setting a day, time, and place where the Commissioner upon whom the notice was served is given an opportunity to address the Council and present evidence and arguments on the Commissioner's behalf in opposition to the removal. At the request of the member whose removal is at issue, the hearing may be held in executive session. The Business Council may also elect to receive in executive session any evidence public disclosure of which might compromise any on going law enforcement investigation, land acquisition for the Tribe or negotiations by the Tribe with a third party.
4.06 Quorum. Two (2) members of the Gaming Commission shall constitute a quorum.
4.07 Officers and Duties. The Gaming Commission shall select, by majority vote, a Chairman, Vice-Chairman and Secretary. The Chairman shall preside over meetings of the Gaming Commission and the Vice-Chairman shall preside in absence of the Chairman. The Secretary shall record or arrange for and supervise the recording in writing of the minutes of all Gaming Commission meetings and all official actions taken by the Gaming Commission.
4.08 Voting. All actions of the Gaming Commission shall be taken by majority vote. The Commission Chairman may vote on any issue.
4.09 Meetings. Meetings shall be held at least once per month, on a date to be determined by the Commission at the tribe's primary meeting facility, or such other location as shall be determined by the Commission and approved by the Business Council. Additional meetings shall be held as called by the Chairman or by at least two (2) other Commissioners. Notice of meetings shall be given in writing to each Commissioner, served by first class mail or personal delivery at least forty-eight(48) hours prior to such meeting. Meetings may be called at any time, by any means, with unanimous consent of the Commissioners.
4.10 Compensation for Serving. The Business Council shall determine and authorize the compensation to be paid to Commissioners by adoption from time to time of a resolution based on a determination of time required to be expended upon Commission duties and the qualifications of the appointed Commissioners.
4.11 Powers and Duties. Consistent with the provisions of this Ordinance, the Gaming Commission shall have the power and duty to:
(1) Inspect, examine and monitor Gaming Activities, including the power to demand access to and inspect, examine, photocopy and audit all papers, books and records respecting such Gaming Activities;
(2) Investigate any suspicion of wrongdoing in connection with any Gaming Activities;
(3) Conduct, or cause to be conducted, such investigations as may be necessary to determine in connection with any Gaming Activities, compliance with law or this Ordinance or any contracts, agreements, goods, services, events, incidents, or other matters related to Gaming Activities;
(4) Conduct, or cause to be conducted, background investigations regarding any person in any way connected with any Gaming Activities and issue licenses to, at minimum, all Key Employees, Primary Management Officials, Gaming Resource Suppliers, Management Contractors, and Financial Sources according to requirements at least as stringent as those in 25 C.F.R. parts 556 and 558;
(5) Hold such hearings, sit and act at such times and places, summon persons on the Reservation or over whom they have jurisdiction to attend and testify at such hearings, take such testimony, and receive such evidence as the Gaming Commission deems relevant in fulfilling its duties;
(6) Administer oaths or affirmations to witnesses appearing before the Gaming Commission;
(7) Implement and administer a system for investigating, licensing and monitoring employees and others connected with Gaming Activities, as described below, including the issuance of licenses to gaming facilities, individuals and entities as required under this ordinance and IGRA;
(8) Hear patron complaints against the Gaming Establishment, in accordance with the procedures established in this Ordinance;
(9) Subject to the appropriation of funds and approval by the Business Council, adopt a budget to finance the operations of the Gaming Commission including but not limited to the employment of such staff and support services as reasonably required to fulfill its responsibilities under this Ordinance; compensation of such employees shall be limited to that which is comparable to compensation paid to persons performing similar duties in other governmental gaming regulatory agencies;
(10) To the extent required, comply with any reporting requirements established under the Compact and other applicable law, including the IGRA;
(11) Promulgate and issue such regulations as it deems appropriate, in order to implement and enforce the provisions of this Ordinance including, but not limited to, adopting rules of procedure governing how its meetings will be conducted;
(12) Promulgate regulations establishing minimum standards for the operation of any Gaming Activities conducted on the Reservation including but not limited to, auditing, internal fiscal controls, technical standards for electronic gaming and Gaming Resources, and describing and establishing rules for each Class II or Class III game authorized to be conducted on the Reservation, and providing that no form of such gaming may be conducted on the Reservation without the prior approval of the Gaming Commission;
(13) Carry out such other duties with respect to Gaming Activities on the Reservation as the Business Council shall direct from time to time by amendment to this Ordinance or adoption of a written policy resolution;
(14) Levy a tax or fee on Gaming Activities, Gaming Facilities, Gaming Enterprise and applicants for gaming licenses to cover the cost of conducting background investigations, issuing gaming licenses to persons engaged or wishing to engage in Gaming Activities on the Reservation, and funding the operation of the Commission;
(15) Levy fines or suspend or revoke gaming licenses for violations of this Ordinance or the Gaming Commission's regulations; and
(16) Carry out all responsibilities of a Tribal Gaming Agency required by the Compact.
(17) The Tribal Gaming Commission shall not have jurisdiction over or authority to hear any claim against a Management Contractor for breach of the Management Contract. Nothing contained herein shall limit the Tribal Gaming Commission's jurisdiction over violations of the tribe's Gaming Ordinance which shall be resolved in accordance with the Tribal Gaming Ordinance.
4.12 Annual Reports. On or before April 30th of each year, the Gaming Commission shall provide to the Business Council an Annual Report summarizing its activities during the prior twelve (12) month period ending on December 31st, and accounting for all receipts and disbursements. The Business Council shall cause copies of the Annual Report to be made available to Tribal Members within thirty (30) days after receipt.
4.13 Other Reporting Requirements. As required, the Gaming Commission shall comply with any reporting requirements established under the Compact and other applicable law, including the IGRA and regulations promulgated thereunder.
4.14 Conflict of Interest. No Commissioner or person working for the Commission either as an employee or independent contractor ("staff person") shall use his or her official position to make, participate in making or attempt to influence a decision by the Commission as to which the Commissioner or staff person has a conflict of interest. Conflicts of interest shall be determined based on a conflict of interest code adopted by the Business Council. At a minimum, a conflict of interest shall exist if the decision, including, but not limited to, licensing decisions, affects a significant financial interest of:
(1) the Commissioner or staff person;
(2) an immediate family member of the Commissioner or staff person;
(3) a business entity of which the Commissioner or staff person is an owner, employee, or officer;
(4) the Tribe, if the Commissioner is also a member of the Business Council; and
(5) a source of income to the Commissioner or staff member.
As used in this Section:
(1) "immediate family member" means a spouse or meretricious spouse, a sibling, including a step-sibling, a parent, including a step-parent, an adult or minor child, including a step-child, or a grand-parent.
(2) "source of income" means an employer of the Commissioner or staff person or a person or entity which has provided the Commissioner or staff person with more than $250 in the 12 consecutive months preceding the act of making, participation in or attempting to influence the decision.
(3) "significant financial interest" means a foreseeable increase or decrease in annual income of more than $1,000 or a foreseeable increase or decrease in the value of real or person property of either more than $10,000 in fair market value or more than $1,000 in annual fair rental value.
4.15 Contact with the NIGC. Members of the Commission and Commission staff are prohibited from contacting the NIGC with regard to the internal affairs of the Commission, the Gaming Enterprise, or the Tribe. The term "internal affairs" shall include any matter relating to Tribal political affairs, and any personnel or policy matters of the Tribe, the Commission or the Gaming Enterprise not specifically regulated by the NIGC under federal law. A violation of this regulation on the part of a Commissioner shall be grounds for removal by the Business Council, and any such failure on the part of any staff member, including Investigators, shall be grounds for suspension or termination.
4.16 Mandatory Duty to Report Theft. Whenever the Gaming Commission knows or has reason to know, based upon reliable information, that a theft or embezzlement ("theft") of Gaming Enterprise funds has occurred, the Commission shall immediately notify the Business Council and the General Manager of the Facility, or, in the event that the suspect is the General Manager, then only the Business Council, that such a crime has been committed and shall immediately report the theft and file a complaint with the appropriate law enforcement agency (i.e., Federal Bureau of Investigation, Humboldt County Sheriff's Department and the State Gaming Agency, if required by the Compact).
