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Ordinance
Number 96-01.
Amended by Resolution No. 97-064 dated 2/16/97;
Resolution No. 97-086 dated 3/15/97;
Resolution No. 97-211 dated 6/21/97
Original Date: April 20, 1996
Subject: Liquor Control
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LIQUOR
CONTROL ORDINANCE
Chapter 14
PART
I - INTRODUCTION
§14.01
TITLE: This Ordinance shall be known as the "Liquor Ordinance
of the Confederated Tribes of Siletz Indians" (hereinafter "Siletz Tribe").
This Ordinance may be referred to as the "Siletz Liquor Control Ordinance."
§14.02 PURPOSE AND AUTHORITY: The purpose of this Ordinance
is to regulate and control the possession and sale of liquor within
Siletz Indian country, as specifically authorized and approved by General
Council referendum under Article VII, Section 2 of the Siletz Tribal
Constitution. The authority for enactment of this Ordinance is as follows:
(a)
The Act of August 15, 1953, (Public Law 83 - 277, 67 Stat. 586, codified
at 18 USC §1161), which provides a federal statutory basis for
the Siletz Tribe to regulate the activities of the manufacture, distribution,
sale and consumption of liquor on Indian lands under the jurisdiction
of the Confederated Tribes of Siletz Indians of Oregon, so long as
such ordinance is in conformance with the laws of the State of Oregon;
and
(b)
Article IV, Section 1 of the Constitution of the Confederated Tribes
of Siletz Indians of Oregon, which vests the Tribal Council with legislative
and administrative authority, and otherwise empowers the Tribal Council
to act for the Confederated Tribes of Siletz Indians of Oregon.
PART II - DEFINITIONS
§14.03
(a) As used in this Ordinance, the following words shall have the
following meanings unless the context clearly requires otherwise:
(1)
"Alcohol" means that substance known as ethyl alcohol, hydrated
oxide of ethyl, or spirit of wine which is commonly produced by the
fermentation or distillation of grain, starch, molasses, or sugar,
or other substances including all dilutions of this substance.
(2)
"Alcoholic Beverage" is synonymous with the term "Liquor" as
defined in paragraph (6) of this section.
(3)
"Bar" means any establishment with special space and accommodations
for sale by the glass and for consumption on the premises of liquor,
as herein defined.
(4)
"Beer" means any beverage obtained by the alcoholic fermentation
of any infusion or decoction of pure hops, or pure extract of hops
and pure barley malt or other wholesome grain of cereal in pure water
containing not more than four percent of alcohol by volume.
(5)
"Committee" for the purposes of this Ordinance shall mean the
Tribal Council of the Siletz Tribe.
(6)
"Liquor" including the four varieties of liquor herein defined
(alcohol, spirits, wine and beer); and all fermented spirituous, vinous,
or malt liquor or combination thereof, and mixed liquor, or otherwise
intoxicating and every liquid or solid or semisolid or other substance,
patented or not, containing alcohol, spirits, wine or beer, and all
drinks or drinkable liquids and all preparations or mixtures capable
of human consumption and any liquid, semisolid, solid, or other substances,
which contain more than one percent of alcohol by weight shall be
conclusively deemed to be intoxicating.
(7)
"Liquor Store" means any store at which liquor is sold, and
for the purposes of this Ordinance, includes a store at which only
a portion of which is devoted to the sale of liquor or beer.
(8)
"Malt Liquor" means beer, ale, stout, and porter.
(9)
"Package" means any container or receptacle used for holding
liquor.
(10)
"Public Place" includes state or county or tribal or federal
highways or roads; buildings and grounds used for school purposes;
public dance halls and grounds adjacent thereto; soft drink establishment,
public buildings, public meeting halls, lobbies, halls and dining
rooms of hotels, restaurants, theater, gaming facilities, entertainment
centers, store garages, and filling stations which are open to and/or
are generally used by the public and to which the public is permitted
to have unrestricted access; public conveyances of all kinds of character;
and all other places of like or similar nature to which the general
public has right of access, and which are generally used by the public.
