[Federal Register: July 31, 2009 (Volume 74, Number 146)]
[Notices]
[Page 38220-38227]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31jy09-91]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Kaw Nation Alcohol Control Ordinance
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
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SUMMARY: This notice publishes the Kaw Nation Alcohol Control
Ordinance. The Ordinance regulates and controls the possession, sale,
and consumption of liquor within the tribal lands. The tribal lands are
located in Indian country and this Ordinance allows for possession and
sale of alcoholic beverages within their boundaries. This Ordinance
will increase the ability of the tribal government to control the
community's liquor distribution and possession, and at the same time
will provide an important source of revenue for the continued operation
and strengthening of the tribal government and the delivery of tribal
services.
DATES: Effective Date: This Ordinance is effective on July 31, 2009.
FOR FURTHER INFORMATION CONTACT: Sherry Lovin, Tribal Government
Services Officer, Southern Plains Regional Office, WCD Office Complex,
PO Box 368, Anadarko, OK 73005, Telephone: (405) 247-1534, Fax (405)
247-9240; or Elizabeth Colliflower, Office of Indian Services, 1849 C
Street, NW., Mail Stop 4513-MIB, Washington, DC 20240, Telephone: (202)
513-7640.
SUPPLEMENTARY INFORMATION: Pursuant to the Act of August 15, 1953,
Public Law 83-277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the
Supreme Court in Rice v. Rehner, 463 U.S. 713 (1983), the Secretary of
the Interior shall certify and publish in the Federal Register notice
of adopted liquor ordinances for the purpose of regulating liquor
transactions in Indian country. The Kaw Nation Executive Council
adopted its Alcohol Control Ordinance by Resolution No. 07-62 on
November 27, 2007. The purpose of this Ordinance is to govern the sale,
possession, and distribution of alcohol within tribal lands of the
Tribe.
This notice is published in accordance with the authority delegated
by the Secretary of the Interior to the Assistant Secretary--Indian
Affairs. I certify that this Alcohol Control Ordinance of the Kaw
Nation Executive Council was duly adopted by the Council on November
27, 2007.
Dated: July 23, 2009.
Larry Echo Hawk,
Assistant Secretary--Indian Affairs.
The Kaw Nation Alcohol Control Ordinance reads as follows:
Kaw Nation Alcohol Control Ordinance
Article I. Introduction
Section 1.1. Title
This Ordinance shall be known as the ``Kaw Nation Alcohol Control
Ordinance.''
Section 1.2. Authority
This Ordinance is enacted pursuant to the Act of August 15, 1953.
Public Law 83-277, 67 Stat. 586, 18 U.S.C. 1161 and Article II, Sec. 4
of the Constitution of the Kaw Nation.
Section 1.3. Purpose
The purpose of this Ordinance is to regulate and control the
manufacture, distribution, possession, and sale of Alcohol on Tribal
lands of the Kaw Nation. The enactment of this Ordinance will enhance
the ability of the Kaw Nation to control all such alcohol-related
activities within the jurisdiction of the Tribe and will provide an
important source of revenue for the continued operation and
strengthening of the Kaw Nation and the delivery of important
governmental services.
Section 1.4. Application of Federal Law
Federal law forbids the introduction, possession and sale of liquor
in Indian Country (18 U.S.C. 1154 and other statutes), except when in
conformity both with the laws of the State and the Tribe (18 U.S.C.
1161). As such, compliance with this Ordinance shall be in addition to,
and not a substitute for, compliance with the laws of the State of
Oklahoma.
Section 1.5. Administration of Ordinance
The Executive Council, through its powers vested under Article II,
Sec. 4 of the Constitution of the Kaw Nation and this Ordinance,
delegates to the Alcohol Regulatory Authority the authority to exercise
all of the powers and accomplish all of the purposes as set forth in
this Ordinance, which may include, but are not limited to, the
following actions:
A. Adopt and enforce rules and regulations for the purpose of
effectuating this Ordinance, which includes the setting of fees, fines
and other penalties;
B. Execute all necessary documents; and
C. Perform all matters and actions incidental to and necessary to
conduct its business and carry out its duties and functions under this
Ordinance.
Section 1.6. Sovereign Immunity Preserved
A. The Tribe is immune from suit in any jurisdiction except to the
extent that the Executive Council of the Kaw Nation expressly and
unequivocally waives such immunity by approval of such written
resolution.
B. Nothing in this Ordinance shall be construed as waiving the
sovereign immunity of the Kaw Nation or the Alcohol Regulatory
Authority as an agency of the Kaw Nation.
[[Page 38221]]
Section 1.7. Applicability
This Ordinance shall apply to all commercial enterprises located
within Tribal lands consistent with applicable Federal Liquor Laws.
Section 1.8. Computation of Time
Unless otherwise provided in this Ordinance, in computing any
period of time prescribed or allowed by this Ordinance, the day of the
act, event, or default from which the designated period time begins to
run shall not be included. The last day of the period so computed shall
be included, unless it is a Saturday, a Sunday, or a legal holiday. For
the purposes of this Ordinance, the term ``legal holiday'' shall mean
all legal holidays under Tribal or Federal law. All documents mailed
shall be deemed served at the time of mailing.
