2.
Office Space, Retail; Wholesale or Warehouse Space.
a.
Name or rental agency, manager, or owner
b.
Name of building, if applicable
c.
The address of the building
d.
The business, home, and emergency phone number of the applicant
e.
Amount of square footage in the building
f.
The endorsement of the city zoning officer showing the
business location sought to the licensed does not violate any city zoning provision
g.
Other information city laws and procedures require
3.
Cannabis Business License
a.
Name, permanent address, business, home, and emergency
phone numbers of the applicant
b.
Name or rental agency, manager, or owner
c.
Full business name
d.
Address of building
e.
Previous use of space to be occupied
f.
Number of employees including owners and managers, full
and part-time employees
g.
Amount of square footage in the building or suite to
be used for the business
h.
A brief description of the nature of the business, including
intent to manufacture cannabis products, cultivate, dispense, transport, test,
or a combination of the above
i.
If cannabis cultivation, canopy area size
j.
The endorsement of the City Zoning officer showing the
business location sought to be licensed does not violate any city zoning provision
k.
Other information city laws and procedures require
including compliance with Chapter
5.120 of this Title.
B. The City shall
issue a license upon presentation of a properly completed application together
with the appropriate license fee, unless upon review or inspection when
inspection occurs by the local health officer, sanitary inspector, fire
inspector, zoning officer, building inspector, or police officer indicates a
violation of any city ordinance or code existing at the place of business
sought to be licensed; in which case such inspector or officer shall submit a
written description of the violation, specifying the steps necessary to qualify
the premises for a license, a copy of which shall be furnished to the
applicant. Inspections of existing single family residential dwelling units
shall be performed on a complaint driven basis or at a time of new or remodeled
construction nor change of type of land use.
(Ord. 3701, 2022; Ord. 3434 §1, 2010; Ord.
3383 §1, 2008; Ord. 3351, 2007; Ord. 3322 § 1, 2006; Ord. 3299 § 1, 2005; Ord.
3258, 2004, § 1; Ord. 3229, 2003; Ord. 3161, 2000; Ord. 3100, 1999; Ord 1916 (part),
1978; prior code § 18-4).
5.08.030 License-Fees-Schedule.
The City Council shall establish and
amend fees relating to business licensing by resolution after conducting a
public hearing for the following types of businesses:
A.
General
Category, Cannabis, Contractor and Liquor Sales Businesses--The
fee schedule for a new business, a business license renewal or any business
that is changing locations is based on the number of full time equivalent (FTE)
employees subject to a minimum and maximum fee for each business type.
B.
Businesses
that rent office, retail, wholesale and warehouse space--New
retail or wholesale rental business or a previously licensed retail or
wholesale business that is changing locations is based on the square footage
being rented subject to a minimum and maximum fee for each range of square
footage.
C.
Market
Events such as Saturday Market, Hellgate Rendezvous, Southgate Mall Arts and
Crafts Fair(s) or similarly organized markets--The
event organizer (market master), oversight agency or management group shall
acquire these licenses for such vendors for the organized event(s).
Any vendor desiring to market their
products(s) outside of the confines of the above specified markets will be
required to purchase the standard transient merchant license outlined in 5.08.030
(D) MMC. The event organizer will be required to keep a log containing the
names and addresses of the daily participants for each market session. This special blanket license of certain small
market events is not intended to include the special auto, boat, or RV show
events nor is it intended to include any special sales involving these
products.
D.
Transient
vendor licenses
1.
Short
term license which expires 7 days after issuance
2.
Long
term license which expires May 31st of the license year and is
eligible for renewal upon its
expiration.
E.
Transient
merchant licenses
1.
90
day license
Licenses
are not transferable.
(Ord. 3701, 2022; Ord. 3524, 2014, Ord.
3500, 2013; Ord. 3477, 2012; Ord. 3461, 2011; Ord. 3434 §2, 2010; Ord. 3383 §2,
2008; Ord. 3351, 2007; Ord. 3322 §2, 2006; Ord. 3299 §2, 2005; Ord. 3258, §2,
2004; Ord. 3229, 2003; Ord. 3161, 2000; Ord. 3100, 1999; Ord 3099; Ord. 2927
§2, 1995: Ord. 1916 (part), 1978: prior code § 18-3).
