Montana Administrative Register Notice 42-2-810 No. 6   03/25/2010    
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                                                    BEFORE THE DEPARTMENT OF REVENUE



In the matter of the adoption of New Rules I (42.13.203) and II (42.13.405) and amendment of ARM 42.13.101, 42.13.111, 42.13.201, 42.13.301, 42.13.402, 42.13.404 relating to regulations for liquor licensees









TO:  All Concerned Persons


1.  On October 29, 2009, the department published MAR Notice No. 42-2-810 regarding the proposed adoption and amendment of the above-stated rules at page 1896 of the 2009 Montana Administrative Register, issue no. 20.

2.  A public hearing was held on November 18, 2009, to consider the proposed adoption and amendment.  Oral and written testimony was received at the hearing and prior to the date set for close of comment.

3.  The comments and media coverage regarding the proposed amendments to ARM 42.13.101, which pertained to violations for the sale to a minor, were extensive.  Approximately 225 comments in opposition to this proposed amendment were timely filed by opponents.  Therefore, based on these comments and further review of the rule, the department will not amend ARM 42.13.101 at this time.  Instead, the department is filing MAR Notice 42-2-825, also contained in 2010 Montana Administrative Register, issue no. 6 which schedules a new public hearing to obtain comments and information pertaining to the schedule of penalties charged to liquor licensees as set in ARM 42.13.101 for "sales to minor" and "sale to intoxicated persons" violations which were raised by attendees at the November 2009 hearing.

The comments regarding the other rules contained in this notice are summarized along with the department responses as follows:


COMMENT NO. 1:  Mr. Neil Peterson, representing the Gaming Industry Association stated some concern with the definition of "patio/deck" as shown in the proposed amendment to ARM 42.13.111.  He stated this is a substantial change for a lot of locations in that the patio/deck area would need to be completely enclosed by at least a three foot fence or wall, and immediately adjacent and only accessible from the licensed premises.  There are a lot of decks that have been preapproved but don't meet these requirements and the association would hope that if the department goes ahead with this amendment, those folks would be grandfathered into the process.

Mr. Peterson further stated that it is his understanding that local fire code regulations require an exit off that deck, so if the only entrance or exit is through the premises, it would not comply with local fire regulations.


RESPONSE NO. 1:  The department appreciates Mr. Peterson's comments.  The definition of "patio/deck" in these rules applies to breweries and wineries and does not apply to the all-beverage licensee who is a member of the Gaming Industry Association.  The department concurs that the fire code regulations may not have been considered.  The department is further amending ARM 42.13.111(6), as shown below, to address this concern and, with this amendment believes the rule will conform to local fire codes.


4.  Based on the comments received, the department amends ARM 42.13.111 as follows, stricken matter interlined, new matter underlined:


42.13.111  DEFINITIONS  The following definitions apply to this subchapter:

(1) through (4) remain the same but are renumbered (2) through (5).

(5)(6)  "Patio/Deck" means a specific area designated on a floor plan which shall be completely enclosed by at least a 3-foot fence or wall, immediately adjacent to and only accessible from inside the licensed premises.

(6) through (8) remain as proposed but are renumbered (7) through (9).

(9)(1)  "Responsible server Alcohol beverage service training" means any server training program conducted by the department or the department designee, or a qualified server training program that has been preapproved in writing by the department.

(10)  "Sale to a minor violation" means a violation consisting of the unlawful sale, service, or delivery of an alcoholic beverage to a person under the age of 21.

(11) remains as proposed.


AUTH:  16-1-303, 16-1-424, MCA

IMP:  16-1-424, 16-3-302, 16-3-311, 16-4-312, 16-4-404, 16-6-104, MCA


5.  Therefore, the department amends ARM 42.13.111 with the amendments listed above and adopts New Rule I (42.13.203) and II (42.13.405) and amends ARM 42.13.201, 42.13.301, 42.13.402, and 42.13.404 as proposed.  The department has chosen not to amend ARM 42.13.101.

6.  An electronic copy of this adoption notice is available through the department's site on the World Wide Web at www.mt.gov/revenue, under "for your reference"; "DOR administrative rules"; and "upcoming events and proposed rule changes."  The department strives to make the electronic copy of this adoption notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered.  In addition, although the department strives to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.


/s/  Cleo Anderson                                        /s/  Dan R. Bucks

CLEO ANDERSON                                      DAN R. BUCKS

Rule Reviewer                                               Director of Revenue


Certified to Secretary of State March 15, 2010


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