Section 1.9. Liberal Construction
Provisions of this Ordinance shall be liberally construed to
achieve the purposes set forth, whether clearly stated or apparent from
the context of the language used herein.
Section 1.10. Collection of Applicable Fees, Taxes, or Fines
The Alcohol Regulatory Authority shall have the authority to
collect all applicable and lawful fees, taxes, and or fines from any
person or Licensee as imposed by this Ordinance. The failure of any
Licensee to deliver applicable taxes collected on the sale of Alcoholic
Beverages shall subject the Licensee to penalties, including, but not
limited to the revocation of said License.
Article II. Declaration of Public Policy
Section 2.1. Matter of Special Interest
The manufacture, distribution, possession, sale, and consumption of
Alcoholic Beverages within the jurisdiction of the Kaw Nation are
matters of significant concern and special interest to the Tribe. The
Executive Council hereby declares that the policy of the Kaw Nation is
to eliminate the problems associated with unlicensed, unregulated, and
unlawful importation, distribution, manufacture, possession and sale of
Alcoholic Beverages for commercial purposes and to promote temperance
in the use and consumption of Alcoholic Beverages by increasing the
Tribe's control over such activities on Tribal lands.
Section 2.2. Federal Law
The introduction of Alcohol within the jurisdiction of the Tribe is
currently prohibited by Federal law (18 U.S.C. 1154), except as
provided for therein, and the Tribe is expressly delegated the right to
determine when and under what conditions Alcohol, including Alcoholic
Beverages, shall be permitted thereon (18 U.S.C. 1161).
Section 2.3. Need for Regulation
The Tribe finds that the Federal Liquor Laws prohibiting the
introduction, manufacture, distribution, possession, sale, and
consumption of Alcoholic Beverages within the Tribal lands has proven
ineffective and that the problems associated with same should be
addressed by the laws of the Tribe, with all such business activities
related thereto subject to the taxing and regulatory authority of the
Alcohol Regulatory Authority.
Section 2.4. Geographic Locations
The Tribe finds that the introduction, manufacture, distribution,
possession, sale, and consumption of Alcohol, including Alcoholic
Beverages, shall be regulated under this Ordinance only where such
activity will be conducted within or upon Tribal lands.
Section 2.5. Definitions
As used in this Ordinance, the following words shall have the
following meanings unless the context clearly requires otherwise:
A. ``Alcohol'' means the product of distillation of fermented
liquid, whether or not rectified or diluted with water, including, but
not limited to Alcoholic Beverages as defined herein, but does not mean
ethyl or industrial alcohol, diluted or not, that has been denatured or
otherwise rendered unfit for purposes of consumption by humans.
B. ``Alcohol Regulatory Authority'' means the tribal entity
authorized by the Executive Council to administer the Kaw Nation
Alcohol Control Ordinance.
C. ``Alcoholic Beverage(s)'' when used in this Ordinance means, and
shall include any liquor, beer, spirits, or wine, by whatever name they
may be called, and from whatever source and by whatever process they
may be produced, and which contain a sufficient percent of alcohol by
volume which, by law, makes said beverage subject to regulation as an
intoxicating beverage under the laws of the State of Oklahoma.
Alcoholic Beverages include all forms of ``low-point beer'' as defined
under the laws of the State of Oklahoma.
D. ``Applicant'' means any person who submits an application to the
Alcohol Regulatory Authority for an Alcoholic Beverage License and who
has not yet received such a License.
E. ``Constitution'' means the Constitution of the Kaw Nation.
F. ``Executive Council'' means the duly elected legislative body of
the Kaw Nation authorized to act in and on all matters and subjects
upon which the Tribe is empowered to act, now or in the future.
G. ``Federal Liquor Laws'' means all laws of the United States of
America that apply to or regulate in any way the introduction,
manufacture, distribution, possession, or sale of any form of Alcohol,
including, but not limited to 18 U.S.C. 1154 & 1161.
H. ``Legal Age'' means twenty-one (21) years of age.
I. ``License'' or ``Alcoholic Beverage License'' means a license
issued by the Alcohol Regulatory Authority authorizing the
introduction, manufacture, distribution, or sale of Alcoholic Beverages
for commercial purposes under the provisions of this Ordinance.
J. ``Licensee'' means a person or commercial enterprise that holds
an Alcoholic Beverage License issued by the Alcohol Regulatory
Authority and includes any employee or agent of the Licensee.
K. ``Liquor store'' means any business, store, or commercial
establishment at which Alcohol is sold and shall include any and all
businesses engaged in the sale of Alcoholic Beverages, whether sold as
packaged or by the drink.
L. ``Manufacturer'' means any person engaged in the manufacture of
Alcohol, including, but not limited to the manufacture of Alcoholic
Beverages.
M. ``Oklahoma Liquor License'' means any license or permit issued
by the State of Oklahoma, including any agency, subdivision, or county
thereof, regulating any form of Alcohol, including, but not limited to
any form of Alcoholic Beverage. Any license or permit issued for the
sale or distribution of ``low-point beer'', as defined under Oklahoma
law, shall be considered an ``Oklahoma Liquor License'' under this
Ordinance.