5.08.040 License‑‑Fees‑‑Refund.
If an application for a license is denied, the fee that accompanied the
application shall be returned to the applicant. (Ord. 1916 (part), 1978: prior
code §18‑13).
5.08.050 Repealed
(Ord. 3477, 2012; Ord.
3375, 2008; Ord. 3189, 2001; Ord. 2672 §1, 1989: Ord. 1916 (part), 1978: prior
code §18‑5).
5.08.060 License‑‑Separate required for branch
establishment. A license shall be obtained for each
branch establishment or location of a business, as if such branch establishment
or location were a separate business; provided, however, that warehouses and
distribution plants used in connection with and incidental to a licensed
business where no sales are made shall not be deemed to be a branch
establishment. The provisions of this section requiring separate business licenses
for separate branch locations are also applicable to any temporary sale
conducted by a licensed business at any location other than the location for
which a business is licensed.
Any business
license issued for a temporary sale for a temporary location shall be valid
only at the location identified on the license and shall be valid only for the
remainder of the business licensure year during which the license was issued.
(Ord. 2365 §3, 1983: Ord. 1916 (part), 1978: prior code §18‑6).
5.08.070 License‑‑Posting required.
Every license issued under the provisions of this chapter shall be posted in a
conspicuous place on the premises where the business is conducted. All licenses
issued for a business without a fixed place of business shall be carried by the
licensee while the licensee is doing business and
shall be shown to any person with whom the licensee is doing business or any
police officer on demand. (Ord. 1916 (part), 1978: prior code §18‑7).
5.08.080 LicenseContents. Each
license issued under the provisions of this chapter shall state upon its face
the following:
A.
General
Business License
1.
Name
of the licensee and any other name under which the business is to be carried on
2.
Number
of employees as defined in Chapter 5.04
3.
The
address of the business
4.
The
amount of the license fee
5.
The
date of issuance and the date of expiration
B.
Office
Space, Retail, Whole or Warehouse Space License
1.
Name
of the licensee and any other name under which the business is to be carried on
2.
Address
of building
3.
The
amount of the license fee
4.
The
date of issuance and the date of expiration
5.
Amount
of square footage in building
C.
Cannabis
Business License
1.
Name
of the licensee and any other name under which the business is to be carried on
2.
Number
of employees as defined in Chapter 5.04
3.
The
address of the business
4.
The
amount of the license fee
5.
The
date of issuance and the date of expiration
(Ord. 3701, 2022; Ord. 3434 §3, 2010; Ord.
3384 §3, 2008; Ord. 3351, 2007; Ord. 3322 §3, 2006; Ord. 3299 §3; Ord. 3258 §3,
2004; Ord. 3229, 2003; Ord. 1916 (part), 1978: prior code §18-8).
5.08.090 Business‑‑Change
of location. A licensee shall have the right to
change the location of the licensed business, provided the new location
complies with the requirements of the ordinances of the city. (Ord. 1916
(part), 1978: prior code §18‑9).
5.08.100 Repealed. (Ord. 3461, 2011; Ord. 1916 (part),
1978: prior code §18‑10).
5.08.110 Interpretation
of provisions‑‑Unlawful business.
The licensing provisions of this chapter shall not be construed to grant permission
to carry on or conduct any unlawful business, or to conduct any business in an
unlawful manner, or to grant immunity to any business from lawful regulation
and control, or to authorize the violation of any zoning ordinance,
regulation, or restriction. (Ord. 1916 (part), 1978: prior code §18‑11).
5.08.120 Right
to refuse or revoke license. Whenever the council deems it in the
public interest, it may, by resolution adopted by two‑thirds' vote of all
the members of the council and approved by the mayor, refuse to authorize the
issuance of any license provided for in this chapter, the council may, upon a
two‑thirds' vote of all members of the council and approved by the
mayor, revoke any license issued under this chapter when it is deemed in the
public interest to do so. (Ord. 1916 (part), 1978: prior code §18‑12).
