SENATE BILL NO. 446
INTRODUCED BY M. TAYLOR, R. BITNEY, E. CLARK, B. DEPRATU, S. FISHER, L. GRINDE, D. HAINES, D. HEDGES, W. MCNUTT, D. MOOD, B. PAVLOVICH, P. SLITER, R. SOMERVILLE, B. TASH, J. WITT, C. YOUNKIN
AN ACT CHANGING THE PROVISIONS RELATING TO RESTAURANT BEER AND WINE LICENSES; REDUCING THE PERCENTAGE OF REVENUE THAT MUST BE DERIVED FROM FOOD SALES TO 65 PERCENT FROM 75 PERCENT; INCREASING THE NUMBER OF LICENSES AVAILABLE IN THE SMALLEST QUOTA AREA; AUTHORIZING A ONE-TIME QUOTA ADJUSTMENT; GIVING A PREFERENCE TO UNSUCCESSFUL LOTTERY APPLICANTS; ESTABLISHING THAT THE APPLICATION FEE FOR A LICENSE IS 20 PERCENT OF THE INITIAL LICENSE FEE; REQUIRING THE DEPARTMENT TO PAY INTEREST ON AN APPLICATION FEE IF A LICENSE IS NOT GRANTED OR REJECTED WITHIN 4 MONTHS OF APPLICATION FOR A LICENSE; AMENDING SECTIONS 16-4-111 AND 16-4-420, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 16-4-111, MCA, is amended to read:
"16-4-111. Catering endorsement for beer and wine licensees. (1) (a) A person who is engaged primarily in the business of providing meals with table service and who is licensed to sell beer at retail or beer and wine at retail for on-premises consumption may, upon the approval of the liquor division, be granted a catering endorsement to the license to allow the catering and sale of beer or beer and wine to persons attending a special event upon premises not otherwise licensed for the sale of beer or beer and wine for on-premises consumption. The beer or wine must be consumed on the premises where the event is held.
(b) A person who is licensed pursuant to 16-4-420 to sell beer at retail or beer and wine at retail for on-premises
consumption may, upon the approval of the liquor division, be granted a catering endorsement to the license to allow the
catering and sale of beer and wine to persons attending a special event upon premises not otherwise licensed for the sale of
beer or beer and wine, along with food equal in cost to 75% 65% of the total gross revenue from the catering contract, for
on-premises consumption. The beer or wine must be consumed on the premises where the event is held.
(2) A written application for a catering endorsement and an annual fee of $200 must be submitted to the department for its approval.
(3) A licensee who holds a catering endorsement may not cater an event in which the licensee is the sponsor. The catered event must be within 100 miles of the licensee's regular place of business.
(4) The licensee shall notify the local law enforcement agency that has jurisdiction over the premises that the catered event is to be held. A fee of $35 must accompany the notice.
(5) The sale of beer or beer and wine pursuant to a catering endorsement is subject to the provisions of 16-6-103.
(6) The sale of beer or beer and wine pursuant to a catering endorsement is subject to the provisions of 16-3-306, unless entities named in 16-3-306 give their written approval for the on-premises sale of beer or beer and wine on premises where the event is to be held.
(7) A catering endorsement issued for the purpose of selling and serving beer or beer and wine at a special event conducted on the premises of a county fairground or public sports arena authorizes the licensee to sell and serve beer or beer and wine in the grandstand and bleacher area of the premises, as well as from a booth, stand, or other fixed place on the premises."