Section 5. Permitted Gaming Activities.
5.01 Unauthorized Gaming Prohibited. All Gaming Activities on the Reservation (whether Class I, II or III) are prohibited except as expressly authorized under this Ordinance.
(1) Class I Gaming. Class I. Gaming Activities are hereby permitted to the extent consistent with tribal custom and practice. The Gaming Commission may prohibit and prevent any conduct which is claimed to be Class I gaming if the Business Council finds that such conduct is not in accordance with tribal customs or practices or violates IGRA or any other law.
(2) Class II and Class III Gaming. Class II and Class III gaming on the Reservation is hereby authorized, provided the Tribe has the sole proprietary interest in and responsibility for the conduct of any gaming enterprise, or to the extent the Tribe may contract with and license a person or entity to own, operate or manage the enterprise pursuant to the provisions of IGRA or as otherwise permitted by law. Nothing herein shall prohibit the Tribe from engaging the services of non-tribal persons as employees thereof or engaging any person or entity to provide consulting or other technical assistance or to assist the Tribe in the management of Gaming Activities pursuant to a management agreement entered into under the provisions of IGRA. Class III gaming shall be conducted in accordance with the Compact, or any alternative thereto as provided by IGRA.
Section 6. Gaming Revenues.
6.01 Tribal Property. Except as provided for under the terms of an agreement pursuant to the provisions of IGRA or as otherwise permitted by law, all revenues generated from any Class II or Class III Gaming Activities are the property of the Tribe. Subject to any security arrangements in connection with financing Gaming Activities, a Gaming Facility or a Gaming Enterprise which security arrangements are permitted by law, any profits or net revenues from Gaming Activities shall be deposited into the tribe's general treasury or such other tribal account as the Tribe shall determine. Once becoming part of the treasury such funds shall lose any identity as gaming revenues except to the extent necessary to identify them as such in order to comply with applicable law. No Tribal Member shall be deemed to have any interest in such profits or net revenues, provided that the Business Council may adopt rules for distributing gaming proceeds to Tribal Members on a per capita basis provided such plan meets the requirements of IGRA, 25 U.S.C. § 2710 (b) (3). Payments from the general treasury funds to Tribal Members under other tribal programs, including those related to health, welfare, education, elderly care, and housing, shall not be deemed to be per capita payments.
6.02 Use of Net Revenues. Net Revenues from Gaming Activities shall not be used for purposes other than:
(1) To fund tribal government operations or programs;
(2) To provide for the general welfare of the Tribe and its members;
(3) To promote economic development for the Tribe;
(4) To donate to charitable organizations;
(5) To help fund operations of local government agencies; or
(6) To make per capita distributions to Tribal Members in accordance with Section 6.01 above.
Section 7. Operation of Gaming Establishments.
7.01 Gaming Permitted as Licensed. Except to the extent authorized by an agreement pursuant to the provisions of IGRA or as otherwise permitted by law, Gaming Activities shall only be conducted in tribally owned, operated and licensed facilities pursuant to the provisions of this Ordinance. Such activities shall be conducted in accordance with the terms and conditions of any license issued by the Tribe or Gaming Commission for such purposes as to each facility before any Gaming Activities may occur therein. Such licenses shall specify the hours of operation, type and scope of Gaming Activities allowed therein, permitted uses of the facility for other activities, rules of conduct for employees and patrons, regulation of alcoholic beverages, food handling and entertainment, and such other matters as the Gaming Commission or the Business Council may deem necessary to the conduct of Gaming Activities therein.
7.02 Protection of Environment and Public. Any construction or maintenance of any gaming facility, and the operation of gaming therein, shall be in accordance with the Uniform Building Codes or any ordinance of the Tribe establishing uniform standards for construction on the Reservation and conducted in a manner which adequately protects the environment and the public health and safety.
7.03 Dispute Resolution. Patrons who have complaints against the Gaming Enterprise shall have as their sole remedy the right to file a petition for relief with the Gaming Commission. For such purposes, disputes with any management contractor or its employees shall be made to the Gaming Commission, and such shall be the exclusive remedy for patron complaints. Complaints shall be submitted in writing and, at the discretion of the Gaming Commission, the petitioner maybe allowed to present evidence. The Gaming Commission will render a decision in a timely fashion and all such decisions will be final when issued. Any patron having a claim against the Gaming Enterprise or a management contractor or its employees must submit such claim to the Gaming Commission within thirty (30) days of its occurrence or within such time periods as the Commission shall establish by regulation. All claims by patrons shall be limited to a maximum recovery of $10,000 per occurrence, and a cumulative limit of $20,000 per patron in any twelve (12) month period.
Section 8. Audits.
8.01 Annual Audits. Annual outside auditing by a recognized independent accounting firm shall be conducted of each gaming activity in accordance with the auditing and accounting standards for audits of casinos of the American Institute of Certified Public Accountants and the results thereof reported to the Business Council, and, to the extent required by law, the Bureau of Indian Affairs, the NIGC, and the State Gaming Agency.
8.02 Audit Requirements. All contracts for supplies, services, or concessions for a contract amount in excess of Twenty-five Thousand Dollars ($25,000.00) annually (except contracts for professional legal or accounting services) relating to Class II or Class III gaming on the Reservation shall be subject to independent audits, and such contracts shall so specify.
8.03 Minimum Internal Control Standards. Prior to the initiation of any Class III Gaming, the Commission shall adopt, subject to approval of the Business Council, and thereafter maintain Minimum Internal Control Standards which are substantially consistent with or superior to the Minimum Internal Control Standards adopted by the National Indian Gaming Commission.
8.04 Cash Transaction Reporting. The Commission shall ensure that all Class III Gaming Operations comply with currency transaction reporting requirements as provided in the Compact.
8.05 Minimum Bankroll. All Gaming Operations shall maintain cash or cash equivalents in an amount sufficient to reasonably protect the Gaming Operation's patrons against defaults in gaming debts owed by the Gaming Operation.
Section 9. Licenses, Applications and Licensing Procedures.
9.01 Authority to License. The Commission shall have the authority to issue Licenses for the conduct of all Gaming authorized by the Business Council consistent with this Ordinance, IGRA and the Compact.
9.02 Types of Licenses Required.
(1) Persons. The following Persons must obtain Licenses as a precondition to employment in, management of or contracting with any Gaming Operation:
a. any Management Contractor;
b. any Financing Source;
c. any Gaming Resource Supplier who, directly or indirectly, provides, has provided, or is deemed likely to provide at least twenty five thousand dollars ($25,000.00) in Gaming Resources in any 12-month period, or who has received at least twenty-five thousand dollars ($25,000.00) in any consecutive 12- month period within the 24-month period immediately preceding application for a License;
d. any Gaming Employee;
e. all Primary Management Officials; and
f. all Key Employees.
(2) Gaming Facilities. Each Gaming Facility must obtain a separate License from the Commission
9.03 License Requirements.
(1) Licenses shall be issued for Class II or Class III Gaming, and shall indicate the type and class of License on the face of the License. A combined Class II and Class III License may be issued if appropriate. A License shall be valid for one (1) Facility or location only, and the location shall be identified on the face of the License.
(2) Licenses issued pursuant to this Ordinance shall be issued according to the requirements at least as stringent as those set forth at 25 C.F.R. Parts 556 and 558, and any amendments thereto.
9.04 Application for License
(1) No License shall be issued under this Ordinance except upon a sworn Application filed with the Commission, in such form as may be prescribed by the Commission, containing a full and complete showing, at a minimum, of the following:
a. if applicable, a complete description of the premises at which Gaming will be conducted;
b. the Applicant's fulfillment of and compliance with all applicable requirements of IGRA, all provisions of this Ordinance and for Gaming Employees, Gaming Resource Suppliers, Management Contractors, and Financial Sources, the applicable provisions of the Compact.
