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HomeMy WebLinkAbout10-19-2021- City Commission Agendas & Packet MaterialsA.Call to Order - 6:00 PM - Via WebEx B.Pledge of Allegiance and a Moment of Silence C.Changes to the Agenda D.FYI E.Commission Disclosures F.Consent F.1 Accounts Payable Claims Review and Approval (Stewart) F.2 Appoint a Sub-Committee of Two Commissioners to Review Pledged Securities as of THE CITY COMMISSION OF BOZEMAN, MONTANA REGULAR MEETING AGENDA Tuesday, October 19, 2021 This meeting will be held using Webex, an online videoconferencing system. You can join this meeting: Via Webex: https://cityofbozeman.webex.com/cityofbozeman/onstage/g.php? MTID=e5b28b998f282f53041fa86fe212e43b9 Click the Register link, enter the required information, and click submit. Click Join Now to enter the meeting. Via Phone: This is for listening only if you cannot watch the stream or channel 190 United States Toll +1-650-479-3208 Access code: 2558 723 9254 If you are interested in commenting in writing on items on the agenda please send an email to agenda@bozeman.net prior to 12:00pm on the day of the meeting. You may also comment by visiting the Commission's comment page. You can also comment by joining the Webex meeting. If you do join the Webex meeting, we ask you please be patient in helping us work through this online meeting. If you are not able to join the Webex meeting and would like to provide oral comment you may send a request to agenda@bozeman.net with your phone number, the item(s) you wish to comment on, and the City Clerk will call you during the meeting to provide comment. You may also send the above information via text to 406-224-3967. As always, the meeting will be streamed through the Commission's video page and available in the City on cable channel 190. 1 September 30, 2021(Donald) F.3 Authorize the Mayor to Sign a Findings of Fact and Order for the Soper Minor Subdivision, Application 21282(Lyon) F.4 Authorize City Manager to Sign a Professional Services Agreement with Bang the Table for an Online Community Engagement Platform(Mileur ) F.5 Resolution 5337, Intent to Create Special Improvement Lighting District #766 for Northwest Crossing Phase 1(Donald) F.6 Resolution 5339, Intent to Create Special Improvement Lighting District #768 for Allison Phase 4A(Donald) F.7 Resolution 5341, Intent to Create Special Improvement Lighting District #767 for Bozeman Gateway Subdivision PUD Phase 4 (West Garfield Street)(Donald) F.8 Ordinance 2088, Provisionally Adopting the Gran Cielo Subdivision Phase 2 Zone Map Amendment to Change 8.552 acres from R-4, Residential High Density District to R-5, Residential Mixed Use High Density District at the Northwest Corner of the Intersection of S 27th Avenue and Bennett Boulevard, Application 21095.(Saunders) G.Public Comment This is the time to comment on any matter falling within the scope of the Bozeman City Commission. There will also be time in conjunction with each agenda item for public comment relating to that item but you may only speak once. Please note, the City Commission cannot take action on any item which does not appear on the agenda. All persons addressing the City Commission shall speak in a civil and courteous manner and members of the audience shall be respectful of others. Please state your name and address in an audible tone of voice for the record and limit your comments to three minutes. H.Action Items H.1 Ordinance 2093, Provisionally Adopting the Gallatin County Rest Home Zone Map Amendment to Revise the Zoning map on 9.8 acres at 1221 Durston Road from R3 - Medium Density Residential to R4 - High Density Residential, application 21330(Saunders) H.2 Ordinance 2084, Provisional Adoption Generally Revising Laws and Regulations Related to Marijuana and the Montana Marijuana Regulation and Taxation Act(Saverud) H.3 Resolution 5348, Establishing a License Fee for Marijuana Businesses Operating within the City of Bozeman(Saverud) I.FYI / Discussion J.Adjournment City Commission meetings are open to all members of the public. If you have a disability that requires assistance, please contact our ADA Coordinator, Mike Gray, at 582-3232 (TDD 582-2301). Commission meetings are televised live on cable channel 190 and streamed live at www.bozeman.net. 2 City Commission meetings are re-aired on cable Channel 190 Wednesday night at 4 p.m., Thursday at noon, Friday at 10 a.m. and Sunday at 2 p.m. In order for the City Commission to receive all relevant public comment in time for this City Commission meeting, please submit via www.bozeman.net or by emailing agenda@bozeman.net no later than 12:00 PM on the day of the meeting. Public comment may be made in person at the meeting as well. 3 Memorandum REPORT TO:City Commission FROM:Levi Stewart, Interim Accounting Technician Kristin Donald, Finance Director SUBJECT:Accounts Payable Claims Review and Approval MEETING DATE:October 19, 2021 AGENDA ITEM TYPE:Finance RECOMMENDATION:The City Commission approves payment of the claims. STRATEGIC PLAN:7.5. Funding and Delivery of City Services: Use equitable and sustainable sources of funding for appropriate City services, and deliver them in a lean and efficient manner. BACKGROUND:Section 7-6-4301 MCA states that claims should not be paid by the City until they have been first presented to the City Commission. Claims presented to the City Commission have been reviewed by the Finance Department to ensure that all proper supporting documentation has been submitted, all required departmental authorized signatures are present indicating that the goods or services have been received and that the expenditure is within budget, and that the account coding is correct. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:The total amount of the claims to be paid is presented at the bottom of the Expenditure Approval List posted on the City’s website at http://www.bozeman.net/government/finance/purchasing. Individual claims in excess of $100,000: to be announced in weekly e-mail from Interim Accounting Technician Levi Stewart. Report compiled on: October 8, 2021 4 Memorandum REPORT TO:City Commission FROM:Laurae Clark, Treasurer Kristin Donald, Finance Director SUBJECT: Appoint a Sub-Committee of Two Commissioners to Review Pledged Securities as of September 30, 2021 MEETING DATE:October 19, 2021 AGENDA ITEM TYPE:Finance RECOMMENDATION: Appoint Commissioner Pomeroy and Commissioner Coburn to review the depository bonds and pledged securities as of September 30, 2021. STRATEGIC PLAN:7.5. Funding and Delivery of City Services: Use equitable and sustainable sources of funding for appropriate City services, and deliver them in a lean and efficient manner. BACKGROUND: 17-6-102. Insurance on deposits. (1) Deposits in excess of the amount insured by the federal deposit insurance corporation or the national credit union administration may not be made unless the bank, building and loan association, savings and loan association, or credit union first delivers to the state treasurer or deposits in trust with some solvent bank, as security therefore, bonds or other obligations of the kinds listed in 17-6-103, having a market value equal to at least 50% of the amount of the deposits in excess of the amount insured. The board of investments may require security of a greater value. When negotiable securities are placed in trust, the trustee's receipt may be accepted instead of the actual securities if the receipt is in favor of the state treasurer, successors in office, and the state of Montana and the form of receipt and the trustee have been approved by the board of investments. (2) Any bank, building and loan association, savings and loan association, or credit union pledging securities as provided in this section may at any time substitute securities for any part of the securities pledged. The substituted collateral must conform to 17-6-103 and have a market value at least sufficient for compliance with subsection (1). If the substituted securities are held in trust, the trustee shall, on the same day the substitution is made, forward by registered or certified mail to the state 5 treasurer and to the depository financial institution a receipt specifically describing and identifying both the securities substituted and those released and returned to the depository financial institution. Section 7-6-207 (2), MCA requires the City Commission to approve pledged securities at least quarterly. The Commission appoints two commissioners quarterly on a rotating basis. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:The City is sufficiently pledged. Attachments: Depository Bonds & Securities 0921.pdf Report compiled on: October 5, 2021 6 DEPOSITORY BONDS AND SECURITIES AS OF September 30, 2021 MATURITY CUSIP NO/LOC NO. TOTAL AMOUNT US BANK All Accounts Federal Deposit Insurance Corporation-Operating Accts $ 250,000.00 Federal Deposit Insurance Corporation-CD $ 250,000.00 LOC-FHLB Cincinnati 10/15/2021 554672 $ 17,000,000.00 TOTAL – US Bank $ 17,500,000.00 FIRST SECURITY BANK All Accounts Federal Deposit Insurance Corporation $ 250,000.00 Celina TX ISD REF GO UNLTD BD 08/15/2033 151145NX3 $ 1,185,000.00 Celina TX ISD REF GO UNLTD BD 08/15/2034 151145NY1 $ 1,235,000.00 TOTAL - First Security Bank $ 2,670,000.00 This is to certify that we, the Commission of the City of Bozeman, in compliance with the provisions of Section 7-6- 207, M.C.A., have this day certified the receipts of the First Security Bank and US Bank, for the Depository Bonds held by the Director of Finance as security, for the deposit for the City of Bozeman funds as of September 30, 2021, by the banks of Bozeman and approve and accept the same. _____________________________________________ CYNTHIA L. ANDRUS, Mayor _______________________________________ _______________________________________ TERRY CUNNINGHAM, Deputy Mayor I-HO POMEROY, Commissioner _______________________________________ _______________________________________ CHRISTOPHER COBURN, Commissioner JENNIFER MADGIC, Commissioner 7 PLEDGED SECURITIES AND CASH IN BANK As of September 30, 2021 US BANK Total Cash and CD's on Deposit $5,580,145.43 FDIC Coverage $500,000.00 Amount Remaining $5,080,145.43 Pledges Required 104% $5,283,351.25 Actual Pledges $17,000,000.00 Over (Under) Pledged $11,716,648.75 FIRST SECURITY BANK CD's $2,039,059.96 FDIC Coverage $250,000.00 Amount Remaining $1,789,059.96 Pledges Required 50% $894,529.98 Actual Pledges $2,420,000.00 Over (Under) Pledged $1,525,470.02 REFERENCE: Section 7-6-207, M.C.A. 8 Memorandum REPORT TO:City Commission FROM: Nakeisha Lyon, Associate Planner Brian Krueger, Developer Review Manager Martin Matsen, Director of Community Development SUBJECT: Authorize the Mayor to Sign a Findings of Fact and Order for the Soper Minor Subdivision, Application 21282 MEETING DATE:October 19, 2021 AGENDA ITEM TYPE:Community Development - Quasi-Judicial RECOMMENDATION:Having reviewed and considered the application materials, public comment, and all the information presented, I hereby adopt the findings presented in the staff report for application 21282 and move to approve the Soper Minor Subdivision with conditions and subject to all applicable code provisions. STRATEGIC PLAN:4.2 High Quality Urban Approach: Continue to support high-quality planning, ranging from building design to neighborhood layouts, while pursuing urban approaches to issues such as multimodal transportation, infill, density, connected trails and parks, and walkable neighborhoods. BACKGROUND: The Department of Community Development received a Preliminary Plat Application on July 14, 2021 requesting a first minor subdivision of one lot of 0.74 acres to create two lots, one of 0.43 acres and one of .31 acres. The property is zoned R-2, Residential Moderate Density District and is located in the NCOD, Neighborhood Conservation Overlay District. There are three existing structures located on the subject property, a single family home, detached garage and chicken coop. These structures have been deemed non-eligible historic structures as they do not meet the definition provided in article 7 of the Bozeman Municipal Code (BMC) for historic structures. The existing structures are not eligible for the National Register of Historic Places per the applicable 2021 Montana Historic Property Record Survey conducted on the subject property. In order to subdivide the subject property and meet applicable form and 9 intensity standards of the R-2 zoning district, the existing structures were approved for demolition on April 1, 2021, within a NCOA, Neighborhood Certificate of Appropriateness, application 21-036 based on their non- eligible status. The future development of these lots will be require NCOA applications to evaluate any proposed structures in conformance with The Design Guidelines for Historic Preservation and the Neighborhood Conservation Overlay, and Section 38.340.050 of the BMC. This subdivision is a first minor subdivision from a tract of record and does not require Planning Board review. State statute requires the City Commission to consider and make a decision on the subdivision application and the Community Development Director’s recommendation during a regular public meeting. On August 31, 2021, the Development Review Committee (DRC) found the application adequate for continued review and recommends the conditions and code provisions identified in this report. The subdivider did not request any subdivision or zoning variances with this application. The City has received four written public comments on the application as of the writing of this report. The final decision for a first minor subdivision preliminary plat must be made within 35 working days of the date it was deemed adequate; in this case by October 20, 2021. The public meeting date for the City Commission was September 21, 2021. The hearing was held via WebEx. The City Commission met to consider the application for a preliminary plat for the subdivision of 0.74 acres to create two residentially-zoned lots. There were no members of the public that spoke at the hearing which can be viewed at the link below. After the City Commission reviewed and considered the application materials, staff report, advisory review board recommendations, public comment, and all the information presented, they made individual findings and voted 5:0 to approve the motion to approve the application. The Commission agreed that the application met the criteria established by the Bozeman Municipal Code. Therefore, the application was approved with 10 conditions and applicable code provisions outlined in these findings. The City Commission’s review, deliberation and findings may be found under the linked minutes and recorded video of the meetings located at this web paged filed under September 21, 2021: https://www.bozeman.net/government/city-commission/city-commission- video UNRESOLVED ISSUES: There are no known unresolved issues. ALTERNATIVES:1. Approve the application with the recommended conditions; 2. Approve the application with modifications to the recommended conditions; 3. Deny the application based on the Commission’s findings of non- compliance with the applicable criteria contained within the staff report; or 4. Continue the public meeting on the application, with specific direction to staff or the subdivider to supply additional information or to address specific items. FISCAL EFFECTS: No fiscal effects have been identified. Attachments: 21282 Soper Minor PreliminaryPlat_082521.pdf 21282 Soper Minor Preliminary Plat FOF.pdf Report compiled on: September 14, 2021 11 12 Page 1 of 22 Bozeman City Commission Findings of Fact and Order for the Soper Minor Subdivision 21282 Public Meeting Date: The City Commission public meeting and decision was held Tuesday, September 21, 2021 at 6:00 p.m via WebEx. https://www.bozeman.net/government/city- commission/city-commission-video Project Description: A first minor preliminary plat application requesting permission to subdivide 0.74 acres to create two lots, one of 0.43 acres, and one of 0.31 acres. The property is zoned R-2, Residential Moderate Density District and is located in the NCOD, Neighborhood Conservation Overlay District. Project Location: The property is addressed as 918 South Tracy Avenue and located South of East Harrison Street, East of South Tracy Avenue, West of South Black Avenue, and North of East Garfield Street. The property is legally described as Section 18, Township 02 South, Range 06 East, Tract 3, Being 180’ x 210’ N2NW4, City of Bozeman, Gallatin County, MT. Approved Recommendation: The application conforms to standards and is sufficient for approval with conditions and code provisions. Approved Motion: “Having reviewed and considered the application materials, public comment, and all the information presented, I hereby adopt the findings presented in the staff report for application 21282 and move to approve the Soper Minor Subdivision with conditions and subject to all applicable code provisions.” Report Date: September 13, 2021 Staff Contact: Nakeisha Lyon, Associate Planner Agenda Item Type: Action (Quasi-judicial) EXECUTIVE SUMMARY Unresolved Issues There are no known unresolved issues. Project Summary This report is based on the application materials submitted and any public comment received to date. The Department of Community Development received a Preliminary Plat Application on July 14, 2021 requesting a first minor subdivision of one lot of 0.74 acres to create two lots, one of 13 21282, City Commission Findings of Fact, The Soper Minor Subdivision Preliminary Plat Page 2 of 22 0.43 acres and one of .31 acres. The property is zoned R-2, Residential Moderate Density District and is located in the NCOD, Neighborhood Conservation Overlay District. There are three existing structures located on the subject property, a single family home, detached garage and chicken coop. These structures have been deemed non-eligible historic structures as they do not meet the definition provided in article 7 of the Bozeman Municipal Code (BMC) for historic structures. The existing structures are not eligible for the National Register of Historic Places per the applicable 2021 Montana Historic Property Record Survey conducted on the subject property. In order to subdivide the subject property and meet applicable form and intensity standards of the R-2 zoning district, the existing structures were approved for demolition on April 1, 2021, within a NCOA, Neighborhood Certificate of Appropriateness, application 21-036 based on their non- eligible status. The future development of these lots will be require NCOA applications to evaluate any proposed structures in conformance with The Design Guidelines for Historic Preservation and the Neighborhood Conservation Overlay, and Section 38.340.050 of the BMC. This subdivision is a first minor subdivision from a tract of record and does not require Planning Board review. State statute requires the City Commission to consider and make a decision on the subdivision application and the Community Development Director’s recommendation during a regular public meeting. On August 31, 2021, the Development Review Committee (DRC) found the application adequate for continued review and recommends the conditions and code provisions identified in this report. The subdivider did not request any subdivision or zoning variances with this application. The City has received four written public comments on the application as of the writing of this report. The final decision for a first minor subdivision preliminary plat must be made within 35 working days of the date it was deemed adequate; in this case by October 20, 2021. The public meeting date for the City Commission was September 21, 2021. The hearing was held via WebEx. The City Commission met to consider the application for a preliminary plat for the subdivision of 0.74 acres to create two residentially-zoned lots. There were no members of the public that spoke at the hearing which can be viewed at the link below. After the City Commission reviewed and considered the application materials, staff report, advisory review board recommendations, public comment, and all the information presented, they made individual findings and voted 5:0 to approve the motion to approve the application. The Commission agreed that the application met the criteria established by the Bozeman Municipal Code. Therefore, the application was approved with conditions and applicable code provisions outlined in these findings. 14 21282, City Commission Findings of Fact, The Soper Minor Subdivision Preliminary Plat Page 3 of 22 The City Commission’s review, deliberation and findings may be found under the linked minutes and recorded video of the meetings located at this web paged filed under September 21, 2021: https://www.bozeman.net/government/city-commission/city-commission-video Alternatives There are no alternatives at this time. 15 21282, City Commission Findings of Fact, The Soper Minor Subdivision Preliminary Plat Page 4 of 22 TABLE OF CONTENTS EXECUTIVE SUMMARY ........................................................... Error! Bookmark not defined. Unresolved Issues. ............................................................. Error! Bookmark not defined. Project Summary ................................................................ Error! Bookmark not defined. Alternatives ......................................................................................................................... 3 SECTION 1 – MAP SERIES .......................................................................................................... 5 SECTION 2 – REQUESTED VARIANCES ................................................................................. 7 SECTION 3 – CONDITIONS OF APPROVAL ............................................................................ 7 SECTION 4 – CODE REQUIREMENTS REQUIRING PLAT CORRECTIONS ....................... 8 SECTION 5 – APPROVAL AND FUTURE ACTIONS ............................................................... 9 SECTION 6 – STAFF ANALYSIS and findings ........................................................................... 9 Applicable Subdivision Review Criteria, Section 38.240.130.A.5.e, BMC. ...................... 9 Primary Subdivision Review Criteria, Section 76-3-608 ................................................. 12 Preliminary Plat Supplements ........................................................................................... 14 SECTION 7 – FINDINGS OF FACT, ORDER AND APPEAL PROVISIONS ......................... 17 APPENDIX A – PROJECT SITE ZONING AND GROWTH POLICY..................................... 19 APPENDIX B – DETAILED PROJECT DESCRIPTION .......................................................... 19 APPENDIX C – NOTICING AND PUBLIC COMMENT ......................................................... 19 APPENDIX D – PROJECT BACKGROUND ............................................................................. 20 APPENDIX E – OWNER INFORMATION AND REVIEWING STAFF ................................. 20 FISCAL EFFECTS ....................................................................................................................... 20 ATTACHMENTS ......................................................................................................................... 20 PUBLIC COMMENTS ………………………………………………………………………….21 16 21282, City Commission Findings of Fact, The Soper Minor Subdivision Preliminary Plat Page 5 of 22 SECTION 1 – MAP SERIES Figure 1. Zoning Classification 17 21282, City Commission Findings of Fact, The Soper Minor Subdivision Preliminary Plat Page 6 of 22 Figure 2. Preliminary Plat 18 21282, City Commission Findings of Fact, The Soper Minor Subdivision Preliminary Plat Page 7 of 22 SECTION 2 – REQUESTED VARIANCES The subdivider did not request any subdivision or zoning variances with this preliminary plat application. SECTION 3 – CONDITIONS OF APPROVAL Please note that these conditions are in addition to any required code provisions identified in this report. These conditions are specific to the preliminary plat application. Staff has considered the impacts as identified in the staff analysis and application materials and these conditions of approval are reasonably related and roughly proportionate to the development. 1. BMC 38.220.070 - The final plat must contain the following notation on the Conditions of Approval sheet prior to Final Plat Approval: a. Development creating only one additional dwelling unit or increasing occupancy of group quarters by no more than four persons is exempt from parkland contribution pursuant to 38.420.020.B, therefore, development on [describe new lot] may add one residential unit under the exemption. Subsequent units on either lot will no longer meet the exemption and will require parkland contribution (38.420.020.C). 2. BMC 38.240.470. Upon submittal of the final plat, please provide the approved Municipal Facilities Exclusion from the Department of Environmental Quality. 3. BMC 38.400.020. a. The applicant provided an adequate draft SID Waiver draft for the above noted property. The applicant must execute and file the SID Waiver with the county clerk and provide a copy of the final executed and filed SID waiver to the project engineer prior to final plat approval. 4. BMC 38.410.060. a. The applicant provided adequate drafts of the 10’ utility easement and 20’ storm drainage easement. The applicant must provide hard copies of the easements to the project engineer for reporting to the commission and filing with the county clerk. The easements must be recorded and filed with the county prior to final plat approval. b. The final plat must provide all existing and proposed utility easements and must be described, dimensioned and shown on each subdivision block of the final plat in their true and correct location. 5. BMC 38.410.130.C. If water rights or cash-in-lieu of water rights, have not been provided with Final Plat, then water rights or cash-in-lieu must be provided with any future site plan development or applicable development application. 19 21282, City Commission Findings of Fact, The Soper Minor Subdivision Preliminary Plat Page 8 of 22 SECTION 4 - CODE REQUIREMENTS REQUIRING PLAT CORRECTIONS The following are procedural requirements not yet demonstrated by the plat and must be satisfied at the final plat. 1. BMC 38.100.080.A. The applicant is advised that unmet code provisions, or code provisions that are not specifically listed as conditions of approval, does not, in any way, create a waiver or other relaxation of the lawful requirements of the Bozeman Municipal Code or state law. 2. BMC 38.240.150. The final plat must conform to all requirements of the Bozeman Municipal Code and the Uniform Standards for Subdivision Plats (Uniform Standards for Certificates of Survey and Subdivision Plats (24.183.1104 ARM) and shall be accompanied by all required documents, including certification from the City Engineer that as-built drawings for public improvements were received, a platting certificate, and all required and corrected certificates. The Final Plat application shall include three (3) signed reproducible copies on a 3 mil or heavier stable base polyester film (or equivalent). The Gallatin County Clerk & Recorder’s office has elected to continue the existing medium requirements of 2 mylars with a 1½” binding margin on one side for both plats and COS’s. The Clerk and Recorder will file the new Conditions of Approval sheet as the last same sized mylar sheet in the plat set. 3. BMC 38.240.510. Please include a separate sheet as part of the plat for conditions of approval. Said sheet must contain the certificate denoted in this section of the BMC which states the following: NOTIFICATIONS AND CERTIFICATIONS (I), (We), the undersigned property owner(s), do hereby certify that the text and/or graphics shown on the Conditions of Approval sheet(s) represent(s) requirements by the governing body for final plat approval and that all conditions of subdivision application have been satisfied. (I), (We), the undersigned property owner(s), do hereby certify that the information shown is current as of the date of this certification, and that changes to any land-use restrictions or encumbrances may be made by amendments to covenants, zoning regulations, easements, or other documents as allowed by law or by local regulations. (I), (We), the undersigned property owner(s), do hereby certify that (I) (We) acknowledge that federal, state, and local plans, policies, regulations, and/or conditions of subdivision approval may limit the use of the property, including the location, size, and use as shown on the Conditions of Approval sheet or as otherwise stated. Buyers of property should ensure that they have obtained and reviewed all sheets of the plat and all documents recorded and filed in conjunction with the plat. Buyers of property are strongly encouraged to contact the local planning department and become informed of any limitations on the use of the property prior to closing. DATED this _______ day of _______, _______. (Acknowledged and notarized signatures of all record owners of platted property) 20 21282, City Commission Findings of Fact, The Soper Minor Subdivision Preliminary Plat Page 9 of 22 SECTION 5 – APPROVAL AND FUTURE ACTIONS The DRC determined that the application is adequate for continued review and found that application conforms to standards and is sufficient for approval with conditions and code provisions on August 31, 2021. This subdivision is a first minor subdivision from a tract of record and does not require Planning Board review. State statute requires the City Commission to consider and make a decision on the subdivision application and the Community Development Director’s recommendation during a regular public meeting. A public meeting was held in front of the City Commission on this minor subdivision preliminary plat on September 21, 2021 via WebEx. The City Commission’s review, deliberation and findings may be found under the linked minutes and recorded video of the meetings located at this web paged filed under September 21, 2021: https://www.bozeman.net/government/city-commission/city-commission-video SECTION 6 – STAFF ANALYSIS AND FINDINGS Analysis and resulting recommendations are based on the entirety of the application materials, municipal codes, standards, and plans, public comment, and all other materials available during the review period. Collectively this information is the record of the review. The analysis is a summary of the completed review. Applicable Subdivision Review Criteria, Section 38.240.130.A.5.b, BMC. In considering applications for subdivision approval under this title, the advisory boards and City Commission shall consider the following: 1) Compliance with the survey requirements of Part 4 of the Montana Subdivision and Platting Act The preliminary plat has been prepared in accordance with the survey requirements of the Montana Subdivision and Platting Act by a Professional Engineer registered in the State of Montana. As noted in the code requirements, the final plat must comply with State statute, Administrative Rules of Montana, and the BMC. A conditions of approval sheet must be included and updated with the required notations can be added as required by conditions or code. 2) Compliance with the local subdivision regulations provided for in Part 5 of the Montana Subdivision and Platting Act The final plat must comply with the standards identified and referenced in the BMC. The applicant is advised that unmet code provisions, or code provisions that are not specifically listed as a condition of approval, does not, in any way, create a waiver or other relaxation of the lawful requirements of the Bozeman Municipal Code or State law. Sections 3 and 4 of this report identify conditions and code corrections necessary to meet all regulatory standards. Therefore, upon 21 21282, City Commission Findings of Fact, The Soper Minor Subdivision Preliminary Plat Page 10 of 22 satisfaction of all conditions and code corrections the subdivision will comply with the local subdivision regulations. 3) Compliance with the local subdivision review procedures provided for in Part 6 of the Montana Subdivision and Platting Act The Bozeman City Commission public meeting was properly noticed in accordance with the Bozeman Municipal Code. Based on the recommendation of the Development Review Committee (DRC) and other applicable review agencies, as well as any public testimony received on the matter, the City Commission will make the final decision on the subdivider’s request. The Department of Community Development received a preliminary plat application on July 13, 2021. The DRC reviewed the preliminary plat application and determined the submittal did not contained detailed, supporting information that was sufficient to allow for the continued review of the proposed subdivision on August 16, 2021. A revised application was received on August 25, 2021. The DRC determined the application was adequate for continued review on August 31, 2021 and recommended conditions of approval and code corrections for the staff report. The City scheduled public notice for this application from September 3, 2021 to September 17, 2021. The applicant posted public notice on the subject property on September 2, 2021. The applicant sent public notice to adjacent landowners of record within 200-feet of the subject property via non-certified mail on September 2, 2021. Four public comments were received on this application as of the writing of the staff report. Three additional public comments were received prior to the end of the public notice period and enclosed in this findings of fact and order. On September 13, 2021 staff completed and forwarded the staff report for this first minor subdivision preliminary plat application with a recommendation of conditional approval for consideration by the City Commission, which was held on the September 21, 2021 public meeting. After the City Commission reviewed and considered the application materials, staff report, advisory review board recommendations, public comments, and all the information presented, they made individual findings and voted 5:0 to approve the motion to approve the application. The Commission agreed that the application met the criteria established by the Bozeman Municipal Code. Therefore, the application was approved with conditions and applicable code provisions outlined in these findings. The City Commission’s review, deliberation and findings may be found under the linked minutes and recorded video of the meetings located at this web paged filed under September 21, 2021: https://www.bozeman.net/government/city-commission/city-commission-video 22 21282, City Commission Findings of Fact, The Soper Minor Subdivision Preliminary Plat Page 11 of 22 4) Compliance with Chapter 38, BMC and other relevant regulations Community Development Staff and the DRC reviewed the preliminary plat against all applicable regulations and the application complies with the BMC and all other relevant regulations with conditions and code corrections. This report includes Conditions of Approval and required code provisions as recommended by the DRC for consideration by the City Commission to complete the application processing for final plat approval. All municipal water and sewer facilities will conform to the regulations outlined by the Montana Department of Environmental Quality and the requirements of the Design Standards and Specifications Policy and the City of Bozeman Modifications to Montana Public Works Standard Specifications. 5) The provision of easements to and within the subdivision for the location and installation of any necessary utilities The final plat will provide and depict all necessary utilities and required utility easements. Condition of approval 4 requires that all easements, existing and proposed, must be accurately depicted and addressed on the final plat and in the final plat application. Additionally, the applicant has provided adequate drafts of the 10’ utility easement and 20’ storm drainage easement located on the subject property. The applicant must provide hard copies of the easements to the project engineer for reporting to the commission and filing with the county clerk. The easements must be recorded and filed with the county prior to final plat approval. 6) The provision of legal and physical access to each parcel within the subdivision and the notation of that access on the applicable plat and any instrument transferring the parcel The final plat will provide legal and physical access to each parcel within the subdivision via South Tracy Avenue which is a public street classified under the local designation. All of the proposed lots have frontage on South Tracy Avenue. Lot access will be in conformance with the city design standards and specifications per the BMC requirements. 23 21282, City Commission Findings of Fact, The Soper Minor Subdivision Preliminary Plat Page 12 of 22 Primary Subdivision Review Criteria, Section 76-3-608 1) The effect on agriculture This subdivision will not impact agriculture. The subject property is designated as Urban Neighborhood according to the City of Bozeman Community Plan. The area is zoned for residential moderate density development. The intent of the application denotes the development of a single-household dwelling unit on one of the lots (Lot 2), and a two household dwelling unit on the other (Lot 1). There is no type of agricultural production or any agricultural operations in the vicinity of the proposed subdivision. The NRCS Soil Survey shows the project area to only contain UL (Urban Land) soil types. There are three existing structures located on the subject property which have been deemed non- eligible historic structures and were approved for demolition on April 1, 2021, within NCOA application 21-036. 2) The effect on Agricultural water user facilities This subdivision will not impact agricultural water user facilities. No irrigation facilities are present on the lots. No water body alterations are proposed 3) The effect on Local services Water/Sewer – Adequate water and sewer capacity exists to serve the one additional lot created by this subdivision. Per condition of approval 5, if water rights or cash-in-lieu of water rights, have not been provided with Final Plat, then water rights or cash-in-lieu must be provided with any future site plan development or applicable development application. Utilities – Utilities to serve the one additional lot created by this subdivision exist. There is an existing ¾” gas service and overhead electric service that need to be disconnected and/or removed prior to the demolition of the existing structures. NorthWestern Energy will be providing gas and electrical services to the proposed subdivision when requested by the applicant or future property owners during the future site development of the lots. Streets –The preliminary plat utilizes South Tracy Avenue (local) to provide primary site connectivity. There are no proposed public or private streets, or substantial improvements to existing streets (South Tracy Avenue). Any modification to South Tracy Avenue will only include curb cuts for driveways into the two lots. All maintenance is already provided by the City of Bozeman for the existing public streets adjacent to the subject property. A traffic impact study is not necessary for the addition of one residential lot in this urban setting as daily traffic generated will not be measurably affected. Police/Fire – The City of Bozeman’s Police and Fire emergency response area includes the subject property. This subdivision does not impact the City’ ability to provide emergency services to the property. Stormwater - The first minor subdivision will not impact stormwater infrastructure as existing drainage and stormwater capacity exists to serve the one additional lot created by this 24 21282, City Commission Findings of Fact, The Soper Minor Subdivision Preliminary Plat Page 13 of 22 subdivision. The stormwater analysis and calculations provided by the applicant during the Preliminary Plat indicate that the proposed storm water facilities and management plan for the proposed subdivision is adequate to safely convey the 10-year storm event and to satisfy the City of Bozeman regulations for 10-year peak attenuation. Parklands - The proposed subdivision is not required to provide parklands based on the proposed creation of one additional lot or one additional dwelling unit, and condition of approval 1 denotes that any subsequent units on either lot will no longer meet the exemption and will require parkland contribution (38.420.020.C). Therefore, parklands, either land dedication, or cash in lieu of land dedication, may be required upon development of the one additional lot if said lot is a two-household dwelling unit. 4) The effect on the Natural environment No significant physical or topographical features have been identified, (e.g., outcroppings, geological formations, steep slopes), on the subject property. Provisions will be made to address the control of noxious weeds and maintenance of the property through an approved Weed Management Plan (WMP) on file with the Gallatin County Weed District for Soper Minor Subdivision which is valid from June 7, 2021 – June 7, 2023. 5) The effect on Wildlife and wildlife habitat The subdivision will not significantly impact wildlife and wildlife habitat. There are no key wildlife areas that exist on this urban property. Pet/human activity is already very prevalent in the area and public access to parks or trails is not affected. There are no known endangered or threatened species on the property. 6) The effect on Public health and safety With the recommended conditions of approval and required plat corrections, the subdivision will not significantly impact public health and safety. The intent of the regulations in Chapter 38 of the BMC is to protect the public health, safety and general welfare. The subdivision has been reviewed by the DRC which has determined that it is in general compliance with the title with conditions and code provisions. Any other conditions deemed necessary to ensure compliance have been noted throughout this staff report. Code correction 1 requires full compliance with all applicable code requirements. In addition, all subdivisions must be reviewed against the criteria listed in 76-3-608.3.b-d, Montana Code Annotated (MCA). As a result, the Department of Community Development reviewed this application against the listed criteria and further provides the following summary for submittal materials and requirements. This report includes findings to justify the recommended site-specific Conditions of Approval for reasonable mitigation of impacts from the proposed minor subdivision. 25 21282, City Commission Findings of Fact, The Soper Minor Subdivision Preliminary Plat Page 14 of 22 Preliminary Plat Supplements A subdivision pre-application plan review was completed by the DRC on June 24, 2021. Staff offers the following summary comments on the supplemental information required with Article 38.220.060, BMC. 38.220.060.A.1 Surface Water This subdivision will not significantly impact surface water. The Mathew Bird Creek is a surface water that runs north-south to the east of the subject property. There are no natural or artificial water systems running through or affecting the property. On June 2, 2021, the applicant requested a waiver of this supplemental information which was granted on June 24, 2021. 38.220.060.A.2 Floodplains No mapped 100-year floodplains impact the subject property. This subdivision will not be impacted by floodplains. The water systems mentioned above do not affect the project area. Zone X and Zone AE are delineated along the boundaries of the Mathew Bird Creek. On June 2, 2021, the applicant requested a waiver of this supplemental information which was granted on June 24, 2021. 38.220.060.A.3 Groundwater This subdivision will not significantly impact groundwater. The existing buildings and topographic relief demonstrate this. On June 2, 2021, the applicant requested a waiver of this supplemental information which was granted on June 24, 2021. 38.220.060.A.4 Geology, Soils and Slopes This subdivision will not significantly impact the geology, soils or slopes. No significant geological features or slopes exist on the site. On June 2, 2021, the applicant requested a waiver of this supplemental information which was granted on June 24, 2021. 38.220.060.A.5 Vegetation There are no major vegetation types or critical plant species present on this site only small landscaping features like trees, bushes, and grass exist. On June 2, 2021, the applicant requested a waiver of this supplemental information which was granted on June 24, 2021. 38.220.060.A.6 Wildlife This subdivision will not significantly impact wildlife. The proposed subdivision does not contain any known critical, significant or key wildlife areas. Please see discussion above under primary review criteria for more information. On June 2, 2021, the applicant requested a waiver of this supplemental information which was granted on June 24, 2021. 38.220.060.A.7 Historical Features This subdivision will not significantly impact historical features. The subdivision is not located in any of the historic districts. There are also no known historic, archaeological, or cultural sites 26 21282, City Commission Findings of Fact, The Soper Minor Subdivision Preliminary Plat Page 15 of 22 around the vicinity of the subject property. On June 2, 2021, the applicant requested a waiver of this supplemental information which was granted on June 24, 2021. The proposed subdivision is located within the NCOD. There are three existing structures located on the subject property, a single family home, detached garage and chicken coop. These structures have been deemed non-eligible historic structures as they do not meet the definition provided in article 7 of the Bozeman Municipal Code (BMC) for historic structures. The existing structures are not eligible for the National Register of Historic Places per the applicable 2021 Montana Historic Property Record Survey conducted on the subject property. In order to subdivide the subject property and meet applicable form and intensity standards of the R-2 zoning district, the existing structures were approved for demolition on April 1, 2021, within a NCOA, Neighborhood Certificate of Appropriateness, application 21-036 based on their non- eligible status. The future development of these lots will be require NCOA applications to evaluate any proposed structures in conformance with The Design Guidelines for Historic Preservation and the Neighborhood Conservation Overlay, and Section 38.340.050 of the BMC. 38.220.060.A.8 Agriculture This subdivision will not impact agriculture. On June 2, 2021, the applicant requested a waiver of this supplemental information which was granted on June 24, 2021. Please see discussion above under primary review criteria for more information. 38.220.060.A.9 Agricultural Water User Facilities This subdivision will not impact agricultural water user facilities. No irrigation facilities are present on the lots. No water body alterations are proposed. On June 2, 2021, the applicant requested a waiver of this supplemental information which was granted on June 24, 2021. Please see discussion above under primary review criteria for more information. 38.220.060.A.10 Water and Sewer The subdivision will not significantly burden the City’s water and sewer infrastructure. On June 2, 2021, the applicant requested a waiver of this supplemental information which was granted on June 24, 2021. However, the Engineering Department required further information during the Preliminary Plat Process to ensure the proposed subdivision does not burden the City’s water and sewer infrastructure. Please see discussion above under primary review criteria for more information. 38.220.060.A.11 Stormwater Management The subdivision will not significantly impact stormwater infrastructure. On June 2, 2021, the applicant requested a waiver of this supplemental information which was granted on June 24, 2021. However, the Engineering Department required further information during the Preliminary Plat Process to ensure the proposed subdivision does not burden the City’s stormwater infrastructure. Please see discussion above under primary review criteria for more information. 27 21282, City Commission Findings of Fact, The Soper Minor Subdivision Preliminary Plat Page 16 of 22 38.220.060.A.12 Streets, Roads and Alleys The subdivision will not significantly impact the City’s street infrastructure and will provide adequate improvements to support the development. See discussion above under primary review criteria. 38.220.060.A.13 Utilities This subdivision will not significantly impact utilities. On June 2, 2021, the applicant requested a waiver of this supplemental information which was granted on June 24, 2021. However, the Engineering Department required further information during the Preliminary Plat Process to ensure the proposed subdivision does not burden the utility infrastructure. Please see discussion above under primary review criteria for more information. 38.220.060.A.14 Educational Facilities The subdivision for the addition of one lot to the existing area will not a significantly impact the existing enrollment of educational facilities and their supporting elements. On June 2, 2021, the applicant requested a waiver of this supplemental information which was granted on June 24, 2021. 38.220.060.A.15 Land Use The subdivision will not significantly impact land use. The proposed subdivision will create two lots for low density residential use. The property is zoned R-2, Residential Moderate Density District, and is designated as an Urban Neighborhood in the Bozeman Community Plan 2020. On June 2, 2021, the applicant requested a waiver of this supplemental information which was granted on June 24, 2021. 38.220.060.A.16 Parks and Recreation Facilities The subdivision will not significantly impact parks and recreation facilities. On June 2, 2021, the applicant requested a waiver of this supplemental information which was granted on June 24, 2021. Please see discussion above under primary review criteria for more information. 38.220.060.A.17 Neighborhood Center Plan The proposed subdivision does not contain nor require a neighborhood center. On June 2, 2021, the applicant requested a waiver of this supplemental information which was granted on June 24, 2021. 38.220.060.A.18 Lighting Plan This proposed subdivision does not propose any new lighting or lighting alterations. On June 2, 2021, the applicant requested a waiver of this supplemental information which was granted on June 24, 2021. 28 21282, City Commission Findings of Fact, The Soper Minor Subdivision Preliminary Plat Page 17 of 22 38.220.060.A.19 Miscellaneous No additional impacts or hazards are anticipated for this proposed subdivision. On June 2, 2021, the applicant requested a waiver of this supplemental information which was granted on June 24, 2021. 38.220.060.A.20 Affordable Housing Due to HB 259, the City is unable to enforce the requirements of Sec. 38.380 the BMC. SECTION 7 – FINDINGS OF FACT, ORDER AND APPEAL PROVISIONS A. PURSUANT to Chapter 38, Article 2, BMC, and other applicable sections of Chapter 38, BMC, public notice was given, opportunity to submit comment was provided to affected parties, and a review of the preliminary plat described in these findings of fact was conducted. B. The purposes of the preliminary plat review were to consider all relevant evidence relating to public health, safety, welfare, and the other purposes of Chapter 38, BMC; to evaluate the proposal against the criteria and standards of Chapter 38 BMC, BMC; and to determine whether the plat should be approved, conditionally approved, or denied. C. The matter of the preliminary plat application was considered by the City Commission at a public meeting on September 21, 2021 at which time the Department of Community Development Staff reviewed the project, submitted and summarized the conditions of approval, clarified unresolved issues and summarized the public comment submitted to the City prior to the public hearing. D. The applicant, Genesis Engineering, Inc., acknowledged understanding and agreement with the recommended conditions of approval and code provisions. E. The City Commission requested public comment at the public meeting on September 21, 2021 and received no comments for the project. A video recording of the public meeting may be found under the linked minutes and recorded video of the meetings located at this web paged filed under September 21, 2021: https://www.bozeman.net/government/city-commission/city-commission-video F. It appeared to the City Commission that all parties and the public wishing to examine the proposed preliminary plat and offer comment were given the opportunity to do so. After receiving the recommendation of the relevant advisory bodies established by Section Chapter 38, BMC, and considering all matters of record presented with the application and during the public comment period defined by Chapter 38, BMC, the City Commission has found that the proposed preliminary plat would comply with the requirements of the Bozeman Municipal Code if certain conditions were imposed. Therefore, being fully advised of all matters having come before the governing body regarding this application, the City Commission makes the following decision. 29 21282, City Commission Findings of Fact, The Soper Minor Subdivision Preliminary Plat Page 18 of 22 G. The preliminary plat has been found to meet the criteria of Chapter 38, BMC, and is therefore approved, subject to the conditions listed in Section 3 of this report and the correction of any elements not in conformance with the standards of the Chapter including those identified in Section 3 of this report. The evidence contained in the submittal materials, advisory body review, public testimony, and this report, justify the conditions imposed on this development to ensure that the final site plan and subsequent construction complies with all applicable regulations, and all applicable criteria of Chapter 38, BMC. H. This City Commission order may be appealed by bringing an action in the Eighteenth District Court of Gallatin County, within 30 days after the adoption of this document by the City Commission, by following the procedures of Section 76-3-625, MCA. The preliminary approval of this single phased first minor subdivision shall be effective for one (1) year from the date of the signed Findings of Fact and Order approval. At the end of this period the City may, at the request of the subdivider, grant an extension to its approval by the Community Development Director for a period of mutually agreed upon time. DATED this ______ day of ___________, 2021 BOZEMAN CITY COMMISSION ____________________________ Cynthia L. Andrus Mayor ATTEST _______________________ Mike Maas City Clerk APPROVED AS TO FORM: ___________________________ GREG SULLIVAN City Attorney 30 21282, City Commission Findings of Fact, The Soper Minor Subdivision Preliminary Plat Page 19 of 22 APPENDIX A –PROJECT SITE ZONING AND GROWTH POLICY Zoning Designation and Land Uses: The property is zoned R-2, Residential Moderate Density District. The intent of the R-2 district is to provide for one- and two-household residential development at urban densities within the city in areas that present few or no development constraints. These purposes are accomplished by: providing for minimum lot sizes in developed areas consistent with the established development patterns while providing greater flexibility for clustering lots and housing types in newly developed areas, and providing for community facilities to serve such development while respecting the residential quality and nature of the area. Use of this zone is appropriate for areas with moderate access to parks, community services and/or transit. Adopted Growth Policy Designation: This property is designated as Urban Neighborhood in the 2020 Community Plan. This category primarily includes urban density homes in a variety of types, shapes, sizes, and intensities. Large areas of any single type of housing are discouraged. In limited instances, an area may develop at a lower gross density due to site constraints and/or natural features such as floodplains or steep slopes. Complementary uses such as parks, home-based occupations, fire stations, churches, schools, and some neighborhood-serving commerce provide activity centers for community gathering and services. The Urban Neighborhood designation indicates that development is expected to occur within municipal boundaries. This may require annexation prior to development. Applying a zoning district to specific parcels sets the required and allowed density. Higher density residential areas are encouraged to be, but are not required or restricted to, proximity to commercial mixed use areas to facilitate the provision of services and employment opportunities without requiring the use of a car. This proposed subdivision is well-suited to implement the Urban Neighborhood designation based on the location and proposal for a duplex on one lot, and single family home on the other. The proposed subdivision will blend well with adjacent properties and uses. APPENDIX B – DETAILED PROJECT DESCRIPTION Project Background and Description A preliminary plat application by the property owner and applicant, Charles and Heidi Soper, and represented by Genesis Engineering, Inc., Architecture, Inc to allow the subdivision of 0.74 acres into two lots. APPENDIX C– NOTICING AND PUBLIC COMMENT Notice was provided at least 15 and not more than 45 days prior to the City Commission public meetings. BMC 38.220.420, Notice was provided by posting on the site and mailing the public 31 21282, City Commission Findings of Fact, The Soper Minor Subdivision Preliminary Plat Page 20 of 22 notice to adjacent landowners of record within 200-feet of the subject property via non-certified mail by September 2, 2021. The site was posted with a notice on September 2, 2021. Content of the notice contained all elements required by Article 38.220., BMC. Public comments have been received in regards to the existing home on the subject property and its historic status and demolition, the subdivision of the tract, and affordable housing. The historic status has been evaluated and determined to be “non-eligible”. The future development of these lots will be require NCOA applications to evaluate any proposed structures in conformance with The Design Guidelines for Historic Preservation and the Neighborhood Conservation Overlay, and Section 38.340.050 of the BMC. No archaeological significance has been identified within the Montana Historic Property Record Survey nor within the applicant’s submittal documents. APPENDIX D – PROJECT BACKGROUND In order to subdivide the subject property and meet applicable form and intensity standards of the R-2 zoning district, the existing structures were approved for demolition on April 1, 2021, within NCOA application 21-036 based on their non-eligible status. A subdivision pre-application plan was reviewed by the DRC in June 2021. APPENDIX E - OWNER INFORMATION Owner/Applicant: Charles & Heidi Soper, 124 N. Black Ave., Bozeman, MT 59715 Representatives: Chris Wasia, Genesis Engineering, Inc, 204 N. 11th Ave., Bozeman, MT 59715 Report By: Nakeisha Lyon, AICP, Associate Planner FISCAL EFFECTS No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this subdivision. ATTACHMENTS The full application and file of record can be viewed digitally at https://www.bozeman.net/government/planning/using-the-planning-map, select the “Project Documents Folder” link and navigate to application #21282, as well as digitally at the Community Development Department at 20 E. Olive Street, Bozeman, MT 59715. Application materials – Available through the Laserfiche archive linked agenda materials and the full file is linked below. https://weblink.bozeman.net/WebLink/Browse.aspx?id=238787&dbid=0&repo=BOZEMAN This project can be viewed on the Community Development Viewer interactive map directly with this link: https://gisweb.bozeman.net/Html5Viewer/?viewer=planning&FILE_NUMBER=21-282 32 21282, City Commission Findings of Fact, The Soper Minor Subdivision Preliminary Plat Page 21 of 22 PUBLIC COMMENTS Public Comments: Seven public comments as denoted below – 1. John Carson Address: Unknown Received: Via Email Public Comment: I love the historic house of 918 S Tracy. I have good friends that have lived here and it is an incredible place that really means a lot to the people of Bozeman. I would prefer to not divide the lot as it is a great lot! 2. Bronwyn McCormick Address: Unknown Received: Via Email Public Comment: Please reconsider destroying this home. This is a historic & beautiful log cabin that provides affordable housing for Bozeman locals. Changing this landscape will negatively affect people’s lives and contribute to the “BozeAngeles” trend Bozeman Montana is tragically experiencing. 3. Ben Morris Address: Unknown Received: Via Email Public Comment: I am a citizen of Bozeman. One of the things I love about bozeman is its architectural charm. The house on 918 s Tracy Ave is a very charming and valuable piece of architectural history in town. It is also of archaeological significance, with a group of students discovering artifacts around the property. So as a citizen of Bozeman who appreciates its aesthetics, I stand against the subdivision of the property on which 918 s Tracy Ave resides. 4. Evelyn Power Address: Unknown Received: Via Email Public Comment: This lot holds the potential of providing college students and community members with a safe and affordable place to live. Please think about the ramifications of destroying such a beautiful home before greed overtakes decision making. The destruction of old homesteads like the one you own, is a pitiful response to gentrification and erasing the beauty that historic towns could otherwise preserve. Please give this conscientious thought before proceeding. 5. Deb Love Address: Unknown Received: Via Email Public Comment: I am writing in support of the Soper minor subdivision at 918 S. Tracy. I am a neighbor, backing up to this property on S. Black, as well as a former tenant of 918. I see absolutely no reason why the city would not approve splitting this rather enormous lot in two. It is surrounded by apartment buildings, so a subdivision would not impact neighbors, including myself, and in fact, should be promoted as infill. I can also 33 21282, City Commission Findings of Fact, The Soper Minor Subdivision Preliminary Plat Page 22 of 22 attest to the condition of the house that would come down. Suffice it to say that it has lived a long, long life and is ready to go. The Sopers are lifelong Bozeman residents and were amazing landlords. When I first moved to Bozeman 16 years ago, into that house, they welcomed my family with home-baked goodies and warm hearts. They became dear friends. I hope our entire neighborhood can extend that same warm welcome to them as they move from landlords to tenants at 918. Please approve this subdivision. 6. Carson Taylor Address: Unknown Received: Via Email Public Comment: My wife and I live across Tracy Street from the subject property. We wish to reflect our support for the Proposal to sub-divide. While the existing house is unique and interesting, we believe that any proposal that will add more dense development is good for our entire community. Adding the density that is proposed by the request, will not significantly change the neighborhood. 7. Geoffrey (Jeff) Hetrick Address: 1005 S. Black Avenue Received: Via Email Public Comment: To whom it may concern I received a notice about the Soper subdivision on South Tracy. I just wanted to make a comment as someone who lives in the neighborhood right nearby. I’m all for it. It seems like a good idea with Bozeman’s booming population to make it possible for more housing to be built. Subdividing the property will not affect the neighborhood adversely. I see no reason to oppose it. 34 Memorandum REPORT TO:City Commission FROM:Melody Mileur, Communications Coordinator SUBJECT:Authorize City Manager to Sign a Professional Services Agreement with Bang the Table for an Online Community Engagement Platform MEETING DATE:October 19, 2021 AGENDA ITEM TYPE:Citizen Advisory Board/Commission RECOMMENDATION:Authorize City Manager to sign a professional services agreement with Bang the Table for an online community engagement platform. STRATEGIC PLAN:1.2 Community Engagement: Broaden and deepen engagement of the community in city government, innovating methods for inviting input from the community and stakeholders. BACKGROUND:The Bozeman City Commission Strategic Plan identifies community engagement as a top priority. In April 2021 the City Commission adopted the Engage Bozeman Community Engagement Initiative as a guiding framework for how City staff, leadership and the community can contribute to a collaborative approach to local governance. Engage Bozeman's guiding principles include "innovation and adaptation" around how engagement is conducted in Bozeman. Additionally, throughout the engagement process members of the public supported an online tool that would provide a single location for community members to find and participate in different city projects' engagement processes. Bang the Table will allow for community members to engage in their own time, in one location, making it easy and accessible for those who participate. UNRESOLVED ISSUES:None. ALTERNATIVES:At the direction of the City Commission. FISCAL EFFECTS:The funding for this service has been approved in the City Manager's FY 22 budget for continuing our commitment to innovating and adapting community engagement best practices. Attachments: PSA Engagement Platform Bang the Table Report compiled on: October 7, 2021 35 Page 1 of 19 NONDISCRIMINATION AND EQUAL PAY AFFIRMATION Bang the Table (name of entity submitting) hereby affirms it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and acknowledges and understands the eventual contract will contain a provision prohibiting discrimination as described above and this prohibition on discrimination shall apply to the hiring and treatments or proposer’s employees and to all subcontracts. In addition, Bang the Table (name of entity submitting) hereby affirms it will abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act), and has visited the State of Montana Equal Pay for Equal Work “best practices” website, https://equalpay.mt.gov/BestPractices/Employers, or equivalent “best practices publication and has read the material. Brendan Stierman, Contracts Manager (Name and title of person authorized to sign on behalf of submitter) 36 Page 2 of 19 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 1st day of November, 2021 (“Effective Date”), by and between the CITY OF BOZEMAN, MONTANA,a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and, Bang the Table, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1.Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as Exhibit A and by this reference made a part hereof. The Agreement consists of this Professional Services Agreement, Exhibit A (Scope of Services), and the additional terms set forth in Exhibit A-1 (Master Terms and Conditions), and Exhibit B (Cloud Service Questions). Any conflict between these documents will be resolved in favor of the Professional Services Agreement, then Exhibit A and Exhibit A-1, then Exhibit B. 2.Term/Effective Date: This Agreement is effective upon the Effective Date and will expire on the 30 th day of November, 2022, unless earlier terminated in accordance with this Agreement. 3.Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. Contractor agrees to be bound by its responses to the City’s Cloud Services Questions, attached to this Agreement as Exhibit B and made part of this Agreement. 4.Payment: City agrees to pay Contractor the amount specified in the Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: 37 Page 3 of 19 a.Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b.Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. EXCEPT FOR THE FOREGOING WARRANTIES, THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND CONTRACTOR DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF PERFORMANCE OR USAGE IN TRADE. 6.Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1)a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. In the event that, during the term of this Agreement, any labor problems or disputes of any type arise or materialize which in turn cause any services to cease for any period of time, Contractor specifically agrees to take immediate steps, at its own expense and without expectation of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. 7.Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this 38 Page 4 of 19 Section as the City) from and against any and all claims, demands, actions, fees and costs (including reasonable attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: third party claims alleging personal injury, injury to tangible personal or real property, or wrongful death arising from (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against third-party claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. The City will provide reasonable cooperation and assistance to Contractor in the defense and settlement of the claim, and will provide prompt written notice to Contractor of any claim to which this indemnity relates. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the 39 Page 5 of 19 Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. Contractor’s liability under this Agreement is not modified or limited by the amounts or applicability of any insurance required by this section. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: Workers’ Compensation – statutory; Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; Automobile Liability - $1,000,000 property damage/bodily injury per accident; and Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on both the Commercial General and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within thirty (30) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City will be provided certificates of insurance reflecting the limitations above prior to the Contractor commencing work. 8.Termination for Contractor’s Fault: a.If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by thirty (30) days written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work should Contractor fail to cure the breach within the notice period (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b.In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c.Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d.In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 40 Page 6 of 19 9.Termination for City’s Convenience: a.Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by no less than ninety (90) days written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b.Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall cease performance under this Agreement upon the effective date of termination and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c.In the event of a termination pursuant to this Section 9, Contractor is entitled to payment for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience, and any pre-paid fees will not be refunded. d.The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10.Limitation on Contractor’s Damages; Time for Asserting Claim: a.In the event of a claim for damages by Contractor under this Agreement, claiming party’s damages shall be limited to direct or actual damages and Contractor hereby expressly waives any right to claim or recover incidental, indirect, consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b.In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. c) Contractor will not be liable to the City for any loss of use, interruption of business or any indirect, special, incidental, or consequential damages of any kind (including lost profits), 41 Page 7 of 19 regardless of the form of action and whether in contract, tort (including negligence) strict product liability or otherwise, even if Contractor has been advised of the possibility of such damages. In any event, except for Contractor’s indemnification obligations set forth in this Agreement, Contractor’s maximum liability for any claim arising in connection with this Agreement (in tort, contract, or otherwise) will not exceed the amount of fees paid to Contractor in the six (6) months preceding the claim. 11.Representatives and Notices: a.City’s Representative: The City’s Representative for the purpose of this Agreement shall be Melody Mileur or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. The City is responsible for ensuring the compliance with these terms of each of the City’s authorized users (“Administrators”) and is liable for all activity under the City’s Administrator accounts. The City shall use best efforts to prevent unauthorized access to, or use of, the Service, and will notify BTT promptly of any unauthorized use of any password or account or any other known or suspected breach of security. The City will not attempt to or use the City’s access to the Service to knowingly interfere with or disrupt the integrity or performance of the Service or the data contained therein. The City shall not allow Administrator credentials to be shared. You must ensure that we receive, in a timely manner, all information we need to enable us to supply the Services. b.Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be contracts@granicus.com and Emily Alonzi or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. c.Notices:All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section, with a copy to Granicus LLC. Legal Department at contracts@granicus.com. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 42 Page 8 of 19 12.Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13 Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. The City acknowledges and agrees that: (a) the City shall abide by all applicable laws and regulations in connection with the City’s business operations and the use of the Service, Website, and Website Visitor information, and (b) the City owns or has obtained all rights, consents, permissions, or licenses necessary to allow the Service access to, or possession, manipulation, processing, or use of the City’s Data and any data from Website Visitors; and (c) the City shall ensure that its collection, use, and sharing of information (including data from Website Visitors) is in accordance with applicable law, and its privacy policy; and (d) the City owns or has sufficient rights to any City content displayed on the Website. Should the City wish to change the terms of use on the Website the City may do so upon written notice to Contractor but (as these terms are between Contractor and the website visitors) in so doing the City accepts all responsibility for any content provided by users and Website Visitors. 14.Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 43 Page 9 of 19 15.Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 16.Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 17. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to request copies of its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information related to this Agreement for public dissemination without prior approval of the City. 18.Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 19.Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 20.Taxes: Contractor is obligated to pay all taxes related to the income of Contractor and make all appropriate employee withholdings. The City is responsible for the payment of any sales, use, or other taxes applicable to the Services provided hereunder. 44 Page 10 of 19 21.Dispute Resolution: a.Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b.If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 22.Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 23.Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 24.Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 25.Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 26.Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 27.No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 28.Third-Party Actions; Obligations and Liabilities. If any action is instituted by a third party against the Customer based upon a claim that the Service, as provided, infringes a copyright or trademark, then BTT will defend such action at its own expense on behalf of the Customer and will pay all damages attributable to such claim which are finally awarded against the Customer or paid in settlement of such claim. BTT may, at its option and expense, and in addition to defending the Customer as set forth in the previous sentence, as the Customer’s exclusive remedy hereunder: (a) procure for Customer the right to continue using the Service; (b) replace or modify the Service so that it is no longer infringing but continues to provide comparable functionality; or (c) terminate this Agreement and the Customer’s access to the Service and refund any amounts previously paid for the Service attributable to the remainder of the then-current term of this Agreement. BTT will have no liability to the Customer for any infringement action that arises out of a breach of the terms and conditions 45 Page 11 of 19 of this Agreement by the Customer or of the use of the Service (i) after it has been modified by the Customer or a third party without BTT’s prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by BTT where the combination is the basis for the infringing activity. 29.Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 30.Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 31.Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. 32.Extensions:This Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than three years. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF,the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. CITY OF BOZEMAN, MONTANA BANG THE TABLE, NORTH AMERICA By______________________________ By________________________________ Jeff Mihelich, City Manager Brendan Stierman, Contracts Manager Print Name: ___________________________ Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 46 Page 12 of 19 Exhibit A- Scope of Services Name of “Customer”City of Bozeman Customer Address 121 N Rouse Ave, Bozeman, Montana 59715 Customer Phone (406) 582-2322 Primary Contact Melody Mileur Contract Contact Melody Mileur mmileur@bozeman.net Term __________________________________________ Service Details See Bang the Table’s proposal and/or prospectus for details. Total Fees $19,000 excluding tax EngagementHQ Package Annual License EngagementIQ Package Standard Onboarding + Essentials Support Additional Services & Integrations N/A Integrations require the cooperation of third parties. We enter into a contract to provide integrations on the basis of ‘best endeavors’ if, for reasons beyond our control, an integration ceases to work we will refund pro rata the integration portion of the contract. This has no impact on the software package and service components of the contract. 