N. ``Ordinance'' means this Kaw Nation Alcohol Control Ordinance,
as hereafter amended.
O. ``Package'' or ``packaged'' means the sale of any Alcoholic
Beverage by delivery of same by a seller to a purchaser in any
container, bag, or receptacle for consumption beyond the premises or
location designated on the seller's License.
P. ``Public place'' means and shall include any tribal, county,
State, or Federal highways, roads, and rights-of-way; buildings and
grounds used for school purposes; public dance halls and grounds
adjacent thereto; public restaurants, buildings, meeting halls, hotels,
theaters, retail stores, and
[[Page 38222]]
business establishments generally open to the public and to which the
public is allowed to have unrestricted access; and all other places to
which the general public has unrestricted right of access and that are
generally used by the public. For the purpose of this Ordinance,
``public place'' shall also include any privately owned business
property or establishment that is designed for or may be regularly used
by more persons other than the owner of the same, but shall not include
the private, family residence of any person.
Q. ``Sale(s)'', ``sell'', or ``sold'' mean the exchange, barter,
traffic, furnishing, or giving away for commercial purpose of any
Alcoholic Beverage by any and all means, by whatever name commonly used
to describe the same, by any commercial enterprise or person to another
person.
R. ``Tribal Court'' means the Courts of the Kaw Nation, as
established under the Constitution of the Kaw Nation, Article V, Sec.
1.
S. ``Tribal land(s)'' shall mean and reference the geographic area
that includes all land included within the definition of ``Indian
country'' as established and described by Federal law and that is under
the jurisdiction of the Kaw Nation, including, but not limited to all
lands held in trust by the Federal government, located within the same,
as are now in existence or may hereafter be added to.
T. ``Tribal law'' means the Constitution of the Kaw Nation and all
laws, ordinances, codes, resolutions, and regulations now and hereafter
duly enacted by the Tribe.
U. ``Tribe'' shall mean the Kaw Nation.
Article III. Sales of Alcoholic Beverages
Section 3.1. Prohibition of the Unlicensed Sale of Alcoholic Beverages
This Ordinance prohibits the introduction, manufacture,
distribution, or sale of Alcoholic Beverages for commercial purposes,
other than where conducted by a Licensee in possession of a lawfully
issued License in accordance with this Ordinance. The Federal Liquor
Laws are intended to remain applicable to any act or transaction that
is not authorized by this Ordinance, and violators shall be subject to
all penalties and provisions of any and all Federal and or Tribal laws.
Section 3.2. License Required
A. Any and all sales of Alcoholic Beverages conducted upon Tribal
lands shall be permitted only where the seller: (i) Holds a current
Alcoholic Beverage License, duly issued by the Alcohol Regulatory
Authority; and (ii) prominently and conspicuously displays the License
on the premises or location designated on the license.
B. A Licensee has the right to engage only in those activities
involving Alcoholic Beverage expressly authorized by such License in
accordance with this Ordinance.
Section 3.3. Sales for Cash
All sales of Alcoholic Beverages conducted by any person or
commercial enterprise upon Tribal lands shall be conducted on a cash-
only basis, and no credit for said purchase and consumption of same
shall be extended to any person, organization, or entity, except that
this provision does not prohibit the payment of same by use of credit
cards acceptable to the seller (including but not limited to VISA,
MasterCard, or American Express).
Section 3.4. Personal Consumption
All sales of Alcoholic Beverages shall be for the personal use and
consumption of the purchaser and or his/her guest(s) of Legal Age. The
re-sale of any Alcoholic Beverage purchased within or upon Tribal lands
by any person or commercial enterprise not licensed as required by this
Ordinance is prohibited.
Section 3.5. Tribal Enterprises
No employee or operator of a commercial enterprise owned by the
Tribe shall sell or permit any person to open or consume any Alcoholic
Beverage on any premises or location, or any premises adjacent thereto,
under his or her control, unless such activity is properly licensed as
provided in this Ordinance.
Article IV. Licensing
Section 4.1. Eligibility
Only Applicants operating upon Tribal lands shall be eligible to
receive a License for the sale of any Alcoholic Beverage under this
Ordinance.
Section 4.2. Application Process
A. The Alcohol Regulatory Authority may cause a License to be
issued to any Applicant as is it may deem appropriate, but not contrary
to the best interests of the Tribe and its Tribal members. Any
Applicant that desires to receive any Alcoholic Beverage License, and
that meets the eligibility requirements pursuant to this Ordinance,
must apply to the Alcohol Regulatory Authority for the desired class of
License. Any such person as may be empowered to make such application,
shall: (i) Fully and accurately complete the application provided by
the Alcohol Regulatory Authority; (ii) pay the Alcohol Regulatory
Authority such application fee as may be required; and (iii) submit
such application to the Alcohol Regulatory Authority for consideration.
B. All application fees paid to the Alcohol Regulatory Authority
are nonrefundable upon submission of any such application. Each
application shall require the payment of a separate application fee.