(2) In reviewing an application for a gaming license, the Commission shall consider whether issuance of the license is inimical to public health, safety, or welfare, and whether issuance of the license will undermine public trust that the tribe's Gaming Operations, or tribal government gaming generally, are free from criminal and dishonest elements and would be conducted honestly. A license may not be issued unless, based on all information and documents submitted, the Commission is satisfied that the applicant is all of the following:
a. A person of good character, honesty, and integrity.
b. A person whose prior activities, criminal record (if any), reputation, habits, and associations do not pose a threat to the public interest or to the effective regulation and control of gambling, or create or enhance the dangers of unsuitable, unfair, or illegal practices, methods, or activities in the conduct of gambling, or in the carrying on of the business and financial arrangements incidental thereto.
(3) The issuance of Licenses shall also be subject to the provisions of Section 11 of this Ordinance regarding background investigations.
(4) The following notices shall be placed on the application form for an Applicant before such form is completed by the Applicant:
a. "In compliance with the Privacy Act of 1974, the following information is provided: Solicitation of the information on this form is authorized by Chapter 25 U.S.C. §2701 et seq. The purpose of the requested information is to determine the eligibility of individuals to be employed in a gaming operation. The information will be used by the Commission, the State of California, and/or the National Indian Gaming Commission members and staff who have need for the information in t;he performance of their official duties. The information may be disclosed to appropriate Federal, Tribal, State, local, or foreign law enforcement and regulatory agencies when relevant to civil, criminal or regulatory investigations or prosecutions or when pursuant to a requirement by a tribe or the National Indian Gaming Commission in connection with the hiring or firing of an employee, the issuance or revocation of a gaming License, or investigations of activities while associated with a tribe or a gaming operation. Failure to consent to the disclosures indicated in this notice will result in a tribe's being unable to hire you in a Primary Management Official or Key Employee position.
The disclosure of your Social Security Number (SSN) is voluntary. However, failure to supply a SSN may result in errors in processing your application."
b. "A false statement on any part of your application may be grounds for not hiring you, or for firing you after you begin work. Also, you may be punished by fine or imprisonment. (U.S. Code, title 18, Section 901)."
9.05 Release of Information Required. All Applicants for a License shall be required to provide releases to the State Gaming Agency to make available to the Commission background information regarding the Applicant.
9.06 Fingerprint Cards Required and Use of CLETS.
(1) All Applicants for a License are required to submit fingerprint cards. The Tribal Police, the state police of the state in which the Applicant resides, and the Humboldt County Sheriff's Department are hereby identified as law enforcement agencies with law enforcement authority to take fingerprints ("Enforcement Agencies") . Pursuant to 25 C.F.R. §522.2(h), the Enforcement Agencies shall forward an Applicant's fingerprint card to the Federal Bureau of Investigation National Criminal Information Center. The Commission may submit an Applicant's fingerprint card to any additional tribal, local or state criminal history check system or center as the Commission deems necessary or appropriate. Reports obtained from such fingerprint processing shall be incorporated into the Applicant's file.
(2) For purposes of receiving information from the California Law Enforcement Telecommunications System ("CLETS"),members, investigators and staff of the Commission shall be subject to and comply with Article 6 (commencing with section 11140) of Chapter 1 of Title I of Part 4 of the California Penal Code, and shall be entitled to receive state summary criminal history information within the meaning of subdivision (b) (12) of Penal Code Section 11105. The Commission may comply with any terms or conditions imposed by the CLETS advisory committee as part of its determination that the Commission is qualified for receipt of services from the California Department of Justice through the CLETS.
9.07 Continuing Duty to Provide Information. Applicants and Licensees shall have a continuing duty to provide any materials, assistance or other information required by the Commission, and to fully cooperate in any investigation conducted by or on behalf of the Commission. If any information provided on the Application changes or becomes inaccurate in any way, the Applicant or Licensee shall promptly notify the Commission of such changes or inaccuracies.
9.08 Term of License; License Fees; Parameters of License.
(1) Licenses, except Temporary Licenses, shall be for a term of two years, and shall expire on the second anniversary of the effective date of such License(s). The effective date and period shall be stated on the face of the License. A License may be renewed by submission not less than sixty days prior to expiration of the currently effective License of an application which updates and does not repeat information contained in the original License application.
(2) In order for the Tribe to recover the costs of complying with federal, Tribal, and State regulatory processes applicable to Gaming, the Commission may adopt by resolution from time-to-time and impose reasonable fees for License Applicants.
9.9 Facility License
(1) The Commission may issue an annual Facility License to a Gaming Establishment, if the Gaming Facility:
a. is a sound physical structure with adequate and safe plumbing, electrical, heating, cooling and ventilation systems in place and operational;
b. has been inspected and approved for safety by a building and fire inspector designated by the Commission or otherwise authorized to conduct such inspections by Tribal law;
c. is adequate in all respects to accommodate the Gaming intended to be carried out within the structure;
d. meets all requirements of applicable federal and tribal and any state law made applicable by the Tribe, including the current edition of the Uniform Codes adopted by the International Conference of Building Officials, or such Tribal building codes, including electrical, mechanical and plumbing codes as have been adopted by the Tribe;
e. is equipped with security and surveillance equipment meeting or exceeding standards adopted by the Commission by resolution; and
f. has paid all applicable License fees, taxes and costs.
(2) The Licensed Facility shall:
a. at all times maintain an orderly, clean and neat Gaming Facility, both inside and outside the premises of the Gaming Facility;
b. be subject to patrol by the tribe's security and law enforcement personnel and, when authorized, local and state law enforcement and the Licensee shall cooperate at all times with such security and law enforcement officials; and
c. be open to inspection by authorized Tribal officials at all times during business hours and to such inspection by authorized officials of the State Gaming Agency as are required by the Compact;
9.10 Temporary Employment Pending Issuance of License and During Temporary License Period.
Notwithstanding anything herein to the contrary, if the Applicant has completed a license application in a manner satisfactory to the Commission, and the Commission has conducted a preliminary background investigation, and the investigation or other information held by the Commission does not indicate that the Applicant has a criminal history or other information in his or her background that would either automatically disqualify the Applicant from obtaining a License or cause a reasonable person to investigate further before issuing a License, or is otherwise unsuitable for licensing, the Commission may issue a temporary license and may impose such specific conditions thereon pending completion of the Applicant's background investigation, as the Commission in its sole discretion shall determine. Special fees may be required by the Commission to issue or maintain a temporary license! which the Commission may adopt and revise by resolution from time to time. A temporary license shall remain in effect until suspended or revoked, or a final determination is made on the application. At any time after issuance of a temporary license, the Commission may suspend or revoke it in accordance with Sections 10.09, 10.10, or 10.11. Temporary employment shall be terminated upon the occurrence of any of the following:
a. denial of a relevant License by the Commission;
c. unsatisfactory completion of a background investigation or NIGC review resulting in nullification of a Temporary License, as described in Section 10.09; or
d. to the extent required under 25 C.F.R. Part 558 and, at the end of thirty (30) days after the starting date of temporary employment, if at the end of such period no License has been issued hereunder or if a License issued hereunder remains effective only on a temporary basis; provided, however, that temporary employees terminated for the reason described in this subsection shall be qualified for re-employment upon the satisfactory completion of background investigations and NIGC reviews.
9.11 Assignment or Transfer. No License issued under this Ordinance may be assigned or transferred unless the proposed assignee or transferee would independently be qualified to hold the License proposed to be assigned or transferred and the Commission approves of such assignment or transfer.
Section 10. Background Investigations and Licensing Decisions
10.01 Required Background Investigations. Background investigations shall be conducted by the Commission, or other agent retained by the Commission, under the supervision and direction of the Commission, on all Persons specified in Section 9.02(l)of this Ordinance.