For the purposes of this Ordinance, "Public Place" shall also include
any establishment other than a single family home which is designed
for or may be used by more than just the owner of the establishment.
(11)
"Reservation" means the Siletz Tribe Reservation, which is
held in trust by the United States Government for the benefit of the
Siletz Tribe; any land located within the exterior boundaries of said
reservation; and any lands held in trust by the United States for
the benefit of the Siletz Tribe or held in trust for the benefit of
an individual member of the Siletz Tribe.
(12)
"Sale" and "Sell" include exchange, barter, and traffic; and
also include the selling or supplying or distributing by any means
whatsoever, of liquor, or of any liquid known or described as beer
or by any name whatsoever commonly used to describe malt or brewed
liquor or wine by any person to any person.
(13)
"Spirits" means any beverage, which contains alcohol obtained
by distillation, including wines exceeding seventeen percent of alcohol
by weight.
(14)
"Tribe" means the Confederated Tribes of Siletz Indians of
Oregon.
(15)
"Wine" means any alcoholic beverage obtained by fermentation
of fruits (grapes, berries, apples, etc.) or other agricultural product
containing sugar, to which any saccharine substances may have been
added before, during or after fermentation, and containing not more
than seventeen percent of alcohol by weight, including sweet wines
fortified with wine spirits such as port, sherry, muscatel, and angelica,
not exceeding seventeen percent of alcohol by weight.
(b)
(1) To the extent that definitions are not inconsistent with tribal
or federal law, the terms used in this ordinance shall have the same
meaning as defined in Title 37, Oregon Revised Statutes, Chapter 471,
and as defined in Oregon Administrative Rules, Chapter 845.
(2)
References in this §14.03 to federal and Oregon state law shall
be those laws and regulations in effect as of May 18, 1996. Subsequent
changes in those laws and regulations shall be considered incorporated
into this ordinance and effective unless the Siletz Tribal Council
or the General Council amends this ordinance.
§14.04 CONFORMITY TO STATE LAW:
(a)
Statement of Objection. The Confederated Tribes of Siletz Indians
of Oregon does not agree with the alleged authority of the United
States or the State of Oregon to interfere with the Siletz Tribe's
sovereign authority to regulate the control of liquor within Siletz
Indian country. Nothing in this Ordinance shall be interpreted as
a waiver of the Siletz Tribe's right and power to challenge such authority
in judicial forums of competent jurisdiction, or by use of the political
process. This Ordinance shall conform with the laws of the State of
Oregon as required by 11 U.S.C. §1161, and Rice v. Rehner;
463 U.S. 713 (1983).
(b)
Conformity to State Law. The Confederated Tribes of Siletz Indians
of Oregon agrees to perform in the sale and possession of liquor in
the same manner as any other Oregon business entity for the purpose
of liquor licensing and regulations, including but not limited to
licensing, compliance with the regulations of the Oregon Liquor Control
Commission (OLCC), maintenance of liquor liability insurance, and
other applicable subjects as the State may address by statute or regulation
from time to time. The Tribal Council may enter into an intergovernmental
agreement with the State of Oregon to address the details of compliance
with state law and regulation under this Ordinance, provided,
that any such intergovernmental agreement shall not conflict with
or supersede the terms of this Ordinance; and shall not have force
of law, unless and until this Ordinance has been validly amended pursuant
to STC §14.39 and such amendment has been approved by the appropriate
officials of the United States Department of the Interior, as required
by federal law.