47 Page 13 of 19 EXHIBIT A-1: Master Terms and Conditions 1 Access Grant & Restrictions 1.1 Subscription to the Service. Subject to the terms of this Agreement, BTT hereby grants to the Customer a limited, non-sublicensable, non-transferable, non-exclusive subscription during the term of the Agreement for the Customer to access and use the specific services and feature sets of the Service specified in the applicable Scope of Services by up to the number of users identified in that Scope of Services, and solely for the Customer’s business purposes as outlined in the Scope of Services and these Terms. BTT and its licensors reserve all rights not expressly granted to the Customer in this Agreement. BTT upgrades its software on a continuous basis and, while we strive to minimize the impact on the customer of any upgrades (our policy is not to change the public facing appearance of your site without your permission), BTT reserves the right to make necessary changes or modifications to the Service. 2 Support; Hosting. BTT will host the Website as set forth in the Service Agreement and applicable Proposal document. BTT will, where practicable, answer questions and help troubleshoot. To the extent set forth on the Service Agreement, BTT will also provide hosting and support services as set forth in Proposal, attached hereto, which is hereby incorporated hereto. 3 Disclaimer of Warranties. Reserved. 4 Ownership. BTTand its licensors own all rights, title and interest, including all related intellectual property rights, in and to the Services, BTT content, platform, and technology, including all enhancements, modifications or derivative works to the foregoing, as well as any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the Customer or any other party relating to the Services. The BTT name, the BTT logo, and the product names associated with the Services are trademarks of BTT or third parties. All rights not expressly granted are hereby retained by BTT. BTT does not own the information submitted by Customer or its Website Visitors (the “Customer’s Data”). The Customer retains all right, title and interest in and to the Customer’s Data. The Customer grants to BTT all necessary licenses and rights in and to the Customer’s Data as necessary for BTT to provide Services to the Customer. The Customer is responsible for the Customer’s Data including without limitation the accuracy, quality, integrity, legality, reliability, appropriateness of the foregoing, and obtaining any intellectual property rights ownership or right to use the foregoing. BTT reserves the right to de-identify or aggregate (or both) any data (including Customer Data), information or content obtained by BTT relating to Customer, its Administrator’s, or Website Visitors use or receipt of Services, including without limitation information about how the Services are used by such users (“De- identified Data”). BTT may use De-identified Data for product optimization and development, benchmarking, and internal research but will not share any information that identifies Customer or any Website Visitor by name with any third party, except as strictly necessary to provide the Services. 5 Limitation of Liability. Reserved. 6 Confidentiality. Neither party will use the confidential information of the other party for any purpose other than exercising its rights or obligations under this Agreement, and will disclose the confidential information only to those of its employees or contractors who have a need to know for purposes of the Agreement. Notwithstanding, either party may disclose the other party’s confidential information as required by law so long as, if permitted by law, such party notifies the disclosing party prior to disclosure and uses reasonable efforts to limit disclosure to only what is required by law. 48 Page 14 of 19 EXHIBIT B Cloud Services Questions 1) Service levels: What level of service should we expect? What is the City’s recourse for excessive downtime? Refund of percentage of monthly fee? We guarantee 99.75% availability and our up-times have historically remained above “three 9s” (99.9%). The platform receives regular and continuous updates using our SaaS DLC which features zero-downtime and agile deployment processes. We have robust automated testing, build process, and application monitoring in place to ensure high- quality and successful deployments of regular features and functionality. We provide at least two weeks of notice in case of planned outages, but we typically only need this for bigger architecture changes. While we do not provide compensation for losses, we have appropriate insurance policies in place covering our services. Notifications of any service disruption are provided via our in-app intercom advice and by email. Any unplanned outage will be investigated thoroughly with root cause analysis and a full report provided with remedial actions. We provide at least two weeks of notice when we need to interrupt the service for maintenance. This is a very infrequent occurrence as our architecture allows us to carry out maintenance with minimal/no disruption to service. Bang the Table provide 24 hour support Monday to Friday through our Client Experience Team. They can be reached via chat function within the EngagementHQ CMS or via email to support@engagementhq.com. We guarantee of a first response via chat within 10 minutes and via email within 2 hours. When faults are notified the following minimum service standards are in place: For issues critical to the core functions of the site (i.e. website is unavailable), a response will be immediate and a fix will be implemented within four hours. For minor critical issues to the core functions of the site (i.e. part of the website is unavailable or is not operating efficiently for more than 4 hours), a response will be within 2 hours and a fix will be implemented within 1 business day. For non-critical issues to the core functions of the site (i.e. part of the website is unavailable or is not operating efficiently with only a material impact on the promotion of Your engagement projects), a response time is not mandated but a fix will be implemented within 2 business days. For minor non-critical issues to the core functions of the site (i.e. a problem which has little or no impact to the efficiency of users), a response time is not mandated but a fix will be implemented as soon as practical but no later than 10 business days. 2) Data ownership: Who owns the data we provide and what can be done with the data? 49 Page 15 of 19 All of the data created on our technology platform belongs to our clients and their communities, and as such is governed by our clients’ policies. Our role is to process the data in accordance with our service agreements with our clients. Only client site administrator has access to the data. For support or help, the client site administrator can toggle a setting within the EHQ application to enable our support team to access your site data. Our support teams in India and Australia can then access the required information, but ONLY when this toggle is enabled, to answer any specific questions you may have around it. This access will be only at the request of the client site administrator and staff authorized for access are trained on data subject's rights. This access is limited to key personnel involved in maintaining our services and support and independent third-party background verification is performed for them. We have strict data access rules in place with detailed logging to prevent theft and misuse. Data is available for client admins to download and retain in Microsoft Word/Excel document, PDF format and also via our API’s. 3) Data security: How secure is our data and how is it being kept secure? EngagementHQ provides role-based access controls with unique usernames and one- way password encryption to help clients manage their own logins. We have automated monitoring and alerting systems in place for unusual usage patterns. Logging and alerting systems are in place, which help identify potential malicious activity and can be stopped via firewalls on AWS. Physical and environmental controls protect data and services from unauthorized intrusions and interruptions, while technology and policybased security measures defend against unauthorized disclosure and manipulation. Strict Content Security Policies against the likes of inline scripting, cross frame scripting etc. are in place at the front end to ensure protection of backend systems and data from front end attacks. File uploads are scanned and restricted based on file types to prevent upload of malware. The AWS network uses proprietary mitigation techniques providing significant protection against traditional security issues such as Distributed Denial Of Service (DDoS) Attacks, Man in the Middle (MITM) Attacks, IP Spoofing, Port Scanning, etc. We use the AWS logs for our monitoring. We use tools like AWS Cloud Watch and Data Dog for analysis of traffic activity and to provide us with alerts. Based on these alerts we use the AWS provided ACL to block offending IP addresses. It is reviewed on an ongoing basis as part of the monitoring activity. The application is continuously monitored by incorporating security scanners into our CI pipeline. Issues and vulnerabilities are patched by our internal development teams as they come to light. The operating systems and databases running our servers are continually monitored and patched with the latest security fixes. We work with security experts to ensure our platform meets the highest standards of web application security. Quarterly VAPT tests are undertaken to scan for potential vulnerabilities and to simulate a variety of attacks. In addition to this, we frequently have clients who carry out their own security tests on their websites hosted on our platform. We have regular management reviews of the operational risk register. The Risk policy is also 50 Page 16 of 19 reviewed whenever there is a change in the business or as determined in the management review meeting. a.If this is a multi-tenant environment on the same hardware how is our data kept separate and secure from other customers, including any PII (Personally Identifiable Information) that may be gathered? All EHQ sites are hosted on Amazon Web Services (AWS) infrastructure, and we make use of the Amazon Virtual Private Cloud (VPC) to create an isolated eco-system. We have strong logical controls in place to quarantine data belonging to each organization within our multi-tenanted application architecture. Each client would have one or more sites and data is segmented by this unique site. Multiple levels of scoping of access is in place to prevent any inadvertent or intentional attack. Further regular VAPT testing also checks for any potential areas that could be exploited. b.If PII is gathered, is it encrypted in transit and at rest? Data at rest is encrypted and stored using 256-bit AES encryption. Backups are also encrypted. Data in transit is secured via SSL/TLS connections. Basic SSL Certificates are provided as part of our solution. We have TLS 1.2 enabled for all HTTPS connections. We provide an EV SSL certificate as an optional extra. The SSL certificate we provide uses SHA256withRSA signature algorithm & RSA 2048 bit encryption. c.If credit card transactions are occurring is your system fully PCI compliant? N/A - No commercial transactions occur in EHQ. 4) Data integrity: What do you do as a vendor to ensure our data maintains its integrity? EHQ is hosted on Amazon Web Services (AWS) with data is stored within a mySQL database on AWS RDS. All data stored on AWS RDS is encrypted using AWS provided – AES-256-GCM encryption standard. EngagementHQ has a secure and verified self-user registration process incorporating an authentication link sent via email at the completion of the registration process. The verifiable sign up ensures data integrity by precluding capacity to duplicate or create more than one account from any single verified email address. Only client site administrator has access to the data. We have strict data access rules in place with detailed logging to prevent theft and misuse. Access to client data will be only at the request of the client and staff authorized for access are trained on data subject's rights. This access is limited to key personnel involved in maintaining our services and support and independent third party background verification is performed for all staff. EngagementHQ access control policies are based on the principles of 'least privilege' and 'segregation of duties'. We do not provide any Generic / Shared Accounts. 51 Page 17 of 19 The client administrators will assume full control over provisioning of user access. EHQ offers single sign-on integration (SSO) for any Identity Provider (IdP) that supports SAML, to enable centralized access control. 5) We require data centers to be located in the United States: What country will our data be located in? Data is stored in the US 6) Responding to legal demands to disclose data: What is your process when someone subpoenas or requests our data from you as a vendor? Any legal demands for data are routed through the Client. Any request for information should come from the relevant Client administrators. The Client admins with the right privileges can access the logs from the application. All administrator activities on the site are logged and timestamped. These are accessible via the EngagementHQ Audit Trail feature, which provides an audit log of activity with filters to help drill down into areas of interest – by date, project, and tool. A search function also helps sort and parse activity. An immutable rolling audit log records all activity in the site, with filters to help drill down into different areas of EHQ – by date, project, and tool. A search function also helps sort and parse activity by admin/user or another identifying factor. Audit trails and logs are retained for one year. We have processes in place to ensure logs and audit trails are tamper-resistant. 7) Reporting: What is your protocol for data breaches? Bang the Table has a published procedure for handling security incidents that outlines an incident response plan along with notification guidelines. All security incidents are immediately escalated to the CIO and we will provide notification of data breaches or security incidents within 72 hours of discovery by either phone and/or email. 8) Disaster recovery: What protections/protocols do you have in place to mitigate disasters? We are hosted on Amazon Web Services (AWS) infrastructure and leverage their high availability infrastructure. Our application instance is hosted with an auto recovery instance for the application server. This ensures that even in case of any hardware failure, the instance is capable of recovering itself automatically and instantly without manual intervention. Data in stored within a mySQL database on AWS RDS. Amazon RDS has multiple features that enhance reliability for critical production databases, including automated backups, DB snapshots, automatic host replacement, and Multi-AZ deployments. Within each AWS region AWS provides availability zones (AZs) with a choice of 2 or more zones. Each AZ is a fully isolated partition of the AWS infrastructure with data centers that have redundant power, networking and connectivity, which are independently powered and cooled and have their own network and security architectures. AZs are insulated from the failures of other zones in the group, so by 52 Page 18 of 19 replicating our database across multiple AZs, we significantly reduce the chance of total outage or failure. Our Disaster Recovery plan(both application and database) is tested annually or when there is a major change in our environment, either to our infrastructure or application. Lessons learned from these tests are incorporated back into the plan. Based on the DR testing we guarantee a : Recovery Time Objective (RTO)- worst case time to restore service in a disaster as 6 hours. Recovery Point Objective (RPO) - worst case time to restore data loss in a disaster as 24 hours. Both application and database recovery is automatic with transactional integrity, near zero data loss and no manual intervention required. We take a complete server snapshot daily, which is maintained for 35 days. 9) Business continuity: If you decide to bring your business to an end what happens to our data? We purge all this data permanently within six months of the end of the client contract. Data is available for clients to download and retain as a document download in PDF, Excel and also via API till the end of the contract term. Bang the Table is committed to the secure and safe disposal of the data in accordance with our contractual and legal obligations and we do so in an ethical and compliant manner. We use the tools provided by our AWS infrastructure to erase data in a way that it cannot be reconstructed. We confirm that our approach and procedures comply with the laws and provisions made in the General Data Protection Regulation (GDPR) and that staff are trained and advised accordingly on the procedures and controls in place. 10)Termination rights and consequences: What is your termination policy both for you as a vendor and us as a customer? All of the data created on our EngagementHQ technology platform belongs to our clients and their communities, and as such is governed by our clients’ policies. The role of our platform is to process the data in accordance with the service agreements with our clients. The client data on our systems will be retained for the term of the contract with the client. All access and modification to this information is logged and retained for this duration (or as per the client contract). We purge all this data permanently within six months of the end of the client contract. Data is available for clients to download and retain as a document download in PDF, Excel and also via API till the end of the contract term. Incase of client confirmation that their EnagagementHQ sites is no longer required and can be de-commissioned, on the agreed date, the site and all its contents will be removed permanently. The change will be effective immediately and all information removed permanently from our systems. Database backups retained for disaster recovery purposes will also be permanently erased within 6 months of contract termination. Bang the Table is committed to the secure and safe disposal of this information in accordance with our contractual and legal obligations and we do so in an ethical and compliant manner. We use the tools provided by our AWS infrastructure to erase data in a way that it cannot be reconstructed. We confirm that our approach and procedures 53 Page 19 of 19 comply with the laws and provisions made in the General Data Protection Regulation (GDPR) and that staff are trained and advised accordingly on the procedures and controls in place. 11)Exit: If we exit our relationship what format can we get our data in and what assistance will you give us in transferring our data to us in a usable format? Data is available for client admins to download and retain as a document download in PDF, Excel and also via API. 54 Memorandum REPORT TO:City Commission FROM:Bernie Massey, Assistant Treasurer Laurae Clark, Treasurer Kristin Donald, Finance Director SUBJECT:Resolution 5337, Intent to Create Special Improvement Lighting District #766 for Northwest Crossing Phase 1 MEETING DATE:October 19, 2021 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Adopt Commission Resolution 5337, Intent to Create Special Improvement Lighting District #766 for Northwest Crossing Phase 1. STRATEGIC PLAN:7.5. Funding and Delivery of City Services: Use equitable and sustainable sources of funding for appropriate City services, and deliver them in a lean and efficient manner. BACKGROUND: (1) The council of any city or town is authorized to: (a) create special improvement districts embracing any street or streets or public highway therein or portions thereof and property adjacent thereto or property which may be declared by said council to be benefited by the improvement to be made for the purpose of lighting such street or streets or public highway; (b) require that all or any portion of the cost of installing and maintaining such lighting system be paid by the owners of the property embraced within the boundaries of such districts; and (c) assess and collect such portion of such cost by special assessment against said property. (2) The governing body may create special lighting districts on any street or streets or public highway for the purpose of lighting them and assess the costs for installation and maintenance to property abutting thereto and collect the costs by special assessment against the property UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:As a result of creating this lighting district, the City will pay the associated power bills and schedule system maintenance. We will recover these costs by billing property owners each year on their City Assessment bill. It is estimated to cost $59.14 per acre within the district or $948.48 annually for 55 the entire district, or on an average size lot of 53,746 square feet the annual estimated cost would be $72.99, which is payable semiannually. Attachments: Resolution 5337-Intent to Create SILD 766.docx SILD Exhibit A-Northwest Crossing Phase 1.pdf Exhibit B-Northwest Crossing Phase 1.pdf Report compiled on: September 23, 2021 56 RESOLUTION 5337 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, RELATING TO SPECIAL IMPROVEMENT LIGHTING DISTRICT NO. 766 (NORTHWEST CROSSING PHASE 1) DECLARING IT TO BE THE INTENTION OF THE CITY COMMISSION TO CREATE THE DISTRICT FOR THE PURPOSE OF MAINTAINING LIGHTING IMPROVEMENTS AND ASSESSING THE COSTS OF MAINTENANCE AND ENERGY THEREFOR TO BENEFITTED PROPERTY BY THE LEVY OF SPECIAL ASSESSMENT. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, to wit: Section 1 Intention to Create District; Proposed Improvements. It is the intention of this Commission to create and establish in the City under Montana Code Annotated, Title 7, Chapter 12, Part 43, as amended, a special improvement lighting district to serve Northwest Crossing Phase 1 (the “District”) for the purpose of maintenance and energy costs. The district will pay the maintenance and energy costs for five (5) Lumec RoadFocus LED Cobrahead 100 watt single upsweep luminaires on round tapered steel poles, mounted at 35’ per City of Bozeman standards and twenty-two (22) Lumec RoadFocus LED Cobrahead 45 watt single upsweep luminaires on round tapered steel poles, mounted at 30’ per City of Bozeman standard. The poles will be K- KLAD over galvanized – Hunter Green. The initial monthly charge per fixture per month (the “Monthly Charge”) is estimated as follows: $5.60 per 100 watt fixture and $2.32 per 45 watt fixture or $948.48 annually. Section 2 57 Number of District. The District, if the same shall be created and established, shall be known and designated as Special Improvement Lighting District No. 766 (NORTHWEST CROSSING PHASE 1) of the City of Bozeman, Montana. Section 3 Boundaries of District. The limits and boundaries of the District are depicted on a map attached as Exhibit A hereto (which is hereby incorporated herein and made a part hereof), which boundaries are designated and confirmed as the boundaries of the District. A listing of each of the properties in the District is shown on Exhibit B hereto (which is hereby incorporated herein and made a part hereof). Section 4 Benefited Property. The District and territory included within the limits and boundaries described in Section 3 and as shown on Exhibit A are hereby declared to be the special lighting district and the territory which will benefit and be benefited by the Improvements and will be assessed for the costs of the Improvements as described in Section 1. The Improvements, in the opinion of this Commission, are of more than local and ordinary benefit. The property included within said limits and boundaries is hereby declared to be the property benefited by the Improvements. Section 5 Assessment Methods. All properties within the District are to be assessed for a portion of the maintenance and energy costs, as specified herein. The maintenance and energy costs shall be assessed against the property in the District benefiting, based on the actual area method of assessment described in Sections 7-12-4323, MCA, as particularly applied and set forth in this Section 5. The annual maintenance and energy costs are estimated at $948.48, and shall be assessed against each lot, tract or parcel of land in the District for that part of the costs that the area of such lot, tract or parcel bears to the total area of all lots, tracts or parcels of land in the District, exclusive of streets, avenues and alleys. The total area of the District to be assessed is 16.04acres, or 698,702 58 square feet, exclusive of parks and open space. The initial costs of the Improvements per acre shall be $59.14 or $0.001358 per square foot annually. Section 6 Payment of Assessments. Special assessments for the annual maintenance and energy costs are estimated at $948.48, plus any increases, as may be permitted by the Public Service Commission, and any additional authorized charges shall be levied each year against all properties in the District and shall be payable in equal semiannual installments. The first year of special assessment billing will include an additional amount not to exceed $500 for publication and mailing associated with creation of the District which shall be assessed in the same manner as the Improvements resulting in a cost not to exceed $90.30 per acre, or $0.002074per square foot. Section 7 Extraordinary Repair or Replacement. The maintenance and energy costs and assessments set forth in Section 1 and 5 are based on normal conditions and do not cover charges for repair and/or replacement. The City may make an additional charge to the District for costs of labor and actual material costs for repairs and/or replacement of the fixtures for damage caused by third parties and not paid by such third parties. The City will assess such costs and charges against the properties in the District in the same manner as the other assessment is made. Section 8 Discontinuation of District. If at any time after the initial term of the District a petition is presented to the City Commission, signed by the owners or agents of more than three-fourths of the total amount of property within the District, asking that the maintenance and operation of the special lighting system and the furnishing of electrical current in the district be discontinued, or if a majority of the City Commission votes to discontinue the District, the City Commission shall, by resolution, provide for discontinuing the maintenance and operation of the lighting system. If the Commission has, prior to the presentation of a petition or by a majority vote of the Commission to discontinue the District, entered into any contract for the maintenance and operation of the lighting 59 system, the maintenance and operation may not be discontinued until after the expiration of the contract. Section 9 Public Hearing; Protests. At any time within fifteen (15) days from and after the date of the first publication of the notice of the passage and approval of this resolution, any owner of real property within the District subject to assessment and taxation for the cost and expense of maintenance and energy may make and file with the City Clerk until 5:00 p.m., M.T., on the expiration date of said 15-day period (11/08/2021) written protest against the proposed maintenance and energy costs, or against the extension or creation of the District or both, and this Commission will at its next regular meeting after the expiration of the fifteen (15) days in which such protests in writing can be made and filed, proceed to hear all such protests so made and filed; which said regular meeting will be held on November 9, 2021 at 6 pm in Bozeman City Hall, City Commission Room, 121 N Rouse Ave. Section 10 Notice of Passage of Resolution of Intention. The City Clerk is hereby authorized and directed to publish or cause to be published a copy of a notice of the passage of this resolution in the Bozeman Daily Chronicle, a newspaper of general circulation in the county on October 24, 2021 and October 31, 2021, in the form and manner prescribed by law, and to mail or cause to be mailed a copy of said notice to every person, firm, corporation, or the agent of such person, firm, or corporation having real property within the District listed in his or her name upon the last completed assessment roll for state, county, and school district taxes, at his last-known address, on or before the same day such notice is first published. PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 19th day of October, 2021. ___________________________________ CYNTHIA L. ANDRUS Mayor 60 ATTEST: ___________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 61 CERTIFICATE AS TO RESOLUTION AND ADOPTING VOTE I, the undersigned, being the duly qualified and acting recording officer of the City of Bozeman, Montana (the “City”), hereby certify that the attached resolution is a true copy of Resolution No. 5337, entitled: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, RELATING TO SPECIAL IMPROVEMENT LIGHTING DISTRICT NO. 766 (NORTHWEST CROSSING PHASE 1) DECLARING IT TO BE THE INTENTION OF THE CITY COMMISSION TO CREATE THE DISTRICT FOR THE PURPOSE OF MAINTAINING LIGHTING IMPROVEMENTS AND ASSESSING THE COSTS FOR MAINTENANCE AND ENERGY THEREFOR TO BENEFITTED PROPERTY BY THE LEVY OF SPECIAL ASSESSMENT,(the “Resolution”), on file in the original records of the City in my legal custody; that the Resolution was duly adopted by the City Commission of the City of Bozeman at a meeting on October 19, 2021, and that the meeting was duly held by the City Commission and was attended throughout by a quorum, pursuant to call and notice of such meeting given as required by law; and that the Resolution has not as of the date hereof been amended or repealed. I further certify that, upon vote being taken on the Resolution at said meeting, the following Commissioners voted in favor thereof: _____ ____________________ ; voted against the same: ___________ ___ ; abstained from voting thereon: ________________ ; or were absent: _______________ . WITNESS my hand officially this 20th day of October, 2021. ___________________________________ MIKE MAAS City Clerk 62 NOTICE OF PASSAGE OF RESOLUTION OF INTENTION TO CREATE SPECIAL IMPROVEMENT LIGHTING DISTRICT NO. 766 (NORTHWEST CROSSING PHASE 1) CITY OF BOZEMAN, MONTANA NOTICE IS HEREBY GIVEN that on October 19, 2021, the City Commission (the “Commission”) of the City of Bozeman, Montana (the “City”), adopted a Resolution of Intention No. 5337 to create Special Improvement Lighting District No. 766 (the “District”) for the purpose of maintaining lighting and assessing the cost for maintenance and energy to NORTHWEST CROSSING PHASE 1, and paying maintenance and energy costs relating thereto. A complete copy of the Resolution of Intention (the “Resolution”) No. 5337 is on file with the City Clerk which more specifically describes the nature of the costs, the boundaries and the area included in the District, the location of the Improvements and other matters pertaining thereto and further particulars. A list of properties in the District and the amount of the initial assessment accompanies this notice. The Resolution and accompanying exhibits may be also viewed on the City’s website at www.bozeman.net. The district will pay the maintenance and energy costs for five (5) Lumec RoadFocus LED Cobrahead 100 watt single upsweep luminaires on round tapered steel poles, mounted at 35’ per City of Bozeman standards and twenty-two (22) Lumec RoadFocus LED Cobrahead 100 watt single upsweep luminaires on round tapered steel poles, mounted at 30’ per City of Bozeman standard. The poles will be K-KLAD over galvanized – Hunter Green. The initial monthly charge per fixture per month (the “Monthly Charge”) is estimated as follows: $5.60 per 100 watt fixture and $2.32 per 45 watt fixture or $948.48 annually. All properties in the District will be assessed for their proportionate share of the costs of the Improvements on an “area basis” annually and will be payable in equal semiannual installments. The annual costs of the Improvements at the initial Monthly Charge are $948.48 per year for the entire District. The total area of the District to be assessed is 16.04 acres, or 698,702 square feet, exclusive of parks and open space. The initial costs of the Improvements per acre shall be $59.14 .001358 per square foot. On an average size lot of 53,746 square feet the 63 annual estimated cost would be $72.99 which is payable semiannually. The annual assessments for costs of the Improvements may be increased as approved by the Public Service Commission and may be increased to cover extraordinary expenses of repair and maintenance. The first year of special assessment billing will include an additional amount not to exceed $500 for publication and mailing associated with creation of the District which shall be assess in the same manner as the Improvements resulting in a cost not to exceed $90.30 per acre, or $0.002074 per square foot. On Tuesday, November 9, 2021, at 6:00 p.m., in the Commission Room at City Hall 121 N Rouse Ave, Bozeman, Montana, the City Commission will conduct a public hearing to hear and pass upon all written protests against the creation or extension of the District, or the Improvements. Due to the City’s Declaration of Emergency for the Covid-19 Pandemic, this meeting may be held online using Webex or other technology. Written protests against the creation or extension of the District and the costs may be filed by an agent, person, firm or corporation owning real property within the proposed District whose property is liable to be assessed for the costs. Such protests must be delivered to the City Clerk at City Hall, 121 N Rouse Ave, Bozeman, Montana not later than 5:00 p.m., M.T., on November 8, 2021. Further information regarding the proposed District or other matters in respect thereof may be obtained from the City Clerk at City Hall, 121 N Rouse Ave, Bozeman, Montana or by telephone at (406) 582-2320. DATED this 20th day of October, 2021. Mike Maas City Clerk City of Bozeman Legal Ad 64 Publication Dates: Sunday, October 24, 2021 Sunday, October 31, 2021 RESOLUTION 5337 Resolution of Intent to create SILD No. 766 for the purpose of maintaining lighting and assessing the cost for maintenance and energy to NORTHWEST CROSSING PHASE 1, and paying maintenance and energy costs relating thereto. AFFIDAVIT OF MAILING STATE OF MONTANA ) : ss County of Gallatin ) Mike Maas, City Clerk, being first duly sworn, says: That I cause to be mailed first class the Notice in regards to the owners in Special Improvement Lighting District No. 766, as listed in Exhibit "B", on Friday, October 22, 2021, directed to the owners at the addresses shown on Exhibit "B". ______________________________ Mike Maas City Clerk Subscribed and sworn before me this 22nd day of October, 2021. (Notarial Seal) _______________________________ Printed Name____________________ Notary Public for the State of Montana 65 Version April 2020 Residing at: see seal My Commission expires: see seal 66 W W W W WDDDD DDDSDSDSDSDSD SD D4745.67DDDDDDDDDDDDS0°59'41"W 2627.49'S89°30'03"W 2649.87'S S S S 21S 21S21SII ESDESDESDESESEEP9.40'10.60'9.40'R1370.00'300.50'280.50'R1997.50'R1197.50'10.00'10.00'LOT 147.10 acs.LOT 31.21 acs.PUBLIC R-O-WRESTRICTED LOT 155.41 acs.PARK 37.04 acs.LOT 111.09 acs.LOT 131.00 acs.LOT 120.74 acs.LOT 100.81 acs.LOT 61.25 acs.LOT 90.57 acs.LOT 155.26 acs.LOT 72.89 acs.LOT 81.48 acs.LOT 51.62 acs.LOT 20.75 acs.LOT 12.62 acs.E2E1E1E1E2E1E1M1-1,3M1-1,3M1-1,3M1-1,3M1-1,3M1-1,3E2E2E2E2E2E2E2E2E2E2M2E2E2E2E2E2E2E2E2M2-2,4M2-2,4M2-2,4M2-2,4M2-2,4M2-2,4M2-2,4M2-2,4M2-1,3M2-1,3M2-1,3M2-1,3M2-1,3M2-1,3M2-1,3M2-1,3M2-1,3MHHMHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHE2M2-2,4E2M2-2,4M2-1,31VERIFY SCALE!THESE PRINTS MAY BE REDUCED.LINE BELOW MEASURES ONE INCHON ORIGINAL DRAWING. MODIFY SCALE ACCORDINGLY!2021COPYRIGHT © MORRISON-MAIERLE, INC.,SHEET NUMBERPROJECT NUMBERDRAWING NUMBERDATEDESCRIPTIONNO.BYN:\5659\005 NWX PHASE 1 MAJOR SUB\ACAD\EXHIBITS\SILD EXIBIT A.DWG PLOTTED BY:MATT E. EKSTROM ON Sep/07/2021REVISIONSDRAWN BY:DSGN. BY:APPR. BY:DATE:Q.C. REVIEWDATE:BY:2880 Technology Blvd WestBozeman, MT 59718406.587.0721www.m-m.netengineers surveyors planners scientistsMorrisonMaierle NORTHWEST CROSSING SUBDIVISION - PHASE 1INFRASTRUCTURE IMPROVEMENTSBOZEMANBOZEMANSILD EXHIBIT A5659.00640E-3CPKARGMEE7/09/2021 SILD - EXHIBIT AWEST OAK STREETTWIN LAKES AVENUE ROSA WAY MATCH LINESEE SHEET E-41WELLSPRING DRIVEHARVEST PARKWAY67 Phase Lot Location ID Address Sqft Owner Name Owner Address City, State Zip 1 1 39,204 NWX LLC 1735 S 19th Ave Bozeman, MT 59718 1 2 33,106 NWX LLC 1735 S 19th Ave Bozeman, MT 59718 1 3 52,708 NWX LLC 1735 S 19th Ave Bozeman, MT 59718 1 4 75,359 NWX LLC 1735 S 19th Ave Bozeman, MT 59718 1 5 70,132 NWX LLC 1735 S 19th Ave Bozeman, MT 59718 1 6 54,450 NWX LLC 1735 S 19th Ave Bozeman, MT 59718 1 7 125,888 NWX LLC 1735 S 19th Ave Bozeman, MT 59718 1 8 64,469 NWX LLC 1735 S 19th Ave Bozeman, MT 59718 1 9 24,829 NWX LLC 1735 S 19th Ave Bozeman, MT 59718 1 10 35,284 NWX LLC 1735 S 19th Ave Bozeman, MT 59718 1 11 47,480 NWX LLC 1735 S 19th Ave Bozeman, MT 59718 1 12 32,234 NWX LLC 1735 S 19th Ave Bozeman, MT 59718 1 13 43,560 NWX LLC 1735 S 19th Ave Bozeman, MT 59718 Total 698,702 Remainder Tract R-1 Includes Phase 2 5,671,512 6,370,214 6985282 160.36 original acres Northwest Crossing Phase 1 5250 Baxter Ln, Bozeman MT 59715 Original Tract RGG6855 LID#265130 68 69 Memorandum REPORT TO:City Commission FROM:Bernie Massey, Assistant Treasurer Laurae Clark, Treasurer Kristin Donald, Finance Director SUBJECT:Resolution 5339, Intent to Create Special Improvement Lighting District #768 for Allison Phase 4A MEETING DATE:October 19, 2021 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Approve Resolution 5339, Intent to Create Special Improvement Lighting District #768 for Allison Phase 4A. STRATEGIC PLAN:7.5. Funding and Delivery of City Services: Use equitable and sustainable sources of funding for appropriate City services, and deliver them in a lean and efficient manner. BACKGROUND:(1) The council of any city or town is authorized to: (a) create special improvement districts embracing any street or streets or public highway therein or portions thereof and property adjacent thereto or property which may be declared by said council to be benefited by the improvement to be made for the purpose of lighting such street or streets or public highway; (b) require that all or any portion of the cost of installing and maintaining such lighting system be paid by the owners of the property embraced within the boundaries of such districts; and (c) assess and collect such portion of such cost by special assessment against said property. (2) The governing body may create special lighting districts on any street or streets or public highway for the purpose of lighting them and assess the costs for installation and maintenance to property abutting thereto and collect the costs by special assessment against the property UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:As a result of creating this lighting district, the City will pay the associated power bills and schedule system maintenance. We will recover these costs by billing property owners each year on their City Assessment bill. It is estimated to cost $27.72 per acre within the district or $366.96 annually for 70 the entire district. Attachments: Resolution 5339-Intent to Creat SILD 768 Allison Subdivision Ph 4A).docx Exhibit A Allison Sub Ph 4A.pdf Exhibit B Allison Sub Ph 4A.pdf Report compiled on: September 20, 2021 71 RESOLUTION 5339 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, CREATING SPECIAL IMPROVEMENT LIGHTING DISTRICT NO. 768 (ALLISON PHASE 4A) AND DECLARING IT TO BE THE INTENTION OF THE CITY COMMISSION TO CREATE THE DISTRICT FOR ASSESSING THE COSTS FOR MAINTENTANCE AND ENERGY THEREFORE TO BENEFITTED PROPERTY BY THE LEVY OF SPECIAL ASSESSMENT. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, to wit: Section 1 Intention to Create District 768; Proposed Improvements. It is the intention of this Commission to Create and establish in the City under Montana Code Annotated, Title 7, Chapter 12, Part 43, as amended, a special improvement lighting district to serve ALLISON PHASE 4A (the “District”) for the purpose of, assessing the costs for maintenance and energy for the benefitted property by the levy of a special assessment. The district will pay the maintenance and energy costs for six (6) Lumec RoadFocus LED cobra head luminaires which are 72 watt fixtures. They will be mounted on 30’ pole with a powder coated hunter green finish. The district will also pay for two (2) Lumec RoadFocus LED cobra head luminaires which are 30 watt fixtures. These will be mounted on 25’ poles with a powder coater hunter green finish. Exhibit A shows the locations for each of these lights (the “Improvements”). The initial monthly charges per fixture per month (the “Monthly Charge”) are estimated as follows: $25.50 for the LED 72 watt fixtures and $5.08 for the LED 30 watt fixtures; for a total of $30.58 per month. 72 Section 2 Number of District. The District, if the same shall be created and established, shall be known and designated as Special Improvement Lighting District No.768 (ALLISON PHASE 4A) of the City of Bozeman, Montana. Section 3 Boundaries of District. The limits and boundaries of the District are depicted on a map attached as Exhibit A hereto (which is hereby incorporated herein and made a part hereof), which boundaries are designated and confirmed as the boundaries of the District. A listing of each of the properties in the District is shown on Exhibit B hereto (which is hereby incorporated herein and made a part hereof). Section 4 Benefited Property. The District and territory included within the limits and boundaries described in Section 3 and as shown on Exhibit A are hereby declared to be the special lighting district and the territory which will benefit and be benefited by the maintenance and energy and will be assessed for the energy costs and a portion of the maintenance as described in Section 1. The maintenance and energy, in the opinion of this Commission, are of more than local and ordinary benefit. The property included within said limits and boundaries is hereby declared to be the property benefited by the maintenance and energy provided. Section 5 Assessment Methods. All properties within the District are to be assessed for a portion of the maintenance and energy costs, as specified herein. The maintenance and energy costs shall be assessed against the property in the District benefiting, the actual area method of assessment described in Sections 7-12-4323, MCA, as particularly applied and set forth in this Section 5. The annual maintenance and energy costs are estimated at $366.96, and shall be assessed against each lot, tract or parcel of land in the District for that part of the costs that the area of such lot, tract or parcel bears to the total area of all lots, tracts or parcels of land in the District, exclusive of streets, 73 avenues, alleys parks and open space.. The total area of the District to be assessed is 13.24 acres, or 576,928 square feet, exclusive of parks and open space. The initial costs of the Improvements per acre shall be $27.72 or $0.000636 per square foot. Section 6 Payment of Assessments. Special assessments for the annual maintenance and energy costs are estimated at $366.96, plus any increases, as may be permitted by the Public Service Commission, and any additional authorized charges shall be levied each year against all properties in the District and shall be payable in equal semiannual installments. The first year of special assessment billing will include an additional amount not to exceed $500.00 for publication and mailing associated with creation of the District which shall be assessed in the same manner as the Improvements resulting in a cost not to exceed $65.48 per acre, or $0.001503 per square foot. Section 7 Extraordinary Repair or Replacement. The maintenance and energy costs and assessments set forth in Section 1 and 5 are based on normal conditions and do not cover charges for repair and/or replacement. The City may make an additional charge to the District for costs of labor and actual material costs for repairs and/or replacement of the fixtures for damage caused by third parties and not paid by such third parties. The City will assess such costs and charges against the properties in the District in the same manner as the other assessment is made. Section 8 Discontinuation of District. If at any time after the initial term of the District a petition is presented to the City Commission, signed by the owners or agents of more than three-fourths of the total amount of property within the District, asking that the maintenance and operation of the special lighting system and the furnishing of electrical current in the district be discontinued, or if a majority of the City Commission votes to discontinue the District, the City Commission shall, by resolution, provide for discontinuing the maintenance and operation of the lighting system. If the Commission has, prior to the presentation of a petition or by a majority vote of the Commission to 74 discontinue the District, entered into any contract for the maintenance and operation of the lighting system, the maintenance and operation may not be discontinued until after the expiration of the contract. Section 9 Public Hearing; Protests. At any time within fifteen (15) days from and after the date of the first publication of the notice of the passage and approval of this resolution, any owner of real property within the District subject to assessment and taxation for the cost and expense of maintenance and energy may make and file with the City Clerk until 5:00 p.m., M.T., on the expiration date of said 15-day period (November 8, 2021) written protest against the proposed maintenance and energy costs, or against the extension or creation of the District or both, and this Commission will at its next regular meeting after the expiration of the fifteen (15) days in which such protests in writing can be made and filed, proceed to hear all such protests so made and filed; which said regular meeting will be held on November 9, 2021 in the Commission Room at City Hall, 121 N Rouse Avenue. Section 10 Notice of Passage of Resolution of Intention. The City Clerk is hereby authorized and directed to publish or cause to be published a copy of a notice of the passage of this resolution in the Bozeman Daily Chronicle, a newspaper of general circulation in the county on October 24, 2021 and October 31, 2021, in the form and manner prescribed by law, and to mail or cause to be mailed a copy of said notice to every person, firm, corporation, or the agent of such person, firm, or corporation having real property within the District listed in his or her name upon the last completed assessment roll for state, county, and school district taxes, at his last-known address, on or before the same day such notice is first published. PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 19th day of October, 2021. 75 ___________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: ___________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN CERTIFICATE AS TO RESOLUTION AND ADOPTING VOTE I, the undersigned, being the duly qualified and acting recording officer of the City of Bozeman, Montana (the “City”), hereby certify that the attached resolution is a true copy of Resolution No. 5339, entitled: “A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, RELATING TO SPECIAL IMPROVEMENT LIGHTING DISTRICT NO. 768 (ALLISON PHASE 4A) DECLARING IT TO BE THE INTENTION OF THE CITY COMMISSION TO CREATE THE DISTRICT FOR THE PURPOSE OF MAINTAINING LIGHTING IMPROVEMENTS AND ASSESSING THE COSTS FOR MAINTENANCE AND ENERGY THEREFORE TO BENEFITTED PROPERTY BY THE LEVY OF SPECIAL ASSESSMENT.” (the “Resolution”), on file in the original records of the City in my legal custody; that the Resolution was duly adopted by the City Commission of the City of Bozeman at a meeting on October 19, 2021, and that the meeting was duly held by the City Commission and was attended throughout by a quorum, pursuant to call and notice of such meeting given as required by law; and that the Resolution has not as of the date hereof been amended or repealed. I further certify that, upon vote being taken on the Resolution at said meeting, the following Commissioners voted in favor thereof: _____ 76 ____________________ ; voted against the same: ___ ; abstained from voting thereon: ; or were absent: . WITNESS my hand officially this 20th day of October, 2021. ___________________________________ Mike Maas City Clerk 77 TO CREATE SPECIAL IMPROVEMENT LIGHTING DISTRICT NO. 768 (ALLISON PHASE 4A) CITY OF BOZEMAN, MONTANA NOTICE IS HEREBY GIVEN that on October 19, 2021, the City Commission (the “Commission”) of the City of Bozeman, Montana (the “City”), adopted a Resolution No. 5339 to Create Special Improvement Lighting District No. 768 (the “District”) for the purpose of maintaining lighting and assessing the cost for maintenance and energy to ALLISON PHASE 4A, and paying maintenance and energy costs relating thereto. A complete copy of the Resolution of Intention (the “Resolution”) No. 5339 is on file with the City Clerk which more specifically describes the nature of the costs, the boundaries and the area included in the District, the location of the Improvements and other matters pertaining thereto and further particulars. A list of properties in the District and the amount of the initial assessment accompanies this notice. The Resolution and accompanying exhibits may be also viewed on the City’s website at www.bozeman.net. The district will pay the maintenance and energy costs for six (6) Lumec RoadFocus LED cobra head luminaires which are 72 watt fixtures. They will be mounted on 30’ pole with a powder coated hunter green finish. The district will also pay for two (2) Lumec RoadFocus LED cobra head luminaires which are 30 watt fixtures. These will be mounted on 25’ poles with a powder coater hunter green finish. Exhibit A shows the locations for each of these lights (the “Improvements”). The initial monthly charges per fixture per month (the “Monthly Charge”) are estimated as follows: $25.50 for the LED 72 watt fixtures and $5.08 for the LED 30 watt fixtures; for a total of $30.58 per month. All properties in the District will be assessed for their proportionate share of the costs of the Improvements on an “area basis” annually and will be payable in equal semiannual installments. The annual costs of the Improvements at the initial Monthly Charge are $366.96 per year for the entire District. The total area of the District to be assessed is 13.24 acres, or 78 576,928 square feet, exclusive of parks and open space. The initial costs of the Improvements per acre shall be $27.72, or $0.000636 per square foot. On an average size lot of 6,777 square feet the annual estimated cost would be $4.31, which is payable semiannually. The annual assessments for costs of the Improvements may be increased as approved by the Public Service Commission and may be increased to cover extraordinary expenses of repair and maintenance. The first year of special assessment billing will include an additional amount not to exceed $500.00 for publication and mailing associated with creation of the District which shall be assess in the same manner as the Improvements resulting in a cost not to exceed $65.48 per acre, or .001503 per square foot. On Tuesday, October 19, at 6:00 p.m., in the Commission Room at City Hall 121 N Rouse Ave, Bozeman, Montana, the City Commission will conduct a public hearing to hear and pass upon all written protests against the creation or extension of the District, or the Improvements. Written protests against the creation or extension of the District and the costs may be filed by an agent, person, firm or corporation owning real property within the proposed District whose property is liable to be assessed for the costs. Such protests must be delivered to the City Clerk at City Hall, 121 N Rouse Ave, Bozeman, Montana not later than 5:00 p.m., M.T., on Monday, November 8, 2021. Further information regarding the proposed District or other matters in respect thereof may be obtained from the City Clerk at City Hall, 121 N Rouse Ave, Bozeman, Montana or by telephone at (406) 582-2320. Dated:October 20, 2021 BY ORDER OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA 79 _________________________________________ Mike Maas City Clerk Legal Ad Publication Dates: Sunday, October 24, 2021 Sunday, October 31, 2021 COMMISSION RESOLUTION NO. 5339 Resolution of Intent to Create SILD No. 768 for the purpose of maintaining lighting and assessing the cost for maintenance and energy to ALLISON PHASE 4A, and paying maintenance and energy costs relating thereto. AFFIDAVIT OF MAILING STATE OF MONTANA ) : ss County of Gallatin ) Robin Crough, City Clerk, being first duly sworn, says: That I deposited a copy of the Notice in regards to the owners in Special Improvement Lighting District No. 768, as listed in Exhibit "B", in the U.S. Post Office at Bozeman, Montana, on Friday, October 22, 2021, directed to the owners at the addresses shown on Exhibit "B". ______________________________ Mike Maas City Clerk Subscribed and sworn before me this 22nd day of October, 2021. 80 Version April 2020 (Notarial Seal) _______________________________ Printed name ___________________ Notary Public for the State of Montana Residing at: see seal My Commission expires: see seal City Attorney 81 SOUTH 11TH AVE.OPPORTUNITY WAY STUDENT DRIVE ARNOLD STREET BON TON AVESOUTH 7TH AVEVOLLMER STREET MADISON ENGINEERING 895 TECHNOLOGY BLVD , SUITE 203 BOZEMAN, MT 59718 (406) 586-0262 (406) 586-5740 FAX SHEET 1 inch = 0 SCALE 60' 120'30'60' SILD ALLISON PH 4A 82 Phase Block Lot LID Name Address 1 City State, Zip Square Footage 4A 1 1 Bon Ton Inc PO Box 906 Bozeman MT 59771 73,421.00 4A 1 2 Bon Ton Inc PO Box 907 Bozeman MT 59771 84,538.00 4A 2 1 Bon Ton Inc PO Box 908 Bozeman MT 59771 94,006.00 4A 2 2 Bon Ton Inc PO Box 909 Bozeman MT 59771 - Future Phase-not included in this SILD 4A 3 1 Bon Ton Inc PO Box 910 Bozeman MT 59771 53,892.00 4A 4 1 Bon Ton Inc PO Box 911 Bozeman MT 59771 8,188.00 4A 4 2 Bon Ton Inc PO Box 912 Bozeman MT 59771 8,188.00 4A 4 3 Bon Ton Inc PO Box 913 Bozeman MT 59771 8,188.00 4A 4 4 Bon Ton Inc PO Box 914 Bozeman MT 59771 8,942.00 4A 4 5 Bon Ton Inc PO Box 915 Bozeman MT 59771 8,942.00 4A 4 6 Bon Ton Inc PO Box 916 Bozeman MT 59771 8,182.00 4A 4 7 Bon Ton Inc PO Box 917 Bozeman MT 59771 8,182.00 4A 4 8 Bon Ton Inc PO Box 918 Bozeman MT 59771 8,179.00 4A 5 1 Bon Ton Inc PO Box 919 Bozeman MT 59771 4,439.00 4A 5 2 Bon Ton Inc PO Box 920 Bozeman MT 59771 4,102.00 4A 5 3 Bon Ton Inc PO Box 921 Bozeman MT 59771 4,164.00 4A 5 4 Bon Ton Inc PO Box 922 Bozeman MT 59771 4,226.00 4A 5 5 Bon Ton Inc PO Box 923 Bozeman MT 59771 4,287.00 4A 5 6 Bon Ton Inc PO Box 924 Bozeman MT 59771 4,262.00 4A 5 7 Bon Ton Inc PO Box 925 Bozeman MT 59771 4,069.00 4A 5 8 Bon Ton Inc PO Box 926 Bozeman MT 59771 16,910.00 4A 5 9 Bon Ton Inc PO Box 927 Bozeman MT 59771 5,650.00 4A 5 10 Bon Ton Inc PO Box 928 Bozeman MT 59771 5,654.00 4A 5 11 Bon Ton Inc PO Box 929 Bozeman MT 59771 6,223.00 4A 5 12 Bon Ton Inc PO Box 930 Bozeman MT 59771 6,228.00 4A 5 13 Bon Ton Inc PO Box 931 Bozeman MT 59771 5,666.00 4A 5 14 Bon Ton Inc PO Box 932 Bozeman MT 59771 6,405.00 4A 5 15 Bon Ton Inc PO Box 933 Bozeman MT 59771 7,247.00 4A 5 16 Bon Ton Inc PO Box 934 Bozeman MT 59771 8,486.00 4A 5 17 Bon Ton Inc PO Box 935 Bozeman MT 59771 5,754.00 4A 5 18 Bon Ton Inc PO Box 936 Bozeman MT 59771 5,006.00 4A 5 19 Bon Ton Inc PO Box 937 Bozeman MT 59771 5,006.00 4A 5 20 Bon Ton Inc PO Box 938 Bozeman MT 59771 5,006.00 4A 5 21 Bon Ton Inc PO Box 939 Bozeman MT 59771 5,012.00 4A 5 22 Bon Ton Inc PO Box 940 Bozeman MT 59771 7,086.00 4A 5 23 Bon Ton Inc PO Box 941 Bozeman MT 59771 7,299.00 4A 5 24 Bon Ton Inc PO Box 942 Bozeman MT 59771 5,480.00 4A 5 25 Bon Ton Inc PO Box 943 Bozeman MT 59771 5,600.00 4A 5 26 Bon Ton Inc PO Box 944 Bozeman MT 59771 6,059.00 4A 6 1 Bon Ton Inc PO Box 945 Bozeman MT 59771 9,411.00 4A 6 2 Bon Ton Inc PO Box 946 Bozeman MT 59771 7,750.00 4A 6 3 Bon Ton Inc PO Box 947 Bozeman MT 59771 7,750.00 4A 6 4 Bon Ton Inc PO Box 948 Bozeman MT 59771 7,749.00 4A 6 5 Bon Ton Inc PO Box 949 Bozeman MT 59771 7,221.00 4A 7 1 Bon Ton Inc PO Box 950 Bozeman MT 59771 8,873.00 4A 7 2 Bon Ton Inc PO Box 951 Bozeman MT 59772 - Future Phase-not included in this SILD Total Square Footage 576,928.00 Total Acreage 13.24 Original Acct #135870, RGG1584 Exhibit B ALLISON SUBDIVISION PHASE 4A Ownership: Bon Ton Inc PO Box 906 Bozeman, MT 59771 83 Memorandum REPORT TO:City Commission FROM:Bernie Massey, Assistant Treasurer Laurae Clark, Treasurer Kristin Donald, Finance Director SUBJECT:Resolution 5341, Intent to Create Special Improvement Lighting District #767 for Bozeman Gateway Subdivision PUD Phase 4 (West Garfield Street) MEETING DATE:October 19, 2021 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Adopt Resolution 5341, Intent to Create Special Improvement Lighting District #767 for Bozeman Gateway Subdivision PUD Phase 4 (West Garfield Street). STRATEGIC PLAN:7.5. Funding and Delivery of City Services: Use equitable and sustainable sources of funding for appropriate City services, and deliver them in a lean and efficient manner. BACKGROUND:7-12-4301. Special improvement districts for lighting streets authorized. (1) The council of any city or town is authorized to: (a) create special improvement districts embracing any street or streets or public highway therein or portions thereof and property adjacent thereto or property which may be declared by said council to be benefited by the improvement to be made for the purpose of lighting such street or streets or public highway; (b) require that all or any portion of the cost of installing and maintaining such lighting system be paid by the owners of the property embraced within the boundaries of such districts; and (c) assess and collect such portion of such cost by special assessment against said property. (2) The governing body may create special lighting districts on any street or streets or public highway for the purpose of lighting them and assess the costs for installation and maintenance to property abutting thereto and collect the costs by special assessment against the property UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:As a result of creating this lighting district, the City will pay the associated power bills and schedule system maintenance. We will recover these costs 84 by billing property owners each year on their City Assessment bill. It is estimated to cost $7.63 per acre within the district or $360.00 annually for the entire district, or on an average size lot of 73,355 square feet the annual estimated cost would be $12.91, which is payable semiannually. Attachments: Resolution5341-Intent to Creatd SILD 767 .docx Exhibit A.pdf Exhibit B.pdf Report compiled on: October 6, 2021 85 Page 1 of 10 RESOLUTION 5341 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, RELATING TO SPECIAL IMPROVEMENT LIGHTING DISTRICT NO. 767 (BOZEMAN GATEWAY SUBDIVISION PUD PHASE 4 (WEST GARFIELD ST.) DECLARING IT TO BE THE INTENTION OF THE CITY COMMISSION TO CREATE THE DISTRICT FOR THE PURPOSE OF MAINTAINING LIGHTING IMPROVEMENTS AND ASSESSING THE COSTS OF MAINTENANCE AND ENERGY THEREFOR TO BENEFITTED PROPERTY BY THE LEVY OF SPECIAL ASSESSMENT. BE IT RESOLVED by the City Commission (the “Commission”) of the City of Bozeman (the “City”), Montana, as follows: Section 1 Intention to Create District; Proposed Improvements.It is the intention of this Commission to create and establish in the City under Montana Code Annotated, Title 7, Chapter 12, Part 43, as amended, a special improvement lighting district to serve Bozeman Gateway Subdivision PUD Phase 4 (West Garfield St.)(the “District”) for the purpose of maintenance and energy costs.The district will pay the maintenance and energy costs for eight (8) Signify Lumec RoadFocus LED Cobrahead 64 watt single upsweep luminaires on round tapered steel poles, mounted at 30’per City of Bozeman standards. The poles will be K-KLAD over galvanized – Hunter Green. The initial monthly charge per fixture per month (the “Monthly Charge”) is estimated as follows: $3.75 per 64 watt LED fixture or;$45.00 annually per fixture. 86 Resolution 5341, Intent to Create Lighting District 767 Page 2 of 10 Section 2 Number of District. The District, if the same shall be created and established, shall be known and designated as Special Improvement Lighting District No. 767 (Bozeman Gateway Subdivision PUD Phase 4 (West Garfield St.) of the City of Bozeman, Montana. Section 3 Boundaries of District. The limits and boundaries of the District are depicted on a map attached as Exhibit A hereto (which is hereby incorporated herein and made a part hereof), which boundaries are designated and confirmed as the boundaries of the District. A listing of each of the properties in the District is shown on Exhibit B hereto (which is hereby incorporated herein and made a part hereof). Section 4 Benefited Property. The District and territory included within the limits and boundaries described in Section 3 and as shown on Exhibit A are hereby declared to be the special lighting district and the territory which will benefit and be benefited by the Improvements and will be assessed for the costs of the Improvements as described in Section 1. The Improvements, in the opinion of this Commission, are of more than local and ordinary benefit. The property included within said limits and boundaries is hereby declared to be the property benefited by the Improvements. Section 5 Assessment Methods. All properties within the District are to be assessed for a portion of the maintenance and energy costs, as specified herein. The maintenance and energy costs shall be assessed against the property in the District benefiting, based on the actual area method of assessment described in Sections 7-12-4323, MCA, as particularly applied and set forth in this Section 5.The annual maintenance and energy costsare estimated at $360.00, and shall be assessed against each lot, tract or parcel of land in the District for that part of the costs that the area of such lot, tract or parcel bears to the total area of all lots, tracts or parcels of land in the District, exclusive 87 Resolution 5341, Intent to Create Lighting District 767 Page 3 of 10 of streets, avenues and alleys. The total area of the District to be assessed is 47.16 acres, or 2,053,948 square feet, exclusive of parks and open space. The initial costs of the Improvements per acre shall be $7.63 or $0.000176 per square foot annually. Section 6 Payment of Assessments. Special assessments for the annual maintenance and energy costs are estimated at $360.00, plus any increases, as may be permitted by the Public Service Commission, and any additional authorized charges shall be levied each year against all properties in the District and shall be payable in equal semiannual installments. The first year of special assessment billing will include an additional amount not to exceed $500 for publication and mailing associated with creation of the District which shall be assessed in the same manner as the Improvements resulting in a cost not to exceed $18.24 per acre, or $0.000419 per square foot. Section 7 Extraordinary Repair or Replacement. The maintenance and energy costs and assessments set forth in Section 1 and 5 are based on normal conditions and do not cover charges for repair and/or replacement. The City may make an additional charge to the District for costs of labor and actual material costs for repairs and/or replacement of the fixtures for damage caused by third parties and not paid by such third parties. The City will assess such costs and charges against the properties in the District in the same manner as the other assessment is made. Section 8 Discontinuation of District. If at any time after the initial term of the District a petition is presented to the City Commission, signed by the owners or agents of more than three-fourths of the total amount of property within the District, asking that the maintenance and operation of the special lighting system and the furnishing of electrical current in the district be discontinued, or if a majority of the City Commission votes to discontinue the District, the City Commission shall, by resolution, provide for discontinuing the maintenance and operation of the lighting system. If the Commission has, prior to the presentation of a petition or by a majority vote of the Commission to 88 Resolution 5341, Intent to Create Lighting District 767 Page 4 of 10 discontinue the District, entered into any contract for the maintenance and operation of the lighting system, the maintenance and operation may not be discontinued until after the expiration of the contract. Section 9 Public Hearing; Protests. At any time within fifteen (15) days from and after the date of the first publication of the notice of the passage and approval of this resolution, any owner of real property within the District subject to assessment and taxation for the cost and expense of maintenance and energy may make and file with the City Clerk until 5:00 p.m., M.T., on the expiration date of said 15-day period (11/08/2021) written protest against the proposed maintenance and energy costs, or against the extension or creation of the District or both, and this Commission will at its next regular meeting after the expiration of the fifteen (15) days in which such protests in writing can be made and filed, proceed to hear all such protests so made and filed; which said regular meeting will be held on November 9, 2021 at 6 pm in Bozeman City Hall, City Commission Room, 121 N Rouse Ave. Section 10 Notice of Passage of Resolution of Intention. The City Clerk is hereby authorized and directed to publish or cause to be published a copy of a notice of the passage of this resolution in the Bozeman Daily Chronicle, a newspaper of general circulation in the county onOctober 24, 2021and October 31, 2021, in the form and manner prescribed by law, and to mail or cause to be mailed a copy of said notice to every person, firm, corporation, or the agent of such person, firm, or corporation having real property within the District listed in his or her name upon the last completed assessment roll for state, county, and school district taxes, at his last-known address, on or before the same day such notice is first published. PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 19th day of October, 2021. ___________________________________ CYNTHIA ANDRUS 89 Resolution 5341, Intent to Create Lighting District 767 Page 5 of 10 Mayor ATTEST: ____________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 90 Resolution 5341, Intent to Create Lighting District 767 CERTIFICATE AS TO RESOLUTION AND ADOPTING VOTE I, the undersigned, being the duly qualified and acting recording officer of the City of Bozeman, Montana (the “City”), hereby certify that the attached resolution is a true copy of Resolution No. 5341, entitled: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, RELATING TO SPECIAL IMPROVEMENT LIGHTING DISTRICT NO. 767 (BOZEMAN GATEWAY SUBDIVISION PUD PHASE 4 (WEST GARFIELD ST.) DECLARING IT TO BE THE INTENTION OF THE CITY COMMISSION TO CREATE THE DISTRICT FOR THE PURPOSE OF MAINTAINING LIGHTING IMPROVEMENTS AND ASSESSING THE COSTS FOR MAINTENANCE AND ENERGY THEREFOR TO BENEFITTED PROPERTY BY THE LEVY OF SPECIAL ASSESSMENT,(the “Resolution”), on file in the original records of the City in my legal custody; that the Resolution was duly adopted by the City Commission of the City of Bozeman at a meeting on October 19, 2021, and that the meeting was duly held by the City Commission and was attended throughoutby a quorum, pursuant to call and notice of such meeting given as required by law; and that the Resolution has not as of the date hereof been amended or repealed. I further certify that, upon vote being taken on the Resolution at said meeting, the following Commissioners voted in favor thereof: _____ ____________________ ; voted against the same: ___________ ___ ; abstained from voting thereon: ________________ ; or were absent: _______________ . WITNESS my hand officially this 20 th day of October, 2021. ___________________________________ MIKE MAAS City Clerk 91 Resolution 5341, Intent to Create Lighting District 767 NOTICE OF PASSAGE OF RESOLUTION OF INTENTION TO CREATE SPECIAL IMPROVEMENT LIGHTING DISTRICT NO. 767 (BOZEMAN GATEWAY SUBDIVISION PUD PHASE 4 (WEST GARFIELD ST.) CITY OF BOZEMAN, MONTANA NOTICE IS HEREBY GIVEN that on October 19, 2021, the City Commission (the “Commission”) of the City of Bozeman, Montana (the “City”), adopted a Resolution of Intention No. 5341 to create Special Improvement Lighting District No. 767 (the “District”) for the purpose of maintaining lighting and assessing the cost for maintenance and energy to BOZEMAN GATEWAY SUBDIVISION PUD PHASE 4 (WEST GARFIELD ST.), and paying maintenance and energy costs relating thereto. A complete copy of the Resolution of Intention (the “Resolution”) No. 5341 is on file with the City Clerk which more specifically describes the nature of the costs, the boundaries and the area included in the District, the location of the Improvements and other matters pertaining thereto and further particulars. A list of properties in the District and the amount of the initial assessment accompanies this notice. The Resolution and accompanying exhibits may be also viewed on the City’s website at www.bozeman.net. The district will pay the maintenance and energy costs for eight (8) Signify Lumec RoadFocus LED Cobrahead 64 watt single upsweep luminaires on round tapered steel poles, mounted at 30’ per City of Bozeman standards. The poles will be K-KLAD over galvanized –Hunter Green. The initial monthly charge per fixture per month (the “Monthly Charge”) is estimated as follows: $3.75 per 64 watt fixture; or $45.00 annually per fixture. All properties in the District will be assessed for their proportionate share of the costs of the Improvements on an “area basis” annually and will be payable in equal semiannual installments. The annual costs of the Improvements at the initial Monthly Charge are $360.00 per year for the entire District. The total area of the District to be assessed is 47.16 acres, or 2,053,948 square feet, exclusive of parks and open space. The initial costs of the Improvements per acre shall be $7.63, or $0.000176 per square foot. On an average size lot of 73,355 square feet the annual estimated cost would be $12.91 which is payable semiannually. The annual 92 Resolution 5341, Intent to Create Lighting District 767 assessments for costs of the Improvements may be increased as approved by the Public Service Commission and may be increased to cover extraordinary expenses of repair and maintenance. The first year of special assessment billing will include an additional amount not to exceed $500 for publication and mailing associated with creation of the District which shall be assess in the same manner as the Improvements resulting in a cost not to exceed $18.24 per acre, or $0.000419 per square foot. On Tuesday, November 9, 2021, at 6:00 p.m., in the Commission Room at City Hall 121 N Rouse Ave, Bozeman, Montana, the City Commission will conduct a public hearing to hear and pass upon all written protests against the creation or extension of the District, or the Improvements. Due to the City’s Declaration of Emergency for the Covid-19 Pandemic, this meeting may be held online using Webex or other technology. Written protests against the creation or extension of the District and the costs may be filed by an agent, person, firm or corporation owning real property within the proposed District whose property is liable to be assessed for the costs. Such protests must be delivered to the City Clerk at City Hall, 121 N Rouse Ave, Bozeman, Montana not later than 5:00 p.m., M.T., on November 8, 2021. Further information regarding the proposed District or other matters in respect thereof may be obtained from the City Clerk at City Hall, 121 N Rouse Ave, Bozeman, Montana or by telephone at (406) 582-2320. DATED this 22nd day of October, 2021. Mike Maas City Clerk City of Bozeman Legal Ad 93 Resolution 5341, Intent to Create Lighting District 767 Publication Dates: Sunday, October 24, 2021 Sunday, October 31, 2021 94 Resolution 5341, Intent to Create Lighting District 767 RESOLUTION 5341 Resolution of Intent to create SILD No. 767 for the purpose of maintaining lighting and assessing the cost for maintenance and energy to BOZEMAN GATEWAY SUBDIVISION PUD PHASE 4 (WEST GARFIELD ST.), and paying maintenance and energy costs relating thereto. AFFIDAVIT OF MAILING STATE OF MONTANA ) : ss County of Gallatin ) Mike Maas, City Clerk, being first duly sworn, says: That I cause to be mailed first class the Notice in regards to the owners in Special Improvement Lighting District No. 767, as listed in Exhibit "B", on Friday, October 22, 2021, directed to the owners at the addresses shown on Exhibit "B". ______________________________ Mike Maas City Clerk Subscribed and sworn before me this 22 nd day of October, 2021. (Notarial Seal) _______________________________ Printed Name____________________ Notary Public for the State of Montana Residing at: see seal My Commission expires: see seal 95 Miles 0.2 5,054 This product is for informational purposes and may not have been prepared for, or be suitable for legal,engineering, or surveying purposes. Users of this information should review or consult the primary data and information sources to ascertain the usability of the information. Feet 5890 Legend 294 Location 589 Morrison-Maierle Jim Ullman SILD Application 08/30/2021 Created By: Created For: Date: West Garfield Street - Proposed SILD Boundary Street Names Post 1993 City Limits 96 SDSDE6 E6 FUTURE LUMINAIRE BY OTHERS FUTURE LUMINAIRE BY OTHERSFOWLER AVENUEHARMON STREAMHH HH PROVIDE 2#6 CU AND 1#8 CU GND IN 2"C. PROVIDE 2#6 CU AND 1#8 CU GND IN 2"C. NEW LUMINAIRE STA: 0+53.36, 26.8' LT NEW LUMINAIRE STA: 4+50.89, 25.7' LT E6E6 FUTURE LUMINAIRE BY OTHERS FUTURE LUMINAIRE BY OTHERSHARMON STREAMHH HH PROVIDE 2#6 CU AND 1#8 CU GND IN 2"C. PROVIDE 2#6 CU AND 1#8 CU GND IN 2"C. M NEW LUMINAIRE STA: 7+48.28, 26.15 LT NEW LUMINAIRE STA: 10+44.59, 26.34 LT BOZEMAN GATEWAY SUBDIVISION PUD GARFIELD LIGHTING PLAN SHEET NUMBER PROJECT NUMBER DRAWING NUMBER VERIFY SCALE! THESE PRINTS MAY BE REDUCED. LINE BELOW MEASURES ONE INCH ON ORIGINAL DRAWING. MODIFY SCALE ACCORDINGLY! DATEDESCRIPTIONNO.BY N:\3638\009\DESIGN DOCS\CALCS\ELECTRICAL\GARFIELD STREET\GARFIELD STREET POWER.DWG PLOTTED BY:CELINE SAUCIER ON Jul/29/2021 COPYRIGHT ©MORRISON-MAIERLE, INC.,2021 REVISIONS engineers surveyors planners scientists MorrisonMaierle DRAWN BY: DSGN. BY: APPR. BY: DATE: Q.C. REVIEW DATE: BY: 6558.002 E-3 BOZEMAN MONTANA ARG ARG 01/2020 2880 Technology Blvd West Bozeman, MT 59718 Phone: 406.587.0721 Fax: 406.922.6702 GARFIELD STREET LIGHTING PLAN GARFIELD STREET LIGHTING PLAN MATCHLINE STA: 7+00SEE GARFIELD (2)MATCHLINE STA: 7+00SEE GARFIELD (1)MATCHLINE STA: 13+00SEE GARFIELD (3)2 2 1 KEY NOTES METER EQUIPMENT M1. SEE DETAIL ON E-2. PROVIDE 2#10CU AND 1#10CU GND BETWEEN HAND HOLE AND LUMINAIRE SEE PULLBOX DETAIL ON E-2 GENERAL NOTES 1.CONTRACTOR SHALL PROVIDE SCHEDULE 80 PVC CONDUIT UNDER PAVED SURFACES. SCHEDULE 40 PVC IS PERMITTED UNDER LANDSCAPED SURFACE. 2.ALL CONDUIT AND TRENCHING SHALL BE INSTALLED PER CITY STANDARDS. 2 2 2 1 3 3 3 3 3 97 E6 E6E6 FUTURE LUMINAIRE BY OTHERS FUTURE LUMINAIRE BY OTHERS SOUTH 29THHH HH HH PROVIDE 2#6 CU AND 1#8 CU GND IN 2"C.PROVIDE 2#6 CU AND 1#8 CU GND IN 2"C. NEW LUMINAIRE STA: 13+41.94, 24.84 LT NEW LUMINAIRE STA: 16+1.20, 26.19 LT E6 E6 FUTURE LUMINAIRE BY OTHERS FUTURE LUMINAIRE BY OTHERS INSTALLED BY YELLOWSTONE ORTHO. STA: 21+84.36, 24.80 LT SOUTH 29THHH HH PROVIDE 2#6 CU AND 1#8 CU GND IN 2"C. BOZEMAN GATEWAY SUBDIVISION PUD GARFIELD STREET LIGHTING PLAN SHEET NUMBER PROJECT NUMBER DRAWING NUMBER VERIFY SCALE! THESE PRINTS MAY BE REDUCED. LINE BELOW MEASURES ONE INCH ON ORIGINAL DRAWING. MODIFY SCALE ACCORDINGLY! DATEDESCRIPTIONNO.BY N:\3638\009\DESIGN DOCS\CALCS\ELECTRICAL\GARFIELD STREET\GARFIELD STREET POWER.DWG PLOTTED BY:CELINE SAUCIER ON Jul/29/2021 COPYRIGHT ©MORRISON-MAIERLE, INC.,2021 REVISIONS engineers surveyors planners scientists MorrisonMaierle DRAWN BY: DSGN. BY: APPR. BY: DATE: Q.C. REVIEW DATE: BY: 6558.002 E-4 BOZEMAN MONTANA ARG ARG 01/2020 2880 Technology Blvd West Bozeman, MT 59718 Phone: 406.587.0721 Fax: 406.922.6702 GARFIELD STREET LIGHTING PLAN GARFIELD STREET LIGHTING PLANMATCHLINE STA: 13+00SEE GARFIELD (2)MATCHLINE STA: 19+00SEE GARFIELD (4)MATCHLINE STA: 19+00SEE GARFIELD (3)1 KEY NOTES PROVIDE 2#10CU AND 1#10CU GND BETWEEN HAND HOLE AND LUMINAIRE SEE PULLBOX DETAIL ON E-2 GENERAL NOTES 1.CONTRACTOR SHALL PROVIDE SCHEDULE 80 PVC CONDUIT UNDER PAVED SURFACES. SCHEDULE 40 PVC IS PERMITTED UNDER LANDSCAPED SURFACE. 2.ALL CONDUIT AND TRENCHING SHALL BE INSTALLED PER CITY STANDARDS. 