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SENATE BILL NO. 345
INTRODUCED BY E. MCCLAFFERTY
A BILL FOR AN ACT ENTITLED: "AN ACT REQUIRING LICENSURE OF ORGANIZED YOUTH CAMPS; PROVIDING HEALTH AND SAFETY REQUIREMENTS FOR LICENSURE; PROVIDING DEFINITIONS; PROVIDING RULEMAKING AUTHORITY TO THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES; AND AMENDING SECTIONS 20-25-331, 33-22-601, 37-48-102, 39-3-406, 50-52-101, AND 50-52-102, MCA."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
NEW SECTION. Section 1. Purpose. The purpose of [sections 1 through 13] is to provide for the licensure and regulation of organized youth camps in order to ensure the health and safety of campers.
NEW SECTION. Section 2. Definitions. As used in [sections 1 through 13], the following definitions apply:
(1) "Camper" means a person under the age of 18 who is attending an organized youth camp.
(2) "Department" means the department of public health and human services provided for in 2-15-2201.
(3) "Organized youth camp" means an operation that:
(a) accommodates at least 10 campers who attend or temporarily reside at the camp for all or part of at least 4 days;
(b) provides supervision and instruction to campers in recreational, athletic, religious, or educational activities;
(c) hosts campers who are apart from parents or guardians; and
(d) operates as an organized youth camp for no more than 120 days a year.
(4) "Organized youth camp operator" means a person who owns, operates, controls, or supervises a youth camp, regardless of profit.
NEW SECTION. Section 3. Duties of the department -- rulemaking authority. The department shall:
(1) exercise licensing authority over all organized youth camps under [sections 1 through 13];
(2) make available to the public the name, address, and contact information of each licensee; and
(3) develop by rule:
(a) the conditions and minimum standards based on which licenses are issued under [sections 1 through 13];
(b) the amount of the license fee;
(c) procedures for addressing any deficiencies in an organized youth camp's license application;
(d) the process and interval for renewal of licenses;
(e) reasonable recordkeeping requirements for licensed organized youth camps; and
(f) any other rules necessary to carry out the purposes of [sections 1 through 13].
NEW SECTION. Section 4. License required -- exceptions -- term of license -- fees. (1) Except as provided in [section 9], a person, group of persons, or entity may not establish or maintain an organized youth camp unless licensed to do so by the department. A license is valid only for the person and premises for which it was issued. A license may not be sold, assigned, or transferred.
(2) The department:
(a) may issue a license that remains in effect for a period not to exceed 3 years; and
(b) may charge a reasonable fee to issue a license, as set forth by rule.
(3) A 3-year license may be issued only to an organized youth camp that has not received notice of any deficiencies in meeting the licensing criteria and implementation guidelines provided in department rule.
NEW SECTION. Section 5. Requirements for licensure. (1) The department shall require licensed organized youth camps and organized youth camps that are applying for a license:
(a) to submit a set of fingerprints for each person associated with the organized youth camp who has direct access to campers, whether as an employee or a volunteer, for the purpose of a criminal and child protection background check by the Montana department of justice and the federal bureau of investigation. This background investigation must include information pertaining to criminal convictions, reports of domestic violence, and substantiated child abuse or neglect of children.
(b) to maintain and to provide verification of insurance policies in a form and an adequate amount as determined by department rule.
(2) In developing licensing requirements for organized youth camps, the department may adopt rules defining minimum standards for:
(a) the number of employees or volunteers required for adequate and proper supervision of campers at all times;
(b) qualifications of employees and volunteers who have direct access to campers;
(c) proper safeguards for sanitation and public health, including but not limited to compliance with and licensure under the provisions applicable to the construction and operation of a youth camp facility included in Title 50, chapter 52;
(d) adequate medical services for personal health and first aid;
(e) proper procedures for food preparation, handling, and serving;
(f) proper water safety procedures for swimming pools and natural waterways;
(g) proper maintenance and safe use of any motor vehicles used to transport campers;
(h) safety standards for physical facilities and equipment;
(i) proper fire precautions; and
(j) any other requirements consistent with the purposes of [sections 1 through 13].
