A number of you have asked us for an update on the status of our ABC protest;
Here are the latest replies filed by Patrick Webb on behalf of the Protestants he represents. We anticipate the scheduling of a hearing with the new Administrative Law Judge (ALJ) Adam Berg, sometime shortly. But there are no guarantee that we will have a hearing. It is possible, as disappointing as it might be, that ALJ Berg could decide whether to take “official and judicial notice” of our 11 documents without a hearing. Bonnington/Applicants have asked to file “closing briefs,” and have waived further hearing, if official notice of our documents is not granted.
As you will see from the replies, they have introduced nothing that disputes the fact that the Secretary of Interior has never made an Indian lands decision that the land would qualify for gambling. Nor could a Secretary of Interior have lawfully made such a decision, since the land was never taken into trust by the Secretary for a tribe under federal jurisdiction in 1934, and therefore could not have ever lawfully proclaimed the land to be a reservation. Therefore, if the law is followed, the ALJ will find that the Applicants have not met their burden of proof to prove that they are not operating a public gambling nuisance on the land in question, and therefore are precluded from obtaining a liquor license.
We have encouraged the ALJ to merely find that the Applicants haven’t met their burden of proof, and therefore he is by law compelled to deny their application now. We have pointed out that they can always come back next year, and try again. The Business and Professions Code only allows one liquor license application per site, per year. We hope keeping the issue to whether they met their burden of proof will serve to avoid the ALJ thinking he has to make an Indian lands decision. All he has to decide is the fact that the Secretary, (who is the only federal official authorized to make such a decision) has not made such a decision, and we should prevail.
Please feel free to pass this information along. The replies are now public documents on file with the Office of Administrative Hearings here in San Diego.
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