1 1 1 1 1 2 2 2 2 2 INSTALLED BY SITE Z STA: 18+70.36, 26.32 LT 2 98 ADJOINER LIST 10/6/2021R:\Treasury\Assessments\Lighting_Districts\West Garfield Street #767\Exhibit B.xlsx 1 OF 1 Exhibit B Lot Location ID Assessed Sqft Owner Name Owner Address City State Zip 1 181370 24,756 2867 Technology Blvd GKT BOZEMAN GATEWAY LLC 211 N STADIUM BLVD STE 201 COLUMBIA MO 65203-1161 2 181350 18,587 2877 Technology Blvd GKT BOZEMAN GATEWAY LLC 211 N STADIUM BLVD STE 201 COLUMBIA MO 65203-1161 3 181360 24,070 2855 Technology Blvd GKT BOZEMAN GATEWAY LLC 211 N STADIUM BLVD STE 201 COLUMBIA MO 65203-1161 4 181380 29,572 2865 Technology Blvd GKT BOZEMAN GATEWAY LLC 211 N STADIUM BLVD STE 201 COLUMBIA MO 65203-1161 1A, 5 & 6 176200 163,699 2880 Technology Blvd MORRISON MAIERLE INC 1 ENGINEERING PL HELENA MT 59602-0241 3 181290 41,668 1160 S 29th Ave MT3 & DAKOTA KID LLC PO BOX 6550 BOZEMAN MT 59771-6550 4 180640 28,523 1150 S 29th Ave RANDOLPH PROPERTIES, LLC 208 N 11TH AVE BOZEMAN MT 59715-3218 5 & 6 179740 54,243 875 Harmon Stream Blvd BANK OF BOZEMAN 875 HARMON STREAM BLVD BOZEMAN MT 59718-4052 5 181240 19,079 3240 Technology Blvd CARISCH BROTHERS LP 681 E. LAKE ST SUITE 262ATTN: NANCY GAWRELUK WAYZATA MN 55391 6 227200 11,087 1065 Harmon Stream Blvd BROOKSIDE CAMP REAL ESTATE LLC 1065 HARMON STREAM BLVD BOZEMAN MT 59718-4195 7 227210 9,491 1127 Harmon Stream Blvd MUSE VENTURES LLC 786 N 15TH AVE BOZEMAN MT 59715-3235 16A 197860 19,428 870 Harmon Stream Blvd GKT BOZEMAN GATEWAY TWO, LLC 211 N STADIUM BLVD STE 201 COLUMBIA MO 65203 19A 197890 18,469 855 S 29th Ave BRADAC SCOTT PO BOX 738 GREAT FALLS MT 59403-0738 25A 197930 176,026 981 S 29th Ave KOHLS ILLINOIS INC N56 W17000 RIDGEWOOD DR MENOMONEE FALLS WI 53051 45 197960 13,108 2952 Technology Blvd GATEWAY 45 LLC 4239 OAKWOOD AVE LA CANADA CA 91011-3408 46 197970 19,489 2928 Technology Blvd AED BUILDING LLC 2928 TECHNOLOGY BLVD W BOZEMAN MT 59718-4145 2A 283940 305,356 8748 Huffine Ln MITCHELL DEVELOPMENT & INVESTMENTS, LLC PO BOX 738 GREAT FALLS MT 59403-0738 2A 146470 672,131 8750 Huffine Ln GKT BOZEMAN GATEWAY PHASE 4 LLC 211 N STADIUM BLVD STE 201 COLUMBIA MO 65203-1161 1A 173360 241,584 3255 Technology Blvd GKT BOZEMAN GATEWAY LLC 211 N STADIUM BLVD STE 201 COLUMBIA MO 65203-1161 1A1 & 2A1 181210 31,990 1060 S Fowler Ave GKT BOZEMAN GATEWAY LLC 211 N STADIUM BLVD STE 201 COLUMBIA MO 65203-1161 3A 181220 17,144 1120 S Fowler Ave GKT BOZEMAN GATEWAY LLC 211 N STADIUM BLVD STE 201 COLUMBIA MO 65203-1161 4A 181230 19,744 1140 S Fowler Ave GKT BOZEMAN GATEWAY LLC 211 N STADIUM BLVD STE 201 COLUMBIA MO 65203-1161 17A 197880 28,009 867 S 29th Ave GKT BOZEMAN GATEWAY LLC 211 N STADIUM BLVD STE 201 COLUMBIA MO 65203-1161 23A 197990 8,451 2933 Technology Blvd GKT BOZEMAN GATEWAY LLC 211 N STADIUM BLVD STE 201 COLUMBIA MO 65203-1161 22B 198020 6,273 2927 Technology Blvd GKT BOZEMAN GATEWAY LLC 211 N STADIUM BLVD STE 201 COLUMBIA MO 65203-1161 47 198040 15,177 2959 W Garfield St GKT BOZEMAN GATEWAY LLC 211 N STADIUM BLVD STE 201 COLUMBIA MO 65203-1161 48 198030 23,203 2921 W Garfield St GKT BOZEMAN GATEWAY LLC 211 N STADIUM BLVD STE 201 COLUMBIA MO 65203-1161 14A 197840 13,591 862 Harmon Stream Blvd GKT BOZEMAN GATEWAY LLC 211 N STADIUM BLVD STE 201 COLUMBIA MO 65203-1161 Total Sqft 2,053,948 Address Bozeman Gateway Subdivision PUD Lighting District #767 Phase 4 (West Garfield St.) FY 22 99 Memorandum REPORT TO:City Commission FROM:Chris Saunders, Community Development Manager Martin Matsen, Community Development Director SUBJECT:Ordinance 2088, Provisionally Adopting the Gran Cielo Subdivision Phase 2 Zone Map Amendment to Change 8.552 acres from R-4, Residential High Density District to R-5, Residential Mixed Use High Density District at the Northwest Corner of the Intersection of S 27th Avenue and Bennett Boulevard, Application 21095. MEETING DATE:October 19, 2021 AGENDA ITEM TYPE:Community Development - Legislative RECOMMENDATION:Provisional Adoption of Ordinance 2088 as presented. STRATEGIC PLAN:4.2 High Quality Urban Approach: Continue to support high-quality planning, ranging from building design to neighborhood layouts, while pursuing urban approaches to issues such as multimodal transportation, infill, density, connected trails and parks, and walkable neighborhoods. BACKGROUND:The City Commission considered this application on August 3, 2021. After conducting the required public hearing the City Commission preliminarily approved this application subject to contingencies. The contingencies are met and the implementing ordinance is presented for adoption. The City Commission is the decision maker for all ordinances. Staff report and application materials for the initial consideration on August 3rd are available at https://d2kbkoa27fdvtw.cloudfront.net/bozeman/ee9f04b8ab9282c405815f8a6dda29070.pdf Minutes of the City Commission meeting are available at https://weblink.bozeman.net/WebLink/DocView.aspx? id=255750&dbid=0&repo=BOZEMAN. UNRESOLVED ISSUES:None. ALTERNATIVES:As determined by the City Commission. FISCAL EFFECTS:None. Attachments: Ordinance 2088 Gran Cielo Phase 2 ZMA 21095.pdf GRAN CIELO ZMA MAP 10-07-21.pdf 100 Report compiled on: October 8, 2021 101 Ord 2083 Page 1 of 5 ORDINANCE 2088 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA AMENDING THE CITY OF BOZEMAN ZONING MAP ON 8.552 ACRES FROM R-4, HIGH DENSITY RESIDENTIAL DISTRICT, TO R-5, RESIDENTIAL MIXED USE HIGH DENSITY DISTRICT, GRAN CIELO SUBDIVISION PHASE 2 ZONE MAP AMENDMENT, APPLICATION 21095. WHEREAS, the City of Bozeman has adopted zoning regulations and a zoning map pursuant to Sections 76-2-301 and 76-2-302, M.C.A.; and WHEREAS, Section 76-2-305, M.C.A. allows local governments to amend zoning maps if a public hearing is held and official notice is provided; and WHEREAS, Section 76-2-307, M.C.A. states that the Zoning Commission must conduct a public hearing and submit a report to the City Commission for all zoning map amendment requests; and WHEREAS, the City of Bozeman Zoning Commission has been created by Section 2.05.2700, BMC as provided for in Section 76-2-307, M.C.A.; and WHEREAS, Chapter 38, Article 37 of the Bozeman Unified Development Code sets forth the procedures and review criteria for zoning map amendments; and WHEREAS, after proper notice, the Bozeman Zoning Commission held a public hearing on July 26, 2021 to receive and review all written and oral testimony on the request for a zone map amendment; and WHEREAS, the Bozeman Zoning Commission recommended to the Bozeman City Commission that application No. 21095 the Gran Cielo Subdivision Phase 2 Zone Map Amendment, be approved as requested by the applicant; and WHEREAS, after proper notice, the City Commission held its public hearing on August 3, 2021, to receive and review all written and oral testimony on the request for the zone map amendment; and 102 Ordinance No. 2088, Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 2 of 5 WHEREAS, the City Commission has reviewed and considered the zone map amendment criteria established in Section 76-2-304, M.C.A., and found that the proposed zone map amendment would be in compliance with the criteria. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 Legislative Findings The City Commission hereby makes the following findings in support of adoption of this Ordinance: 1. The City adopted a growth policy, the Bozeman Community Plan 2020, by Resolution 5133 to establish policies for development of the community including zoning; 2. The Bozeman Community Plan 2020, Chapter 5, sets forth the policies by which the City reviews and applies the criteria for amendment of zoning established in 76-3-304, MCA; 3. Zoning, including amendments to the zoning map, must be in accordance with an adopted growth policy; 4. A staff report analyzing the required criteria for a zone map amendment, including accordance to the Bozeman Community Plan 2020, found that the required criteria are satisfied; 5. The two required public hearings were advertised as required in state law and municipal code and all persons have had opportunity to review the materials applicable to the application and provide comment prior to a decision; 6. The Bozeman Zoning Commission has been established as required in state law and conducted their required public hearing; and after consideration of application materials, staff analysis and report, and all submitted public comment recommended approval of the requested R-5 district. 7. The City Commission conducted a public hearing to provide all interested parties the opportunity to provide evidence and testimony regarding the proposed amendment prior to the City Commission acting on the application. 103 Ordinance No. 2088, Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 3 of 5 8. The City Commission considered the application materials, staff analysis and report, Zoning Commission recommendation, all submitted public comment, and all other relevant information. 9. The City Commission determines that, as set forth in the staff report and incorporating the staff findings as part of their decision, the required criteria for approval of Application No. 21095, the Gran Cielo Subdivision Phase 2 Zone Map Amendment have been satisfied. Section 2 That the zoning district designation of the following-described property is hereby established as R-5, Residential Mixed Use High Density District: The property is described as: All those portions of Tract 1 and Tract 3 of Certificate of Survey No. 2725, located in the Northwest One-Quarter of Section 23, Township 2 South, Range 5 East, P.M.M., City of Bozeman, Gallatin County, Montana, more particularly described as follows; Beginning at the southwest corner of said Tract 3, a 2" Allen aluminum cap; thence N 01°22'34" E a distance of 640.81' to a calculated point; thence S 89°24'55" E a distance of 670.36' to a calculated point; thence S 01°27'30" W a distance of 62.26' to an Alpine aluminum cap; thence 99.39' along a curve concave to the west, having a radius of 300.00', a chord bearing of S 10°56'57" W and a chord length of 98.93', to an Alpine aluminum cap; thence 74.00' along a curve concave to the west, having a radius of 300.00', a chord bearing of S 27°30'22" W and a chord length of 73.81', to an Alpine aluminum cap; thence S 34°34'21" W a distance of 101.25' to an Alpine aluminum cap; thence 173.39' along a curve concave to the east, having a radius of 300.00', a chord bearing of S 18°00'55" W and a chord length of 170.98', to an Alpine aluminum cap; thence S 01°27'30" W a distance of 169.67' to an Alpine aluminum cap; thence N 89°15'48" W a distance of 516.65' to the point of beginning; containing 8.552 acres, more or less. All as depicted on the Gran Cielo Subdivision Phase 2 Zone Map Amendment map, Exhibit A to this ordinance. 104 Ordinance No. 2088, Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 4 of 5 Section 3 Repealer. All provisions of the ordinances of the City of Bozeman in conflict with the provisions of this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force and effect. Section 4 Savings Provision. This ordinance does not affect the rights and duties that matured, penalties that were incurred or proceedings that were begun before the effective date of this ordinance. All other provisions of the Bozeman Municipal Code not amended by this Ordinance shall remain in full force and effect. Section 5 Severability. That should any sentence, paragraph, subdivision, clause, phrase or section of this ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect the validity of this ordinance as a whole, or any part or provision thereof, other than the part so decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman Municipal Code as a whole. Section 6 Codification. This Ordinance shall not be codified but shall be kept by the City Clerk and entered into a disposition list in numerical order with all other ordinances of the City and shall be organized in a category entitled “Zone Map Amendments.” Section 7 Effective Date. This ordinance shall be in full force and effect thirty (30) days after final adoption. 105 Ordinance No. 2088, Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 5 of 5 PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the 19th day of October 2021. ____________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: ____________________________________ MIKE MAAS City Clerk FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the City of Bozeman, Montana on second reading at a regular session thereof held on the ___ of ____________________, 2021. The effective date of this ordinance is ____, ______________, 2021. _________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: _______________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 106 107 Memorandum REPORT TO:City Commission FROM:Chris Saunders, Community Development Manager Martin Matsen, Community Development Director SUBJECT:Ordinance 2093, Provisionally Adopting the Gallatin County Rest Home Zone Map Amendment to Revise the Zoning map on 9.8 acres at 1221 Durston Road from R3 - Medium Density Residential to R4 - High Density Residential, application 21330 MEETING DATE:October 19, 2021 AGENDA ITEM TYPE:Community Development - Legislative RECOMMENDATION:Recommended Commission Motion: Having reviewed and considered the staff report, application materials, public comment, recommendation of the Zoning Commission, and all information presented, I hereby adopt the findings presented in the staff report for application 21330 and move to provisionally adopt Ordinance 2093, the Gallatin County Rest Home Zone Map Amendment. STRATEGIC PLAN:4.2 High Quality Urban Approach: Continue to support high-quality planning, ranging from building design to neighborhood layouts, while pursuing urban approaches to issues such as multimodal transportation, infill, density, connected trails and parks, and walkable neighborhoods. BACKGROUND:Applicant Gallatin County seeks to amend the zoning map designation on property at 1221 Durston Road owned by Gallatin County. The zone map amendment would change the zoning of 9.8 acres from R-3 (Residential Medium Density District) to R-4 (Residential High Density District). The Gallatin County Rest Home occupies approximately 4.1 acres of the site. The 5.7 acre remaining area is open grassed area. There is no submitted proposal or site layout for the future use of the site at this time. One is not required as part of the zone map amendment process. If the requested amendment is approved the review of development will follow appropriate processes in the future. Additional public comment opportunities will occur during the future development process. The area proposed to be rezoned can be adequately described solely by legal description. Therefore, there are no contingencies of approval and the implementing ordinance has been prepared for action by the City Commission should they choose to approve the application. For more information see the attached staff report. Application materials are available at https://weblink.bozeman.net/WebLink/DocView.aspx? 108 id=255734&dbid=0&repo=BOZEMAN&cr=1. UNRESOLVED ISSUES:None. ALTERNATIVES:1. Approve the application and associated ordinance; 2. Deny the application based on the Commission’s findings of non- compliance with the applicable criteria contained within the staff report; or 3. Open and continue the public hearing on the application, with specific direction to staff or the applicant to supply additional information or to address specific items. FISCAL EFFECTS:None. Attachments: Ordinance 2093.pdf 21330 GC Rest Home ZMA Staff Report CC.pdf Report compiled on: October 12, 2021 109 Ord 2083 Page 1 of 5 ORDINANCE 2093 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA AMENDING THE CITY OF BOZEMAN ZONING MAP ON 9.8 ACRES FROM R-3, MEDIUM DENSITY RESIDENTIAL DISTRICT, TO R-4, RESIDENTIAL HIGH DENSITY DISTRICT, GALLATIN COUNTY REST HOME ZONE MAP AMENDMENT, APPLICATION 21330. WHEREAS, the City of Bozeman has adopted zoning regulations and a zoning map pursuant to Sections 76-2-301 and 76-2-302, M.C.A.; and WHEREAS, Section 76-2-305, M.C.A. allows local governments to amend zoning maps if a public hearing is held and official notice is provided; and WHEREAS, Section 76-2-307, M.C.A. states that the Zoning Commission must conduct a public hearing and submit a report to the City Commission for all zoning map amendment requests; and WHEREAS, the City of Bozeman Zoning Commission has been created by Section 2.05.2700, BMC as provided for in Section 76-2-307, M.C.A.; and WHEREAS, Chapter 38, Article 37 of the Bozeman Unified Development Code sets forth the procedures and review criteria for zoning map amendments; and WHEREAS, after proper notice, the Bozeman Zoning Commission held a public hearing on October 11, 2021 to receive and review all written and oral testimony on the request for a zone map amendment; and WHEREAS, the Bozeman Zoning Commission recommended to the Bozeman City Commission that application No. 21330 the Gallatin County Rest Home Zone Map Amendment, be approved as requested by the applicant; and WHEREAS, after proper notice, the City Commission held its public hearing on October 19, 2021, to receive and review all written and oral testimony on the request for the zone map amendment; and 110 Ordinance No. 2093, Gallatin County Rest Home Zone Map Amendment Page 2 of 5 WHEREAS, the City Commission has reviewed and considered the zone map amendment criteria established in Section 76-2-304, M.C.A., and found that the proposed zone map amendment would be in compliance with the criteria. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 Legislative Findings The City Commission hereby makes the following findings in support of adoption of this Ordinance: 1. The City adopted a growth policy, the Bozeman Community Plan 2020, by Resolution 5133 to establish policies for development of the community including zoning; 2. The Bozeman Community Plan 2020, Chapter 5, sets forth the policies by which the City reviews and applies the criteria for amendment of zoning established in 76-3-304, MCA; 3. Zoning, including amendments to the zoning map, must be in accordance with an adopted growth policy; 4. A staff report analyzing the required criteria for a zone map amendment, including accordance to the Bozeman Community Plan 2020, found that the required criteria are satisfied; 5. The two required public hearings were advertised as required in state law and municipal code and all persons have had opportunity to review the materials applicable to the application and provide comment prior to a decision; 6. The Bozeman Zoning Commission has been established as required in state law and conducted their required public hearing; and after consideration of application materials, staff analysis and report, and all submitted public comment recommended approval of the requested R-5 district. 7. The City Commission conducted a public hearing to provide all interested parties the opportunity to provide evidence and testimony regarding the proposed amendment prior to the City Commission acting on the application. 111 Ordinance No. 2093, Gallatin County Rest Home Zone Map Amendment Page 3 of 5 8. The City Commission considered the application materials, staff analysis and report, Zoning Commission recommendation, all submitted public comment, and all other relevant information. 9. The City Commission determines that, as set forth in the staff report and incorporating the staff findings as part of their decision, the required criteria for approval of Application No. 21330 the Gallatin County Rest Home Zone Map Amendment have been satisfied. Section 2 That the zoning district designation of the following-described property is hereby established as R-4, Residential High Density District: The property is described as: Certificate of Survey 2349, Parcel B and to the centerline of adjacent streets. Section 3 Repealer. All provisions of the ordinances of the City of Bozeman in conflict with the provisions of this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force and effect. Section 4 Savings Provision. This ordinance does not affect the rights and duties that matured, penalties that were incurred or proceedings that were begun before the effective date of this ordinance. All other provisions of the Bozeman Municipal Code not amended by this Ordinance shall remain in full force and effect. Section 5 Severability. That should any sentence, paragraph, subdivision, clause, phrase or section of this ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect 112 Ordinance No. 2093, Gallatin County Rest Home Zone Map Amendment Page 4 of 5 the validity of this ordinance as a whole, or any part or provision thereof, other than the part so decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman Municipal Code as a whole. Section 6 Codification. This Ordinance shall not be codified but shall be kept by the City Clerk and entered into a disposition list in numerical order with all other ordinances of the City and shall be organized in a category entitled “Zone Map Amendments.” Section 7 Effective Date. This ordinance shall be in full force and effect thirty (30) days after final adoption. PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the 19th day of October 2021. ____________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: ____________________________________ MIKE MAAS City Clerk FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the City of Bozeman, Montana on second reading at a regular session thereof held on the ___ of ____________________, 2021. The effective date of this ordinance is ____, ______________, 2021. _________________________________ 113 Ordinance No. 2093, Gallatin County Rest Home Zone Map Amendment Page 5 of 5 CYNTHIA L. ANDRUS Mayor ATTEST: _______________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 114 Page 1 of 29 21330 Report for the Gallatin County Rest Home Zone Map Amendment Public Hearing: Zoning Commission meeting was on October 11, 2021 City Commission meeting is on October 19, 2021 Project Description: Amendment of the City Zoning Map to rezone 9.8 acres from R3 (Residential Medium Density District) to R4 (Residential High Density District) Project Location: 1221 Durston Road, legally described as Tract B of Certificate of Survey 2439 Recommendation: Meets standards for approval Zoning Commission Motion: Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 21330 and move to recommend approval of the Gallatin County Rest Home Zone Map Amendment. Recommended City Commission Motion: Having reviewed and considered the staff report, application materials, public comment, recommendation of the Zoning Commission, and all information presented, I hereby adopt the findings presented in the staff report for application 21330 and move to provisionally adopt Ordinance 2093, the Gallatin County Rest Home Zone Map Amendment. Report: October 12, 2021 Staff Contacts: Chris Saunders, Community Development Manager Lance Lehigh – Engineer III Agenda Item Type: Action - Legislative EXECUTIVE SUMMARY This report is based on the application materials submitted and public comment received to date. Unresolved Issues None identified at this time. Project Summary Sean O’Callaghan, representing applicant Gallatin County, seeks to amend the zoning map designation on property at 1221 Durston Road owned by Gallatin County. The zone map 115 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 2 of 29 amendment would change the zoning of 9.8 acres from R-3 (Residential Medium Density District) to R-4 (Residential High Density District). The Gallatin County Rest Home occupies approximately 4.1 acres of the site. The 5.7 acre remaining area is open grassed area. There is no submitted proposal or site layout for the future use of the site at this time, neither is one required as part of the zone map amendment process. If the requested amendment is approved review of development will follow appropriate processes in the future. The area proposed to be rezoned can be adequately described solely by legal description. Therefore, there are no contingencies of approval and the implementing ordinance has been prepared for action by the City Commission should they choose to approve the application. Zoning Commission After conducting the public hearing the Zoning Commission recommended approval on a vote of 3-0. The item begins at 1 hour and 14 minutes into the video. There were six oral and two written public comments provided prior to the close of the public comment period. Public comment was offered during the comment period at the beginning of the meeting starting at 8 minutes into the video, comment during the specific action item begins at 1 hour and 58 minutes into the video. https://bozeman.granicus.com/player/clip/161?view_id=1&redirect=true. Alternatives 1. Approve the application and associated ordinance; 2. Deny the application based on the Commission’s findings of non-compliance with the applicable criteria contained within the staff report; or 3. Open and continue the public hearing on the application, with specific direction to staff or the applicant to supply additional information or to address specific items. TABLE OF CONTENTS EXECUTIVE SUMMARY ...................................................................................................... 1 Unresolved Issues ............................................................................................................... 1 Project Summary ................................................................................................................. 1 Zoning Commission ............................................................................................................ 2 116 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 3 of 29 Alternatives ......................................................................................................................... 2 SECTION 1 - MAP SERIES .................................................................................................... 4 SECTION 2 - CONTINGENCIES OF ZONE MAP AMENDMENT ..................................... 7 SECTION 3 - RECOMMENDATION AND FUTURE ACTIONS ........................................ 7 Zone Map Amendment ....................................................................................................... 7 SECTION 4 - ZONE MAP AMENDMENT STAFF ANALYSIS AND FINDINGS ............. 8 Spot Zoning Criteria ......................................................................................................... 17 PROTEST NOTICE FOR ZONING AMENDMENTS ......................................................... 19 APPENDIX A - NOTICING AND PUBLIC COMMENT .................................................... 20 APPENDIX B - PROJECT GROWTH POLICY AND PROPOSED ZONING ................... 21 APPENDIX C - OWNER INFORMATION AND REVIEWING STAFF ............................ 28 FISCAL EFFECTS ................................................................................................................. 29 ATTACHMENTS ................................................................................................................... 29 117 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 4 of 29 SECTION 1 - MAP SERIES Map 1: Project Vicinity Map 118 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 5 of 29 Map 2: Project Vicinity Map – with designations from Bozeman Community Plan 2020 Future Land Use Map 119 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 6 of 29 Map 3: Project Vicinity Map with Existing Zoning designations 120 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 7 of 29 Map 4: Project Vicinity Map with Multi-Modal Facilities SECTION 2 - CONTINGENCIES OF ZONE MAP AMENDMENT No contingencies are identified. The property can be adequately described by reference to a recorded survey and therefore no map or metes and bounds legal description is required. As there are no contingencies the implementing ordinance for this application will be included with the City Commission packet. SECTION 3 - RECOMMENDATION AND FUTURE ACTIONS Zone Map Amendment Having considered the criteria established for a zone map amendment, the Staff recommends approval as submitted. 121 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 8 of 29 The Development Review Committee (DRC) considered the amendment. The DRC did not identify any infrastructure or regulatory constraints that would impede the approval of the application. The Zoning Commission will hold a public hearing on this ZMA on October 11, 2021 and will forward a recommendation to the Commission on the Zone Map amendment. The meeting will be held using WebEx, an electronic meeting system. The instructions for connecting to WebEx will be included on the agenda available at the City’s website, www.bozeman.net. The meeting will begin at 6 p.m. The City Commission will hold a public hearing on the zone map amendment on October 19, 2021. The meeting will be held using WebEx, an electronic meeting system. The instructions for connecting to WebEx will be included on the agenda available at the City’s website, www.bozeman.net. The meeting will begin at 6 p.m. SECTION 4 - ZONE MAP AMENDMENT STAFF ANALYSIS AND FINDINGS In considering applications for plan approval under this title, the advisory boards and City Commission must consider the following criteria (letters A-K). As an amendment is a legislative action, the Commission has broad latitude to determine a policy direction. The burden of proof that the application should be approved lies with the applicant. A zone map amendment must be in accordance with the growth policy (criteria A) and be designed to secure safety from fire and other dangers (criteria B), promote public health, public safety, and general welfare (criteria C), and facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements (criteria D). Therefore, to approve a zone map amendment the Commission must find Criteria A-D are met. In addition, the Commission must also consider criteria E-K, and may find the zone map amendment to be positive, neutral, or negative with regards to these criteria. To approve the zone map amendment, the Commission must find the positive outcomes of the amendment outweigh negative outcomes for criteria E-K. In determining whether the criteria are met, Staff considers the entire body of plans and regulations for land development. Standards which prevent or mitigated negative impacts are incorporated throughout the entire municipal code but are principally in Chapter 38, Unified Development Code. References in the text of this report to Articles, Divisions, or in the form XX.XXX.XXX are to the Bozeman Municipal Code. 122 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 9 of 29 Section 76-2-304, MCA (Zoning) Criteria A. Be in accordance with a growth policy. Criterion met. The application was initially submitted on August 9, 2021. On November 17, 2020, the City Commission adopted a new growth policy, the Bozeman Community Plan 2020, (BCP 2020) which replaced the prior growth policy. The following review examines the growth policy now in place and all references are to that document. The BCP 2020, Chapter 5, p. 73-78, in the section titled Review Criteria For Zoning Amendments And Their Application, discusses how the state required zoning criteria in 76- 2-304 MCA are applied locally. Those discussions are incorporated by reference into this report and guide the review of the criteria presented and analyzed in this section of the report. Application of the criteria varies depending on whether an amendment is for the zoning map or for the text of Chapter 38, BMC. The first criterion for a zoning amendment is to be in accordance with a growth policy. Future Land Use Map The proposed amendment is a change to the zoning map. Therefore, it is necessary to analyze compliance with the future land use map. Chapter 3 of the BCP 2020 addresses the future land use map. The introduction to Chapter 3 discusses the importance of the chapter. Following are some excerpts. “Future land use is the community’s fundamental building block. It is an illustration of the City’s desired outcome to accommodate the complex and diverse needs of its residents.” “The land use map sets generalized expectations for what goes where in the community. Each category has its own descriptions. Understanding the future land use map is not possible without understanding the category descriptions.” As shown on the maps in Section 1, on the excerpt of the current future land use map, the property is designated as Urban Neighborhood The Urban Neighborhood designation description reads: “This category primarily includes urban density homes in a variety of types, shapes, sizes, and intensities. Large areas of any single type of housing are discouraged. In limited instances, an area may develop at a lower gross density due to site constraints and/or natural features such as floodplains or steep slopes. Complementary uses such as parks, home-based occupations, fire stations, churches, schools, and some neighborhood- serving commerce provide activity centers for community gathering and services. The Urban Neighborhood designation indicates that development is expected to occur within municipal boundaries. This may require annexation prior to development. 123 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 10 of 29 Applying a zoning district to specific parcels sets the required and allowed density. Higher density residential areas are encouraged to be, but are not required or restricted to, proximity to commercial mixed use areas to facilitate the provision of services and employment opportunities without requiring the use of a car.”The entire future land use map is available through the Community Development Viewer on the City’s website. The correlation between the future land use map of the growth policy and the zoning districts is presented in Table 4 of the BCP 2020. As shown in the following excerpt from Table 4, the proposed R4 district is one of the implementing districts of the Urban Neighborhood category. The full table is provided in Appendix B. Based on the proposed zoning districts’ proper correlations with the future land use map categories as an implementing district, the zone map amendment is in accordance with the future land use map. Goals and Policies This section evaluates compliance with the goals and policies contained within the Bozeman Community Plan 2020. The zone map amendment is found to be in accord to the BCP 2020 and implement the plan. Staff has found no conflict between the proposed zone map amendment and the BCP 2020 and have found accordance between the amendment and the plan. Further, approval of the application may implement the BCP 2020 by acting to further the objectives of the plan. Approval of this proposal would be in accordance with or implement several goals and objectives of the Community Plan. The application materials identify several goals and objectives advanced by the application. Staff has reviewed the material and concurs with the applicant’s assertions. Several of the noted goals and policies appear particularly applicable including: N-2.2 Revise the zoning map to support higher intensity residential districts near schools, services, and transportation. DCD-1.5 Identify underutilized sites, vacant, and undeveloped sites for possible development or redevelopment, including evaluating possible development incentives. 124 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 11 of 29 The site is only partially developed and has considerable potential for additional development. The site is across the street from Bozeman High School and within a half mile or less of several retail and service clusters along 7th Avenue, 19th Avenue, and Oak Street. In addition to those identified by the applicant, Staff also finds the following policy as applicable to this application. DCD-2.7 Encourage the location of higher density housing and public transit routes in proximity to one another. The Streamline transit system Brown route is on Durston Road adjacent to the amendment site. The City’s land use planning has for many years supported and prioritized infill development which is defined as: “Infill. The development or redevelopment of vacant, abandoned, or underutilized properties within or wholly surrounded by the City, and where water, sewer, streets, and fire protection have already been developed and are provided. Infill is located within land subdivided for at least 35 years.” This priority is shown in the following statements in the BCP 2020 • Infill development and redevelopment should be prioritized, but incremental compact outward growth is a necessary part of the City’s growth. p. 20 Theme 3, Statement of importance. “The City intends to look inward by prioritizing infill.” p. 31 The amendment site is less than half developed and has potential for infill development. See also discussion under Criterion H. B. Secure safety from fire and other dangers. Criterion met. The subject property is currently served by City of Bozeman Fire and Police Departments. Future development of the property will be required to conform to all City of Bozeman public safety, building and land use requirements, which will ensure this criterion is met. There are no floodplains or steep slopes on the property. The zone change is unlikely to adversely impact safety from fire and other dangers. C. Promote public health, public safety, and general welfare. Criterion met. City development standards included in Chapter 38, Unified Development Code, building codes, and engineering standards all ensure that this criterion is met. Adequate water and sewer supply and conveyance provide for public health through clean water. Rapid and effective emergency response provides for public safety. The City’s standards ensure that adequate services are provided prior to building construction which advances this criterion. General welfare has been evaluated during the adoption of Chapter 38 and found to be advanced by the adopted standards. Provision of parks, control of storm water, and other 125 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 12 of 29 features of the City’s development standards also advance the general welfare. Compliance with the BCP 2020 as described in Section 6, Criterion A, shows advancement of the well- being of the community as a whole. See also Criterion B. D. Facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements. Criterion met. The BCP 2020, page 74, says the following regarding evaluation of Section 6, Criteria B, C, & D for zoning amendments: “For a map amendment, all three of the above elements are addressed primarily by the City’s long range facility Plans, the City’s capital improvements program, and development standards adopted by the City. The standards set minimum sizing and flow requirements, require dedication of parks, provision of right of way for people and vehicles, keep development out of floodplains, and other items to address public safety, etc. It is often difficult to assess these issues in detail on a specific site. For example, at the time of annexation, the final intensity of development is unknown and it may be many years before development occurs and the impacts are experienced. The availability of other planning and development review tools must be considered when deciding the degree of assurance needed to apply an initial zoning at annexation.” The City conducts extensive planning for municipal transportation, water, sewer, parks, and other facilities and services provided by the City. The adopted plans allow the City to consider existing conditions; and identify enhancements needed to provide service to new development. See page 19 of the BCP 2020 for a listing. The City implements these plans through its capital improvements program (CIP). The CIP identifies individual projects, project construction scheduling, and financing of construction for infrastructure. Private development must demonstrate compliance with standards prior to construction. Dedication of school facilities is not required by municipal zoning standards. However, School District 7 will have opportunity to review and comment on future development. The application site is located within the City’s land use, transportation, parks, and utility planning areas. Adequacy of all these public requirements is evaluated during the subdivision and site development processes. All zoning districts in Bozeman enable a wide range of uses and intensities. At the time of future subdivision or site plan review the need for individual services can be more precisely determined. No subdivision or site plan is approved without demonstration of adequate capacity. As stated in 38.300.020.C, the designation of a zoning district does not guarantee approval of new development until the City verifies the availability of needed infrastructure. 38.300.020.C, “Placement of any given zoning district on an area depicted on the zoning map indicates a judgment on the part of the city that the range of uses allowed within that district are generally acceptable in that location. It is not a guarantee of approval for any 126 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 13 of 29 given use prior to the completion of the appropriate review procedure and compliance with all of the applicable requirements and development standards of this chapter and other applicable policies, laws and ordinances. It is also not a guarantee of immediate infrastructure availability or a commitment on the part of the city to bear the cost of extending services.” As noted, the placement of a zoning district does not commit the City to infrastructure funding. However, the City uses its annual CIP to schedule and fund construction of public infrastructure. The CIP is updated each fall and addresses all types of local infrastructure. The City may choose to fund some or all of infrastructure construction when deemed adequately beneficial to the public. The City can also support construction of infrastructure through other tools such as special improvement districts or development reimbursement agreements (sometimes called paybacks or latecomer agreements). This site is not included within any such payback area. The future development of the site for housing will require provision of mitigation for impacts on parks, and for any use the extension of water and sewer services, and placement of easements for telecommunication, electricity and similar dry utilities. The needs for other public requirements will also be assessed during development review to ensure adequacy of public requirements. There is an existing large diameter sewer main which crosses the site. Design will need to provide for its protection and continued operation. E. Reasonable provision of adequate light and air. Criterion met. This criterion is not about individual preferences for a given degree of visual openness but about preservation of public health. The R4 district provides adequate light and air through the Bozeman Unified Development Code’s standards for park and recreation requirements, maximum building height, lot coverage, and setback requirements. The form and intensity standards, Division 38.320, provide minimum lot areas, lot widths, lot coverage and maximum floor area ratios, and prescribe require minimum separation from property lines and limits building heights. Section 38.520.030 requires building placement to ensure access to light and air. Division 38.420 and Section 38.520.060 require dedication of parks and on-site open spaces to meet needs of residents. The standards provide a reasonable provision of adequate light and air. In addition to the zoning standards, adopted building codes contain more detailed requirements for air circulation, window placement, and building separation that further ensure the intent of this criterion is satisfied. F. The effect on motorized and non-motorized transportation systems. Neutral. The site is located on Durston Road which is an arterial street. Juniper Street, a local street, is on the north side of the site. It is expected that as the property to the east develops, Juniper will be connected to N. 7th Avenue as a local street. Motor vehicle access 127 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 14 of 29 is provided to the site from these two facilities. In addition, the site connects to multiple sidewalks, trails, and bicycle facilities as shown in Section 1. The requested change in zoning from R3 to R4 will not immediately impact the motorized and non-motorized transportation systems. The specific future land uses and intensity of development for the site are not yet known. In any case, development of the property will be required to comply with transportation-related standards and reviewed for impacts on the surrounding streets, intersections, and sidewalks, and improvements to the transportation network to serve the site are likely through development review requirements, which will likely improve some aspects of the overall transportation system. The site has a Walk Score of 60, a Transit score of 21, and Bike Score of 67. Average walk score for the city as a whole is 48 out of 100. These values are provided by Walk Score, a private organization which presents information on real estate and transportation through walkscore.com. The algorithm which produces these numbers is proprietary. A score is not an indication of safety or continuity of services or routes. Scores are influenced by proximity of housing, transit, and services and expected ability, as determined by the algorithm, to meet basic needs without using a car. Sites located on the edge of the community have lower scores than those in the center of the community as the area is still under development and therefore diversity of uses is less than in fully established areas. There are no adopted development standards relating to the walk score. The City’s adopted development standards require inclusion of pedestrian facilities in all development. Anticipated increases in traffic cannot be reliably estimated at this time due to the variety of possible development options under either the R3 or the R4 district. R4 does allow a greater maximum intensity of development than R3. However, with direct access to the arterial street network the site is capable of supporting considerable development. Public comment to date has identified possible parking and traffic impacts on surrounding residents as a significant concern with future development. G. Promotion of compatible urban growth. Criterion met. The Bozeman Community Plan establishes a preferred and compatible development pattern. “The land use map sets generalized expectations for what goes where in the community… The land use categories and descriptions provide a guide for appropriate development and redevelopment locations for civic, residential, commercial, industrial, and other uses. The future land use designations are important because they aim to further the vision and goals of the City through promoting sustainability, citizen and visitor safety, and a high quality of life that will shape Bozeman’s future.” (Community Plan p. 51) The City’s future land use map designates the properties as Urban Neighborhood. The designation correlates with eleven zoning districts including the R4 district proposed by the applicants. These districts were developed by the City to promote appropriate urban growth compatible within the areas of the City as identified on the future land use map. The site has 128 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 15 of 29 been annexed since at least 1969 and is an infill site. The adopted development standards mitigate reasonably foreseeable impacts. Based on the land use map designations and correlated zoning districts in the plan and proposed by the applicants, the zone map amendment would promote compatible urban growth. The City has defined the term Compatible development as: “The use of land and the construction and use of structures which is in harmony with adjoining development, existing neighborhoods, and the goals and objectives of the city's adopted growth policy. Elements of compatible development include, but are not limited to, variety of architectural design; rhythm of architectural elements; scale; intensity; materials; building siting; lot and building size; hours of operation; and integration with existing community systems including water and sewer services, natural elements in the area, motorized and non-motorized transportation, and open spaces and parks. Compatible development does not require uniformity or monotony of architectural or site design, density or use.” The City’s practice is to consider residential uses compatible with one another when constructed to adopted standards. Also see the discussion in (H) below. H. Character of the district. Criterion met. Section 76-2-302, MCA says “…legislative body may divide the municipality into districts of the number, shape, and area as are considered best suited to carry out the purposes [promoting health, safety, morals, or the general welfare of the community] of this part.” Emphasis added. This proposal amends the zoning map and not the text. Therefore, no element of this amendment modifies the standards of any zoning district. The character of the districts as created by those standards remains intact. As noted above, the City Commission has latitude in considering the geographical extents of a zoning district. It is not expected that zoning freeze the character of an area in perpetuity. Rather, it provides a structured method to consider changes to the character. This is discussed on page 71 of the BCP 2020 under the section “What does it mean to be zoned?” There is existing R4 adjacent to the application site on the east. Also to the east is unannexed land presently used for agriculture. The R3, Medium Density Residential District is to the north and west. To the south is zoned as PLI with Bozeman High School. Looking at a slightly expanded area includes additional zoning districts of Residential Office and Residential Mixed Use High Density (R5). A wide range of uses physically exist within these districts ranging from individual detached homes, townhomes, apartment buildings, schools, offices, and others. See Appendix B for a comparison of the R3 and R4 authorized uses. R4 does allow for a larger building massing and scale than R3. R4 development for such larger buildings is also required to comply with Article 38.5, Project Design, which addresses site and building design, as well as other relevant issues, to mitigate impacts of development. 129 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 16 of 29 The property has been annexed since at least 1969, as shown on historical zoning maps. The existing zoning on the site is R3, Residential Medium Density. As shown in Appendix B, there is a great degree of similarity in the allowed uses between R3 and R4. A review of the uses allowed in the proposed zones shows many similarities with existing and authorized uses in the surrounding area. Any future development will be subject to the adopted standards for building and site design. Those standards are adopted to support the ability for similar or dissimilar uses to be close to each other without causing problems. Therefore, the change in zoning does not appear to conflict with the character of the area. The City Commission adopted section 38.320.060 Zone Edge Transitions. This section addresses where one zoning district is sufficiently more intense than another district to require a set of standards to reduce foreseeable impacts from different heights. The section does not apply to a situation where R3 and R4 are adjacent to each other. The height difference between the two districts is four feet. The City Commission has determined that this difference in height is not sufficient to require a formal transition standard. Public comment received prior to and at the Zoning Commission meeting expressed concerns on possible changes to the character of the area that would injure the surrounding residents. The existing and proposed districts are very similar. Both allow daycares and other residentially supportive uses, both allow a wide range of housing. R4 does allow a more intense building form with apartments. Building heights are similar with only 4 feet difference between the maximum allowed heights in the two districts. Setbacks, on-site open space provision, pedestrian circulation, parking, landscaping, and most other standards are similar if not identical. I. Peculiar suitability for particular uses. Neutral. Future uses for construction on the site are not finalized at this time, so the suitability of the site for particular uses is not easily evaluated at this time. However, the proposed R4 is consistent with the growth policy as described in Criterion A. The site has access to municipal utilities and transportation and is near services. This favors more intensive development however staff does not find this set of circumstances is peculiar to the site. J. Conserving the value of buildings. Criterion met. There is one building on the property, a nursing home, which the application indicates will be retained at the site. The change to R4 would not make the existing building out of compliance with zoning. The values of surrounding buildings are unlikely to be impacted to a measurable degree as the site is developed according to the proposed R4 district, because development of the site with various uses has been anticipated in the City’s planning documents. The surrounding area has a diversity of uses which are consistent with the uses in the proposed R4 district. Setbacks, height limits, open space requirements, and the other development standards that will apply to future development mitigate impacts. 130 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 17 of 29 K. Encourage the most appropriate use of land throughout the jurisdictional area. Criterion met. As stated above, the Bozeman Community Plan 2020 illustrates the most appropriate use of the land through the future land use map. This application complies with the BCP 2020 by proposing zone map amendments of districts that continue to implement the future land use map designations. In this case, urban-scale residential and other supportive uses has been identified by the community as the most appropriate types of development for the property. The Urban Neighborhood designation encourages higher density residential uses near schools and services. The site is adjacent to Bozeman High School and within less than half a mile of the Midtown area and the Bridger Peaks Town Center shopping area. The Unified Development Code contains standards, protections and review processes to ensure the land is developed in ways that are appropriate to a site’s context and according to the BCP 2020. The BCP 2020, p. 72, includes a discussion of what is needed to justify a change in the zoning map. This application is identified alternative d. The BCP 2020 says, “In considering zoning map amendments, the City’s longstanding practice is to consider item d as an adequate justification for consideration of a zoning map change. In doing so, the applicant/property owner must demonstrate the requested change meets the required criteria and guidelines for an amendment.” Staff finds the applicant has demonstrated compliance with the criteria. A public comment at the Zoning Commission questioned whether a daycare is a residential use of property and consistent with the R3 or R4 designation. The state has established through 76-2-412 (2) ”A family day-care home or a group day-care home registered by the department of public health and human services under Title 52, chapter 2, part 7, is considered a residential use of property for purposes of zoning.” Daycares for 13 or more persons is above the scope of the state mandate. The City has found all sizes of daycares as appropriate to be included within all residential districts. Spot Zoning Criteria Rezoning may, in certain factual circumstances, constitute impermissible “spot zoning.” The issue of whether a rezoning constitutes spot zoning was discussed by the Montana Supreme Court in Plains Grains LP v. Board of County Comm’rs of Cascade County and Little v. Bd. Of County Comm’rs, in which the Court determined that the presence of the following three conditions generally will indicate that a given situation constitutes spot zoning, regardless of variations in factual scenarios. Based on the review of the following criteria, Staff concludes that this application is not Spot Zoning. 131 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 18 of 29 1. Is the proposed use significantly different from the prevailing land uses in the area? No. This criterion includes the modifier ‘significantly.’ It is not prohibited to have uses that are different. To satisfy this criterion, the reviewer must demonstrate a ‘significant difference.’ As an example, in the Plains Grains LP case the change was from Agricultural to Heavy Industrial; and in the Little case the zoning was commercial which zoning was in conflict with the planned residential uses shown in the growth policy and existing in the surrounding area. As noted in Criterion A above, the proposed zoning is in accordance with the growth policy. The current R3 is predominantly a residential district as is R4. There are some differences in allowed uses as shown in Appendix B to this report. There are some difference in allowed building heights but that does not change allowed uses which is the subject of this criterion. There is not a defined distance to consider when evaluating this criterion. The proposed R4 district is adjacent to existing R4 developed property. There is another R4 zoned area two blocks to the north and a Residential Office (a district more intensive than R4) zoned area one block to the northwest. Based on the similarity of uses in the R3 and R4 districts, the proximity of other R4 zoned and developed areas, and the positive findings in the criteria above there is not available evidence to conclude the change in zoning will negatively deviate from surrounding land uses in a significant manner. 2. Is the area requested for the rezone rather small in terms of the number of separate landowners benefited from the proposed change? Yes. The application is submitted by one landowner for one tract of record. Gallatin County has submitted the application in its capacity as a landowner. Division 38.260 Part 2 describes the process to request a zone map amendment and its review. Section 38.260.100 explicitly authorizes an individual landowner to initiate a zone map amendment. The BCP 2020 also discusses the initiation of zone map amendments. On page 72, the needed justification for a zone map change is discussed. It states that landowner preference, when coupled with compliance with the criteria established in statute, is sufficient to justify an amendment. Staff finds that the applicable criteria have been met. 3. Would the change be in the nature of “special legislation” designed to benefit only one or a few landowners at the expense of the surrounding landowners or the general public? No. While only one landowner would directly ‘benefit’ from the zone change, there is no reason to believe this would come at the expense of surrounding landowners or the general public. To the contrary, the BCP 2020 is an expression of the public’s desires for different types and scales of urban development throughout the City. The proposed zoning aligns with the BCP 2020 and the overall zoning amendment criteria as shown in Criteria A-K above and therefore would be to the benefit of the general public. The standards applicable to any future 132 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 19 of 29 development address and mitigate impacts and establish a baseline that has been deemed appropriate for the community. PROTEST NOTICE FOR ZONING AMENDMENTS IN THE CASE OF WRITTEN PROTEST AGAINST SUCH CHANGES SIGNED BY THE OWNERS OF 25% OR MORE OF THE AREA OF THE LOTS WITHIN THE AMENDMENT AREA OR THOSE LOTS OR UNITS WITHIN 150 FEET FROM A LOT INCLUDED IN A PROPOSED CHANGE, THE AMENDMENT SHALL NOT BECOME EFFECTIVE EXCEPT BY THE FAVORABLE VOTE OF TWO-THIRDS OF THE PRESENT AND VOTING MEMBERS OF THE CITY COMMISSION. The City will accept written protests from property owners against the proposal described in this report until the close of the public hearing before the City Commission. Pursuant to 76-2-305, MCA, a protest may only be submitted by the owner(s) of real property within the area affected by the proposal or by owner(s) of real property that lie within 150 feet of an area affected by the proposal. The protest must be in writing and must be signed by all owners of the real property. In addition, a sufficient protest must: (i) contain a description of the action protested sufficient to identify the action against which the protest is lodged; and (ii) contain a statement of the protestor's qualifications (including listing all owners of the property and the physical address), to protest the action against which the protest is lodged, including ownership of property affected by the action. Signers are encouraged to print their names after their signatures. A person may in writing withdraw a previously filed protest at any time prior to final action by the City Commission. Protests must be delivered to the Bozeman City Clerk, 121 North Rouse Ave., PO Box 1230, Bozeman, MT 59771-1230. A successful protest requires 25% or more of owners of lots wholly or partially within the protest area. There are 48 parcels wholly or partially within the 150 foot protest area identified in the image below with the red line. Therefore, the owners of a minimum of 12 lots must protest for there to be a successful protest. Some of the lots are common open space lots owned by the home owners association for the Walton Subdivision. A protest from one of these commonly owned lots would require approval from all members of the home owners association. 133 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 20 of 29 APPENDIX A - NOTICING AND PUBLIC COMMENT Notice of the application and public hearings was published in the Bozeman Daily Chronicle on September 26, 2021 and October 10, 2021. Notice was sent via first class mail to nearby landowners on September 22, 2021 and posted on the property in two locations on September 21, 2021. Two written public comments have been received to date. They are available at https://weblink.bozeman.net/WebLink/Browse.aspx?id=255964&dbid=0&repo=BOZEMAN . Oral comments were received at the Zoning Commission public hearing from six persons. The entirety of the oral comments is available through the recording of the meeting. Public comment was offered during the comment period at the beginning of the meeting starting at 8 minutes into the video, comment during the specific action item begins at 1 hour and 58 minutes into the video available at: https://bozeman.granicus.com/player/clip/161?view_id=1&redirect=true. 134 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 21 of 29 APPENDIX B - PROJECT GROWTH POLICY AND PROPOSED ZONING Adopted Growth Policy Designations: The property’s growth policy designations on the Future Land Use Map of the Bozeman Community Plan 2020 (Growth Policy) include “Urban Neighborhood.” The description of Urban Neighborhood is: “This category primarily includes urban density homes in a variety of types, shapes, sizes, and intensities. Large areas of any single type of housing are discouraged. In limited instances, an area may develop at a lower gross density due to site constraints and/or natural features such as floodplains or steep slopes. Complementary uses such as parks, home- based occupations, fire stations, churches, schools, and some neighborhood-serving commerce provide activity centers for community gathering and services. The Urban Neighborhood designation indicates that development is expected to occur within municipal boundaries. This may require annexation prior to development. Applying a zoning district to specific parcels sets the required and allowed density. Higher density residential areas are encouraged to be, but are not required or restricted to, proximity to commercial mixed use areas to facilitate the provision of services and employment opportunities without requiring the use of a car.” The following figure from the BCP 2020 illustrates how the proposed R4 and other zoning districts correlate with the Future Land Use Map: 135 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 22 of 29 136 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 23 of 29 Proposed Zoning Designation and Land Uses: The applicant has requested a zone map amendment to R4 (Residential High Density). The following are the intent and purpose of this districts: Residential High Density (R4): “E. Residential high density district (R-4). The intent of the R-4 residential high density district is to provide for high-density residential development through a variety of housing types within the city with associated service functions. This purpose is accomplished by: 1. Providing for minimum lot sizes in developed areas consistent with the established development patterns while providing greater flexibility for clustering lots and mixing housing types in newly developed areas. 2. Providing for a variety of compatible housing types, including single and multi- household dwellings to serve the varying needs of the community's residents. 3. Allowing office use as a secondary use, measured by percentage of total building area. Use of this zone is appropriate for areas adjacent to mixed-use districts, commercial districts, and/or served by transit to accommodate a higher density of residents in close proximity to jobs and services.” Authorized uses for residential zoning districts are in 38.310.030, BMC. Similarities between R-3 and R-4 are highlighted in green and differences in yellow. Sec. 38.310.030. Authorized uses—Residential zoning districts. Table 38.310.030.A Permitted general and group residential uses in residential zoning districts Table clarifications: 1. Uses: P = Principal uses; C = Conditional uses; S = Special uses; A = Accessory uses; — = Uses which are not permitted. 2. If a * appears after the use, then the use is defined in article 7. 3. Where a code section is referenced after the use, then the use is subject to the additional standards specific to the subject use in that code section. 4. If a number appears in the box, then the use may be allowed subject to development condition(s) described in the footnotes immediately following the table. Uses Zoning Districts R-S R-1 R-2 R-3 R-4 R-5 R- O1 RMH 137 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 24 of 29 General residential Accessory dwelling units* - attached (38.360.040) P P P P P P P — Accessory dwelling units* - detached (38.360.040) P P P P P P P — Apartments/apartment building* — — — — P P P — Apartment building, limited4 — — — P P P P — Cottage housing (38.360.120)* P P P P P P P P Manufactured homes on permanent foundations(38.360.170)* P P P P P P P P Manufactured home communities* — — — — — — — P Single-household dwelling (38.360.220) P P P P P P P P Two-household dwelling (38.360.220) — — P P P P P — Three household dwelling or four- household dwelling (38.360.220) — — — P P P P — Townhouses* & rowhouses* (two attached units)(38.360.250) P2 P2 P P P P P P3 Townhouses* & rowhouses* (five attached units or less) (38.360.250) — — — P3 P P P — 138 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 25 of 29 Townhouses* & rowhouses* (more than five attached units) (38.360.250) — — — — P P P — Group residential Community residential facilities* with eight or fewer residents P P P P P P P P Community residential facilities* serving nine or more residents — — — S P P P — Cooperative household* S S S P P P P S Family day care home* P P P P P P P P Group day care home* P P P P P P P P Group living (38.360.135)* P P P P P P P P Lodging houses* — — — S P P P — Transitional and emergency housing (38.360.140)* and related services S S S S S S S S Notes: 1. The primary use of a lot, as measured by building area, permitted in the R-O district is determined by the underlying growth policy land use designation. Where the district lies over a residential growth policy designation the primary use shall be non-office uses; where the district lies over a non- residential designation the primary use shall be office and other non-residential uses. Primary use shall be measured by percentage of building floor area. 2. In the R-S, R-1, and RMH district townhomes are only allowed when utilized to satisfy the requirements of division 38.380, Affordable Housing. May only be utilized in developments subject to division 38.380 of this article. 3. In the R-3 district, townhouse groups must not exceed 120 feet in total width. 4. Supplemental use criteria for apartment building, limited are in 38.360.070. Table 38.310.030.B Permitted accessory and non-residential uses in residential zoning districts Table clarifications: 1. Uses: P = Principal uses; C = Conditional uses; S = Special uses; A = Accessory uses; 139 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 26 of 29 — = Uses which are not permitted. 2. If a * appears after the use, then the use is defined in article 7. 3. Where a code section is referenced after the use, then the use is subject to the additional standards specific to the subject use in that code section. 4. If a number appears in the box, then the use may be allowed subject to development condition(s) described in the footnotes immediately following the table. Uses Zoning Districts R-S R-1 R-2 R-3 R-4 R-5 R-O1 RMH Accessory uses Essential services Type I* A A A A A A A A Guest house* A A A A A A A — Home-based businesses (38.360.150)* A/S A/S A/S A/S A/S A/S A/S A/S Other buildings and structures typically accessory to authorized uses A A A A A A A A Private or jointly owned recreational facilities A A A A A A A A Signs*, subject to article 5 of this chapter A A A A A A A A Temporary buildings and yards incidental to construction work A A A A A A A A Temporary sales and office buildings A A A A A A A A 140 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 27 of 29 Non-residential uses Agricultural uses* on 2.5 acres or more (38.360.270) P — — — — — — — Agricultural uses* on less than 2.5 acres (38.360.270) C — — — — — — — Bed and breakfast* C C C C P P P — Commercial stable (38.360.230) C — — — — — — — Community centers* C C C C C C P C Day care centers* S S S P P P P S Essential services Type II* P P P P P P P P Essential services Type III*2 C C C C C C C C Short Term Rental (Type 1)* P P P P P P P — Short Term Rental (Type 2)* — — P P P P P — Short Term Rental (Type 3)* — — — — — — — — General service establishment* — — — — — — P5 — Golf courses C C — — — — — — Offices* — — — — S3 S3 P — 141 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 28 of 29 Public and private parks P P P P P P P P Medical offices, clinics, and centers* — — — — C C3 P — Recreational vehicle parks (38.360.210)* C — — — — — — P Restaurant* — — — — — P4 P5, 6 — Retail* — — — — — P4 P5, 6 — Uses approved as part of a PUD per division 38.380 of this article C C C C C C C C Veterinary uses S — — — — — — — Notes: 1. The primary use of a lot, as measured by building area, permitted in the R-O district is determined by the underlying growth policy land use designation. Where the district lies over a residential growth policy designation the primary use shall be non-office uses; where the district lies over a non- residential designation the primary use shall be office and other non-residential uses. Primary use shall be measured by percentage of building floor area. 2. Only allowed when service may not be provided from an alternative site or a less intensive installation or set of installations. 3. Only when in conjunction with dwellings. 4. Subject uses are limited to 2,500 square feet of gross floor area and only allowed on street corner sites within a mixed-use building featuring residential units next to and/or above subject uses. 5. Subject uses are limited to 1,500 square feet of gross floor area per individual tenant. 6. These uses may not include drive-through facilities. Form and intensity standards for residential zoning districts are in 38.320.030, BMC. APPENDIX C - OWNER INFORMATION AND REVIEWING STAFF Owner/applicant: Gallatin County, 311 W. Main Street, Rm 306, Bozeman MT 59715 Representative: Sean O’Callaghan, 311 W. Main Street, Rm 108, Bozeman MT 59715 142 21330 Staff Report for the Gallatin County Rest Home Zone Map Amendment Page 29 of 29 Report By: Chris Saunders, Community Development Manager FISCAL EFFECTS No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this Zone Map Amendment. ATTACHMENTS The full application and file of record can be viewed at the Community Development Department at 20 E. Olive Street, Bozeman, MT 59715. Application materials are available online at: https://weblink.bozeman.net/WebLink/Browse.aspx?startid=240522 143 Memorandum REPORT TO:City Commission FROM:Anna Saverud, Assistant City Attorney Greg Sullivan, City Attorney SUBJECT:Ordinance 2084, Provisional Adoption Generally Revising Laws and Regulations Related to Marijuana and the Montana Marijuana Regulation and Taxation Act MEETING DATE:October 19, 2021 AGENDA ITEM TYPE:Ordinance RECOMMENDATION:Move to approve provisional adoption of Ordinance 2084: Generally Revising Laws and Regulations Related to Marijuana and the Montana Marijuana Regulation and Taxation Act. STRATEGIC PLAN:3.1 Public Safety: Support high quality public safety programs, emergency preparedness, facilities, and leadership. BACKGROUND: In November 2020, Montanan’s voted to approve Constitutional Initiative 118 and Initiative 190, legalizing recreational marijuana for those 21 years of age and older and establishing a regulatory framework for legalization. During the 2021 Montana Legislative Session, House Bill 701 became the omnibus marijuana bill which amended and replaced much of I-190 and created the Montana Marijuana Regulation and Taxation Action codified in Title 16, Chapter 12, MCA. The sale of recreational marijuana and other marijuana businesses related to recreational use, including cultivating, manufacturing, transporting, testing, etc. are legal beginning January 1, 2022. Ordinance 2084 is proposed to bring the Bozeman Municipal Code into compliance with state law and allow the city to plan and prepare for what the future of the marijuana industry will look within in the city. The city has regulated medical marijuana storefronts, delivery operations and growing/processing businesses since 2010. Since that time the city has made small amendments to update its code as state law has changed relating to medical marijuana. The municipal code discusses marijuana in 144 four areas of the code, and Ordinance No. 2084 amends each of those sections and are summarized as follows: Section 1: Staff recommends a full repeal and replace of Chapter 16, Article 8 as currently written. Chapter 16, Article 8 for the last decade has identified the types and number of medical marijuana businesses that could operate in Bozeman, contained specific security requirements of businesses, and provided a criminal penalty for smoking marijuana in public. Additionally other outdated or obsolete provisions pertaining specifically to medical marijuana are contained in Chapter 16, Article 8. Staff recommends in its replacement for this article that Chapter 16, Article 8 will amongst other provisions, consist mainly of all marijuana business licensing provisions. Section 2: Currently the city requires medical marijuana businesses to obtain a city business license as provided for in Chapter 12 of the municipal code. This ordinance amends Chapter 12 to remove all references to medical marijuana licensing as all licensing provisions are now contained in the revisions in Section 1. Section 3: Sec. 34.07.040 BMC specifically addresses advertising on city owned property. This previously prohibited advertising medical marijuana and now is amended to encompass all marijuana. Section 4: This section contains zone text amendments to 38.360.180, BMC which currently regulates where medical marijuana businesses may operate within the city limits. This includes restricting medical marijuana businesses from being within 400 feet of the property boundary of a school or private school, prohibits medical marijuana within R-4, R-5 and on properties adjacent to Main Street, and discusses air discharge mitigation systems for growing operations with 24 plants or more amongst other provisions. Taking into account HB 701, the proposed amendments to this section include prohibiting a marijuana businesses from being within 500 feet from the property boundary of a school and in addition pursuant to state law, from a church, synagogue, or other place of worship or postsecondary school. Additional edits to 38.360.180 remove provisions no longer applicable given the legalization of marijuana and revise the ventilation requirements to reflect changes in marijuana laws and the more urban nature of development in Bozeman. 145 UNRESOLVED ISSUES:None anticipated. ALTERNATIVES:This is a legislative act and policy driven. Amendments can be made to most requirements that are not set by State law. FISCAL EFFECTS:Considerable staff time will be spent working on the transition from medical licensing to recreational in addition to the licensing going forward. Resolution 5348 is proposed to offset some of this cost. Attachments: 21360 Staff Report for the Marijuana Text Amendment CC.pdf HB0701 final.pdf ORDINANCE NO 2084 10.19.21.pdf Report compiled on: October 12, 2021 146 Page 1 of 9 21360 Staff Report for the Marijuana Text Amendment, Sec. 4 of Ordinance 2084 Public Hearings: Zoning Commission – October 11, 2021. City Commission – October 19, 2021. Project Description: Zone text amendment revising the restrictions on where a medical marijuana businesses may be located and including provisions for recreational marijuana businesses pursuant to the Montana Marijuana Regulation and Taxation Act. This zone text amendment is Section 4 of Ordinance 2084 set for provisional adoption by the City Commission on October 19, 2021. The full proposed text of Ordinance 2084 is attached for reference. Project Location: These zone text amendments apply to all marijuana businesses city wide where permitted by applicable zoning. Recommendation: Approval Recommended City Commission Motion: Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 21360, and move to provisionally adopt Ordinance 2084. Report: October 12, 2021 Staff Contact: Anna Saverud, Assistant City Attorney Agenda Item Type: Action – Legislative TABLE OF CONTENTS EXECUTIVE SUMMARY ...................................................................................................... 2 147 Staff Report Marijuana Text Amendment 21360 Page 2 of 9 Project Summary ................................................................................................................. 3 Unresolved Issues ............................................................................................................... 3 Strategic Plan ...................................................................................................................... 3 Zoning Commission ............................................................................................................ 4 Alternatives ......................................................................................................................... 4 SECTION 1 - RECOMMENDATION AND FUTURE ACTIONS ........................................ 4 SECTION 2 - TEXT AMENDMENT STAFF ANALYSIS AND FINDINGS ....................... 4 Section 76-2-304, MCA (Zoning) Criteria ......................................................................... 5 PROTEST NOTICE FOR ZONING AMENDMENTS ........................................................... 7 APPENDIX A - DETAILED PROJECT DESCRIPTION AND BACKGROUND ................ 7 APPENDIX B - NOTICING AND PUBLIC COMMENT ...................................................... 8 APPENDIX C - APPLICANT INFORMATION AND REVIEWING STAFF ...................... 8 FISCAL EFFECTS ................................................................................................................... 9 ATTACHMENTS ..................................................................................................................... 