(c)
Jurisdiction and Dispute Resolution. Jurisdiction for enforcement
of the provisions of this Ordinance by the State of Oregon shall be
set forth in an appropriate intergovernmental agreement between the
Siletz Tribe and the State of Oregon. No consent to jurisdiction in
the courts of the State of Oregon and no consent to limited waiver
of the Siletz Tribe's sovereign immunity shall be implied or inferred
except through negotiation and express consent to jurisdiction and
limited waiver of sovereign immunity in a valid intergovernmental
agreement. Such agreement shall not supersede or conflict with any
of the terms of this Ordinance, and shall not have force of law, unless
and until this Ordinance has been validly amended pursuant to STC
§14.39 and such amendment has been approved by the appropriate
officials of the United States Department of the Interior, as required
by federal law.
(d)
Future Changes in the Law. Amendment or modification of regulation
by the Siletz Tribe of the sale and possession of liquor shall not
be effective until this Ordinance has been validly amended pursuant
to STC §14.39, and such amendment has been approved by appropriate
officials of the United States Department of the Interior, as required
by federal law.
PART III - POWERS OF ENFORCEMENT
§14.05
(a) Powers: The Committee, in furtherance of the Ordinance,
shall have the following powers and duties, or may delegate such duties
by resolution:
(1)
To publish and enforce the rules and regulations governing the sale,
manufacture, and distribution of alcoholic beverages on the Reservation;
(2)
To employ managers, accountants, security personnel, inspectors, and
such other persons as shall be reasonably necessary to allow the Committee
to perform its functions. Such employees shall be tribal employees;
(3)
To issue licensed permitting the sale or manufacture or distribution
of liquor on the Reservation;
(4)
To hold hearing on violations of this Ordinance or for the issuance
or revocation of licenses hereunder;
(5)
To bring suit in the appropriate court to enforce this ordinance as
necessary;
(6)
To determine and seek damages for violation of this Ordinance;
(7)
To make such reports as may be required;
(8)
To collect taxes and fees levied or set by the Committee, and to keep
accurate records, books and accounts; and
(9)
To exercise such other powers as are necessary and appropriate to
fulfill the purposes of this Ordinance.
(b)
The Committee shall have the authority to authorize the sale of liquor
only on those areas of the Siletz Tribe s reservation that have been
specifically approved by the Siletz General Council, by referendum,
and under such conditions as may be included in said referendum.
§14.06 LIMITATION ON POWERS: In the exercise of its
powers and duties under this Ordinance, the Committee and its individual
members shall not accept any gratuity, compensation or other thing of
value from any liquor wholesaler, retailer, or distributor or from any
licensee.
§14.07 INSPECTION RIGHTS: The premises on which liquor
is sold or distributed shall be open for inspection by the Committee
at all reasonable time for the purposes of ascertaining whether the
rules and regulations of this Ordinance are being complied with.
PART IV - SALES OF LIQUOR
§14.08
LICENSES REQUIRED: No sales of alcoholic beverages shall
be made, except at a tribally-licensed or tribally-owned business operated
on Reservation land within the exterior boundaries of the Siletz Tribe.
§14.09 SALES FOR CASH: All liquor sales within the Reservation
boundaries shall be on a cash only basis and not credit shall be extended
to any person, organization, or entity, except that this provision does
not prevent the use of major credit cards.
§14.10 SALE FOR PERSONAL CONSUMPTION: All sales shall
be for the personal use and consumption of the purchaser. Resale of
any alcoholic beverage purchased within the exterior boundaries of the
Reservation is prohibited. Any person who is not licensed pursuant to
this Ordinance who purchases an alcoholic beverage within the boundaries
of the Reservation and sells it, whether in the original container or
not, shall be guilty of a violation of this Ordinance and shall be subjected
to paying damages to the Siletz Tribe as set forth herein.
PART V - LICENSING
§14.11
REQUIREMENTS FOR APPLICATION FOR TRIBAL LIQUOR LICENSE: No
individual tribal license shall issue under this Ordinance except upon
a sworn application filed with the Committee containing a full and complete
showing of the following:
(a)
Satisfactory proof that the applicant is or will be duly licensed
by the State of Oregon.
(b)
Satisfactory proof that the applicant is of good character and reputation
among the people of the Reservation and that the applicant is financially
responsible.
