Senate Bill No. 118

Introduced By crismore

By Request of the Department of Public Health and Human Services

A Bill for an Act entitled: "An Act generally revising the laws relating to public accommodations, campgrounds, and trailer courts; providing definitions; clarifying that a bed and breakfast is a public accommodation; authorizing the department of public health and human services to adopt rules; providing for expiration and cancellation of licenses; providing for enforcement methods and civil and administrative penalties; amending sections 50-51-102, 50-51-103, 50-51-201, 50-51-207, 50-51-212, 50-51-401, 50-52-102, 50-52-107, and 50-52-203, MCA; and providing effective dates and a retroactive applicability date."

Be it enacted by the Legislature of the State of Montana:

Section 1. Section 50-51-102, MCA, is amended to read:

"50-51-102. Definitions. Unless the context requires otherwise, in this chapter, the following definitions apply:

(1) "Bed and breakfast" means a private, owner-occupied residence that is primarily used as a private residence but in which:

(a) one to six guest rooms are made available to transient guests;

(b) breakfast is the only meal served and is included in the charge for a guest room; and

~~(1)~~(2) "Department" means the department of public health and human services provided for in 2-15-2201.

~~(2)~~(3) "Establishment" means a bed and breakfast, hotel, motel, roominghouse, boardinghouse, or tourist home.

~~(3)~~(4) "Hotel" or "motel" includes:

(a) a building or structure kept, used, maintained as, advertised as, or held out to the public to be a hotel, motel, inn, motor court, tourist court, or public lodginghouse~~, or~~;

(b) a place where sleeping accommodations are furnished for a fee to transient guests, with or without meals; or

(c) an establishment that is not a bed and breakfast and that is primarily used as a private residence but in which guest rooms are made available to transient guests.

~~(4)~~(5) "Person" includes an individual, partnership, corporation, association, county, municipality, cooperative group, or other entity engaged in the business of operating, owning, or offering the services of a bed and breakfast, hotel, motel, boardinghouse, tourist home, or roominghouse.

~~(5)~~(6) "Roominghouse" or "boardinghouse" means buildings in which separate sleeping rooms are rented that provide sleeping accommodations for three or more persons on a weekly, semimonthly, monthly, or permanent basis, whether or not meals or central kitchens are provided but without separated cooking facilities or kitchens within each room, and whose occupants do not need professional nursing or personal-care services provided by the facility.

~~(6)~~(7) "Tourist home" means an establishment or premises where sleeping accommodations are furnished to transient guests for hire or rent on a daily or weekly rental basis in a private home when the accommodations are offered for hire or rent for the use of the traveling public. a private home or condominium that is not occupied by an owner or manager and that is rented, leased, or furnished in its entirety to transient guests on a daily or weekly basis.

~~(7)~~(8) "Transient guest" means a guest for only a brief stay, such as the traveling public."

Section 2. Section 50-51-103, MCA, is amended to read:

"50-51-103. Department authorized to adopt rules. The department may adopt ~~and enforce~~ rules ~~to preserve~~ governing the construction and operation of bed and breakfasts, hotels, motels, roominghouses, boardinghouses, and tourist homes to protect the public health and safety. These rules shall relate to construction, furnishings, housekeeping, personnel, sanitary facilities and controls, water supply, sewerage and sewage disposal system, refuse collection and disposal, registration and supervision, and fire and life safety code. The rules may include rules to:

(1) ensure that establishments have safe and sanitary facilities and systems, including drinking water, sewage disposal, and solid waste disposal systems;

(2) regulate services provided by establishments, including laundry, food, and housekeeping services;

(3) provide for review and approval of plans and specifications for establishments;

(4) prevent injury and the spread of disease or illness in establishments;

(5) ensure that establishments are operated and maintained in a safe and sanitary manner;

(6) implement staggered license expiration dates;

(7) address licensing of establishments under this chapter;

(8) provide for reimbursing local governments for inspections and enforcement of this chapter; and

(9) address other subjects necessary to implement the provisions of this chapter."

Section 3. Section 50-51-201, MCA, is amended to read:

"50-51-201. License required. (1) ~~Each year, every~~ A person engaged in the business of conducting or operating a bed and breakfast, hotel, motel, tourist home, boardinghouse, or roominghouse shall procure a license issued by the department.