5.08.130 Background Investigation
requirementsFee.
5.08.130 Background Investigation requirementsFee.
The City
Council shall establish and amend fees relating to background investigations by
resolution after conducting a public hearing.
A.
Any
full- and part-time employees of video inventorying services operating within
buildings, any for-profit business conducting sales or solicitation at
individual residences, tree trimming and spraying, itinerant vendors, transient
merchants, boiler-room operations, chimney sweepers, home maintenance and
repair businesses, except those that are licensed, bonded and insured pursuant
to Montana state licensing laws or as an individual had a valid business license
during the previous license year and locksmith businesses are required within
ten days of employment to have reasonable background investigation included
criminal record check made by the city police department. Employees of locksmith businesses must
submit, or see that it is submitted, an application for an employees security
check to the department and provide two classifiable sets of fingerprints
within that ten-day period and are approved by the chief of police in order to
be employed in any such business within the city limits of the city.
Home
maintenance means any business doing work with respect to the upkeep of any
existing home, the property the home is on, or the fixtures comprising the home
or which are within the home. A
fixture means that which is fixed or attached to the home so as to become so
related to the particular real estate that an interest in them arises under
real estate law.
B.
The
employer shall be responsible to see that each employee has made application
for a security check within ten days of employment.
C.
Nothing
in this section shall be construed to require any background check on any
member of a bona fide law enforcement agency.
If it appears
that the issuance of a license or employee background investigation clearance
may not be in the public interest because the individual has been convicted of
any felony or of a misdemeanor criminal offense involving theft, theft of
services, fraud or deceptive practices the application shall be denied. If the applicant desires to file an appeal,
the matter shall be taken before the city administrative appeal panel
consisting of: (1) the mayor or the
mayors designee; (2) the chairperson of the administration and finance
committee or a committee person designated by the chairperson; and (3) the city
clerk, which shall conduct a due process hearing review of the appeal for
determination.
(Ord. 3524, 2014, Ord. 3434 §4, 2010; Ord.
3383 §4, 2008; Ord. 3351 §4, 2007; Ord. 3322 § 4, 2006; Ord. 3299 § 4, 2005; Ord.
3258 § 4, 2004; Ord. 3229, 2003; Ord. 2936§1, 1995: Ord. 2885, §1, 1994: Ord.
2419 §1, 1985; Ord. 2387 §2, 1984: Ord.
2365 §§1 and 2, 1983; Ord. 1979, 1978: Ord. 1916 (part), 1978: prior
code §§18-14, 21-19.1).
5.08.140 Surety
bonds required. Prior to receiving a city business
license, each person engaged in any business where specifically required in
other chapters of this code, shall be required to file with the city a surety
bond in the sum specified, subject to the conditions specifically required in
the applicable ordinance. Such bond shall indemnify and save harmless the city
from all loss or damage or impairment of use of city property or city right‑of‑way,
and from all loss caused by the violation by the bond holder or his agents, or
employees of any ordinance, rule, regulation, condition or requirement of the
city. (Ord. 3229, 2003; Ord. 2885 §2, 1994: Ord. 1972, 1978: Ord. 1916 (part),
1978: prior code §18‑14.1).
5.08.150 Liability
insurance requirements.
A.
Minimum liability insurance requirements for contractors doing business in or
for the city shall be as follows:
1.
Minimum limits of liability required shall be as follows:
a. Bodily injury to one or more persons,
three hundred thousand dollars;
b. Property damage liability, one hundred thousand dollars; or
c. Single limit bodily injury and property
damage, three hundred thousand dollars.
2. All
vehicle liability must be included, including auto nonownership and hired cars.
