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68th Legislature 2023 SB 59.1
1 SENATE BILL NO. 59
2 INTRODUCED BY S. FITZPATRICK
3 BY REQUEST OF THE DEPARTMENT OF REVENUE
4
5 A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING ALCOHOLIC BEVERAGE LAWS;
6 REVISING LAWS RELATING TO PUBLIC CONVENIENCE AND NECESSITY; PROVIDING THAT PUBLIC
7 CONVENIENCE AND NECESSITY CONSIDERATIONS ARE LIMITED TO CONSIDERATION OF THE
8 ALCOHOLIC BEVERAGE; REVISING LAWS RELATED TO DEPARTMENT REQUESTS FOR ADDITIONAL
9 LICENSING INFORMATION; REVISING LAWS RELATED TO TABLE WINE; REVISING LAWS RELATING
10 TO SPECIAL PERMITS; AND AMENDING SECTIONS 16-3-103, 16-4-203, 16-4-207, AND 16-4-301, MCA.”
11
12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
13
14 Section 1. Section 16-3-103, MCA, is amended to read:
15 "16-3-103. Unlawful sales solicitation or advertising -- exceptions. (1) A person within the state
16 may not:
17 (a) canvass for, receive, take, or solicit orders for the purchase or sale of any liquor or act as agent
18 or intermediary for the sale or purchase of any liquor or be represented as an agent or intermediary unless
19 permitted to do so under rules that are promulgated by the department to govern the activities;
20 (b) canvass for or solicit orders for the purchase or sale of any beer or malt liquor except in the
21 case of beer proposed to be sold to beer licensees duly authorized to sell beer under the provisions of this
22 code;
23 (c) exhibit, publish, or display or permit to be exhibited, published, or displayed any form of
24 advertisement or any other announcement, publication, or price list of or concerning liquor or where or from
25 whom the same may be had, obtained, or purchased unless permitted to do so by the rules of the department
26 and then only in accordance with the rules.
27 (2) This section does not apply to:
28 (a) the department, any act of the department, any agency liquor store;
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1 (b) the receipt or transmission of a telegram or letter by any telegraph agent or operator or post-
2 office employee in the ordinary course of employment as the agent, operator, or employee;
3 (c) the sale and serving of beer and table wine in the grandstand and bleacher area of a county
4 fairground or public sports arena under a special permit issued pursuant to 16-4-301 or a catering endorsement
5 issued pursuant to 16-4-111 or 16-4-204; or
6 (d) the sale of alcohol at a sporting event conducted at a Montana university as provided in 16-4-
7 112."
8
9 Section 2. Section 16-4-203, MCA, is amended to read:
10 "16-4-203. Determination of public convenience and necessity. (1) An original license issued
11 pursuant to 16-4-104, 16-4-201, 16-4-208, or 16-4-213 or the transfer of ownership or location of an on-
12 premises retail license a license issued pursuant to 16-4-104, 16-4-201, 16-4-208, or 16-4-213 may be
13 approved if the department does not receive the minimum number of protests required for a public convenience
14 and necessity determination pursuant to 16-4-207, in which case the application must be regarded as a prima
15 facie showing of public convenience and necessity and no further determination of public convenience and
16 necessity is allowed.
17 (2) (a) If the department receives at least the minimum number of protests required for a public
18 convenience and necessity determination, as provided in 16-4-207, an application must be approved when
19 evidence indicates that the issuance of an original license or transfer of location will materially promote the
20 public's ability to engage in the licensed activity.
21 (b) The issuance of an original license or a transfer of location will materially promote the public's
22 ability to engage in the licensed activity if:
23 (i) the applicant's history and experience demonstrate the capacity to operate the proposed
24 license in a lawful manner;
25 (ii) the approval of the application for the premises at the proposed location is consistent with the
26 public's demand or probable demand for the licensed activity that presently exists or is reasonably expected to
27 exist within the next 5 years in the quota area where the proposed premises is located and in quota areas
28 adjacent to the quota area where the proposed premises is located;
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1 (iii) the approval of the application for the premises at the proposed location contributes to the
2 public's ability to participate in the licensed activity throughout the quota area where the proposed premises is
3 located and quota areas adjacent to the quota area where the proposed premises is located;
4 (iv) the approval of the application for the premises at the proposed location is consistent with
5 adopted or pending planning, annexation, and zoning ordinances of local governments that confer or will confer
6 jurisdiction over business and developments such as the proposed license in the quota area where the
7 proposed premises is located and in quota areas adjacent to the quota area where the proposed premises is
8 located.