9 EXECUTIVE SUMMARY Project Summary In November 2020, Montanans voted to approve I-190 and CI 118 which legalized recreational marijuana use for those 21 years or older. I-190 contained, amongst other provisions, the framework and regulations for the cultivation and sale of recreational marijuana in Montana. During the 2021 Montana Legislative Session, House Bill 701 became the omnibus marijuana bill which amended and replaced much of I-190 and created the Montana Marijuana Regulation and Taxation Action codified in Title 16, Chapter 12, MCA. The Bozeman Municipal Code in 38.360.180 regulates medical marijuana businesses operating within the city. Given the change in state law, the City Manager requested staff initiate zone text amendments to 38.360.180 as part of a larger rewrite of regulations related to marijuana in Bozeman. The Zoning Commission has been provided a proposed draft of Ordinance 2084 in its entirety to assist the Zoning Commission in its interpretation of Section 4 of the Ordinance. Section 4 is the only part of Ordinance 2084 with zone text amendments and thus the only part before the Zoning Commission for review and consideration. 148 Staff Report Marijuana Text Amendment 21360 Page 3 of 9 The proposed zone text amendments would revise 38.360.180 to have the provisions apply to all marijuana businesses licensed by the state and by the city to operate within the city limits. The zone text amendments do the following: - Regulate all marijuana businesses the same regardless of if the business is engaged in medical marijuana or if the business is engaged in recreational marijuana – no distinction would be made between the two. - Increase the distance a marijuana business must be away from a school to meet and slightly exceed state requirements. - Add distances a marijuana business must be away from postsecondary schools and churches, synagogues, and other places of worship to meet and slightly exceed state requirements. - Allow for existing medical marijuana businesses that may not comply with the increased distance requirements to be grandfathered in. - Require forced air vent discharge that provides a mechanical filtration system to control discharges of particulates and odors for all marijuana cultivation, growing, manufacturing or process operations. The above changes are the substantive edits to Section 38 and the only zone text amendments contained in Ordinance 2084. If the City Commission adopts Ordinance 2084 it will take effect 30 days after final adoption. Unresolved Issues None identified at this time. Strategic Plan 2.1 Business Growth Support retention and growth of both the traded and local business sectors while welcoming and encouraging new and existing businesses, in coordination with the Economic Development Plan. 3.1 Public Safety Support high quality public safety programs, emergency preparedness, facilities, and leadership. 4.2 High Quality Urban Approach Continue to support high-quality planning, ranging from building design to neighborhood layouts, while pursuing urban approaches to issues such as multimodal transportation, infill, density, connected trails and parks, and walkable neighborhoods. 4.4 Vibrant Downtown, Districts & Centers 149 Staff Report Marijuana Text Amendment 21360 Page 4 of 9 Promote a healthy, vibrant Downtown, Midtown, and other commercial districts and neighborhood centers – including higher densities and intensification of use in these key areas Zoning Commission The Zoning Commission held a public hearing on October 11, 2021 at 6:00 p.m. on WebEx. The meeting is linked here for reference. After consideration of the application materials, staff report, presentation, public comment and discussion, the Zoning Commission voted to recommend approval with two amendments unanimously. One amendment was brought by Staff regarding postsecondary campuses and revised the phrase “where students regularly attend class” to “where students are regularly present,” which is the same language found in the code for other schools. The language also more accurately reflects the intent behind the buffer around MSU campus. This amendment was supported unanimously. A second amendment was considered and supported following public comment. There was a concern that as originally written the proposed amendments articulating the separation requirement from schools and places of worship could prohibit a marijuana business on an entire parcel, not just the portion of the parcel that fell within the 500 feet buffer. The Zoning Commission unanimously approved and asked Staff to clarify the prohibition of marijuana businesses applies specifically to the area within the 500 feet buffer and not necessarily the parcel. Staff agrees with this recommendation and has incorporated the amendment into 38.360.180(A)(1)(e) as provided to the City Commission. The Zoning Commission heard from approximately 6 citizens who called into comment at the meeting. One written public comment was been received at the time of writing. Generally the comments have favored less restrictions and not extending the separation requirement from schools and places of worship. Alternatives 1. Recommend denial of Ordinance 2084 Section 4 based on findings of non-compliance with the applicable criteria contained within the staff report; or 2. Recommend amendments to Ordinance 2084 Section 4 including but not limited to modifications to separation requirements from schools and places of worship; or 3. Open and continue the public hearing on the application, with specific direction to staff to supply additional information or to address specific concerns related to Ordinance 2084 Section 4. SECTION 2 - RECOMMENDATION AND FUTURE ACTIONS Having considered the criteria established for a text amendment, the Staff recommends approval as proposed. 150 Staff Report Marijuana Text Amendment 21360 Page 5 of 9 The Zoning Commission will hold a public hearing on October 11, 2021 at 6:00 p.m. The City Commission will hold a public hearing on the text amendment on October 19, 2021 at 6:00 p.m. SECTION 3 - TEXT AMENDMENT STAFF ANALYSIS AND FINDINGS In considering applications for approval under this title, the advisory boards and City Commission must consider the following criteria. As an amendment is a legislative action, the Commission has broad latitude to determine a policy direction. In considering the following criteria, the analysis must show that the amendment accomplishes zoning criteria A-D. Zoning criteria E-K must be considered and may be found to be affirmative, neutral, or negative. The Zoning Commission’s favorable decision on the proposed application must find that the application meets all of criteria A-D and that the positive outcomes of the amendment outweigh negative outcomes for criteria E-K. Section 76-2-304, MCA (Zoning) Criteria A. Be in accordance with a growth policy. Yes. The proposed zone text amendments are the result of a societal shift in how the public views marijuana and subsequent changes in state law. Marijuana is not specifically discussed in the Bozeman Community Plan 2020, however the proposed amendments are not in conflict with the plan and take into account compatible land uses, economic development, and community development patterns. The policy of how the city allows recreational marijuana is premised off of the decade of experience the city has regulating medical marijuana and state law. The proposed amendments does not change the zoning map and therefore, it is unnecessary to analyze compliance with the future land use map. While not specifically addressing marijuana the proposed amendments do meet the spirit of various themes of the Bozeman Community Plan including the following: Theme 6 addresses economic development – specifically as a city we desire to be a city powered by its creative, innovative and entrepreneurial economy. By strategically and specifically prohibiting where a marijuana business may not be located, the city is also clearly showing where these businesses are welcome in our city encouraging business growth and job opportunities. Theme 7 addresses regional coordination. The city’s adoption of clear zoning regulation for marijuana businesses ensures coordination with the state and the Department of Revenue who will review all requests for state marijuana licenses against the city’s code for compliance. Additionally, the recreational marijuana industry will occur in Gallatin County and by not excluding it from the city limits we avoid stark contrasts of regulations for city/county residents. 151 Staff Report Marijuana Text Amendment 21360 Page 6 of 9 B. Secure safety from fire and other dangers. Yes. All applicable development standards and building codes will apply to marijuana businesses on a given property. Building and fire standards and codes are designed to mitigate impacts, provide a safe environment, and protect from fire and other dangers. The City has extensive experience with these standards and monitors and amends standards as needed. The standards meet this criterion. C. Promote public health, public safety, and general welfare. Yes. The essential standards for provision of public services such as water and sewer are not modified by these amendments. State law requires a marijuana business not be within 500 feet of and not on the same street as a school, postsecondary school, church, synagogue, or other place of worship. State law provides this 500 feet measurement be from the entrances of the establishments. State law specifically provides authority to a local government to increase the distance between marijuana businesses and these locations. The proposed amendments are slightly more restrictive than the state standards and prohibit marijuana businesses within 500 feet of the property line of a school, postsecondary school, church, synagogue, or other place of worship. This is a much simpler standard to apply for both applicants and city staff. For any marijuana business to operate, all state requirements for licensure must be met and in addition, annual marijuana business licenses are proposed to be required in Ordinance 2084. The amendments modify the ventilation requirements previously established for marijuana businesses only to the extent that as proposed, ventilation systems would be required for all marijuana businesses engaged in marijuana cultivation, growing, manufacturing, or processing and the requirement is no longer triggered by a certain number of plants. This criterion is met. D. Facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements. Yes. Standards for provisions of public facilities are not being altered. Any proposed business falling under this use classification will be required to meet all other applicable standards for transportation, water and sewer utilities. The criterion is met. E. Reasonable provision of adequate light and air. Yes. Standards for setbacks, building design, etc. are not being altered. Certain types of marijuana businesses will be required to install proper ventilation systems and all will be subject to building codes that further support delivery of adequate light and air. The criterion is met. 152 Staff Report Marijuana Text Amendment 21360 Page 7 of 9 F. The effect on motorized and non-motorized transportation systems. Neutral. The proposed text amendments do not directly impact motorized and non-motorized transportation systems. By prohibiting marijuana businesses on properties adjacent to Main Street within the core area of the B3 zoning district, motorized traffic and parking demands in the downtown should not be negatively impacted. G. Promotion of compatible urban growth. Yes. The amendments promote the continued growth of the City and do not disrupt existing standards for development that support managed, thoughtful urban growth. The amendments do not expand the City’s boundaries or alter the essential character of any existing zoning district. H. Character of the district. Yes. All zoning districts provide for a variety of principal and conditional uses. Those uses vary by district. The uses range in intensity and likely size. No single use defines the entirety of any zoning district. The location of where a particular type of marijuana businesses is permitted is based on the underlying nature of business and will be approved only in applicable zones. In maintaining the character of existing districts, the specific zones where it is recommended marijuana businesses be restricted are a continuation of those which citizens are familiar having been in place for a decade. Therefore, this criterion is met. I. Peculiar suitability for particular uses. Neutral. No changes to the zoning boundaries are proposed with these amendments. The location of zoning districts has previously been found to be appropriate. The authorized use tables have been reviewed for consistency with the intent and purpose of individual districts and found to be appropriate. J. Conserving the value of buildings. Neutral. Building design and community designed standards along with other provisions in the municipal code require buildings to be maintained in a safe and secure condition to avoid decay and public hazards and are designed to conserve the value of buildings. K. Encourage the most appropriate use of land throughout the jurisdictional area. Yes. No changes to the zoning boundaries are proposed with these amendments. The uses authorized in the use tables for each district are consistent with the district purpose. 153 Staff Report Marijuana Text Amendment 21360 Page 8 of 9 PROTEST NOTICE FOR ZONING AMENDMENTS IN THE CASE OF WRITTEN PROTEST AGAINST SUCH CHANGES SIGNED BY THE OWNERS OF 25% OR MORE OF THE AREA OF THE LOTS WITHIN THE AMENDMENT AREA OR THOSE LOTS OR UNITS WITHIN 150 FEET FROM A LOT INCLUDED IN A PROPOSED CHANGE, THE AMENDMENT SHALL NOT BECOME EFFECTIVE EXCEPT BY THE FAVORABLE VOTE OF TWO-THIRDS OF THE PRESENT AND VOTING MEMBERS OF THE CITY COMMISSION. For this text amendment application the applicable calculation of protesting owners would include all owners of all properties in all districts of the City for issues affecting the entire city such as review processes and generally applicable standards. For issues affecting a defined subsection of the city such as an individual zoning district the calculation of protesting owners would include all owners within the affected area. As of the writing of this report, no written protest against the changes have been received. APPENDIX A - DETAILED PROJECT DESCRIPTION AND BACKGROUND As described in the executive summary following the passage of Constitutional Initiative 118 and Initiative 190 in November 2020, and subsequently the passage of House Bill 701 during the 2021 Montana Legislative Session, the City Manager directed staff to prepare text amendments described in this report and attached as Section 4 of Ordinance No. 2084. Currently Section 38.360.180, BMC regulates where medical marijuana businesses may operate within the city limits. This includes restricting medical marijuana businesses from being within 400 feet of the property boundary of a school. Recreational marijuana use is now legal in the State of Montana, and beginning in January 2022 the sale of recreational marijuana and marijuana products along with the cultivation, manufacturing, testing, and transporting of recreational marijuana will be legal. Pursuant to House Bill 701 a marijuana business is prohibited from being within 500 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 or postsecondary school other than a commercially operated school, unless the locality requires a greater distance. State law specifies that the distance is 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 marijuana businesses premises. It is staff’s recommendation to require a slightly greater distance of separation by prohibiting a marijuana businesses from being within 500 feet from the property boundary of a church, synagogue, or other place of worship or of a school or postsecondary school. This proposal is recommended for both policy reasons and implementation practicalities. 154 Staff Report Marijuana Text Amendment 21360 Page 9 of 9 Additional edits to 38.360.180 remove provisions no longer applicable given the legalization of marijuana and revise the ventilation requirements to reflect changes in marijuana laws and the more urban nature of development in Bozeman. APPENDIX B - NOTICING AND PUBLIC COMMENT Notice for text amendments must meet the standards of 38.220.410 & 420. Notice was published in the Bozeman Daily Chronicle as required and contained all required elements. Notice was provided at least 15 days before the Zoning Commission public hearing, and not more than 45 days prior to the City Commission public hearing. The City exceeded the required notice provision. Hearing dates are on the first page of this report. No written public comment has been received as of the writing of this report. APPENDIX C - APPLICANT INFORMATION AND REVIEWING STAFF Applicant: City of Bozeman, PO Box 1230, Bozeman MT 59771 Representative: Jeff Mihelich, City Manager, City of Bozeman, PO Box 1230, Bozeman MT 59771 Report By: Anna Saverud, Assistant City Attorney FISCAL EFFECTS No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this Amendment. Fees for marijuana business licenses will be set by Resolution. ATTACHMENTS The full application and file of record can be viewed at the Community Development Department at 20 E. Olive Street, Bozeman, MT 59715. Ordinance 2084 155 67th Legislature HB 701 - 1 - Authorized Print Version – HB 701 ENROLLED BILL AN ACT GENERALLY REVISING LAWS RELATED TO THE REGULATION AND TAXATION OF MARIJUANA; TRANSFERRING AUTHORITY OVER THE LICENSING, CULTIVATION, AND SALE OF MEDICAL MARIJUANA TO REGISTERED CARDHOLDERS TO THE DEPARTMENT OF REVENUE ; CREATING SEPARATE LICENSE CATEGORIES FOR CULTIVATION, MANUFACTURING, DISPENSING, AND TRANSPORTING MARIJUANA; PROVIDING FOR EIGHT COMBINED-USE MARIJUANA LICENSES; CREATING A MARIJUANA WORKER PERMIT; PROVIDING FOR A LOCAL-OPTION MARIJUANA EXCISE TAX; REQUIRING LOCAL GOVERNMENT APPROVAL FOR A MARIJUANA BUSINESS TO OPERATE IN A LOCAL JURISDICTION; PROVIDING APPROPRIATIONS; PROVIDING RULEMAKING AUTHORITY; PROVIDING FOR EXPUNGEMENT OF CRIMINAL CONVICTIONS RELATED TO MARIJUANA; PROVIDING FOR CONTINGENT VOIDNESS; AMENDING SECTIONS 3-5-113, 3-5-115, 5-5-223, 5-5-227, 7-22-2101, 15- 64-101, 15-64-102, 15-64-103, 15-64-104, 15-64-105, 15-64-106, 15-64-111, 15-64-112, 16-12-101, 16-12- 102, 16-12-104, 16-12-105, 16-12-106, 16-12-107, 16-12-108, 16-12-109, 16-12-110, 16-12-111, 16-12-112, 16-12-113, 16-12-201, 16-12-202, 16-12-203, 16-12-204, 16-12-206, 16-12-207, 16-12-208, 16-12-209, 16-12- 210, 16-12-211, 16-12-301, 16-12-302, 18-7-101, 37-1-136, 37-1-316, 37-3-203, 39-2-210, 39-2-313, 39-71- 407, 41-5-216, 45-9-101, 45-9-102, 45-9-103, 45-9-110, 45-9-127, 45-9-203, 45-10-103, 45-10-107, 46-18-202, 50-46-302, 50-46-303, 50-46-307, 50-46-319, 50-46-345, 50-46-346, 50-46-347, 53-6-1201, 53-21-1207, 61-8- 402, 61-8-404, 61-8-405, 61-8-409, 61-8-442, 61-11-101, AND 80-1-104, MCA; AMENDING SECTION 56, INITIATIVE MEASURE NO. 190, APPROVED NOVEMBER 3, 2020; REPEALING SECTIONS 16-12-205, 16- 12-401, 16-12-402, 16-12-403, 16-12-404, 16-12-405, 16-12-406, 16-12-407, 16-12-408, 50-46-301, 50-46- 302, 50-46-303, 50-46-304, 50-46-305, 50-46-307, 50-46-308, 50-46-309, 50-46-310, 50-46-311, 50-46-312, 50-46-317, 50-46-318, 50-46-319, 50-46-320, 50-46-326, 50-46-327, 50-46-328, 50-46-329, 50-46-330, 50-46- 331, 50-46-332, 50-46-339, 50-46-340, 50-46-341, 50-46-342, 50-46-343, 50-46-344, 50-46-345, 50-46-346, AND 50-46-347, MCA; REPEALING SECTIONS 37 AND 52, INITIATIVE MEASURE NO. 190, APPROVED NOVEMBER 3, 2020; AND PROVIDING EFFECTIVE DATES AND TERMINATION DATES. 156 67th Legislature HB 701 - 2 - Authorized Print Version – HB 701 ENROLLED BILL BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA: Section 1. Hotline. (1) The department shall create and maintain a hotline to receive reports of suspected abuse of the provisions of this chapter. (2) An individual making a complaint must be a resident and shall provide the individual's name, street address, and phone number. (3) (a) The department shall provide a copy of the complaint to the person or licensee that is the subject of the complaint. (b) The department may not redact the individual's name or city of residence from the complaint copy. (4) The department may: (a) investigate reports of suspected abuse of the provisions of this chapter; or (b) refer reports of suspected abuse to the law enforcement agency having jurisdiction in the area where the suspected abuse is occurring. Section 2. Department to conduct background checks. (1) In addition to any other requirement imposed under this chapter, before issuing any license under this chapter the department shall conduct: (a) a fingerprint-based background check meeting the requirements for a fingerprint-based background check by the department of justice and the federal bureau of investigation in association with an application for initial licensure and every 5 years thereafter; and (b) a name-based background check in association with an application for initial licensure and each year thereafter except years that an applicant is required to submit fingerprints for a fingerprint-based background check. (2) For the purpose of the background records check required under subsection (1), the department shall obtain fingerprints from each individual listed on an application submitted under this chapter and each individual who has a controlling beneficial ownership or financial interest in the license or prospective license, including: (a) each partner of an applicant that is a limited partnership; 157 67th Legislature HB 701 - 3 - Authorized Print Version – HB 701 ENROLLED BILL (b) each member of an applicant that is a limited liability company; (c) each director and officer of an applicant that is a corporation; (d) each individual who holds a 5% financial interest in the license applicant or is a controlling beneficial owner of the person applying for the license; and (e) each individual who is a partner, member, director, or officer of a legal entity that holds a 5% financial interest in the license applicant or is a controlling beneficial owner of the person applying for the license. (3) (a) Except as provided in subsection (3)(b), an employee of a marijuana business shall undergo a criminal background check prior to beginning employment. (b) An employee of a former medical marijuana licensee in good standing with the department as of [the effective date of this section] shall undergo a criminal background check within 90 days of [the effective date of this section]. (4) The department may establish procedures for obtaining fingerprints for the fingerprint-based and name-based background checks required under this section. Section 3. Licensing of marijuana transporters. (1) (a) A marijuana transporter license may be issued to a person to provide logistics, distribution, delivery, and storage of marijuana and marijuana products. A marijuana transporter license is valid for 2 years. A licensed marijuana transporter is responsible for the marijuana and marijuana products once it takes control of the marijuana or marijuana product. (b) A marijuana transporter may contract with multiple licensed marijuana businesses. (c) On or after March 1, 2022, and except as otherwise provided in this section, all persons who transport marijuana or marijuana products shall hold a valid marijuana transporter license. The department shall begin accepting applications on or after January 1, 2022. The department may allow for a reasonable grace period for complying with this requirement. (d) The department shall establish by rule the requirements for licensure, and the applicable fee for a marijuana transporter license or the renewal of a transporter license. The department may not license a person to be a marijuana transporter if the applicant meets any of the criteria established for denial of a license under 16-12-203(2). 158 67th Legislature HB 701 - 4 - Authorized Print Version – HB 701 ENROLLED BILL (2) A person who is not licensed under this chapter must apply for and obtain a marijuana transporter license in order to transport marijuana or marijuana products. (3) A registered cardholder or consumer is not required to possess a marijuana transporter license when purchasing marijuana or marijuana products at a dispensary. (4) A person who obtains a cultivator license, manufacturer license, adult-use dispensary license, medical marijuana dispensary license, or testing laboratory license or is an employee of one of those licensees, may: (a) transport marijuana or marijuana products between other licensed premises without a transporter license so long as such transportation: (i) complies with rules implementing the seed-to-sale tracking system set forth in 16-12-105; and (ii) includes a printed manifest containing information as required by the department; and (b) deliver marijuana from a dispensary to a registered cardholder provided that the person delivering the marijuana or marijuana products: (i) complies with rules adopted by the department; and (ii) includes a printed delivery manifest from a dispensary to a registered cardholder containing the registered cardholder's address and cardholder number and the dispensary’s address and license number. (5) (a) A marijuana transporter licensee may maintain a licensed premises to temporarily store marijuana and marijuana products and to use as a centralized distribution point in a jurisdiction where the local government approval provisions contained in 16-12-301 have been satisfied or in a county in which the majority of voters voted to approve Initiative Measure No. 190 in the November 3, 2020, general election. (b) The licensed premises must be located in a jurisdiction that permits the operation of a marijuana business and comply with rules adopted by the department. (c) A marijuana transporter may store and distribute marijuana and marijuana products from this location. A storage facility must meet the same security requirements that are required to obtain a license under this chapter. (6) A marijuana transporter shall use the seed-to-sale tracking system developed pursuant to 16-12- 105 to create shipping manifests documenting the transport of retail marijuana and retail marijuana products throughout the state. 159 67th Legislature HB 701 - 5 - Authorized Print Version – HB 701 ENROLLED BILL (7) A marijuana transporter may deliver marijuana or marijuana products to licensed premises or registered cardholders only and may not make deliveries of marijuana or marijuana products to individual consumers. (8) A person delivering marijuana or marijuana products for a marijuana transporter must possess a valid marijuana worker permit provided for under [section 7] and be a current employee of the marijuana transporter licensee. Section 4. Licensing of cultivators. (1) (a) The department shall license cultivators according to a tiered canopy system. Except as provided in subsection (6), all cultivation that is licensed under this chapter may only occur at an indoor cultivation facility. (b) Except as provided in subsection (6), the system shall include, at a minimum, the following license types: (i) A micro tier canopy license allows for a canopy of up to 250 square feet at one indoor cultivation facility. (ii) A tier 1 canopy license allows for a canopy of up to 1,000 square feet at one indoor cultivation facility. (iii) A tier 2 canopy license allows for a canopy of up to 2,500 square feet at up to two indoor cultivation facilities. (iv) A tier 3 canopy license allows for a canopy of up to 5,000 square feet at up to three indoor cultivation facilities. (v) A tier 4 canopy license allows for a canopy of up to 7,500 square feet at up to four indoor cultivation facilities. (vi) A tier 5 canopy license allows for a canopy of up to 10,000 square feet at up to five indoor cultivation facilities. (vii) A tier 6 canopy license allows for a canopy of up to 13,000 square feet at up to five indoor cultivation facilities. (viii) A tier 7 canopy license allows for a canopy of up to 15,000 square feet at up to five indoor cultivation facilities. 160 67th Legislature HB 701 - 6 - Authorized Print Version – HB 701 ENROLLED BILL (ix) A tier 8 canopy license allows for a canopy of up to 17,500 square feet at up to five indoor cultivation facilities. (x) A tier 9 canopy license allows for a canopy of up to 20,000 square feet at up to six indoor cultivation facilities. (xi) A tier 10 canopy license allows for a canopy of up to 30,000 square feet at up to seven indoor cultivation facilities. (xii) A tier 11 canopy license allows for a canopy of up to 40,000 square feet at up to eight indoor cultivation facilities. (xiv) A tier 12 canopy license allows for a canopy of up to 50,000 square feet at up to nine indoor cultivation facilities. (c) A cultivator shall demonstrate that the local government approval provisions in 16-12-301 have been satisfied for the jurisdiction where each proposed indoor cultivation facility or facilities is or will be located if a proposed facility would be located in a county in which the majority of voters voted against approval of Initiative Measure No. 190 in the November 3, 2020, general election. (d) When evaluating an initial or renewal license application, the department shall evaluate each proposed indoor cultivation facility for compliance with the provisions of 16-12-207 and 16-12-210. (e) (i) Except as provided in subsection (1)(e)(iii), a cultivator who has reached capacity under the existing license may apply to advance to the next licensing tier in conjunction with a regular renewal application by demonstrating that: (A) the cultivator is using the full amount of canopy currently authorized; (B) the tracking system shows the cultivator is selling at least 80% of the marijuana produced by the square footage of the cultivator's existing license over the 2 previous quarters or the cultivator can otherwise demonstrate to the department that there is a market for the marijuana it seeks to produce; and (C) its proposed additional or expanded indoor cultivation facility or facilities are located in a jurisdiction where the local government approval provisions contained in 16-12-301 have been satisfied or that they are located in a county in which the majority of voters voted to approve Initiative Measure No. 190 in the November 3, 2020, general election. (ii) Except as provided in subsection (1)(e)(iii), the department may increase a licensure level by only 161 67th Legislature HB 701 - 7 - Authorized Print Version – HB 701 ENROLLED BILL one tier at a time. (iii) Between January 1, 2022, and June 30, 2023, a cultivator may increase its licensure level by more than one tier at a time, up to a tier 5 canopy license, without meeting the requirements of subsection (1)(e)(i)(A) and (1)(e)(i)(B). (iv) The department shall conduct an inspection of the cultivator's registered premises and proposed premises within 30 days of receiving the application and before approving the application. (f) A marijuana business that has not been issued a license before July 1, 2023, must be initially licensed at a tier 2 canopy license or lower. (2) The department is authorized to create additional tiers as necessary. (3) The department may adopt rules: (a) for inspection of proposed indoor cultivation facilities under subsection (1); and (b) for investigating owners or applicants for a determination of financial interest; and (c) in consultation with the department of agriculture and based on well-supported science, to require licensees to adopt practices consistent with the prevention, introduction, and spread of insects, diseases, and other plant pests into Montana. (4) Initial licensure and annual fees for these licensees are: (a) $1,000 for a cultivator with a micro tier canopy license; (b) $2,500 for a cultivator with a tier 1 canopy license; (c) $5,000 for a cultivator with a tier 2 canopy license; (d) $7,500 for a cultivator with a tier 3 canopy license; (e) $10,000 for a cultivator with a tier 4 canopy license; (f) $13,000 for a cultivator with a tier 5 canopy license; (g) $15,000 for a cultivator with a tier 6 canopy license; (h) $17,500 for a cultivator with a tier 7 canopy license; (i) $20,000 for a cultivator with a tier 8 canopy license; (j) $23,000 for a cultivator with a tier 9 canopy license; (k) $27,000 for a cultivator with a tier 10 canopy license; (l) $32,000 for a cultivator with a tier 11 canopy license; and 162 67th Legislature HB 701 - 8 - Authorized Print Version – HB 701 ENROLLED BILL (m) $37,000 for a cultivator with a tier 12 canopy license. (5) The fee required under this part may be imposed based only on the tier of licensure and may not be applied separately to each indoor cultivation facility used for cultivation under the licensure level. (6) A former medical marijuana licensee who engaged in outdoor cultivation before November 3, 2020, may continue to engage in outdoor cultivation. Section 5. Licensing of dispensaries. (1) Except as provided in 16-12-201(2), an applicant for a dispensary license shall demonstrate that the local government approval provisions in 16-12-301 have been satisfied in the jurisdiction where each proposed dispensary is located if the proposed dispensary would be located in a county in which the majority of voters voted against approval of Initiative Measure No. 190 in the November 3, 2020, general election. (2) When evaluating an initial or renewal application, the department shall evaluate each proposed dispensary for compliance with the provisions of 16-12-207 and 16-12-210. (3) An adult-use dispensary licensee may operate at a shared location with a medical marijuana dispensary if the adult-use dispensary and medical marijuana dispensary are owned by the same person. (4) A medical marijuana dispensary is authorized to sell exclusively to registered cardholders marijuana, marijuana products, and live marijuana plants. (5) An adult-use dispensary is authorized to sell marijuana, marijuana products, and live marijuana plants to consumers or registered cardholders. (6) The department shall charge a dispensary license fee for an initial application and at each renewal. The dispensary license fee is $5,000 for each location that a licensee operates as an adult-use dispensary or a medical marijuana dispensary. (7) The department may adopt rules: (a) for inspection of proposed dispensaries; (b) for investigating owners or applicants for a determination of financial interest; and (c) establishing or limiting the THC content of the marijuana or marijuana products that may be sold at an adult-use dispensary or medical marijuana dispensary. (8) (a) Marijuana and marijuana products sold at a dispensary are regulated and sold on the basis of 163 67th Legislature HB 701 - 9 - Authorized Print Version – HB 701 ENROLLED BILL the concentration of THC in the products and not by weight. (b) Except as provided in subsection (8)(c), for purposes of this chapter, a single package is limited to: (i) for marijuana sold as flower, 1 ounce of usable marijuana. The total potential psychoactive THC of marijuana flower may not exceed 35%. (ii) for a marijuana product sold as a capsule, no more than 100 milligrams of THC per capsule and no more than 800 milligrams of THC per package. (iii) for a marijuana product sold as a tincture, no more than 800 milligrams of THC; (iv) for a marijuana product sold as an edible or a food product, no more than 100 milligrams of THC. A single serving of an edible marijuana product may not exceed 10 milligrams of THC. (v) for a marijuana product sold as a topical product, a concentration of no more than 6% THC and no more than 800 milligrams of THC per package; (vi) for a marijuana product sold as a suppository or transdermal patch, no more than 100 milligrams of THC per suppository or transdermal patch and no more than 800 milligrams of THC per package; and (vii) for any other marijuana product, no more than 800 milligrams of THC. (c) A dispensary may sell marijuana or marijuana products having higher THC potency levels than described in subsection (8) to registered cardholders. (9) A licensee or employee is prohibited from conducting a transaction that would result in a consumer or registered cardholder exceeding the personal possession amounts set forth in 16-12-106 and [section 16]. Section 6. Combined-use marijuana licensing -- requirements. (1) The department may issue a total of eight combined-use marijuana licenses to entities that are: (a) a federally recognized tribe located in the state; or (b) a business entity that is majority-owned by a federally recognized tribe located in the state. (2) A combined-use marijuana license consists of one tier 1 canopy license and one dispensary license allowing for the operation of a dispensary. Cultivation and dispensary facilities must be located at the same licensed premises. 164 67th Legislature HB 701 - 10 - Authorized Print Version – HB 701 ENROLLED BILL (3) A combined-use marijuana licensee shall operate its cultivation and dispensary facilities on land that is located: (a) within 150 air-miles of the exterior boundary of the associated tribal reservation or, for the Little Shell Chippewa tribe only, within 150 air-miles of the tribal service area; and (b) in a county that has satisfied the local government approval provisions in 16-12-301 if the majority of voters in the county voted against approval of Initiative Measure No. 190 in the November 3, 2020, general election. (4) An applicant under this section must satisfy all licensing requirements under this chapter and is subject to all fees and taxes associated with the cultivation and sale of marijuana or marijuana products provided for in this chapter. (5) A license granted under this section must be operated in compliance with all requirements imposed under this chapter. (6) After a tribe or a majority-owned business of that tribe is licensed under this section, that tribe or another majority-owned business of that tribe may not obtain another combined-use license until the prior license is relinquished, lapses, or is revoked by the department. Section 7. Marijuana worker permit -- requirements. (1) A marijuana worker permit is required for an employee who performs work for or on behalf of a marijuana business if the individual participates in any aspect of the marijuana business. (2) (a) Except as provided in subsection (2)(b), a marijuana business may not allow an employee to perform any work at the licensed premises until it has verified that that the employee has obtained a valid marijuana worker permit issued in accordance with this chapter. (b) An employee of a former medical marijuana licensee in good standing with the department as of [the effective date of this section] shall obtain a marijuana worker permit within 90 days of [the effective date of this section]. (3) An applicant for a marijuana worker permit shall submit: (a) an application on a form prescribed by the department with information including the applicant's: (i) name; 165 67th Legislature HB 701 - 11 - Authorized Print Version – HB 701 ENROLLED BILL (ii) mailing address; (iii) date of birth; (iv) signature; and (v) response to conviction history questions requested by the department; (b) a copy of a driver's license or identification card issued by one of the fifty states in the United States or a passport; (c) annual proof of having passed training that includes identification, prevention, and reporting for human trafficking, rules and regulations for legal sales of marijuana in Montana, and any other training required by the department; and (d) a fee established by the department. (4) (a) Except as provided in subsection (4)(b), an application that does not contain the elements set forth in subsection (3) is incomplete. (b) The department may review an application prior to receiving the fee but may not issue a permit until the fee is received. (5) The department shall deny an initial or renewal application if the applicant: (a) is not 18 years of age or older; (b) has had a marijuana license or worker permit revoked for a violation of this chapter or any rule adopted under this chapter within 2 years of the date of the application; (c) has violated any provision of this chapter; or (d) makes a false statement to the department. (6) An employee of a licensee shall carry the employee's worker permit at all times when performing work on behalf of a marijuana business. (7) A person who holds a marijuana worker permit must notify the department in writing within 10 days of: (a) a conviction for a felony; (b) the issuance of any citation for violating a marijuana law imposed under this chapter or the marijuana laws of any other state; or (c) the issuance of any citation for selling or dispensing alcohol or tobacco products to a minor. 166 67th Legislature HB 701 - 12 - Authorized Print Version – HB 701 ENROLLED BILL Section 8. Unlawful possession of marijuana, marijuana products, or marijuana paraphernalia in motor vehicle on highway. (1) Except as provided in subsection (2), a person commits the offense of unlawful possession of marijuana, marijuana products, or marijuana paraphernalia in a motor vehicle if the person knowingly possesses marijuana, marijuana products, or marijuana paraphernalia, as those terms are defined in 16-12-102, within the passenger area of a motor vehicle on a highway. (2) This section does not apply to marijuana, marijuana products, or marijuana paraphernalia: (a) purchased from a dispensary and that remains in its unopened, original packaging; (b) in a locked glove compartment or storage compartment; (c) in a motor vehicle trunk or luggage compartment or in a truck bed or cargo compartment; (d) behind the last upright seat of a motor vehicle that is not equipped with a trunk; or (e) in a closed container in the area of a motor vehicle that is not equipped with a trunk and that is not normally occupied by the driver or a passenger. (3) (a) A person convicted of the offense of unlawful possession of marijuana, marijuana products, or marijuana paraphernalia in a motor vehicle shall be fined an amount not to exceed $100. (b) A violation of this section is not a criminal offense within the meaning of 3-1-317, 3-1-318, 45-2- 101, 46-18-236, 61-8-104, or 61-8-711 and may not be recorded or charged against a driver's record, and an insurance company may not hold a violation of this section against the insured or increase premiums because of the violation. The surcharges provided for in 3-1-317, 3-1-318, and 46-18-236 may not be imposed for a violation of this section. Section 9. Purpose. The purpose of [sections 9 through 23] is to: (1) provide a regulatory system for providing marijuana for the use of individuals with debilitating medical conditions, including posttraumatic stress disorder, in order to alleviate the symptoms of the debilitating medical condition; (2) allow for the limited cultivation, manufacture, delivery, and possession of marijuana as permitted by this chapter; (3) allow persons to assist registered cardholders with the cultivation of marijuana and manufacture of 167 67th Legislature HB 701 - 13 - Authorized Print Version – HB 701 ENROLLED BILL marijuana products permitted by this chapter. (4) provide for a registry of individuals with debilitating medical conditions entitled to purchase marijuana and marijuana products at the tax rate specified in 15-64-102; and (5) provide the process for obtaining a registry identification card. Section 10. Definitions. As used in [sections 9 through 23], the following definitions apply: (1) "Referral physician" means an individual who: (a) is licensed under Title 37, chapter 3; and (b) is the physician to whom a patient's treating physician has referred the patient for physical examination and medical assessment. (2) "Standard of care" means, at a minimum, the following activities when undertaken in person or through the use of telemedicine by a patient's treating physician or referral physician if the treating physician or referral physician is providing written certification for a patient with a debilitating medical condition: (a) obtaining the patient's medical history; (b) performing a relevant and necessary physical examination; (c) reviewing prior treatment and treatment response for the debilitating medical condition; (d) obtaining and reviewing any relevant and necessary diagnostic test results related to the debilitating medical condition; (e) discussing with the patient and ensuring that the patient understands the advantages, disadvantages, alternatives, potential adverse effects, and expected response to the recommended treatment; (f) monitoring the response to treatment and possible adverse effects; and (g) creating and maintaining patient records that remain with the physician. (3) "Telemedicine" has the meaning provided in 37-3-102. (4) "Treating physician" means an individual who: (a) is licensed under Title 37, chapter 3; and (b) has a bona fide professional relationship with the individual applying to be a registered cardholder. (5) "Written certification" means a statement signed by a treating physician or referral physician that meets the requirements of [section 13] and is provided in a manner that meets the standard of care. 168 67th Legislature HB 701 - 14 - Authorized Print Version – HB 701 ENROLLED BILL Section 11. Medical marijuana registry -- department responsibilities -- issuance of cards -- confidentiality. (1) The department shall establish and maintain a registry of persons who receive registry identification cards under [sections 9 through 23]. (2) The department shall issue registry identification cards to Montana residents who have debilitating medical conditions and who submit applications meeting the requirements of [sections 9 through 23]. (3) (a) Registry identification cards issued pursuant to [sections 9 through 23] must: (i) be laminated and produced on a material capable of lasting for the duration of the time period for which the card is valid; (ii) state the name, address, and date of birth of the registered cardholder; (iii) indicate whether the cardholder is obtaining marijuana and marijuana products through the system of licensed cultivators, manufacturers, or dispensaries; (iv) state the date of issuance and the expiration date of the registry identification card; (v) contain a unique identification number; and (vi) contain other information that the department may specify by rule. (b) Except as provided in subsection (3)(c), in addition to complying with subsection (3)(a), registry identification cards issued pursuant to this part must: (i) include a picture of the registered cardholder; and (ii) be capable of being used to track registered cardholder purchases. (c) (i) The department shall issue a temporary registry identification card on receipt of an application. The cards are valid for 60 days and are exempt from the requirements of subsection (3)(b). Printing of the temporary registry identification cards is exempt from the provisions of Title 18, chapter 7. (ii) A card may be issued before an applicant's payment of the fee has cleared. The department shall cancel the temporary registry identification card after 60 days and may not issue a permanent registry identification card until the fee is paid. (4) (a) The department shall review the information contained in an application or renewal submitted pursuant to this part and shall approve or deny an application or renewal within 30 days of receiving the application or renewal and all related application materials. 169 67th Legislature HB 701 - 15 - Authorized Print Version – HB 701 ENROLLED BILL (b) If the department fails to act on a completed application within 30 days of receipt, the department shall refund the fee paid by an applicant for a registry identification card. (c) Applications that are not processed within 30 days of receipt remain active until the department takes final action. (d) The department shall issue a registry identification card within 5 days of approving an application or renewal. (5) Review of a rejection of an application or renewal may be conducted as a contested case hearing pursuant to the provisions of the Montana Administrative Procedure Act. (6) Registry identification cards expire 1 year after the date of issuance unless a physician has provided a written certification stating that a card is valid for a shorter period of time. (7) (a) A registered cardholder shall notify the department of any change in the cardholder's name, address, or physician, or a change in the status of the cardholder's debilitating medical condition within 10 days of the change. (b) If a change occurs and is not reported to the department, the registry identification card is void. (8) The department shall maintain a confidential list of individuals to whom the department has issued registry identification cards. Individual names and other identifying information on the list must be confidential and is not subject to disclosure, except to: (a) authorized employees of the department as necessary to perform the official duties of the department; (b) authorized employees of state or local government agencies, including law enforcement agencies, only as necessary to verify that an individual is a lawful possessor of a registry identification card; (c) a judge, magistrate, or other authorized judicial officer in response to an order requiring disclosure; and (d) another person or entity when the information pertains to a cardholder who has given written consent to the release and has specified: (i) the type of information to be released; and (ii) the person or entity to whom it may be released. 170 67th Legislature HB 701 - 16 - Authorized Print Version – HB 701 ENROLLED BILL Section 12. Individuals with debilitating medical conditions -- requirements -- minors -- limitations. (1) Except as provided in subsections (2) through (5), the department shall issue a registry identification card to an individual with a debilitating medical condition who submits the following, in accordance with department rules: (a) an application on a form prescribed by the department; (b) an application fee or a renewal fee; (c) the individual's name, street address, and date of birth; (d) proof of Montana residency; (e) a statement, on a form prescribed by the department, that the individual will not divert to any other individual the marijuana or marijuana products that the individual cultivates, manufactures, or obtains through the system of licensed providers for the individual's debilitating medical condition; (f) the name of the individual's treating physician or referral physician and the street address and telephone number of the physician's office; (g) the street address where the individual is cultivating marijuana or manufacturing marijuana products if the individual is cultivating marijuana or manufacturing marijuana products for the individual's own use; and (h) the written certification and accompanying statements from the individual's treating physician or referral physician as required pursuant to [section 13]. (2) The department shall issue a registry identification card to a minor if the materials required under subsection (1) are submitted and the minor's custodial parent or legal guardian with responsibility for health care decisions: (a) provides proof of legal guardianship and responsibility for health care decisions if the individual is submitting an application as the minor's legal guardian with responsibility for health care decisions; and (b) signs and submits a written statement that: (i) the minor's treating physician or referral physician has explained to the minor and to the minor's custodial parent or legal guardian with responsibility for health care decisions the potential risks and benefits of the use of marijuana; (ii) indicates whether the minor's custodial parent or legal guardian will be obtaining marijuana or 171 67th Legislature HB 701 - 17 - Authorized Print Version – HB 701 ENROLLED BILL marijuana products for the minor through the system of licensed dispensaries provided for in this chapter; and (iii) the minor's custodial parent or legal guardian with responsibility for health care decisions: (A) consents to the use of marijuana by the minor; (B) agrees to control the acquisition of marijuana and the dosage and frequency of the use of marijuana by the minor; and (C) agrees that the minor will use only marijuana products and will not smoke marijuana; (c) if the parent or guardian will be serving as the minor's cultivator, undergoes background checks in accordance with subsection (3). The parent or legal guardian shall pay the costs of the background check and may not obtain a license under this chapter if the parent or legal guardian does not meet the requirements set forth in this chapter. (d) pledges, on a form prescribed by the department, not to divert to any individual any marijuana purchased for the minor's use in a marijuana product. (3) A parent serving as a minor's cultivator shall submit fingerprints to facilitate a fingerprint and background check by the department of justice and federal bureau of investigation upon the minor's initial application for a registry identification card and every 5 years after that. The department shall conduct a name- based background check in years when a fingerprint background check is not required. (4) An application for a registry identification card for a minor must be accompanied by the written certification and accompanying statements required pursuant to [section 13] from a second physician in addition to the minor's treating physician or referral physician, unless the minor's treating physician or referral physician is an oncologist, neurologist, or epileptologist. (5) An individual may not be a registered cardholder if the individual is in the custody of or under the supervision of the department of corrections or a youth court. Section 13. Written certification -- accompanying statements. (1) The written certification provided by a physician must be made on a form prescribed by the department and signed and dated by the physician. The written certification must: (a) include the physician's name, license number, and office address and telephone number on file with the board of medical examiners and the physician's business e-mail address, if any; and 172 67th Legislature HB 701 - 18 - Authorized Print Version – HB 701 ENROLLED BILL (b) the name, date of birth, and debilitating medical condition of the patient for whom the physician is providing written certification. (2) A treating physician or referral physician who is providing written certification for a patient shall provide a statement initialed by the physician that must: (a) confirm that the physician is: (i) the patient's treating physician and that the patient has been under the physician's ongoing medical care as part of a bona fide professional relationship with the patient; or (ii) the patient's referral physician; (b) confirm that the patient suffers from a debilitating medical condition; (c) describe the debilitating medical condition, why the condition is debilitating, and the extent to which it is debilitating; (d) confirm that the physician has assumed primary responsibility for providing management and routine care of the patient's debilitating medical condition after obtaining a comprehensive medical history and conducting a physical examination, whether in person or, in accordance with subsection (4), through the use of telemedicine, that included a personal review of any medical records maintained by other physicians and that may have included the patient's reaction and response to conventional medical therapies; (e) describe the medications, procedures, and other medical options used to treat the condition; (f) confirm that the physician has reviewed all prescription and nonprescription medications and supplements used by the patient and has considered the potential drug interaction with marijuana; (g) state that the physician has a reasonable degree of certainty that the patient's debilitating medical condition would be alleviated by the use of marijuana and that, as a result, the patient would be likely to benefit from the use of marijuana; (h) confirm that the physician has explained the potential risks and benefits of the use of marijuana to the patient; (i) list restrictions on the patient's activities due to the use of marijuana; (j) specify the time period for which the use of marijuana would be appropriate, up to a maximum of 1 year; (k) state that the physician will: 173 67th Legislature HB 701 - 19 - Authorized Print Version – HB 701 ENROLLED BILL (i) continue to serve as the patient's treating physician or referral physician; and (ii) monitor the patient's response to the use of marijuana and evaluate the efficacy of the treatment; and (l) contain an attestation that the information provided in the written certification and accompanying statements is true and correct. (3) A physician who is the second physician recommending marijuana for use by a minor shall submit: (a) a statement initialed by the physician that the physician conducted a comprehensive review of the minor's medical records as maintained by the treating physician or referral physician; (b) a statement that in the physician's professional opinion, the potential benefits of the use of marijuana would likely outweigh the health risks for the minor; and (c) an attestation that the information provided in the written certification and accompanying statements is true and correct. (4) A physician who is providing written certification through the use of telemedicine: (a) shall comply with the administrative rules adopted for telemedicine by the board of medical examiners provided for in 2-15-1731; and (b) may not use an audio-only visit unless the physician has first established a physician-patient relationship through an in-person encounter. (5) If the written certification states that marijuana should be used for less than 1 year, the department shall issue a registry identification card that is valid for the period specified in the written certification. Section 14. Registry identification card to be exhibited on demand -- photo identification required. (1) A registered cardholder shall keep the individual's registry identification card in the individual's immediate possession at all times. The registry identification card and a valid photo identification must be displayed upon demand of a law enforcement officer, justice of the peace, or city or municipal judge. (2) The department shall ensure that law enforcement officers have access to accurate and up-to- date information on persons registered under [sections 9 through 23]. (3) Beginning on January 1, 2022, a registered cardholder may request, at their next annual renewal, that the department include on his or her registry identification card the name of up to two individuals who are 174 67th Legislature HB 701 - 20 - Authorized Print Version – HB 701 ENROLLED BILL authorized to acquire and deliver marijuana or marijuana products to the cardholder from a licensed dispensary. Any individual so identified must be at least 21 years of age, possess the registry identification card at all relevant times, and otherwise comply with the daily possession limits set forth in this chapter and rules adopted by the department. Section 15. Health care facility procedures for patients with marijuana for use. (1) (a) A health care facility as defined in 50-5-101 shall take the following measures when a patient who is a registered cardholder has marijuana in the patient's possession upon admission to the health care facility: (i) require the patient to remove the marijuana from the premises before the patient is admitted if the patient is able to do so; or (ii) make a reasonable effort to contact the patient's cultivator, manufacturer, or medical marijuana dispensary, court-appointed guardian, or individual with a power of attorney, if any. (b) If a patient is unable to remove the marijuana or the health care facility is unable to contact an individual as provided in subsection (1)(a), the facility shall contact the local law enforcement agency having jurisdiction in the area where the facility is located. (2) A cultivator, manufacturer, or medical marijuana dispensary, court-appointed guardian, or individual with a power of attorney, if any, contacted by a health care facility shall remove the marijuana and deliver it to the patient's residence. (3) A law enforcement agency contacted by a health care facility shall respond by removing and destroying the marijuana. (4) A health care facility may not be charged for costs related to removal of the marijuana from the facility's premises. Section 16. Legal protections -- allowable amounts. (1) (a) A registered cardholder who has elected to obtain marijuana and marijuana products through the system of licensed cultivators, manufacturers, or dispensaries may: (i) possess up to 1 ounce of usable marijuana; and (ii) purchase a maximum of 5 ounces of usable marijuana a month and no more than 1 ounce of 175 67th Legislature HB 701 - 21 - Authorized Print Version – HB 701 ENROLLED BILL usable marijuana a day. (b) (i) A registered cardholder may petition the department for an exception to the monthly limit on purchases. The request must be accompanied by a confirmation from the physician who signed the cardholder's written certification that the cardholder's debilitating medical condition warrants purchase of an amount exceeding the monthly limit. (ii) If the department approves an exception to the limit, the approval must establish the monthly amount of usable marijuana that the cardholder may purchase and the limit must be entered into the seed-to- sale tracking system. (2) Except as provided in 16-12-108 and subject to the provisions of subsection (7) of this section, an individual who possesses a registry identification card issued pursuant to [sections 9 through 23] may not be arrested, prosecuted, or penalized in any manner or be denied any right or privilege, including but not limited to civil penalty or disciplinary action by a professional licensing board or the department of labor and industry, solely because: (a) the person cultivates, manufactures, possesses, or transports marijuana in the amounts allowed under this section; or (b) the registered cardholder acquires or uses marijuana. (3) A physician may not be arrested, prosecuted, or penalized in any manner or be denied any right or privilege, including but not limited to civil penalty or disciplinary action by the board of medical examiners or the department of labor and industry, solely for providing written certification for a patient with a debilitating medical condition. (4) Nothing in this section prevents the imposition of a civil penalty or a disciplinary action by a professional licensing board or the department of labor and industry if: (a) a registered cardholder's use of marijuana impairs the cardholder's job-related performance; or (b) a physician violates the standard of care or other requirements of [sections 9 through 23]. (5) (a) An individual may not be arrested or prosecuted for constructive possession, conspiracy as provided in 45-4-102, or other provisions of law or any other offense solely for being in the presence or vicinity of the use of marijuana and marijuana products as permitted under [sections 9 through 23]. (b) This subsection (5) does not prevent the arrest or prosecution of an individual who is in the vicinity 176 67th Legislature HB 701 - 22 - Authorized Print Version – HB 701 ENROLLED BILL of a registered cardholder's use of marijuana if the individual is in possession of or is using marijuana in excess of the amounts otherwise provided in this chapter and is not a registered cardholder. (6) Possession of or application for a registry identification card does not alone constitute probable cause to search the person or individual or the property of the person or individual or otherwise subject the person or individual or property of the person or individual possessing or applying for the card to inspection by any governmental agency, including a law enforcement agency. (7) The provisions of this section relating to protection from arrest or prosecution do not apply to an individual unless the individual has obtained a registry identification card prior to an arrest or the filing of a criminal charge. It is not a defense to a criminal charge that an individual obtains a registry identification card after an arrest or the filing of a criminal charge. (8) (a) A registered cardholder is presumed to be engaged in the use of marijuana as allowed by [sections 9 through 23] if the person: (i) is in possession of a valid registry identification card; and (ii) is in possession of an amount of marijuana that does not exceed the amount permitted under [sections 9 through 23]. (b) The presumption may be rebutted by evidence that the possession of marijuana was not for the purpose of alleviating the symptoms or effects of a registered cardholder's debilitating medical condition and exceeded the allowable amount of marijuana otherwise provided for in [sections 9 through 23]. Section 17. Prohibitions on physician affiliation with licensees -- sanctions. (1) (a) A physician who provides written certifications may not: (i) accept or solicit anything of value, including monetary remuneration, from a person licensed under this chapter; (ii) offer a discount or any other thing of value to a patient who uses or agrees to use a person licensed under this chapter; or (iii) examine a patient for the purposes of diagnosing a debilitating medical condition at a licensed premises or a testing laboratory. (b) Subsection (1)(a) does not prevent a physician from accepting a fee for providing medical care to 177 67th Legislature HB 701 - 23 - Authorized Print Version – HB 701 ENROLLED BILL a person licensed under this chapter if the physician charges the individual the same fee that the physician charges other patients for providing a similar level of medical care. (2) A person licensed under this chapter may not: (a) arrange for a physician to conduct a physical examination or review of medical records required under [sections 9 through 23], either in the physician's office or at another location; or (b) pay all or a portion of the costs for an individual to be seen by a physician for the purposes of obtaining a written certification. (3) If the department has cause to believe that a physician has violated this section, has violated a provision of rules adopted pursuant to [sections 9 through 23], or has not met the standard of care required under [sections 9 through 23], the department may refer the matter to the board of medical examiners provided for in 2-15-1731 for review pursuant to 37-1-308. (4) A violation of this section constitutes unprofessional conduct under 37-1-316. If the board of medical examiners finds that a physician has violated this section, the board shall restrict the physician's authority to provide written certification for the use of marijuana. The board of medical examiners shall notify the department of the sanction. (5) If the board of medical examiners believes a physician's practices may harm the public health, safety, or welfare, the board may summarily restrict a physician's authority to provide written certification for the use of marijuana for a debilitating medical condition. (6) (a) If the department has reason to believe a person licensed under this chapter has violated this section, the department shall refer the matter to the law enforcement entity and county attorney having jurisdiction where the person licensed under this chapter is doing business. (b) If a person licensed under this chapter is found to have violated the provisions of this section, the department shall revoke the person's license. A person whose license has been revoked for a violation of this section is prohibited from reapplying for licensure under this chapter. (7) (a) A law enforcement entity or county attorney who investigates a suspected violation of this section shall report the results of the investigation to the department. (b) The department may receive the results of this investigation even if the information constitutes confidential criminal justice information as defined in 44-5-103. 178 67th Legislature HB 701 - 24 - Authorized Print Version – HB 701 ENROLLED BILL Section 18. Unlawful conduct by cardholders -- penalties. (1) The department shall revoke and may not reissue the registry identification card of an individual who: (a) is convicted of a drug offense; or (b) allows another individual to be in possession of the individual's: (i) registry identification card, except as provided for in [section 14]; or (ii) mature marijuana plants, seedlings, usable marijuana, or marijuana products. (2) If no other penalty is specified under [sections 9 through 23], a registered cardholder who violates [sections 9 through 23] is punishable by a fine not to exceed $500 or by imprisonment in a county jail for a term not to exceed 6 months, or both, unless otherwise provided in [sections 9 through 23] or unless the violation would constitute a violation of Title 45. An offense constituting a violation of Title 45 must be charged and prosecuted pursuant to the provisions of Title 45. (3) Review of a department action imposing a fine, suspension, or revocation under this section must be conducted as a contested case hearing under the provisions of the Montana Administrative Procedure Act. Section 19. Fraudulent representation -- penalties. (1) In addition to any other penalties provided by law, an individual who fraudulently represents to a law enforcement official that the individual is a registered cardholder is guilty of a misdemeanor punishable by imprisonment in a county jail for a term not to exceed 1 year or a fine not to exceed $1,000, or both. (2) A physician who purposely and knowingly misrepresents any information required under [section 13] is guilty of a misdemeanor punishable by imprisonment in a county jail for a term not to exceed 1 year or a fine not to exceed $1,000, or both. Section 20. Confidentiality of registry information -- penalty. (1) Except as provided in 37-3-203, a person, including an employee or official of the department, commits the offense of disclosure of confidential information related to registry information if the person knowingly or purposely discloses confidential information in violation of [sections 9 through 23]. (2) A person convicted of a violation of this section shall be fined not to exceed $1,000 or imprisoned 179 67th Legislature HB 701 - 25 - Authorized Print Version – HB 701 ENROLLED BILL in the county jail for a term not to exceed 6 months, or both. Section 21. Law enforcement authority. Nothing in this chapter may be construed to limit a law enforcement agency's ability to investigate unlawful activity in relation to an individual with a registry identification card. Section 22. Legislative monitoring. (1) The economic affairs interim committee shall provide oversight of the department's activities pursuant to [sections 9 through 23], including but not limited to monitoring of: (a) the number of registered cardholders; and (b) the number and type of violations committed by registered cardholders, together with the penalties imposed upon registered cardholders by the department. (2) The committee shall identify issues likely to require future legislative attention and develop legislation to present to the next regular session of the legislature. (3) (a) The department shall periodically report to the economic affairs interim committee and submit a report to the legislative clearinghouse, as provided in 5-11-210, on persons who are registered pursuant to [sections 9 through 23]. The report must include: (i) the number of applications for registry identification cards and the number of registered cardholders approved; (ii) the nature of the debilitating medical conditions of the cardholders; (iii) the number of registry identification cards and licenses revoked; and (iv) the number of physicians providing written certification for registered cardholders and the number of written certifications each physician has provided. (b) The report may not provide any identifying information of cardholders or physicians. (4) The board of medical examiners shall report annually to the economic affairs interim committee on the number and types of complaints the board has received involving physician practices in providing written certification for the use of marijuana, pursuant to 37-3-203. (5) The reports provided for in subsections (3) and (4) must also be provided to the revenue interim 180 67th Legislature HB 701 - 26 - Authorized Print Version – HB 701 ENROLLED BILL committee provided for in 5-5-227. Section 23. Rulemaking authority -- fees. The department may adopt rules to implement [sections 9 through 23] as authorized in this section to specify: (1) the manner in which the department will consider applications for registry identification cards for individuals with debilitating medical conditions and renewal of registry identification cards; (2) the acceptable forms of proof of Montana residency; (3) notice and contested case hearing procedures for fines or registry identification card revocation, suspension, or modification; (4) the procedures for obtaining fingerprints for the fingerprint and background check required under [section 12]; (5) the amount of usable marijuana that a registered cardholder who has elected not to use the system of licensees provided for under this chapter may possess; and (6) the fees for cardholders. The annual cardholder license fee may not be less than $20. Section 24. Section 5-5-223, MCA, is amended to read: "5-5-223. Economic affairs interim committee. (1) The economic affairs interim committee has administrative rule review, draft legislation review, program evaluation, and monitoring functions for the following executive branch agencies and the entities attached to agencies for administrative purposes: (a) department of agriculture; (b) department of commerce; (c) department of labor and industry; (d) department of livestock; (e) office of the state auditor and insurance commissioner; (f) office of economic development; (g) the state compensation insurance fund provided for in 39-71-2313, including the board of directors of the state compensation insurance fund established in 2-15-1019; (h) the division of banking and financial institutions provided for in 32-1-211; and 181 67th Legislature HB 701 - 27 - Authorized Print Version – HB 701 ENROLLED BILL (i) the division of the department of revenue that administers the Montana Alcoholic Beverage Code and the Montana Marijuana Regulation and Taxation Act. (2) The state compensation insurance fund shall annually provide to the committee a report on its budget as approved by the state compensation insurance fund board of directors." Section 25. Section 3-5-113, MCA, is amended to read: "3-5-113. Judges pro tempore -- special masters -- scope of authority in criminal and civil cases. (1) (a) A civil action in the district court may be tried by a judge pro tempore or special master, who must be a member of the bar of the state, agreed upon in writing by the parties litigant or their attorneys of record, appointed by the court as provided in 3-5-115 or 3-20-102, or [section 102] and sworn to try the cause before entering upon the duties in trying the cause. (b) The judge pro tempore or special master has the authority and power of an elected district court judge in the particular civil action tried in the manner provided for in this subsection (1). All proceedings before a judge pro tempore or special master must be conducted in accordance with the rules of evidence and procedure governing district courts. (c) Any order, judgment, or decree made or rendered in a civil case by the judge pro tempore or special master has the same force and effect as if made or rendered by the district court with the regular judge presiding. (2) (a) Preliminary, nondispositive proceedings in criminal actions in a district court may be conducted by a judge pro tempore or special master. The judge pro tempore or special master in a criminal case must be appointed by a district court judge or judges as provided in 3-5-122. (b) All proceedings before a judge pro tempore or special master in a criminal case must be conducted in accordance with the rules of evidence and procedure governing district courts. (c) The judge pro tempore or special master in a criminal case has the authority and power of a district court judge to issue orders pursuant to Title 46, chapter 9, concerning bail and conditions of release or detention of persons pending trial, and to conduct arraignments, initial appearances on warrants, and initial appearances on probation revocations. An order made by the judge pro tempore or special master in a criminal case has the same force and effect as if made by a district court judge. 