(2) A separate license is required for each establishment; however, when more than one of each type of establishment is operated on the same premises and under the same management, only one license is required that must enumerate on the certificate the types of establishments licensed.

(3) Before a license may be issued by the department, it must be validated by the local health officer or, if there is no local health officer, the sanitarian, in the county where the establishment is located."

Section 4. Section 50-51-207, MCA, is amended to read:

"50-51-207. Expiration date of license. (1) ~~Each~~ Except as provided in subsection (2), each license ~~shall expire~~ expires on December 31 following its date of issue unless canceled for cause.

(2) The department may amend or issue licenses to provide for staggered expiration dates. The department may provide for initial license terms of greater than 12 months but no more than 23 months in adopting staggered expiration dates. Thereafter, licenses expire annually. License fees for the license term implementing staggered license terms will be prorated by the department."

Section 5. Section 50-51-212, MCA, is amended to read:

"50-51-212. Cancellation of license for multiple-type establishment -- definition. (1) When a multiple-type establishment is licensed by the department, the denial or cancellation of the license may affect the entire establishment or only a portion of it as determined by the department (.

(2) For the purposes of this section, ~~a multiple-type establishment~~ "multiple-type establishment" includes two or more of the following: bed and breakfast, hotel, motel, or tourist home)."

Section 6. Section 50-51-401, MCA, is amended to read:

"50-51-401. Civil penalties -- ~~injunctions~~ other enforcement not barred. (1) An establishment that violates this chapter or rules adopted by the department pursuant to this chapter is subject to a civil penalty not to exceed $500 for each violation. Each day of violation is a separate violation for the purposes of this section.

(2) ~~Civil~~ A civil action to impose penalties, as provided under this section, does not bar administrative enforcement under [section 7], administrative penalties under [section 8], or injunctions to enforce compliance with this chapter or to enforce compliance with a rule adopted by the department pursuant to this chapter."

NEW SECTION. Section 7. Administrative enforcement -- notice of violation -- hearing. (1) If the department believes that a violation of this chapter, a rule adopted pursuant to this chapter, an order issued pursuant to this chapter, or a condition or limitation imposed by a license issued pursuant to this chapter has occurred, it may serve a written notice of the violation on the alleged violator or the violator's agent personally or by certified mail. The notice must specify the statute, rule, order, or license condition or limitation alleged to have been violated and the facts alleged to constitute the violation. The notice may include an order to take necessary corrective action, including ceasing the violation within a period of time stated in the order. The order becomes final unless, within 10 days after the notice is received, the person named as the respondent in the order requests in writing a hearing before the department. Until issuance of a contrary decision by the department, an order issued pursuant to this section remains effective and enforceable.

(2) A hearing requested by the respondent must be held in accordance with the contested case provisions of the Montana Administrative Procedure Act, as provided in Title 2, chapter 4, part 6. If, after a hearing, the department finds that a violation has occurred, the department shall issue an appropriate order for the prevention, abatement, or control of the violation involved or the taking of other corrective action. An order issued as part of a notice of violation or after a hearing may prescribe the date by which the violation must cease and the time limits for a particular action in preventing, abating, or controlling the violation. If, after a hearing, the department finds that a violation has not occurred or is not occurring, the department shall declare the order void.

(3) Instead of or in addition to issuing the order provided in subsections (1) and (2), the department may take action under another applicable provision of this chapter.

(4) Section 50-51-210 does not apply to an action taken by the department pursuant to this section.

(5) Before taking an action pursuant to this section, the department may attempt to obtain voluntary compliance through use of a warning, a conference, or other appropriate means.

NEW SECTION. Section 8. Administrative penalties -- appeals -- venue for hearing. (1) An establishment that violates an order issued by the department pursuant to [section 7] may be assessed and ordered by the department to pay an administrative penalty not to exceed $200 for each violation. Each day of violation constitutes a separate violation. The department may assess the penalty by an order issued pursuant to this section or may suspend all or a part of the administrative penalty assessed under this section if the violation that caused the assessment of the penalty is corrected within a specified time. Assessment of an administrative penalty under this section may be made in conjunction with an order issued pursuant to [section 7(2)] after a hearing as provided in [section 7(2)].

