7. Ordinance 1638 - Amending Chapter 3, Alcoholic Beverages, KMC - 1st ReadingA 1
Charles A. Harball Office of City Attorney
City Attorney 201 First Avenue Bast
P.O. Box 1997
Kalispell, MT 59903-1997
TO: Mayor Pamela B. Kennedy
and Kalispell City Council
FROM: Charles Harball, City Attorney
James H. Patrick, City Manager
Tel 406.758.7977
Fax 406.758.7979
charball @kaiispell.com
SUBJECT. Amendment to Kalispell City Code to Allow All Beverage
License to be Issued in Central Business B-4 zone without
Distance Restrictions to other Land Uses.
MEETING DATE: Monday, May 19, 2008 — Regular Council Meeting
BACKGROUND: A request was made to Council by Bill Goodman, a downtown
business owner, to consider amending the City ordinance to allow an All Beverage
Liquor License to be issued within the City B-2, B-3, B-4 and B-5 land use zones
without the distance restrictions of 600 feet from of any church, synagogue, other place
of worship or school as required by MCA 16-3-306. The state law at .MCA 16-3-309
gives an incorporated city such as Kalispell the authority to supplant MCA 16-3-306 by
establishing a jurisdictional area in which such restrictions may be modified or
eliminated. By ordinance 1355, in June, 2000, the City lifted this restriction for beer
and wine licenses within the above -described zoning districts.
RECoMMIEl TDATION: The B-4 Central Business zone comprises downtown
Kalispell which is essentially built out but in need of revitalization which may include
additional restaurants or other establishments that would benefit from a full liquor
license. Few churches -would be effected by an amendment limited to the B-4 Central
Business zone and those churches that are, currently exist with no distance restrictions
from beer and wine licensed establishments. City staff therefore recommends that the
City ordinance be amended to allow an all beverage liquor license to be issued with no
distance restrictions only in the B-4 Central Business zone.
]FISCAL EFFECTS: None.
Respectfully submitted,
Char e r alt City Attorney James H. cY Manger Patrik, City . g
AN ORDINANCE AMENDING ORDINANCE NO, 1355, CODIFIED AS KALISPELL
CITY CODE 3-18 SUPPLANTING THE PROVISIONS OF MCA 16-3-306
ELIMINATING THE DISTANCE REQUIREMENT BETWEEN AN ESTABLISHMENT
WITH A LIQUOR LICENSE .AND A. CHURCH, SYNAGOGUE, OTHER PLACE OF
WORSHIP OR A SCHOOL IN THE B-4 CENTRAL BUSINESS ZONE AND
DECLARING AN EPEECTIVE DATE.
WHEREAS, the state law at MCA 16-3-306 does not allow a liquor license to be issued to any
establishment within 600 feet of any church, synagogue, other place of worship or
school; and
WHEREAS, the state law at .MCA 16-3-309 gives an incorporated city such as Kalispell the
authority to supplant MCA 16-3-306 by establishing a jurisdictional area in which
such restrictions may be modified or eliminated; and
WHEREAS, the B-4 Central Business zone comprises downtown Kalispell which is essentially
built out but in need of revitalization which may include additional restaurants or
other establishments that would benefit from a full liquor license; and
WHEREAS, Kalispell City Code 3--1 S currently allows a restaurant beer and wine license
within the B-4 Central Business zone without any distance restrictions from other
land uses; and
WHEREAS, the Kalispell City Council finds that it is in the best interests of the City of
Kalispell to allow establishments within the B-4 Central Business zone to have
full liquor licenses without distance restrictions from other land uses.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL, MONTANA,
AS FOLLOWS:
SECTION L Kalispell City Code 3-1 8 shall be and is hereby amended by adding
paragraph I. to read as follows:
' I. with respect to All Beverage Licenses, as authorized by Montana Code
Annotated, Sections 16-4-et seq., the City supplants the provisions of subsection
(1) Section 16--3-306, of Montana Code Annotated, by eliminating entirely the
distance requirement between an All Beverage License and a church, synagogue,
other place of worship or school, so long as such licensee is located within a
Central Business, B-4 Zone."
SECTION II. This Ordinance shall be effective thirty (30) days from and after the date
of its final passage and approval.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR of
THE CITY of KALISPELL, MONTANA, THIS 2ND DAY OF JUNF, 2008.
Pamela B. Kennedy
Mayor
ATTEST:
Theresa White
City Clerk
16-3-306 Proximity to churches and schools restricted.