3. The
insurance coverages for contractors shall be as follows:
a. Excavators,
drainlayers and others doing any excavating work:
i. Comprehensive form,
ii. Premises and operations,
iii. Underground,
iv. Products and completed operations;
b. Housemovers
and demolition contractors:
i. Comprehensive form,
ii. Premises and operations;
c. All
other contractors:
i. Comprehensive form,
ii. Premises and operations,
iii. Products and completed operations.
B. Before license is issued, a certificate of
insurance shall be provided the city which shall show complete compliance with
all provisions of subsection A.
C.
The city shall give ten days' notice by registered mail of any cancellation or
alteration of the above insurance requirements.
D. Evidence of compliance with Montana Division
of Worker's Compensation regulations concerning accident or occupational
disease incurred by the contractors' employees during the course of their
employment.
E. For purpose of this section,
"contractor" means any person or firm engaged in any of the following
businesses: Construction or demolition of residential or commercial buildings,
construction of streets, curbs and sidewalks, moving houses or other buildings,
excavating, sewer and drain laying, excavators, gas fitters, electrical contractors
and plumbing contractors. (Ord. 2219 §1, 1981: Ord. 1941, 1978: Ord. 1916
(part), 1978: prior code §18‑14.2).
5.08.160 Violation‑‑Penalty.
A.
Every person carrying on or engaging in the transaction of any business for
which a license is required without first procuring the proper license
therefor, and any persons providing misinformation upon application for a
license shall be guilty of an ordinance violation, and upon conviction shall be
punished by a fine up to but not in excess of five hundred dollars. There shall
be no penalty of imprisonment imposed as part of a sentence for this ordinance
violation. Every day business is conducted without a license shall constitute
a separate offense.
B. In addition to the above penalty, a civil
penalty in the amounts hereinbelow set forth shall be imposed on every person
who fails to obtain their business license within the time period required. A
civil judgment for the amount of the license fee due and unpaid, plus penalty,
may be sought and entered against the defendant in cases of nonpayment.
1.
The
following penalties shall be imposed for late payments of annual business
license fees which are due on March 1st of each year:
a. Twenty‑five
percent if not paid by April 1st;
b.
Fifty percent if not paid by May 1st; and
c.
One hundred percent if not paid by June 1st.
1. Whenever a new business commences
operation after March 1st of any business licensure year and the business fails
to pay its business license fee within one month after the business operation
has commenced, a penalty of twenty‑five percent shall be imposed; if not
paid within two months after the business operation has commenced, a penalty of
fifty percent shall be imposed; if not paid within three months after the
business operation has commenced, a penalty of one hundred percent shall be
imposed.
C.
Whenever a new business commences operation after September 1st of any business
licensure year, the escalating penalty imposed shall be on the proration
license fee authorized pursuant to Section 5.08.050 of this code, and the
penalty shall escalate pursuant to thirty‑day intervals in a manner
similar to that set forth above for the percentage of penalty fee increase.
(Ord. 2672 52, 1989: Ord. 2421 51, 1985: Ord. 2028, 1979: Ord. 1916 (part),
1978: prior code §18‑14.3).
POOLHALLS AND
BILLIARD PARLORS
Sections:
5.12.010 Hours
of business.
5.12.020 Pea
pool or gambling‑‑Permitting unlawful.
5.12.030 Pea
pool or gambling‑‑Playing unlawful.
5.12.040 Revocation
of license.
5.12.010 Hours
of business. It is unlawful for any person running
or conducting any pool or billiard hall, room or parlor, or any employee of any
such person, to keep or permit the same to be kept open to the public, or to
permit any person to enter or visit the same, or to be in, remain in or loiter
therein between the hours of one a.m. and seven a.m. (Prior code §26‑1).
5.12.020 Pea
pool or gambling‑‑Permitting unlawful.
It is unlawful for any person running or conducting a pool hall, room or
parlor, or a billiard hall, room or parlor or any employee of such person who
is working or employed in or about the pool or billiard hall, room, or parlor
to permit that certain game of pool commonly called "pea pool" or any
similar game to be played therein; or to permit any wager or bet to be made
upon any game of pool or billiards played or to be played in the hall, room or
parlor, or upon any play made or to be made in any game played or to be played
therein. (Prior code §26‑2).
