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ORIGINALLY
ADOPTED: 9/26/01 |
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DATE
AMENDED: |
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SUBJECT:
Tobacco Ordinance |
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RESOLUTION
NUMBER: 152-01 |
Tobacco Ordinance
Tribal
Code § 770
(a) AUTHORITY AND PURPOSE:
(1)
The authority for this Ordinance is found in the Tribal Constitution
under Article III, Section 1.
(2)
This Ordinance is for the purpose of regulating the sale and distribution
of cigarettes and other tobacco products on the Reservation of the
Confederated Tribes of the Grand Ronde Community of Oregon.
(b) DEFINITION:
Unless
defined elsewhere in this Ordinance or the context clearly requires
otherwise, the definitions in this Section shall apply throughout
this Ordinance.
(1)
"Cigarette" shall mean any roll for smoking, made wholly or in
part of tobacco, irrespective of size or shape and irrespective of
whether the tobacco is flavored, adulterated or mixed with an other
ingredient, where such roll has a wrapper or cover made of paper or
any other material, except where such wrapper is wholly or in the
greater part made of natural leaf tobacco.
(2)
"Council" shall mean the Tribal Council of the Confederated Tribes
of the Grand Ronde Community of Oregon.
(3)
"Operator" shall mean any person licensed by the Tribe to operate
a tobacco outlet on the Reservation.
(4)
"Outlet" shall mean any store, shop, building or place where tobacco
products are sold on the Reservation and includes a cigarette vending
machine.
(5)
"Person" shall include any individual, firm, partnership, copartnership,
joint venture, association, social club, fraternal organization, corporation,
estate, trust, receiver, trustee, syndicate or any other group or
combination acting as a unit.
(6)
"Reservation" shall mean all lands held in trust by the United
States for the Tribe or its members.
(7)
"Tobacco Products" shall include cigarettes, cigars, smoking tobacco,
snuff, chewing tobacco and all other kinds and forms of tobacco prepared
in such manner as to be suitable for chewing or smoking.
(8)
"Tribal Court" shall mean the Tribal Court of the Confederated
Tribes of the Grand Ronde Community of Oregon.
(9)
"Tribe" or "Tribal" shall mean or refer to the Confederated
Tribes of the Grand Ronde Community of Oregon.
(c) TOBACCO SALES LICENSE:
(1)
Any person that shall engage in the sale of tobacco products on the
Reservation shall first obtain a license for such sales, provided
that any outlet engaging in such sales prior to the adoption of this
Ordinance shall obtain a license within thirty (30) days from the
date of its adoption by the Council.
(2)
A tobacco sales license shall be valid for a period of one (1) year
from the date of its issuance and shall expire automatically without
notice on the expiration date stated in the license.
(3)
No tobacco sales license shall be transferable.
(d) PROCEDURE FOR LICENSE APPLICATION AND RENEWAL:
(1)
Application for a tobacco sales license shall be on a form approved
by the Council, which shall be fully completed by the applicant or
a duly authorized representative. The application shall state the
name and address of the applicant, the location of the proposed tobacco
outlet, the beginning date for which the license is requested, a description
of any other retail or commercial business conducted or to be conducted
by the applicant at the location of the proposed tobacco outlet, such
other information as the Council may require, and shall be signed
by the applicant under oath. The application shall be submitted to
the Council with the required license fee.
(2)
Council action on a license application must be taken at a regular
or special meeting. Upon the denial of any application for a tobacco
sales license, the applicant may request a hearing before the Council
by submitting a written request to the Council not later than seven
(7) days after receipt of the Council's decision. The Council shall
provide reasonable notice to the applicant of the hearing date, time
and location as well as the procedures to be followed. If the Council
upholds its decision to deny the license, the applicant may appeal
the decision to the Tribal Court, but only on the grounds that the
decision was arbitrary and capricious or a violation of Tribal Constitutional
rights. Such appeal must be filed with the Tribal Court in writing
on or before the fourteenth (14th) day following receipt of the Council's
written decision. The Tribal Court shall review, on the record, the
decision of the Council. The applicant has the burden of persuading
the Tribal Court that the Council's decision is arbitrary or capricious
or a violation of Tribal Constitutional rights.
(3)
An operator may apply for renewal of a tobacco sales license by filing
a renewal application with the Council not less than thirty (30) days
prior to the license expiration date. Renewal applications shall be
subject to all conditions and requirements applicable to an initial
application, including a fee for the issuance of a renewal license,
and any additional conditions and requirements deemed necessary by
the Council.
(e) CONDITIONS FOR APPLICATION AND APPROVAL OF LICENSE:
(1)
No application for a tobacco sales license shall be granted unless:
(A)
The applicant has paid the required license fee, initially established
at $50.00, as may be changed from time to time by resolution of
Council.
(B)
The applicant has submitted a completed application form.
(C)
The applicant is at least 21 years of age.
(D)
The proposed location for the tobacco outlet complies with all applicable
building codes and zoning codes.