(1) Except as provided in subsections (2) through (4), no retail license may be issued
pursuant to this code to any business or enterprise whose premises are within 600 feet of
and on the same street as a building used exclusively as a church, synagogue, or other
place of worship or as a school other than a commercially operated or postsecondary
school. This distance shall be measured in a straight line from the center of the nearest
entrance of the place of worship or school to the nearest entrance of the licensee's
premises. This section is a limitation upon the department's licensing authority.
(2) However, the department may renew a license for any establishment located in
violation of this section if the licensee does not relocate his entrances any closer than the
existing entrances and if the establishment:
(a) was located on the site before the place of worship or school opened; or
(b) was located in a bona fide hotel, restaurant, or fraternal organization building at the
site since January 1, 1937.
(3) Subsection (1) does not apply to licenses for the sale of beers table wine, or both in the
original package for off premises consumption.
(4) Subsection (1) does not apply within the applicable jurisdiction of a local government
that has supplanted the provisions of subsection (1) as provided in 16-3-309.
16-3-309 Sales prohibited by ordinance.
(1) An incorporated city may enact an ordinance defining certain areas in its
incorporated limits where alcoholic beverages may or may not be sold.
(2) A county may enact an ordinance or resolution defining certain areas in the county,
not within the incorporated limits of a city, where alcoholic beverages may or may not be
sold.
(3) In enacting such an ordinance or resolution, the county or city may provide that the
provisions of 16-3-306(1) do not apply within the jurisdictional area of the ordinance or
resolution. If a county or city has supplanted the provisions of 16-3-306(1), upon request
of the department the governing body of the county or city must certify to the department
whether or not the person or individual identified in the request may lawfully sell
alcoholic beverages under the terms of the ordinance or resolution. The department is
bound by the determination set forth in the certification.
(4) No county or incorporated city may by ordinance restrict the number of licenses that
the department may issue.
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ORDINANCE NO. 1355
AN ORDINANCE AMENDING CHAPTER. 3, ALCOHOLIC BEVERAGES, KALISPELL
MUNICIPAL CODE BY AMENDING R.Q. 1947, §§ 774, 785, 789, 895, 897r
898; AND ORDINANCE NO.19 676 5 lr 813 S It 836 § 1r 848 SS 2r5r
874 § 1., AND 917 § 1, AND 3; REPEALING R.O. 1947, §§ 773, 776 AND
781. AND ORDINANCE NO.'s 840 SS 4r 6 AND 7; 874 § 2, 91.7 §§ 2, AND
4; AUTHORIZING THE CITY ATTORNEY TO RECODIFY CHAPTER 3, KALISPELL
MUNICIPAL CODE IN ACCORDANCE WITH THIS ORDINANCE; AND DECLARING AN
EFFECTIVE DATE*
BE IT ORDAINED EY THE CITY COUNCIL OF THE CITY OF KALISPELL,
MONTANA AS FOLLOWS:
$F,CTION I. That R.O. 1947, § 897, (6 3-1, Kalispell City
Code) is hereby amended to read, as follows:
ARTICLE 1. DEFINITIONS
"Al_gohol" means ethyl alcohol, also called ethanol, or the
hydrated oxide of ethyl.
"Alcoholic Beverage" means a compound produced and sold for
human consumption as a drink that contains more than 0.5 of
alcohol by volume.
"Beer" means a malt beverage containing not more than 7$ of
alcohol by weight.
"Brewer" means a person who produces malt liquor,
"Liquor" means an alcoholic beverage except beer or table
wine.
"Publi Place" means a place, building, or conveyance to which
the public has or may be permitted to have access and any
place of public resort_
"Wine" means an alcoholic beverage made from or containing the
normal alcoholic fermentation of the juice or sound, ripe
fruit or other agricultural products without addition or
abstraction, except as may occur in the usual cellar treatment
of clarifying and aging, and that contains more than 0.05 but
not more than 24%- of alcohol. Wine may be ameliorated to
correct natural deficiencies, sweetened, and fortified in
accordance with applicable federal regulations and the customs
and practices of the industry_ Other alcoholic beverages not
defined in this subsection but made in the manner of wine and
labeled and sold as wine in accordance with federal
regulations are also wine.