(c)
The description of the premises in which the intoxicating beverages
are to be sold, proof that the applicant is the owner of such premises,
or lessee of such premises, for at least the term of the license.
(d)
Agreement by the applicant to accept and abide by all conditions of
the tribal license.
(e)
Payment of a license fee as prescribed by the Committee.
(f)
Satisfactory proof that neither the applicant nor the applicant's
spouse has ever been convicted of a felony.
(g)
Satisfactory proof that notice of the application has been posted
in a prominent, noticeable place on the premises where intoxicating
beverages are to be sold for at least 30 days prior to consideration
by the Committee and has been published at least twice in such local
newspaper serving the community that may be affected by the license.
The notice shall state the date, time, and place when the application
shall be considered by the Committee pursuant to Section 14.12 of
this Ordinance.
§14.12 HEARING ON APPLICATION FOR TRIBAL LIQUOR LICENSE:
All applications for a tribal liquor license shall be considered by
the Committee in open session at which the applicant, his/her attorney,
and any person protesting the application shall have the right to be
present, and to offer sworn oral or documentary evidence relevant to
the application. After the hearing, the Committee, by secret ballot,
shall determine whether to grant or deny the application based on:
1. Whether
the requirements of Section 14.11 have been met; and
2. Whether
the Committee, in its discretion, determines that granting the license
is in the best interest of the Siletz Tribe.
In the
event that the applicant is a member of the Tribal Council, or a member
of the immediate family of a Tribal Council member, such member shall
not vote on the application or participate in the hearings as a Committee
member.
§14.13 TEMPORARY PERMITS: The Committee or its
designee may grant a temporary permit for the sale of intoxicating beverages
for a period not to exceed three (3) days to any person applying for
the same in connection with a tribal or community activity, provided
that the conditions prescribed in Section 14.14 of this Ordinance shall
be observed by the permittee. Each permit issued shall specify the types
of intoxicating beverages to be sold. Further, a fee, as set by the
Committee, will be assessed on temporary permits.
§14.14 CONDITIONS OF THE TRIBAL LICENSE: Any tribal
license issued under this Ordinance shall be subject to such reasonable
conditions as the Committee shall fix, including, but not limited to
the following:
(a)
The license shall be for a term not to exceed 2 years;
(b)
The licensee shall at all times maintain an orderly, clean, and neat
establishment, both inside and outside the licensed premises;
(c)
The licensed premises shall be subject to patrol by the tribal police
department, and such other law enforcement officials as may be authorized
under applicable law;
(d)
The licenses premises shall be open to inspection by duly authorized
tribal officials at all times during the regular business hours;
(e)
Subject to the provisions of subsection (g) to this section, no intoxicating
beverages shall be sold, served, disposed of, delivered or given to
any person, or consumed on the licensed premises except in conformity
with the hours and days prescribed by the laws of the State of Oregon,
and in accordance with the hours fixed by the Committee, provided
that the licensed premises shall not operate or open earlier or operate
or close later than is permitted by the laws of the State of Oregon.
(f)
No liquor shall be sold within 200 feet of a polling place on tribal
election days, or when a referendum is held of the people of the Siletz
Tribe, and including special days of observance as designated by the
Committee.
(g)
All acts and transactions under authority of the tribal liquor license
shall be in conformity with the laws of the State of Oregon, as required
by federal law, and shall be in accordance with this ordinance and
any tribal license issued pursuant to this Ordinance.
(h)
No person under the age permitted under the laws of the State of Oregon
shall be sold, served, delivered, given, or allowed to consume alcoholic
beverages in the licensed establishment and/or area.
(i)
There shall be no discrimination in the operations under the tribal
license by reason of race, color, or creed.
§14.15 LICENSE NOT A PROPERTY RIGHT: Notwithstanding
any other provision of this ordinance, a tribal liquor license is a
mere permit for a fixed duration of time. A tribal liquor license shall
not be deemed a property right or vested right of any kind, nor shall
the granting of a tribal liquor license give rise to a presumption of
legal entitlement to the granting of such license for a subsequent time
period.