182 67th Legislature HB 701 - 28 - Authorized Print Version – HB 701 ENROLLED BILL (d) Within 10 days after issuance of an order by a judge pro tempore or special master in a criminal case, a party may object to the order as provided by rules of court and a district court judge shall make a de novo determination of that portion of the order to which objection is made. The district court judge may accept, reject, or modify the order in whole or in part. The district court judge may also receive further evidence or recommit the matter to the judge pro tempore or special master with instructions. (e) All proceedings before a judge pro tempore or special master in a criminal case must be conducted in a suitable room in the courthouse, subject to the provisions of Title 46 relating to the use of two- way electronic audio-video communication. All records must be filed and kept in accordance with the rules governing the district court." Section 26. Section 3-5-115, MCA, is amended to read: "3-5-115. Agreement, petition, and appointment of judge pro tempore -- waiver of jury trial. (1) Prior to trial and upon written agreement of all the parties to a civil action, the parties may petition for the appointment of a judge pro tempore. Except as provided in 3-20-102, if the district court judge having jurisdiction over the case where the action was filed finds that the appointment is in the best interest of the parties and serves justice, the district court judge may appoint the judge pro tempore nominated by the parties to preside over the whole action or any aspect of the action as if the regular district court judge were presiding. (2) Except as provided in 3-20-102, an appointment of a judge pro tempore constitutes a waiver of the right to trial by jury by any party having the right. (3) The supreme court shall appoint the asbestos claims judge as provided in 3-20-102. (4) The supreme court shall appoint a judge to determine the expungement or resentencing of marijuana convictions as provided in [section 102]." Section 26. Section 5-5-227, MCA, is amended to read: "5-5-227. Revenue interim committee -- powers and duties -- revenue estimating and use of estimates. (1) The revenue interim committee has administrative rule review, draft legislation review, program evaluation, and monitoring functions for the state tax appeal board established in 2-15-1015 and for the department of revenue and the entities attached to the department for administrative purposes, except the 183 67th Legislature HB 701 - 29 - Authorized Print Version – HB 701 ENROLLED BILL division divisions of the department that administers administer the Montana Alcoholic Beverage Code and the Montana Marijuana Regulation and Taxation Act. (2) (a) The committee must have prepared by December 1 for introduction during each regular session of the legislature in which a revenue bill is under consideration an estimate of the amount of revenue projected to be available for legislative appropriation. (b) The committee may prepare for introduction during a special session of the legislature in which a revenue bill or an appropriation bill is under consideration an estimate of the amount of projected revenue. The revenue estimate is considered a subject specified in the call of a special session under 5-3-101. (3) The committee's estimate, as introduced in the legislature, constitutes the legislature's current revenue estimate until amended or until final adoption of the estimate by both houses. It is intended that the legislature's estimates and the assumptions underlying the estimates will be used by all agencies with responsibilities for estimating revenue or costs, including the preparation of fiscal notes. (4) The legislative services division shall provide staff assistance to the committee. The committee may request the assistance of the staffs of the office of the legislative fiscal analyst, the legislative auditor, the department of revenue, and any other agency that has information regarding any of the tax or revenue bases of the state. (5) The committee shall review tax credits [scheduled to expire] as provided in 15-30-2303." Section 28. Section 7-22-2101, MCA, is amended to read: "7-22-2101. Definitions. As used in this part, unless the context indicates otherwise, the following definitions apply: (1) "Board" means a district weed board created under 7-22-2103. (2) "Commissioners" means the board of county commissioners. (3) "Coordinator" means the person employed by the county to conduct the district noxious weed management program and supervise other district employees. (4) "Department" means the department of agriculture provided for in 2-15-3001. (5) "District" means a weed management district organized under 7-22-2102. (6) "Integrated weed management program" means a program designed for the long-term 184 67th Legislature HB 701 - 30 - Authorized Print Version – HB 701 ENROLLED BILL management and control of weeds using a combination of techniques, including hand-pulling, cultivation, use of herbicide, use of biological control, mechanical treatment, prescribed grazing, prescribed burning, education, prevention, and revegetation. (7) "Native plant" means a plant indigenous to the state of Montana. (8) "Native plant community" means an assemblage of native plants occurring in a natural habitat. (9) (a) "Noxious weeds" or "weeds" means any exotic plant species established or that may be introduced in the state that may render land unfit for agriculture, forestry, livestock, wildlife, or other beneficial uses or that may harm native plant communities and that is designated: (i) as a statewide noxious weed by rule of the department; or (ii) as a district noxious weed by a board, following public notice of intent and a public hearing. (b) A weed designated by rule of the department as a statewide noxious weed must be considered noxious in every district of the state. (c) Marijuana, as defined in 16-12-102, may not be considered a noxious weed. (10) "Person" means an individual, partnership, corporation, association, or state or local government agency or subdivision owning, occupying, or controlling any land, easement, or right-of-way, including any county, state, or federally owned and controlled highway, drainage or irrigation ditch, spoil bank, barrow pit, or right-of-way for a canal or lateral. (11) "Weed management" or "control" means the use of an integrated weed management program for the containment, suppression, and, where possible, eradication of noxious weeds." Section 29. Section 15-64-101, MCA, is amended to read: "15-64-101. Definitions. As used in this part, the following definitions apply: (1) "Adult-use dispensary" has the meaning provided in 16-12-102. (1)(2) "Department" means the department of revenue provided for in 2-15-1301. (3) "Dispensary" means an adult-use dispensary or a medical marijuana dispensary. (4) "Licensee" means a licensee operating an adult-use dispensary or a medical marijuana dispensary. (5) "Marijuana" has the meaning provided in 16-12-102. 185 67th Legislature HB 701 - 31 - Authorized Print Version – HB 701 ENROLLED BILL (2) (6) "Marijuana product" means marijuana as defined in 50-32-101 and marijuana-infused products as defined in 50-46-302 has the meaning provided in 16-12-102. (3) "Marijuana product provider" means provider or a marijuana-infused products provider as those terms are defined in 50-46-302. (7) "Medical marijuana dispensary" has the meaning provided in 16-12-102. (4)(8) "Person" means an individual, firm, partnership, corporation, association, company, committee, other group of persons, or other business entity, however formed. (5)(9) "Purchaser" means a person to whom a sale of marijuana or a marijuana product is made. (6)(10) "Retail price" means the established price for which a marijuana product provider an adult-use dispensary or medical marijuana dispensary sells marijuana or a marijuana product to a purchaser before any discount or reduction. (7)(11) "Sale" or "sell" means any transfer of marijuana or marijuana products for consideration, exchange, barter, gift, offer for sale, or distribution in any manner or by any means." Section 30. Section 15-64-102, MCA, is amended to read: "15-64-102. Tax on marijuana product providers sales. (1) (a) There For a medical marijuana dispensary, there is a 4% tax equal to the percentage provided in subsection (1)(b) on a marijuana product provider's gross sales on the retail price of marijuana, marijuana products, and live marijuana plants for use by individuals with debilitating medical conditions that is payable four times a year. (b) The percentage of tax on gross sales in subsection (1)(a) is as follows: (i) for gross sales during the calendar quarters beginning October 1, 2019, and ending September 30, 2021, the amount is 4%; and (ii) for gross sales during the calendar quarters beginning October 1, 2021, and thereafter, the amount is 2%. (2) For an adult use-dispensary, there is a 20% tax on the retail price of marijuana, marijuana products, and live marijuana plants. (3) The taxes set forth in subsections (1) and (2) are imposed on the purchaser and must be collected at the time of the sale and paid by the seller to the department for deposit in the marijuana state 186 67th Legislature HB 701 - 32 - Authorized Print Version – HB 701 ENROLLED BILL special revenue account provided for in 16-12-111. (2)(4) A marijuana product provider dispensary licensed under Title 16, chapter 12, shall submit a quarterly report to the department listing the total dollar amount of sales from any registered premises, as defined in 50-46-302, operated by the marijuana product provider, including dispensaries. The report must be: (a) made on forms prescribed by the department; and (b) submitted within 15 days of the end of each calendar quarter. (3)(5) At the time the report is filed, the marijuana product provider dispensary shall submit a payment equal to the percentage provided in subsection (1)(b) or (2) of the total dollar amount of sales. (4)(6) The department shall deposit the taxes paid under this section in the medical marijuana state special revenue account provided for in 50-46-345 16-12-111 within the state special revenue fund established in 17-2-102. (5)(7) The tax imposed by this part and related interest and penalties are a personal debt of the person required to file a return from the time that the liability arises, regardless of when the time for payment of the liability occurs. (6)(8) For the purpose of determining liability for the filing of statements and the payment of taxes, penalties, and interest owed under 15-64-103 through 15-64-106: (a) the officer of a corporation whose responsibility it is to truthfully account for and pay to the state taxes provided for in 15-64-103 through 15-64-106 and who fails to pay the taxes is liable to the state for the taxes and the penalty and interest due on the amounts; (b) each officer of the corporation, to the extent that the officer has access to the requisite records, is individually liable along with the corporation for filing statements and for unpaid taxes, penalties, and interest upon a determination that the officer: (i) possessed the responsibility to file statements and pay taxes on behalf of the corporation; and (ii) possessed the responsibility on behalf of the corporation for directing the filing of statements or the payment of other corporate obligations and exercised that responsibility, resulting in the corporation's failure to file statements required by this part or pay taxes due as required by this part; (c) each partner of a partnership is jointly and severally liable, along with the partnership, for any statements, taxes, penalties, and interest due while a partner; 187 67th Legislature HB 701 - 33 - Authorized Print Version – HB 701 ENROLLED BILL (d) each member of a limited liability company that is treated as a partnership or as a corporation for income tax purposes is jointly and severally liable, along with the limited liability company, for any statements, taxes, penalties, and interest due while a member; (e) the member of a single-member limited liability company that is disregarded for income tax purposes is jointly and severally liable, along with the limited liability company, for any statements, taxes, penalties, and interest due while a member; and (f) each manager of a manager-managed limited liability company is jointly and severally liable, along with the limited liability company, for any statements, taxes, penalties, and interest due while a manager. (7)(9) In determining which corporate officer is liable, the department is not limited to considering the elements set forth in subsection (6)(a) (8)(a) to establish individual liability and may consider any other available information. (8)(10) In the case of a bankruptcy, the liability of the individual remains unaffected by the discharge of penalty and interest against the corporation. The individual remains liable for any statements and the amount of taxes, penalties, and interest unpaid by the entity. (11) The tax levied pursuant to this section is separate from and in addition to any general state and local sales and use taxes that apply to retail sales, which must continue to be collected and distributed as provided by law. (12) The tax levied under this section must be used as designated in 16-12-111." Section 31. Section 15-64-103, MCA, is amended to read: "15-64-103. Returns -- payment -- recordkeeping -- authority of department. (1) Each marijuana product provider dispensary licensed under Title 16, chapter 12, shall file a return, on a form provided by the department, and pay the tax due as provided in 15-64-102. (2) Each return must be authenticated by the person filing the return or by the person's agent authorized in writing to file the return. (3) (a) A person required to pay to the department the taxes imposed by this part shall keep for 5 years: (i) all receipts issued; and 188 67th Legislature HB 701 - 34 - Authorized Print Version – HB 701 ENROLLED BILL (ii) an accurate record of all sales of marijuana and marijuana products, showing the name and address of each purchaser, the date of sale, and the quantity, kind, and retail price of each product sold. (b) For the purpose of determining compliance with the provisions of this part, the department is authorized to examine or cause to be examined any books, papers, records, or memoranda relevant to making a determination of the amount of tax due, whether the books, papers, records, or memoranda are the property of or in the possession of the person filing the return or another person. In determining compliance, the department may use statistical sampling and other sampling techniques consistent with generally accepted auditing standards. The department may also: (i) require the attendance of a person having knowledge or information relevant to a return; (ii) compel the production of books, papers, records, or memoranda by the person required to attend; (iii) implement the provisions of 15-1-703 if the department determines that the collection of the tax is or may be jeopardized because of delay; (iv) take testimony on matters material to the determination; and (v) administer oaths or affirmations. (4) Pursuant to rules established by the department, returns may be computer-generated and electronically filed." Section 32. Section 15-64-104, MCA, is amended to read: "15-64-104. Deficiency assessment -- penalty and interest -- statute of limitations. (1) If the department determines that the amount of the tax due is greater than the amount disclosed by a return, it shall mail to the marijuana product provider licensee a notice, pursuant to 15-1-211, of the additional tax proposed to be assessed. The notice must contain a statement that if payment is not made, a warrant for distraint may be filed. The marijuana product provider licensee may seek review of the determination pursuant to 15-1-211. (2) Penalty and interest must be added to a deficiency assessment as provided in 15-1-216. The department may waive any penalty pursuant to 15-1-206. (3) The amount of tax due under any return may be determined by the department within 5 years after the return was filed, regardless of whether the return was filed on or after the last day prescribed for filing. For purposes of this section, a return due under this part and filed before the last day prescribed by law or rule is 189 67th Legislature HB 701 - 35 - Authorized Print Version – HB 701 ENROLLED BILL considered to be filed on the last day prescribed for filing." Section 33. Section 15-64-105, MCA, is amended to read: "15-64-105. Procedure to compute tax in absence of statement -- estimation of tax -- failure to file -- penalty and interest. (1) If the marijuana product provider licensee fails to file any return required by 15- 64-103 within the time required, the department may, at any time, audit the marijuana product provider licensee or estimate the taxes due from any information in its possession and, based on the audit or estimate, assess the marijuana product provider licensee for the taxes, penalties, and interest due the state. (2) The department shall impose penalty and interest as provided in 15-1-216. The department shall mail to the marijuana product provider licensee a notice, pursuant to 15-1-211, of the tax, penalty, and interest proposed to be assessed. The notice must contain a statement that if payment is not made, a warrant for distraint may be filed. The marijuana product provider licensee may seek review of the determination pursuant to 15-1-211. The department may waive any penalty pursuant to 15-1-206." Section 34. Section 15-64-106, MCA, is amended to read: "15-64-106. Authority to collect delinquent taxes. (1) (a) The department shall collect taxes that are delinquent as determined under this part. (b) If a tax imposed by this part or any portion of the tax is not paid when due, the department may issue a warrant for distraint as provided in Title 15, chapter 1, part 7. (2) In addition to any other remedy, in order to collect delinquent taxes after the time for appeal has expired, the department may direct the offset of tax refunds or other funds due the marijuana product provider licensee from the state, except wages subject to the provisions of 25-13-614 and retirement benefits. (3) As provided in 15-1-705, the marijuana product provider licensee has the right to a review of the tax liability prior to any offset by the department. (4) The department may file a claim for state funds on behalf of the marijuana product provider licensee if a claim is required before funds are available for offset." Section 35. Section 15-64-111, MCA, is amended to read: 190 67th Legislature HB 701 - 36 - Authorized Print Version – HB 701 ENROLLED BILL "15-64-111. Information -- confidentiality -- agreements with another state. (1) (a) Except as provided in subsections (2) through (5), in accordance with 15-30-2618 and 15-31-511, it is unlawful for an employee of the department or any other public official or public employee to disclose or otherwise make known information that is disclosed in a return or report required to be filed under this part or information that concerns the affairs of the person making the return and that is acquired from the person's records, officers, or employees in an examination or audit. (b) This section may not be construed to prohibit the department from publishing statistics if they are classified in a way that does not disclose the identity of a person making a return or the content of any particular report or return. A person violating the provisions of this section is subject to the penalty provided in 15-30-2618 or 15-31-511 for violating the confidentiality of individual income tax or corporate income tax information. (2) (a) This section may not be construed to prohibit the department from providing information obtained under this part to: (i) the department of justice, the internal revenue service, or law enforcement to be used for the purpose of investigation and prevention of criminal activity, noncompliance, tax evasion, fraud, and abuse under this part; or (ii) the department of public health and human services to be used for the purpose of investigation and prevention of noncompliance, fraud, and abuse under the Montana Medical Marijuana Act. (b) The department may enter into an agreement with the taxing officials of another state for the interpretation and administration of the laws of their state that provide for the collection of a sales tax or use tax in order to promote fair and equitable administration of the laws and to eliminate double taxation. (c) In order to implement the provisions of this part, the department may furnish information on a reciprocal basis to the taxing officials of another state if the information remains confidential under statutes within the state receiving the information that are similar to this section. (3) In order to facilitate processing of returns and payment of taxes required by this part, the department may contract with vendors and may disclose data to the vendors. The data disclosed must be administered by the vendor in a manner consistent with this section. (4) (a) The officers charged with the custody of the reports and returns may not be required to 191 67th Legislature HB 701 - 37 - Authorized Print Version – HB 701 ENROLLED BILL produce them or evidence of anything contained in them in an action or proceeding in a court, except in an action or proceeding: (i) to which the department is a party under the provisions of this part or any other taxing act; or (ii) on behalf of a party to any action or proceedings under the provisions of this part or other taxes when the reports or facts shown by the reports are directly involved in the action or proceedings. (b) The court may require the production of and may admit in evidence only as much of the reports or of the facts shown by the reports as are pertinent to the action or proceedings. (5) This section may not be construed to limit the investigative authority of the legislative branch, as provided in 5-11-106, 5-12-303, or 5-13-309." Section 36. Section 15-64-112, MCA, is amended to read: "15-64-112. Department to make rules. The department of revenue shall prescribe rules necessary to carry out the purposes of imposing and collecting the marijuana tax on gross sales on marijuana product providers the sale of marijuana and marijuana products." Section 37. Section 16-12-101, MCA, is amended to read: "16-12-101. (Effective October 1, 2021 January 1, 2022) Short title -- purpose. (1) This chapter may be cited as the "Montana Marijuana Regulation and Taxation Act". (2) The purpose of this chapter is to: (a) provide for legal possession and use of limited amounts of marijuana legal for adults 21 years of age or older; (b) provide for the licensure and regulation of the commercial cultivation, manufacture, production, distribution, transportation, and sale of marijuana and marijuana-infused marijuana products; (c) allow for limited cultivation, manufacture, delivery, and possession of marijuana as permitted by this chapter; (d)(c) eliminate the illicit market for marijuana and marijuana-infused marijuana products; (e)(d) prevent the distribution of marijuana sold under this chapter to persons under 21 years of age; (f)(e) ensure the safety of marijuana and marijuana-infused marijuana products; 192 67th Legislature HB 701 - 38 - Authorized Print Version – HB 701 ENROLLED BILL (g)(f) ensure the security of registered licensed premises and adult-use dispensaries; (h)(g) establish reporting requirements for adult-use providers and adult-use marijuana-infused products providers licensees; (i)(h) establish inspection requirements for registered premises licensees, including data collection on energy use, chemical use, water use, and packaging waste to ensure a clean and healthy environment; (j)(i) provide for the testing of marijuana and marijuana products by licensed testing laboratories; (k)(j) give local governments a role in establishing standards for authority to allow for the operation of marijuana businesses in their community and establishing standards for the cultivation, manufacture, and sale of marijuana that protect the public health, safety, and welfare of residents within their jurisdictions; (l)(k) tax the sale of marijuana and marijuana-infused marijuana products to generate revenue for the state and provide compensation for the economic and social costs of past and current marijuana cultivation, processing, and use, by directing funding to: (i) conservation programs to offset the use of water and soil in marijuana cultivation; (ii) substance abuse treatment and prevention programs; (iii) veterans' services and support; (iv) health care; (v) localities where marijuana is sold; and (vi) the state general fund; (m)(l) authorize courts to resentence persons who are currently serving sentences for acts that are permitted under this chapter or for which the penalty is reduced by this chapter and to redesignate or expunge those offenses from the criminal records of persons who have completed their sentences as set forth in this chapter; and (m) preserve and protect Montana’s well-established hemp industry by drawing a clear distinction between those participants and programs and the participants and programs associated with the marijuana industry. (3) Marijuana and marijuana products are not agricultural products, and the cultivation, processing, manufacturing or selling of marijuana or marijuana products is not considered agriculture subject to regulation by the department of agriculture unless expressly provided." 193 67th Legislature HB 701 - 39 - Authorized Print Version – HB 701 ENROLLED BILL Section 38. Section 16-12-102, MCA, is amended to read: "16-12-102. (Effective October 1, 2021 January 1, 2022) Definitions. As used in this chapter, the following definitions apply: (1) "Adult-use dispensary" means a registered licensed premises from which a licensed adult-use provider or adult-use marijuana-infused products provider is approved by the department to dispense marijuana or marijuana-infused products to a consumer person licensed by the department may: (a) obtain marijuana or marijuana products from a licensed cultivator, manufacturer, dispensary, or other licensee approved under this chapter; and (b) sell marijuana or marijuana products to registered cardholders, adults that are 21 years of age or older, or both. (2) "Adult-use marijuana-infused products provider" means a person licensed by the department to manufacture and provide marijuana-infused products for consumers as allowed by this chapter. (3) "Adult-use provider" means a person licensed by the department to cultivate and process marijuana for consumers as allowed by this chapter. (2) "Affiliate" means a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, another person. (3) "Beneficial owner of", "beneficial ownership of", or "beneficially owns an" is determined in accordance with section 13(d) of the federal Securities and Exchange Act of 1934, as amended. (4) "Canopy" means the total amount of square footage dedicated to live plant production at a registered licensed premises consisting of the area of the floor, platform, or means of support or suspension of the plant. (5) "Consumer" means a person 21 years of age or older who obtains or possesses marijuana or marijuana-infused marijuana products for personal use from a licensed dispensary or for use by persons who are at least 21 years of age, but not for resale. (6) "Control", "controls", "controlled", "controlling", "controlled by", and "under common control with" mean the possession, direct or indirect, of the power to direct or cause the direction of the management or policies of a person, whether through the ownership of voting owner's interests, by contract, or otherwise. 194 67th Legislature HB 701 - 40 - Authorized Print Version – HB 701 ENROLLED BILL (7) "Controlling beneficial owner" means a person that satisfies one or more of the following: (a) is a natural person, an entity that is organized under the laws of and for which its principal place of business is located in one of the states or territories of the United States or District of Columbia, a publicly traded corporation, and: (i) acting alone or acting in concert, owns or acquires beneficial ownership of 5% or more of the owner's interest of a marijuana business; (ii) is an affiliate that controls a marijuana business and includes, without limitation, any manager; or (iii) is otherwise in a position to control the marijuana business; or (b) is a qualified institutional investor acting alone or acting in concert that owns or acquires beneficial ownership of more than 15% of the owner's interest of a marijuana business. (6)(8) "Correctional facility or program" means a facility or program that is described in 53-1-202(2) or (3) and to which an individual may be ordered by any court of competent jurisdiction. (9) "Cultivator" means a person licensed by the department to: (a) plant, cultivate, grow, harvest, and dry marijuana; and (b) package and relabel marijuana produced at the location in a natural or naturally dried form that has not been converted, concentrated, or compounded for sale through a licensed dispensary. (10) "Debilitating medical condition" means: (a) cancer, glaucoma, positive status for human immunodeficiency virus, or acquired immune deficiency syndrome when the condition or disease results in symptoms that seriously and adversely affect the patient's health status; (b) cachexia or wasting syndrome; (c) severe chronic pain that is a persistent pain of severe intensity that significantly interferes with daily activities as documented by the patient's treating physician; (d) intractable nausea or vomiting; (e) epilepsy or an intractable seizure disorder; (f) multiple sclerosis; (g) Crohn's disease; (h) painful peripheral neuropathy; 195 67th Legislature HB 701 - 41 - Authorized Print Version – HB 701 ENROLLED BILL (i) a central nervous system disorder resulting in chronic, painful spasticity or muscle spasms; (j) admittance into hospice care in accordance with rules adopted by the department; or (k) posttraumatic stress disorder. (7)(11) "Department" means the department of revenue provided for in 2-15-1301. (8)(12) (a) "Employee" means an individual employed to do something for the benefit of an employer. (b) The term includes a manager, agent, or director of a partnership, association, company, corporation, limited liability company, or organization. (c) The term does not include a third party with whom a licensee has a contractual relationship. (9)(13) (a) "Financial interest" means a legal or beneficial interest that entitles the holder, directly or indirectly through a business, an investment, or a spouse, parent, or child relationship, to 1% 5% or more of the net profits or net worth of the entity in which the interest is held. (b) The term does not include interest held by a bank or licensed lending institution or a security interest, lien, or encumbrance but does include holders of private loans or convertible securities. (14) "Former medical marijuana licensee" means a person that was licensed by or had an application for licensure pending with the department of public health and human services to provide marijuana to individuals with debilitating medical conditions on November 3, 2020. (15) (a) "Indoor cultivation facility" means an enclosed area used to grow live plants that is within a permanent structure using artificial light exclusively or to supplement natural sunlight. (b) The term may include: (i) a greenhouse; (ii) a hoop house; or (iii) a similar structure that protects the plants from variable temperature, precipitation, and wind. (16) "Licensed premises" means all locations related to, or associated with, a specific license that is authorized under this chapter and includes all enclosed public and private areas at the location that are used in the business operated pursuant to a license, including offices, kitchens, restrooms, and storerooms. (10)(17) "Licensee" means a person holding a state license issued pursuant to this chapter. (11)(18) "Local government" means a county, a consolidated government, or an incorporated city or town. 196 67th Legislature HB 701 - 42 - Authorized Print Version – HB 701 ENROLLED BILL (12) "Manufacturing" means the production of marijuana concentrate. (19) “Manufacturer" means a person licensed by the department to convert or compound marijuana into marijuana products, marijuana concentrates, or marijuana extracts and package, repackage, label, or relabel marijuana products as allowed under this chapter. (13)(20) (a) "Marijuana" means all plant material from the genus Cannabis containing tetrahydrocannabinol (THC) or seeds of the genus capable of germination. (b) The term does not include hemp, including any part of that plant, including the seeds and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3% on a dry weight basis, or commodities or products manufactured with hemp, or any other ingredient combined with marijuana to prepare topical or oral administrations, food, drink, or other products. (c) The term does not include a drug approved by the United States food and drug administration pursuant to section 505 of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301, et seq. (21) "Marijuana business" means a cultivator, manufacturer, adult-use dispensary, medical marijuana dispensary, combined-use marijuana licensee, testing laboratory, marijuana transporter, or any other business or function that is licensed by the department under this chapter. (14)(22) "Marijuana concentrate" means any type of marijuana product consisting wholly or in part of the resin extracted from any part of the marijuana plant. (15)(23) "Marijuana derivative" means any mixture or preparation of the dried leaves, flowers, resin, or byproducts of the marijuana plant, including but not limited to marijuana concentrates and marijuana-infused other marijuana products. (16)(24) "Marijuana-infused Marijuana product" means a product that contains marijuana and is intended for use by a consumer by a means other than smoking. The term includes but is not limited to edible products, ointments, and tinctures, marijuana derivatives, and marijuana concentrates. (25) "Marijuana transporter" means a person that is licensed to transport marijuana and marijuana products from one marijuana business to another marijuana business, or to and from a testing laboratory, and to temporarily store the transported retail marijuana and retail marijuana products at its licensed premises, but is not authorized to sell marijuana or marijuana products to consumers under any circumstances. 197 67th Legislature HB 701 - 43 - Authorized Print Version – HB 701 ENROLLED BILL (17)(26) "Mature marijuana plant" means a harvestable female marijuana plant that is flowering. (27) "Medical marijuana" means marijuana or marijuana products that are for sale solely to a cardholder who is registered under [sections 9 through 23]. (28) "Medical marijuana dispensary" means the location from which a registered cardholder may obtain marijuana or marijuana products. (18) "Owner" means a principal officer, director, board member, or individual who has a financial interest or voting interest of 10% or greater in an adult-use dispensary, adult-use provider, or adult-use marijuana-infused products provider. (29) "Outdoor cultivation" means live plants growing in an area exposed to natural sunlight and environmental conditions including variable temperature, precipitation, and wind. (30) "Owner's interest" means the shares of stock in a corporation, a membership in a nonprofit corporation, a membership interest in a limited liability company, the interest of a member in a cooperative or in a limited cooperative association, a partnership interest in a limited partnership, a partnership interest in a partnership, and the interest of a member in a limited partnership association. (19)(31) "Paraphernalia" has the meaning provided for "drug paraphernalia" in 45-10-101. (32) "Passive beneficial owner" means any person acquiring an owner's interest in a marijuana business that is not otherwise a controlling beneficial owner or in control. (20)(33) "Person" means an individual, partnership, association, company, corporation, limited liability company, or organization. (21) "Registered premises" means a location that is licensed pursuant to this chapter and includes: (a) all enclosed public and private areas at the location that are used in the business operated pursuant to a license, including offices, kitchens, restrooms, and storerooms; and (b) if the department has specifically licensed a location for outdoor cultivation, production, manufacturing, wholesale sale, or retail sale of adult-use marijuana and adult-use marijuana-infused products, the entire unit of land that is created by subsection or partition of land that the licensee owns, leases, or has the right to occupy. (34) "Qualified institutional investor" means: (a) a bank or banking institution including any bank, trust company, member bank of the federal 198 67th Legislature HB 701 - 44 - Authorized Print Version – HB 701 ENROLLED BILL reserve system, bank and trust company, stock savings bank, or mutual savings bank that is organized and doing business under the laws of this state, any other state, or the laws of the United States; (b) a bank holding company as defined in 32-1-109; (c) a company organized as an insurance company whose primary and predominant business activity is the writing of insurance or the reinsuring of risks underwritten by insurance companies, and that is subject to regulation or oversight by the insurance department of the office of the state auditor or a similar agency of another state, or any receiver or similar official or any liquidating agent for such a company, in their capacity as such.an insurance company; (d) an investment company registered under section 8 of the federal Investment Company Act of 1940, as amended; (e) an employee benefit plan or pension fund subject to the federal Employee Retirement Income Security Act of 1974, excluding an employee benefit plan or pension fund sponsored by a licensee or an intermediary holding company licensee that directly or indirectly owns 10% or more of a licensee; (f) a state or federal government pension plan; or (g) any other entity identified by rule by the department. (35) "Registered cardholder" or "cardholder" means a Montana resident with a debilitating medical condition who has received and maintains a valid registry identification card. (36) "Registry identification card" means a document issued by the department pursuant to [section 11] that identifies an individual as a registered cardholder. (22)(37) (a) "Resident" means an individual who meets the requirements of 1-1-215. (b) An individual is not considered a resident for the purposes of this chapter if the individual: (i) claims residence in another state or country for any purpose; or (ii) is an absentee property owner paying property tax on property in Montana. (23)(38) "Seedling" means a marijuana plant that has no flowers and is less than 12 inches in height and 12 inches in diameter. (24)(39) "State laboratory" means the laboratory operated by the department of public health and human services to conduct environmental analyses. (25)(40) "Testing laboratory" has the meaning as provided in 50-46-302 means a qualified person, 199 67th Legislature HB 701 - 45 - Authorized Print Version – HB 701 ENROLLED BILL licensed under this chapter that: (a) provides testing of representative samples of marijuana and marijuana products; and (b) provides information regarding the chemical composition and potency of a sample, as well as the presence of molds, pesticides, or other contaminants in a sample. (26) "Unduly burdensome" means requiring such a high investment of money, time, or any other resource or asset to achieve compliance that a reasonably prudent businessperson would not operate. (41) (a) "Usable marijuana" means the dried leaves and flowers of the marijuana plant that are appropriate for the use of marijuana by an individual. (b) The term does not include the seeds, stalks, and roots of the plant." Section 39. Section 16-12-104, MCA, is amended to read: "16-12-104. (Effective October 1, 2021 January 1, 2022) Department responsibilities -- licensure. (1) The department shall establish and maintain a registry of persons who receive licenses under this chapter. (2) (a) The department shall issue the following license types to persons who submit applications meeting the requirements of this chapter: (a) licenses: (i) to persons who apply to operate as adult-use providers or adult-use marijuana-infused products providers and who submit applications meeting the requirements of this chapter; and (ii) for adult-use dispensaries established by adult-use providers or adult-use marijuana-infused products providers; and (b) endorsements for manufacturing to an adult-use provider or an adult-use marijuana-infused products provider that applies for a manufacturing endorsement and meets requirements established by the department by rule. (i) cultivator license; (ii) manufacturer license; (iii) adult-use dispensary license or a medical marijuana dispensary license; (iv) testing laboratory license. 200 67th Legislature HB 701 - 46 - Authorized Print Version – HB 701 ENROLLED BILL (v) marijuana transporter license. (vi) combined-use marijuana license. (b) The department may establish other license types, sub-types, endorsements, and restrictions it considers necessary for the efficient administration of this chapter. (2) A person who obtains an adult-use provider license, adult-use marijuana-infused products provider license, or adult-use dispensary license or an employee of a licensed adult-use provider or adult-use marijuana-infused products provider is authorized to cultivate, manufacture, possess, sell, and transport marijuana as allowed by this chapter. (3) A person who obtains a testing laboratory license or an employee of a licensed testing laboratory is authorized to possess, test, and transport marijuana as allowed by this chapter. (4) The department shall conduct criminal history background checks as required by 50-46-307 and 50-46-308 before issuing a license to a person named as a provider or marijuana-infused products provider. (5) Licenses issued pursuant to this chapter must: (a) be laminated and produced on a material capable of lasting for the duration of the time period for which the license is valid; (b) indicate whether an adult-use provider or an adult-use marijuana-infused products provider has an endorsement for manufacturing; (c) state the date of issuance and the expiration date of the license; and (d) contain other information that the department may specify by rule. (6) (a) The department shall make application forms available and begin accepting applications for licensure and endorsement under this chapter on or before January 1, 2022. (3) A licensee may not cultivate hemp or engage in hemp manufacturing at a licensed premises. (4) A person licensed to cultivate or manufacture marijuana or marijuana products is subject to the provisions contained in the Montana Pesticides Act provided for in Title 80, chapter 8. (5) The department shall assess applications for licensure or renewal to determine if an applicant, controlling beneficial owner, or a person with a financial interest in the applicant meets any of the criteria established in this chapter for denial of a license. (6) A license issued pursuant to this chapter must be displayed by the licensee as provided for in rule 201 67th Legislature HB 701 - 47 - Authorized Print Version – HB 701 ENROLLED BILL by the department. (b)(7) (a) The department shall review the information contained in an application or renewal submitted pursuant to this chapter and shall approve or deny an application: (i) within 30 60 days of receiving the application or renewal and all related application materials from a former medical marijuana licensee or an existing licensed provider or marijuana-infused products provider licensee under this chapter; and (ii) within 90 120 days of receiving the application and all related application materials from a new applicant. (c)(b) If the department fails to act on a completed application within the time allowed under subsection (6)(b) (7)(a), the department shall: (i) reduce the cost of the licensing fee for a new applicant for licensure or endorsement or for a licensee seeking renewal of a license by 5% each week that the application is pending; and (ii) allow a licensee to continue operation until the department takes final action. (d) Applications that are not processed within the time allowed under subsection (6)(b) remain active until the department takes final action. (e)(c) (i) The department may not take final action on an application for a license or renewal of a license until the department has completed a satisfactory inspection as required by this chapter and related administrative rules. (ii) Failure by the department to complete the required inspection within the time allowed under subsection (6)(b) does not prevent an application from being considered complete for the purpose of subsection (6)(c). (f)(d) The department shall issue a license or endorsement within 5 days of approving an application or renewal. (7)(8) Review of a rejection of an application or renewal may be conducted as a contested case hearing before the department's office of dispute resolution pursuant to the provisions of the Montana Administrative Procedure Act. (a) A person may appeal any decision of the department of revenue concerning the issuance, rejection, suspension, or revocation of a license provided for by this chapter to the district court in the county in 202 67th Legislature HB 701 - 48 - Authorized Print Version – HB 701 ENROLLED BILL which the person operates or proposes to operate. If a person operates or seeks to operate in more than one county, the person may seek judicial review in the district court with jurisdiction over actions arising in any of the counties where it operates or seeks to operate. (b) An appeal pursuant to subsection (8)(a) must be made by filing a complaint setting forth the grounds for relief and the nature of relief demanded with the district court within 30 days following receipt of notice of the department's final decision. (8)(9) Licenses and endorsements issued to adult-use providers and adult-use marijuana-infused products providers under this chapter must be renewed annually. (9)(10) (a) The department shall provide the names and phone numbers of adult-use providers and adult-use marijuana-infused products providers persons licensed under this chapter and the city, town, or county where registered licensed premises and testing laboratories are located to the public on the department's website. The Except as provided in subsection (10)(b), the department may not disclose the physical location or address of an adult-use provider, adult-use marijuana-infused products provider, adult-use dispensary, or testing laboratory a marijuana business. (b) The department may share the physical location or address of a marijuana business with another state agency, political subdivision, and the state fire marshal. (10)(11) The department may not prohibit an adult-use provider, adult-use marijuana-infused products provider, a cultivator, manufacturer, or adult-use dispensary licensee operating in compliance with the requirements of this chapter from operating at a shared location with a provider, marijuana-infused products provider, or dispensary as defined in 50-46-302 if the provider, marijuana-infused products provider, or dispensary is owned by the same person medical marijuana dispensary. (11)(12) The department may not adopt rules requiring a consumer to provide an adult-use provider, adult-use marijuana-infused products provider, or adult-use dispensary a licensee with identifying information other than government-issued identification to determine the consumer's age or require the recording of personal information about consumers other than information typically required in a retail transaction. A licensee that scans a person's driver's license using an electronic reader to determine the person's age: (a) may only use data or metadata from the scan determine the person's age; (b) may not transfer or sell that data or metadata to another party; and 203 67th Legislature HB 701 - 49 - Authorized Print Version – HB 701 ENROLLED BILL (c) shall permanently delete any data or metadata from the scan within 180 days, unless otherwise provided for in this chapter or by the department. (13) (a) Except as provided in subsection (13)(b), licenses issued by the department under this chapter are nontransferable. (b) A licensee may sell its marijuana business, including live plants, inventory, and material assets to a person who is licensed by the department under the provisions of this chapter. The department may, in its discretion, issue a temporary license to the acquiring party to facilitate the transfer of the licensee’s marijuana business. (14) A person who is not a controlling beneficial owner in a licensee may not receive or otherwise obtain an ownership interest in a licensee that results in the person becoming a controlling beneficial owner unless the licensee notifies, in writing, the department of the proposed transaction, and the department determines that the person qualifies for ownership under the provisions of this chapter." Section 40. Section 16-12-105, MCA, is amended to read: "16-12-105. (Effective October 1, 2021 January 1, 2022) Department responsibility to monitor and assess marijuana production, testing, sales, and license revocation. (1) (a) The department shall implement a system for tracking marijuana, marijuana concentrate, and marijuana-infused and marijuana products from either the seed or the seedling stage until the marijuana, marijuana concentrate, or marijuana- infused product it is sold to a consumer or registered cardholder. (b) The system must: (i) ensure that the marijuana, marijuana concentrate, or marijuana-infused product and marijuana products cultivated, manufactured, possessed, and sold under this chapter is are not sold or otherwise provided to an individual who is under 21 years of age and who is not a medical marijuana unless that person is a registered cardholder; and (ii)(c) The system must be made available to adult-use providers, adult-use marijuana-infused products providers, adult-use dispensaries, and testing laboratories at no additional cost licensees, except that licensees shall bear the responsibility and cost for procuring unique identification tracking tags to facilitate the tracking of marijuana and marijuana products. 204 67th Legislature HB 701 - 50 - Authorized Print Version – HB 701 ENROLLED BILL (2) The department shall if technology allows, require use of a mandatory semicashless payment system occurring at the point of sale for all dispensaries. Adult-use dispensaries and medical marijuana dispensaries are required to utilize a semicashless point of sale system when selling marijuana and marijuana products to consumers or registered cardholders. The department may establish by rule the requirements, standards, and private company that a licensee must use when utilizing such a system in a dispensary. The semicashless processor is authorized to make deposits to an account specified by the department for tax collection. (3) The department is authorized to share seed-to-sale information with the licensee’s depository institution, any other government agency, or the semicashless processor. (b) The department may implement the same system that is used to track marijuana, marijuana concentrate, and marijuana-infused products pursuant to 50-46-304. (2) The department shall assess applications for an adult-use provider or adult-use marijuana-infused products provider license to determine if a person with a financial interest in the applicant meets any of the criteria established in 16-12-203 for denial of a license. (3) Before issuing or renewing a license, the department shall inspect the proposed registered premises of an adult-use provider or adult-use marijuana-infused products provider and shall inspect the property to be used to ensure an applicant for licensure or license renewal is in compliance with this chapter. The department may not issue or renew a license if the applicant does not meet the requirements of this chapter. (4) (a) The department shall license providers and marijuana-infused products providers according to a tiered canopy system. (b) (i) The system shall include, at a minimum, the following license types: (A) A micro tier canopy license allows for a canopy of up to 250 square feet at one registered premises. (B) A tier 1 canopy license allows for a canopy of up to 1,000 square feet at one registered premises. A minimum of 500 square feet must be equipped for cultivation. (C) A tier 2 canopy license allows for a canopy of up to 2,500 square feet at up to two registered premises. A minimum of 1,100 square feet must be equipped for cultivation. 205 67th Legislature HB 701 - 51 - Authorized Print Version – HB 701 ENROLLED BILL (D) A tier 3 canopy license allows for a canopy of up to 5,000 square feet at up to three registered premises. A minimum of 2,600 square feet must be equipped for cultivation. (E) A tier 4 canopy license allows for a canopy of up to 7,500 square feet at up to four registered premises. A minimum of 5,100 square feet must be equipped for cultivation. (F) A tier 5 canopy license allows for a canopy of up to 10,000 square feet at up to five registered premises. A minimum of 7,750 square feet must be equipped for cultivation. (G) A tier 6 canopy license allows for a canopy of up to 13,000 square feet at up to five registered premises. A minimum of 10,250 square feet must be equipped for cultivation. (H) A tier 7 canopy license allows for a canopy of up to 15,000 square feet at up to five registered premises. A minimum of 13,250 square feet must be equipped for cultivation. (I) A tier 8 canopy license allows for a canopy of up to 17,500 square feet at up to five registered premises. A minimum of 15,250 square feet must be equipped for cultivation. (J) A tier 9 canopy license allows for a canopy of up to 20,000 square feet at up to six registered premises. A minimum of 17,775 square feet must be equipped for cultivation. (K) A tier 10 canopy license allows for a canopy of up to 30,000 square feet at up to seven registered premises. A minimum of 24,000 square feet must be equipped for cultivation. (ii) As used in this subsection (4)(b), "equipped for cultivation" means that the space is either ready for cultivation or in use for cultivation. (c) An adult-use provider or adult-use marijuana-infused products provide) who has reached capacity under the existing license may apply to advance to the next licensing tier. The department: (i) may increase a licensure level by only one tier at a time; and (ii) shall conduct an inspection of the adult-use provider or adult-use marijuana-infused products provider's registered premises and proposed premises within 30 days of receiving the application and before approving the application. (d) The department may create additional licensing tiers by rule if a provider with a tier 10 canopy license petitions the department to create a new licensure level and: (i) the producer or provider demonstrates that the licensee is using the full amount of canopy currently authorized; and 206 67th Legislature HB 701 - 52 - Authorized Print Version – HB 701 ENROLLED BILL (ii) the tracking system shows the licensee is selling at least 80% of the marijuana or marijuana-infused products produced by the square footage of the licensee's existing license over the 2 previous quarters or the licensee can otherwise demonstrate to the department that there is a market for the marijuana or marijuana- infused products it seeks to produce. (e) The department is authorized to create additional tiers as necessary, including an adjusted tier system to account for outdoor cultivation. (f) The registered premises limitations for each tier of licensing apply only to registered premises at which marijuana is cultivated. The limitations do not apply to the number of adult-use dispensaries an adult-use provider or adult-use marijuana-infused products provider may have. (g) The department shall require evidence that the licensee is able to successfully cultivate the minimum amount of space allowed for the tier and sell the amount of marijuana produced by the minimum cultivation level before allowing a licensee to move up a tier. Annual licensing fees must be prorated based on the time licensed at a specific tier if less than 1 year. (h) No person may be initially licensed greater than a tier 2 unless the person is purchasing a business licensed at a tier higher than tier 2 or the person is already licensed at higher than tier 2 under Title 50, chapter 46, part 3, and is applying for the equivalent size tier under this chapter." Section 41. Section 16-12-106, MCA, is amended to read: "16-12-106. Personal use and cultivation of marijuana -- penalties. (1) Subject to the limitations in 16-12-108, the following acts are lawful and may not be an offense under state law or the laws of any local government within the state, be a basis to impose a civil fine, penalty, or sanction, or be a basis to detain, search, or arrest, or otherwise deny any right or privilege, or to seize or forfeit assets under state law or the laws of any local government for a person who is 21 years of age or older: (a) possessing, purchasing, obtaining, using, ingesting, inhaling, or transporting 1 ounce or less of usable marijuana, except that not more than 8 grams may be in a concentrated form and not more than 800 milligrams of THC may be in edible marijuana products meant to be eaten or swallowed in solid form; (b) transferring, delivering, or distributing without consideration, to a person who is 21 years of age or older, 1 ounce or less of usable marijuana, except that not more than 8 grams may be in a concentrated form 207 67th Legislature HB 701 - 53 - Authorized Print Version – HB 701 ENROLLED BILL and not more than 800 milligrams of THC may be in edible marijuana products meant to be eaten or swallowed in solid form; (c) in or on the grounds of a private residence, possessing, planting, or cultivating up to four two mature marijuana plants and four two seedlings, or four mature marijuana plants and four seedlings for a registered cardholder, and possessing, harvesting, drying, processing, or manufacturing the marijuana, provided that: (i) marijuana plants and any marijuana produced by the plants in excess of 1 ounce must be kept in a locked space in or on the grounds of one private residence and may not be visible by normal, unaided vision from a public place; (ii) not more than twice the number of marijuana plants permitted under this subsection (1)(c) may be cultivated in or on the grounds of a single private residence simultaneously; (iii) a person growing or storing marijuana plants under this subsection (1)(c) must own the private residence where the plants are cultivated and stored or obtain written permission to cultivate and store marijuana from the owner of the private residence; and (iv) no portion of a private residence used for cultivation of marijuana and manufacture of marijuana- infused marijuana products for personal use may be shared with, rented, or leased to an adult-use provider or an adult-use marijuana-infused products provider a marijuana business; (d) assisting another person who is at least 21 years of age in any of the acts permitted by this section, including allowing another person to use one's personal residence for any of the acts described in this section; and (e) possessing, purchasing, using, delivering, distributing, manufacturing, transferring, or selling to persons 18 years of age or older paraphernalia relating to marijuana. (2) A person who cultivates marijuana plants that are visible by normal, unaided vision from a public place in violation of subsection (1)(c)(i) is subject to a civil fine not exceeding $250 and forfeiture of the marijuana. (3) A person who cultivates marijuana plants or stores marijuana outside of a locked space is subject to a civil fine not exceeding $250 and forfeiture of the marijuana. (4) A person who smokes marijuana in a public place, other than in an area licensed for that activity 208 67th Legislature HB 701 - 54 - Authorized Print Version – HB 701 ENROLLED BILL by the department, is subject to a civil fine not exceeding $50. (5) For a person who is under 21 years of age and is not a registered cardholder, possession, use, ingestion, inhalation, transportation, delivery without consideration, or distribution without consideration of 1 ounce or less of marijuana is punishable by forfeiture of the marijuana and the underage person's choice between: (a) a civil fine not to exceed $100; or (b) up to 4 hours of drug education or counseling in lieu of the fine. (6) For a person who is under 18 years of age and is not a registered cardholder, possession, use, transportation, delivery without consideration, or distribution without consideration of marijuana paraphernalia is punishable by forfeiture of the marijuana paraphernalia and the underage person's choice between: (a) a civil fine not to exceed $100; or (b) up to 4 hours of drug education or counseling in lieu of the fine. (7) Unless otherwise permitted under the provisions of Title 50, chapter 46, part 3 [sections 9 through 23], the possession, production, delivery without consideration to a person 21 years of age or older, or possession with intent to deliver more than 1 ounce but less than 2 ounces of marijuana or more than 8 grams but less than 16 grams of marijuana in a concentrated form is punishable by forfeiture of the marijuana and: (a) for a first violation, the person's choice between a civil fine not exceeding $200 or completing up to 4 hours of community service in lieu of the fine; (b) for a second violation, the person's choice between a civil fine not exceeding $300 or completing up to 6 hours of community service in lieu of the fine; (c) for a third or subsequent violation, the person's choice between a civil fine not exceeding $500 or completing up to 8 hours of community service in lieu of the fine; and (d) for a person under 21 years of age, the person's choice between a civil fine not to exceed $200 or attending up to 8 hours of drug education or counseling in lieu of the fine. (8) A person may not be denied adoption, custody, or visitation rights relative to a minor solely for conduct that is permitted by this chapter. (9) A person may not be denied access to or priority for an organ transplant or denied access to health care solely for conduct that is permitted by this chapter. 209 67th Legislature HB 701 - 55 - Authorized Print Version – HB 701 ENROLLED BILL (10) A person currently under parole, probation, or other state supervision or released awaiting trial or other hearing may not be punished or otherwise penalized solely for conduct that is permitted by this chapter. (11) A holder of a professional or occupational license may not be subjected to professional discipline for providing advice or services arising out of or related to conduct that is permitted by this chapter solely on the basis that marijuana is prohibited by federal law. (12) It is the public policy of the state of Montana that contracts related to the operation of licensees be enforceable. (8) A person may not be denied adoption, custody, or visitation rights relative to a minor solely for conduct that is permitted by this chapter. (9) A person may not be denied access to or priority for an organ transplant or denied access to health care solely for conduct that is permitted by this chapter." Section 42. Section 16-12-107, MCA, is amended to read: "16-12-107. (Effective October 1, 2021 January 1, 2022) Legal protections -- allowable amounts. (1) An adult-use provider or adult-use marijuana-infused products provider A cultivator may have the canopy allotment allowed by the department. The canopy allotment is a cumulative total for all of the adult-use provider's or adult-use marijuana-infused products provider's registered premises. (2) Except as provided in 16-12-108, a person licensed under this chapter may not be arrested, prosecuted, penalized, or denied any right or privilege, including but not limited to civil fine or disciplinary action by a professional licensing board or the department of labor and industry, solely because the person cultivates, manufactures, possesses, or transports marijuana in the amounts and manner allowed under this chapter. (3) A person may not be arrested or prosecuted for possession, conspiracy as provided in 45-4-102, or any other offense solely for being in the presence or vicinity of the use of marijuana and marijuana-infused marijuana products as permitted under this chapter. (4) Except as provided in 16-12-210, possession of or application for a license does not solely constitute probable cause to search a person or the property of a person or otherwise subject a person or property of a person to inspection by any governmental agency, including a law enforcement agency. (5) The provisions of this section relating to protection from arrest or prosecution do not apply to a 210 67th Legislature HB 701 - 56 - Authorized Print Version – HB 701 ENROLLED BILL person unless the person has obtained a license prior to an arrest or the filing of a criminal charge. It is not a defense to a criminal charge that a person obtains a license after an arrest or the filing of a criminal charge. (6) An adult-use provider or adult-use marijuana-infused products provider A cultivator or manufacturer is presumed to be engaged in the use of marijuana as allowed by this chapter if the person is in possession of an amount of marijuana that does not exceed the amount permitted under this chapter." Section 43. Section 16-12-108, MCA, is amended to read: "16-12-108. Limitations of act. (1) This chapter does not permit: (a) any individual to operate, navigate, or be in actual physical control of a motor vehicle, train, aircraft, motorboat, or other motorized form of transport while under the influence of marijuana or marijuana products; (b) consumption of marijuana or marijuana products while operating or being in physical control of a motor vehicle, train, aircraft, motorboat, or other motorized form of transport while it is being operated; (c) smoking or consuming marijuana while riding in the passenger seat within an enclosed compartment of a motor vehicle, train, aircraft, motorboat, or other motorized form of transport while it is being operated; (d) delivery or distribution of marijuana or marijuana products, with or without consideration, to a person under 21 years of age; (e) purchase, consumption, or use of marijuana or marijuana products by a person under 21 years of age; (f) possession or transport of marijuana or marijuana products by a person under 21 years of age unless the underage person is at least 18 years of age and is an employee of an adult-use provider, adult-use marijuana-infused products provider, or adult-use dispensary a marijuana business licensed under this chapter and engaged in work activities; (g) possession or consumption of marijuana or marijuana products, or possession of marijuana paraphernalia: (i) on the grounds of any property owned or leased by a school district, a public or private preschool, school, or postsecondary school as defined in 20-5-402; 211 67th Legislature HB 701 - 57 - Authorized Print Version – HB 701 ENROLLED BILL (ii) in a school bus or other form of public transportation; (iii) in a health care facility as defined in 50-5-101; or (iv) on the grounds of any correctional facility; or (v) in a hotel or motel room; (h) smoking using marijuana or marijuana products in a location where smoking tobacco is prohibited; (i) consumption of marijuana or marijuana products in a public place, except as allowed by the department; (j) conduct that endangers others; (k) undertaking any task while under the influence of marijuana or marijuana products if doing so would constitute negligence or professional malpractice; or (l) performing solvent-based extractions on marijuana using solvents other than water, glycerin, propylene glycol, vegetable oil, or food-grade ethanol unless licensed for this activity by the department. (2) A person may not cultivate marijuana in a manner that is visible from the street or other public area. (3) A hospice or residential care facility licensed under Title 50, chapter 5, may adopt a policy that allows use of marijuana by a registered cardholder. (2)(4) Nothing in this chapter may be construed to: (a) require an employer to permit or accommodate conduct otherwise allowed by this chapter in any workplace or on the employer's property; (b) prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while intoxicated by marijuana or marijuana products; (c) prevent an employer from declining to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment because of the individual's violation of a workplace drug policy or intoxication by marijuana or marijuana products while working; (d) prohibit an employer from including in any contract a provision prohibiting the use of marijuana for a debilitating medical condition; or (e) permit a cause of action against an employer for wrongful discharge pursuant to 39-2-904 or 212 67th Legislature HB 701 - 58 - Authorized Print Version – HB 701 ENROLLED BILL discrimination pursuant to 49-1-102. (3)(5) Nothing in this chapter may be construed to prohibit a person from prohibiting or otherwise regulating the consumption, cultivation, distribution, processing, sale, or display of marijuana, marijuana-infused marijuana products, and marijuana paraphernalia on private property the person owns, leases, occupies, or manages, except that a lease agreement executed after January 1, 2021, may not prohibit a tenant from lawfully possessing and consuming marijuana by means other than smoking unless required by federal law or to obtain federal funding, except that a lease agreement executed after January 1, 2021, may not prohibit a tenant from lawfully possessing and consuming marijuana by means other than smoking unless required by federal law or to obtain federal funding. (4) Nothing in this chapter limits the rights, privileges, immunities, or defenses provided under Title 50, chapter 46, part 3. (5)(6) An adult-use provider or adult-use marijuana-infused products provider A licensee who violates 15-64-103 or 15-64-104 or fails to pay any other taxes owed to the department under Title 15, is subject to revocation of the person's license from the date of the violation until a period of up to 1 year after the department of revenue certifies compliance with 15-64-103 or 15-64-104. (7) Unless specifically exempted by this chapter, the provisions of Title 45, chapter 9, apply to the conduct of consumers, licensees, and registered cardholders." Section 44. Section 16-12-109, MCA, is amended to read: "16-12-109. (Effective October 1, 2021 January 1, 2022) Unlawful conduct by licensees -- penalties. (1) If the department has reasonable cause to believe that a licensee has violated a provision of this chapter or a rule of the department, it may, in its discretion and in addition to any other penalties prescribed: (a) reprimand a licensee; (b) revoke the license of the licensee; (c) suspend the license for a period of not more than 3 months; (d) refuse to grant a renewal of the license after its expiration; or (e) impose a civil penalty not to exceed $3,000. (2) The department shall consider mitigating circumstances and may adjust penalties within penalty 213 67th Legislature HB 701 - 59 - Authorized Print Version – HB 701 ENROLLED BILL ranges based on its consideration of mitigating circumstances. Examples of mitigating circumstances are: (a) compliance with the provisions of this chapter within the prior 3 years; (b) the licensee has made good faith efforts to prevent a violation; or (c) the licensee has cooperated in the investigation of the violation and the licensee or an employee or agent of the licensee accepts responsibility. (3) The department shall consider aggravating circumstances and may adjust penalties within penalty ranges based on its consideration of aggravating circumstances. Examples of aggravating circumstances are: (a) prior warnings about compliance problems; (b) prior violations of the provisions of this chapter within the past 3 years; (c) lack of written policies governing employee conduct; (d) additional violations revealed during the course of the investigation; (e) efforts to conceal a violation; (f) intentional violations; or (g) involvement of more than one patron or employee in a violation. (4) For each licensing program regulated by the department under this chapter, the department is designated as a criminal justice agency within the meaning of 44-5-103 for the purpose of obtaining confidential criminal justice information regarding licensees and license applicants and regarding possible unlicensed practice. (1)(5) The department shall revoke and may not reissue a license or endorsement belonging to an individual who a person: (a) whose controlling beneficial owner is an individual convicted of a felony drug offense; (b) who allows another individual person not authorized or lawfully allowed to be in possession of the individual's license; or (c) fails to cooperate with the department concerning an investigation or inspection if the individual is licensed and cultivating marijuana, engaging in manufacturing, or manufacturing marijuana-infused products. (c) who transports marijuana or marijuana products outside of Montana, unless otherwise allowed by federal law; (d) who operates a carbon dioxide or hydrocarbon extraction system without obtaining a 214 67th Legislature HB 701 - 60 - Authorized Print Version – HB 701 ENROLLED BILL manufacturing license; (e) who purchases marijuana from an unauthorized source in violation of this chapter; or (f) who sells, distributes, or transfers marijuana or marijuana products to a person the licensee knows or should know is under 21 years of age. (2) The department shall revoke a license issued under this chapter if the licensee: (a) purchases marijuana from an unauthorized source in violation of this chapter; (b) sells marijuana, marijuana concentrate, or marijuana-infused products to a person the licensee knows or should know is under 21 years of age; (c) operates a carbon dioxide or hydrocarbon extraction system without obtaining a manufacturing endorsement; or (d) transports marijuana or marijuana-infused products outside of Montana, unless allowed by federal law. (3) A licensee who violates the advertising restrictions imposed under 16-12-211 is subject to: (a) a written warning for the first violation; (b) a 5-day license suspension or a $500 fine for a second violation; (c) a 5-day license suspension or a $1,000 fine for a third violation; (d) a 30-day license suspension or a $2,500 fine for a fourth violation; and (e) a license revocation for a fifth violation. (4) Except for the license revocations required under this section, a licensee shall choose whether to pay a fine or be subject to a license suspension when a penalty is imposed under this section. (5)(6) A licensee whose license is revoked may not reapply for licensure for 3 years from the date of the revocation. (6) If no other penalty is specified under this chapter, an adult-use provider or adult-use marijuana- infused products provider who violates this chapter is punishable by a civil fine not to exceed $500, unless otherwise provided in this chapter or unless the violation would constitute a violation of Title 45. An offense constituting a violation of Title 45 must be charged and prosecuted pursuant to the provisions of Title 45. (7) Review of a department action imposing a fine, suspension, or revocation under this chapter must be conducted as a contested case hearing before the department's office of dispute resolution under the 215 67th Legislature HB 701 - 61 - Authorized Print Version – HB 701 ENROLLED BILL provisions of the Montana Administrative Procedure Act. (a) A person may appeal any decision of the department concerning the issuance, rejection, suspension, or revocation of a license provided for by this chapter to the district court in the county in which the person operates or proposes to operate. If a person operates or seeks to operate in more than one county, the person may seek judicial review in the district court with jurisdiction over actions arising in any of the counties where it operates or seeks to operate. (b) An appeal pursuant to subsection (7)(a) shall be made by filing a complaint setting forth the grounds for relief and the nature of relief demanded with the district court within 30 days following receipt of notice of the department's final decision." Section 45. Section 16-12-110, MCA, is amended to read: "16-12-110. (Effective October 1, 2021 January 1, 2022) Legislative monitoring. (1) The revenue interim economic affairs committee shall provide oversight of the department's activities pursuant to this chapter, including but not limited to monitoring of: (a) the number of licensees; (b) issues related to the cultivation, manufacture, sale, testing, and use of marijuana; and (c) the development, implementation, and use of the seed-to-sale tracking system established in accordance with 16-12-105. (2) The revenue economic affairs interim committee shall identify issues likely to require future legislative attention and develop legislation to present to the next regular session of the legislature. (3) (a) The department shall periodically report to the revenue economic affairs interim committee and submit a report to the legislative clearinghouse, as provided in 5-11-210, on persons who are licensed or registered pursuant to 16-12-203. The report must include: (i) the number of adult-use providers, adult-use marijuana-infused products providers, cultivators, manufacturers, and adult-use dispensaries licensed pursuant to this chapter; (ii) the number of endorsements approved for manufacturing and type of violations committed by licensees; (iii) the number of licenses revoked; and 216 67th Legislature HB 701 - 62 - Authorized Print Version – HB 701 ENROLLED BILL (iv) the amount of marijuana and marijuana products cultivated and sold pursuant to this chapter. (b) The report may not provide any identifying information of adult-use providers, adult-use marijuana- infused products providers, or adult-use cultivators, manufacturers, and dispensaries except basic geographic or other statistical information. (4) The report on inspections required under 16-12-210 must include, at a minimum, the following information for both announced and unannounced inspections: (a) the number of inspections conducted, by canopy licensure tier; (b) the number of adult-use providers or adult-use marijuana-infused products providers licensees that were inspected more than once during the year; (c) the number of inspections that were conducted because of complaints made to the department; and (d) the types of enforcement actions taken as a result of the inspections. (5) The reports provided for in this section must also be provided to the transportation interim committee provided for in 5-5-233." Section 46. Section 16-12-111, MCA, is amended to read: "16-12-111. (Effective October 1, 2021) Marijuana compensation state special revenue account -- operating reserve -- transfer of excess funds. (1) There is a dedicated marijuana compensation state special revenue account within the state special revenue fund established in 17-2-102, to be administered by the department. (2) The account consists of: (a) money deposited into the account pursuant to this chapter; (b) the taxes collected pursuant to Title 15, chapter 64, part 1; (c) license and registered cardholder fees deposited into the account pursuant to this chapter; (d) taxes deposited into the account pursuant to [section 95]; and (e) civil penalties collected under this chapter. (3) Except as provided in subsection (4), money in the account must be used by the department for the purpose of administering the provisions of this chapter. 