5.12..030 Pea
pool or gambling‑‑Playing unlawful.
It is unlawful for any person to play the game of pea pool or any similar game,
or to make any bet or wager upon any game of pool or billiards or upon any play
made or to be made in any pool or billiard game. (Prior code §26‑3).
5.12.040 Revocation
of license. A second conviction of any violation
of this chapter of any person conducting any pool or billiard room, hall
or parlor, or person employed therein, shall, in addition to the penalty
provided for in this code, operate as a revocation of the license under which
the business is conducted. (Prior code §26‑4).
HOTELS AND
LODGINGHOUSES
Sections:
5.16.010 Lodginghouse,
rooming house or apartment defined.
5.16.020 License‑‑Required.
5.16.030 License‑‑Health
certificate.
5.16.040 License‑‑Issuance
requirements.
5.16.050 Repealed.
5.16.060 Repealed.
5.16.070 Rooms‑‑Ventilation.
5.16.080 Rooms‑‑Construction.
5.16.090 Rooms‑‑Separate
air shaft.
5.16.100 Overcrowding
prohibited.
5.16.110 Toilet
facilities.
5.16.120 Repairs‑‑Generally.
5.16.130 Repairs‑‑Toilet
and sink floors and surfaces.
5.16.140 Conveniences
and receptacles‑‑Water service‑Watertight cellar requirement.
5.16.150 Hall
ventilation and lighting requirements.
5.16.160 Garbage
receptacles‑‑Storage of combustibles and animal keeping prohibited.
5.16.170 Cleanliness‑‑Contagious
disease disinfection requirement.
5.16.180 Cleanliness‑‑Filth
or human wastes prohibited..
5.16.190 Cleanliness‑‑Disinfection
upon health officer request.
5.16.200 Applicability
of chapter.
5.16.010 Lodginghouse,
rooming house or apartment defined. A
"lodginghouse, rooming house or apartment" shall be taken to mean and
include any house or portion thereof in which persons are harbored or received
or lodged for hire, for a single night, or for less than a week at one time, or
any part of which is let for any person to sleep in for any term less than a
week. (Prior code §16‑1).
5.16.020 License‑‑Required.
No person shall conduct a lodginghouse or sleeping apartment or apartments in
the city without first obtaining a license so to do. (Prior code §16‑2).
5.16.030 License‑‑Health
certificate. No licenses shall be granted to conduct
a lodginghouse, rooming house or sleeping apartments in the basement of any
building, unless a proper certificate is first granted by the board of health
or health officer of the city, certifying that the sanitary conditions of such
basements are satisfactory to the board of health or health officer. (Prior
code §16‑3).
5.16.040 License‑‑Issuance
requirements. No license as prescribed in Section
5.16.020 shall be granted for any lodginghouse, rooming house or apartment
until the chief of the fire department, the inspector of buildings and the
health officer of the city shall certify:
A. That the building, lodginghouse, rooming
house or sleeping apartment is provided with sufficient number of toilets and
with good and sufficient means of ventilation;
B. That the building is provided with
sufficient means of escape in case of fire and is constructed in accordance
with the ordinances of the city and state law;
C. That the means for lighting are
satisfactory;
D. That not less than four hundred cubic feet
of air space is allowed to each lodger or occupant in a sleeping room;
E. That there are not less than two horizontal
feet between the sides of any two beds;
F. That all beds are so arranged that under
each of them the air will freely circulate;
G. That there is no decayed vegetable matter in
close proximity to such sleeping apartment, and that the sanitary condition of
such sleeping apartment is good. (Prior code §16‑4) .
5.16.050 Repealed - (Prior code §16‑5; Ord.3562, 2016).
5.16.060 Repealed
- (Prior code §16‑6; Ord.3562, 2016).
5.16.070 Rooms‑‑Ventilation.
A.