Section 2. Section 16-4-420, MCA, is amended to read:
"16-4-420. Restaurant beer and wine license. (1) The department shall issue a restaurant beer and wine license to an applicant whenever the department determines that the applicant, in addition to satisfying the requirements of this section, meets the following qualifications and conditions:
(a) in the case of an individual applicant:
(i) the applicant's past record and present status as a purveyor of alcoholic beverages and as a business person and citizen demonstrate that the applicant is likely to operate the establishment in compliance with all applicable laws of the state and local governments; and
(ii) the applicant is not under 19 years of age;
(b) in the case of a corporate applicant:
(i) in the case of a corporation listed on a national stock exchange, the corporate officers and the board of directors must
shall meet the requirements of subsection (1)(a);
(ii) in the case of a corporation not listed on a national stock exchange, each owner of 10% or more of the outstanding
stock must shall meet the requirements for an individual listed in subsection (1)(a); and
(iii) the corporation is authorized to do business in Montana;
(c) in the case of any other business entity, including but not limited to partnerships, including limited liability partnerships, limited partnerships, and limited liability companies, but not including any form of a trust:
(i) if the applicant consists of more than one individual, all individuals must shall meet the requirements of subsection
(1)(a); and
(ii) if the applicant consists of more than one corporation, all corporations listed on a national stock exchange must shall
meet the requirements of subsection (1)(b)(i) and corporations not listed on a national stock exchange must shall meet the
requirements of subsection (1)(b)(ii);
(d) the applicant operates a restaurant at the location where the restaurant beer and wine license will be used or satisfies the department:
(i) that the applicant intends to open a restaurant that will meet the requirements of subsection (6) and intends to operate
the restaurant so that at least 75% 65% of the restaurant's gross income during its first year of operation is expected to be
the result of the sale of food;
(ii) that the restaurant beer and wine license will be used in conjunction with that restaurant, that the restaurant will serve beer and wine only to a patron who orders food, and that beer and wine purchases will be stated on the food bill; and
(iii) that the restaurant will serve beer and wine from a service bar, as service bar is defined by the department by rule;
(e) the applicant understands and acknowledges in writing on the application that this license prohibits the applicant from being licensed to conduct any gaming or gambling activity or operate any gambling machines and that if any gaming or gambling activity or machine exists at the location where the restaurant beer and wine license will be used, the activity must be discontinued or the machines must be removed before the restaurant beer and wine license takes effect; and
(f) the applicant states the planned seating capacity of the restaurant, if it is to be built, or the current seating capacity if the restaurant is operating.
(2) (a) A restaurant that has an existing retail license for the sale of beer, wine, or any other alcoholic beverage may not be considered for a restaurant beer and wine license at the same location.
(b) A restaurant that sells its existing retail license may not apply for a license under this section for a period of 1 year from the date that license is transferred to a new purchaser.
(3) (a) A completed application for a license under this section and the appropriate application fee, as provided in subsection (11), must be submitted to the department. The department shall request that the department of justice make an investigation of all the items relating to the application as described in subsections (3)(a)(i) through (3)(a)(iv). Based on the results of the investigation or in exercising its sound discretion, the department shall determine whether:
(i) the applicant is qualified to receive a license;
(ii) the applicant's premises are suitable for the carrying on of the business;
(iii) the requirements of this code and the rules promulgated by the department are met and complied with; and
(iv) the seating capacity as stated on the application is correct.
(b) The department may retain 20% of the application fee collected under subsection (11) to defray the costs of the department and department of justice associated with investigating and processing applications.
(4) An application for a beer and wine license submitted under this section is subject to the provisions of 16-4-203, 16-4-207, and 16-4-405.
(5) If a premises proposed for licensing under this section is a new or remodeled structure, then the department may issue a conditional license prior to completion of the premises based on reasonable evidence, including a statement from the applicant's architect or contractor confirming that the seating capacity stated on the application is correct, that the premises will be suitable for the carrying on of business as a bona fide restaurant, as defined in subsection (6).
(6) For purposes of this section, "restaurant" means a public eating place where individually priced meals are prepared
and served for on-premises consumption. At least 75% 65% of the restaurant's annual gross income from the operation
must be from the sale of food and not from the sale of alcoholic beverages. Each year after a license is issued, the applicant
shall file with the department a statement, in a form approved by the department, attesting that at least 75% 65% of the
gross income of the restaurant during the prior year resulted from the sale of food. The restaurant must have a dining room,
a kitchen, and the number and kinds of employees necessary for the preparation, cooking, and serving of meals in order to
satisfy the department that the space is intended for use as a full-service restaurant. A full-service restaurant is a restaurant
that provides an evening dinner menu meal.
(7) (a) (i) Subject to the conditions of subsection (7)(a)(ii), a restaurant beer and wine license may be transferred, upon approval by the department, from the original applicant to a new owner of the restaurant if there is no change of location, and the original owner may transfer location after the license is issued by the department to a new location, upon approval by the department.
(ii) A new owner may not transfer the license to a new location for a period of 1 year following the transfer of the license to the new owner.
(b) A license issued under this section may be jointly owned, and the license may pass to the surviving joint tenant upon the death of the other tenant. However, the license may not be transferred to any other person or entity by operation of the laws of inheritance or succession or any other laws allowing the transfer of property upon the death of the owner in this state or in another state.
(c) An estate may, upon the sale of a restaurant that is property of the estate and with the approval of the department, transfer a restaurant beer and wine license to a new owner.