217 67th Legislature HB 701 - 63 - Authorized Print Version – HB 701 ENROLLED BILL (4) At the end of each fiscal year, the department shall transfer funds in excess of a 3-month operating reserve necessary to fund operating costs at the beginning of the next fiscal year in the following order: (a) an amount not to exceed $6 million must be transferred to the marijuana healing and ending addiction through recovery and treatment (HEART) fund account established in 17-6-606 [section 100]; (b) the net balance remaining after distribution to the HEART fund account must be distributed as follows: (i) 20% to the credit of the department of fish, wildlife, and parks to be used solely as funding for wildlife habitat in the same manner as funding generated under 87-1-242(3) and used pursuant to 87-1-209; (ii) 4% to the state park account established in 23-1-105(1); (iii) 4% to the trails and recreational facilities account established in 23-2-108; (iv) 4% to the nongame wildlife account established in 87-5-121; (v) 3% or $200,000, whichever is less, to the veterans and surviving spouses state special revenue account provided for in [section 93]; (vi) for the biennium beginning July 1, 2021, $300,000 to the department of justice to administer grant funding to local and state law enforcement agencies for the purpose of purchasing and training drug-detection canines and canine handlers, including canines owned by local law enforcement agencies to replace canines who were trained to detect marijuana; (vii) $150,000 to the board of crime control to fund crisis intervention team training as provided in 44-7- 110; and (viii) the remainder to the general fund. (2) Marijuana sales taxes collected under the provisions of part 4 of this chapter must, in accordance with the provisions of17-2-124, be deposited into the account along with any interest and income earned on the account. (3) Funds deposited into the account must be transferred in the following amounts to provide funding as set out below: (a) 4.125% of the funds to be deposited into the nongame wildlife account established in 87-5-121; (b) 4.125% of the funds to be deposited into the state park account established in 23-1-105(1); 218 67th Legislature HB 701 - 64 - Authorized Print Version – HB 701 ENROLLED BILL (c) 4.125% of the funds to be deposited into the trails and recreational facilities account established in 23-2-108; (d) 37.125% of the funds to be deposited to the credit of the department of fish, wildlife, and parks to be used solely as funding for wildlife habitat in the same manner as funding generated under 87-1-242(3) and used pursuant to 87-1-209; (e) 10.5% to the state general fund; and (f) the remainder in the subaccounts provided for in this subsection (3)(f). There are subaccounts in the marijuana compensation special revenue account established by subsection (1). Funding deposited into this account under subsection (2) is further deposited into subaccounts to be used only as follows: (i) 10% of the funds to be deposited into a subaccount to be administered by the department of public health and human services to provide grants to existing agencies and not-for-profit organizations, whether government or community-based, to increase access to evidence-based low-barrier drug addiction treatment, prioritizing medically proven treatment and overdose prevention and reversal methods and public or private treatment options with an emphasis on reintegrating recipients into their local communities, to support overdose prevention education, and to support job placement, housing, and counseling for those with substance use disorders; (ii) 10% of the funds to be deposited into a subaccount to be administered by the department of commerce for distribution to the local government representing the locality where the retail sales occurred; (iii) 10% of the funds to be deposited into a subaccount to be administered by the veterans' affairs division of the department of military affairs to provide services and assistance for all Montana veterans and surviving spouses and dependents; and (iv) 10% of the funds to be deposited into a subaccount to be administered by the Montana department of public health and human services to administer medicaid rate increases that provide for a wage increase to health care workers who provide direct medicaid-funded home and community health services for elderly and disabled persons. (4) (a) Funds transferred from the accounts and subaccounts provided in subsection (3) may be used only to increase revenue for the purposes specified and may not be used to supplant other sources of revenue used for these purposes. 219 67th Legislature HB 701 - 65 - Authorized Print Version – HB 701 ENROLLED BILL (b) Funds deposited into the account provided in subsection (1) may be used only to increase revenue to each special revenue account or subaccount set forth in subsection (3) and may not be used to supplant other sources of revenue for these purposes." Section 47. Section 16-12-112, MCA, is amended to read: "16-12-112. (Effective October 1, 2021 January 1, 2022) Rulemaking authority -- fees. (1) The department may adopt rules to implement and administer this chapter, including: (a) the manner in which the department will consider applications for licenses, permits, and endorsements and renewal of licenses, permits, and endorsements; (b) the acceptable forms of proof of Montana residency; (c) the procedures for obtaining fingerprints for the fingerprint-based and name-based background checks required under 16-12-203 [section 2]; (d) the security and operating requirements for adult-use dispensaries licensees; (e) the security and operating requirements for manufacturing, including but not limited to requirements for: (i) safety equipment; (ii) extraction methods, including solvent-based and solvent-free extraction; and (iii) post-processing procedures; (f) notice and contested case hearing procedures for fines or license and endorsement revocations, suspensions, or modifications; (g) implementation of a system to allow the tracking of marijuana and marijuana-infused marijuana products as required by 16-12-105; (h) labeling and packaging standards that protect public health by requiring the listing of pharmacologically active ingredients, including, but not limited to, tetrahydrocannabinol (THC) THC, cannabidiol (CBD) and other cannabinoid content, the THC and other cannabinoid amount in milligrams per serving, the number of servings per package, and quantity limits per sale to comply with the allowable possession amount; (i) investigating and making rules to limit, if necessary, the appropriate THC potency percentages for marijuana and marijuana products; 220 67th Legislature HB 701 - 66 - Authorized Print Version – HB 701 ENROLLED BILL (i)(j) requirements that packaging and labels may not be made to be attractive to children, required warning labels as set forth in [section 109], and that marijuana and marijuana-infused marijuana products be sold in resealable, child-resistant exit packaging to protect public health as provided in 16-12-208; (j)(k) requirements and standards for the testing and retesting of marijuana and marijuana-infused marijuana products, including testing of samples collected during the department's inspections of registered licensed premises; (k)(l) the amount of variance allowable in the results of raw testing data that would warrant a departmental investigation of inconsistent results as provided in 16-12-202; (l)(m) requirements and standards to prohibit or limit marijuana, marijuana-infused marijuana products, and marijuana accessories that are unsafe or contaminated; (m)(n) the activities that constitute advertising in violation of 16-12-211; (n)(o) requirements and incentives to promote renewable energy, reduce water usage, and reduce packaging waste to maintain a clean and healthy environment in Montana; (p) procedures for collecting and destroying samples of marijuana and marijuana products that fail to meet testing requirements pursuant to 16-12-209; and (o)(q) the fees for endorsements for manufacturing, testing laboratories, additional canopy licensure tiers created in accordance with 16-12-105, and the fingerprint-based and name-based background checks required under 16-12-203 [section 2], employee certification, the marijuana transporter license, marijuana worker permits, and other fees necessary to administer and enforce the provisions of this chapter. The fees and other revenue collected through the taxes paid under 16-12-401 established by the department, taxes collected pursuant to Title 15, chapter 64, part 1, civil penalties imposed pursuant to this chapter, and the licensing fees established by rule and in 16-12-201 part 2 of this chapter must be sufficient to offset the expenses of administering this chapter but may not exceed the amount necessary to cover the costs to the department of implementing and enforcing this chapter. (2) The department may not adopt any rule or regulation that is unduly burdensome or undermines the purposes of this chapter. (3) The department may consult or contract with other public agencies in carrying out its duties under this chapter." 221 67th Legislature HB 701 - 67 - Authorized Print Version – HB 701 ENROLLED BILL Section 48. Section 16-12-113, MCA, is amended to read: "16-12-113. Decriminalized acts -- petition for expungement or resentencing -- retroactive application. (1) A person currently serving a sentence for an act that is permitted under this chapter or is punishable by a lesser sentence under this chapter than the person was awarded may petition for an expungement of the conviction or resentencing. (2) Upon receiving a petition under subsection (1), the expungement or resentencing of marijuana conviction court, as provided in [sections 101 through 103], shall presume the petitioner satisfies the criteria in subsection (1) unless the county attorney proves by clear and convincing evidence that provides the court with a reasonable basis on which the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in subsection (1), the court shall grant the petition unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety. (3) A person who is serving a sentence and is resentenced pursuant to subsection (1) must be given credit for any time already served and may not be subject to supervision. (4) Resentencing under this section may not result in the imposition of a term longer than the original sentence or the reinstatement of charges dismissed pursuant to a negotiated plea agreement. (5) (a) A person who has completed a sentence for an act that is permitted under this chapter or is punishable by a lesser sentence under this chapter than the person was awarded may petition the sentencing court to: (i) expunge the conviction; or (ii) redesignate the conviction as a misdemeanor or civil infraction in accordance with this chapter. (b) The petition must be served on the county attorney for the county where the petition is filed. (6) Upon receiving a petition under subsection (5), the court shall presume the petitioner satisfies the criteria in subsection (5) unless the county attorney proves by clear and convincing evidence that provides the court with a reasonable basis on which the petitioner does not satisfy the criteria. Once the applicant satisfies the criteria in subsection (5), the court shall redesignate the conviction as a misdemeanor or civil infraction or expunge the conviction as legally invalid pursuant to this chapter. (7) Unless requested by the applicant, no hearing is necessary to grant or deny an application filed 222 67th Legislature HB 701 - 68 - Authorized Print Version – HB 701 ENROLLED BILL under subsection (5). (8) Any felony conviction that is recalled under subsection (1) or designated as a misdemeanor or civil infraction under subsection (5) must be considered a misdemeanor or civil infraction for all purposes. Any misdemeanor conviction that is recalled and resentenced under subsection (1) or designated as a civil infraction under subsection (5) must be considered a civil infraction for all purposes. (9) Nothing in this section constitutes a waiver of any right or remedy otherwise available to the petitioner or applicant. (10) Nothing in this chapter is intended to impact the finality of judgment in any case not falling within the purview of this chapter. (11) The provisions of this section apply equally to juvenile cases if the juvenile would not have been guilty of an offense or would have been guilty of a lesser offense under this chapter. (12) Petitioning for expungement or resentencing pursuant to this section does not make a person ineligible to petition for misdemeanor expungement pursuant to Title 46, chapter 18, part 11." Section 49. Section 16-12-201, MCA, is amended to read: "16-12-201. (Effective October 1, 2021 Effective January 1, 2022) Licensing of providers, marijuana-infused products providers, and dispensaries for adult use cultivators, manufacturers, and dispensaries. No later than October 1, 2021, the department shall promulgate rules and regulations to administer and enforce this chapter and shall begin accepting applications for and issuing licenses. The rules may not be unduly burdensome. For the first 12 months after the department begins to receive applications, (1) (a) Between January 1, 2022, and June 30, 2023, the department shall may only accept applications from and issue licenses to providers, marijuana-infused products providers, and dispensaries licensed under Title 50, chapter 46, part 3, that are former medical marijuana licensees that were licensed by or had an application pending with the department of public health and human services on November 3, 2020, and are in good standing with the department of public health and human services and in compliance with this chapter, and rules adopted by the department, and any applicable local regulations or ordinances as of [the effective date of this section]. (b) The department shall begin accepting applications for and issuing licenses to cultivate, 223 67th Legislature HB 701 - 69 - Authorized Print Version – HB 701 ENROLLED BILL manufacture, or sell marijuana or marijuana products to applicants who are not former medical marijuana licensees under subsection (1)(a) on or after July 1, 2023. (2) (a) The department shall adopt rules to govern the operation of former medical marijuana licensees and facilitate the process of transitioning former medical marijuana licensees to the appropriate license under this chapter with a minimum of disruption to business operations. (b) Beginning on January 1, 2022, a former medical marijuana licensee may sell marijuana and marijuana products to registered cardholders at the medical tax rate set forth in 15-64-102 and to consumers at the adult-use marijuana tax rate set forth in 15-64-102 under the licensee's existing license in a jurisdiction that allows for the operation of marijuana businesses pursuant to 16-12-301 until the former medical marijuana licensee's next license renewal date, by which time the former medical licensee must have applied for and obtained the appropriate licensure under this chapter to continue operations, unless an extension of time is granted by the department. (c) (i) Except as provided in subsection (2)(c)(ii), for the purpose of this subsection (2), "appropriate licensure" means a cultivator license, medical marijuana dispensary license, adult-use dispensary license, and, if applicable, a manufacturer license. (ii) A former medical marijuana licensee who sells marijuana and marijuana products exclusively to registered cardholders is not required to obtain an adult-use dispensary license. (3) 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 may be prorated by the department." Section 50. Section 16-12-202, MCA, is amended to read: "16-12-202. (Effective October 1, 2021 January 1, 2022) Testing laboratories -- licensing -- inspection -- dual licensure -- state laboratory responsibility. (1) (a) A person who obtains a testing laboratory license or is an employee of a licensed testing laboratory is authorized to possess and test marijuana as allowed by this chapter. (b) A person who is a controlling beneficial owner of a testing laboratory or holds a financial interest in 224 67th Legislature HB 701 - 70 - Authorized Print Version – HB 701 ENROLLED BILL a licensed testing laboratory may not be a controlling beneficial owner or have a financial interest in any entity involved in the cultivation, manufacture, or sale of marijuana or marijuana products for whom testing services are performed. (2)(1) (a) The state laboratory shall license endorse a testing laboratories laboratory to perform the testing required under 16-12-206 and 16-12-209 before a testing laboratory may apply for licensure or renewal with the department. (b) (i) The state laboratory shall inspect a testing laboratory before issuing or renewing a license endorsing a testing laboratory for licensure or renewal and may not issue or renew a license endorse a testing laboratory for licensure or renewal if the applicant does not meet the requirements of 16-12-206 and this section. (ii) The state laboratory may not issue a temporary license while an inspection is pending. (iii) Inspections conducted under this section must include the review provided for in 50-46-311(1)(b). (3) An inspection conducted for licensure or renewal of a license must include a review of an applicant's or testing laboratory's: (a) physical premises where testing will be conducted; (b) instrumentation; (c) protocols for sampling, handling, testing, reporting, security and storage, and waste disposal; (d) raw data on tests conducted by the laboratory, if the inspection is for renewal of a license; and (e) vehicles used for transporting marijuana or marijuana product samples for testing purposes. (4) Upon receiving an endorsement from the state laboratory for licensure or annual renewal, a testing laboratory must apply for licensure, or renewal, with the department by submitting to the department: (a) the information required by 16-12-203; and (b) a fee that the department shall establish by rule. (2)(5) The state laboratory shall: (a) use the criteria established under 50-46-311 in evaluating and approving licenses issued under this section; (b) use the criteria established under 50-46-304(6) to establish and enforce standard operating procedures and testing standards for testing laboratories to ensure that consumers receive consistent and 225 67th Legislature HB 701 - 71 - Authorized Print Version – HB 701 ENROLLED BILL uniform information about the potency and quality of the marijuana and marijuana-infused products they receive; and (c) investigate inconsistent test results using the procedure provided for in 50-46-304(7). (a) measure the tetrahydrocannabinol, tetrahydrocannabinolic acid, cannabidiol, and cannabidiolic acid content of marijuana and marijuana products; (b) test marijuana and marijuana products for pesticides, solvents, moisture levels, mold, mildew, and other contaminants; and (c) establish and enforce standard operating procedures and testing standards for testing laboratories to ensure that consumers and registered cardholders receive consistent and uniform information about the potency and quality of the marijuana and marijuana products they receive. The state laboratory shall: (i) consult with independent national or international organizations that establish testing standards for marijuana and marijuana products; (ii) require testing laboratories to follow uniform standards and protocols for the samples accepted for testing and the processes used for testing the samples; and (iii) track and analyze the raw data for the results of testing conducted by testing laboratories to ensure that the testing laboratories are providing consistent and uniform results. (6) The department may retain the services of the analytical laboratory provided by the department of agriculture pursuant to 80-1-104 for the testing contemplated in this section. (3)(7) If an analysis of raw testing data indicates that licensees are providing test results that vary among testing laboratories by an amount determined by the state laboratory by rule, the department shall investigate the inconsistent results and determine within 60 days the steps the testing laboratories must take to ensure that each testing laboratory provides accurate and consistent results. (4)(8) If the analysis of raw testing data indicates a testing laboratory may be providing inconsistent results, the state laboratory shall may suspend the testing laboratory's license until additional testing determines whether the results are consistent. A suspension must be based on rules adopted by the state laboratory. (5)(9) The state laboratory department shall revoke a testing laboratory's license upon a determination that the laboratory is: 226 67th Legislature HB 701 - 72 - Authorized Print Version – HB 701 ENROLLED BILL (a) providing test results that are fraudulent or misleading; or (b) providing test results without having: (i) the equipment needed to test marijuana, marijuana concentrates, or marijuana-infused marijuana products; or (ii) the equipment required under this chapter to conduct the tests for which the laboratory is providing results. (6)(10) A revocation under this section is subject to judicial review. (7) The state laboratory: (a) may license a testing laboratory to perform both the testing required under this chapter and under Title 50, chapter 46; and (b) shall use the same administrative rules for testing laboratories licensed under this chapter and under Title 50, chapter 46." Section 51. Section 16-12-203, MCA, is amended to read: "16-12-203. (Effective October 1, 2021 January 1, 2022) Provider Licensing types -- requirements -- limitations -- activities. (1) (a) Subject to subsections (1)(b) and subsection (3) and this subsection (1), the department shall issue a license to or renew a license for a person who is applying to be an adult-use provider or adult-use marijuana-infused products provider a cultivator, manufacturer, medical- marijuana dispensary, adult-use dispensary, or testing laboratory if the person submits to the department: (i) the person's name, date of birth, and street address on a form prescribed by the department; (ii) proof that the natural person having day-to-day operational control over the business is a Montana resident; (iii) fingerprints meeting the requirements for a fingerprint-based background check by the department of justice and the federal bureau of investigation: (A) with the application for initial licensure; and (B) every 3 years thereafter; (iv)(iii) a statement, on a form prescribed by the department, that the person: (A) will not divert to any other person the marijuana that the person cultivates or the marijuana- 227 67th Legislature HB 701 - 73 - Authorized Print Version – HB 701 ENROLLED BILL infused marijuana products that the person manufactures for consumers or registered cardholders, unless the marijuana or marijuana-infused marijuana products are sold to another adult-use provider or licensee as part of a sale of a business as allowed under this section; and (B) has no pending citations for violations occurring under this chapter or the marijuana laws of any other state or jurisdiction; (v)(iv) the street address of the location at which marijuana, marijuana concentrates, or marijuana- infused marijuana products will be cultivated, or manufactured, sold, or tested; and (vi) a fee as determined by the department not to exceed the costs of required background checks and associated administrative costs of processing the license. (v) proof that the applicant has source of funding from a suitable source. A lender or other source of money or credit may be found unsuitable if the source: (A) is a person whose prior financial or other activities or criminal record: (B) poses a threat to the public interest of the state; (C) poses a threat to the effective regulation and control of marijuana and marijuana products; or (D) creates a danger of illegal practices, methods, or activities in the conduct of the licensed business. (b) If the person to be licensed consists of more than one individual, the names of all owners must be submitted along with the fingerprints and date of birth of each owner having at least a 5% controlling beneficial ownership interest. (c) Nonindividuals who apply for the issuance of a marijuana business license shall disclose to the department the following: (i) a complete and accurate organizational chart of the marijuana business disclosing the identity and ownership percentages of its controlling beneficial owners; (ii) whether the applicant has ever filed for bankruptcy; (iii) whether the applicant has ever been a party to a lawsuit, either as a plaintiff or defendant; (iv) any financial interests held by the applicant in another marijuana business in any state; (v) if the controlling beneficial owner is a publicly traded corporation, the controlling beneficial owners' managers and any beneficial owners that directly or indirectly beneficially own 5% or more of the owner's 228 67th Legislature HB 701 - 74 - Authorized Print Version – HB 701 ENROLLED BILL interest in the controlling beneficial owner; (vi) if the controlling beneficial owner is not a publicly traded corporation, the controlling beneficial owner's managers and any beneficial owners that directly or indirectly beneficially own 5% or more of the owner's interest in the controlling beneficial owner; (vii) if the controlling beneficial owner is a natural person, the natural person's identifying information; (viii) a person that is both a passive beneficial owner and a financial interest holder in the marijuana business; and (ix) any financial interest holder that holds two or more financial interests in the marijuana business or that is contributing over 50% of the operating capital of the marijuana business. (d) The department may request that the marijuana business disclose each beneficial owner and affiliate of an applicant, or marijuana business, or controlling beneficial owner that is not a publicly traded corporation. (e) An applicant or marijuana business that is not a publicly traded corporation shall affirm under penalty of perjury that it exercised reasonable care to confirm that its passive beneficial owners, financial interest holders, and qualified institutional investors are not persons prohibited pursuant to this section, or otherwise restricted from holding an interest under this chapter. An applicant's or marijuana business's failure to exercise reasonable care is a basis for denial, fine, suspension, revocation, or other sanction by the department. (f) An applicant or marijuana business that is a publicly traded corporation shall affirm under penalty of perjury that it exercised reasonable care to confirm that its passive beneficial owners, financial interest holders, and qualified institutional investors are not persons prohibited pursuant to this section, or otherwise restricted from holding an interest under this chapter. An applicant's or marijuana business's failure to exercise reasonable care is a basis for denial, fine, suspension, revocation, or other sanction by the department. (g) This section does not restrict the department’s ability to reasonably request information or records at renewal or as part of any other investigation following initial licensure of a marijuana business. (2) The department shall conduct: (a) a fingerprint-based background check in association with an application for initial licensure and every 3 years thereafter; and 229 67th Legislature HB 701 - 75 - Authorized Print Version – HB 701 ENROLLED BILL (b) a name-based background check in association with an application for initial licensure and each year thereafter except years that an applicant is required to submit fingerprints for a fingerprint-based background check. (3)(2) The department may not license a person under this chapter if the person or an owner, including a person with a financial interest: (a) has a felony conviction involving fraud, deceit, or embezzlement or for distribution of drugs to a minor within the past 5 years and, after an investigation, the department finds that the applicant has not been sufficiently rehabilitated as to warrant the public trust; (b) is in the custody of the department of corrections or a youth court; (c) has been convicted of a violation under 16-12-302; (d) has resided in Montana for less than 1 year; or (e) is under 18 years of age. (a) has a felony conviction or a conviction for a drug offense, including but not limited to, a conviction for a violation of any marijuana law in any other state within the past 5 years and, after an investigation, the department finds that the applicant has not been sufficiently rehabilitated as to warrant the public trust; (b) is in the custody of or under the supervision of the department of corrections or a youth court; (c) has been convicted of a violation under [section 19] or of making a fraudulent representation under the former medical marijuana program administered by the department of public health and human services; (d) is under 21 years of age; (e) has failed to: (i) pay any taxes, interest, penalties, or judgments due to a government agency; (ii) comply with any provisions of Title 15 or Title 16, including the failure to file any tax return or report; (iii) stay out of default on a government-issued student loan; (iv) pay child support; or (v) remedy an outstanding delinquency for child support or for taxes or judgments owed to a government agency; or (f) has had a license issued under this chapter or a former medical marijuana license revoked within 3 years of the date of the application; or 230 67th Legislature HB 701 - 76 - Authorized Print Version – HB 701 ENROLLED BILL (g) has resided in Montana for less than 1 year. (4)(3) Marijuana for use pursuant to this chapter must be cultivated and manufactured in Montana until unless federal law otherwise allows for the interstate distribution of marijuana. (5)(4) Except as provided in 16-12-209, an adult-use provider or adult-use marijuana-infused products provider a cultivator, manufacturer, medical marijuana dispensary, or adult-use dispensary shall: (a) prior to selling marijuana or marijuana-infused marijuana products, submit samples to a testing laboratories laboratory pursuant to this chapter and administrative rules; (b) allow the department to collect samples of marijuana or marijuana-infused marijuana products during inspections of registered licensed premises for testing as provided by the department by rule; and (c) participate as required by the department by rule in a seed-to-sale tracking system established by the department pursuant to 16-12-105; and (d) obtain the license from the department of agriculture if required by80-7-106for the adult-use provider or adult-use marijuana-infused products provider that sells live plants as part of a sale of the adult-use provider's business. An adult-use provider or adult-use marijuana-infused products provider required to obtain a nursery license is subject to the inspection requirements of 80-7-108. (6)(5) (a) Except as provided in 16-12-205, a person licensed under this section may cultivate marijuana and manufacture marijuana-infused marijuana products for use by consumers or registered cardholders only at one of the following locations: (i) a property that is owned by the adult-use provider or adult-use marijuana-infused products provider licensee; or (ii) with written permission of the property owner filed with the department when applying for, or renewing a license, a property that is rented or leased by the adult-use provider or adult-use marijuana-infused products provider licensee. (b) Except as provided in 16-12-205, no portion of the property used for cultivation of marijuana or manufacture of marijuana-infused marijuana products or marijuana concentrate may be shared with or rented or leased to another adult-use provider, adult-use marijuana-infused products provider, or testing laboratory licensee. (c) Marijuana or marijuana products may not be consumed on the premises of any licensed premises 231 67th Legislature HB 701 - 77 - Authorized Print Version – HB 701 ENROLLED BILL (7) A licensed adult-use provider or adult-use marijuana-infused products provider may: (a)(6) A cultivator licensed under this chapter in accordance with licensing requirements set forth in this chapter and rules adopted by the department: (i)(a) may operate adult-use dispensaries; and (ii)(b) may engage in manufacturing;; and (c) may not engage in outdoor cultivation of marijuana, except as provided in [section 4(6)]. (b) employ employees to cultivate marijuana, manufacture marijuana concentrates and marijuana- infused products, and dispense and transport marijuana and marijuana-infused products; (c) provide a small amount of marijuana, marijuana concentrate, or marijuana-infused product cultivated or manufactured on the registered premises to a licensed testing laboratory or the department of agriculture; (d) sell the adult-use provider's business, including live plants, inventory, material assets, and all licenses in accordance with rules adopted by the department; and (e) hold a provider or marijuana-infused products provider license issued pursuant to Title 50, chapter 46, part 3. (8) (a) Except as provided in subsection (8)(b), an adult-use provider or adult-use marijuana-infused products provider: (i) shall sell marijuana the adult-use provider has cultivated or marijuana products derived from marijuana the adult-use marijuana-infused products provider has cultivated for at least 50% of the provider's total annual sales; (ii) may sell marijuana or marijuana-infused products to another adult-use provider for subsequent resale for up to 50% of the adult-use provider's total annual sales; (iii)(7) A cultivator or manufacturer: (a) may contract or otherwise arrange for another party that is licensed to process the adult provider's or adult marijuana-infused products provider's marijuana into marijuana-infused products or marijuana concentrates and return the marijuana-infused products or marijuana concentrates to the adult-use provider for sale a cultivator's or manufacturer's marijuana into marijuana products and return the marijuana products to the cultivator or manufacturer for sale; and 232 67th Legislature HB 701 - 78 - Authorized Print Version – HB 701 ENROLLED BILL (iv)(b) except as allowed pursuant to 16-12-207, may not open a dispensary or allow for any on-site use before obtaining the required license or and before the department has completed the inspection required under this chapter unless permitted to do so pursuant to 16-12-207. (b) The department may adjust the percentages set forth in subsection (8)(a) for an individual license holder based on unforeseen circumstances leading to the loss of plants or products." Section 51. Section 16-12-204, MCA, is amended to read: "16-12-204. (Effective October 1, 2021 January 1, 2022) Adult-use marijuana-infused products provider Manufacturer -- requirements -- limitations -- fees. (1) A person licensed as an adult-use marijuana-infused products provider a manufacturer shall: (a) prepare marijuana-infused marijuana products at a registered licensed premises exclusively; and (b) use equipment that is used exclusively for the manufacture and preparation of marijuana-infused marijuana products. (2) An adult-use marijuana-infused products provider: (a) may cultivate marijuana only for the purpose of making marijuana-infused products; and (b) may not provide a consumer with marijuana in a form that may be used for smoking unless the adult-use marijuana-infused products provider is also a licensed adult-use provider. (3)(2) All registered licensed premises on which marijuana-infused marijuana products are manufactured must meet any applicable standards set by a local board of health for a retail food establishment as defined in 50-50-102. (3) An applicant for a manufacturer license shall demonstrate that the local government approval provisions contained in 16-12-301 have been satisfied in the jurisdiction where each proposed manufacturing facility is located if a proposed facility would be located in a county in which the majority of voters voted against approval of Initiative Measure No. 190 in the November 3, 2020, general election. (4) When evaluating an initial or renewal application, the department shall evaluate each proposed manufacturing facility for compliance with the provisions of 16-12-207 and 16-12-210. (4)(5) Marijuana-infused Marijuana products may not be considered a food or drug for the purposes of Title 50, chapter 31. 233 67th Legislature HB 701 - 79 - Authorized Print Version – HB 701 ENROLLED BILL (6) (a) The department shall charge a manufacturer license fee for an initial application and at each renewal. The license fee is based on the amount of concentrate produced at a manufacturing facility on a monthly basis. The annual fees for licensees are: (i) $5,000 for each manufacturing facility that produces, on a monthly basis, less than 1 pound of concentrate and up to 10 pounds of concentrate; (ii) $10,000 for each manufacturing facility that produces, on a monthly basis, between 10 pounds of concentrate and 15 pounds of concentrate; and (iii) $20,000 for each manufacturing facility that produces, on a monthly basis, 15 pounds or more of concentrate. (b) The department may create additional fee levels as necessary. (c) A manufacturer may apply to advance to the next licensing level in conjunction with a regular renewal application by demonstrating that its proposed additional or expanded manufacturing facility or facilities are located in a jurisdiction where the local government approval provisions contained in 16-12-301 have been satisfied or that they are located in a county in which the majority of voters voted to approve Initiative Measure No. 190 in the November 3, 2020, general election. (7) The department may adopt rules: (a) for the inspection of proposed manufacturing facilities; (b) for investigating the amount of concentrate produced at a manufacturing facility; and (c) for investigating owners or applicants for a determination of beneficial ownership or financial interest." Section 53. Section 16-12-206, MCA, is amended to read: "16-12-206. (Effective October 1, 2021 January 1, 2022) Testing laboratories -- licensing inspections. (1) A testing laboratory licensed pursuant to Title 50, chapter 46, part 3, shall may: (a) measure the tetrahydrocannabinol, tetrahydrocannabinolic acid, cannabidiol, and cannabidiolic acid content of marijuana and marijuana-infused marijuana products; and (b) test marijuana and marijuana-infused marijuana products for pesticides, solvents, moisture levels, mold, mildew, and other contaminants. A testing laboratory may transport samples to be tested. 234 67th Legislature HB 701 - 80 - Authorized Print Version – HB 701 ENROLLED BILL (2) The analytical laboratory services provided by the department of agriculture pursuant to 80-1-104 may be used for the testing provided for in this section. (3) A person with a financial interest in a licensed testing laboratory may not have a financial interest in any entity involved in the cultivation of marijuana or manufacture of a marijuana-infused product or marijuana concentrate for whom testing services are performed. (2) A licensed testing laboratory shall employ a scientific director who is responsible for ensuring the achievement and maintenance of quality standards of practice. A scientific director must have the following minimum qualifications: (a) a doctorate in chemical or biological sciences from a college or university accredited by a national or regional certifying authority and a minimum of 2 years of postdegree laboratory experience; or (b) a master's degree in chemical or biological sciences from a college or university accredited by a national or regional certifying authority and a minimum of 4 years of postdegree laboratory experience. (3) All owners and employees of a testing laboratory shall submit fingerprints to the department to facilitate a fingerprint and background check as set forth in [section 2]. A testing laboratory may not be owned, operated, or staffed by a person who has been convicted of a felony offense. (4) To qualify for licensure, a testing laboratory shall demonstrate that: (a) staff members are proficient in operation of the laboratory equipment; and (b) the laboratory: (i) maintains the equipment and instrumentation required by rule; (ii) has all equipment and instrumentation necessary to certify results that meet the quality assurance testing requirements established by rule, including the ability to certify results at the required level of sensitivity; (iii) meets insurance and bonding requirements established by rule; (iv) has the capacity and ability to serve rural areas of the state; and (v) has passed a proficiency program approved by the state laboratory that demonstrates it is able to meet all testing requirements. (4)(5) Except as provided in 16-12-209, a testing laboratory shall conduct tests of: (a) samples of marijuana, marijuana concentrate, and marijuana-infused products submitted by adult- use providers and adult-use marijuana-infused products providers and marijuana products submitted by 235 67th Legislature HB 701 - 81 - Authorized Print Version – HB 701 ENROLLED BILL cultivators and manufacturers pursuant to 16-12-209 and related administrative rules prior to sale of the marijuana or marijuana-infused marijuana products; (b) samples of marijuana or marijuana-infused marijuana products collected by the department during inspections of registered licensed premises; and (c) samples submitted by consumers or registered cardholders." Section 54. Section 16-12-207, MCA, is amended to read: "16-12-207. (Effective October 1, 2021 January 1, 2022) Licensing as privilege -- criteria. (1) An adult-use provider license, adult-use marijuana-infused products provider license, adult-use dispensary license, or endorsement for manufacturing A cultivator license, manufacturer license, adult-use dispensary license, medical marijuana dispensary license, combined-use marijuana license, marijuana transporter license, or any other license authorized under this chapter is a privilege that the state may grant to an applicant and is not a right to which an applicant is entitled. In making a licensing decision, the department shall consider: (a) the qualifications of the applicant; and (b) the suitability of the proposed registered licensed premises, including but not limited to cultivation centers, dispensaries, and manufacturing facilities. (2) The department may deny or revoke a license based on proof that the applicant made a knowing and material false statement in any part of the original application or renewal application. (3) (a) The department may deny an adult-use provider license, adult-use marijuana-infused products provider license, adult-use dispensary license, or endorsement for manufacturing shall deny a cultivator license, manufacturer license, adult-use dispensary license, or medical marijuana license if the applicant's proposed registered licensed premises: (i) is situated within a zone of a locality where an activity related to the use of marijuana conflicts with an ordinance, a certified copy of which has been filed with the department;. (4) (a) The department may deny a license for an adult-use provider, adult-use marijuana-infused products provider, or adult-use dispensary or an endorsement for manufacturing if the applicant's proposed registered premises: (i)(ii) is not approved by local building, health, or fire officials as provided for in this chapter; or 236 67th Legislature HB 701 - 82 - Authorized Print Version – HB 701 ENROLLED BILL (ii)(iii) (A) except as provided in subsection (3)(a)(iii)(B), is within 500 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 or postsecondary school other than a commercially operated school, unless the locality allows for a reduced requires a greater distance. This distance must 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. (B) Subsection (3)(a)(iii)(A) does not apply if the application is for license renewal and the licensed premises was established before the church, synagogue, or other place of worship or school or postsecondary school existed on the same street. (b) For the purposes of this subsection (4) (3), "school" and "postsecondary school" have the meanings provided in 20-5-402. (5) An adult-use provider, adult-use marijuana-infused products provider, or adult-use dispensary licensee may operate at a shared location with a provider, marijuana-infused products provider, or dispensary as defined in 50-46-302 if the provider, marijuana-infused products provider, or dispensary is owned by the same person. (4) A licensee may not sell or otherwise transfer marijuana or marijuana products through a drive-up window, except that a dispensary may hand-deliver marijuana or marijuana products to a registered cardholder in a vehicle that is parked immediately outside the subject dispensary. (5) A marijuana business may not dispense or otherwise sell marijuana or marijuana products from a vending machine or allow such a vending machine to be installed at the interior or exterior of the premises. (6) A marijuana business may not utilize the United States postal service or an alternative carrier other than a licensed marijuana transporter to transport, distribute, ship, or otherwise deliver marijuana or marijuana products. (7) A marijuana business may not provide free marijuana or marijuana products or offer samples of marijuana or marijuana products. (8) Marijuana or a marijuana product may not be given as a prize, premium, or consideration for a lottery, contest, game of chance, game of skill, or competition of any kind. (9) (a) Except as provided in subsection (9)(c), an adult-use dispensary or medical marijuana dispensary must have a single, secured entrance for patrons and shall implement strict security measures to 237 67th Legislature HB 701 - 83 - Authorized Print Version – HB 701 ENROLLED BILL deter and prevent the theft of marijuana and unauthorized entrance in accordance with department rule. (b) Except as provided in subsection (9)(c), a marijuana business that is not an adult-use dispensary or medical marijuana dispensary must implement security measures in accordance with department rule to deter and prevent the theft of marijuana and unauthorized entrance. (c) The provisions of this subsection (9) do not supersede any state or local requirements relating to minimum numbers of points of entry or exit, or any state or local requirements relating to fire safety. (10) Each marijuana business shall install a video monitoring system that must, at a minimum: (a) allow for the transmission and storage, by digital means, of a video feed that displays the interior and exterior of the cannabis establishment; and (b) be capable of being recorded as prescribed by the department. (11) An adult-use dispensary or medical marijuana dispensary may not operate between the hours of 8 p.m. and 9 a.m. daily. (12) A person under 21 years of age is not permitted inside a marijuana business unless the person is a registered cardholder." Section 55. Section 16-12-208, MCA, is amended to read: "16-12-208. (Effective October 1, 2021 January 1, 2022) Restrictions. (1) An adult-use provider or adult-use marijuana-infused products provider A cultivator or manufacturer may not cultivate marijuana or manufacture marijuana concentrates or marijuana-infused products in a manner that is visible from the street or other public area without the use of binoculars, aircraft, or other optical aids. (2) An adult-use provider or adult-use marijuana-infused products provider A cultivator or manufacturer may not cultivate, process, test, or store marijuana at any location other than the registered licensed premises approved by the department and within an enclosed area that is secured in a manner that prevents access by unauthorized persons. (3) An adult-use provider or adult-use marijuana-infused products provider shall secure the provider's inventory and equipment during and after operating hours to deter and prevent theft of marijuana. (4)(3) An adult-use provider or adult-use marijuana-infused products provider A licensee shall make the registered licensed premises, books, and records available to the department for inspection and audit under 238 67th Legislature HB 701 - 84 - Authorized Print Version – HB 701 ENROLLED BILL 16-12-210 during normal business hours. (5)(4) An adult-use provider or adult-use marijuana-infused products provider A licensee may not allow a person under 18 years of age to volunteer or work for the licensee. (6)(5) Edible marijuana-infused marijuana products manufactured as candy may not be sold in shapes or packages that are attractive to children or that are easily confused with commercially sold candy that does not contain marijuana. (7)(6) (a) Marijuana or a marijuana-infused product marijuana products must be sold or otherwise transferred in resealable, child-resistant exit packaging that complies with federal child resistance standards and is designed to be significantly difficult for children under 5 years of age to open and not difficult for adults to use properly. (b) Subsection (7)(a) does not apply to marijuana consumed on the premises where it is sold, if permitted by department rule. (b) (i) Packaging of individual products may contain only the following design elements and language on a white label: (A) the seller's business name and any accompanying logo or design mark; (B) the name of the product; and (C) the THC content or CBD content, health warning messages as provided in [section 109], and ingredients. (ii) All packaging and outward labeling, including business logos and design marks, must also comply with any standards or criteria established by the department, including but not limited to allowable symbols and imagery. (8)(7) An adult-use provider or adult-use marijuana-infused products provider An adult-use dispensary or medical marijuana dispensary may not sell or otherwise transfer tobacco hemp or alcohol from a registered licensed premises. (8) (a) Prior to selling, offering for sale, or transferring marijuana or marijuana product that is for ultimate sale to a consumer or registered cardholder, a licensee or license applicant shall submit both a package and a label application, in a form prescribed by the department, to receive approval from the department. 239 67th Legislature HB 701 - 85 - Authorized Print Version – HB 701 ENROLLED BILL (b) The initial submission shall be made electronically if required by the department. The licensee, license or applicant shall submit a physical prototype upon request by the department. (c) If a license applicant submits packages and labels for preapproval, final determination for packages and labels may not be made until the applicant has been issued a license. (d) A packaging and label application must include: (i) a fee provided for in rule by the department; (ii) documentation that all exit packaging has been certified as child-resistant by a federally qualified third-party child-resistant package testing firm; (iii) a picture or rendering of and description of the item to be placed in the each package; and (iv) for label applications for inhalable marijuana products that contain nonmarijuana additives: (A) the nonmarijuana additive's list of ingredients; and (B) in a form and manner prescribed by the department, information regarding the additive or additives and the manufacturer of the additive or additives. (9) For the purpose of this section, "exit packaging" means a sealed, child-resistant certified receptacle into which marijuana or marijuana products already within a container are placed at the retail point of sale." Section 56. Section 16-12-209, MCA, is amended to read: "16-12-209. (Effective October 1, 2021 January 1, 2022) Testing of marijuana and marijuana- infused marijuana products. (1) An adult-use provider or adult-use marijuana-infused products provider A cultivator, manufacturer, adult-use dispensary, or medical marijuana dispensary may not sell marijuana or marijuana-infused marijuana products until the marijuana or marijuana products have been tested by a testing laboratory or the department of agriculture and meet the requirements of 50-46-326 this section. The licensee shall pay for the testing. (2) An adult-use provider or adult-use marijuana-infused products provider A licensee shall submit material that has been collected in accordance with a sampling protocol established by the state laboratory by rule. The protocol must address the division of marijuana and marijuana-infused marijuana products into batch sizes for testing. Each batch must be tested in the following categories: 240 67th Legislature HB 701 - 86 - Authorized Print Version – HB 701 ENROLLED BILL (a) flower; (b) concentrate; and (c) marijuana-infused product. (3) The state laboratory shall apply the same rules adopted pursuant to Title 50, chapter 46, part 3, regarding the types of tests, inspections, analysis, and certification that must be performed to ensure product safety and consumer protection to marijuana and marijuana products tested pursuant to this chapter adopt rules regarding the types of tests that must be performed to ensure product safety and consumer protection. Rules must include but are not limited to testing for: (a) the potency of the cannabinoids present; and (b) the presence of contaminants. (4) The testing laboratory shall conduct a visual inspection of each batch to determine the presence of levels of foreign matter, debris, insects, and visible mold. (5) The state laboratory shall establish by rule the acceptable levels of moisture, pesticides, residual solvents, mold, mildew, foreign matter, debris, insects, and other contaminants that marijuana products may contain. (6) The testing laboratory shall: (a) issue a certificate of analysis certifying the test results; and (b) report the results to the seed-to-sale tracking system established pursuant to 16-12-105. (4)(7) An adult-use provider or adult-use marijuana-infused products provider A licensee may request that material that has failed to pass the required tests be retested in accordance with the rules adopted by the state laboratory providing for retesting parameters and requirements. (5)(8) Marijuana or a marijuana-infused marijuana product must include a label indicating that the marijuana or marijuana-infused marijuana product has been tested. (9) (a) The department shall collect and, except as provided in subsection (9)(b), destroy samples of marijuana and marijuana products that fail to meet the acceptable levels to ensure product safety and consumer protection. (b) If a sample fails due to THC levels in excess of the allowable limit and is not deficient in any other respect, the department may dispose of the sample by means other than destruction in accordance with rule. 241 67th Legislature HB 701 - 87 - Authorized Print Version – HB 701 ENROLLED BILL (c) The department may contract for the duties under this subsection (9)." Section 57. Section 16-12-210, MCA, is amended to read: "16-12-210. (Effective October 1, 2021 January 1, 2022) Inspections -- procedures -- prohibition on inspector affiliation with licensees. (1) (a) The department shall conduct unannounced inspections of registered licensed premises. (b) The department may not conduct more than two unannounced inspections of a licensed premises per year unless a citation has been issued to a licensee at the premises within the last 2 years or there is other just and reasonable cause. (2) (a) The department shall inspect annually each registered premises operated by a licensee. (b) The department may collect samples during the inspection of a registered licensed premises and submit the samples to all registered testing laboratories a testing laboratory or the state laboratory for testing as provided by the department by rule. (3) (a) Each adult-use provider and adult-use marijuana-infused products provider licensee shall keep a complete set of records necessary to show all transactions with consumers and registered cardholders. The records must be open for inspection by the department or state laboratory, as appropriate, and state or local law enforcement agencies during normal business hours. (b) Each testing laboratory shall keep: (i) a complete set of records necessary to show all transactions with adult-use providers and adult- use marijuana-infused products providers a licensee; and (ii) all data, including instrument raw data, pertaining to the testing of marijuana and marijuana-infused marijuana products. (c) The records and data required under this subsection (3) must be open for inspection by the department and state or local law enforcement agencies during normal business hours. (d) The department may require an adult-use provider, adult-use marijuana-infused products provider, or testing laboratory a licensee to furnish information that the department considers necessary for the proper administration of this chapter. (4) (a) Registered Each licensed premises, including any places of storage, where marijuana is 242 67th Legislature HB 701 - 88 - Authorized Print Version – HB 701 ENROLLED BILL cultivated, manufactured, sold, stored, or tested are subject to entry by the department or state or local law enforcement agencies for the purpose of inspection or investigation during normal business hours. (b) If any part of the registered a licensed premises consists of a locked area, the provider or marijuana-infused products provider licensee shall make the area available for inspection immediately upon request of the department or state or local law enforcement officials. (5) If the department conducts an inspection because of a complaint against a licensee or registered licensed premises and does not find a violation of this chapter, the department shall give the licensee a copy of the complaint with the name of the complainant redacted. (6)(5) The department may not hire or contract with a person to be an inspector if the person, has worked during the previous 4 years, was or worked for a Montana business or facility operating under this chapter or Title 50, chapter 46, part 3 a former medical marijuana licensee. (6) In addition to any other penalties provided under this chapter, the department may revoke, suspend for up to 1 year, or refuse to renew a license or endorsement issued under this chapter if, upon inspection and subsequent notice to the licensee, the department finds that any of the following circumstances exist: (a) a cause for which issuance of the license or endorsement could have been rejected had it been known to the department at the time of issuance; (b) a violation of an administrative rule adopted to carry out the provisions of this chapter; or (c) noncompliance with any provision of this chapter. (6)(7) The department may suspend or modify a license or endorsement without advance notice upon a finding that presents an immediate threat to the health, safety, or welfare of consumers, employees of the licensee, or members of the public. The department may establish by rule the applicable procedures for securing or disposing of the inventory in such circumstances. (7)(8) (a) Review of a department action imposing a suspension, revocation, or other modification under this chapter must be conducted as a contested case hearing before the department's office of dispute resolution under the provisions of the Montana Administrative Procedure Act. (b) A person may appeal any decision of the department of revenue concerning the issuance, rejection, suspension, or revocation of a license provided for by this chapter to the district court in the county in 243 67th Legislature HB 701 - 89 - Authorized Print Version – HB 701 ENROLLED BILL which the person operates or proposes to operate. If a person operates or seeks to operate in more than one county, the person may seek judicial review in the district court with jurisdiction over actions arising in any of the counties where it operates or seeks to operate. (c) An appeal pursuant to subsection (8)(b) shall be made by filing a complaint setting forth the grounds for relief and the nature of relief demanded with the district court within 30 days following receipt of notice of the department's final decision. (10)(9) The department shall establish a training protocol to ensure uniform application and enforcement of the requirements of this chapter. (11)(10) The department shall report biennially to the revenue economic affairs interim committee concerning the results of inspections conducted under this section. The report must include the information required under 16-12-110." Section 58. Section 16-12-211, MCA, is amended to read: "16-12-211. (Effective October 1, 2021 January 1, 2022) Advertising prohibited. (1) Persons with licenses may not advertise marijuana or marijuana-related marijuana products in any medium, including electronic media. (2) A listing in a directory of businesses authorized under this chapter is not advertising for the purposes of this section. (3) A licensee may have a website but may not: (a) include prices on the website; or (b) actively solicit consumers or out-of-state consumers through the website. (4) The department shall adopt rules to clearly identify the activities that constitute advertising that are prohibited under this section." Section 59. Section 16-12-301, MCA, is amended to read: "16-12-301. (Effective October 1, 2021) Local government authority to regulate -- opt-in requirement in certain counties -- exemption for existing licensees. (1) (a) Except as provided in subsection (1)(b), a marijuana business may not operate in a county in which the majority of voters voted 244 67th Legislature HB 701 - 90 - Authorized Print Version – HB 701 ENROLLED BILL against approval of Initiative Measure No. 190 in the November 3, 2020, general election until: (i) the category or categories of license that the marijuana business seeks has or have been approved by the local jurisdiction where the marijuana BUSINESS intends to operate as provided in subsection (3) or (4); and (ii) the business is licensed by the department pursuant to this chapter. (b) A former medical marijuana licensee that does not apply for licensure as an adult-use dispensary may operate in its existing premises in compliance with rules adopted by the department pursuant to 16-12- 201(2) notwithstanding a local jurisdiction's failure to take action pursuant to subsections (3) through (6). (c) A former medical marijuana licensee that intends to apply for licensure as a cultivator, manufacturer, adult-use dispensary, or testing laboratory may operate in compliance with rules adopted by the department pursuant to 16-12-201(2) notwithstanding a local jurisdiction's failure to take action pursuant to subsections (3) through (6), provided that the former marijuana licensee has remained in good standing with the department of public health and human services and the department. (d) For the purpose of this section, the marijuana business categories that must be approved by a local jurisdiction under subsections (3) through (6) in a county in which the majority of voters voted against approval of Initiative Measure No. 190 in the November 3, 2020, general election before a business may operate are: (i) cultivator; (ii) manufacturer; (iii) medical marijuana dispensary, except as provided in subsection (1)(b); (iv) adult-use dispensary; (v) combined-use marijuana licensee; (vi) testing laboratory; and (vii) marijuana transporter facility. (e) Marijuana businesses located in counties in which the majority of voters voted to approve Initiative Measure No. 190 in the November 3, 2020, general election are not subject to the local government approval process under subsections (3) through (6). (2) (a) To protect the public health, safety, or welfare, a local government may by ordinance or 245 67th Legislature HB 701 - 91 - Authorized Print Version – HB 701 ENROLLED BILL resolution otherwise regulate an adult-use provider or adult-use marijuana-infused products provider a marijuana business that operates within the local government's jurisdictional area. The regulations may include but are not limited to inspections of registered licensed premises, including but not limited to indoor cultivation facilities, dispensaries, manufacturing facilities, and testing laboratories in order to ensure compliance with any public health, safety, and welfare requirements established by the department or the local government. (b) A local government may not adopt ordinances or regulations that are unduly burdensome. (b) A former medical marijuana licensee that does not apply for licensure as an adult-use dispensary is exempt from complying with any local governmental regulations that are adopted under this subsection after [the effective date of this section] until its first license renewal date occurring after January 1, 2022, or the expiration of any grace period granted by the locality, whichever is later. (2) The qualified electors of an incorporated municipality, county, or consolidated city-county may request an election on whether to prohibit by ordinance adult-use dispensaries from being located within the jurisdiction of the local government by filing a petition in accordance with 7-5-131 through 7-5-135 and 7-5-137. (3) An election regarding whether to approve any or all of the marijuana business categories listed in subsection (1)(c) to be located within a local jurisdiction may be requested by filing a petition in accordance with 7-5-131 through 7-5-135 and 7-5-137 by: (a) the qualified electors of a county; or (b) the qualified electors of a municipality. (3)(4) (a) An election held pursuant to this section must be called, conducted, counted, and canvassed in accordance with Title 13, chapter 1, part 4. (b) Except as provided in subsection (3)(c), an election held pursuant to this section may not be held within 70 days before or after a primary, general, or regular local election. (c)(b) An election pursuant to this section may be held in conjunction with a regular election of the governing body, general election, or a regular local or special election. (4)(5) If the qualified electors of an incorporated municipality, county, or consolidated city-county vote to prohibit adult-use dispensaries from being a county vote to approve a type of marijuana business to be located in the jurisdiction, the governing body shall enter the prohibition approval into the records of the local government and notify the department of the election results. 246 67th Legislature HB 701 - 92 - Authorized Print Version – HB 701 ENROLLED BILL (5)(6) (a) If an election is held pursuant to this section in a county that contains within its limits a municipality of more than 5,000 persons according to the most recent federal decennial census: (i) it is not necessary for the registered qualified electors in the municipality to file a separate petition asking for a separate or different vote on the question of whether to prohibit adult-use dispensaries PROHIBIT a category of marijuana business from being located in the municipality; and (ii) the county shall conduct the election in a manner that separates the votes in the municipality from those in the remaining parts of the county. (b) If a majority of the qualified electors in the county, including the qualified electors in the municipality, vote to prohibit adult-use dispensaries from being approve a category of marijuana business to be located in the county, the county may not allow adult-use dispensaries that category of marijuana business to operate in the county. (c) (i) If a majority of the qualified electors in the municipality vote to prohibit adult-use dispensaries from being approve a category of marijuana business to be located in the municipality, the municipality may not allow adult-use dispensaries that type of marijuana business to operate in the municipality. (ii) If a majority of the qualified electors in the municipality vote to prohibit a category of marijuana business from being located in the municipality, the municipality may not allow that type of marijuana business to operate in the municipality. (d) Nothing contained in this subsection (5) (6) prevents any municipality from having a separate election under the terms of this section. (6)(7) (a) An incorporated municipality, county, or consolidated city-county A county or municipality that has voted to prohibit adult-use dispensaries from being approve a category of marijuana business to be located in the jurisdiction or a county in which the majority of voters voted to approve Initiative Measure No. 190 in the November 3, 2020, general election may vote to discontinue the prohibition and to allow the prohibit the previously prohibited approved or allowed operations within the incorporated municipality, county, or consolidated city-county jurisdiction. (b) A vote overturning a prohibition on operation of adult-use dispensaries the approval of a category of marijuana business or prohibiting the previously permitted operation of marijuana businesses is effective on the 90th day after the local election is held. 247 67th Legislature HB 701 - 93 - Authorized Print Version – HB 701 ENROLLED BILL (7) A local government may temporarily prohibit retail sales regulated under this chapter from being located within its jurisdiction through local ordinance until an election can be held pursuant to this section. (8)(8) A local government may not prohibit the transportation of marijuana within or through its jurisdiction on public roads by any person licensed to do so by the department or as otherwise allowed by this chapter." Section 60. Section 16-12-302, MCA, is amended to read: "16-12-302. (Effective October 1, 2021 January 1, 2022) Fraudulent representation -- penalties. (1) In addition to any other penalties provided by law, an individual who fraudulently represents to a law enforcement official that the individual is an adult-use provider or an adult-use marijuana-infused products provider a cultivator, manufacturer, adult-use dispensary, medical marijuana dispensary, testing laboratory, marijuana transporter, or has a marijuana worker permit is guilty of a civil fine not to exceed $1,000. (2) An individual convicted under this section may not be licensed under this chapter as an adult-use provider or adult-use marijuana-infused products provider under 16-12-203." Section 61. Section 18-7-101, MCA, is amended to read: "18-7-101. Power to contract for printing -- exceptions. (1) Except as provided in 1-11-301 and 50- 46-303, 16-12-104, and [section 11], the department has exclusive power, subject to the approval of the governor, to contract for all printing for any purpose used by the state in any state office (elective or appointive), agency, or institution. (2) The department shall supervise and attend to all public printing of the state as provided in this chapter and shall prevent duplication and unnecessary printing. (3) Unless otherwise provided by law, the department, in letting contracts as provided in this chapter, for the printing, binding, and publishing of all laws, journals, and reports of the state agencies and institutions may determine the quantity, quality, style, and grade of all such printing, binding, and publishing. (4) The provisions of this chapter do not apply to the state compensation insurance fund for purposes of external marketing or educational materials." 