Section 4.3. Term and Renewal of Licenses
A. The term of all Licenses issued under this Ordinance shall be
for a period not to exceed one (1) year from the original date of
issuance and may be renewed thereafter on a year-to-year basis, in
compliance with this Ordinance and any rules and/or regulations
hereafter adopted by the Alcohol Regulatory Authority.
B. Each License may be considered for renewal by the Alcohol
Regulatory Authority annually upon the Licensee's submission of a new
application and payment of all fees. Such renewal application shall be
submitted to the Alcohol Regulatory Authority at least sixty (60) days
and no more than ninety (90) days prior to the expiration of an
existing License. If a License is not renewed prior to its expiration,
the Licensee shall cease and desist all activity as permitted under the
License, including the sale of any Alcoholic Beverages, until the
renewal of such License is properly approved by the Alcohol Regulatory
Authority.
Section 4.4. Classes of Licenses
The Alcohol Regulatory Authority shall have the authority to issue
the following classes of Alcoholic Beverage License:
A. ``Retail On-Site General License'' authorizing the Licensee to
sell Alcoholic Beverages at retail to be consumed by the buyer only on
the premises or location designated in the License. This class of
License includes, but is not limited to, hotels where Alcoholic
Beverages may be sold for consumption on the premises and in the rooms
of bona fide registered guests.
B. ``Retail On-Site Beer and Wine License'' authorizing the
Licensee to sell only beer and wine at retail to be consumed by the
buyer only on the premises or location designated in the License. This
class of License includes, but is not limited to, hotels where beer
and/or wine may be sold for consumption on the premises and in the
rooms of bona fide registered guests.
C. ``Retail Off-Site General License'' authorizing the Licensee to
sell
[[Page 38223]]
Alcoholic Beverages at retail to be consumed by the buyer off of the
premises or at a location other than the one designated in the License.
D. ``Retail Off-Site Beer and Wine License'' authorizing the
Licensee to sell only beer and wine at retail to be consumed by the
buyer off of the premises or at a location other than the one
designated in the License.
E. ``Manufacturer's License'' authorizing the Applicant to
manufacture Alcoholic Beverages for the purpose of wholesale to
retailers on or off Tribal lands, but not authorizing the sale of
Alcoholic Beverages at retail.
F. ``Temporary License'' authorizing the sale of Alcoholic
Beverages on a temporary basis for a specific premises or location
temporarily occupied by the Licensee for a picnic, social gathering, or
similar occasion. A Temporary License is only valid for the limited
time as designated on the License, which shall not exceed thirty (30)
days, and may not be renewed upon expiration. A new application must be
submitted for each such License.
Section 4.5. Application Form and Content
An application for any License shall be made to the Alcohol
Regulatory Authority and shall contain at least the following
information:
A. The name and address of the Applicant, including the names and
addresses of all of the principal officers, directors, managers, and
other employees with primary management responsibility related to the
sale of Alcoholic Beverages;
B. The specific area, location, and/or premise(s) for which the
License is applied;
C. The hours that the Applicant will sell the Alcoholic Beverages;
D. For Temporary Licenses, the dates for which the License is
sought to be in effect;
E. The class of Alcoholic Beverage License applied for, as set
forth in Section 4.4 herein;
F. Whether the Applicant has an Oklahoma Liquor License;
G. A sworn statement by the Applicant to the effect that none of
the Applicant's officers, directors, managers, and or employees with
primary management responsibility related to the sale of Alcoholic
Beverages, have ever been convicted of a felony under the law of any
jurisdiction, and have not violated and will not violate or cause or
permit to be violated any of the provisions of this Ordinance; and
H. The application shall be signed and verified by the Applicant
under oath and notarized by a duly authorized representative.
Section 4.6. Public Hearing
A. Upon receipt of an application for issuance or renewal of a
License, and the payment of any fees required by the Alcohol Regulatory
Authority, the Alcohol Regulatory Authority shall set the consideration
of such application for a public hearing. Notice of the time and place
of such hearing shall be mailed to the Applicant and provided to the
public at least twenty (20) calendar days before the date of the
hearing. Notice shall be mailed to the Applicant by prepaid U.S. mail
at the address listed in the application. Notice shall be provided to
the public by publication in a newspaper of general circulation within
the jurisdiction of the Tribe. The notice published in the newspaper
shall include: (i) The name of the Applicant; (ii) whether the hearing
will consider a new License issuance or renewal of an existing License;
(iii) the class of License applied for; and (iv) an address and general
description of the area where the Alcoholic Beverages will be or have
been sold.
B. At such hearings, the Alcohol Regulatory Authority shall hear
from any person who wishes to speak for or against the application,
subject to the limitation in paragraph (C) of this section, and any
other limitations herein.
C. The Alcohol Regulatory Authority shall have the authority to
place time limits on each speaker and limit or prohibit repetitive
testimony.
Section 4.7. Action on the Application
The Alcohol Regulatory Authority shall act on the matter within
thirty (30) days of the conclusion of the public hearing. The Alcohol
Regulatory Authority shall have the authority to deny, approve, or
approve with conditions, the application, consistent with this
Ordinance and the laws of the Tribe. Upon approval of an application,
the Alcohol Regulatory Authority shall issue a License to the Applicant
in a form to be approved from time to time by the Alcohol Regulatory
Authority.