§14.16 ASSIGNMENT OR TRANSFER: No tribal license issued
under this Ordinance shall be assigned or transferred without the written
approval of the Committee expressed by formal resolution.
PART VI - RULES, REGULATIONS AND ENFORCEMENT
§14.17
SALES OR POSSESSION WITH INTENT TO SELL WITHOUT A PERMIT:
Any person who shall sell or offer for sale or distribute or transport
in any manner, any liquor in violation of this ordinance, or who shall
operate or shall have liquor in his/her possession with intent to sell
or distribute without a permit, shall be guilty of a violation of this
Ordinance.
§14.18 PURCHASES FROM OTHER THAN LICENSED FACILITIES:
Any person within the boundaries of the Reservation who buys liquor
from any person other than at a properly licensed facility shall be
guilty of a violation of this Ordinance.
§14.19 SALES TO PERSONS UNDER THE INFLUENCE OF LIQUOR:
Any person who sells liquor to a person apparently under the influence
of liquor shall be guilty of a violation of this Ordinance.
§14.20 CONSUMING LIQUOR IN PUBLIC CONVEYANCE: Any person
engaged wholly or in part in the business of carrying passengers for
hire, and every agent, servant or employee of such person who shall
knowingly permit any person to drink any liquor in any public conveyance
shall be guilty of a violation of this Ordinance. Any person who shall
drink any liquor in a public conveyance shall be guilty of a violation
of this Ordinance.
§14.21 CONSUMPTION OR POSSESSION OF LIQUOR BY PERSONS UNDER
21 YEARS OF AGE: No person under the age of 21 years shall consume,
acquire or have in his/her possession any alcoholic beverage. No person
shall permit any other person under the age of 21 to consume liquor
on his/her premises or any premises under his/her control except in
those situations set out in this section. Any person violating this
section shall be guilty of a separate violation of this Ordinance for
each and every drink so consumed.
§14.22 SALES OF LIQUOR TO PERSONS UNDER 21 YEARS OF AGE:
Any person who shall sell or provide liquor to any person under the
age of 21 years shall be guilty of a violation of this Ordinance for
each sale or drink provided.
§14.23 TRANSFER OF IDENTIFICATION TO MINOR: Any person
who transfers in any manner an identification of age to a minor for
the purpose of permitting such minor to obtain liquor shall be guilty
of an offense; provided, that corroborative testimony of a witness other
than the minor shall be a requirement of finding a violation of this
ordinance.
§14.24 USE OF FALSE OR ALTERED IDENTIFICATION: Any person
who attempts to purchase an alcoholic beverage through the use of false
or altered identification which falsely purports to show the individual
to be over the age of 21 years shall be guilty of violating this Ordinance.
§14.25 VIOLATION OF THIS ORDINANCE: Any person guilty
of a violation of this Ordinance shall be liable to pay the Siletz Tribe
a penalty not to exceed $500 per violation as civil damages to defray
the Siletz Tribe's cost of enforcement of this Ordinance. In addition
to any penalties so imposed, any license issued hereunder may be suspended
or canceled by the Committee for the violation of any of the provisions
of this Ordinance, or of the tribal license, upon hearing before the
Committee after 10 days notice to the licensee. The decision of the
Committee shall be final.
§14.26 ACCEPTABLE IDENTIFICATION: Where there may be
a question of a person's right to purchase liquor by reason of his/her
age, such person shall be required to present any one of the following
issued cards of identification which shows his/her correct age and bears
his/her signature and photograph:
1. Driver's
license of any state or identification card issued by any State Department
of Motor Vehicles;
2. United
States Active Duty Military Identification;
3. Passport.
§14.27 POSSESSION OF LIQUOR CONTRARY TO THIS ORDINANCE:
Alcoholic beverages which are possessed contrary to the terms of this
Ordinance are declared to be contraband. Any tribal agent, employee,
or officer who is authorized by the Committee to enforce this section
shall have the authority to and shall seize, all contraband.