NEW SECTION. Section 6. Training and examination program. (1) Each person associated with an organized youth camp who has direct access to campers must successfully complete a training and examination program on child abuse and sexual abuse within the person's first week of work or volunteering at the camp.
(2) The training and examination program:
(a) must be approved by the department;
(b) may be offered by an organized youth camp, a contracted trainer, or an online program; and
(c) must include training on:
(i) patterns of behavior of child abusers and sex offenders that put children at risk;
(ii) warning signs and symptoms associated with sexual abuse; and
(iii) recommended methods of reporting suspected abuse.
(3) Each person associated with an organized youth camp who has direct access to campers must complete the training and examination program no less than once every 2 years.
NEW SECTION. Section 7. Provisional license. The department may issue a provisional license for a period not to exceed 6 months if it finds that an organized youth camp does not meet all standards established by the department, as long as the organized youth camp is attempting to meet the minimum standards.
NEW SECTION. Section 8. Renewal license. A request by a licensed organized youth camp for renewal of a license must be made at least 30 days prior to the expiration of the current license.
NEW SECTION. Section 9. Temporary exemption -- licensing waiver. (1) An organized youth camp that has operated for at least 1 year prior to [the effective date of this act] may continue to operate for 2 years without obtaining a license pursuant to [sections 1 through 13].
(2) The department may grant a waiver from all requirements of [sections 1 through 13], except the requirement of submitting fingerprints for background checks as described in [section 5(1)(a)], to an organized youth camp that is sponsored by a religious organization.
NEW SECTION. Section 10. Denial, cancellation, reduction, revocation, or nonrenewal of license -- fair hearing. (1) After written notice to a licensed organized youth camp or an organized youth camp applying for a license, the department may deny, suspend, cancel, reduce, modify, or revoke a license upon finding that:
(a) any of the applicable conditions set forth in [sections 1 through 13] and in the rules adopted pursuant to [sections 1 through 13] as prerequisites for the issuance of a license no longer exist;
(b) the organized youth camp is no longer in compliance with the minimum standards prescribed by the department; or
(c) the license was issued based on fraudulent or untrue representation.
(2) Within 10 days following notice of an action by the department under subsection (1), the organized youth camp may request a hearing on the department's action. The hearing must be conducted according to the department's rules.
NEW SECTION. Section 11. Organized youth camp to maintain records, furnish reports, and permit inspections. Each licensed organized youth camp and each organized youth camp applying for a license shall:
(1) keep and maintain records as prescribed by the department;
(2) report to the department all facts that may be required on forms furnished by the department; and
(3) permit representatives of the department to enter the premises at reasonable times in order to inspect the premises and the organized youth camp's records.
NEW SECTION. Section 12. Inspections and investigations. (1) An authorized representative of the department shall make periodic visits to all licensed organized youth camps to ensure that minimum health and safety standards are maintained.
(2) The department may investigate and inspect the conditions and qualifications of any organized youth camp seeking or holding a license under the provisions of [sections 1 through 13].
(3) The department shall conduct an onsite inspection of:
(a) each organized youth camp applying for a license at least once during the application process; and
(b) each licensed organized youth camp at least once every 3 years.
(4) On request of the department, the state fire prevention and investigation section of the department of justice shall inspect any organized youth camp for which a license is applied for or issued and shall report its findings to the department.
NEW SECTION. Section 13. Penalty -- remedies. (1) A person who establishes or maintains an organized youth camp or who assists in conducting or maintaining an organized youth camp without first obtaining a license from the department as provided for in [sections 1 through 13] is guilty of a misdemeanor and upon conviction shall be punished be a fine not to exceed $500.