Section 4.8. Denial of License or Renewal
An application for a new License or License renewal may be denied
for one or more of the following reasons.
A. The Applicant materially misrepresented facts contained in the
application;
B. The Applicant is currently not in compliance with this Ordinance
or any other Tribal or Federal laws;
C. Granting of the License, or renewal thereof, would create a
threat to the peace, safety, morals, health, or welfare of the Tribe;
D. The Applicant has failed to complete the application properly or
has failed to tender the appropriate fee.
E. A verdict or judgment has been entered against or a plea of nolo
contendere has been entered by an Applicants' officer, director,
manager, or any other employee with primary management responsibility
related to the sale of Alcoholic Beverages, to any offense under
Tribal, Federal, or State laws prohibiting or regulating the sale, use,
possession or giving away of Alcoholic Beverages.
Section 4.9. Temporary Denial
If the application is denied solely on the basis of Sec. 4.8(D),
the Alcohol Regulatory Authority shall, within fourteen (14) days of
such action, deliver in person or by mail a written notice of temporary
denial to the Applicant. Such notice of temporary denial shall: (i) Set
forth the reason(s) for denial; and (ii) state that the temporary
denial will become a permanent denial if the reason(s) for denial are
not corrected within fifteen (15) days following the mailing or
personal delivery of such notice.
Section 4.10. Cure
If an Applicant is denied a License, the Applicant may cure the
deficiency and resubmit the application for consideration. Each re-
submission will be treated as a new application for License or renewal
of a License, and the appropriate fee shall be due upon re-submission.
Section 4.11. Investigation.
Upon receipt of an application for the issuance or renewal of a
License, the Alcohol Regulatory Authority shall make a thorough
investigation to determine whether the Applicant and the premises or
location for which a License is applied for qualifies for a License,
and whether the provisions of this Ordinance have been complied with.
The Alcohol Regulatory Authority shall investigate all matters
connected therewith which may affect the public health, welfare, and
morals.
Section 4.12. Procedures for Appealing a Denial or Condition of
Application
Any Applicant for a License, or Licensee, who believes the denial
of their License, request for renewal, or condition imposed on their
License was wrongfully determined may appeal the decision to the
Alcohol Regulatory Authority in accordance with Sec. 4.15 of
[[Page 38224]]
this Ordinance and with the Alcohol Regulatory Authority Rules and
Regulations. The Alcohol Regulatory Authority's decision on the appeal
shall be considered a final decision by the Kaw Nation and shall not be
appealed to the Tribal Court.
[As amended by Resolution 09-34 on March 20, 2009.]
Section 4.13. Revocation of License
The Alcohol Regulatory Authority may initiate action to revoke a
License whenever it is brought to the attention of the Alcohol
Regulatory Authority that a Licensee:
A. Has materially misrepresented facts contained in any License
application;
B. Is not in compliance with this Ordinance or any other Tribal or
Federal laws material to the issue of Alcohol licensing;
C. Failed to comply with any condition of a License, including
failure to pay taxes on the sale of Alcoholic Beverages or failure to
pay any fee required under this Ordinance;
D. Has had a verdict, or judgment entered against, or has had a
plea of nolo contendere entered by any of its officers, directors,
managers or any employees with primary responsibility over the sale of
Alcoholic Beverages, as to any offense under Tribal, Federal or State
laws prohibiting or regulating the sale, use, or possession, of
Alcoholic Beverages;
E. Failed to take reasonable steps to correct objectionable
conditions constituting a nuisance on the premises or location
designated in the License, or any adjacent area under their control,
within a reasonable time after receipt of a notice to make such
corrections has been mailed or personally delivered by the Alcohol
Regulatory Authority; or
F. Has had their Oklahoma Liquor License suspended or revoked.
Section 4.14. Initiation of Revocation Proceedings
Revocation proceedings may be initiated by either: (i) The Alcohol
Regulatory Authority, on its own motion and through the adoption of an
appropriate resolution meeting the requirements of this section; or
(ii) by any person who files a complaint with the Alcohol Regulatory
Authority. The complaint shall be in writing and signed by the maker.
Both the complaint and resolution shall state facts showing that there
are specific grounds under this Ordinance which would authorize the
Alcohol Regulatory Authority to revoke the License(s). The Alcohol
Regulatory Authority shall cause the consideration of such revocation
to be set for a public hearing before the Alcohol Regulatory Authority
on a date no later than thirty (30) days from the Alcohol Regulatory
Authority's receipt of a complaint or adoption of a resolution. Notice
of the time, date, and place of such hearing shall be provided to the
Licensee and the public in the same manner as set forth in Sec. 4.6
herein. The notice of such hearing shall state that the Licensee has
the right to file a written response to the complaint or resolution
with the Alcohol Regulatory Authority, verified under oath and signed
by the Licensee, no later than ten (10) days prior to the hearing date.
Section 4.15. Revocation Hearing
Any hearing held on any complaint shall be held under such rules
and regulations as the Alcohol Regulatory Authority shall prescribe.