Every house, building, apartment or portion thereof in the city designed to be
used, occupied, leased or rented, or which is or shall be used, occupied,
leased or rented for lodging or rooming house, shall have in every room thereof
which is occupied as a sleeping room, and which does not communicate directly
with the external air, a ventilating or transom window having an opening or
area of three square feet over the door leading into and connecting with the
adjoining room if such adjoining room communicates with the external air; and
also a ventilating transom window of the same opening or area communicating
with the entry or hall of the house. Where this is, from the relative situation
of the rooms, impracticable, such last mentioned ventilating or transom window
shall communicate with an adjoining room that itself communicates with the
entry or hall.
B. Every
such house or building shall have in the roof at the top of the hall an adequate
and proper ventilator. No room in any lodginghouse shall be so occupied that
the allowance of air to each person living or sleeping in the room shall at any
time be less than four hundred cubic feet for each person more than twelve years
old, and two hundred cubic feet for each person of the age of twelve years or
under. (Prior code §16‑7).
5.16.080 Rooms‑‑Construction.
A.
In
every house designated in Section 5.16.070 hereafter erected or converted,
every habitable room, except rooms in the attic, shall be in every part not
less than eight feet in height from the floor to the ceiling; and every
habitable room in the attic of any such building shall be at least eight feet
in height from the floor to the ceiling throughout not less than one‑half
of the area of such room.
B.
Each
room shall have at least one window connecting with the external air, and over
the door an adequate ventilator connecting it with a room or hall which has a
connection with the external air, and so arranged as to produce a cross
current of air. The total area of window or windows in every room communicating
with the external air shall be at least one‑tenth of the superficial area
of every such room, and the top of one at least of such windows shall not be
less than seven feet six inches above the floor, and the upper half at least
shall be made so as to open the full width.
(Prior code §16‑8).
5.16.090 Rooms‑‑Separate
air shaft. Every habitable room of a less area
than one hundred superficial feet, if it does not communicate directly with the
external air, and is without an open fireplace, shall be provided with special
means of ventilation by a separate air shaft extending to the roof, or
otherwise, as the health officer may prescribe.
(Prior code §16‑9).
5.16.100 Overcrowding
prohibited. No owner, lessee or keeper of any
tenement house, lodginghouse, boardinghouse or manufactory shall cause or allow
the same to be overcrowded, or cause or allow so great a number of person to
dwell, be, or sleep in any house or any portion thereof, as thereby to cause
any danger or detriment to health.
(Prior code §16‑10).
5.16.110 Toilet
facilities. Every person who is
the owner, lessee or keeper or manager of any tenement house, boardinghouse,
lodginghouse or factory shall provide or cause to be provided for the
accommodation thereof, and for the use of the tenants, lodgers, boarders and
workers therein, adequate privies, urinals and water closets, and the same
shall be so adequately ventilated, and shall at all times be kept in such cleanly
and wholesome condition as not to be offensive or to be dangerous or
detrimental to health. (Prior code 516‑11).
5.16.120 ‑ Repairs‑‑Generally.
Every tenement house and every part thereof shall be kept in good repair, and
shall be clean and free from any accumulation of dirt, filth, garbage or other
matter in or on the same, or in the yard, courts, passages, areas or alleys
connected with or belonging to the same. (Prior code §16‑12).
5.16.130 Repairs‑‑Toilet
and sink floors and surfaces. The floor and other surface around or
beneath any water closet and every sink in every tenement shall be maintained
in good order and repair. (Prior code §16‑13).
5.16.140 Conveniences
and receptacles‑‑Water service‑Watertight cellar requirement.
A.
Every house designated in Section 5.16.010 erected or converted after the
effective date of the ordinance codified in this chapter shall have proper
conveniences and receptacles for ashes and rubbish;
B. It shall have water furnished at one or more
places in such house or in the yard thereof, so that the same may be adequate
and reasonably convenient for. the use of the occupants thereof;
C. It shall have the floor of the cellar
properly cemented so as to be watertight. (Prior code §16‑14(part)).
5.16.150 Hall
ventilation and lighting requirements. The
hall of each floor shall open directly to the external air, with suitable
windows, and shall have no room or other obstruction at the end, unless
sufficient light or ventilation is otherwise provided for such hall in a
manner approved by the building inspector. (Prior code §16‑14(part)).