(2) (a) If the department is advised or has reason to believe that an organized youth camp is operating without a license, it shall make an investigation to ascertain the facts. If the department finds that the organized youth camp is being or has been operated without a license, it may report the results of its investigation to the attorney general or to the county attorney of the county where the organized youth camp is being operated for prosecution and may request that an injunction be issued against the organized youth camp until a license is issued.
(b) The department may institute any action necessary to:
(i) enforce compliance with [sections 1 through 13] or any order or rule of the department made pursuant to [sections 1 through 13]; or
(ii) obtain a judicial interpretation of [sections 1 through 13] or any related order or rule.
(c) The department may, by its own attorney, any county attorney, or the attorney general, initiate an action in the justice's court, city court, municipal court, or district court of the appropriate jurisdiction and be represented by that representative on appeal to the district court or state supreme court, as applicable.
Section 14. Section 20-25-331, MCA, is amended to read:
"20-25-331. Definitions. As used in 20-25-332, the following definitions apply:
(1) "For-profit fitness center" means a private sector facility that offers instruction, training, consultation, equipment, or space to the public for a fee to maintain, encourage, or develop physical fitness or conditioning.
(2) (a) "University fitness center" means a facility at a university unit, as provided in 20-25-201, that offers instruction, training, consultation, equipment, or space to maintain, encourage, or develop physical fitness or conditioning.
(b) The term does not include a university's swimming pool facilities, golf course facilities, or youth camps camp facilities."
Section 15. Section 33-22-601, MCA, is amended to read:
"33-22-601. Blanket disability insurance defined. Blanket disability insurance is hereby declared to be that form of disability insurance covering groups of persons as enumerated in one of the following subsections:
(1) under a policy or contract issued to any common carrier or to any operator, owner, or lessee of a means of transportation, who or which shall be deemed the policyholder, covering a group defined as all persons or all persons of a class who may become passengers on such common carrier or such means of transportation;
(2) under a policy or contract issued to an employer, who shall be deemed the policyholder, covering all employees, dependents, or guests, defined by reference to specified hazards incident to the activities or operations of the employer or any class of employees, dependents, or guests similarly defined;
(3) under a policy or contract issued to a school or other institution of learning, to an organized youth camp or a sponsor thereof; of an organized youth camp, or to the head or principal thereof of an institution of learning or an organized youth camp, who or which shall be deemed the policyholder, covering students or campers. Supervisors and employees may be included.
(4) under a policy or contract issued in the name of any religious, charitable, recreational, educational, or civic organization, which shall be deemed the policyholder, covering participants in activities sponsored by the organization;
(5) under a policy or contract issued to a sports team or sponsors thereof, which shall be deemed the policyholder, covering members, officials, and supervisors;
(6) under a policy or contract issued in the name of any volunteer fire department, first aid, or other such volunteer group, or agency having jurisdiction thereof, which shall be deemed the policyholder, covering all of the members of such fire department or group;
(7) under a policy or contract issued to cover any other risk or class of risks which in the discretion of the commissioner may be properly eligible for blanket disability insurance. The discretion of the commissioner may be exercised on an individual risk basis or class of risks, or both."
Section 16. Section 37-48-102, MCA, is amended to read:
"37-48-102. Definitions. As used in this part, the following definitions apply:
(1) "Board" means the board of private alternative adolescent residential or outdoor programs provided for in 2-15-1745.
(2) "Department" means the department of labor and industry provided for in 2-15-1701.
(3) "Direct access" means that an individual has or will likely have person-to-person spoken contact or physical contact with or access to the program participant.
(4) "Manager" means an individual who has or will likely have person-to-person spoken contact or physical contact with or access to the program participant.
(5) "Plan of operation" means the operational structures and parameters describing the program as identified in 37-48-103 and as required by the board by rule.
(6) (a) "Program" means a private alternative adolescent residential or outdoor program that provides a structured, private, alternative residential setting for youth who are experiencing emotional, behavioral, or learning problems and who have a history of failing in academic, social, moral, or emotional development at home or in less-structured traditional settings.