9 (3) Protests are limited to the operation of the alcoholic beverage license only. Protests related to
10 gambling or other matters will not be considered by the department.
11 (3)(4) When determining whether or not an application is justified by public convenience and
12 necessity, the department may:
13 (a) receive evidence at the public hearing specified in 16-4-207 only from the applicant, any
14 protestors whose protests the department has accepted pursuant to 16-4-207, and any other person
15 summoned or called by either a protestor or applicant;
16 (b) find that the application is justified by public convenience and necessity if the applicant has
17 provided substantial credible evidence as provided for in this subsection (3) (4) that shows that the
18 department's approval of the application will materially promote the public's ability to engage in the licensed
19 activity. The substantial credible evidence required must include a consideration of each of the components of
20 materially promoting the public's ability to engage in the licensed activity as provided in subsection (2)(b).
21 (4)(5) For the purposes of this section, the following definitions apply:
22 (a) "Confer or will confer jurisdiction" means the power or authority that a local government or an
23 appointed subsidiary of a local government has or may obtain within 1 year from the date of the hearing to
24 consider and adopt planning, annexation, or zoning ordinances.
25 (b) "Licensed activity" means the purchase of alcoholic beverages for on-premises consumption in
26 a business licensed to sell alcoholic beverages at retail for on-premises consumption.
27 (c) "Pending planning, annexation, and zoning ordinances" means the ordinances of a local
28 government or an appointed subsidiary of a local government that were publicly considered within the year
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1 preceding the date of the hearing or are presently being considered."
2
3 Section 3. Section 16-4-207, MCA, is amended to read:
4 "16-4-207. Notice of application -- investigation -- publication -- protest. (1) (a) When an
5 application has been filed with the department for a license to sell alcoholic beverages at retail issued pursuant
6 to 16-4-104, 16-4-201, 16-4-208, or 16-4-213 or to transfer the ownership or location of a retail license issued
7 pursuant to 16-4-104, 16-4-201, 16-4-208, or 16-4-213, the department shall review the application for
8 completeness and, based upon on review of the application and any other information supplied to the
9 department, determine whether the applicant or the premises to be licensed meets criteria provided by law. The
10 department may make one request requests for additional information necessary to complete the application.
11 The application is considered complete when the applicant furnishes the application information requested by
12 the department. When the application is complete, the department of justice shall investigate the application as
13 provided in 16-4-402. When the department determines that an application for a license under this code is
14 complete, the department shall publish in a newspaper of general circulation in the city, town, or county from
15 which the application comes a notice that the applicant has made application for a retail on-premises license or
16 a transfer of location and that protests may be made against the approval of the application by residents of the
17 county from which the application comes, residents of adjoining Montana counties, or residents of adjoining
18 counties in another state if the criteria in subsection (4)(d) are met. Protests must be mailed to the department
19 within 10 days after the final notice is published. Notice of application for a new license must be published once
20 a week for 4 consecutive weeks. Notice of application for transfer of ownership or location of a license must be
21 published once a week for 2 consecutive weeks.
22 (b) (i) Notice may be substantially in the following form for an applicant without a premises:
23 NOTICE OF APPLICATION FOR RETAIL
24 ALL-BEVERAGES LICENSE
25 Notice is given that on the........... day of........, 20..., one (name of applicant) filed an application for a
26 retail all-beverages license with the Montana department of revenue to be used within the (quota area).
27 Residents of......... counties may protest against the approval of the application. Each protestor is required to
28 mail a letter that contains in legible print the protestor's full name, mailing address, and street address. Each
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1 letter must be signed by the protestor. A protest petition bearing the names and signatures of persons opposing
2 the approval of an application may not be considered as a protest. Protests may be mailed to........, department
3 of revenue, Helena, Montana, on or before the........ day of........., 20......
4 Dated...........................
5 Signed
6 ..............................