5.16.160 Garbage
receptacles‑‑Storage of combustibles and animal keeping prohibited.
A.
Every tenement house or lodginghouse shall have proper and suitable conveniences
or receptacles for receiving garage and other refuse matter.
B. No tenement house or lodginghouse, nor any
portion thereof, shall be used as a place of storage for any combustible
article, or any article dangerous or detrimental to health; nor shall any
horse, calf, cow, swine, pig, sheep or goat be kept in any such house. (Prior
code §16‑15).
5.16.170 Cleanliness‑‑Contagious
disease disinfection requirement.
A.
The owner or keeper of any lodginghouse, and the owner, agent of the owner, and
the lessee of any tenement house or part thereof, shall, whenever any person in
the house is sick of fever or of any infectious, pestilential or contagious
disease, and the sickness is known to the owner, keeper, agent or lessee, give
immediate notice thereof to the city health officer or sanitary inspector, and
thereupon such officer shall cause the same to be inspected.
B. The officer may, if found necessary, cause
the same to be immediately cleaned or disinfected at the expense of the owner
in such manner as the health officer may deem necessary and effectual, and may
also cause the blankets, bedding and bed clothes used by any sick person to be
thoroughly cleaned, scoured and fumigated, or in extreme cases, to be
destroyed. (Prior code §16‑16).
5.16.180 Cleanliness‑‑Filth
or human wastes prohibited.
A.
Every part of every tenement house and lodginghouse and of every yard, court,
passage, area or alley connected with or belonging thereto shall at all times
be kept clean. No filth, urine or fecal matter shall be placed in any part
of a tenement
house or lodginghouse or in any yard, court, passage, area or alley, connected
therewith or belonging
thereto except
in such parts thereof as may be specially provided for that purpose.
B. No filth, urine or fecal matter shall be kept
in or upon any tenement house or lodginghouse or in any yard, court, passage,
area or alley connected therewith or belonging thereto so long as to create a
nuisance. (Prior code §16‑17) .
5.16.190 Cleanliness‑‑Disinfection
upon health officer request. The health officer of the city, or any
officer connected with the board of health of the city, may require the
licensee of any building wherein a sleeping apartment is provided to cleanse
and disinfect all parts of such building used for a lodginghouse or sleeping
purposes, and the furniture therein, to the satisfaction of the board of
health. (Prior code §16‑18).
5.16.200 Applicability
of chapter. The provisions of this chapter shall
not apply to the owners or occupants of private residences who shall rent rooms
to persons from month to month. (Prior code §16‑19).
JUNK DEALERS
Sections:
5.20.010 Junk
dealer defined.
5.20.020 License‑‑Posting
requirement.
5.20.030 License‑‑Issuance‑‑Fee.
5.20.040 License‑‑Revocation.
5.20.050 Record
book‑‑Penalty for false information.
5.20.060 Inspection
of record book.
5.20.070 Property‑‑Retention
period.
5.20.080 Property‑‑Preservation
during retention
period.
5.20.090 Dealings
with minor.
5.20.100 Lost
or stolen articles.
5.20.110 Exemptions.
5.20.120 Auto
wrecking plants prohibited.
5.20.010 Junk dealer defined. "Junk dealer" means any person
engaged in or carrying on the business of buying
or selling or
dealing in junk, rags, old rope, paper, bagging, old iron, iron bars, copper, brass,
tin, empty bottles, rubber, lead, hides, batteries, watches or jewelry of any
and all kinds, or any other article that is commonly called "junk."
(Ord. 1969 (part), 1978: prior code §22‑26).
5.20.020 License‑‑Posting
requirement. The city treasurer may issue a license to any
person desiring to engage in business as a junk dealer pursuant to licensing
provisions contained in Chapter 5.08.
(Ord 3524, 2014, Ord. 3461, 2011; Ord. 1969
(part), 1978: prior code §22‑27).
