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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. 120 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- 121 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. 122 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. 123 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 124 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; 125 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 126 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