Both the Licensee and the person filing the complaint shall have the
right to present witnesses to testify and to present written documents
in support of their positions to the Alcohol Regulatory Authority. The
Alcohol Regulatory Authority shall render its decision within sixty
(60) days after the date of the hearing. The decision of the Alcohol
Regulatory Authority shall be considered a final decision by the Kaw
Nation.
[As amended by Resolution 09-34 on March 20, 2009.]
Section 4.16. Delivery of License
Upon revocation of a License, the Licensee shall forthwith deliver
their License to the Alcohol Regulatory Authority.
Section 4.17. Transferability of Licenses
Alcoholic Beverage Licenses shall be issued to a specific Licensee
for use at a single premises or location (business enterprise) and
shall not be transferable for use by any other premises or location.
Separate Licenses shall be required for each of the premises of any
Licensee having more than one premises or location where the sale,
distribution, or manufacture of Alcoholic Beverages may occur.
Section 4.18. Posting of License
Every Licensee shall post and keep posted its License(s) in a
prominent and conspicuous place(s) on the premises or location
designated in the License. Any License posed on a premises or location
not designated in such License shall not be considered valid and shall
constitute a separate violation of this Ordinance.
Article V. Powers of Enforcement
Section 5.1. Alcohol Regulatory Authority
In furtherance of this Ordinance, the Alcohol Regulatory Authority
shall have exclusive authority to administer and implement this
Ordinance and shall have the following powers and duties hereunder:
A. To adopt and enforce rules and regulations governing the sale,
manufacture, distribution, and possession of Alcoholic Beverages within
the Tribal lands of the Kaw Nation;
B. To employ such persons as may be reasonably necessary to perform
all administrative and regulatory responsibilities of the Alcohol
Regulatory Authority hereunder. All such employees shall be employees
of the Tribe;
C. To issue Licenses permitting the sale, manufacture,
distribution, and possession of Alcoholic Beverages within the Tribal
lands;
D. To give reasonable notice and to hold hearings on violations of
this Ordinance, and for consideration of the issuance or revocation of
Licenses hereunder;
E. To deny applications and renewals for Licenses and revoke issued
Licenses as provided in this Ordinance;
F. To bring such other actions as may be required to enforce this
Ordinance;
G. To prepare and deliver such reports as may be required by law or
regulation; and
H. To collect taxes, fees, and penalties as may be required,
imposed, or allowed by law or regulation, and to keep accurate books,
records, and accounts of the same.
Section 5.2. Right of Inspection
Any premises or location of any commercial enterprise licensed to
manufacture, distribute, or sell Alcoholic Beverages pursuant to this
Ordinance shall be open for inspection by the Alcohol Regulatory
Authority for the purpose of insuring the compliance or noncompliance
of the Licensee with all provisions of this Ordinance and any
applicable Tribal laws or regulations.
Section 5.3. Limitation on Powers
In the exercise of its powers and duties under this Ordinance,
agents, employees, or any other affiliated persons of the Alcohol
Regulatory Authority shall not, whether individually or as a whole:
A. Accept any gratuity, compensation, or other thing of value from
any Alcoholic Beverage wholesaler, retailer, or distributor, or from
any Applicant or Licensee; or
[[Page 38225]]
B. Waive the sovereign immunity of the Kaw Nation, or of any
agency, commission, or entity thereof without the express written
consent by resolution of the Executive Council of the Kaw Nation.
Article VI. Taxes
Section 6.1. Excise Tax
There is hereby levied and shall be collected a tax on each retail
and or wholesale sale of Alcoholic Beverages on Tribal lands in the
amount of one percent (1%) of the wholesale or retail sales price. All
such taxes collected by a Licensee from the sale of such Alcoholic
Beverages shall be paid to the Alcohol Regulatory Authority quarterly.
The Alcohol Regulatory Authority shall deposit such funds into a
separate account under exclusive authority of the Alcohol Regulatory
Authority. This tax rate may be adjusted as requested by the Alcohol
Regulatory Authority and approved by written resolution of the
Executive Council.
Section 6.2. Taxes Due
All taxes collected on the sale of Alcoholic Beverages under this
Ordinance are due to the Alcohol Regulatory Authority from a Licensee
on the 15th day of the month following the end of the calendar quarter
for which taxes are due.
Section 6.3. Delinquent Taxes
Past due taxes shall accrue interest at the rate of two percent
(2%) per month until paid.
Section 6.4. Reports
Along with the payment of taxes imposed hereby, the Licensee shall
submit a quarterly report and accounting of all income from the sale,
distribution, and or manufacture of Alcoholic Beverages within Tribal
lands, and for all taxes collected under this Ordinance.
Section 6.5. Audit
All Licensees are subject to the review or audit of their books and
records relating to the sale of Alcoholic Beverages hereunder by the
Alcohol Regulatory Authority. Such review or audit may be performed
periodically by Alcohol Regulatory Authority's agents or employees at
such times as in the opinion of the Alcohol Regulatory Authority such
review or audit is appropriate to the proper enforcement of this
Ordinance.