SECTION 11. That Ordinance No. 874, § 1 (§ 3-6, Kalispell
City Code) is hereby amended to read as
follows:
ARTICLE II. LICENSING AND REGULATION
RETAIL LICENSE -- FEE:
A) The City Finance Department may issue a license to sell
liquor, beer and wine (an all -beverage license) or a
beer, only, or beer and wine, or a restaurant beer and
wine license, at retail within the City pursuant to 16 - 4 -
420 and 16-4-503, MCA. Each licensee licensed for an all-
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beverage lzcense..0 ,4er this.. se. tion shall pay an annual
license fee of five eighths (5/8) of the amount charged
by the State for the license issued by the state to such
person or persons. Each licensee for a beer, only, or
beer and wine license under this section shall pay an
annual license fee of 1flQ%- of the amount charged by the
State for license issued by the State to such person or
persons.
B) A restaurant beer and wine license issued pursuant to §
16-4-420, MCA shall pay an annual license fee of 75t of
the State's fee.
C) Licenses issued or transferred pursuant to this Section
shall be prorated by the month, for the year, in which
the issuance or transfer takes place.
SECTION III. That Ordinance No. 840, § 2§ 3-7, Kalispell
City Code) is hereby amended to read as
follows*-
LICEN E--- PPLICA ON- CONTENTS- T U BIL T ; POSTING
ETC.:
Prior to the issuance of an all -beverage license, or a beer,
only, or beer and wine license, the applicant shall file with
the city Finance Department an application in writing
containing such information and statements relative to the
applicant and the premises where the liquor is to be sold as
may be provided on forms furnished by the City. A copy of the
all -beverage, or beer, only, or beer and wine, license issued
by the State shall be attached to the application.
Every such license issued shall set forth the name of the
person to whom issued, location of the premises where the
business is to be carried on and, if issued to a partnership,
the names of the persons conducting the business. Such license
shall be transferable under 16 -4 -204 , MCA and shall, at all
times, be posted in a conspicuous place on the premises where
the business is carried on. All licenses shall expire on June
30th at midnight of each year.
SECTION IV. That ordinance 840, 5 (9 3-15, Kalispell
City Code) is hereby amended to read as
follows:
FORM; DUTIES OF FINANCE DEPAaTNENT:
Upon filing of the application prescribed in the preceding
section, the Finance Department shall issue and deliver to the
applicant the appropriate license from the city for the
business and at the place described therein and in
substantially the same form as the license issued by the
state. The Finance Department shall keep each application on
file in the office with an index thereof, showing the date
filed, the name of the applicant, the character and location
of the business and referenced to the file number by which
such application may be found.
The Finance Department shall be charged with the collection of
the license fee herein provided for and shall prepare all
blanks for applications for license and keep all books of
account in connection therewith.
SECTION V. That ordinance No. 840, S 5 (5 3 -16, Kalispell
City Code) is hereby repealed.
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SECTION VI. That R.D. 1947, § 781 (§ 3-17, Kalispell City
Code) is hereby repealed.
SFSCTZ_ON VII . That Ordinance No. 840, § 7 (§ 3 -18 , Kalispell
City Code).is hereby repealed.
SECTION VIII . That R.O. 1947, § 789 (§ 3 --19, Kalispell City
Code) is hereby amended to read as follows
INSPECTIQN CONTROL AND R GULATIQN:
Any licensee under the provisions of this article shall be
subject to regulation, inspection, control and supervision
under the general police powers of the city.
SECTION 2X. That Ordinance No. 914, § 4 (§ 3-20, Kalispell
City Code) is hereby repealed.
SECTION X. That Ordinance No. 676, § l (§ 3-21, Kalispell
City Code) is hereby amended to read as
follows:
ARTICLE Ill. OFFENgiES AND PENALTIES
PERMITTED PURCHASESBY RETAILERS:
It shall be unlawful for any licensed beer retailer or club to
purchase or acquire beer from any one except a brewer or
wholesaler licensed under the provisions of state law, or to
have, possess or sell beer which has not been purchased from
a brewer or wholesaler licensed under state law.
SECTION XI. That Ordinance No. 8361 § l (§ 3-5.21
Kalispell City Code) is hereby amended to read
as follows:
CLOSING HOURS FOR LICENSED RETA ESTABLISHMENTS --SALE OF
ALCaHO I BEVERAGES DURING CLOSED HOURS UNLAWFUL - - LAWFUL
BUSINESS NEED NOT BE CLOSED:
(A) Except as provided in 16-3-305, MCA, all licensed
establishments wherein alcoholic beverages are sold,
offered for sale, or given away at retail shall be closed
each day between 2:00 A.M. and 8:00 A.M. During such
hours all persons except the alcoholic beverage licensee
and employees of such licensed establishment shall be
excluded from the licensed premises.