248 67th Legislature HB 701 - 94 - Authorized Print Version – HB 701 ENROLLED BILL Section 62. Section 37-1-136, MCA, is amended to read: "37-1-136. Disciplinary authority of boards -- injunctions. (1) Subject to 37-1-138, each licensing board allocated to the department has the authority, in addition to any other penalty or disciplinary action provided by law, to adopt rules specifying grounds for disciplinary action and rules providing for: (a) revocation of a license; (b) suspension of its judgment of revocation on terms and conditions determined by the board; (c) suspension of the right to practice for a period not exceeding 1 year; (d) placing a licensee on probation; (e) reprimand or censure of a licensee; or (f) taking any other action in relation to disciplining a licensee as the board in its discretion considers proper. (2) Any disciplinary action by a board shall be conducted as a contested case hearing under the provisions of the Montana Administrative Procedure Act. (3) Notwithstanding any other provision of law, a board may maintain an action to enjoin a person from engaging in the practice of the occupation or profession regulated by the board until a license to practice is procured. A person who has been enjoined and who violates the injunction is punishable for contempt of court. (4) An action may not be taken against a person who is in compliance with Title 50, chapter 46 [sections 9 through 23]. (5) Rules adopted under subsection (1) must provide for the provision of public notice as required by 37-1-311." Section 63. Section 37-1-316, MCA, is amended to read: "37-1-316. Unprofessional conduct. The following is unprofessional conduct for a licensee or license applicant governed by this part: (1) conviction, including conviction following a plea of nolo contendere, of a crime relating to or committed during the course of the person's practice or involving violence, use or sale of drugs, fraud, deceit, or theft, whether or not an appeal is pending; (2) permitting, aiding, abetting, or conspiring with a person to violate or circumvent a law relating to 249 67th Legislature HB 701 - 95 - Authorized Print Version – HB 701 ENROLLED BILL licensure or certification; (3) fraud, misrepresentation, deception, or concealment of a material fact in applying for or assisting in securing a license or license renewal or in taking an examination required for licensure; (4) signing or issuing, in the licensee's professional capacity, a document or statement that the licensee knows or reasonably ought to know contains a false or misleading statement; (5) a misleading, deceptive, false, or fraudulent advertisement or other representation in the conduct of the profession or occupation; (6) offering, giving, or promising anything of value or benefit to a federal, state, or local government employee or official for the purpose of influencing the employee or official to circumvent a federal, state, or local law, rule, or ordinance governing the licensee's profession or occupation; (7) denial, suspension, revocation, probation, fine, or other license restriction or discipline against a licensee by a state, province, territory, or Indian tribal government or the federal government if the action is not on appeal, under judicial review, or has been satisfied; (8) failure to comply with a term, condition, or limitation of a license by final order of a board; (9) revealing confidential information obtained as the result of a professional relationship without the prior consent of the recipient of services, except as authorized or required by law; (10) use of alcohol, a habit-forming drug, or a controlled substance as defined in Title 50, chapter 32, to the extent that the use impairs the user physically or mentally in the performance of licensed professional duties; (11) having a physical or mental disability that renders the licensee or license applicant unable to practice the profession or occupation with reasonable skill and safety; (12) engaging in conduct in the course of one's practice while suffering from a contagious or infectious disease involving serious risk to public health or without taking adequate precautions, including but not limited to informed consent, protective gear, or cessation of practice; (13) misappropriating property or funds from a client or workplace or failing to comply with a board rule regarding the accounting and distribution of a client's property or funds; (14) interference with an investigation or disciplinary proceeding by willful misrepresentation of facts, by the use of threats or harassment against or inducement to a client or witness to prevent them from providing 250 67th Legislature HB 701 - 96 - Authorized Print Version – HB 701 ENROLLED BILL evidence in a disciplinary proceeding or other legal action, or by use of threats or harassment against or inducement to a person to prevent or attempt to prevent a disciplinary proceeding or other legal action from being filed, prosecuted, or completed; (15) assisting in the unlicensed practice of a profession or occupation or allowing another person or organization to practice or offer to practice by use of the licensee's license; (16) failing to report the institution of or final action on a malpractice action, including a final decision on appeal, against the licensee or of an action against the licensee by a: (a) peer review committee; (b) professional association; or (c) local, state, federal, territorial, provincial, or Indian tribal government; (17) failure of a health care provider, as defined in 27-6-103, to comply with a policy or practice implementing 28-10-103(3)(a); (18) conduct that does not meet the generally accepted standards of practice. A certified copy of a malpractice judgment against the licensee or license applicant or of a tort judgment in an action involving an act or omission occurring during the scope and course of the practice is conclusive evidence of but is not needed to prove conduct that does not meet generally accepted standards. (19) the sole use of any electronic means, including teleconferencing, to obtain the information required for the written certification and accompanying statements used to apply for a registry identification card pursuant to Title 50, chapter 46, part 3 [sections 9 through 23]." Section 64. Section 37-3-203, MCA, is amended to read: "37-3-203. Powers and duties -- rulemaking authority. (1) The board may: (a) adopt rules necessary or proper to carry out the requirements in Title 37, chapter 3, parts 1 through 4, and of chapters covering podiatry, acupuncture, physician assistants, nutritionists, and emergency care providers as set forth in Title 37, chapters 6, 13, 20, and 25, and 50-6-203, respectively. Rules adopted for emergency care providers with an endorsement to provide community-integrated health care must address the scope of practice, competency requirements, and educational requirements. (b) hold hearings and take evidence in matters relating to the exercise and performance of the powers 251 67th Legislature HB 701 - 97 - Authorized Print Version – HB 701 ENROLLED BILL and duties vested in the board; (c) aid the county attorneys of this state in the enforcement of parts 1 through 4 and 8 of this chapter as well as Title 37, chapters 6, 13, 20, and 25, and Title 50, chapter 6, regarding emergency care providers licensed by the board. The board also may assist the county attorneys of this state in the prosecution of persons, firms, associations, or corporations charged with violations of the provisions listed in this subsection (1)(c). (d) review certifications of disability and determinations of eligibility for a permit to hunt from a vehicle as provided in 87-2-803(11); and (e) fund additional staff, hired by the department, to administer the provisions of this chapter, by increasing license fees as necessary. (2) (a) The board shall establish a medical assistance program to assist and rehabilitate licensees who are subject to the jurisdiction of the board and who are found to be physically or mentally impaired by habitual intemperance or the excessive use of addictive drugs, alcohol, or any other drug or substance or by mental illness or chronic physical illness. (b) The board shall ensure that a licensee who is required or volunteers to participate in the medical assistance program as a condition of continued licensure or reinstatement of licensure must be allowed to enroll in a qualified medical assistance program within this state and may not require a licensee to enroll in a qualified treatment program outside the state unless the board finds that there is no qualified treatment program in this state. (3) (a) The board shall report annually on the number and types of complaints it has received involving physician practices in providing written certification, as defined in 50-46-302 [section 10], for the use of marijuana for a debilitating medical condition provided for in Title 50, chapter 46 [sections 9 through 23]. The report must contain: (i) the number of complaints received by the board pursuant to 37-1-308; (ii) the number of complaints for which a reasonable cause determination was made pursuant to 37-1- 307; (iii) the general nature of the complaints; (iv) the number of investigations conducted into physician practices in providing written certification; 252 67th Legislature HB 701 - 98 - Authorized Print Version – HB 701 ENROLLED BILL and (v) the number of physicians disciplined by the board for their practices in providing written certification for the use of marijuana for a debilitating medical condition. (b) Except as provided in subsection (3)(c), the report may not contain individual identifying information regarding the physicians about whom the board received complaints. (c) For each physician against whom the board takes disciplinary action related to the physician's practices in providing written certification for the use of marijuana for a debilitating medical condition, the report must include: (i) the name of the physician; (ii) the general results of the investigation of the physician's practices; and (iii) the disciplinary action taken against the physician. (d) The board shall provide the report to the children, families, health, and human services economic affairs interim committee by August 1 of each year and shall make a copy of the report available on the board's website. (4) The board may enter into agreements with other states for the purposes of mutual recognition of licensing standards and licensing of physicians and emergency care providers from other states under the terms of a mutual recognition agreement." Section 65. Section 39-2-210, MCA, is amended to read: "39-2-210. Limitation on adverse action. Except as provided in 50-46-320 16-12-108, no adverse action, including followup testing, may be taken by the employer if the employee presents a reasonable explanation or medical opinion indicating that the original test results were not caused by illegal use of controlled substances or by alcohol consumption. If the employee presents a reasonable explanation or medical opinion, the test results must be removed from the employee's record and destroyed." Section 66. Section 39-2-313, MCA, is amended to read: "39-2-313. Discrimination prohibited for use of lawful product during nonworking hours -- exceptions. (1) For purposes of this section, "lawful product" means a product that is legally consumed, used, 253 67th Legislature HB 701 - 99 - Authorized Print Version – HB 701 ENROLLED BILL or enjoyed and includes food, beverages, and tobacco, and marijuana. (2) Except as provided in subsections (3) and (4), an employer may not refuse to employ or license and may not discriminate against an individual with respect to compensation, promotion, or the terms, conditions, or privileges of employment because the individual legally uses a lawful product off the employer's premises during nonworking hours. (3) Subsection (2) does not apply to: (a) use of a lawful product, including the use of marijuana for a debilitating medical condition as defined in 50-46-302, that: (i) affects in any manner an individual's ability to perform job-related employment responsibilities or the safety of other employees; or (ii) conflicts with a bona fide occupational qualification that is reasonably related to the individual's employment; (b) an individual who, on a personal basis, has a professional service contract with an employer and the unique nature of the services provided authorizes the employer, as part of the service contract, to limit the use of certain products; or (c) an employer that is a nonprofit organization that, as one of its primary purposes or objectives, discourages the use of one or more lawful products by the general public. (4) An employer does not violate this section if the employer takes action based on the belief that the employer's actions are permissible under an established substance abuse or alcohol program or policy, professional contract, or collective bargaining agreement. (5) An employer may offer, impose, or have in effect a health, disability, or life insurance policy that makes distinctions between employees for the type or price of coverage based on the employees' use of a product if: (a) differential rates assessed against employees reflect actuarially justified differences in providing employee benefits; (b) the employer provides an employee with written notice delineating the differential rates used by the employer's insurance carriers; and (c) the distinctions in the type or price of coverage are not used to expand, limit, or curtail the rights or 254 67th Legislature HB 701 - 100 - Authorized Print Version – HB 701 ENROLLED BILL liabilities of a party in a civil cause of action." Section 67. Section 39-71-407, MCA, is amended to read: "39-71-407. (Temporary) Liability of insurers -- limitations. (1) For workers' compensation injuries, each insurer is liable for the payment of compensation, in the manner and to the extent provided in this section, to an employee of an employer covered under plan No. 1, plan No. 2, and the state fund under plan No. 3 that it insures who receives an injury arising out of and in the course of employment or, in the case of death from the injury, to the employee's beneficiaries, if any. (2) An injury does not arise out of and in the course of employment when the employee is: (a) on a paid or unpaid break, is not at a worksite of the employer, and is not performing any specific tasks for the employer during the break; or (b) engaged in a social or recreational activity, regardless of whether the employer pays for any portion of the activity. The exclusion from coverage of this subsection (2)(b) does not apply to an employee who, at the time of injury, is on paid time while participating in a social or recreational activity or whose presence at the activity is required or requested by the employer. For the purposes of this subsection (2)(b), "requested" means the employer asked the employee to assume duties for the activity so that the employee's presence is not completely voluntary and optional and the injury occurred in the performance of those duties. (3) (a) Subject to subsection (3)(c), an insurer is liable for an injury, as defined in 39-71-119, only if the injury is established by objective medical findings and if the claimant establishes that it is more probable than not that: (i) a claimed injury has occurred; or (ii) a claimed injury has occurred and aggravated a preexisting condition. (b) Proof that it was medically possible that a claimed injury occurred or that the claimed injury aggravated a preexisting condition is not sufficient to establish liability. (c) Objective medical findings are sufficient for a presumptive occupational disease as defined in 39- 71-1401 but may be overcome by a preponderance of the evidence. (4) (a) An employee who suffers an injury or dies while traveling is not covered by this chapter unless: 255 67th Legislature HB 701 - 101 - Authorized Print Version – HB 701 ENROLLED BILL (i) the employer furnishes the transportation or the employee receives reimbursement from the employer for costs of travel, gas, oil, or lodging as a part of the employee's benefits or employment agreement and the travel is necessitated by and on behalf of the employer as an integral part or condition of the employment; or (ii) the travel is required by the employer as part of the employee's job duties. (b) A payment made to an employee under a collective bargaining agreement, personnel policy manual, or employee handbook or any other document provided to the employee that is not wages but is designated as an incentive to work at a particular jobsite is not a reimbursement for the costs of travel, gas, oil, or lodging, and the employee is not covered under this chapter while traveling. (5) Except as provided in subsection (6), an employee is not eligible for benefits otherwise payable under this chapter if the employee's use of alcohol or drugs not prescribed by a physician is the major contributing cause of the accident. (6) (a) An employee who has received written certification, as defined in 50-46-302 [section 10], from a physician for the use of marijuana for a debilitating medical condition and who is otherwise eligible for benefits payable under this chapter is subject to the limitations of subsections (6)(b) through (6)(d). (b) An employee is not eligible for benefits otherwise payable under this chapter if the employee's use of marijuana for a debilitating medical condition, as defined in 50-46-302 [16-12-102], is the major contributing cause of the injury or occupational disease. (c) Nothing in this chapter may be construed to require an insurer to reimburse any person for costs associated with the use of marijuana for a debilitating medical condition, as defined in 50-46-302 [16-12-102]. (d) In an accepted liability claim, the benefits payable under this chapter may not be increased or enhanced due to a worker's use of marijuana for a debilitating medical condition, as defined in 50-46-302 [16- 12-102]. An insurer remains liable for those benefits that the worker would qualify for absent the worker's use of marijuana for a debilitating medical condition. (7) The provisions of subsection (5) do not apply if the employer had knowledge of and failed to attempt to stop the employee's use of alcohol or drugs not prescribed by a physician. This subsection (7) does not apply to the use of marijuana for a debilitating medical condition because marijuana is not a prescribed drug. 256 67th Legislature HB 701 - 102 - Authorized Print Version – HB 701 ENROLLED BILL (8) If there is no dispute that an insurer is liable for an injury but there is a liability dispute between two or more insurers, the insurer for the most recently filed claim shall pay benefits until that insurer proves that another insurer is responsible for paying benefits or until another insurer agrees to pay benefits. If it is later proven that the insurer for the most recently filed claim is not responsible for paying benefits, that insurer must receive reimbursement for benefits paid to the claimant from the insurer proven to be responsible. (9) If a claimant who has reached maximum healing suffers a subsequent nonwork-related injury to the same part of the body, the workers' compensation insurer is not liable for any compensation or medical benefits caused by the subsequent nonwork-related injury. (10) Except for cases of presumptive occupational disease as provided in 39-71-1401 and 39-71-1402, an employee is not eligible for benefits payable under this chapter unless the entitlement to benefits is established by objective medical findings that contain sufficient factual and historical information concerning the relationship of the worker's condition to the original injury. (11) (a) For occupational diseases, every employer enrolled under plan No. 1, every insurer under plan No. 2, or the state fund under plan No. 3 is liable for the payment of compensation, in the manner and to the extent provided in this chapter, to an employee of an employer covered under plan No. 1, plan No. 2, or the state fund under plan No. 3 if the employee is diagnosed with a compensable occupational disease. (b) The provisions of subsection (11)(a) apply to presumptive occupational disease if the employee is diagnosed and meets the conditions of 39-71-1401 and 39-71-1402. (12) An insurer is liable for an occupational disease only if the occupational disease: (a) is established by objective medical findings; and (b) arises out of or is contracted in the course and scope of employment. An occupational disease is considered to arise out of or be contracted in the course and scope of employment if the events occurring on more than a single day or work shift are the major contributing cause of the occupational disease in relation to other factors contributing to the occupational disease. For the purposes of this subsection (12), an occupational disease is not the same as a presumptive occupational disease. (13) When compensation is payable for an occupational disease or a presumptive occupational disease, the only employer liable is the employer in whose employment the employee was last injuriously exposed to the hazard of the disease. 257 67th Legislature HB 701 - 103 - Authorized Print Version – HB 701 ENROLLED BILL (14) When there is more than one insurer and only one employer at the time that the employee was injuriously exposed to the hazard of the disease, the liability rests with the insurer providing coverage at the earlier of: (a) the time that the occupational disease or presumptive occupational disease was first diagnosed by a health care provider; or (b) the time that the employee knew or should have known that the condition was the result of an occupational disease or a presumptive occupational disease. (15) In the case of pneumoconiosis, any coal mine operator who has acquired a mine in the state or substantially all of the assets of a mine from a person who was an operator of the mine on or after December 30, 1969, is liable for and shall secure the payment of all benefits that would have been payable by that person with respect to miners previously employed in the mine if acquisition had not occurred and that person had continued to operate the mine, and the prior operator of the mine is not relieved of any liability under this section. (16) As used in this section, "major contributing cause" means a cause that is the leading cause contributing to the result when compared to all other contributing causes. (Void on occurrence of contingency-- sec. 7, Ch. 158, L. 2019.) 39-71-407. (Effective on occurrence of contingency) Liability of insurers -- limitations. (1) For workers' compensation injuries, each insurer is liable for the payment of compensation, in the manner and to the extent provided in this section, to an employee of an employer covered under plan No. 1, plan No. 2, and the state fund under plan No. 3 that it insures who receives an injury arising out of and in the course of employment or, in the case of death from the injury, to the employee's beneficiaries, if any. (2) An injury does not arise out of and in the course of employment when the employee is: (a) on a paid or unpaid break, is not at a worksite of the employer, and is not performing any specific tasks for the employer during the break; or (b) engaged in a social or recreational activity, regardless of whether the employer pays for any portion of the activity. The exclusion from coverage of this subsection (2)(b) does not apply to an employee who, at the time of injury, is on paid time while participating in a social or recreational activity or whose presence at the activity is required or requested by the employer. For the purposes of this subsection (2)(b), 258 67th Legislature HB 701 - 104 - Authorized Print Version – HB 701 ENROLLED BILL "requested" means the employer asked the employee to assume duties for the activity so that the employee's presence is not completely voluntary and optional and the injury occurred in the performance of those duties. (3) (a) An insurer is liable for an injury, as defined in 39-71-119, only if the injury is established by objective medical findings and if the claimant establishes that it is more probable than not that: (i) a claimed injury has occurred; or (ii) a claimed injury has occurred and aggravated a preexisting condition. (b) Proof that it was medically possible that a claimed injury occurred or that the claimed injury aggravated a preexisting condition is not sufficient to establish liability. (4) (a) An employee who suffers an injury or dies while traveling is not covered by this chapter unless: (i) the employer furnishes the transportation or the employee receives reimbursement from the employer for costs of travel, gas, oil, or lodging as a part of the employee's benefits or employment agreement and the travel is necessitated by and on behalf of the employer as an integral part or condition of the employment; or (ii) the travel is required by the employer as part of the employee's job duties. (b) A payment made to an employee under a collective bargaining agreement, personnel policy manual, or employee handbook or any other document provided to the employee that is not wages but is designated as an incentive to work at a particular jobsite is not a reimbursement for the costs of travel, gas, oil, or lodging, and the employee is not covered under this chapter while traveling. (5) Except as provided in subsection (6), an employee is not eligible for benefits otherwise payable under this chapter if the employee's use of alcohol or drugs not prescribed by a physician is the major contributing cause of the accident. (6) (a) An employee who has received written certification, as defined in 50-46-302 [section 10], from a physician for the use of marijuana for a debilitating medical condition and who is otherwise eligible for benefits payable under this chapter is subject to the limitations of subsections (6)(b) through (6)(d). (b) An employee is not eligible for benefits otherwise payable under this chapter if the employee's use of marijuana for a debilitating medical condition, as defined in 50-46-302 [16-12-102], is the major contributing cause of the injury or occupational disease. 259 67th Legislature HB 701 - 105 - Authorized Print Version – HB 701 ENROLLED BILL (c) Nothing in this chapter may be construed to require an insurer to reimburse any person for costs associated with the use of marijuana for a debilitating medical condition, as defined in 50-46-302 [16-12-102]. (d) In an accepted liability claim, the benefits payable under this chapter may not be increased or enhanced due to a worker's use of marijuana for a debilitating medical condition, as defined in 50-46-302 [16- 12-102]. An insurer remains liable for those benefits that the worker would qualify for absent the worker's use of marijuana for a debilitating medical condition. (7) The provisions of subsection (5) do not apply if the employer had knowledge of and failed to attempt to stop the employee's use of alcohol or drugs not prescribed by a physician. This subsection (7) does not apply to the use of marijuana for a debilitating medical condition because marijuana is not a prescribed drug. (8) If there is no dispute that an insurer is liable for an injury but there is a liability dispute between two or more insurers, the insurer for the most recently filed claim shall pay benefits until that insurer proves that another insurer is responsible for paying benefits or until another insurer agrees to pay benefits. If it is later proven that the insurer for the most recently filed claim is not responsible for paying benefits, that insurer must receive reimbursement for benefits paid to the claimant from the insurer proven to be responsible. (9) If a claimant who has reached maximum healing suffers a subsequent nonwork-related injury to the same part of the body, the workers' compensation insurer is not liable for any compensation or medical benefits caused by the subsequent nonwork-related injury. (10) An employee is not eligible for benefits payable under this chapter unless the entitlement to benefits is established by objective medical findings that contain sufficient factual and historical information concerning the relationship of the worker's condition to the original injury. (11) For occupational diseases, every employer enrolled under plan No. 1, every insurer under plan No. 2, or the state fund under plan No. 3 is liable for the payment of compensation, in the manner and to the extent provided in this chapter, to an employee of an employer covered under plan No. 1, plan No. 2, or the state fund under plan No. 3 if the employee is diagnosed with a compensable occupational disease. (12) An insurer is liable for an occupational disease only if the occupational disease: (a) is established by objective medical findings; and (b) arises out of or is contracted in the course and scope of employment. An occupational disease is 260 67th Legislature HB 701 - 106 - Authorized Print Version – HB 701 ENROLLED BILL considered to arise out of or be contracted in the course and scope of employment if the events occurring on more than a single day or work shift are the major contributing cause of the occupational disease in relation to other factors contributing to the occupational disease. (13) When compensation is payable for an occupational disease, the only employer liable is the employer in whose employment the employee was last injuriously exposed to the hazard of the disease. (14) When there is more than one insurer and only one employer at the time that the employee was injuriously exposed to the hazard of the disease, the liability rests with the insurer providing coverage at the earlier of: (a) the time that the occupational disease was first diagnosed by a health care provider; or (b) the time that the employee knew or should have known that the condition was the result of an occupational disease. (15) In the case of pneumoconiosis, any coal mine operator who has acquired a mine in the state or substantially all of the assets of a mine from a person who was an operator of the mine on or after December 30, 1969, is liable for and shall secure the payment of all benefits that would have been payable by that person with respect to miners previously employed in the mine if acquisition had not occurred and that person had continued to operate the mine, and the prior operator of the mine is not relieved of any liability under this section. (16) As used in this section, "major contributing cause" means a cause that is the leading cause contributing to the result when compared to all other contributing causes." Section 68. Section 41-5-216, MCA, is amended to read: "41-5-216. Disposition of youth court, law enforcement, and department records -- sharing and access to records. (1) Formal and informal youth court records, law enforcement records, and department records that are not exempt from sealing under subsections (4) and (6) and that pertain to a youth covered by this chapter must be physically sealed on the youth's 18th birthday. In those cases in which jurisdiction of the court or any agency is extended beyond the youth's 18th birthday, the records must be physically sealed upon termination of the extended jurisdiction. (2) Except as provided in subsection (6), when the records pertaining to a youth pursuant to this 261 67th Legislature HB 701 - 107 - Authorized Print Version – HB 701 ENROLLED BILL section are sealed, an agency, other than the department, that has in its possession copies of the sealed records shall destroy the copies of the records. Anyone violating the provisions of this subsection is subject to contempt of court. (3) Except as provided in subsection (6), this section does not prohibit the destruction of records with the consent of the youth court judge or county attorney after 10 years from the date of sealing. (4) The requirements for sealed records in this section do not apply to medical records, fingerprints, DNA records, photographs, youth traffic records, records in any case in which the youth did not fulfill all requirements of the court's judgment or disposition, records referred to in 42-3-203, or the information referred to in 46-23-508, in any instance in which the youth was required to register as a sexual offender pursuant to Title 46, chapter 23, part 5. (5) After formal and informal youth court records, law enforcement records, and department records are sealed, they are not open to inspection except, upon order of the youth court, for good cause to: (a) those persons and agencies listed in 41-5-215(2); and (b) adult probation and parole staff preparing a presentence report on an adult with an existing sealed youth court record. (6) (a) When formal youth court records, law enforcement records, and department records are sealed under subsection (1), the electronic records of the management information system maintained by the office of court administrator and by the department relating to the youth whose records are being sealed must be preserved for the express purpose of research and program evaluation. (b) The department of public health and human services, the office of court administrator, and the department shall disassociate the offense and disposition information from the name of the youth in the respective management information system. The offense and disposition information must be maintained separately and may be used only: (i) for research and program evaluation authorized by the office of court administrator or by the department and subject to any applicable laws; and (ii) as provided in Title 5, chapter 13. (7) (a) Informal youth court records for a youth for whom formal proceedings have been filed must be physically sealed on the youth's 18th birthday or, in those cases in which jurisdiction of the court or any agency 262 67th Legislature HB 701 - 108 - Authorized Print Version – HB 701 ENROLLED BILL is extended beyond the youth's 18th birthday, upon termination of the extended jurisdiction and may be inspected only pursuant to subsection (5). (b) The informal youth court records are confidential and may be shared only with those persons and agencies listed in 41-5-215(2). (c) Except as provided in subsection (7)(a), when a youth becomes 18 years of age or when extended supervision ends and the youth was involved only in informal proceedings, informal youth court records that are in hard-copy form must be destroyed and any electronic records in the youth court management information system must disassociate the offense and disposition information from the name of the youth and may be used only for the following purposes: (i) for research and program evaluation authorized by the office of the court administrator and subject to any applicable laws; and (ii) as provided in Title 5, chapter 13. (8) Nothing in this section prohibits the sharing of formal or informal youth court records within the juvenile probation management information system to a person or agency listed in 41-5-215(2). (9) This section does not prohibit the sharing of formal or informal youth court records within the department's youth management information system. Electronic records of the department's youth management information system may not be shared except as provided in subsection (5). A person or agency receiving the youth court record shall destroy the record after it has fulfilled its purpose. (10) This section does not prohibit the sharing of formal or informal youth court records with a short- term detention center, a youth care facility, a youth assessment center, or a youth detention facility upon placement of a youth within the facility. (11) This section does not prohibit access to formal or informal youth court records, including electronic records, for purposes of conducting evaluations as required by 41-5-2003 and studies conducted between individuals and agencies listed in 41-5-215(2). (12) This section does not prohibit the office of court administrator, upon written request from the department of public health and human services revenue, from confirming whether a person applying for a registry identification card pursuant to 50-46-307 [section 11] or a license pursuant to 50-46-308 16-12-203 is currently under youth court supervision." 263 67th Legislature HB 701 - 109 - Authorized Print Version – HB 701 ENROLLED BILL Section 69. Section 45-9-101, MCA, is amended to read: "45-9-101. Criminal distribution of dangerous drugs. (1) Except as provided in Title 16, chapter 12, or Title 50, chapter 46, a person commits the offense of criminal distribution of dangerous drugs if the person sells, barters, exchanges, gives away, or offers to sell, barter, exchange, or give away any dangerous drug, as defined in 50-32-101. (2) A person convicted of criminal distribution of dangerous drugs involving giving away or sharing any dangerous drug, as defined in 50-32-101, shall be sentenced as provided in 45-9-102. (3) A person convicted of criminal distribution of dangerous drugs not otherwise provided for in subsection (1), (2), or (4) shall be imprisoned in the state prison for a term not to exceed 25 years or be fined an amount of not more than $50,000, or both. (4) A person who was an adult at the time of distribution and who is convicted of criminal distribution of dangerous drugs to a minor shall be sentenced as follows: (a) For a first offense, the person shall be imprisoned in the state prison for a term not to exceed 40 years and may be fined not more than $50,000. (b) For a second or subsequent offense, the person shall be imprisoned in the state prison for a term not to exceed life and may be fined not more than $50,000. (5) Practitioners, as defined in 50-32-101, and agents under their supervision acting in the course of a professional practice are exempt from this section." Section 70. Section 45-9-102, MCA, is amended to read: "45-9-102. Criminal possession of dangerous drugs. (1) Except as provided in Title 16, chapter 12, or 50-32-609, or Title 50, chapter 46, a person commits the offense of criminal possession of dangerous drugs if the person possesses any dangerous drug, as defined in 50-32-101, [in an amount] greater than permitted or for which a penalty is not specified under Title 16, chapter 12. (2) A person convicted of criminal possession of dangerous drugs shall be imprisoned in the state prison for a term not to exceed 5 years or be fined an amount not to exceed $5,000, or both. (3) A person convicted of a first violation under this section is presumed to be entitled to a deferred 264 67th Legislature HB 701 - 110 - Authorized Print Version – HB 701 ENROLLED BILL imposition of sentence of imprisonment. (4) Ultimate users and practitioners, as defined in 50-32-101, and agents under their supervision acting in the course of a professional practice are exempt from this section." Section 71. Section 45-9-103, MCA, is amended to read: "45-9-103. Criminal possession with intent to distribute. (1) Except as provided in Title 16, chapter 12, or Title 50, chapter 46, a person commits the offense of criminal possession with intent to distribute if the person possesses with intent to distribute any dangerous drug as defined in 50-32-101 [in an amount] greater than permitted or for which a penalty is not specified under Title 16, chapter 12. (2) A person convicted of criminal possession with intent to distribute shall be imprisoned in the state prison for a term of not more than 20 years or be fined an amount not to exceed $50,000, or both. (3) Practitioners, as defined in 50-32-101, and agents under their supervision acting in the course of a professional practice are exempt from this section." Section 72. Section 45-9-110, MCA, is amended to read: "45-9-110. Criminal production or manufacture of dangerous drugs. (1) Except as provided in Title 16, chapter 12, or Title 50, chapter 46, a person commits the offense of criminal production or manufacture of dangerous drugs if the person knowingly or purposely produces, manufactures, prepares, cultivates, compounds, or processes a dangerous drug, as defined in 50-32-101. (2) A person convicted of criminal production or manufacture of dangerous drugs, as defined in 50- 32-101, shall be imprisoned in the state prison for a term of not more than 25 years and may be fined an amount not to exceed $50,000. (3) A person convicted of production of marijuana or tetrahydrocannabinol in an amount greater than permitted or for which a penalty is not specified under Title 16, chapter 12, or Title 50, chapter 46, or manufacture without the appropriate license and endorsement pursuant to Title 16, chapter 12, or Title 50, chapter 46, shall be imprisoned in the state prison for a term of not more than 5 years and may be fined an amount not to exceed $5,000, except that if the total weight is more than a pound or the number of plants is more than 30, the person shall be imprisoned in the state prison for a term of not more than 25 years and may 265 67th Legislature HB 701 - 111 - Authorized Print Version – HB 701 ENROLLED BILL be fined an amount not to exceed $50,000. "Weight" means the weight of the dry plant and includes the leaves and stem structure but does not include the root structure. (4) Practitioners, as defined in 50-32-101, and agents under their supervision acting in the course of a professional practice are exempt from this section." Section 73. Section 45-9-127, MCA, is amended to read: "45-9-127. Carrying dangerous drugs on train -- penalty. (1) Except as provided in Title 16, chapter 12, or Title 50, chapter 46, a person commits the offense of carrying dangerous drugs on a train in this state if the person is knowingly or purposely in criminal possession of a dangerous drug and boards any train. (2) A person convicted of carrying dangerous drugs on a train in this state is subject to the penalties provided in 45-9-102." Section 74. Section 45-9-203, MCA, is amended to read: "45-9-203. Surrender of license. (1) If a court suspends or revokes a driver's license under 45-9- 202(2)(e), the defendant shall, at the time of sentencing, surrender the license to the court. The court shall forward the license and a copy of the sentencing order to the department of justice. The defendant may apply to the department for issuance of a probationary license under 61-2-302. (2) If a person with a registry identification card or license issued pursuant to 50-46-307 [section 11] or 50-46-308 16-12-203 is convicted of an offense under this chapter, the court shall: (a) at the time of sentencing, require the person to surrender the registry identification card; and (b) notify the department of public health and human services revenue of the conviction in order for the department to carry out its duties under 50-46-330 [section 18] or 16-12-109." Section 75. Section 45-10-103, MCA, is amended to read: "45-10-103. Criminal possession of drug paraphernalia. Except as provided in Title 16, chapter 12, or 50-32-609, or Title 50, chapter 46, it is unlawful for a person to use or to possess with intent to use drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into 266 67th Legislature HB 701 - 112 - Authorized Print Version – HB 701 ENROLLED BILL the human body a dangerous drug. A person who violates this section is guilty of a misdemeanor and upon conviction shall be imprisoned in the county jail for not more than 6 months, fined an amount of not more than $500, or both. A person convicted of a first violation of this section is presumed to be entitled to a deferred imposition of sentence of imprisonment." Section 76. Section 45-10-107, MCA, is amended to read: "45-10-107. Exemptions. The provisions of this part do not apply to: (1) practitioners, as defined in 50-32-101, and agents under their supervision acting in the course of a professional practice; (2) persons acting in compliance with Title 50, chapter 46; (3)(2) persons acting in compliance with Title 16, chapter 12; or (4)(3) persons acting as employees or volunteers of an organization, including a nonprofit community- based organization, local health department, or tribal health department, that provides needle and syringe exchange services to prevent and reduce the transmission of communicable diseases." Section 77. Section 46-18-202, MCA, is amended to read: "46-18-202. Additional restrictions on sentence. (1) The sentencing judge may also impose any of the following restrictions or conditions on the sentence provided for in 46-18-201 that the judge considers necessary to obtain the objectives of rehabilitation and the protection of the victim and society: (a) prohibition of the offender's holding public office; (b) prohibition of the offender's owning or carrying a dangerous weapon; (c) restrictions on the offender's freedom of association; (d) restrictions on the offender's freedom of movement; (e) a requirement that the defendant provide a biological sample for DNA testing for purposes of Title 44, chapter 6, part 1, if an agreement to do so is part of the plea bargain; (f) a requirement that the offender surrender any registry identification card issued under [section 11] or license issued under 50-46-303 16-12-203; (g) any other limitation reasonably related to the objectives of rehabilitation and the protection of the 267 67th Legislature HB 701 - 113 - Authorized Print Version – HB 701 ENROLLED BILL victim and society. (2) Whenever the sentencing judge imposes a sentence of imprisonment in a state prison for a term exceeding 1 year, the sentencing judge may also impose the restriction that the offender is ineligible for parole and participation in the supervised release program while serving that term. If the restriction is to be imposed, the sentencing judge shall state the reasons for it in writing. If the sentencing judge finds that the restriction is necessary for the protection of society, the judge shall impose the restriction as part of the sentence and the judgment must contain a statement of the reasons for the restriction. (3) If a sentencing judge requires an offender to surrender a registry identification card issued under [section 11] or license issued under 50-46-303 16-12-203, the court shall return the card or license to the department of public health and human services revenue and provide the department with information on the offender's sentence. The department shall revoke the card for the duration of the sentence and shall return the card if the offender successfully completes the terms of the sentence before the expiration date listed on the card." Section 78. Section 50-46-302, MCA, is amended to read: "50-46-302. Definitions. As used in this part, the following definitions apply: (1) "Canopy" means the total amount of square footage dedicated to live plant production at a registered premises consisting of the area of the floor, platform, or means of support or suspension of the plant. (2) "Chemical manufacturing" means the production of marijuana concentrate. (3) "Correctional facility or program" means a facility or program that is described in 53-1-202 and to which an individual may be ordered by any court of competent jurisdiction. (4) "Debilitating medical condition" means: (a) cancer, glaucoma, positive status for human immunodeficiency virus, or acquired immune deficiency syndrome when the condition or disease results in symptoms that seriously and adversely affect the patient's health status; (b) cachexia or wasting syndrome; (c) severe chronic pain that is persistent pain of severe intensity that significantly interferes with daily activities as documented by the patient's treating physician; 268 67th Legislature HB 701 - 114 - Authorized Print Version – HB 701 ENROLLED BILL (d) intractable nausea or vomiting; (e) epilepsy or an intractable seizure disorder; (f) multiple sclerosis; (g) Crohn's disease; (h) painful peripheral neuropathy; (i) a central nervous system disorder resulting in chronic, painful spasticity or muscle spasms; (j) admittance into hospice care in accordance with rules adopted by the department; or (k) posttraumatic stress disorder. (5) "Department" means the department of public health and human services revenue provided for in 2-15-2201 2-15-1301. (6) "Dispensary" means a registered premises from which a provider or marijuana-infused products provider is approved by the department to dispense marijuana or marijuana-infused products to a registered cardholder. (7) (a) "Employee" means an individual employed to do something for the benefit of an employer. (b) The term includes a manager, agent, or director of a partnership, association, company, corporation, limited liability company, or organization. (c) The term does not include a third party with whom a licensee has a contractual relationship. (8) "Financial interest" means a legal or beneficial interest that entitles the holder, directly or indirectly through a business, an investment, or a spouse, parent, or child relationship, to 1% or more of the net profits or net worth of the entity in which the interest is held. (9) "Local government" means a county, a consolidated government, or an incorporated city or town. (10) "Marijuana" has the meaning provided in 50-32-101. (11) "Marijuana concentrate" means any type of marijuana product consisting wholly or in part of the resin extracted from any part of the marijuana plant. (12) "Marijuana derivative" means any mixture or preparation of the dried leaves, flowers, resin, and byproducts of the marijuana plant, including but not limited to marijuana concentrates and marijuana-infused products. (13) (a) "Marijuana-infused product" means a product that contains marijuana and is intended for use 269 67th Legislature HB 701 - 115 - Authorized Print Version – HB 701 ENROLLED BILL by a registered cardholder by a means other than smoking. (b) The term includes but is not limited to edible products, ointments, and tinctures. (14) (a) "Marijuana-infused products provider" means a person licensed by the department to manufacture and provide marijuana-infused products for a registered cardholder. (b) The term does not include the cardholder's treating or referral physician. (15) "Mature marijuana plant" means a harvestable female marijuana plant that is flowering. (16) "Paraphernalia" has the meaning provided in 45-10-101. (17) "Person" means an individual, partnership, association, company, corporation, limited liability company, or organization. (18) (a) "Provider" means a person licensed by the department to assist a registered cardholder as allowed under this part. (b) The term does not include a cardholder's treating physician or referral physician. (19) "Referral physician" means an individual who: (a) is licensed under Title 37, chapter 3; and (b) is the physician to whom a patient's treating physician has referred the patient for physical examination and medical assessment. (20) "Registered cardholder" or "cardholder" means a Montana resident with a debilitating medical condition who has received and maintains a valid registry identification card. (21) "Registered premises" means the location at which a provider or marijuana-infused products provider: (a) has indicated that marijuana will be cultivated, chemical manufacturing will occur, or marijuana- infused products will be manufactured for registered cardholders; or (b) has established a dispensary for sale of marijuana or marijuana-infused products to registered cardholders. (22) "Registry identification card" means a document issued by the department pursuant to 50-46-303 that identifies an individual as a registered cardholder. (23) (a) "Resident" means an individual who meets the requirements of 1-1-215. (b) An individual is not considered a resident for the purposes of this part if the individual: 270 67th Legislature HB 701 - 116 - Authorized Print Version – HB 701 ENROLLED BILL (i) claims residence in another state or country for any purpose; or (ii) is an absentee property owner paying property tax on property in Montana. (24) "Second degree of kinship by blood or marriage" means a mother, father, brother, sister, son, daughter, spouse, grandparent, grandchild, mother-in-law, father-in-law, brother-in-law, sister-in-law, son-in- law, daughter-in-law, grandparent-in-law, grandchild-in-law, stepfather, stepmother, stepbrother, stepsister, stepson, stepdaughter, stepgrandparent, or stepgrandchild. (25) "Seedling" means a marijuana plant that has no flowers and is less than 12 inches in height and 12 inches in diameter. (26) "Standard of care" means, at a minimum, the following activities when undertaken in person or through the use of telemedicine by a patient's treating physician or referral physician if the treating physician or referral physician is providing written certification for a patient with a debilitating medical condition: (a) obtaining the patient's medical history; (b) performing a relevant and necessary physical examination; (c) reviewing prior treatment and treatment response for the debilitating medical condition; (d) obtaining and reviewing any relevant and necessary diagnostic test results related to the debilitating medical condition; (e) discussing with the patient and ensuring that the patient understands the advantages, disadvantages, alternatives, potential adverse effects, and expected response to the recommended treatment; (f) monitoring the response to treatment and possible adverse effects; and (g) creating and maintaining patient records that remain with the physician. (27) "State laboratory" means the laboratory operated by the department to conduct environmental analyses. (28) "Telemedicine" has the meaning provided in 33-22-138. (29) "Testing laboratory" means a qualified person, licensed by the department, who meets the requirements of 50-46-311 and: (a) provides testing of representative samples of marijuana and marijuana-infused products; and (b) provides information regarding the chemical composition, the potency of a sample, and the presence of molds, pesticides, or other contaminants in a sample. 271 67th Legislature HB 701 - 117 - Authorized Print Version – HB 701 ENROLLED BILL (30) "Treating physician" means an individual who: (a) is licensed under Title 37, chapter 3; and (b) has a bona fide professional relationship with the individual applying to be a registered cardholder. (31) (a) "Usable marijuana" means the dried leaves and flowers of the marijuana plant and any marijuana derivatives that are appropriate for the use of marijuana by an individual with a debilitating medical condition. (b) The term does not include the seeds, stalks, and roots of the plant. (32) "Written certification" means a statement signed by a treating physician or referral physician that meets the requirements of 50-46-310 and is provided in a manner that meets the standard of care." Section 79. Section 50-46-303, MCA, is amended to read: "50-46-303. Medical marijuana registry -- department responsibilities -- issuance of cards and licenses -- confidentiality. (1) The department shall establish and maintain a registry of persons who receive registry identification cards or licenses under this part. The department shall issue: (a) registry identification cards to Montana residents who have debilitating medical conditions and who submit applications meeting the requirements of this part; (b) licenses: (i) to persons who apply to operate as providers or marijuana-infused products providers and who submit applications meeting the requirements of this part; (ii) for dispensaries established by providers or marijuana-infused products providers; and (iii) through the state laboratory, to testing laboratories that submit applications meeting the requirements of this part; and (c) endorsements for chemical manufacturing to a provider or a marijuana-infused products provider who applies for a chemical manufacturing endorsement and meets requirements established by the department by rule. (2) (a) An individual who obtains a registry identification card and indicates the individual will not use the system of licensed providers and marijuana-infused products providers to obtain marijuana or marijuana- infused products is authorized to cultivate, manufacture, possess, and transport marijuana as allowed by this 272 67th Legislature HB 701 - 118 - Authorized Print Version – HB 701 ENROLLED BILL part. (b) An individual who obtains a registry identification card and indicates the individual will use the system of licensed providers and marijuana-infused products providers to obtain marijuana or marijuana- infused products is authorized to possess marijuana as allowed by this part. (c)(a) A person who obtains a provider, marijuana-infused products provider, or dispensary license or an employee of a licensed provider or marijuana-infused products provider is authorized to cultivate, manufacture, possess, sell, and transport marijuana as allowed by this part. (d)(b) A person who obtains a testing laboratory license or an employee of a licensed testing laboratory is authorized to possess, test, and transport marijuana as allowed by this part. (3) The department shall conduct criminal history background checks as required by 50-46-307 and 50-46-308 before issuing a license to a provider or marijuana-infused products provider. (4) (a) Registry identification cards and licenses issued pursuant to this part must: (i) be laminated and produced on a material capable of lasting for the duration of the time period for which the card or license is valid; (ii) state the name, address, and date of birth of the registered cardholder; (iii) indicate whether the cardholder is obtaining marijuana and marijuana-infused products through the system of licensed providers and marijuana-infused products providers; (iv) indicate whether a provider or marijuana-infused products provider has an endorsement for chemical manufacturing; (v) state the date of issuance and the expiration date of the registry identification card or license; (vi) contain a unique identification number; and (vii) contain other information that the department may specify by rule. (b) Except as provided in subsection (4)(c), in addition to complying with subsection (4)(a), registry identification cards issued pursuant to this part must: (i) include a picture of the registered cardholder; and (ii) be capable of being used to track registered cardholder purchases. (c) (i) The department shall issue temporary registry identification cards upon receipt of an application. The cards are valid for 60 days and are exempt from the requirements of subsection (4)(b). Printing 273 67th Legislature HB 701 - 119 - Authorized Print Version – HB 701 ENROLLED BILL of the temporary identification cards is exempt from the provisions of Title 18, chapter 7. (ii) The cards may be issued before an applicant's payment of the fee has cleared. The department shall cancel the temporary card after 60 days and may not issue a permanent card until the fee is paid. (5) (a) The department or state laboratory, as applicable, shall review the information contained in an application or renewal submitted pursuant to this part and shall approve or deny an application or renewal within 30 days of receiving the application or renewal and all related application materials. (b) If the department fails to act on a completed application within 30 days of receipt, the department shall: (i) refund the fee paid by an applicant for a registry identification card; (ii) reduce the cost of the licensing fee for a new applicant for licensure or for a licensee seeking renewal of a license by 5% each week that the application is pending; and (iii) if a licensee is unable to operate because a license renewal application has not been acted on, reimburse the licensee 50% of the gross sales the licensee reported in the most recent quarter for the purpose of the tax provided for in 15-64-102. (c) Applications that are not processed within 30 days of receipt remain active until the department takes final action. (d) An application for a license or renewal of a license is not considered complete until the department has completed a satisfactory inspection as required by this part and related administrative rules. (e) The department shall issue a registry identification card, license, or endorsement within 5 days of approving an application or renewal. (6) Review of a rejection of an application or renewal may be conducted as a contested case hearing pursuant to the provisions of the Montana Administrative Procedure Act. (7) (a) Registry identification cards expire 1 year after the date of issuance unless a physician has provided a written certification stating that a card is valid for a shorter period of time. (b) Licenses and endorsements issued to providers, marijuana-infused products providers, and testing laboratories must be renewed annually. (8) (a) A registered cardholder shall notify the department of any change in the cardholder's name, address, or physician or change in the status of the cardholder's debilitating medical condition within 10 days of 274 67th Legislature HB 701 - 120 - Authorized Print Version – HB 701 ENROLLED BILL the change. (b) A registered cardholder who possesses mature plants or seedlings under 50-46-319(1) shall notify the department of the location of the plants and seedlings or any change of location of plants or seedlings. The department shall provide the names and locations of cardholders who possess mature plants or seedlings to the local law enforcement agency having jurisdiction in the area in which the plants or seedlings are located. The law enforcement agency and its employees are subject to the confidentiality requirements of 50-46-332. (c)(b) If a change occurs and is not reported to the department, the registry identification card is void. (9) The department shall maintain a confidential list of individuals to whom the department has issued registry identification cards. Except as provided in subsections (8)(b) and subsection (10), individual names and other identifying information on the list must be confidential and are not subject to disclosure, except to: (a) authorized employees of the department as necessary to perform the official duties of the department; (b) authorized employees of state or local government agencies, including law enforcement agencies, only as necessary to verify that an individual is a lawful possessor of a registry identification card; (c) a judge, magistrate, or other authorized judicial officer in response to an order requiring disclosure; and (d) another person or entity when the information pertains to a cardholder who has given written consent to the release and has specified: (i) the type of information to be released; and (ii) the person or entity to whom it may be released. (10) The department shall provide the names and phone numbers of providers and marijuana-infused products providers and the city, town, or county where registered premises and testing laboratories are located to the public on the department's website. The department may not disclose the physical location or address of a provider, marijuana-infused products provider, dispensary, or testing laboratory. (11) The department may share only information about providers, marijuana-infused products providers, dispensaries, and testing laboratories with the department of revenue for the purpose of investigation and prevention of noncompliance with tax laws, including but not limited to evasion, fraud, and abuse. The department of revenue and its employees are subject to the confidentiality requirements of 15-64-111(1)." 275 67th Legislature HB 701 - 121 - Authorized Print Version – HB 701 ENROLLED BILL Section 80. Section 50-46-307, MCA, is amended to read: "50-46-307. Individuals with debilitating medical conditions -- requirements -- minors -- limitations. (1) Except as provided in subsections (2) through (5), the department shall issue a registry identification card to an individual with a debilitating medical condition who submits the following, in accordance with department rules: (a) an application on a form prescribed by the department; (b) an application fee or a renewal fee; (c) the individual's name, street address, and date of birth; (d) proof of Montana residency; (e) a statement that the individual will be cultivating marijuana and manufacturing marijuana-infused products for the individual's use or will be obtaining marijuana or marijuana-infused products through the system of licensed providers and marijuana-infused products providers; (f)(e) a statement, on a form prescribed by the department, that the individual will not divert to any other individual the marijuana or marijuana-infused products that the individual cultivates, manufactures, or obtains through the system of licensed providers and marijuana-infused products providers for the individual's debilitating medical condition; (g)(f) the name of the individual's treating physician or referral physician and the street address and telephone number of the physician's office; (h)(g) the street address where the individual is cultivating marijuana or manufacturing marijuana- infused products if the individual is cultivating marijuana or manufacturing marijuana-infused products for the individual's own use; and (i)(h) the written certification and accompanying statements from the individual's treating physician or referral physician as required pursuant to 50-46-310. (2) The department shall issue a registry identification card to a minor if the materials required under subsection (1) are submitted and the minor's custodial parent or legal guardian with responsibility for health care decisions: (a) provides proof of legal guardianship and responsibility for health care decisions if the individual is 276 67th Legislature HB 701 - 122 - Authorized Print Version – HB 701 ENROLLED BILL submitting an application as the minor's legal guardian with responsibility for health care decisions; and (b) signs and submits a written statement that: (i) the minor's treating physician or referral physician has explained to the minor and to the minor's custodial parent or legal guardian with responsibility for health care decisions the potential risks and benefits of the use of marijuana; (ii) indicates whether the parent or legal guardian will be obtaining marijuana or marijuana-infused products for the minor through the system of licensed providers and marijuana-infused products providers; and (iii) the minor's custodial parent or legal guardian with responsibility for health care decisions: (A) consents to the use of marijuana by the minor; (B) agrees to control the acquisition of marijuana and the dosage and frequency of the use of marijuana by the minor; (C) agrees that the minor will use only marijuana-infused products and will not smoke marijuana; (c) if the parent or guardian will be serving as the minor's provider, undergoes background checks in accordance with subsection (3). The parent or legal guardian shall pay the costs of the background check and may not obtain a license as a marijuana-infused products provider if the parent or legal guardian does not meet the requirements of 50-46-308. (d) pledges, on a form prescribed by the department, not to divert to any individual any marijuana cultivated or obtained for the minor's use in a marijuana-infused product. (3) A parent serving as a minor's provider shall submit fingerprints to facilitate a fingerprint and background check by the department of justice and federal bureau of investigation upon the minor's initial application for a registry identification card and every 3 5 years after that. The department shall conduct a name-based background check in years when a fingerprint background check is not required. (4) An application for a registry identification card for a minor must be accompanied by the written certification and accompanying statements required pursuant to 50-46-310 from a second physician in addition to the minor's treating physician or referral physician. (5) An individual may not be a registered cardholder if the individual is in the custody of or under the supervision of the department of corrections or a youth court. (6) A registered cardholder who elects to obtain marijuana or marijuana-infused products through the 277 67th Legislature HB 701 - 123 - Authorized Print Version – HB 701 ENROLLED BILL system of licensed providers and marijuana-infused products providers may not cultivate marijuana or manufacture marijuana-infused products for the cardholder's use unless the registered cardholder is a licensed provider or marijuana-infused products provider. (7) A registered cardholder may cultivate marijuana and manufacture marijuana-infused products as allowed under 50-46-319 only: (a) at a property that is owned by the cardholder; or (b) with written permission of the property owner, at a property that is rented or leased by the cardholder. (8) No portion of the property used for cultivation of marijuana and manufacture of marijuana-infused products for use by the registered cardholder may be shared with or rented or leased to a provider, a marijuana-infused products provider, or a registered cardholder unless the property is owned, rented, or leased by cardholders who are related to each other by the second degree of kinship by blood or marriage." Section 81. Section 50-46-319, MCA, is amended to read: "50-46-319. Legal protections -- allowable amounts. (1) (a) A registered cardholder who has elected to obtain marijuana and marijuana-infused products through the system of licensed providers and marijuana-infused products providers may: (i) possess up to 1 ounce of usable marijuana; and (ii) purchase a maximum of 5 ounces of usable marijuana a month and no more than 1 ounce of usable marijuana a day. (b) (i) A registered cardholder who has elected not to use the system of licensed providers and marijuana-infused products providers may possess up to 4 mature plants, 4 seedlings, and the amount of usable marijuana allowed by the department by rule. (ii) If two or more registered cardholders share a residence and have elected not to use the system of licensed providers and marijuana-infused products providers, the cardholders may have a maximum of 8 mature plants, 8 seedlings, and the amount of usable marijuana allowed by the department by rule. The limits in this subsection (1)(b)(ii) apply regardless of the location of the plants and seedlings. (iii) A registered cardholder who possesses mature plants or seedlings shall notify the department of 278 67th Legislature HB 701 - 124 - Authorized Print Version – HB 701 ENROLLED BILL the location of the plants and seedlings pursuant to 50-46-303(8)(b). (c)(b) A provider or marijuana-infused products provider may have the canopy allowed by the department for the provider or marijuana-infused products provider. The canopy allotment is a cumulative total for all of the provider's or marijuana-infused products provider's registered premises and may not be interpreted as an allotment for each premises. (d)(c) (i) A registered cardholder may petition the department for an exception to the monthly limit on purchases. The request must be accompanied by a confirmation from the physician who signed the cardholder's written certification that the cardholder's debilitating medical condition warrants purchase of an amount exceeding the monthly limit. (ii) If the department approves an exception to the cap, the approval must establish the monthly amount of usable marijuana that the cardholder may purchase and the limit must be entered into the seed-to- sale tracking system. (2) Except as provided in 50-46-320 and subject to the provisions of subsection (7) of this section, an individual who possesses a registry identification card or license issued pursuant to this part may not be arrested, prosecuted, or penalized in any manner or be denied any right or privilege, including but not limited to civil penalty or disciplinary action by a professional licensing board or the department of labor and industry, solely because: (a) the person cultivates, manufactures, possesses, or transports marijuana in the amounts allowed under this section; or (b) the registered cardholder acquires or uses marijuana. (3) A physician may not be arrested, prosecuted, or penalized in any manner or be denied any right or privilege, including but not limited to civil penalty or disciplinary action by the board of medical examiners or the department of labor and industry, solely for providing written certification for a patient with a debilitating medical condition. (4) Nothing in this section prevents the imposition of a civil penalty or a disciplinary action by a professional licensing board or the department of labor and industry if: (a) a registered cardholder's use of marijuana impairs the cardholder's job-related performance; or (b) a physician violates the standard of care or other requirements of this part. 279 67th Legislature HB 701 - 125 - Authorized Print Version – HB 701 ENROLLED BILL (5) (a) An individual may not be arrested or prosecuted for constructive possession, conspiracy as provided in 45-4-102, or other provisions of law or any other offense solely for being in the presence or vicinity of the use of marijuana and marijuana-infused products as permitted under this part. (b) This subsection (5) does not prevent the arrest or prosecution of an individual who is in the vicinity of a registered cardholder's use of marijuana if the individual is in possession of or is using marijuana and is not a registered cardholder. (6) Except as provided in 50-46-329, possession of or application for a license or registry identification card does not alone constitute probable cause to search the person or individual or the property of the person or individual or otherwise subject the person or individual or property of the person or individual possessing or applying for the license or card to inspection by any governmental agency, including a law enforcement agency. (7) The provisions of this section relating to protection from arrest or prosecution do not apply to an individual unless the individual has obtained a license or registry identification card prior to an arrest or the filing of a criminal charge. It is not a defense to a criminal charge that an individual obtains a license or registry identification card after an arrest or the filing of a criminal charge. (8) (a) A registered cardholder, a provider, or a marijuana-infused products provider is presumed to be engaged in the use of marijuana as allowed by this part if the person: (i) is in possession of a valid registry identification card or license; and (ii) is in possession of an amount of marijuana that does not exceed the amount permitted under this part. (b) The presumption may be rebutted by evidence that the possession of marijuana was not for the purpose of alleviating the symptoms or effects of a registered cardholder's debilitating medical condition." Section 82. Section 50-46-345, MCA, is amended to read: "50-46-345. Medical marijuana state special revenue account -- operating reserve -- transfer of excess funds. (1) There is a medical marijuana state special revenue account within the state special revenue fund established in 17-2-102. (2) The account consists of: (a) money deposited into the account pursuant to 50-46-344 and 50-46-347; 280 67th Legislature HB 701 - 126 - Authorized Print Version – HB 701 ENROLLED BILL (b) the tax collected pursuant to Title 15, chapter 64, part 1; and (c) civil penalties collected under this part. (3) Except as provided in subsection (4), money in the account must be used by the department for the purpose of administering the Montana Medical Marijuana Act and tracking system development. (4) (a) At the end of each fiscal year, the department shall transfer funds in excess of a $250,000 operating reserve as provided in this subsection (4). (b) At the end of fiscal year 2019: (i) the first $2.5 million in excess funds must be transferred to the mental health services special revenue account provided for in 53-21-1207; and (ii) any remaining excess funds must be transferred to the pain management education and treatment special revenue account provided for in 50-46-346. (c) At the end of fiscal year 2020 and subsequent fiscal years, any excess funds must be transferred to the pain management education and treatment special revenue account provided for in 50-46-346. (4) The account’s balance shall be transferred to the marijuana state special revenue account provided for in 16-12-111: (a) on July 1, 2021; and (b) on December 31, 2021." Section 83. Section 50-46-346, MCA, is amended to read: "50-46-346. Pain management education and treatment special revenue account. (1) There is a pain management education and treatment account in the state special revenue fund provided for in 17-2-102 to the credit of the department. (2) The account consists of money transferred into the account as provided in 50-46-345. (3) Money in the account must be used by the department for: (a) efforts to educate the public about using pain management techniques and treatments that do not involve the use of opioid drugs; and (b) a block grant program to pay the costs of the following alternative pain management treatments for individuals who have no other payment source for the treatments: 281 67th Legislature HB 701 - 127 - Authorized Print Version – HB 701 ENROLLED BILL (i) acupuncture; (ii) chiropractic; (iii) physical therapy; and (iv) naturopathic physician services. (4) The block grant program must be operated in accordance with criteria established by the department as allowed under 53-24-204. (5) On July 1, 2021, the account’s balance shall be transferred to the marijuana state special revenue account provided for in 16-12-111." Section 84. Section 50-46-347, MCA, is amended to read: "50-46-347. Provider licensing fees. (1) Unless reduced as allowed under 50-46-303(5)(b), annual license fees for providers and marijuana-infused products providers are based on the volume of the provider's production of marijuana. (2) Annual fees for providers and marijuana-infused products providers are: (a) $500 for a provider with a micro tier canopy license; (b) $1,000 for a provider with a tier 1 canopy license; (c) $2,500 for a provider with a tier 2 canopy license; (d) $5,000 for a provider with a tier 3 canopy license; (e) $7,500 for a provider with a tier 4 canopy license; (f) $10,000 for a provider with a tier 5 canopy license; (g) $13,000 for a provider with a tier 6 canopy license; (h) $15,000 for a provider with a tier 7 canopy license; (i) $17,500 for a provider with a tier 8 canopy license; and (j) $20,000 for a provider with a tier 9 canopy license. (3) A provider of both marijuana and marijuana-infused products is required to have only one canopy license. (4) The fee required under this part may be imposed based only on the tier of licensure and may not be applied separately to each registered premises used for cultivation under the licensure level. 282 67th Legislature HB 701 - 128 - Authorized Print Version – HB 701 ENROLLED BILL (5) The department shall charge an annual dispensary license fee in addition to the canopy license fee provided for in subsection (2). The dispensary license fee is based on the total number of registered premises used as dispensaries as follows: (a) one registered premises, $500; (b) two or three registered premises, $5,000 (c) four or five registered premises, $25,000; and (d) six or more registered premises, $100,000. (6) Money collected from license fees paid pursuant to this section must be deposited in the special revenue account provided for in 50-46-345 16-12-111." Section 85. Section 53-6-1201, MCA, is amended to read: "53-6-1201. (Subsection (2)(c) effective October 1, 2021) Special revenue fund -- health and medicaid initiatives. (1) There is a health and medicaid initiatives account in the state special revenue fund established by 17-2-102. This account is to be administered by the department of public health and human services. (2) There must be deposited in the account: (a) money from cigarette taxes deposited under 16-11-119(2)(c); (b) money from taxes on tobacco products other than cigarettes deposited under 16-11-119(4)(b); and (c) money from marijuana taxes deposited under 16-12-111; and (d)(c) any interest and income earned on the account. (3) This account may be used only to provide funding for: (a) the state funds necessary to take full advantage of available federal matching funds in order to administer the plan and maximize enrollment of eligible children under the healthy Montana kids plan, provided for under Title 53, chapter 4, part 11, and to provide outreach to the eligible children; (b) a new need-based prescription drug program established by the legislature for children, seniors, chronically ill, and disabled persons that does not supplant similar services provided under any existing program; 283 67th Legislature HB 701 - 129 - Authorized Print Version – HB 701 ENROLLED BILL (c) increased medicaid services and medicaid provider rates. The increased revenue is intended to increase medicaid services and medicaid provider rates and not to supplant the general fund in the trended traditional level of appropriation for medicaid services and medicaid provider rates. (c) increased medicaid services and medicaid provider rates. The increased revenue is intended to increase medicaid services and medicaid provider rates and not to supplant the general fund in the trended traditional level of appropriation for medicaid services and medicaid provider rates. (d)(d) an offset to loss of revenue to the general fund as a result of new tax credits; and (e)(e) grants to schools for suicide prevention activities, for the biennium beginning July 1, 2017. (4) (a) On or before July 1, the budget director shall calculate a balance required to sustain each program in subsection (3) for each fiscal year of the biennium. If the budget director certifies that the reserve balance will be sufficient, then the agencies may expend the revenue for the programs as appropriated. If the budget director determines that the reserve balance of the revenue will not support the level of appropriation, the budget director shall notify each agency. Upon receipt of the notification, the agency shall adjust the operating budget for the program to reflect the available revenue as determined by the budget director. (b) Until the programs or credits described in subsections (3)(b) and (3)(d) (3)(C) (3)(d) are established, the funding must be used exclusively for the purposes described in subsections subsections (3)(a) and (3)(c) and (3)(c). (5) The phrase "trended traditional level of appropriation", as used in subsection (3)(c), means the appropriation amounts, including supplemental appropriations, as those amounts were set based on eligibility standards, services authorized, and payment amount during the past five biennial budgets. (5) The phrase "trended traditional level of appropriation", as used in subsection (3)(c), means the appropriation amounts, including supplemental appropriations, as those amounts were set based on eligibility standards, services authorized, and payment amount during the past five biennial budgets. (6)(6) The department of public health and human services may adopt rules to implement this section." Section 86. Section 53-21-1207, MCA, is amended to read: "53-21-1207. Mental health services special revenue account. (1) There is a mental health 284 67th Legislature HB 701 - 130 - Authorized Print Version – HB 701 ENROLLED BILL services special revenue account within the state special revenue fund established in 17-2-102. (2) The account consists of: (a) money transferred into the account as provided in 50-46-345; and (b) money appropriated by the legislature. (3) Money in the account must be used by the department to pay for services provided by behavioral health peer support specialists pursuant to 53-6-101." Section 87. Section 61-8-402, MCA, is amended to read: "61-8-402. Implied consent -- blood or breath tests for alcohol, blood or oral fluid for drugs, or testing for both alcohol and drugs using recognized methods for each -- refusal to submit to test -- administrative license suspension. (1) A person who operates or is in actual physical control of a vehicle upon ways of this state open to the public is considered to have given consent to a test or tests of the person's blood or breath for the purpose of determining any measured amount or detected presence of alcohol, or blood or oral fluid for the purpose of determining any measured amount or detected presence of drugs in the person's body. (2) (a) The test or tests must be administered at the direction of a peace officer when: (i) the officer has reasonable grounds to believe that the person has been driving or has been in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol, drugs, or a combination of the two and the person has been placed under arrest for a violation of 61-8- 401 or 61-8-465; (ii) the person is under the age of 21 and has been placed under arrest for a violation of 61-8-410; or (iii) the officer has probable cause to believe that the person was driving or in actual physical control of a vehicle: (A) in violation of 61-8-401 and the person has been involved in a motor vehicle accident or collision resulting in property damage; (B) involved in a motor vehicle accident or collision resulting in serious bodily injury, as defined in 45- 2-101, or death; or (C) in violation of 61-8-465. 