Article VII. Rules, Regulations, and Enforcement
Section 7.1. Manufacture, Sale, or Distribution Without License
Any person who manufactures, distributes, sells, or offers for sale
or distribution, any Alcoholic Beverage in violation of this Ordinance,
or who operates any commercial enterprise on Tribal lands that has
Alcoholic Beverages for sale or in their possession without a proper
License properly posted, as required in Section 4.18, shall be in
violation of this Ordinance.
Section 7.2. Unlawful Purchase
Any person who purchases any Alcoholic Beverage on Tribal lands
from a person or commercial enterprise that does not have a License to
manufacture, distribute, or sell Alcoholic Beverages properly posted
shall be in violation of this Ordinance.
Section 7.3. Intent To Sell
Any person who keeps, or possesses, or causes another to keep or
possess, upon his person or any premises within his control, any
Alcoholic Beverage, with the intent to sell or to distribute the same
contrary to the provisions of this Ordinance, shall be in violation of
this Ordinance.
Section 7.4. Sale to Intoxicated Person
Any person who knowingly sells or serves an Alcoholic Beverage to a
person who is visibly intoxicated shall be in violation of this
Ordinance.
Section 7.5. Public Conveyance
Any person engaged in the business of carrying passengers for hire,
and every agent, servant, or employee of such person, who shall
knowingly permit any person to consume any Alcoholic Beverage in any
such public conveyance shall be in violation of this Ordinance.
Section 7.6. Age of Consumption
No person under the age of twenty-one (21) years may possess or
consume any Alcoholic Beverage on Tribal lands, and any such possession
or consumption shall be in violation of this Ordinance.
Section 7.7. Serving Underage Person
No person shall sell or serve any Alcoholic Beverage to a person
under the age of twenty-one (21) or permit any such person to possess
or consume any Alcoholic Beverages on the premises or on any premises
under their control. Any Licensee violating this section shall be
guilty of a separate violation of this Ordinance for each and every
Alcoholic Beverage sold or served and or consumed by such an underage
person.
Section 7.8. False Identification
Any person who purchases or who attempts to purchase any Alcoholic
Beverage through the use of false, or altered identification that
falsely purports to show such person to be over the age of twenty-one
(21) years shall be in violation of this Ordinance.
Section 7.9. Documentation of Age
Any seller or server of any Alcoholic Beverage shall be required to
request proper and satisfactory documentation of age of any person who
appears to be thirty-five (35) years of age or younger. When requested
by a seller or server of Alcoholic Beverages, every person shall be
required to present proper and satisfactory documentation of the
bearer's age, signature, and photograph prior to the purchase or
delivery of any Alcoholic Beverage. For purposes of this Ordinance,
proper and satisfactory documentation shall include one or more of the
following:
A. Drivers License or personal identification card issued by any
State department of motor vehicles or tribal or Federal government
agency;
B. United States active duty military credentials; or
C. Passport.
Any seller, server, or person attempting to purchase an Alcoholic
Beverage, who does not comply with the requirements of this section
shall be in violation of this Ordinance and subject to civil penalties,
as determined by the Alcohol Regulatory Authority.
Section 7.10. General Penalties
Any person or commercial enterprise determined by the Alcohol
Regulatory Authority to be in violation of this Ordinance, including
any lawful regulation promulgated pursuant thereto, shall be subject to
a civil penalty of not more than Five Hundred Dollars ($500.00) for
each such violation, except as provided herein. The Alcohol Regulatory
Authority may adopt by resolution a separate written schedule for fines
for each type of violation, taking into account the seriousness and
threat the violation may pose to the general public health and welfare.
Such schedule may also provide, in the case of repeated violations, for
imposition of monetary penalties greater than the Five Hundred Dollars
($500.00) per violation limitation set forth above. The civil penalties
provided for herein shall be in addition to any criminal penalties that
may be imposed under any other Tribal, Federal, or State laws.
[[Page 38226]]
Section 7.11. Initiation of Action
Any violation of this Ordinance shall constitute a public nuisance.
The Alcohol Regulatory Authority may initiate and maintain an action in
Tribal Court or any court of competent jurisdiction to abate and
permanently enjoin any nuisance declared under this Ordinance. Any
action taken under this section shall be in addition to any other civil
penalties provided for in this Ordinance. The Alcohol Regulatory
Authority shall not be required to post any form of bond in such
action.
Section 7.12. Contraband; Seizure; Forfeiture
A. All Alcoholic Beverages held, owned, or possessed within Tribal
lands by any person, commercial enterprise, or Licensee operating in
violation of this Ordinance are hereby declared to be contraband and
subject to seizure and forfeiture to the Tribe.
B. Seizure of contraband as defined in this Ordinance shall be done
by the Alcohol Regulatory Authority, with the assistance of law
enforcement upon request, and all such contraband seized shall be
inventoried and maintained by the Alcohol Regulatory Authority pending
a final order of the Alcohol Regulatory Authority. The owner of the
contraband seized may alternatively request that the contraband seized
be sold and the proceeds received there from be maintained by law
enforcement pending a final order of the Alcohol Regulatory Authority.
The proceeds from such a sale are subject to forfeiture in lieu of the
seized contraband.