(B) During the hours when the licensed establishments where
alcoholic beverages are sold at retail are required by
this code to be closed, it shall be unlawful to sell,
offer for sale, give away, consume, or allow the
consumption of alcoholic beverages. When an establishment
licensed to sell alcoholic beverages is operated in
conjunction with a hotel, restaurant, bus depot, railway
terminal, grocery stare, pharmacy, or other lawful
business other than that of the' sale of alcoholic
beverages, then such other lawful business need not be
closed.
SECTION X11. That Ordinance No. 917, § 2 (§ 3--5.1,
Kalispell City Code) is hereby repealed.
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SECTION_ XIII. That R.Q.: 1947, § .895■ (§ 3-3, Kalispell City
Code) is hereby amended to read as follows:
PREN ES ERE -AL90HOLIC BWE GES ILLEGALLY SOL DECLARED
PuB eIC NUISANCE -
Any room, house, building, boat, vehicle, structure, or place
where alcoholic beverages are knowingly manufactured, sold, or
bartered in violation of this code or 45-8-111, MCA and all
property knowingly kept and used in maintaining the same is
hereby declared to be a public nuisance, and any person who
maintains such a nuisance shall be guilty of a misdemeanor and
upon conviction shall be punished as provided in § 1-91
Kalispell City Code.
SECTION XIV. That R.O. 1947, § 898, (§ 3-4, Kalispell City
Code) is hereby amended to read as follows:
INUtNCTIVE ACTIONS:
An action to enjoin any nuisance defined in this code may be
brought in the name of the City by the City Attorney, under 9
16-6--313, MCA.
SECTjo Xv. That R.O. 1947, 9 773, 3-8, Kalispell City
Code) is hereby repealed.
SECTTLQN RV'I . That Ordinance No. 917 § 1 ( § 3 -- 5 , Kalispell
City Code) is hereby amended to read as
follows:
POSSESSION BY PERSONS UNDER TWEITrY ONE
It shall be unlawful for any person who has not reached the
age of twenty one years to have in his possession an alcoholic
beverage, provided, however, that a person does not commit
this offense when in the course of his employment it is
necessary to possess alcoholic beverages.
SECTION KVI I . That Ordinance No. 917, § 3 , (§ 3-9, Kalispell
City Code) is hereby amended to read as
follows:
SALES TO CERTAIN PERSONS PROHIBITED:
It is unlawful for any licensee, his or her employee or
employees, or any other person to sell, deliver, or give away
or cause or permit to be sold, delivered or given away any
alcoholic beverage to:
(A) any person under 21 years of age,
(B) any intoxicated person or any person actually,
apparently, or obviously intoxicated.
SECTION XVIII . That Ordinance No. 813, § 1 3 -10. 1,
Kalispell City Code) is hereby amended to read
as follows:
CONSUMPTION IN STREET, ALLEY, OR PUBLIC PLACE PROHIBITED:
A) Except as otherwise provided in this code, no person
shall sell, serve, dispense, consume or possess an open
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container of any alcoholic beverage in or upon any
building or other property owned or occupied by the City
or upon any street or sidewalk. Notwithstanding the
foregoing, this Ordinance shall not be construed to
prohibit the legal consumption of alcoholic beverages at
the City -owned Courtyard Apartments nor shall this
Ordinance be construed to prohibit the legal sale,
service, consumption or possession of alcoholic beverages
on the grounds of the Buffalo Hill Golf Club.
B ) Persons wishing to use the Hockaday Center for the Arts,
the Conrad Mansion, the Kalispell Chamber of Commerce
building, the Kalispell City Airport, or the Central
School Museum for an event which involves the consumption
or possession of, but not the sale of, beer and/or wine
shall first provide written notice of the event to the
City Manager or his designee, describing the date, place,
and time for any such event. All such notifications
shall be submitted to the City Manager not less than
three ( 3 ) days prior to the event.
C ) Persons wishing to use the Hockaday Center for the Arts,
the Conrad Mansion, or the Central School Museum for a
function which involves the sale of beer and/or wine must
first apply for and obtain a temporary sales permit from
the City of Kalispell. In addition, the applicant shall
comply with all statutes and regulations of the Montana
Department of Revenue governing sales of beer and/or
wine. Applications shall be filed with the City Clerk.