10.02 Standards for Background Investigations.
(1) All background investigations shall be conducted to ensure that Gaming Operations shall not employ as a Gaming Employee, Primary Management Official, Key Employee or contract with a Management Contractor, Gaming Resource Supplier, or Financial Source, any person whose prior activities, or reputation, habits and associations pose a threat to the public interest or to the effective regulation of Gaming, or create or enhance the dangers of unsuitable, unfair or illegal practices and methods and activities in the conduct of such Gaming.
(2) Such investigations shall be conducted according to requirements at least as stringent as those set forth at 25 C.F.R. Parts 556 and 558, the Compact, and this Section 10.
(3) Background investigations shall be conducted in a manner which takes all reasonable steps to ensure the confidentiality of the information generated by the investigation as well as that submitted by the Applicants. The Commission shall adopt by resolution rules and procedures to protect the confidentiality of such information.
10.03 Information Required for Background Investigations.
Each Person subject to a background investigation under; Section 9.02(l)of this Ordinance shall be required to provide, subject to the Privacy Act of 1974, at a minimum, and in such form as designated by the Commission, all of the following information:
(1) full name, other names used, social security number(s), birth date, place of birth, citizenship, gender, all languages (spoken or written);
(2) currently and for the previous ten (10) years, all business and employment positions held, ownership interests in those businesses, business and residence addresses, and driver's license numbers;
(3) the names and current addresses of at least three (3) personal references, including one personal reference who was acquainted with the Applicant during each period of residence listed under Section 9.03(2);
(4) current business and residence telephone numbers;
(5) a description of any existing and previous business relationships with any Native American Indian tribe, including but not limited to a description of the amount and type of ownership interest in those businesses;
(6) a description of any existing and previous business relationships with gaming, including but not limited to a description of the amount and type of ownership interest in those businesses;
(7) the name and address of any licensing or regulatory agency with which the Person has filed an application for a license or permit related to any gaming or gambling, whether or not such license or permit was granted;
(8) for each felony for which there is an ongoing prosecution or conviction, the charge, the name and address of the court involved, and the date and disposition, if any;
(9) for each misdemeanor conviction or ongoing misdemeanor prosecution (excluding minor traffic violations), within ten (10) years of the date of the application, the name and address of the court involved and the date and disposition;
(10) for each criminal charge (excluding misdemeanor traffic charges, but including any DWI, reckless or careless driving charges), whether or not there is a conviction, if such criminal charge is within ten (10) years of the date of the application and is not otherwise listed, the type of criminal charge, the name and address of the court involved and the date and disposition of such charge;
(11) the name and address of any licensing or regulatory agency with which the person has filed an application for an occupational license or permit, whether or not such license or permit was granted;
(12) a current photograph;
(13) any other information the Commission deems relevant; and
(14) fingerprints consistent with the provisions of Section 9.07.
10.04 Background Investigation Process.
(1) The Commission or its investigator shall, at a minimum:
a. Verify all information on the Application and related documents;
b. To the extent deemed necessary, interview or obtain references from current and prior employers and immediate supervisors for the preceding five (5) years;
c. To the extent deemed necessary, interview any or all personal references;
d. Obtain and verify the Applicant's criminal history record; and
e. To the extent deemed necessary interview the Applicant.
(2) The investigator shall make a written report of the investigation to the Commission, including therein the steps taken in conducting the investigation, the names, addresses and relationship to the Applicant of any persons interviewed, the information obtained from each person interviewed regarding the Applicant's reputation, habits and associations, the apparent candidness (or lack thereof) of the persons interviewed, and any other information garnered or learned about the Applicant and the source of the information, and shall particularly identify all potential problem areas and sources of the information.
10.05 Eligibility Determination; Licensing Decision.
(1) The Commission shall review the report and any additional information known to it, taking into account the Applicant's prior activities, criminal record, if any, and reputation, habits and associations, and shall make a determination concerning the Applicant's eligibility for a License under the suitability standards in Section 9.05(2). The Commission shall deny an application for a License, if it determines that the Applicant does not satisfy said suitability standard. A Gaming Operation shall not employ that person as Gaming Employee, Key Employee or Primary management official or shall not contract with the Person as a Management Contractor, Gaming Resource Supplier or Financial Source, unless the Person has received a temporary license or if the license application is denied.
(2) In addition to the requirements of Section 9.05(2), the Commission shall not issue a permanent License until it has determined that the following minimum requirements have been met:
a. the Applicant has fully completed all required Application forms and has provided the Commission with all other information that the Commission has requested;
b. the Applicant meets all of the licensing requirements of this Ordinance;
c. the Commission has reviewed the Applicant's criminal history record and deems the Applicant's criminal history to be satisfactory to hold a License; and
d. all applicable License fees, taxes and costs have been paid.
10.06 Procedures for Forwarding Applications and Reports for Key Employees and Primary Management Officials to the National Indian Gaming Commission; Issuance of Temporary Licenses.
(1) If the Commission determines that an Applicant is eligible for a License, it may issue a temporary License if it determines that the Applicant must start work immediately, pending a review of the Applicant's eligibility by the National Indian Gaming Commission. Within ten days of the issuance of a temporary License or upon a determination of eligibility, whichever occurs first, the Commission shall forward copies of the Applicants' employment and License application, and background investigation report and related information to the National Indian Gaming Commission. An investigative report shall include all of the following:
a. Steps taken in conducting a background investigation;
b. Results obtained;
c. Conclusions reached; and
d. The bases for those conclusions.
The Commission shall submit, with the report, a copy of the eligibility determination made under this section.
(2) If a temporary License is not issued to an Applicant or if the Commission determines an Applicant is not eligible for a License, the Commission:
a. Shall notify the National Indian Gaming Commission; and
b. May forward copies of its eligibility determination and investigative report (if any) to the National Indian Gaming Commission for inclusion in the Indian Gaming Individuals Records System
(3) With respect to Key Employees and Primary Management Officials, the Commission shall retain Applications for employment and reports (if any) of background investigations for inspection by the Chairman of the National Indian Gaming Commission or his or her designee for no less than three (3) years from the date of termination of employment. The Commission shall adopt by regulation policies governing the retention of all other records.
10.07 Granting Licenses to Key Employees or Primary Management Officials.
(1) If, within a thirty (30) day period after the National Indian Gaming Commission receives the information required in Section 10.6, the National Indian Gaming Commission notifies the Tribe that it has no objection to the issuance of a License to the Applicant, the Commission may issue a permanent License to such Applicant
(2) The Commission shall respond to a request for additional information from the Chairman of the National Indian Gaming Commission concerning a Key Employee or a Primary Management Official who is the subject of a report. Such a request shall suspend the 30-day period under paragraph (1) of this section until the Chairman of the National Indian Gaming Commission receives the additional information
(3) If, within the thirty (30) day period described above, the National Indian Gaming Commission provides the Tribe with a statement itemizing objections to the issuance of a license to a Key Employee or to a Primary Management Official for whom the Tribe has provided an application and investigative report to the National Indian Gaming Commission, the Tribal Gaming Commission shall make the final decision whether to issue a license to such Applicant.
(4) To the extent permitted by the IGRA and its implementing regulations, the Commission may contract with the State Gaming Agency for the conduct of background investigations, may rely on a state certification of non- objection previously issued under a gaming compact involving another tribe, or may rely on a State gaming license previously issued to the applicant, to fulfill some or all of the Commission's background investigation obligation under this Section 10.
10.08 Denial of a License Application. The Commission, after any required hearing conducted pursuant to Section 11 of this Ordinance, may deny an Applicant a License only after it has determined that the requirements contained in this Ordinance have not been met by the Applicant or the Applicant's Application, or if the Commission determines that the Applicant does not meet the suitability standards in Section 9.05(2).
10.09 License Revocation and Suspension Following Receipt of Information from NIGC.
(1) If, after the issuance of a License, the Tribe receives information from the NIGC indicating that a Management Contractor, Key Employee, or Primary Management Official is not eligible for employment under this Ordinance, the Commission shall suspend such License, shall notify the Licensee in writing of such suspension and the potential revocation of the Licensee's License, and if required by Section 11 shall conduct a hearing in accordance with that section regarding the proposed License revocation
(2) After a hearing, if required, the Commission shall revoke or reinstate a License suspended pursuant to subsection (1) of this Section. The Commission shall notify the NIGC of its decision. A Management Contractor whose License has been revoked or suspended pursuant to this Section may not operate a Gaming Operation.
