HOUSE BILL NO. 367

INTRODUCED BY B. BARNHART

A BILL FOR AN ACT ENTITLED: "AN ACT REVISING THE LAWS RELATING TO FOOD ESTABLISHMENTS; AMENDING DEFINITIONS ASSOCIATED WITH FOOD ESTABLISHMENTS; CLARIFYING THE NUMBER OF LICENSES AND LICENSE FEES REQUIRED FOR MULTIPLE ESTABLISHMENTS OPERATED ON THE SAME PREMISES AND UNDER THE SAME MANAGEMENT; ESTABLISHING A SCHEDULE OF LICENSURE FEES BASED UPON RISK CATEGORIES; CLARIFYING LICENSE CANCELLATION FOR MULTIPLE ESTABLISHMENTS; CLARIFYING WHEN A LICENSE REQUIRES ALTERATION OR DESTRUCTION; AMENDING SECTIONS 50-50-102, 50-50-201, 50-50-205, 50-50-212, AND 50-50-213, MCA; PROVIDING FOR CONTINGENT VOIDNESS; AND PROVIDING EFFECTIVE DATES."

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

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

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

(1) "Baked goods" means breads, cakes, candies, cookies, pastries, and pies that are not potentially hazardous foods.

(2) "Consumer" means a person who is a member of the public, takes possession of food, is not functioning in the capacity of an owner or operator of an establishment, and does not offer food for sale.

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

(4) "Establishment" means a food manufacturing establishment or food service establishment.

(5) "Farmer's market" means a farm premises, a roadside stand owned and operated by a farmer, or an organized market authorized by the appropriate municipal or county authority.

(6) "Food" means an edible substance, beverage, or ingredient used, intended for use, or for sale for human consumption.

(7) (a) "Food manufacturing establishment" means a fixed or mobile operation that manufactures, processes, prepares, packages, stores, or otherwise provides food for sale or human consumption and does not provide food directly to a consumer.

(b) The term does not include:

(i) milk producers' facilities, milk pasteurization facilities, or milk product manufacturing plants;

(ii) slaughterhouses, packinghouses, or meat depots;

(iii) wine, beer, or soft drink warehouses that are separate from facilities where fermentation, brewing, or bottling occurs; or

(iv) producers or harvesters of raw and unprocessed farm products.

(8) (a) "Food service establishment" means a fixed or mobile operation that processes, prepares, packages, stores, serves, or otherwise provides food for human consumption directly to a consumer with or without charge.

(b) The term does not include:

(i) establishments or vendors that sell or serve only nonperishable foods in their unbroken, original containers ;

(ii) a private organization serving food only to its members;

(iii) an establishment, as defined in 50-51-102, that serves food only to its registered guests;

(iv) vending machines that sell or serve only nonperishable foods in either unbroken, original containers or in bulk;

(v) custom meat cutters or wild game processors who cut, process, grind, package, or freeze game meat for the owner of a carcass for consumption by the owner or the owner's family, pets, or nonpaying guests; or

(vi) a kitchen in a private residence in which food is prepared for the occupants of the home or nonpaying guests.

(9) "Frozen food plant" means a place used to freeze, process, or store food, including facilities used in conjunction with the frozen food plant, and a place where individual compartments are offered to the public on a rental or other basis.

[(10) (a) "High-risk process" means a food manufacturing process that involves smoking, curing, cooking, or partial cooking and also involves reduced oxygen packaging, hermetic sealing of low-acid foods, or other new technology that may embody similar public health risk as determined by the department by rule.

(b) The term does not include processes involved in manufacturing:

(i) baked goods or confections that are not potentially hazardous;

(ii) bottled water and brewed beverages;

(iii) acidified foods such as preserves, sauerkraut, pickled foods, or vinegars; or

(iv) canned or bottled soft drinks.]

(11) "Nonperishable food" means a food that has a shelf life of 30 days or more and is not a potentially hazardous food.

(12) "Nonprofit organization" means any organization qualifying as a tax-exempt organization under 26 U.S.C. 501.

(13) "Person" means a person, partnership, corporation, association, cooperative group, or other entity engaged in operating, owning, or offering services of an establishment.

(14) (a) "Potentially hazardous food" means a food that is natural or synthetic and is in a form capable of supporting:

(i) the rapid and progressive growth of infectious or toxigenic microorganisms; or

(ii) the growth and toxin production of Clostridium botulinum.

(b) The term includes cut melons, garlic and oil mixtures, a food of animal origin that is raw or heat-treated, and a food of plant origin that is heat-treated or consists of raw seed sprouts.

(c) The term does not include:

(i) an air-cooled, hard-boiled egg with intact shell;

(ii) a food with a hydrogen ion concentration (pH) level of 4.6 or below when measured at 24° C (75° F);

(iii) a food with a water activity (aw) value of 0.85 or less;

(iv) a food in an unopened hermetically sealed container that is commercially processed to achieve and maintain commercial sterility under conditions of nonrefrigerated storage and distribution; or

(v) a food for which laboratory evidence is accepted by the department as demonstrating that rapid and progressive growth of infectious and toxigenic microorganisms or the slower growth of Clostridium botulinum cannot occur.

(15) (a) "Preserves" means processed fruit or berry jams, jellies, compotes, fruit butters, marmalades, chutneys, fruit aspics, fruit syrups, or similar products that have a hydrogen ion concentration (pH) of 4.6 or below when measured at 24° C (75° F) and that are aseptically processed, packaged, and sealed.

(b) The term does not include:

(i) tomatoes or food products containing tomatoes; or

(ii) any other food substrate or product preserved by any method other than that described in subsection (15)(a).