(b) The term does not include:
(i) any program that is required to be licensed or regulated by the state under Title 50, 52, or 53;
(ii) recreational programs such as boy scouts, girl scouts, or 4-H clubs;
(iii) organizations, boarding schools, or residential schools with a sole focus on academics;
(iv) residential training or vocational programs with a sole focus on education and vocational training;
(v) organized youth camps with a focus on recreation and faith-related activities; or
(vi) an organization, boarding school, or residential school that is an adjunct ministry of a church incorporated in the state of Montana.
(7) "Program participant" means an adolescent enrolled in or participating in a program, other than an adolescent serving as an employee of the program.
(8) "Worker affiliated with the program" means any owner, partner, member, employee, or contractor providing professional or occupational services to a program."
Section 17. Section 39-3-406, MCA, is amended to read:
"39-3-406. Exclusions. (1) The provisions of 39-3-404 and 39-3-405 do not apply with respect to:
(a) students participating in a distributive education program established under the auspices of an accredited educational agency;
(b) persons employed in private homes whose duties consist of menial chores, such as babysitting, mowing lawns, and cleaning sidewalks;
(c) persons employed directly by the head of a household to care for children dependent upon the head of the household;
(d) immediate members of the family of an employer or persons dependent upon an employer for half or more of their support in the customary sense of being a dependent;
(e) persons who are not regular employees of a nonprofit organization and who voluntarily offer their services to a nonprofit organization on a fully or partially reimbursed basis;
(f) persons with disabilities engaged in work that is incidental to training or evaluation programs or whose earning capacity is so severely impaired that they are unable to engage in competitive employment;
(g) apprentices or learners, who may be exempted by the commissioner for a period not to exceed 30 days of their employment;
(h) learners under the age of 18 who are employed as farm workers, provided that the exclusion may not exceed 180 days from their initial date of employment and further provided that during this exclusion period, wages paid the learners may not be less than 50% of the minimum wage rate established in this part;
(i) retired or semiretired persons performing part-time incidental work as a condition of their residence on a farm or ranch;
(j) an individual employed in a bona fide executive, administrative, or professional capacity, as these terms are defined by regulations of the commissioner, a computer systems analyst, computer programmer, software engineer, network administrator, or other similarly skilled computer employee who earns not less than $27.63 an hour pursuant to 29 CFR 541.400 or 541.402, or an individual employed in an outside sales capacity pursuant to 29 CFR 541.500;
(k) an individual employed by the United States of America;
(l) resident managers employed in lodging establishments or assisted living facilities who, under the terms of their employment, live in the establishment or facility;
(m) a direct seller as defined in 26 U.S.C. 3508;
(n) a person placed as a participant in a public assistance program authorized by Title 53 into a work setting for the purpose of developing employment skills. The placement may be with either a public or private employer. The exclusion does not apply to an employment relationship formed in the work setting outside the scope of the employment skills activities authorized by Title 53.
(o) a person serving as a foster parent, licensed as a foster care provider in accordance with 52-2-621, and providing care without wage compensation to no more than six foster children in the provider's own residence. The person may receive reimbursement for providing room and board, obtaining training, respite care, leisure and recreational activities, and providing for other needs and activities arising in the provision of in-home foster care.
(p) an employee employed in domestic service employment to provide companionship services, as defined in 29 CFR 552.6, or respite care for individuals who, because of age or infirmity, are unable to care for themselves as provided under section 213(a)(15) of the Fair Labor Standards Act, 29 U.S.C. 213, when the person providing the service is employed directly by a family member or an individual who is a legal guardian; or
(q) an employee of a seasonal nonprofit establishment that is an organized youth camp or religious or educational conference center.