10.10 License Cancellation or Suspension.
(1) Any License issued hereunder may be canceled, limited, revoked, suspended, terminated or modified by the Commission, after a hearing, if required, as provided in Section 11, for the breach of any of the provisions of the License, the IGRA, the Compact or this Ordinance. In addition a License may be summarily suspended, without a prior opportunity for a hearing, only if the continued employment or involvement of the Licensee in a Gaming Operation would pose a danger to the safety, welfare or integrity of the Gaming Operation, or upon notice to that effect from the NIGC or the State pursuant to the terms of the Compact.
(2) After a revocation hearing, if required, the Commission shall decide to revoke or to reinstate a gaming license. The Commission shall notify the National Indian Gaming Commission of its decision.
(3) A copy of the Commission's decision regarding the revocation of a permanent License shall be sent to the NIGC.
10.11 Revocation Based on Notice from the State Gaming Agency.
(1) Except as provided in subsection 10.11 (2) below, upon receipt of notice that the State Gaming Agency has determined that a Gaming Employee, Gaming Resource Supplier, Management Contractor or Financial Source would b& unsuitable for licensure in a gambling establishment subject to the jurisdiction of the State Gaming Agency, the. Commission shall promptly revoke any license that has theretofore been issued to said Person; provided that the Commission may, in its discretion, re-issue a license to the Person following entry of a final judgment reversing the determination of the State Gaming Agency in a proceeding in state court conducted pursuant to section 1035 of the California Code of Civil Procedure.
(2) Notwithstanding a determination of unsuitability by the State Gaming Agency, the Commission may, in its discretion, decline to revoke a tribal license issued to a person employed by the Tribe pursuant to subsections 1 and 2 below.
a. the Tribe may retain in its employ a Person whose application for a determination of suitability, or for a renewal of such a determination, has been denied by the State Gaming Agency, if: (i) the Person holds a valid and current license issued by the Commission that must be renewed at least biennially; (ii) the denial of the application by the State Gaming Agency is based solely on activities, conduct, or associations that antedate the filing of the Person's initial application to the State Gaming Agency for a determination of suitability; (iii) the Person is not an employee or agent of any other gaming operation; and (iv) the Person has been in the continuous employ of the Tribe for at least three years prior to the effective date of this Compact.
b. Notwithstanding subdivision 1, above, the Tribe may employ or retain in its employ a Person whose application for a determination of suitability, or for a renewal of such a determination, has been denied by the State Gaming Agency, if the Person is an enrolled member of the Tribe, as defined in this subdivision, and if (i) the Person holds a valid and current license issued by the Commission that must be renewed at least biennially; (ii) the denial of the application by the State Gaming Agency is based solely on activities, conduct, or associations that antedate the filing of the Person's initial application to the State Gaming Agency for a determination of suitability; and (iii) the Person is not an employee or agent of any other gaming operation. For purposes of this subdivision, "enrolled member" means a Person who is either (a) certified by the Tribe as having been a member of the Tribe for at least five (5) years, or (b) a holder of confirmation of membership issued by the Bureau of Indian Affairs.
Section 11. Rules of Procedure for Commission Hearings
11.01 Scope of Rules of Procedure. All License hearings, enforcement hearings and exclusion hearings conducted pursuant to this Ordinance shall be governed by this Section.
(1) The Commission shall afford an Applicant an opportunity for a hearing prior to any final action by the Commission on an Application, other than an unconditional grant of a License.
(2) The Commission shall afford a Licensee the opportunity for a hearing prior to taking final action resulting in the revocation of the License or the imposition of any penalties which the Commission is authorized to impose pursuant to this Ordinance.
(3) Nothing in this Section shall limit the Commission's authority to summarily suspend or revoke a License without a hearing pursuant to Section 10.10(l)of this Ordinance.
11.03 Notice of Action. The Commission or its agent assigned by the Commission to make initial licensing decisions, shall provide an Applicant, Licensee or other Person ("Affected Party") with a Notice of its intended action.
(1) The Notice shall contain all of the following information.
a. The proposed action.
b. Its effective date, if it involves the suspension, modification, or revocation of a license or another penalty.
c. The reasons for the action.
d. The factual basis for the action.
e. A statement that the Affected Party has a right to a hearing on the proposed action, if he or she requests a hearing by filing a written request therefor with the Commission not later than 10 days from the date of the Notice. The Notice must state reasons the party requesting the hearing believes the proposed action is incorrect and the factual errors in the Notice of proposed action.
(2) The Notice shall be served on the Affected Party by certified mail, return receipt requested or by personal service. The Notice shall be delivered to the Affected Party's address as stated in a license application, license or in the Commission's official records. The Notice served within Humboldt County shall be deemed received twenty-four (24) hours after it is deposited in the United States mail or on the date of receipt in the case of personal service. Notices served outside Humboldt County shall be deemed received seventy-two hours after it is deposited in the United States mail or on the date of receipt in the case of personal service. "Personal Service" includes delivery by fax or email, if the Affected Party has agreed to accept service by those means, or overnight courier. Failure to receive a return receipt or an indication of non-delivery on the receipt shall not affect the validity of the service or the time period within which a hearing request must be received by the Commission.
(3) If the request for a hearing is received by the Commission within the required ten (10) day period, the Commission shall conduct a hearing as further provided herein. If the Commission fails to receive the written request within that time, the proposed action shall become the final action of the Commission, unless the Commission grants a time extension, for good cause shown, but only if it receives a written request for a time extension from the Affected Party within ten (10) days of the original hearing request deadline. The Commission may grant or deny the request for a time extension in its sole discretion, which decision shall not be subject to further judicial review.
(4) Any hearing conducted in response to a written request for a hearing shall be limited to the issues identified in the request.
11.04 Affect of Pending Appeal. An appeal of a proposed denial of a license application shall not reinstate a temporary license and the Applicant shall not be employed or contracted with while the appeal is pending. A suspension, revocation or other penalty shall not become effective while the appeal is pending, unless authorized by Sections 10.09, 10.10(1), or 10.11, and by specific order of the Commission.
11.05 Notice of Hearing. The Commission shall provide written notice to the Affected Party of the hearing at least seven (7) days prior to the date set for the hearing. The notice shall state the date, time and place of the hearing. The Notice shall be served as provided in Section 11.03(2).
11.06 Ex Parte Communications.
(1) No ex parte communication relative to the action(s) being considered by the Commission, or a threat or offer of reward shall be made, before a decision is rendered, to any member of the Commission by or on behalf of the Applicant or Licensee, or any legal representative or counsel of the Applicant or Licensee.
(2) Nothing in this Section shall prohibit the Applicant, Licensee or its authorized agent from communicating with the Commission's legal counsel, its investigators or other authorized agents.
(3) Any member of the Commission who receives an ex parte communication shall immediately report such communication td the Commission's legal counsel or agent.
(4) For purposes of this Section only, the action(s) being considered by the Commission shall be those matters identified in the written notice as provided in Section 11.03(2)of this Ordinance, as well as any other matters that are actually considered by the Commission during a hearing. All matters identified in the written notice shall be subject to the prohibition against ex parte communications. All matters not identified in the written notice that are considered by the Commission during a hearing become subject to the prohibition against ex parte communications as soon as they are discussed during the hearing.
(5) The Commission shall have the power to impose any sanction pursuant to this Section upon its determination that an Applicant or Licensee has made an ex parte communication in violation of this Section.
11.07 Appearance through Counsel.
(1) Parties to all hearings governed by this Ordinance may appear personally or through an attorney, except that a party must personally attend any hearing on the merits unless his attendance has been waived, in writing, by the Commission.