(8) (a) The department shall issue a restaurant beer and wine license to a qualified applicant:
(i) for a restaurant located in a quota area with a population of 20,000 persons or fewer, as the quota area population is
determined in 16-4-105, if the number of restaurant beer and wine licenses issued in that quota area is equal to or less than
60% 80% of the number of beer licenses that may be issued in that quota area pursuant to 16-4-105;
(ii) for a restaurant located in a quota area with a population of 20,001 to 60,000 persons, as the quota area population is determined in 16-4-105, if the number of restaurant beer and wine licenses issued in that quota area is equal to or less than 50% of the number of beer licenses that may be issued in that quota area pursuant to 16-4-105;
(iii) for a restaurant located in a quota area with a population of 60,001 persons or more, as the quota area population is determined in 16-4-105, if the number of restaurant beer and wine licenses issued in that quota area is equal to or less than 40% of the number of beer licenses that may be issued in that quota area pursuant to 16-4-105; and
(iv) for a restaurant located in a quota area that is also a resort community, as the resort community is designated by the department of commerce under 7-6-1501(5), if the number of restaurant beer and wine licenses issued in the quota area that is also a resort community is equal to or less than 100% of the number of beer licenses that may be issued in that quota area pursuant to 16-4-105.
(b) In determining the number of restaurant beer and wine licenses that may be issued under this subsection (8) based on the percentage amounts described in subsections (8)(a)(i) through (8)(a)(iii), the department shall round to the nearer whole number.
(c) If the department has issued the number of restaurant beer and wine licenses authorized for a quota area under subsections (8)(a)(i) through (8)(a)(iii), there must be a one-time adjustment of one additional license for that quota area.
(c)(d) If there are more applicants than licenses available in a quota area, then the license must be awarded by lottery as
provided in subsection (9).
(9) (a) When a restaurant beer and wine license becomes available by the initial issuance of licenses under this section
or as the result of an increase in the population in the quota area, the nonrenewal of a restaurant beer and wine license, or
the lapse or revocation of the a license by the department, then the department shall advertise the availability of the license
in the quota area for which it is available. If there are more applicants than number of licenses available, the license must be
awarded to an applicant by a lottery.
(b) Any applicant who operates a restaurant that meets the qualifications of subsection (6) for at least 12 months prior to the filing of an application must be given a preference, and any unsuccessful lottery applicants from previous selections must also be given a preference. An applicant with both preferences must be awarded a license before any applicant with only one preference.
(c) The department shall numerically rank all applicants in the lottery. Only the successful applicants will be required to
submit a completed application and the a one-time required fee. An applicant's ranking may not be sold or transferred to
another person or entity. The preference and an applicant's ranking apply only to the intended license advertised by the
department or to the number of licenses determined under subsection (8) when there are more applicants than licenses
available. The applicant's qualifications for any other restaurant beer and wine license awarded by lottery must be
determined at the time of the lottery.
(10) Under a restaurant beer and wine license, beer and wine may not be sold for off-premises consumption.
(11) An application for a restaurant beer and wine license must be accompanied by a fee equal to 20% of the initial licensing fee. If the department does not make a decision either granting or denying the license within 4 months of receipt of a complete application, the department shall pay interest on the application fee at the rate set in 16-1-409(4) until a license is issued or the application is denied. Interest may not accrue during any period that the processing of an application is delayed by reason of a protest filed pursuant to 16-4-203 or 16-4-207. If the department denies issuing a license to an applicant, the application fee, plus any interest, less a $100 processing fee, must be refunded to the applicant. Upon the issuance of a license, the licensee shall pay the balance of the initial licensing fee. The amount of the initial licensing fee is determined according to the following schedule:
(a) $5,000 for restaurants with a stated seating capacity of 60 persons or less;
(b) $10,000 for restaurants with a stated seating capacity of 61 to 100 persons; or
(c) $20,000 for restaurants with a stated seating capacity of 101 persons or more.
(12) The annual fee for a restaurant beer and wine license is $400.
(13) If a restaurant licensed under this part increases the stated seating capacity of the licensed restaurant or if the
department determines that an applicant a licensee has increased the stated seating capacity of the licensed restaurant, then
the applicant licensee shall pay to the department the difference between the application fee fees paid at the time of filing
the original application and issuance of a license and the applicable application fee fees for the additional seating.
(14) The number of beer and wine licenses issued to restaurants with a stated seating capacity of 101 persons or more may not exceed 25% of the total licenses issued.
(15) Possession of a restaurant beer and wine license is not a qualification for licensure of any gaming or gambling activity. A gaming or gambling activity may not occur on the premises of a restaurant with a restaurant beer and wine license."
Section 3. Effective date. [This act] is effective upon passage and approval.
Section 4. Applicability. [This act] applies only to new applications received after [the effective date of this act].
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