(2) When the department assesses an administrative penalty under this section, it must have written notice served personally or by certified mail on the alleged violator or the violator's agent. For purposes of this chapter, service by mail is complete on the day of receipt. The notice must state:

(a) the order alleged to have been violated;

(b) the facts alleged to constitute the violation;

(d) the amount, if any, of the penalty to be suspended upon correction of the condition that caused the assessment of the penalty;

(e) the nature of any corrective action that the department requires if a portion of the penalty is to be suspended;

(f) the time within which the corrective action is to be taken or the time within which the administrative penalty is to be paid;

(g) the right to a hearing, as provided in this section, and the time, place, and nature of any hearing; and

(h) that the hearing, provided in this section may be waived or that the alleged violator may proceed by informal disposition pursuant to 2-4-603.

(3) The department shall provide the respondent who is assessed a penalty under this section with an opportunity for a hearing to either contest the alleged violation or request mitigation of the penalty. The contested case provisions of the Montana Administrative Procedure Act, provided for in Title 2, chapter 4, part 6, apply to a hearing conducted under this section. If a hearing is held under this section, it must be held in Lewis and Clark County or the county in which the alleged violation occurred.

(4) In determining appropriate penalties for violations, the department shall consider the gravity of the violations and the potential for significant harm to the public health or safety. In determining the appropriate amount of penalty, if any, to be suspended upon correction of the condition that caused the penalty assessment, the department shall consider the cooperation and the degree of care exercised by the respondent who is assessed the penalty, how expeditiously the violation was corrected, and whether significant harm resulted to the public health or safety from the violation.

(5) If the respondent fails to pay all or part of an administrative penalty assessed pursuant to this section, the department may take action in district court to recover the amount of the penalty that is unpaid and any additional amounts assessed or sought under this chapter.

(6) Action taken by the department pursuant to this section does not bar other action under this chapter or any other remedy available to the department for violations of applicable laws or rules adopted pursuant to those laws.

(7) Administrative penalties collected under this section must be deposited in the special revenue account provided for in 50-51-110.

Section 9. Section 50-52-102, MCA, is amended to read:

"50-52-102. Department to adopt rules. The department ~~shall~~ may adopt rules for constructing and operating campgrounds, trailer courts, work camps, and youth camps to ~~insure sanitation and~~ protect the public health and safety. The rules may include rules to:

(1) ensure that establishments have safe and sanitary facilities and systems, including drinking water, sewage disposal, and solid waste disposal systems;

(2) regulate service buildings or facilities associated with any activity regulated by this chapter, including laundry and food service facilities;

(3) provide for review and approval of plans and specifications for establishments;

(4) address nuisances that could cause the spread of disease or illness;

(5) implement staggered license expiration dates;

(6) address licensing of establishments under this chapter and operator requirements;

(7) provide for reimbursing local governments for inspections and enforcement of this chapter; and

(8) address any other subject necessary to implement the provisions of this chapter."

Section 10. Section 50-52-107, MCA, is amended to read:

"50-52-107. Civil penalties -- ~~injunctions~~ other enforcement not barred. (1) An establishment that violates this chapter or rules adopted by the department pursuant to this chapter is subject to a civil penalty not to exceed $500 for each violation. Each day of violation is a separate violation for purposes of this section.

(2) ~~Civil~~ A civil action to impose penalties, as provided under this section, does not bar administrative enforcement under [section 13], administrative penalties under [section 14], or injunctions to enforce compliance with this chapter or to enforce compliance with a rule adopted by the department pursuant to this chapter."

Section 11. Section 50-52-203, MCA, is amended to read:

"50-52-203. Expiration date of license. ~~Licenses~~ (1) Except as provided in subsection (2), licenses expire on December 31 of the year in which they are issued unless canceled for cause.

NEW SECTION. Section 12. Right to renewal. (1) The department shall renew licenses as a matter of right, unless conditions exist that are grounds for cancellation or denial of a license.

(2) Renewal may be obtained annually by paying the required annual license fee.