(2) The provisions of 39-3-405 do not apply to:
(a) an employee with respect to whom the United States secretary of transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of 49 U.S.C. 31502;
(b) an employee of an employer subject to 49 U.S.C. 10501 and 49 U.S.C. 60501, the provisions of part I of the Interstate Commerce Act;
(c) an individual employed as an outside buyer of poultry, eggs, cream, or milk, in their raw or natural state;
(d) a salesperson, parts person, or mechanic paid on a commission or contract basis and primarily engaged in selling or servicing automobiles, trucks, mobile homes, recreational vehicles, or farm implements if the salesperson, parts person, or mechanic is employed by a nonmanufacturing establishment primarily engaged in the business of selling the vehicles or implements to ultimate purchasers;
(e) a salesperson primarily engaged in selling trailers, boats, or aircraft if the salesperson is employed by a nonmanufacturing establishment primarily engaged in the business of selling trailers, boats, or aircraft to ultimate purchasers;
(f) a salesperson paid on a commission or contract basis who is primarily engaged in selling advertising for a radio or television station employer;
(g) an employee employed as a driver or driver's helper making local deliveries who is compensated for the employment on the basis of trip rates or other delivery payment plan if the commissioner finds that the plan has the general purpose and effect of reducing hours worked by the employees to or below the maximum workweek applicable to them under 39-3-405;
(h) an employee employed in agriculture or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways that are not owned or operated for profit, that are not operated on a sharecrop basis, and that are used exclusively for supply and storing of water for agricultural purposes;
(i) an employee employed in agriculture by a farmer, notwithstanding other employment of the employee in connection with livestock auction operations in which the farmer is engaged as an adjunct to the raising of livestock, either alone or in conjunction with other farmers, if the employee is:
(i) primarily employed during a workweek in agriculture by a farmer; and
(ii) paid for employment in connection with the livestock auction operations at a wage rate not less than that prescribed by 39-3-404;
(j) an employee of an establishment commonly recognized as a country elevator, including an establishment that sells products and services used in the operation of a farm if no more than five employees are employed by the establishment;
(k) a driver employed by an employer engaged in the business of operating taxicabs;
(l) an employee who is employed with the employee's spouse by a nonprofit educational institution to serve as the parents of children who are orphans or one of whose natural parents is deceased or who are enrolled in the institution and reside in residential facilities of the institution so long as the children are in residence at the institution and so long as the employee and the employee's spouse reside in the facilities and receive, without cost, board and lodging from the institution and are together compensated, on a cash basis, at an annual rate of not less than $10,000;
(m) an employee employed in planting or tending trees; cruising, surveying, or felling timber; or transporting logs or other forestry products to a mill, processing plant, railroad, or other transportation terminal if the number of employees employed by the employer in the forestry or lumbering operations does not exceed eight;
(n) an employee of a sheriff's office who is working under an established work period in lieu of a workweek pursuant to 7-4-2509(1);
(o) an employee of a municipal or county government who is working under a work period not exceeding 40 hours in a 7-day period established through a collective bargaining agreement when a collective bargaining unit represents the employee or by mutual agreement of the employer and employee when a bargaining unit is not recognized. Employment in excess of 40 hours in a 7-day, 40-hour work period must be compensated at a rate of not less than 1 1/2 times the hourly wage rate for the employee.
(p) an employee of a hospital or other establishment primarily engaged in the care of the sick, disabled, aged, or mentally ill or disordered who is working under a work period not exceeding 80 hours in a 14-day period established through either a collective bargaining agreement when a collective bargaining unit represents the employee or by mutual agreement of the employer and employee when a bargaining unit is not recognized. Employment in excess of 8 hours a day or 80 hours in a 14-day period must be compensated for at a rate of not less than 1 1/2 times the hourly wage rate for the employee.