C. Within ten (10) days following the seizure of such contraband, a
hearing shall be held by the Alcohol Regulatory Authority, at which
time the operator or owner of the contraband shall be given an
opportunity to present evidence in defense of his or her activities.
D. Notice of the hearing of at least five (5) days shall be given
to the person from whom the property was seized and the owner, if
known. If the owner is unknown, notice of the hearing shall be posted
at the place where the contraband was seized and at other public places
on Tribal lands. The notice shall describe the property seized, and the
time, place, and cause of seizure, and list the name and place of
residence, if known, of the person from whom the property was seized.
If upon the hearing, the evidence warrants, or, if no person appears as
a claimant, the Alcohol Regulatory Authority shall thereupon enter a
judgment of forfeiture, and all such contraband shall become the
property of the Kaw Nation. If upon the hearing the evidence does not
warrant forfeiture, the seized property shall be immediately returned
to the owner. The decision of forfeiture may be appealed in accordance
with the procedures as set forth in Sec. 4.15 and the appeal decision
of the Alcohol Regulatory Authority shall be considered a final
decision by the Kaw Nation. Further such seizures as described in this
section shall not exceed an amount of $5,000.00 as set forth in 25
U.S.C. 1302(7).
[As amended by Resolution 09-34 on March 20, 2009.]
Article VIII. Nuisance and Abatement
Section 8.1. Nuisance
Any room, house, building, vehicle, structure, premises, or other
location where Alcoholic Beverages are sold, manufactured, distributed,
bartered, exchanged, given away, furnished, or otherwise possessed or
disposed of in violation of this Ordinance, or of any other Tribal,
Federal, or State laws related to the transportation, possession,
distribution or sale of Alcoholic Beverages, and including all property
kept therein, or thereon, and used in, or in connection with such
violation is hereby declared to be a nuisance upon any second or
subsequent violation of the same.
Section 8.2. Action To Abate Nuisance
Upon a determination by the Alcohol Regulatory Authority that any
such place or activity is a nuisance under any provision of this
Ordinance, the Tribe or the Alcohol Regulatory Authority may bring a
civil action in the Tribal Court to abate and to perpetually enjoin any
such activity declared to be a nuisance. Such injunctive relief may
include a closure of any business or other use of the property for up
to one (1) year from the date of the such injunctive relief, or until
the owner, lessee or tenant shall: (i) Give bond of no less than
Twenty-Five Thousand dollars ($25,000) to be held by the Alcohol
Regulatory Authority and be conditioned that any further violation of
this Ordinance or other Tribal laws will result in the forfeiture of
such bond; and (ii) pay of all fines, costs and assessments against
him/her/it. If any condition of the bond is violated, the bond shall be
forfeit and the proceeds recoverable by the Alcohol Regulatory
Authority through an order of the Tribal Court. Any action taken under
this section shall be in addition to any other civil penalties provided
for in this Ordinance.
Article IX. Revenue and Reporting
Section 9.1. Use and Appropriation of Revenue Received
All fees, taxes, payments, fines, costs, assessments, and any other
revenues collected by the Alcohol Regulatory Authority under this
Ordinance, from whatever sources, shall be expended first for the
administrative costs incurred in the administration and enforcement of
this Ordinance. Any excess funds shall be subject to and available for
appropriation by the Alcohol Regulatory Authority to the Tribe for
essential governmental and social services related to drug and alcohol
education, counseling, treatment, and law enforcement.
Section 9.2. Audit
The Alcohol Regulatory Authority and its handling of all funds
collected under this Ordinance is subject to review and audit by the
Tribe as part of the annual financial audit of the Alcohol Regulatory
Authority.
Section 9.3. Reports
The Alcohol Regulatory Authority shall submit to the Executive
Council a quarterly report and accounting of all fees, taxes, payments,
fines, costs, assessments, and all other revenues collected and
expended pursuant to this Ordinance.
Article X. Miscellaneous
Section 10.1. Severability
If any provision or application of this Ordinance is found invalid
and or unenforceable by a court of competent jurisdiction, such
determination shall not be held to render ineffectual any of the
remaining provisions or applications of this Ordinance not specifically
identified thereby, or to render such provision to be inapplicable to
other persons or circumstances.
Section 10.2. Construction
Nothing in this Ordinance shall be construed to diminish or impair
in any way the rights or sovereign powers of the Kaw Nation.
Section 10.3. Effective Date
This Ordinance shall be effective upon: (i) Adoption by written
resolution of the Executive Council; (ii) certification by the
Secretary of the Interior; and (iii) publication in the Federal
Register. This Ordinance shall be recorded in the office of the Clerk
of the Tribal Court upon publication in the Federal Register.
[[Page 38227]]
Section 10.4. Prior Law Repealed
Any and all prior enactments of the Kaw Nation that are
inconsistent with the provisions of this Ordinance are hereby
rescinded.
Section 10.5. Amendment
This Ordinance may only be amended by written resolution approved
by the Executive Council.
[FR Doc. E9-18294 Filed 7-30-09; 8:45 am]
BILLING CODE 4310-4J-P