NEW SECTION. Section 13. Administrative enforcement -- notice of violation -- hearing. (1) If the department believes that a violation of this chapter, a rule adopted pursuant to this chapter, an order issued pursuant to this chapter, or a condition or limitation imposed by a license issued pursuant to this chapter has occurred, it may serve a written notice of the violation on the alleged violator or the violator's agent personally or by certified mail. The notice must specify the statute, rule, order, or license condition or limitation alleged to have been violated and the facts alleged to constitute the violation. The notice may include an order to take necessary corrective action, including ceasing the violation within a period of time stated in the order. The order becomes final unless, within 10 days after the notice is received, the person named as the respondent in the order requests in writing a hearing before the department. Until issuance of a contrary decision by the department, an order issued pursuant to this section remains effective and enforceable.

(2) A hearing requested by the respondent must be held in accordance with the contested case provisions of the Montana Administrative Procedure Act. If, after a hearing, the department finds that a violation has occurred, the department shall issue an appropriate order for the prevention, abatement, or control of the violation involved or the taking of other corrective action. An order issued as part of a notice of violation or after a hearing may prescribe the date by which the violation must cease and the time limits for a particular action in preventing, abating, or controlling the violation. If, after a hearing, the department finds that a violation has not occurred or is not occurring, the department shall declare the order void.

(3) Instead of or in addition to issuing the order provided in subsections (1) and (2), the department may take action under another applicable provision of this chapter.

(4) Section 50-52-206 does not apply to an action taken by the department pursuant to this section.

(5) Before taking an action pursuant to this section, the department may attempt to obtain voluntary compliance through use of a warning, a conference, or other appropriate means.

NEW SECTION. Section 14. Administrative penalties -- appeals -- venue for hearings. (1) An establishment that violates an order issued by the department pursuant to [section 13] may be assessed and ordered by the department to pay an administrative penalty not to exceed $200 for each violation. Each day of violation constitutes a separate violation. The department may assess the penalty by an order issued pursuant to this section or may suspend all or a part of the administrative penalty assessed under this section if the violation that caused the assessment of the penalty is corrected within a specified time. Assessment of an administrative penalty under this section may be made in conjunction with an order issued pursuant to [section 13(2)] after a hearing as provided in [section 13(2)].

(a) the order alleged to have been violated;

(b) the facts alleged to constitute the violation;

(d) the amount, if any, of the penalty to be suspended upon correction of the condition that caused the assessment of the penalty;

(e) the nature of any corrective action that the department requires if a portion of the penalty is to be suspended;

(f) the time within which the corrective action is to be taken or the time within which the administrative penalty is to be paid;

(g) the right to a hearing, as provided in this section, and the time, place, and nature of any hearing; and

(h) that the hearing provided in this section may be waived or that the alleged violator may proceed by informal disposition under 2-4-603.

(3) The department shall provide the respondent assessed a penalty under this section an opportunity for a hearing to either contest the alleged violation or request mitigation of the penalty. The contested case provisions of the Montana Administrative Procedure Act, provided for in Title 2, chapter 4, part 6, apply to a hearing conducted under this section. If a hearing is held under this section, it must be held in Lewis and Clark County or the county in which the alleged violation occurred.

(7) Administrative penalties collected under this section must be deposited in the special revenue account provided for in 50-52-210.

NEW SECTION. Section 15. Codification instruction. (1) [Sections 7 and 8] are intended to be codified as an integral part of Title 50, chapter 51, and the provisions of Title 50, chapter 51, apply to [sections 7 and 8].

(2) [Sections 12 through 14] are intended to be codified as an integral part of Title 50, chapter 52, and the provisions of Title 50, chapter 52, apply to [sections 12 through 14].

NEW SECTION. Section 16. Retroactive applicability. [Sections 4, 6 through 8, and 10 through 14] apply retroactively, within the meaning of 1-2-109, to licenses issued pursuant to Title 50, chapter 51 or 52, prior to October 1, 1997.

NEW SECTION. Section 17. Effective dates. (1) [Sections 2, 9, 15, and 16 and this section] are effective on passage and approval.

(2) [Sections 1, 3 through 8, and 10 through 14] are effective October 1, 1997.

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