§14.28 DISPOSITION OF SEIZED CONTRABAND: Any officer
seizing contraband shall preserve the contraband in accordance with
applicable law. Upon being found in violation of the Ordinance by the
Committee, the party shall forfeit all right, title and interest in
the items seized which shall become the property of the Siletz Tribe.
PART VII - TAXES
§14.29
SALES TAX: The Committee shall have the authority, by regulation,
to levy and collect a sales tax on each sale of alcoholic beverages
on the Reservation. The amount of such tax shall be set by regulation,
shall include credit card payments, and shall include all retail sales
of liquor on the Reservation.
§14.30 PAYMENT OF TAXES TO TRIBE: All taxes from the
sale of alcoholic beverages on the Reservation shall be paid over to
the agent of the Siletz Tribe.
§14.31 TAXES DUE: All taxes for the sale of alcoholic
beverages on the Reservation are due within thirty (30) days of the
end of the calendar quarter for which the taxes are due.
§14.32 REPORT: Along with payment of the taxes imposed
herein, the taxpayers shall submit an accounting for the quarter of
all income from the sale or distribution of said beverages as well as
for the taxes collected.
§14.33 AUDIT: As a condition of obtaining a license,
the licensee must agree to the review or audit of its books and records
relating to the sale of alcoholic beverages on the Reservation. Said
review or audit may be done annually by the Tribe through its agents
or employees whenever, in the opinion of the Committee, such a review
or audit is necessary to verify the accuracy of reports.
PART VIII - PROFITS
§14.34
DISPOSITION OF PROCEEDS. The gross proceeds collected by
the Committee from all licensing and provided from the taxation of the
sales of alcoholic beverages on the Reservation shall be distributed
as follows:
(a)
For the payment of all necessary personnel, administrative costs,
and legal fees for the operation of the Committee and its activities.
(b)
The remainder shall be turned over the account of the Tribe.
PART IX - SEVERABILITY AND MISCELLANEOUS
§14.35
SEVERABILITY: If any provision or application of this ordinance
is determined by review to be invalid, such adjudication shall not be
held to render ineffectual the remaining portions of this Ordinance
or to render such provisions inapplicable to other persons or circumstances.
§14.36 PRIOR ENACTMENTS: All prior enactments of the
Tribal Council which are inconsistent with the provisions of this Ordinance
are hereby rescinded.
§14.37 CONFORMANCE WITH OREGON LAWS: All acts and transactions
under this Ordinance shall be in conformity with the laws of the State
of Oregon as that term is used in 18 U.S.C. §1161.
§14.38 EFFECTIVE DATE: This Ordinance shall be effective
on [insert date of publication in the FEDERAL REGISTER].
PART X - AMENDMENT
§14.39
This ordinance may only be amended or repealed by a majority vote of
the Tribal Council. The authorized areas of the Tribe's reservation
where alcohol may be sold may only be amended or repealed by the General
Council.
PART XI - SOVEREIGN IMMUNITY
§14.40
Nothing contained in this Ordinance is intended to, nor does in
any way limit, alter, restrict, or waive the Tribe's sovereign immunity
from unconsented suit.
CERTIFICATION
The foregoing
ordinance was amended by the Siletz Tribal Council at a Regular Council
meeting held on 6/21/97 at which a quorum was present, and the
ordinance was amended by a vote of 8 FOR, 0 AGAINST, and
0 ABSTAINING.
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SILETZ
TRIBAL COUNCIL
By
Lillie Butler
Tribal Chairman
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| ATTEST: |
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APPROVED: |
JoAnn Miller
Tribal Council Secretary |
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Acting Assistant Secretary
Bureau of Indian Affairs
Dated:
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Adopted
April 20, 1996
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AMENDED:
2/16/97, 3/15/97, 6/21/97 |
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