D) The City Manager or, in his absence, his designee, may
grant a. temporary permit allowing the sale of beer and/or
wine, if, considering the type of function, the Manager
or his designee finds that:
17 The time, location and duration of the function are
not likely to significantly interfere with public
services;
2) The number and concentration of participants at the
function are not likely to result in crowds
exceeding limitations in the City fire regulations,
or other significant inconvenience to the residents
of the surrounding neighborhoods;
3) Underage persons will not obtain alcoholic
beverages served at the function, and the
precautions proposed are likely to secure and
supervise the area and the participants during the
function;
4 ) The applicant agrees to limit the consumption under
the permit to the hours between, eleven A.M. and
eleven P.M.;.
5} The applicant agrees to be personally responsible
for cleaning, trash disposal or repairs necessary
as a result of the event for which the permit was
issued;
f} The applicant agrees to provide security for the
permitted function commensurate with the
recommendations of the Chief of Police;
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7) The applicant agrees to indemnify and hold harmless
the City,. its employees and agents for all
liability claims arising out of the event.
E) The City Manager shall require the sponsor of any event
involving the consumption or possession of alcoholic
beverages or the applicant for a temporary beer and/or
wine sales permit to obtain liquor/host, liquor and
general liability insurance in such amount deemed
necessary to protect the City' s interest, and to name the
City as an additional insured on any policies.
F) ,1) The City Manager may deny a permit on the grounds
that approval would be detrimental to the public
safety, health, morals, order or welfare by reason
of the nature of the event, the likelihood that the
event would create a public nuisance or result in
the consumption of alcoholic beverages by minors,
its location within the community, or the failure
of the applicant to conduct a past event in
compliance with applicable laws and regulations.
2) The request may also be denied if another event has
previously been scheduled for that location on the
same day and time, or if the event would
unreasonably interfere with normal activities and
customary and general use and enjoyment of the
facility.
G) Approval or denial of the permit shall be made by the
City Manager or, in his absence, his designee, not later
than ten (10) business days following submission of the
completed application to the City Clerk.
SECTION Xix. That there is hereby enacted a new Section
which reads as follows:
With respect to restaurant beer and wine (RBW) licenses, as
authorized by Sections 16 -w 4 -- 4 2 0 through 16 -- 4 - 4 2 3 , MCA, only,
the City of Kalispell supplants the provisions of subsection
(1) of Section 16-3 -306, MCA, by eliminating entirely any
distance requirement between a restaurant beer and wine ( RBW )
licensee and a church, synagogue, other place of worship or a
school, so long as such licensee is located within General
Business, B - 2 ; Community Business, B - 3 ; Central Business, B - 4 i
or Industrial Commercial, B-5 zone.
SECTION XIX. That R.G. 1947, § 774 (§ 3-11, Kalispell City
Code) is hereby amended to read as follows:
PENALTIES:
Any person violating any of the provisions of this article
shall, upon conviction thereof, be punished as provided in
Section 1-9, Kalispell City Code.
SECTION.K That R.D. 1947, § 785 (§ 3-24, Kalispell City
Code) is hereby amended to read as follows:
ICIPAL COURT TO REPORT COO CTIC S :
In the case of conviction of any licensee hereunder of any
violation of this Chapter in the Municipal Court, the
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Municipal Judge shall within ten (10) days thereafter, whether
or not an appeal has been taken from the judgment of
conviction, transmit to the Montana Department of Revenue, a
certified copy of the record of conviction.
SECTION XXI. That R.O. 1947, 776 3-12, Kalispell City
Code) is hereby repealed.
SECTION XXII. That Ordinance No. 874, § 2 (S 3-13, Kalispell
City Code) is hereby repealed.
SECTION XXII2 . That Ordinance No. 840, § 4 (§ 3 -14, Kalispell
City Code) is hereby repealed.
SECTION XXIZT. That the City Attorney is hereby authorized
and directed to recodify Chapter 3, Alcoholic
Beverages, Kalispell Municipal Code in
accordance with this Ordinance.
SECTION XXV. This Ordinance shall take effect 30 days from
and after its passage by the City Council.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF KALISPELL
AND SIGNED BY THE MAYOR THIS 5TH DAY OF JUNE, 2000'.
ATTEST:
Theresa White
City Clerk
wn,.E.Baharski _
Wm. E . Boharski
Mayor