(16) "Raw and unprocessed farm products" means fruits, vegetables, and grains sold at a farmer's market in their natural state that are not packaged and labeled and are not:

(a) cooked;

(b) canned;

(c) preserved, except for drying;

(d) combined with other food products; or

(e) peeled, diced, cut, blanched, or otherwise subjected to value-adding procedures."

Section 2. Section 50-50-201, MCA, is amended to read:

"50-50-201. License required. (1) Except as provided in 50-50-202, a person operating an establishment shall procure an annual license from the department.

(2) A separate license is required for each food manufacturing establishment, but if more than one food manufacturing establishment is operated on the same premises and under the same management, only one food manufacturing establishment license is required.

(3) A separate license is required for each food service establishment, but if more than one food service establishment is operated on the same premises and under the same management, only one food service establishment license is required.

(4) Only one license is required for a person owning and operating one or more vending machines.

(5) A license issued by the department is not valid unless signed in accordance with 50-50-214."

Section 3. Section 50-50-205, MCA, is amended to read:

"50-50-205. License fee -- late fee -- preemption of local authority -- exception. (1) For each license issued to a food manufacturing establishment, the department shall collect an annual fee based upon the categorization of the establishment within one of three following risk levels:

(a) "low risk", which means a food manufacturing establishment that provides only nonpotentially hazardous food or food that may contain potentially hazardous constituents but is unlikely to cause food-borne illness, as determined by the department by rule, because of the manner in which it is prepared, processed, stored, or served, $60;

(b) "medium risk", which means a food manufacturing establishment that provides potentially hazardous food, other than those foods designated as low risk by department rule, $120; or

(c) "high risk", which means a food manufacturing establishment that uses a high-risk process, $150.

(2) For each license issued to a food service establishment the department shall collect an annual fee based on the categorization of the establishment within one of the following risk levels:

(a) "low risk", which means a food service establishment that provides only nonpotentially hazardous food or food that may contain potentially hazardous constituents but is unlikely to cause food-borne illness, as determined by the department by rule, because of the manner in which it is prepared, processed, stored, or served, $60; or

(b) "high risk", which means a food service establishment that provides potentially hazardous food, other than those foods designated as low risk by department rule, $150.

(3) If more than one establishment is operated on the same premises and under the same management, the department shall collect a single license fee based upon the categorization of the establishment that falls within the highest risk level applicable under either subsection (1) or (2).

(4) The department shall deposit 92.5% of the fees collected under subsections (1) and (2) into the local board inspection fund account created in 50-2-108 and 7.5% of the fees into the account provided for in 50-50-216.

(5) In addition to the license fee required under subsections (1) and (2), the department shall collect a late fee from any licensee who has failed to submit a license renewal fee prior to the expiration of the licensee's current license and who operates an establishment governed by this part in the next licensing year. The late fee is $25 and must be deposited in the account provided for in 50-50-216.

(6) A county or other local government may not impose an inspection fee or charge in addition to the fee provided for in subsections (1) and (2) unless a violation of this chapter or rule persists and is not corrected after two visits to the establishment.

(7) The fees in subsections (1), (2), and (5) may be paid by credit card and may be discounted for payment processing charges paid by the department to a third party. However, the discounting of license fees may not reduce the fees paid into the local board inspection fund account established in 50-2-108."

Section 4. Section 50-50-205, MCA, is amended to read:

"50-50-205. License fee -- late fee -- preemption of local authority -- exception. (1) For each license issued, the department shall collect a fee of $60. It shall deposit 92.5% of the fees collected under this section into the local board inspection fund account created in 50-2-108 and 7.5% of the fees into the account provided for in 50-50-216.

(2) In addition to the license fee required under subsection (1), the department shall collect a late fee from any licensee who has failed to submit a license renewal fee prior to the expiration of the licensee's current license and who operates an establishment governed by this part in the next licensing year. The late fee is $25 and must be deposited in the account provided for in 50-50-216.

(3) A county or other local government may not impose an inspection fee or charge in addition to the fee provided for in subsection (1) unless a violation of this chapter or rule persists and is not corrected after two visits to the establishment.

(4) The fees in subsections (1) and (2) may be paid by credit card and may be discounted for payment processing charges paid by the department to a third party. However, the discounting of license fees may not reduce the fees paid into the local board inspection fund account established in 50-2-108."

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

"50-50-212. Cancellation of license for multiple-type establishment. When multiple establishments are authorized by one license, the denial or cancellation of the license may affect one, some, or all of the establishments as determined by the department. "

Section 6. Section 50-50-213, MCA, is amended to read:

"50-50-213. Return of license for alteration or destruction. On cancellation of a license or of the right to operate one or more establishments under the same license, the license certificate must be returned to the department for destruction or removal of one or more of the designated establishments as the department may direct in its notice of cancellation."

NEW SECTION. Section 7. Contingent voidness. If Constitutional Initiative No. 75, enacting Article VIII, section 17, of the Montana constitution, is declared invalid, then [section 3] and the bracketed language in [section 1] are effective on the date of the determination of invalidity and [section 4] is void.

(2) If LC 1556, LC 1557, and LC 1559 are submitted to the electorate and if any one of them is not approved by the electorate, then [section 3] and the bracketed language in [section 1] is void.

NEW SECTION. Section 8. Effective dates. (1) Except as provided in subsection (2), [sections 1 through 3, 5 through 7 and this section] are effective upon approval of LC 1556, LC 1557, and LC 1559 by the electorate.

(2) [Sections 1, 2, 4 through 7 and this section] are effective upon the occurrence of the contingency provided for in [section 7(2)] or upon passage and approval, whichever is later.

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