(2) When a party has appeared through an attorney, service of all notices, motions, orders, decisions and other papers shall thereafter be made upon the attorney, unless the party requests otherwise in writing.
(3) When a party is represented by an attorney, the attorney shall sign all motions, notices, requests, and other papers on behalf of the party, including a request for subpoenas.
(4) Any attorney appearing before the Commission must be duly admitted and licensed to practice law before the Courts of the State of California and before the Tribal Court, if the Tribe has established one.
11.08 Discovery Procedures for Enforcement Hearings.
(1) The Commission's legal counsel or agent and the Licensee shall exchange a list of persons that each party intends to call as witnesses no later than five (5) business days before a scheduled enforcement hearing. The day the list is received shall be considered a full day's notice under this Section. Each witness shall be identified by name, if known, position, and business address. If no business address is available,. a home address for the witness shall be provided. Any witness not identified in accordance with this Section may be prohibited from testifying at a hearing in the Commission's discretion.
(2) The Commission's legal counsel or agent and the Licensee shall exchange a copy of all documents or tangible things that they intend to offer as evidence in support of the party's case in chief. This exchange shall be made to the opposing party no later than five (5) business days before a scheduled enforcement hearing. The day the documents are received shall be considered a full day' 5 notice under this Section. Failure to make available any document or tangible thing in accordance with this section may, in the Commission's discretion, be grounds to deny the admission into evidence of such document or tangible thing.
11.09 Confidential Materials.
(1) Prior to making any documents available to the Commission's legal counsel or designated agent, the Applicant or Licensee may designate any document it believes to contain confidential information as "Subject to a Confidentiality Claim" by so marking the document prior to providing a copy of the document to the Commission's legal counsel.
(2) No document provided to the Commission's legal counsel or designated agent which has been marked in accordance with subsection 11.09(2) above, and no non public information contained within the document, shall be made a part of the public record of the Commission proceedings or otherwise disclosed by the Commission to any Person other than its authorized agents (or except as may be required under any applicable law, rule, regulation, court or administrative order, or the Compact), without first providing the Applicant or Licensee with the opportunity to seek a ruling by the Commission that the document or non-public information contained therein should not be made public. The request for such a ruling and any discussions relating to the document shall be heard and ruled upon by the Commission in an Executive Session meeting. If the request for such a ruling is made during a public hearing session, the hearing session shall be adjourned and the Commission shall conduct an Executive Session meeting in order to hear and rule upon the applicant's or respondent's request. The Applicant or Licensee may present to the Commission in Executive Session written and oral argument regarding the confidentiality claim, along with any facts the Applicant or Licensee believes to be relevant to such argument.
(3) Prior to producing any documents, the Applicant may designate any document it believes to contain confidential information as "Subject to a Confidentiality Claim" by so marking the document prior to providing a copy of the document to the Commission or its authorized agents.
(4) In determining whether a document marked in accordance with subsection (3) above should be made part of the public record of the Commission proceedings on the Application, the Commission will balance the Applicant's claimed confidentiality concerns against the materiality of the information to the Application, the public's right to be made aware of the information, and the Commission's need to make the information part of the public record in order to remain fully accountable for the licensing decision. In making this determination, the Commission shall consider all facts and circumstances relevant to making a proper ruling.
(1) The Commission has the power and discretion to issue subpoenas and to impose such reasonable penalties for noncompliance.
(2) Subpoenas may be issued only to compel any Person to appear at the hearing on the merits of the case, to give oral testimony, or to produce documents or other tangible things.
11.11 Hearing Procedures
(1) Except as provided in subsection 11.13 below, the Chairperson of the Commission shall preside over all hearings, and shall call the proceedings to order, control the presentation of evidence, the appearance of witnesses, and the order of the proceedings.
(2) The Commission may require any Person, including, but not limited to, any Applicant or Licensee, or any agent, employee or representative of any Applicant or Licensee, to appear and testify before it with regard to any matter within its jurisdiction at such time and place as it may designate. Such testimony shall be under oath and may include any matters which the Commission deems relevant to the discharge of the Commission's official duties. Testimony shall be recorded by a duly certified court reporter or by audiotape and may be used by the Commission as evidence in any proceeding or matter before the Commission. Failure to appear and testify fully at the time and place designated shall result in sanctions. Failure to appear may constitute grounds for:
a. the refusal to grant a License to the Person summoned, and /or that Person's principal, or employer;
b. the revocation or suspension of a License held by the Person summoned, and/or that Person's principal, or employer; or
c. the inference that the testimony of the Person summoned would have been adverse to that Person and/or that Person's principal or employer.
(3) Any party to the hearing may call and examine witnesses. The Commission shall exercise its discretion to limit the testimony of witnesses where that testimony is argumentative or repetitive.
(4) The Commission shall have the authority to eject from the hearings any Person who is disruptive, disorderly, or who shows a lack of proper respect for the Commission or the nature of the proceedings.
(5) Persons shall be permitted to speak only when recognized by the Chairman.
(6) Any member of the Commission may ask questions of witnesses, and may request or allow additional evidence at any time.
(7) Any party to the hearing may conduct cross- examinations reasonably required for a full and true disclosure of the facts.
(8) All hearings held under this Ordinance shall be open to the public.
(9) The Commission, in its discretion, has the power to sequester witnesses.
(1) In hearings governed by this Section, the Commission shall not be bound by technical rules relating to evidence and witnesses. The Commission shall admit all testimony having reasonable probative value, but shall exclude immaterial, irrelevant or unduly repetitious testimony. Basic principles of relevancy, materiality and probative force shall govern the proof of all questions of fact. Objections to evidentiary offers and offers of proof of evidence not admitted may be made and shall be noted in the record.
(2) All evidence, including records and documents in the possession of the Commission or which the Commission desires to avail itself, shall be duly offered and made a part of the record in the case. Every party shall be afforded adequate opportunity to rebut or offer countervailing evidence.
(3) The Commission may take official notice of any generally recognized fact or any established technical or scientific fact; but parties shall be notified either before or during the hearing or by full reference in preliminary reports or otherwise, of the facts so noticed, and they shall be afforded an opportunity to contest the validity of the official notice.
(4) Documentary evidence may be received in the form of copies or excerpts. Upon request, parties shall be given an opportunity to compare the copy to the original, if the original is readily available.
(5) The record in a hearing governed by this Ordinance shall include:
a. All Applications, intermediate rulings and exhibits and appendices thereto.
b. Evidence received or considered, stipulations and admissions, including but not limited to confidential evidence received pursuant to Section 2 of this Section.
c. A statement of matters officially noticed.
d. Questions and offers of proof, objections, and rulings thereon.
e. Any decision, opinion, findings or report by the Commission.
f. The transcript of the hearing.
11.13 Hearing Officers. The Commission may appoint a hearing office to conduct the hearing in accordance with the procedures specified in Sections 11.05-11.11. A hearing officer shall be an attorney licensed to practice law in the State of California who has at least five years experience as a licensed attorney. After conducting the hearing the hearing officer shall prepare a written recommended decision which he shall file with the Commission not later than 15 days after the conclusion of the hearing. The recommended decision shall contain a summary of relevant facts as determined by the hearing officer and an explanation of the reason for the recommended action.
11.14 Determinations by the Commission.
(1) The Commission shall make all determinations of issues before it by a majority vote of at least a quorum of the Commission.
(2) All determinations made by the Commission involving the grant, denial, cancellation or revocation of a License, a finding of a violation of this Ordinance, the Compact, IGRA, the conditions of any License issued by the Commission, any order by the Commission, or any other applicable- laws, regulations or agreements, and the imposition of any sanctions or penalties shall be made by motion and on the record.
(3) A copy of any resolution reached pursuant to Section 11.14(B) shall be served upon the Affected Person as provided in Section 11.03(2).
(4) If a recommended decision has been filed by a hearing officer, the Commission may adopt, modify or reject the decision and may conduct such additional hearings as it determines to be useful.
