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Blue
Lake Rancheria Ordinances
Received:
2003
ORDINANCE
No. 95-01
First
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;
b.
[Reserved]
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.
11.02
Hearings.
(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.
11.10
Subpoenas.
(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.
11.12
Evidence.
(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 add |