(E)
The Council determines that there is adequate demand for a tobacco
outlet at the proposed location.
(F)
The Council determines that the applicant is of good moral character.
(2)
The conditions described in this Section are not exclusive and the
Council may impose any other conditions which it deems necessary to
safeguard and promote the safety, health and general welfare of members
of the Tribe.
(f) REVENUE STAMP REQUIREMENT:
No cigarette
package shall be sold which does not bear a revenue stamp of the State
of Oregon.
(g) TRIBAL SOVEREIGN IMMUNITY/LIABILITY:
No operator
shall attempt or be authorized to waive the sovereign immunity of
the Tribe from suit. Nor shall any operator attempt or be authorized
to create any liability on behalf of the Tribe.
(h) OPERATING WITHOUT A LICENSE:
No person
shall engage in the business of selling or distributing tobacco products
on the Reservation without having in effect a valid tobacco sales
license issued pursuant to this Ordinance.
(i) REVOCATION OF LICENSE:
(1)
Failure of an operator to abide by any provision of this Ordinance
and any conditions set forth herein or imposed by Council may result
in revocation of the operator's tobacco sales license by the Council
as well as the assessment of civil penalties in accordance with Section
(j) of this Ordinance.
(2)
Prior to revocation of a tobacco sales license, the operator shall
have the right to a hearing before the Council. The Council shall
provide reasonable notice to the operator of the hearing date, time
and location as well as the procedures to be followed. An operator
may appeal a revocation decision by the Council to the Tribal Court,
but only on the grounds that the decision was arbitrary and capricious
or a violation of Tribal Constitutional rights. Such appeal must be
filed with the Tribal Court in writing on or before the fourteenth
(14th) day following receipt of the Council's written decision. The
Tribal Court shall review, on the record, the decision of the Council.
The operator has the burden of persuading the Tribal Court that the
Council's decision is arbitrary or capricious or a violation of Tribal
Constitutional rights.
(j) CIVIL PENALTIES:
(1)
The Council may assess a penalty, in an amount not to exceed $1,000.00
for each violation, against any person who engages in the business
of selling or distributing tobacco products on the Reservation in
violation of this Ordinance.
(2)
Upon the assessment of a penalty, the person against whom the penalty
was assessed may request a hearing before the Council by submitting
a written request to the Council not later than seven (7) days after
receipt of assessment. The Council shall provide reasonable notice
to the person against whom the penalty was assessed of the hearing
date, time and location as well as the procedures to be followed.
If the Council upholds its decision to assess a penalty, the person
against whom the penalty was assessed may appeal the decision to the
Tribal Court, but only on the grounds that the decision was arbitrary
and capricious or a violation of Tribal Constitutional rights. Such
appeal must be filed with the Tribal Court in writing on or before
the fourteenth (14th) day following receipt of the Council's written
decision. The Tribal Court shall review, on the record, the decision
of the Council. The person against whom the penalty was assessed has
the burden of persuading the Tribal Court that the Council's decision
is arbitrary or capricious or a violation of Tribal Constitutional
rights.
(3)
The Council hereby specifically finds that such penalties are reasonably
necessary and are related to the expense of governmental administration
necessary in maintaining law and order and public safety on the Reservation
and in managing, protecting and developing the natural resources on
the Reservation. It is the legislative intent of the Council that
all violations of this Ordinance, whether committed by tribal members,
nonmember Indians, or non-Indians, be considered civil in nature rather
than criminal.
(k) ENFORCEMENT:
(1)
The Council, through the Tribal Attorney, may seek enforcement of
this Ordinance in Tribal Court against any person who engages in the
business of selling or distributing tobacco products on the Reservation
in violation of this Ordinance.
(2)
The Tribal Court, upon presentation of an affidavit or other evidence
showing probable cause to believe that a tobacco outlet is being operated
in violation of this Ordinance, may issue an order directing the seizure
of all tobacco products from wherever purchased and by whomever owned
from such tobacco outlet. Within three days of such seizure, and after
adequate notice to the person operating such outlet, a hearing shall
be held in Tribal Court at which time such person shall be given an
opportunity to present evidence in defense of his or her activities.
If the Tribal Court shall determine by a preponderance of the evidence
that such tobacco outlet was being operated in violation of this Ordinance,
the Court may do any of the following or combination of the following:
(A)
Declare a forfeiture to the Tribe of all or any part of the tobacco
products seized as described above.
(B)
Order such other relief as the Tribal Court deems appropriate and
consistent with this Ordinance.
(l) SEVERABILITY:
If a
court of competent jurisdiction finds any provision of this Ordinance
to be invalid or illegal under applicable Federal or Tribal law, such
provision shall be severed from this Ordinance and the remainder of
this Ordinance shall remain in full force and effect.
I certify
this to be a true copy of the Confederated Tribes of the Grand Ronde
Community of Oregon Tobacco Ordinance.
June Sell-Sherer, Tribal Council Secretary
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