285 67th Legislature HB 701 - 131 - Authorized Print Version – HB 701 ENROLLED BILL (b) The arresting or investigating officer may designate which test or tests are administered. (3) A person who is unconscious or who is otherwise in a condition rendering the person incapable of refusal is considered not to have withdrawn the consent provided by subsection (1). (4) If an arrested person refuses to submit to one or more tests requested and designated by the officer as provided in subsection (2), the refused test or tests may not be given except as provided in subsection (5), but the officer shall, on behalf of the department, immediately seize the person's driver's license. The peace officer shall immediately forward the license to the department, along with a report certified under penalty of law stating which of the conditions set forth in subsection (2)(a) provides the basis for the testing request and confirming that the person refused to submit to one or more tests requested and designated by the peace officer. Upon receipt of the report, the department shall suspend the license for the period provided in subsection (8). (5) If the arrested person has refused to provide a breath, blood, or urine, or oral fluid sample under 61-8-409 or this section in a prior investigation in this state or under a substantially similar statute in another jurisdiction or the arrested person has a prior conviction or pending offense for a violation of 45-5-104, 45-5- 106, 45-5-205, 61-8-401, 61-8-406, or 61-8-411 or a similar statute in another jurisdiction, the officer may apply for a search warrant to be issued pursuant to 46-5-224 to collect a sample of the person's blood for testing. (6) (a) An arrested person who refuses to submit to one or more tests as provided in subsection (4) shall pay the department an administrative fee of $300, which must be deposited in the state special revenue account established pursuant to subsection (6)(b). (b) There is a blood-draw search warrant processing account in the state special revenue fund established pursuant to 17-2-102(1)(b). Money provided to the department of justice pursuant to this subsection (6) must be deposited in the account and may be used only for the purpose of providing forensic analysis of a driver's blood to determine the presence of alcohol or drugs. (c) The department shall adopt rules establishing procedures for the collection, distribution, and strict accountability of any funds received pursuant to this section. (7) Upon seizure of a driver's license, the peace officer shall issue, on behalf of the department, a temporary driving permit, which is effective 12 hours after issuance and is valid for 5 days following the date of issuance, and shall provide the driver with written notice of the license suspension and the right to a hearing 286 67th Legislature HB 701 - 132 - Authorized Print Version – HB 701 ENROLLED BILL provided in 61-8-403. (8) (a) Except as provided in subsection (8)(b), the following suspension periods are applicable upon refusal to submit to one or more tests: (i) upon a first refusal, a suspension of 6 months with no provision for a restricted probationary license; (ii) upon a second or subsequent refusal within 5 years of a previous refusal, as determined from the records of the department, a suspension of 1 year with no provision for a restricted probationary license. (b) If a person who refuses to submit to one or more tests under this section is the holder of a commercial driver's license, in addition to any action taken against the driver's noncommercial driving privileges, the department shall: (i) upon a first refusal, suspend the person's commercial driver's license for a 1-year period; and (ii) upon a second or subsequent refusal, suspend the person's commercial driver's license for life, subject to department rules adopted to implement federal rules allowing for license reinstatement, if the person is otherwise eligible, upon completion of a minimum suspension period of 10 years. If the person has a prior conviction of a major offense listed in 61-8-802(2) arising from a separate incident, the conviction has the same effect as a previous testing refusal for purposes of this subsection (8)(b). (9) A nonresident driver's license seized under this section must be sent by the department to the licensing authority of the nonresident's home state with a report of the nonresident's refusal to submit to one or more tests. (10) The department may recognize the seizure of a license of a tribal member by a peace officer acting under the authority of a tribal government or an order issued by a tribal court suspending, revoking, or reinstating a license or adjudicating a license seizure if the actions are conducted pursuant to tribal law or regulation requiring alcohol or drug testing of motor vehicle operators and the conduct giving rise to the actions occurred within the exterior boundaries of a federally recognized Indian reservation in this state. Action by the department under this subsection is not reviewable under 61-8-403. (11) A suspension under this section is subject to review as provided in this part. (12) This section does not apply to tests, samples, and analyses of blood, or breath, or urine used for purposes of medical treatment or care of an injured motorist, related to a lawful seizure for a suspected 287 67th Legislature HB 701 - 133 - Authorized Print Version – HB 701 ENROLLED BILL violation of an offense not in this part, or performed pursuant to a search warrant. (13) This section does not prohibit the release of information obtained from tests, samples, and analyses of blood or breath for law enforcement purposes as provided in 46-4-301 and 61-8-405(6)." Section 88. Section 61-8-404, MCA, is amended to read: "61-8-404. Evidence admissible -- conditions of admissibility. (1) Upon the trial of a criminal action or other proceeding arising out of acts alleged to have been committed by a person in violation of 61-8- 401, 61-8-406, 61-8-410, 61-8-411, 61-8-465, or 61-8-805: (a) evidence of any measured amount or detected presence of alcohol, drugs, or a combination of alcohol and drugs in the person at the time of a test, as shown by an analysis of the person's blood, or breath, or oral fluid, is admissible. A positive test result does not, in itself, prove that the person was under the influence of a drug or drugs at the time the person was in control of a motor vehicle. A person may not be convicted of a violation of 61-8-401 based upon the presence of a drug or drugs in the person unless some other competent evidence exists that tends to establish that the person was under the influence of a drug or drugs while driving or in actual physical control of a motor vehicle within this state. (b) a report of the facts and results of one or more tests of a person's blood, or breath, or oral fluid is admissible in evidence if: (i) a breath test, oral fluid screening test, or preliminary alcohol screening test was performed by a person certified by the forensic sciences division of the department to administer the test; (ii) a blood sample was analyzed in a laboratory operated or certified by the department or in a laboratory exempt from certification under the rules of the department and the blood was withdrawn from the person by a person competent to do so under 61-8-405(1); (c) a report of the facts and results of a physical, psychomotor, or physiological assessment of a person is admissible in evidence if it was made by a person trained by the department or by a person who has received training recognized by the department. (2) If the person under arrest refused to submit to one or more tests under 61-8-402, whether or not a sample was subsequently collected for any purpose, proof of refusal is admissible in any criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual 288 67th Legislature HB 701 - 134 - Authorized Print Version – HB 701 ENROLLED BILL physical control of a vehicle upon the ways of this state open to the public, while under the influence of alcohol, drugs, or a combination of alcohol and drugs. The trier of fact may infer from the refusal that the person was under the influence. The inference is rebuttable. (3) The provisions of this part do not limit the introduction of any other competent evidence bearing on the question of whether the person was under the influence of alcohol, drugs, or a combination of alcohol and drugs." Section 89. Section 61-8-405, MCA, is amended to read: "61-8-405. Administration of tests. (1) Only a physician, registered nurse, or other qualified person acting under the supervision and direction of a physician or registered nurse may, at the request of a peace officer, withdraw blood for the purpose of determining any measured amount or detected presence of alcohol, drugs, or any combination of alcohol and drugs in the person. This limitation does not apply to the sampling of breath. (2) In addition to any test administered at the direction of a peace officer, a person may request that an independent blood sample be drawn by a physician or registered nurse for the purpose of determining any measured amount or detected presence of alcohol, drugs, or any combination of alcohol and drugs in the person. The peace officer may not unreasonably impede the person's right to obtain an independent blood test. The officer may but has no duty to transport the person to a medical facility or otherwise assist the person in obtaining the test. The cost of an independent blood test is the sole responsibility of the person requesting the test. The failure or inability to obtain an independent test by a person does not preclude the admissibility in evidence of any test given at the direction of a peace officer. (3) Upon the request of the person tested, full information concerning any test given at the direction of the peace officer must be made available to the person or the person's attorney. (4) A physician, registered nurse, or other qualified person acting under the supervision and direction of a physician or registered nurse does not incur any civil or criminal liability as a result of the proper administering of a blood test when requested in writing by a peace officer to administer a test. (5) The department in cooperation with any appropriate agency shall adopt uniform rules for the giving of tests and may require certification of training to administer the tests as considered necessary. 289 67th Legislature HB 701 - 135 - Authorized Print Version – HB 701 ENROLLED BILL (6) If a peace officer has probable cause to believe that a person has violated 61-8-401, 61-8-406, 61- 8-410, 61-8-411, 61-8-465, or 61-8-805 and a sample of blood, breath, urine, oral fluid, or other bodily substance is taken from that person for any reason, a portion of that sample sufficient for analysis must be provided to a peace officer if requested for law enforcement purposes and upon issuance of a subpoena as provided in 46-4-301." Section 90. Section 61-8-409, MCA, is amended to read: "61-8-409. Preliminary alcohol or drug screening test. (1) A person who operates or is in actual physical control of a vehicle upon ways of this state open to the public is considered to have given consent to a preliminary alcohol screening test of the person's breath, for the purpose of estimating the person's alcohol concentration, or a preliminary drug screening test of a person’s oral fluid for the purpose of estimating the person’s drug concentration(s), upon the request of a peace officer who has a particularized suspicion that the person was driving or in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol, drugs, or a combination of alcohol and drugs or in violation of 61-8-410 or 61-8- 465. (2) The person's obligation to submit to a test under 61-8-402 is not satisfied by the person submitting to a preliminary alcohol screening test, preliminary drug screening test, or both pursuant to this section. (3) The peace officer shall inform the person of the right to refuse the test and that the refusal to submit to the preliminary alcohol screening test, preliminary drug screening test, or both will result in the suspension for up to 1 year of that person's driver's license. (4) If the person refuses to submit to a test under this section, a test will not be given except as provided in 61-8-402(5). However, the refusal is sufficient cause to suspend the person's driver's license as provided in 61-8-402. (5) A hearing as provided for in 61-8-403 must be available. The issues in the hearing must be limited to determining whether a peace officer had a particularized suspicion that the person was driving or in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol or in violation of 61-8-410 and whether the person refused to submit to the alcohol test. (6) The provisions of 61-8-402(3) through (10) that do not conflict with this section are applicable to 290 67th Legislature HB 701 - 136 - Authorized Print Version – HB 701 ENROLLED BILL refusals under this section. If a person refuses a test requested under 61-8-402 and this section for the same incident, the department may not consider each a separate refusal for purposes of suspension under 61-8-402. (7) A test may not be conducted or requested under this section unless both the peace officer and the instrument used to conduct the preliminary alcohol screening test or preliminary drug screening test have been certified by the department pursuant to rules adopted under the authority of 61-8-405(5)." Section 91. Section 61-8-442, MCA, is amended to read: "61-8-442. Driving under influence of alcohol or drugs -- driving with excessive alcohol concentration -- ignition interlock device -- 24/7 sobriety and drug monitoring program -- forfeiture of vehicle. (1) In addition to the punishments provided in 61-8-714, 61-8-722, and 61-8-465, regardless of disposition and if a probationary license is recommended by the court, the court may, for a person convicted of a first offense under 61-8-401, 61-8-406, 61-8-411, or 61-8-465: (a) restrict the person to driving only a motor vehicle equipped with a functioning ignition interlock device during the probationary period and require the person to pay the reasonable cost of leasing, installing, and maintaining the device; or (b) require the person to participate in a court-approved alcohol or drug detection testing program and pay the fees associated with the testing program. (2) If a person is convicted of a second or subsequent violation of 61-8-401, 61-8-406, 61-8-411, or 61-8-465, in addition to the punishments provided in 61-8-714, 61-8-722, and 61-8-465, regardless of disposition, the court shall: (a) if recommending that a probationary license be issued to the person, restrict the person to driving only a motor vehicle equipped with a functioning ignition interlock device during the probationary period and require the person to pay the reasonable cost of leasing, installing, and maintaining the device; (b) require the person to participate in the 24/7 sobriety and drug monitoring program provided for in 44-4-1203 and pay the fees associated with the program or require the person to participate in a court- approved alcohol or drug detection testing program and pay the fees associated with the testing program; or (c) order that each motor vehicle owned by the person at the time of the offense be seized and subjected to the forfeiture procedure provided under 61-8-421. 291 67th Legislature HB 701 - 137 - Authorized Print Version – HB 701 ENROLLED BILL (3) Any restriction or requirement imposed under this section must be included in a report of the conviction made by the court to the department in accordance with 61-11-101 and placed upon the person's driving record maintained by the department in accordance with 61-11-102. (4) The duration of a restriction imposed under this section must be monitored by the department. (5) All court-approved alcohol or drug detection testing programs allowed under this section are required to use the state’s data management system pursuant to 44-4-1203." Section 92. Section 61-11-101, MCA, is amended to read: "61-11-101. Report of convictions and suspension or revocation of driver's licenses -- surrender of licenses. (1) If a person is convicted of an offense for which chapter 5 or chapter 8, part 8, makes mandatory the suspension or revocation of the driver's license or commercial driver's license of the person by the department, the court in which the conviction occurs shall require the surrender to it of all driver's licenses then held by the convicted person. The court shall, within 5 days after the conviction, forward the license and a record of the conviction to the department. If the person does not possess a driver's license, the court shall indicate that fact in its report to the department. (2) A court having jurisdiction over offenses committed under a statute of this state or a municipal ordinance regulating the operation of motor vehicles on highways, except for standing or parking statutes or ordinances, shall forward a record of the conviction, as defined in 61-5-213, to the department within 5 days after the conviction. The court may recommend that the department issue a restricted probationary license on the condition that the individual comply with the requirement that the person attend and complete a chemical dependency education course, treatment, or both, as ordered by the court under 61-8-732. (3) A court or other agency of this state or of a subdivision of the state that has jurisdiction to take any action suspending, revoking, or otherwise limiting a license to drive shall report an action and the adjudication upon which it is based to the department within 5 days on forms furnished by the department. (4) (a) On a conviction referred to in subsection (1) of a person who holds a commercial driver's license or who is required to hold a commercial driver's license, a court may not take any action, including deferring imposition of judgment, that would prevent a conviction for any violation of a state or local traffic control law or ordinance, except a parking law or ordinance, in any type of motor vehicle, from appearing on the 292 67th Legislature HB 701 - 138 - Authorized Print Version – HB 701 ENROLLED BILL person's driving record. The provisions of this subsection (4)(a) apply only to the conviction of a person who holds a commercial driver's license or who is required to hold a commercial driver's license and do not apply to the conviction of a person who holds any other type of driver's license. (b) For purposes of this subsection (4), "who is required to hold a commercial driver's license" refers to a person who did not have a commercial driver's license but who was operating a commercial motor vehicle at the time of a violation of a state or local traffic control law or ordinance resulting in a conviction referred to in subsection (1). (5) (a) If a person who holds a valid registry identification card or license issued pursuant to 50-46- 307 [section 12] or 50-46-308 16-12-203 is convicted of or pleads guilty to any offense related to driving under the influence of alcohol or drugs when the initial offense with which the person was charged was a violation of 61-8-401, 61-8-406, 61-8-410, or 61-8-411, the court in which the conviction occurs shall require the person to surrender the registry identification card or license. (b) Within 5 days after the conviction, the court shall forward the registry identification card and a copy of the conviction to the department of public health and human services department of revenue." Section 93. Veterans and surviving spouses state special revenue account. (1) There is a veterans and surviving spouses account in the state special revenue fund to be administered by the veterans' affairs division of the department of military affairs. The account consists of revenue deposited pursuant to 16- 12-111. (2) The account must be used to provide services and assistance for all Montana veterans and surviving spouses and dependents. Section 94. Local government taxing authority -- specific delegation. As required by 7-1-112, [sections 94 through 98] specifically delegate to the qualified electors of a county the power to authorize their county to impose a local-option marijuana excise tax within the corporate boundary of the county. Section 95. Limit on local-option marijuana excise tax rate -- goods subject to tax. (1) The rate of the local-option marijuana excise tax must be established by the election petition or resolution provided for in 293 67th Legislature HB 701 - 139 - Authorized Print Version – HB 701 ENROLLED BILL [section 96], and the rate may not exceed 3%. (2) The local-option marijuana excise tax is a tax on the retail value of all marijuana and marijuana products sold at an adult-use dispensary or medical marijuana dispensary within a county. (3) If a county imposes a local-option marijuana excise tax: (a) 50% of the resulting tax revenue must be retained by the county; (b) 45% of the resulting tax revenue must be apportioned to the municipalities on the basis of the ratio of the population of the city or town to the total county population; and (c) the remaining 5% of the resulting tax revenue must be retained by the department to defray costs associated with administering [sections 94 through 98]. The funds retained by the department under this subsection (3)(c) must be deposited into the marijuana state special revenue account established under 16-12- 111. (4) For the purposes of this section, "tax revenue" means the combined taxes collected under any local-option marijuana excise tax collected on retail sales within the county. Section 96. Local government excise tax-- election required -- procedure -- notice. (1) A county that has permitted an adult-use dispensary or medical marijuana dispensary to operate within its borders pursuant to 16-12-301 or a county in which the majority of voters voted to approve Initiative Measure No. 190 in the November 3, 2020, general election, may not impose or, except as provided in this section, amend or repeal a local-option marijuana excise tax unless the local-option marijuana excise tax question has been approved by a majority of the qualified electors voting on the question. (2) The local-option marijuana excise tax question may be presented to the qualified electors of a county by a petition of the electors as provided in 7-5-131, 7-5-132, 7-5-134, 7-5-135, and 7-5-137 or by a resolution of the governing body of the county. (3) The petition or resolution referring the taxing question must state: (a) the rate of the tax, which may not exceed 3% of the retail value of all marijuana and marijuana products sold at an adult-use dispensary or medical marijuana dispensary; (b) the date when the tax becomes effective, which may not be earlier than 90 days after the election; and 294 67th Legislature HB 701 - 140 - Authorized Print Version – HB 701 ENROLLED BILL (c) the purposes that may be funded by the tax revenue. (4) On receipt of an adequate petition, the county’s governing body shall hold an election in accordance with Title 13, chapter 1, part 5. (5) (a) Before the local-option marijuana excise tax question is submitted to the electorate, the county shall provide notice of the goods subject to the local-option marijuana excise tax by a method described in 13- 1-108. (b) The notice must be given two times, with at least 6 days separating the notices. The first notice must be given not more than 45 days prior to the election, and the last notice must be given not less than 30 days prior to the election. (6) Notice of the election must be given as provided in 13-1-108 and include the information listed in subsection (3) of this section. (7) The question of the imposition of a local-option marijuana excise tax may not be placed before the qualified electors more than once in any fiscal year. Section 97. Tax administration. (1) Not less than 90 days prior to the date that the local-option marijuana excise tax becomes effective, the county shall notify the department of the results of the election and coordinate with the department to facilitate the administration and collection of the local-option marijuana excise taxes. (2) The department shall establish by rule: (a) the times that taxes collected by businesses are to be remitted to the department; (b) the office or employee of the department responsible for receiving and accounting for the local- option marijuana excise tax receipts; (c) the office or employee of the department responsible for enforcing the collection of local-option marijuana excise taxes and the methods and procedures to be used in enforcing the collection of local-option marijuana excise taxes due; and (d) the penalties for failure to report taxes due, failure to remit taxes due, and violations of the administrative ordinance. The penalties may include: (i) criminal penalties not to exceed a fine of $1,000 or 6 months' imprisonment, or both; 295 67th Legislature HB 701 - 141 - Authorized Print Version – HB 701 ENROLLED BILL (ii) civil penalties if the department prevails in a suit for the collection of local-option marijuana excise taxes, not to exceed 50% of the local-option marijuana excise taxes found due plus the costs and attorney fees incurred by the department in the action; (iii) revocation of an adult-use dispensary license or medical marijuana dispensary license held by the offender; and (iv) any other penalties that may be applicable for violation of an ordinance. (3) The department’s rules may also include: (a) further clarification and specificity in the categories of goods that are subject to the local-option marijuana excise tax; (b) authorization for business administration and prepayment discounts. The discount authorization may allow each vendor and commercial establishment to withhold up to 5% of the local-option marijuana excise taxes collected to defray their costs for the administration of the tax collection. (c) other administrative details necessary for the efficient and effective administration of the tax. (4) A county and the department may exchange information collected under the provisions of this chapter that is necessary to implement and administer a local-option marijuana excise tax or the tax collected under Title 15, chapter 64, part 1. Section 98. Use of local-option marijuana excise tax revenue. Unless otherwise restricted, a county or municipality may appropriate and expend revenue derived from a local-option marijuana excise tax for any activity, undertaking, or administrative service that the municipality is authorized by law to perform, including costs resulting from the imposition of the tax or due to administrative burdens imposed on the municipality as a result of licensing or regulatory requirements imposed in this chapter. Section 99. Section 80-1-104, MCA, is amended to read: "80-1-104. (Bracketed language effective October 1, 2021) Analytical laboratory services -- rulemaking authority -- deposit of fees. (1) The department is authorized to provide analytical laboratory services for: (a) programs it operates under this title; 296 67th Legislature HB 701 - 142 - Authorized Print Version – HB 701 ENROLLED BILL (b) other state or federal agencies; (c) providers and marijuana-infused products providers as those terms are defined in 50-46-302; [(d) adult-use marijuana providers and adult-use marijuana-infused products providers as those terms are defined in 16-12-102;] (e)(c) the department of public health and human services revenue for the purposes of [Title Title 16, chapter 12, and] Title 50, chapter 46, part 3, as allowed by federal law; and (f)(d) private parties. (2) The department may enter into a contract or a memorandum of understanding for the space and equipment necessary for operation of the analytical laboratory. (3) (a) The department may adopt rules establishing fees for testing services required under this title or provided to another state agency, a federal agency, or a private party. (b) Money collected from the fees must be deposited in the appropriate related account in the state special revenue fund to the credit of the department to pay costs related to analytical laboratory services provided pursuant to this section." Section 100. Healing and ending addiction through recovery and treatment account. (1) There is a healing and ending addiction through recovery and treatment account in the state special revenue fund. The account consists of money transferred to the account pursuant to 16-12-111. (2) Revenue in the account must be used to provide statewide programs for: (a) substance use disorder prevention; (b) mental health promotion; and (c) crisis, treatment, and recovery services for substance use and mental health disorders. (3) The programs must be designed to: (a) increase the number of individuals choosing treatment over incarceration; (b) improve access to, utilization of, and engagement and retention in prevention, treatment, and recovery support services; (c) expand the availability of community-based services that reflect best practices or are evidence- based; 297 67th Legislature HB 701 - 143 - Authorized Print Version – HB 701 ENROLLED BILL (d) leverage additional federal funds when available for the healthy Montana kids plan provided for in Title 53, chapter 4, part 11, and the medicaid program provided for in Title 53, chapter 6, for the purposes of this section; (e) provide funding for programs and services that are described in subsections (2)(a) through (2)(c) and provided on an Indian reservation located in this state; or (f) provide funding for grants and services to tribes for use in accordance with this section. (4) (a) An amount not to exceed $500,000, including eligible federal matching sources when applicable, must be used to provide funding for grants and services to tribes for tobacco prevention and cessation, substance use disorder prevention, mental health promotion, and substance use disorder and mental health crisis, treatment, and recovery services. (b) The department of public health and human services shall manage the programs funded by the special revenue account and shall adopt rules to implement the programs. (5) The legislature shall appropriate money from the state special revenue account provided for in this section for the programs referred to in this section. (6) Programs funded under this section must be funded through contracted services with service providers. Section 101. Definitions. As used in [sections 101 through 103], unless the context clearly indicates otherwise, the following definitions apply: (1) "Expungement or resentencing of marijuana conviction court" means the court that is responsible for determining petitions for expungement and resentencing as provided in 16-12-113. (2) "Petition for expungement or resentencing" means a petition filed pursuant to 16-12-113 seeking expungement or resentencing of a marijuana conviction. Section 102. Appointment of judge. (1) A petition for expungement or resentencing of a marijuana conviction filed as provided in 16-12-113 may be determined by a judge pro tempore or special master, who must be a member of the bar of the state, agreed on in writing by the petitioner and the county attorney, appointed by the supreme court as provided in 3-5-115, and sworn to determine whether the petitioner meets 298 67th Legislature HB 701 - 144 - Authorized Print Version – HB 701 ENROLLED BILL the criteria for expungement or resentencing as provided in 16-12-113. On appointment, the individual must be designated as the decriminalized marijuana conviction expungement judge. (2) A judge appointed under subsection (1) has the authority and power of an elected district court judge in the civil action involving petitions filed as provided in 16-12-113. All proceedings must be conducted in accordance with the rules of evidence and procedure governing district courts. (3) Any determination rendered in a petition by the judge has the same force and effect as if determined by the district court with the regular judge presiding. (4) A party stipulating to have a petition determined by the judge appointed under subsection (1) may not file a motion for substitution of the judge pursuant to 3-1-804. (5) All filings relating to a petition filed as provided in 16-12-113 must be filed with the clerk of court in the judicial district in which the marijuana conviction took place. The applicant and the county attorney shall provide a copy of each filing to the judge appointed as provided in subsection (1). Section 103. Petition for expungement -- venue. When the applicant requests a hearing, as provided in 16-12-113, the judge appointed as provided in [section 102] may hear the petition in any venue stipulated by the petitioner and the county attorney, as provided in 25-2-202, or in any venue otherwise determined by the judge in accordance with a stipulation of the petitioner and the county attorney. In stipulating venue, the petitioner and the county attorney shall take into consideration the availability of courtroom facilities. The judge may prepare a list of available courtroom facilities for consideration. Section 104. Repealer. The following sections of the Montana Code Annotated are repealed: 16-12-205. (Effective October 1, 2021) Contracted services. 16-12-401. (Effective October 1, 2021) Tax on marijuana sales. 16-12-402. (Effective October 1, 2021) Returns -- payment -- recordkeeping -- authority of department. 16-12-403. (Effective October 1, 2021) Deficient assessment -- penalty and interest -- statute of limitations. 16-12-404. (Effective October 1, 2021) Procedure to compute tax in absence of statement -- estimation of tax -- failure to file -- penalty and interest. 16-12-405. (Effective October 1, 2021) Authority to collect delinquent taxes. 299 67th Legislature HB 701 - 145 - Authorized Print Version – HB 701 ENROLLED BILL 16-12-406. (Effective October 1, 2021) Refunds -- interest -- limitations. 16-12-407. (Effective October 1, 2021) Information -- confidentiality -- agreements with another state. 16-12-408. (Effective October 1, 2021) Department to make rules. 50-46-301. Short title -- purpose. 50-46-302. Definitions. 50-46-304. Department responsibility to monitor and assess medical marijuana production, testing, and sales -- license revocation. 50-46-303. Medical marijuana registry -- department responsibilities -- issuance of cards and licenses — confidentiality. 50-46-305. Canopy tiers -- requirements. 50-46-307. Individuals with debilitating medical conditions -- requirements -- minors -- limitations. 50-46-308. Provider types -- requirements -- limitations -- activities. 50-46-309. Marijuana-infused products provider -- requirements -- allowable activities. 50-46-310. Written certification -- accompanying statements. 50-46-311. Testing laboratories -- licensing inspections. 50-46-312. License as privilege -- criteria. 50-46-317. Registry card or license to be exhibited on demand -- photo identification required. 50-46-318. Health care facility procedures for patients with marijuana for use. 50-46-319. Legal protections -- allowable amounts. 50-46-320. Limitations of act. 50-46-326. Testing of marijuana and marijuana-infused products. 50-46-327. Prohibitions on physician affiliation with providers and marijuana-infused products providers -- sanctions. 50-46-328. Local government authority to regulate. 50-46-329. Inspections -- procedures -- prohibition on inspector affiliation with licensees. 50-46-330. Unlawful conduct by cardholders or licensees -- penalties. 50-46-331. Fraudulent representation -- penalties. 50-46-332. Confidentiality of registry information -- penalty. 300 67th Legislature HB 701 - 146 - Authorized Print Version – HB 701 ENROLLED BILL 50-46-339. Law enforcement authority. 50-46-340. Forfeiture. 50-46-341. Advertising prohibited. 50-46-342. Hotline. 50-46-343. Legislative monitoring. 50-46-344. Rulemaking authority -- fees. 50-46-345. Medical marijuana state special revenue account -- operating reserve -- transfer of excess funds. 50-46-346. Pain management education and treatment special revenue account. 50-46-347. Provider licensing fees. Section 105. Transfer of funds. On July 1, 2021, the department of public health and human services is authorized to transfer the fund balances in 50-46-345 and 50-46-346 to the marijuana state special revenue account provided for under 16-12-111. Section 106. Repealer. Sections 37 and 52, Initiative Measure No. 190, approved November 3, 2020, are repealed. Section 107. Section 56, Initiative Measure No. 190, approved November 3, 2020, is amended to read: "Section 56. Effective dates. (1) [Sections 8, 16, 23, 36, and 40 through 49] are effective January 1, 2021. (2) Except as provided in subsection subsections (1) and (3), [this act] is effective on October 1, 2021 January 1, 2022. (3) [Sections 18 and 35] are effective July 1, 2021." Section 108. Appropriation. (1) There is appropriated from the marijuana state special revenue account provided for in 16-12-111 to the department of revenue: (a) $6,930,492 for fiscal year 2022, which comprises 34 total FTE. 22 of the 34 FTE represent 301 67th Legislature HB 701 - 147 - Authorized Print Version – HB 701 ENROLLED BILL positions transferred from the department of public health and human services to the department of revenue. (b) $4,136,011 for fiscal year 2023 and which comprises 34 total FTE. 22 of the 34 FTE represent positions transferred from the department of public health and human services to the department of revenue. (c) The appropriations described in subsections (1)(a) and (1)(b) must be used by the department of revenue for the operating costs it incurs when administering the provisions of [this act]. (d) The appropriation provided for in this subsection (1) must be considered a part of the base budget for the 2025 biennium. (2) (a) (I) The following amounts are appropriated for each year of the 2023 biennium to the department of public health and human services for eligible services and programs in accordance with the HEART fund that is set forth in 17-6-606 [section 100]: (A) $6 million in state special revenue funds; and (B) $19 million in federal special revenue funds. (II) It is the intent of the legislature that these appropriation amounts be included as part of the base budget for the department of public health and human services for the biennium beginning July 1, 2023. (b) For the 2023 biennium, $300,000 is appropriated to the department of justice for the purposes described in 16-12-111. (c) (i) For each year of the 2023 biennium, $150,000 is appropriated to the board of crime control for the purposes described in 44-7-110. (ii) It is the intent of the legislature that this appropriation amount be included as part of the base budget for the board of crime control for the biennium beginning July 1, 2023. (3) (a) The following amounts are appropriated for fiscal year 2022: (i) the amount distributed pursuant to 16-12-111(4)(b)(ii) but not to exceed $650,000 to the department of fish, wildlife and parks from the state park account established in 23-1-105(1); (ii) the amount distributed pursuant to 16-12-111(4)(b)(iii) but not to exceed $650,000 to the department of fish, wildlife, and parks from the trails and recreational facilities account established in 23-2-108; (iii) the amount distributed pursuant to 16-12-111(4)(b)(iv) but not to exceed $650,000 to the department of fish, wildlife, and parks from the nongame wildlife account established in 87-5-121; and (iv) $200,000 to the veterans' affairs division of the department of military affairs from the account 302 67th Legislature HB 701 - 148 - Authorized Print Version – HB 701 ENROLLED BILL provided for in [section 93]. (b) The following amounts are appropriated for the fiscal year 2023: (i) $5,412,000 from the marijuana state special revenue account provided for in 16-12-111 to the department of fish, wildlife, and parks to be used solely as funding for permanent easements and maintenance; (ii) $1,082,000 to the department of fish, wildlife, and parks from the state park account established in 23-1-105(1); (iii) $1,082,000 to the department of fish, wildlife, and parks from the trails and recreational facilities account established in 23-2-108; (iv) $1,082,000 to the department of fish, wildlife, and parks from the nongame wildlife account established in 87-5-121; and (v) $200,000 to the veterans' affairs division of the department of military affairs from the account provided for in [section 93]. Section 109. Required warning labels. A person may not manufacture package, sell, or transfer any marijuana or marijuana product unless the package containing the marijuana or marijuana product bears the following statements in a form required by the department: (1) "WARNING: Consumption of marijuana may cause anxiety, agitation, paranoia, psychosis, and cannabinoid hyperemesis." (2) "WARNING: Consumption of marijuana by pregnant women may result in fetal injury and low birth weight." (3) "WARNING: Consumption of marijuana by nursing mothers may result in infant hyperactivity and poor cognitive function." Section 110. Notification to tribal governments. The secretary of state shall send a copy of [this act] to each federally recognized tribal government in Montana. Section 111. Direction to department of revenue, department of public health and human services, and local governments -- notification to legislature -- transition. (1) The legislature directs the 303 67th Legislature HB 701 - 149 - Authorized Print Version – HB 701 ENROLLED BILL department of revenue to adopt rules to implement the Marijuana Regulation and Taxation Act. (2) The legislature directs the department of public health and human services to assist the department of revenue with the transfer of FTE, information, materials, and any other marijuana-related asset that the department of revenue considers necessary to implement the regulation and taxation of marijuana in the state and exercise authority over the regulation of all types of marijuana licenses and the medical marijuana registry in the state. (3) On or after July 1, 2021, the department of public health and human services is authorized to transfer the fund balances in 50-46-345 and 50-46-346 to the marijuana state special revenue account provided for under 16-12-111. (4) In fiscal years 2021 and 2022, the department of revenue is not required to seek competitive solicitations or requests for proposals when procuring the products and services associated with the taxation and regulation of marijuana in the state. The department of administration shall allow the department to award a contract to a vendor relating to the development and implementation of an integrated marijuana licensing and taxation system pursuant to the sole source procurement process provided for under 18-4-306. (5) (a) On July 1, 2021, the department of health and human services shall transfer to the department of revenue the existing license and applicable endorsements for any provider or marijuana-infused products provider that was licensed or had applied for a license with the department of public health and human services on November 3, 2020, and is in good standing with the department of public health and human services as of the date of the transfer. (b) Existing licenses transferred pursuant to subsection (5)(a) shall be accepted and administered by the department of revenue in accordance with 16-12-201(2) and rules adopted by the department of revenue for the time periods set forth in 16-12-201(2). (c) The intent of the legislature with this subsection (5) and the provisions of 16-12-201(2) is that a provider or marijuana-infused products provider that was licensed or had applied for a license with the department of public health and human services on November 3, 2020, will be able to continue providing marijuana and marijuana products to registered cardholders without disruption while also obtaining the appropriate licensure under this Act in an expedient manner. (6) Local governments are encouraged to begin the process to approve any or all marijuana business 304 67th Legislature HB 701 - 150 - Authorized Print Version – HB 701 ENROLLED BILL categories in accordance with [16-12-301], if required, implement the local-option excise tax in accordance with [sections 94 through 98], or both beginning on July 1, 2021, in anticipation of the department of revenue beginning to accept applications for licensure on January 1, 2022. Section 112. Codification instruction. (1) [Sections 1, 2, and 101 through 103] are intended to be codified as an integral part of Title 16, chapter 12, part 1, and the provisions of Title 16, chapter 12, part 1, apply to [sections 1, 2, and 101 through 103]. (2) [Sections 3 through 7 and 109] are intended to be codified as an integral part of Title 16, chapter 12, part 2, and the provisions of Title 16, chapter 12, part 2, apply to [sections 3 through 7 and 109]. (3) [Section 8] is intended to be codified as an integral part of Title 61, chapter 8, part 4, and the provisions of Title 61, chapter 8, part 4, apply to [section 8]. (4) [Sections 9 through 23 and 100] are intended to be codified as a new part in Title 16, chapter 12, and the provisions of Title 16, chapter 12, apply to [sections 9 through 23 and 100]. (5) [Section 93] is intended to be codified as an integral part of Title 10, chapter 2, and the provisions of Title 10, chapter 2, apply to [section 93]. (6) [Sections 94 through 98] are intended to be codified as an integral part of Title 16, chapter 12, part 3, and the provisions of Title 16, chapter 12, part apply to [sections 94 through 98]. Section 113. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications. Section 114. Coordination instruction. If both Senate Bill No. 156 and [this act] are passed and approved, then [section 3 of Senate Bill No. 156], amending 16-12-104, is void. Section 115. Contingent voidness. If the Montana supreme court determines that Initiative Measure No. 190, approved November 3, 2020, other than the portions relating to revenue distribution, is in violation of the Montana constitution and the constitutional infirmity invalidates the entire initiative, then both Initiative 305 67th Legislature HB 701 - 151 - Authorized Print Version – HB 701 ENROLLED BILL Measure No. 190 and [this act] are void. Section 116. Effective dates. (1) Except as provided in subsections (2) and (3), [this act] is effective January 1, 2022. (2) [Sections 41(1)(a), (1)(b), (1)(c), and (10) through (12); 79(2) and (8)(b); 80, 81, 107, 111, 114, and this section] are effective on passage and approval. (3) [Sections 46, 59, 78, 79(11), 82 through 84, 101 through 103, 105, 106, and 108] are effective July 1, 2021. Section 117. Termination. (1) [Section 38(15)(b)(ii)] terminates October 1, 2023. After October 1, 2023, a hoop house is not an indoor cultivation facility. (2) [Section 46(4)(b)(vi)] terminates June 30, 2025. - END - 306 I hereby certify that the within bill, HB 701, originated in the House. ___________________________________________ Chief Clerk of the House ___________________________________________ Speaker of the House Signed this _______________________________day of____________________________________, 2021. ___________________________________________ President of the Senate Signed this _______________________________day of____________________________________, 2021. 307 HOUSE BILL NO. 701 INTRODUCED BY M. HOPKINS, R. MARSHALL AN ACT GENERALLY REVISING LAWS RELATED TO THE REGULATION AND TAXATION OF MARIJUANA; TRANSFERRING AUTHORITY OVER THE LICENSING, CULTIVATION, AND SALE OF MEDICAL MARIJUANA TO REGISTERED CARDHOLDERS TO THE DEPARTMENT OF REVENUE ; CREATING SEPARATE LICENSE CATEGORIES FOR CULTIVATION, MANUFACTURING, DISPENSING, AND TRANSPORTING MARIJUANA; PROVIDING FOR EIGHT COMBINED-USE MARIJUANA LICENSES; CREATING A MARIJUANA WORKER PERMIT; PROVIDING FOR A LOCAL-OPTION MARIJUANA EXCISE TAX; REQUIRING LOCAL GOVERNMENT APPROVAL FOR A MARIJUANA BUSINESS TO OPERATE IN A LOCAL JURISDICTION; PROVIDING APPROPRIATIONS; PROVIDING RULEMAKING AUTHORITY; PROVIDING FOR EXPUNGEMENT OF CRIMINAL CONVICTIONS RELATED TO MARIJUANA; PROVIDING FOR CONTINGENT VOIDNESS; AMENDING SECTIONS 3-5-113, 3-5-115, 5-5-223, 5-5-227, 7-22-2101, 15- 64-101, 15-64-102, 15-64-103, 15-64-104, 15-64-105, 15-64-106, 15-64-111, 15-64-112, 16-12-101, 16-12-102, 16-12-104, 16-12-105, 16-12-106, 16-12-107, 16-12-108, 16-12-109, 16-12-110, 16-12-111, 16-12-112, 16-12- 113, 16-12-201, 16-12-202, 16-12-203, 16-12-204, 16-12-206, 16-12-207, 16-12-208, 16-12-209, 16-12-210, 16- 12-211, 16-12-301, 16-12-302, 18-7-101, 37-1-136, 37-1-316, 37-3-203, 39-2-210, 39-2-313, 39-71-407, 41-5- 216, 45-9-101, 45-9-102, 45-9-103, 45-9-110, 45-9-127, 45-9-203, 45-10-103, 45-10-107, 46-18-202, 50-46-302, 50-46-303, 50-46-307, 50-46-319, 50-46-345, 50-46-346, 50-46-347, 53-6-1201, 53-21-1207, 61-8-402, 61-8- 404, 61-8-405, 61-8-409, 61-8-442, 61-11-101, AND 80-1-104, MCA; AMENDING SECTION 56, INITIATIVE MEASURE NO. 190, APPROVED NOVEMBER 3, 2020; REPEALING SECTIONS 16-12-205, 16-12-401, 16-12- 402, 16-12-403, 16-12-404, 16-12-405, 16-12-406, 16-12-407, 16-12-408, 50-46-301, 50-46-302, 50-46-303, 50- 46-304, 50-46-305, 50-46-307, 50-46-308, 50-46-309, 50-46-310, 50-46-311, 50-46-312, 50-46-317, 50-46-318, 50-46-319, 50-46-320, 50-46-326, 50-46-327, 50-46-328, 50-46-329, 50-46-330, 50-46-331, 50-46-332, 50-46- 339, 50-46-340, 50-46-341, 50-46-342, 50-46-343, 50-46-344, 50-46-345, 50-46-346, AND 50-46-347, MCA; REPEALING SECTIONS 37 AND 52, INITIATIVE MEASURE NO. 190, APPROVED NOVEMBER 3, 2020; AND PROVIDING EFFECTIVE DATES AND TERMINATION DATES. 308 Page 1 of 14 ORDINANCE NO. 2084 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA GENERALLY REVISING LAWS AND REGULATIONS RELATED TO MARIJUANA AND THE MONTANA MARIJUANA REGULATION AND TAXATION ACT. WHEREAS, the City of Bozeman (the “City”) is authorized by the City Charter and Montana law to establish programs and laws to protect public the health, safety and welfare of the citizens of Bozeman; and WHEREAS, pursuant to its Charter, the Montana Constitution, and state law, the City may exercise any power not prohibited by the constitution, law or charter and neither the Montana Constitution, state law, or the City Charter prohibits the City Commission from adopting this Ordinance; and WHEREAS, Title 7, Chpt. 5, Part 1, Montana Code Annotated (MCA), provides standards and procedures for adoption of local ordinances; and WHEREAS, Title 76, Chpt. 2, Part 3, MCA, authorizes municipalities to enact zoning to regulate the use and development of land and the activities of individuals and businesses within its boundaries subject to certain standards of procedure; and WHEREAS, the citizens of the State of Montana voted to approve Constitutional Initiative 118 and Initiative No. 190 (I-190) in November 2020, which became effective January 1, 2021 and legalized recreational marijuana use and limited possession for adults over the age of 21 and provided a framework for commercial licensing, taxation, decriminalization and expungement of criminal convictions related to marijuana amongst other provisions; and 309 Page 2 of 14 WHEREAS, the Montana Legislature passed, and Governor Gianforte signed into law, House Bill 701 (“HB 701”) which revised, amended and supplemented the text of I-190 and established the Montana Regulation and Taxation Act (16-12-101, MCA et seq. (the “Act”)); and WHEREAS, a codified purpose of the Act pursuant to Section 37 amending Section 16- 12-101(2(j), MCA is to provide local governments authority to allow for the operation of marijuana businesses in their community and establish standards for the cultivation, manufacture, and sale of marijuana that protect the public health, safety, and welfare of residents within their jurisdictions; and WHEREAS, Section 59 of the Act pursuant to Section 16-12-301, MCA, provides that to protect the public health, safety, or welfare, a local government may by ordinance or otherwise regulate a marijuana business that operates within the local government’s jurisdictional area; and WHEREAS, Section 54 of the Act pursuant to Section 16-12-207, MCA, provides a locality may require marijuana businesses be a greater distance from schools and places of worship then required by state law; and WHEREAS, the City Commission understands the need to create specific provisions related to the licensing of marijuana businesses to ensure those businesses and their employees are in full conformance with the Act and the Bozeman Municipal Code; and WHEREAS, the City Commission reviewed and considered the relevant Unified Development (UDC) text amendment criteria established by Title 76, Chpt. 2, Part 3, MCA and found the proposed UDC text amendments to be in compliance with the purposes of zoning as locally adopted in Section 38.100.040, BMC; and WHEREAS, at its public hearing, the City Commission found that the proposed UDC text amendments would be in compliance with Bozeman’s adopted growth policy and applicable statutes and would be in the public interest; and WHEREAS, marijuana continues to be classified as a Schedule I narcotic under the federal Controlled Substances Act and under Sec. 50-32-222, MCA, such that the cultivation, distribution, and possession of marijuana, except as provided for in the Act, constitutes criminal activity; and WHEREAS, the City Commission finds a legitimate governmental interest in regulating the locations where a marijuana business may be located and in licensing marijuana businesses and in doing so confirming such locations are in compatible zoning districts and adequately distanced from schools and places of worship to protect the general health, safety or welfare of the citizens of Bozeman. 310 Page 3 of 14 NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 That the entirety of current Chapter 16, Article 8 of the Bozeman Municipal Code shall repealed and replaced with the following: Article 8: Marijuana Division 1. Generally Sec. 16.08.150. – Purpose; Applicability; failure to maintain state licensure A. The purpose of this article is to implement the provisions of the Montana Marijuana Regulation and Taxation Act (MCA 16-12-101 et seq. (the “Act”)). The provisions of this article shall apply to all marijuana business within the city, including both medical and recreational marijuana cultivation, manufacturing, transporting, testing and dispensaries, unless otherwise stated herein. B. Any individual or entity licensed under this article to conduct any marijuana business, in addition to the requirements of this article, is subject to all other requirements of this code, the Act, and any applicable administrative rules established by the state or city. Should such rules or laws change, any person or entity licensed under this article shall immediately come into compliance with any newly adopted rules. C. Notwithstanding the above, nothing in this code shall be construed to authorize any individual or entity to perform any act or conduct any enterprise not in conformance with state law. D. Compliance with this code does not shield any person, corporation, or other legal entity from the requirements of, or enforcement by, other governing entities, or from civil liabilities. E. Each individual or entity issued a license under this article shall at all times maintain authorization from the state to acquire, possess, cultivate, manufacture, deliver, transfer, test, transport, dispense or sell marijuana. Failure to maintain applicable licensure(s) with the state is cause for immediate suspension of a license issued under this article, may be cause for revocation resulting in a moratorium on an individual or entity’s ability to engage in marijuana business, and may be cause for criminal prosecution as provided by law. 311 Page 4 of 14 Sec. 16.08.160. - Incorporation of state law For the purposes of this article, words, phrases and expressions, not otherwise defined below, are subject to the definitions set forth in 16-12-102, MCA. The provisions of state code and any rules or regulations promulgated thereunder are incorporated herein by reference except to the extent that more restrictive or additional regulations are set forth in this article. Sec. 16.08.170. – Definitions The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section. A. “Adult-use dispensary” means a premises licensed by the state from which marijuana or marijuana products may be sold and obtained by registered cardholders, persons 21 years of age or older, or both. B. “Cultivator” means a person licensed by the state to plant, cultivate, grow, harvest, and dry marijuana; or a person licensed by the state to package and relabel marijuana produced at the location in a natural or naturally dried form that has not been converted, concentrated, or compounded for sale though a licensed dispensary. C. “Dispensary” means both an adult-use dispensary and/or a medical marijuana dispensary. D. “Licensee” means a person holding a state license issued pursuant to state law and a city marijuana license. E. “Manufacturer” means a person licensed by the state to convert or compound marijuana into marijuana products, marijuana concentrates, or marijuana extracts and package, repackage, label, or relabel marijuana products as allowed under state law and this article. F. “Marijuana” means all plant material from the genus Cannabis containing tetrahydrocannabinol (THC) or seeds of the genus capable of germination. This term does not include hemp and its derivatives as specified in §16-12-102(20)(b) or (c), MCA. G. “Marijuana business” means a cultivator, manufacturer, adult-use dispensary, medical marijuana dispensary, combined-use marijuana licensee, testing laboratory, marijuana transporter, or any other marijuana business or function that is licensed by the state and city. 312 Page 5 of 14 H. “Marijuana product” means a product that contains marijuana and is intended for use by a consumer by a means other than smoking. The term includes but is not limited to edible products, ointments, tinctures, marijuana derivatives, and marijuana concentrates. I. “Medical marijuana” means marijuana or marijuana products that are for sale solely to a cardholder who is registered with the state. J. “Medical marijuana dispensary” means the location from which a registered cardholder may obtain marijuana or marijuana products. K. “Registered cardholder” or “cardholder” means a Montana resident with a debilitating medical condition who has received and maintains a valid registry identification card issued by the state. L. “Testing laboratory” means the qualified person licensed by the state that provides testing of representative samples of marijuana and marijuana products; and provides information regarding the chemical composition and potency of a sample, as well as the presence of molds, pesticides, or other contaminants in a sample. Division 2. Licensing and Sales Sec. 16.08.180. – License, Fees, Regulations and Procedures A. Marijuana License required. Any individual or entity desiring to operate a marijuana business within the city must first obtain, and at all times while operating have, a marijuana license issued by the city. No separate business license is required by the city; all requirements are contained in this article. Applications should be submitted for approval to the Director of Community Development. A person or entity desiring to engage in a marijuana business within the city must, along with an application for a city marijuana license, submit a copy of their state license(s) for the marijuana business. If an applicant does not yet have a state license, conditional approval that the proposed marijuana business meets the requirements of chapter 38 of this code may be issued by the city. A marijuana business may not begin growing, manufacturing, testing, transporting, dispensing or otherwise selling marijuana or marijuana products without a state license and final marijuana license approved by the city. B. Types of marijuana businesses permitted in the city. Marijuana licenses are available for the following types of marijuana businesses permitted by the state within the city: canopy, manufacturing, transporting, dispensary, and testing. All marijuana businesses are subject to state 313 Page 6 of 14 law, the provisions set forth below, and applicable zoning provisions in chapter 38 of this code, including but not limited to, the provisions set forth in 38.360.180. 1. Marijuana Canopy License: Any cultivator licensed by the state must have a city issued canopy license. Only indoor cultivation is permitted within the city. Marijuana plants may not be visible by normal, unaided vision from a public place. All marijuana plants must be housed in a secured and locked space. 2. Marijuana Manufacturing License: Any manufacturer licensed by the state must have a city marijuana manufacturing license. 3. Marijuana Dispensary License: A marijuana dispensary license is required for all dispensaries. No on premise consumption or smoking of marijuana or marijuana products is permitted at a dispensary located within the city. 4. Marijuana Testing License: Any testing laboratory licensed by the state and located within the city is required to obtain a city marijuana testing license. Testing laboratories located outside the city but obtaining samples and testing marijuana and marijuana products obtained within the city limits are not required to obtain a marijuana testing license. 5. Transporting Marijuana License: Any individual or entity licensed by the state that as a business, provides any logistics, distribution, delivery, or storage of marijuana and marijuana products with the city limits must obtain a city marijuana transporters license. No marijuana or marijuana products may be stored at the transporters residence where commercial activity is prohibited by applicable zoning and or prohibited by home based business requirements. A marijuana transporter who obtains a licensed premises in which to temporarily store marijuana or marijuana products must disclose so on the application to the city, and ensure the location meets all state and location regulations. No separate license is needed for the storage premises. Delivery of marijuana and marijuana products is permitted between one or more legally licensed marijuana businesses or to registered medical marijuana cardholders. C. Fee. Marijuana license fees and allocation of fees shall be established by resolution of the city commission. 314 Page 7 of 14 Sec. 16.08.190 – Administrative procedures; Application requirements. The Director of Community Development may adopt and from time to time amend, administrative procedures to implement this article. Administrative procedures may include, but are not limited to, determining necessary information required for applications, determining an orderly transition for medical marijuana businesses currently licensed by the city prior to the [effective date of ordinance], and any application revisions or administrative procedures necessary in order effectuate the provisions of this article. Sec. 16.08.200. – Renewal, multiple establishments, multiple types of marijuana businesses, transfer. A. Annual Renewal. Licenses issued under this article must be renewed annually. B. Separate license for multiple establishments. A license must be obtained in the manner prescribed herein for each branch establishment or location of a marijuana business, as if each such branch establishment or location were a separate business. C. Single license required for multiple marijuana business activities occurring at same location with same owner. A separate city marijuana license is not required for each type of marijuana business occurring at the same location, so long as the operations belong to and are controlled by the same legal entity for each marijuana businesses. Applicants seeking a city marijuana license who engage in two or more marijuana businesses at the same location must disclose the various marijuana businesses that will occur at the location, and must provide proof of applicable state licensures for each marijuana business and ensure compliance with chapter 38 of this code prior to conducting any marijuana business within the city. D. Change of location. A licensed marijuana business may change the location of the licensed business provided that the licensee shall comply with zoning, building, engineering, and fire regulations. A change in location requires a new marijuana license application and fee be submitted for approval. E. No transfer of license. City marijuana licenses may not be transferred. Any change in ownership requires a new city license be obtained in the manner prescribed herein. F. No license required. No marijuana license is required for individuals or businesses engaged in professional activities related to marijuana businesses whose work occurs in premises where marijuana or marijuana products are not physically present or handled, including but not limit a duly licensed medical doctor who reviews a person's medical condition for purposes of recommending medical marijuana and who does not provide marijuana to a registered cardholder. No marijuana license is required for those who pass through or enter into the city 315 Page 8 of 14 within the scope and course of their employment related to marijuana business but who do not conduct their operations or business in the city. Sec. 16.08.210. – Denial, Suspension, or Revocation of marijuana business licensure A. The city may deny, suspend, or revoke a license for a marijuana business if the city has reasonable cause to believe the licensee has, or the issuance of the city license to the licensee would, violate a provision of this code or state law. The City Manager may suspend or revoke any marijuana license if it learns a licensee’s state license(s) have been suspended or revoked. A licensee’s city marijuana license shall remain suspended until a final adjudication on the state license, including any penalty imposed by the state has been satisfied and the state license is reinstated. While a license is suspended or revoked, a marijuana business is prohibited from engaging in marijuana business within the city. A marijuana business operating without a license may result in criminal prosecution under Title 45, MCA. B. An applicant may appeal any decision of the city to deny, suspend, or revoke a marijuana license provided for by this chapter to the 18th Judicial District Court. An appeal must be made by filing a complaint setting forth the grounds for relief and the nature of relief demanded with the district court within 30 days following receipt of notice of the city’s final decision. Sec. 16.08.220. – Inspection. As a condition of receiving a marijuana license under this article, a city employee, including but not limited to all police, fire, building inspectors, city engineers, zoning officials, and other employees or officials designated by the city manager, may without notice during normal business hours inspect any premises under license pursuant to this article to determine compliance with the Act and any other state or local regulations. All persons authorized herein to inspect licensees and businesses shall have the authority to enter, with or without search warrant, during normal business hours, premises which require a marijuana license, premises holding a marijuana license, and premises for which the marijuana license has been suspended or revoked. Sec. 16.08.230. State law superseded and applicable. The provisions of this article shall supersede the Act in so far as this division expands the limitations on the use of marijuana authorized under by the Act. All other provisions of state law related to marijuana shall be applicable. Sec. 16.08.240. No private right of action. 316 Page 9 of 14 Nothing in this article shall be construed to create a private right of action regarding the acquisition, possession, cultivation, manufacture, delivery, transfer, transport, sale or dispensing of marijuana. Section 2 That Chapter 12 of the Bozeman Municipal Code shall be amended as follows and any sections not amended herein shall remain in effect: Sec. 12.01.010. – Definitions. A. The following words, terms and phrases, when used in this chapter and other related regulations in this Code, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 7. "Marijuana" and "usable marijuana" have the meanings as defined in the Montana Marijuana Act (MCA 50-46-301 et seq.). 8. "Marijuana" means the uses of marijuana as authorized pursuant to and defined in the Montana Marijuana Act (MCA 50-46-301 et seq.). Sec. 12.02.040. Exemptions. F. The exemptions listed in subsections A, B, C, D and E of this section do not apply to a transaction, use, or business involving marijuana. Section 3 That Chapter 34 of the Bozeman Municipal Code shall be amended as follows and any sections not amended herein shall remain in effect: Section 34.07.040. Advertising standard. 14. Advertisements that portray or depict any activities, products, or services related to marijuana as authorized pursuant to and defined in the Montana Marijuana Act (MCA 50-46-301 et seq.). Section 4 317 Page 10 of 14 That Chapter 38 of the Bozeman Municipal Code shall be amended as follows and any sections not amended herein shall remain in effect: Section 38.360.180 Medical marijuana Marijuana. A. Any activity involving a marijuana business a medical marijuana as defined in chapter 16 of this code must meet all requirements of state law including, but not limited to, the standards of title 16, chapter 12, title 50, chapter 46 Montana Code Annotated (MCA 16-12-101 et seq.), and limits on possession, clean air, etc., and any applicable administrative rules established by the state. Should such rules or laws change, any medical marijuana business facility must immediately begin any required process to come into compliance with the new rules. This includes submittal for review of applications to the city as they may relate to zoning, business licensing, or other municipal requirements programs. Compliance with city zoning regulations does not shield any person, corporation, or other legal entity from the requirements of, or enforcement by, other governing entities, or from civil liabilities. 1. Unless specifically exempted, any person or existing or proposed entity intending to conduct activities which meet the definitions of "agriculture," "manufacturing," "office" or "retail" as established in division 38.700 of this chapter which is for the purpose of cultivation growing, manufacturing, processing, transporting, testing, distribution, sale and/or any other activity related to medical marijuana business must, in addition to this section, comply with all other provisions of this cCode, and must not be located within 400 500 linear feet of the exterior property line of: a. All schools or facilities, where students are regularly present, owned or operated by Bozeman School District 7 whether located inside or outside the city limits; or b. All private schools, not including home schools, where students are regularly present, whether located inside or outside the city limits, which provide instruction in the class range from kindergarten to 12th grade and which are either subject to MCA 20-5-109, or listed as a kindergarten provider by the county superintendent of schools. c. The principal campus boundary of any postsecondary school defined by 20-5-402, MCA, where students are regularly present. For the purposes of the Montana State University campus, the provisions of this section apply to the main campus, a map of which may be obtained from the Department of Community Development. d. A building used exclusively as a church, synagogue, or other place of worship as defined for the purposes of this section by the state. 318 Page 11 of 14 e. For purposes of this section, specified distances will be measured in a straight line, without regard to intervening structures from the property line of a school, postsecondary school, church, synagogue, or other place of worship as stated in subsections 1.a and b - d of this section, regardless of whether those schools or places of worship are located within the jurisdictional limits of the city, to the property line nearest public entrance of the marijuana business providing medical marijuana. 2. All medical marijuana businesses within the city limits that were duly licensed and authorized to conduct medical marijuana business by the city on or before [effective date of ordinance] are exempt from the above requirements in 38.360.180 A(1)(a-e) and may continue to operate, including conducting businesses related to non-medical marijuana, in the established location at the size and capacity originally licensed. Any marijuana business that is duly licensed by the state and city to operate in a location and is operational prior to a school, postsecondary school, church, synagogue, or other place of worship establishing a location that would have precluded the marijuana business from being licensed based on the restrictions in a-e, may continue to operate in the established location at the size and capacity originally licensed. 3 2. Any activities meeting the definitions of "agriculture," "manufacturing," "office" or "retail" as established in article 7 of this chapter which is for the purpose of cultivating, growing, processing, manufacturing, testing, transporting, distribution, and/or any other activity related to medical marijuana business where marijuana or marijuana product is physically present may not be located in the R-4 and R-5 districts, or on properties adjacent to Main Street within the core area of the B-3 district as defined in section 38.300.110.D. 4 3. The requirements of subsections 1 and 2 of this section do not apply to personal use or personal growing of marijuana plants permitted by state law. a. An individual registered qualifying patient who possesses marijuana in accordance with the limits and requirements of title 50, chapter 46, Montana Code Annotated (MCA 50-46-101 et seq.) solely for that qualifying patient's own use; or b. To a caregiver providing care to not more than two qualifying patients who reside within the same dwelling as the caregiver. The caregiver and qualifying patients must maintain appropriate state agency qualification at all times when medical marijuana is present. 5 4. Establishing a medical marijuana facility business may result in a change in the designation of building code occupancy type. A change in use or occupancy type may 319 Page 12 of 14 require physical modifications to the structure, which must be approved by the building division prior to any construction as required by section 38.200.100. 6 5. Air discharge control. Any medical marijuana cultivation, growing, manufacturing or processing operation that contains 24 or more marijuana plants at any one time must provide a forced air vent discharge point that is: a. Located no closer than 30 feet from an adjacent property line or a residence; or b. pProvides a mechanical filtration system to control discharges of particulates and odors. The ventilation filtration system must be designed by a mechanical engineer licensed to practice in the state such that odors and particulates may not be detected by unaided human observation at the property boundary, and noise produced by the system must be controlled and minimized. 7 6. Any person applying for making application for a zoning approval for a medical marijuana business must provide evidence of DPHHS state licensure approval as a caregiver at the time of application and must maintain such DPHHS state licensure approval at all times. Failure to maintain approval any and all state licensing requirements may immediately suspends zoning approval to operate a medical marijuana business in the city. 8 7. These regulations are for review of applications to the city and do not restrict property owners from establishing more stringent standards for their properties. Section 5 Repealer. All provisions of the ordinances of the City of Bozeman in conflict with the provisions of this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force and effect. Section 6 Savings Provision. This ordinance does not affect the rights and duties that matured, penalties that were incurred or proceedings that were begun before the effective date of this ordinance. All other provisions of the Bozeman Municipal Code not amended by this ordinance shall remain in full force and effect. 320 Page 13 of 14 Section 7 Severability. That should any sentence, paragraph, subdivision, clause, phrase or section of this ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect the validity of this ordinance as a whole, or any part or provision thereof, other than the part so decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman Municipal Code as a whole. Section 8 Codification Instruction. The provisions of Section 1 shall be codified as appropriate in Chapter 16 of the Bozeman Municipal Code. The provisions of Section 2 shall be codified as appropriate in Chapter 12 of the Bozeman Municipal Code. The provisions of Section 3 shall be codified as appropriate in Chapter 34 of the Bozeman Municipal Code. The provisions of Section 4 shall be codified as appropriate in Chapter 38 of the Bozeman Municipal Code. Section 9 Effective Date. This ordinance shall be in full force and effect thirty (30) days after final adoption. 321 Page 14 of 14 PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the 19th day of October, 2021. CYNTHIA L. ANDRUS Mayor ATTEST: MIKE MAAS City Clerk APPROVED AS TO FORM: GREG SULLIVAN City Attorney 322 Memorandum REPORT TO:City Commission FROM:Anna Saverud, Assistant City Attorney Greg Sullivan, City Attorney SUBJECT:Resolution 5348, Establishing a License Fee for Marijuana Businesses Operating within the City of Bozeman MEETING DATE:October 19, 2021 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Move to approve Resolution 5348: Establishing a License Fee for Marijuana Businesses Operating within the City of Bozeman. STRATEGIC PLAN:3.1 Public Safety: Support high quality public safety programs, emergency preparedness, facilities, and leadership. BACKGROUND: At the October 19, 2021 City Commission meeting, on the Action item immediately preceding this Resolution, the Commission provisionally adopted Ordinance 2084, An Ordinance of the City Commission of the City of Bozeman, Montana Generally Revising Laws and Regulations Related to Marijuana and the Montana Marijuana Regulation and Taxation Act. Resolution 5348 establishes the fees for the marijuana business licenses established under Ordinance 2084. Staff recommends an annual fee of $750.00 per marijuana business license issued by the city. This cost is recommended to offset staff time in reviewing applications for compliance with state and local regulations, confirming licenses with the state, and undertaking any violation or enforcement action that may arise. Additionally, staff anticipates a significant amount of staff time will be spent related to marijuana businesses over the next few years as we transition to recreational marijuana with current medical marijuana providers, creating forms and processes for the transition, reviewing rules promulgated by the Department of Revenue over the coming months and then managing increased interest in the licensing when the market further opens up to new dispensaries in July of 2023. UNRESOLVED ISSUES:None anticipated. 323 ALTERNATIVES:Not require fees or change the amount of the fee required. FISCAL EFFECTS:None anticipated. Attachments: RESOLUTION 5348.pdf Report compiled on: October 12, 2021 324 Version April 2020 RESOLUTION 5348 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, ESTABLISHING A LICENSE FEE FOR MARIJUANA BUSINESSES OPERATING IN THE CITY OF BOZEMAN. WHEREAS, the City has the authority to license by ordinance all industries and impose penalties for failure to comply with such license requirements pursuant to 7-14-4101, MCA; and WHEREAS, the City adopted Ordinance 2084 establishing license requirements for marijuana businesses; and NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, as follows: Section 1 To defray the costs and expense of staff processing and reviewing marijuana business applications; confirming an applicant’s state licensure(s) with the Department of Revenue (DOR); answering inquiries of DOR to the city regarding regulations and compliance within the city; staff’s time to review a marijuana business compliance with Sec. 38.360.180, BMC; and in addition to any potential staff time concerned with reporting violations and or enforcement under Ordinance 2084, the annual fee for each marijuana business licensee of $750.00. Section 2 Following passage and approval, this fee shall be in full force and effect on January 1, 2022 to coincide with the effective date of Ordinance 2084. All marijuana businesses applying to operate in the city on or after January 1, 2022, are subject to the $750.00 fee. Medical marijuana businesses currently licensed in the city must obtain a marijuana license pursuant to Ordinance 2084 and pay the $750.00 fee when their previous license is set to be renewed or when they apply to incorporate recreational marijuana into their business, whichever comes first. Section 3 Fees may be administratively adjusted thereafter if costs and expenses to the City if 325 Version April 2020 reviewing, processing, enforcement or other related issues concerning marijuana businesses increase. Fees may be increased no more than 5% a year. PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the _____ day of ________, 2021. ___________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: ___________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 326