7 (ii) Notice may be substantially in the following form for a premises only:
8 NOTICE OF APPLICATION FOR RETAIL
9 ALL-BEVERAGES LICENSE
10 Notice is given that on the........... day of........, 20..., one (name of applicant) filed an application for a
11 retail all-beverages license with the Montana department of revenue to be used at (describe location of
12 premises where beverages are to be sold). Residents of......... counties may protest against the approval of the
13 premises location only as notice of protest for the applicant has already occurred. Each protestor is required to
14 mail a letter that contains in legible print the protestor's full name, mailing address, and street address. Each
15 letter must be signed by the protestor. A protest petition bearing the names and signatures of persons opposing
16 the approval of an application may not be considered as a protest. Protests may be mailed to........, department
17 of revenue, Helena, Montana, on or before the........ day of........., 20......
18 Dated...........................
19 Signed
20 ..............................
21 (iii) Notice may be substantially in the following form for an applicant and premises applied for at
22 the same time or if the location of the license will be floated out of the quota area it was initially noticed in:
23 NOTICE OF APPLICATION FOR RETAIL
24 ALL-BEVERAGES LICENSE
25 Notice is given that on the........... day of........, 20..., one (name of applicant) filed an application for a
26 retail all-beverages license with the Montana department of revenue to be used at (describe location of
27 premises where beverages are to be sold). Residents of......... counties may protest against the approval of the
28 application. Each protestor is required to mail a letter that contains in legible print the protestor's full name,
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1 mailing address, and street address. Each letter must be signed by the protestor. A protest petition bearing the
2 names and signatures of persons opposing the approval of an application may not be considered as a protest.
3 Protests may be mailed to........, department of revenue, Helena, Montana, on or before the........ day of.........,
4 20......
5 Dated...........................
6 Signed
7 ..............................
8 (2) Each applicant shall, at the time of filing an application, pay to the department an amount
9 sufficient to cover the costs of publishing the notice. There may be two charges if the applicant applies for
10 licensure prior to applying for a premises under 16-4-417.
11 (3) (a) If the department receives no written protests, the department may approve the application
12 without holding a public hearing.
13 (b) A response to a notice of opportunity to protest an application may not be considered unless
14 the response is a letter satisfying all the requirements contained in the notice in subsection (1).
15 (c) If the department receives sufficient written protests that satisfy the requirements in subsection
16 (1) against the approval of the application, the department shall hold a public hearing as provided in subsection
17 (4).
18 (4) (a) If the department receives at least one protest but less than the number of protests required
19 for a public convenience and necessity determination as specified in subsection (4)(c), the department shall
20 schedule a public hearing to be held in Helena, Montana, to determine whether the protest presents sufficient
21 cause to deny the application based on the qualifications of the applicant as provided in 16-4-401 or on the
22 grounds for denial of an application provided for in 16-4-405, exclusive of public convenience and necessity.
23 The hearing must be governed by the provisions of Title 2, chapter 4, part 6.
24 (b) If the department receives the number of protests required for a public convenience and
25 necessity determination as specified in subsection (4)(c) and the application is for an original license or for a
26 transfer of location, the department shall schedule a public hearing to be held in the county of the proposed
27 location of the license to determine whether the protest presents sufficient cause to deny the application based
28 on the qualifications of the applicant as provided in 16-4-401 or on the grounds for denial of an application
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1 provided for in 16-4-405 including public convenience and necessity. The hearing must be governed by the
2 provisions of Title 2, chapter 4, part 6.
3 (c) The minimum number of protests necessary to initiate a public hearing to determine whether an
4 application satisfies the requirements for public convenience and necessity, as specified in 16-4-203, for the
5 proposed premises located within a quota area described in 16-4-201 must be 25% of the quota for all-
6 beverages licenses determined for that quota area according to 16-4-201(1), (2), and (9) but in no case less
7 than two. The minimum number of protests determined in this manner will apply only to applications for either
8 on-premises consumption beer or all-beverages licenses.
9 (d) A resident of a county in another state that adjoins the county in Montana from which an
10 application comes may protest an application only if the county or state of residence of the person has certified
11 to the department that a similarly situated Montana resident would be able to make formal protest of an
12 alcoholic beverage license appli