11.15 Sanctions. If any party or its attorney fails to comply with any provision of this Ordinance, the Compact, IGRA, the conditions of any License issued by the Commission, any order by the Commission, or any other applicable laws, regulations or agreements, including, but not limited to any agreement, regarding any matter, including, but not limited to, discovery matters and the failure to appear at a hearing at the scheduled time, the Commission upon motion or upon its own initiative, may in its discretion impose upon such party or attorney, or both, appropriate sanctions in regard to the failure(s) as are just, including, but not limited to, the following:
(1) An order prohibiting the use of any witness, document or tangible thing which should have been disclosed, produced, exhibited or exchanged pursuant to this Ordinance or any order of the Commission;
(2) An order that designated facts shall be taken to be established;
(3) An order that the disobedient party may not support or oppose designated claims or defenses;
(4) An order striking out pleadings or parts thereof, or staying further proceedings or dismissing the proceeding or any part thereof, or entering a judgment by default against the disobedient party;
(5) A finding against the disobedient party; or
(6) Any sanction otherwise set forth in this Ordinance.
11.16 Right to Appeal. An Affected Party shall have a right to appeal the determination of the Commission to the Tribal Court. Such appeal must be filed with such court in written form on or before the tenth (10th) day following receipt of the written determination of the Commission. In the absence of a Tribal Court, "filed" shall mean served the Commission with a written request for arbitration. A determination of such appeal by the Court shall be final and no further action may be had. In any appropriate case which has been referred to the Tribal Court, the Tribal Court shall determine whether the Commission committed a prejudicial abuse of discretion. An abuse of discretion shall be found to exist if the Commission failed to adopt written findings, if the findings are not supported by substantial evidence in light of the whole record, if the findings do not support the Commission's determination, if the Commission failed to proceed in the manner required by law, or if the decision is contrary to law. In any such appeal the Affected Party may not raise issues or offer evidence not presented to the Commission, unless the Affected Party, in the exercise of due diligence, could not have presented such evidence or issue to the Commission. The Tribe and the Tribal Gaming Commission expressly waive sovereign immunity in Tribal Court for the purpose of allowing appeals under this Section and for actions brought under Sections 11.17,including actions to compel and enforce arbitration, and Section 21.
11.17 Arbitration in the absence of a Tribal Court.
(1) Arbitration. In the absence of a Tribal Court, all disputes, controversies, claims or appeals of Commission action which arise out of Tribal enforcement, interpretation, or amendment of the Tribal Gaming Ordinance shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect on the date demand for arbitration is made, and the Federal Arbitration Act, and subject to the standard of judicial review set forth in Section 11.16.
(2) Choice of Law. In determining any matter involving a Management Contract the arbitrator(s) shall apply the terms of the Management Contract, without adding to, modifying or changing the terms in any respect, and shall apply Tribal law and applicable federal law. If no Tribal law applies, the arbitrator shall apply California law and applicable federal law.
(3) Place of Hearing. All arbitration hearings shall be held at a place designated by the arbitrator(s) in Blue Lake, California or at such other place agreed to by the parties.
(4) Confidentiality. The parties and the arbitrator(s) shall maintain strict confidentiality with respect to the arbitration.
(5) Effect of License Revocation. A Management Contract may not be terminated based on revocation of a Tribal Gaming license if within fifteen days of the initial revocation action the Management Contractor promptly invokes and diligently pursues the remedies provided pursuant to Section 11. In that event any termination of a Management Contract shall not be effective until after Management Contractor exhausts the remedies provided therein. However, pending the exhaustion of such remedies, the license of a management contractor or any of its employees may be summarily but temporarily suspended and the management contractor's right of access to gaming operations or property or assets of the tribe's gaming enterprise denied, if necessary to protect the integrity of gaming or to prevent the immediate loss of or damage to property or to protect persons from injury. Any such temporary suspension of a gaming license shall not result in termination of a Management Contract or compensation therein.
(6) Notice and Opportunity to Cure Alleged Violations. The Tribe will give the Management Contractor notice of any alleged violation of the Gaming Ordinance and except as provided below, thirty (30) days opportunity to cure the violation from the date the notice is served as provided in Subsection 11.03(2)before the Gaming Commission may take any action based on such alleged violation. To the extent that any such alleged violation is cured, no adverse action, apart from notice of the facts, a fine not to exceed Five Thousand Dollars ($5,000.00) and/or a license suspension pursuant to Section 11.17(5), shall be taken against Management Contractor with respect to the cured violation. The Tribe shall not be prohibited from taking adverse action as provided in this Ordinance, if (1) the violation cannot be cured; (2) the violation constitutes a willful and serious violation of applicable law which bears on the Management Contractor's honesty or integrity or the capacity of the Management Contractor to conform his behavior to legal requirements; or (3) the Management Contractor has been determined by a final decision of the Commission to have violated the Gaming Ordinance on five or more separate occasions, not counting each day of a continuing violation as a separate violation. For purposes of this Section, "final decision" shall mean a decision and exhaustion of or failure to exhaust remedies as provided by this Section.
Section 12. Exclusion or Rejection of Individuals
12.01 Prohibition Against Certain Individuals. The Commission shall maintain a list of individuals barred from any Gaming Facility on the tribe's Reservation.
12.02 Right to Exclude or Remove. If the Commission deems it in the best interest of the Tribe, the Commission may exclude or remove any persons from the premises of any Gaming Operation. Any person so excluded shall be entitled as an Affected Person to a hearing as provided by Section 11. The Manager of any Gaming Operation shall also have the authority to exclude or remove any person from the Gaming Facility, and all such actions shall be reported to the Commission within twenty four (24) hours; the Commission may then ratify, reverse or condition the decision of the Manager, which decision of the Commission shall be subject to the hearing requirements in Section 11.
Section 13. Prohibited Acts
13.01 Prohibited Acts. In addition to other civil and criminal acts that may be regulated or prohibited by this Ordinance, the Compact, other Tribal law or applicable federal law, the following shall constitute prohibited activities and unauthorized Gaming under this Ordinance and shall subject any perpetrator to Commission action, including, but not limited to, the imposition of civil penalties, referral to appropriate law enforcement authorities for criminal proceedings, and License suspension or revocation:
(1) altering or misrepresenting the outcome of Gaming or other event on which wagers have been made after the outcome of such Gaming or event has been determined but before such outcome is revealed to the players;
(2) placing or increasing a bet or wager after acquiring knowledge of the outcome of the Gaming or event which is the subject of the bet or wager, including past- posting and pressing bets;
(3) aiding anyone in acquiring such knowledge referred to in subsection (2) of this Section for the purposes of increasing or decreasing any bet or wager, or for the purpose of determining the course of play;
(4) claiming, collecting or taking, or attempting to claim, collect or take, money or anything of value in or from a game with intent to defraud or claiming, collecting or taking an amount greater than the amount actually won in such game;
(5) knowingly to entice or induce another to go to any place where Gaming is conducted or operated in violation of the provisions of this Ordinance, with the intent that the other person play or participate in such Gaming;
(6) reducing the amount wagered or canceling a wager after acquiring knowledge of the outcome of the game or other event which is the subject of the bet or wager, including pinching bets;
(7) manipulating, with intent to cheat or defraud, any component or part of a game in a manner contrary to the designed and normal operational purpose for such component or part, with knowledge that such manipulation will affect the outcome of the game, or with knowledge of any event that affects the outcome of the game;
(8) defrauding the Tribe, any Licensee or any participant in any Gaming;
(9) participating in any Gaming not authorized by this Ordinance;
(10) knowingly providing false information making any false statement, or failing to disclose a material fact with respect to an application for employment or for any License, certification or determination provided for in this Ordinance;
(11) knowingly providing false or misleading information, making any false or misleading statement, or failing to disclose a material fact to the Tribe, the Commission or its agents in connection with any contract for services or property related to Gaming;
(12) knowingly making any false or misleading statement, or failing to disclose a material fact in response to any official inquiry by the Commission or its agents;
(13) offering or attempting to offer any thing of value, to a Licensee in an attempt to induce the Licensee to act or refrain from acting in a manner contrary to the official duties of the Licensee under this Ordinance, the Compact or IGRA;
(14) acceptance by a Licensee of any thing of value with the expectation that receipt of such thing of value is intended, or may be perceived as intended, to induce the Licensee to act or refrain from acting, in a manner contrary to the official duties of the Licensee under this Ordinance, the Compact, or IGRA;
(15) falsifying, destroying, erasing or altering any books, computer data, records, or other information relating to a Gaming Operation;
(16) taking any action which interferes with or prevents the Commission or the Council from fulfilling its duties and responsibilities under this Ordinance, the Compact or IGRA; and
(17) entering into any contract, or making payment on any contract for the delivery of goods or services to a Gaming Operation, when such contract fails to provide for or result in the delivery of goods or services of fair value for the payment made or contemplated.