(q) a firefighter who is working under a work period established in a collective bargaining agreement entered into between a public employer and a firefighters' organization or its exclusive representative;
(r) an officer or other employee of a police department in a city of the first or second class who is working under a work period established by the chief of police under 7-32-4118;
(s) an employee of a department of public safety working under a work period established pursuant to 7-32-115;
(t) an employee of a retail establishment if the employee's regular rate of pay exceeds 1 1/2 times the minimum hourly rate applicable under section 206 of the Fair Labor Standards Act of 1938, 29 U.S.C. 206, and if more than half of the employee's compensation for a period of not less than 1 month is derived from commissions on goods and services;
(u) a person employed as a guide, cook, camp tender, outfitter's assistant, or livestock handler by a licensed outfitter as defined in 37-47-101;
(v) an employee employed as a radio announcer, news editor, or chief engineer by an employer in a second- or third-class city or a town;
(w) an employee of the consolidated legislative branch as provided in 5-2-503;
(x) an employee of the state or its political subdivisions employed, at the employee's option, on an occasional or sporadic basis in a capacity other than the employee's regular occupation. Only the hours that the employee was employed in a capacity other than the employee's regular occupation may be excluded from the calculation of hours to determine overtime compensation.
(y) an employee of an air carrier subject to the provisions of 45 U.S.C. 181, et seq., whose hours worked in excess of 40 hours in a workweek were not required by the air carrier but were arranged through a voluntary agreement among employees to trade scheduled work hours."
Section 18. Section 50-52-101, MCA, is amended to read:
"50-52-101. Definitions. As used in this chapter, unless the context clearly indicates otherwise, the following definitions apply:
(1) "Campground" means a parcel of land available to and principally used by the public for camping, where persons can camp, secure tents or cabins, or park trailers for camping and sleeping purposes.
(2) "Department" means the department of public health and human services provided for in 2-15-2201.
(3) "Establishment" means a campground, trailer court, work camp, or youth camp facility.
(4) "Parcel of land" means a unit of land all parts of which are contiguous, including contiguous lots, in the possession of, owned by, or managed by the same person.
(5) "Person" includes an individual, partnership, corporation, association, or other entity engaged in the business of operating, owning, or offering the services of a campground, trailer court, work camp, or youth camp facility.
(6) "Political subdivision" means any county, city, town, or other legally constituted unit of local government in this state.
(7) (a) "Trailer court" means a parcel of land upon which two or more spaces are available to the public and designated for occupancy by trailers or mobile homes for use as residences.
(b) The term does not include a parcel composed of platted lots, each lot of which:
(i) is filed with the county clerk and recorder;
(ii) contains only one trailer space; and
(iii) is served by a public water supply system and public sewage system that meet the requirements of rules for systems adopted pursuant to Title 75, chapter 6, part 1, and that are located within the boundaries of an incorporated city or town.
(8) "Work camp" means a parcel of land on which housing is provided by a person for two or more families or individuals living separately, for the exclusive use of the employees of the person and the families, if any, of the employees. For purposes of this subsection, "housing" includes but is not limited to camping spaces; trailer parking spaces; mobile, modular, or permanent barracks or structures; and any appurtenant water supply and distribution system, sewage collection and disposal system, solid waste collection and disposal system, or food service and dining facilities. Housing does not include shelter provided by an employer for persons who are employed to perform agricultural duties on a ranch or farm.
(9) (a) "Youth camp facility" means a parcel of land on which permanent buildings, tents, or other structures are maintained as living quarters for 10 or more people and that is used primarily for educational or recreational use by minors. The term includes any appurtenant water supply and distribution system, sewage collection and disposal system, solid waste collection and disposal system, or food service and dining facilities.
(b) The term does not include any site used solely by the members and their families of a private organization that owns the site."
Section 19. Section 50-52-102, MCA, is amended to read:
"50-52-102. Department to adopt rules. The department may adopt rules for constructing and operating campgrounds, trailer courts, work camps, and youth camps camp facilities to 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; and
(7) provide for reimbursing local governments for inspections and enforcement of this chapter."
NEW SECTION. Section 20. Codification instruction. [Sections 1 through 13] are intended to be codified as an integral part of Title 50, and the provisions of Title 50 apply to [sections 1 through 13].
- END -
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