13.02 Crimes; Penalties.
(1) It shall be unlawful for any person to:
a. Operate or participate in Gaming on the Reservation in violation of the provisions of this Ordinance;
b. Knowingly make a false statement in an Application for employment with a Gaming Operation, or in an Application for a License to operate a Gaming Operation on the Reservation; or
c. Bribe or attempt to bribe, or unduly influence or attempt to unduly influence, any person who licenses, operates, conducts, assists, or is otherwise employed in a Gaming Operation located on the Reservation.
d. Violate any other provisions of tribal or federal law or state law made applicable by the Tribe on the premises of any Gaming Facility.
(2) Any Tribal Member who violates a provision of this Ordinance or of other tribal law relating to Gaming may be fined not more than One Thousand Dollars ($1,000.00) and/or imprisoned for up to one year for each violation. A separate violation occurs on each day that a violation arises or continues. Any non-Member who violates a provision of this Ordinance shall be subject to a civil fine, and may be excluded from the Indian lands within the jurisdiction of the Tribe.
(3) Any property used in the commission of a violation of a provision of this Ordinance may be seized by the Commission or its agents. The owner of the property shall be afforded an opportunity to object and be heard in accordance with the hearing procedures contained in Section 12. If no objection is raised or the objection is not sustained, the Tribe may dispose of the seized property.
13.03 Civil Penalties. Any person or entity who violates any term or condition of any license issued pursuant to this Ordinance may be assessed a civil penalty by the Commission. Each violation shall be treated separately and may be assessed as a separate violation. Civil penalties provided for in this Section may be imposed in addition to or as an alternative to the criminal penalties provided for in Section 13.02 above.
Section 14. Miscellaneous Provisions
Section 14.01 Minors, Employees Prohibited from Playing.
(1) No person under the age of 18 years shall be permitted to play any Class II or Class III game, or to loiter in or about the Gaming Facility.
(2) No Gaming Employee at a Gaming Facility may play any game conducted therein.
(3) No person shall be employed by a Gaming Operation on the Reservation who is under the age of eighteen (18), and no person shall be employed as a Primary Management Official or Key Employee who is under the age of twenty-one (21).
14.02 Prizes: Assignment and Forfeiture.
(1) Not Assignable, exception. The right of any Person to a prize shall not be assignable except that payment of any prize may be made to the estate of a deceased prize winner or to a Person pursuant to an order of the Tribal Court.
a. Any unclaimed prize of a Gaming Activity shall be retained by the owner of the game for ninety days after the prize is available to be claimed. Any Person who fails to claim a prize during such time shall forfeit all rights to the prize, and the amount of the prize shall be awarded to the Tribe.
b. Any prize won by a Person under the age of eighteen (18) shall be forfeited as a violation of Section 14.01 of this Ordinance. Any such prize shall be awarded to the Tribe, and the approximate consideration paid by the minor shall be refunded to the minor.
14.03 Identification Badge. Every person employed by a Gaming Operation on the Reservation shall wear an identification badge during work hours which conspicuously states his or her full name, title, and place of employment.
Section 15. Class III Gaming; Tribal-State Compacts.
In addition to the provisions set forth above, no Class III gaming shall be engaged in on the Reservation unless it is conducted in accordance with the provisions of any applicable Tribal-State Compact obtained in accordance with the IGRA. All negotiations for such compacts shall be conducted through the Business Council, with the advice and suggestion of the Gaming Commission, and shall be finalized in accordance with tribal law. To the extent any provision of a Tribal-State Compact is inconsistent with the provisions of this Ordinance, such compact shall prevail and shall be deemed incorporated by reference herein.
Section 16. Interest in Management Contracts by Tribal Officials
No elected official of the Tribe, including the Gaming Commission or any other committee or agency of the Tribe, shall have a financial interest in or management responsibility for, any management agreement entered into pursuant to IGRA, nor shall such elected official serve on the board of directors or hold (directly or indirectly) ten percent (10%) or more of the issued and outstanding stock of any corporation, or ten percent (10%) or more of the beneficial interest in any partnership, trust, or other entity, in any such corporation, partnership, trust or other entity, having a financial interest in, or management responsibility for, such contract.
Section 17. Service of Process.
The Tribe designates as its agent for the service of any official determination, order, or notice of violation, the Chairperson of the Tribe.
Section 18. Tribal Gaming Corporation.
Nothing in this Ordinance shall prevent the Tribe, through its Business Council, from delegating the authority to conduct Gaming to one or more tribal corporations, so long as the tribal Gaming Enterprises to which such authority is delegated agree to meet all criteria and requirements established under this Ordinance.
Section 19. Repeal of Prior Gaming Ordinance; Effective Date.
This Ordinance and the regulations promulgated thereunder shall constitute the entire gaming regulations of the Tribe. All prior gaming acts and ordinances of the Tribe are repealed, and this Ordinance shall become effective upon its approval by the NIGC.
Section 20. Severability.
If any provision or application of this Ordinance is determined by review to be invalid, such determination shall not be held to render such provision inapplicable to other Persons or circumstances, nor shall such determination render invalid any other provision of this Ordinance.
Section 21. Amendments.
21.01. Amendments permitted. Consistent with Section 21.02 and this Section, all provisions of this Gaming Code are subject to amendment by the Blue Lake Rancheria Business Council and all regulations promulgated by the Commission are subject to proper revision, repeal or amendment by the Commission. Any amendments made to the Gaming Ordinance or regulations shall be a legitimate effort to ensure that Gaming is conducted in a manner that adequately protects the environment, the public health and safety, and the integrity of the Enterprise. No amendments shall be made to the Gaming Ordinance in violation of the foregoing standard and which adversely affect a party's rights under a Management Contract.
21.02. Prior Notice of Actions. In adopting, amending and repealing regulations or any provision of this Code, the Commission or Business Council (in the case of changes to the Code) shall comply with Section 21.01 and shall give prior notice of the proposed action to all licensees and other persons whom the Commission or, in case of changes to the Code, the Business Council has reason to believe have a legitimate interest in such proposed action. Said notice shall inform such persons as to the general nature of the proposed action and advise them as to the manner in which comments on said proposed action shall be received by the Commission or the Business Council. In emergencies, the Commission or the Business Council may summarily adopt, amend or repeal any regulation or provision of this Code, if at the time the Commission or Business Council (in the case of changes to the Code) determines such action is necessary for the immediate preservation of the public peace, health, safety, morals, good order or general welfare, together with a statement of facts constituting the emergency; provided the Commission or the Business Council (in the case of changes to the Code) shall schedule such emergency action for a regular hearing within 15 days after taking the emergency action. Failure to provide such notice shall not invalidate any regulation or provision of this Code.
The foregoing Ordinance was adopted on this 6th day of May, 2001, at a regular meeting of the Blue Lake Business Council, with a quorum present, by the following vote:
Claudia Brundin, Chairperson
[Digitizer's Note: With regard to this gaming ordinance, correspondence is included in the physical copy of this document, but it is not reproduced here. Also, a copy of the 2000 ordinance and a 1994 resolution is included in the physical copy of this document, but they are not reproduced here. For assistance accessing these materials, contact the National Indian Law Library (http://www.narf.org/nill/index.htm).]