5.20.030 LicenseIssuanceFee The City Council shall establish and
amend fees relating to licensing junk dealers by resolution after conducting a
public hearing.
A.
The
city treasurer may issue a license to any person desiring to engage in business
as a junk dealer pursuant to licensing provisions contained in Chapter 5.08.
B.
Any
junk dealer also engaging in the business of secondhand dealing or pawn broking
must have an endorsement on the business license indicating the types of
business engaged in. No additional
license fee shall be charged for extra endorsements, except that any business
also engaging in pawnbroking must pay an additional fee to offset additional
costs of regulating pawnbrokers.
(Ord. 3524, 2014; Ord. 3500, 2013; Ord. 3477,
2012; Ord. 3434 §5, 2010; Ord. 3383 §5, 2008; Ord. 3351 §5, 2007; Ord. 3322,
§6, 2006; Ord. 3299, 2005; Ord. 3258, § 5, 2004; Ord. 3229, 2003; Ord. 1969 (part),
1978: prior code §22-28).
5.20.040 License Revocation. Every
license issued pursuant to the terms of this chapter may be revoked by the city
council on satisfactory causes appearing to them for so doing, or for the
violation of any of the provisions of this chapter, or for conviction of any
federal, state, or local offense pertaining to theft, dealing in stolen goods,
or deceptive practices. (Ord. 1969
(part), 1978: prior code §22-29).
5.20.050 Record
book‑‑Penalty for false information.
A.
Every junk dealer shall keep a permanent book with chronologically numbered
pages in which shall be legibly printed or typed the precise time of purchase
of any article or thing in the course of the junk dealer's business, an
accurate account and description of the article or thing so purchased, the
price paid therefor, the name, residence, a number from a photo identification
card or reasonable proof of identity, as well as a full name signature of the
person from whom such purchase was made. No entry in the book shall be erased,
obliterated, defaced, or altered in any manner.
B. It shall be a misdemeanor punishable as set
forth in Section 5.08.160 for any individual selling or purchasing articles or
goods to give false information regarding any of the information required
pursuant to this section. (Ord. 1969 (part), 1978: prior code §22‑30).
5.20.060 Inspection
of record book. Every such dealer shall, during the
ordinary hours of business or at any reasonable time, when requested by any
peace officer as defined pursuant to Montana state law, submit and exhibit the
book required to be maintained by this act to the peace officer for inspection
and shall also, upon request, exhibit any article or thing purchased or
received. (Ord. 1969 (part), 1978: prior code §22‑31).
5.20.070 Property‑‑Retention
period. No personal property or article of
any kind purchased or received by any such dealer shall be sold or allowed to
be taken from the place of business of such dealer for ten business days.
Whenever any peace officer as defined by Montana state law shall notify any
such dealer not to sell or otherwise dispose of any article or thing purchased or received by him, such article or thing
shall not be sold or otherwise disposed of until the expiration of twenty days
after the giving of notification. (Ord. 1969 (part), 1978: prior code §22‑32).
5.20.080 Property‑‑Preservation
during retention period.
No junk dealer shall break, burn, melt, cut, tear, or mutilate any
article or thing purchased or received by him, so as to in any way change the
form, shape, appearance, or condition of the article or thing, nor shall he
cause or permit the same to be done, until at least ten business days after the
purchase of the article or thing, unless he is before such time notified not to
so mutilate, burn, melt, cut, tear, or break any such article or thing. (Ord.
1969 (part), 1978: prior code§22‑33).
5.20.090 Dealings
with minor. No person, licensed as set forth in
this chapter, shall purchase any goods, articles or thing whatsoever from a
minor. (Ord. 1969 (part), 1978: prior code 522‑34).
5.20.100 Lost or stolen articles.
A.
Every junk dealer who shall receive or be in possession of any goods, articles,
or thing which may have been lost or stolen, shall forthwith on demand to view
the same, exhibit the same to any police officer as defined by Montana state
law.
B. If any goods, articles, or thing shall be
listed on any sheet of stolen items circulated by law enforcement authorities;
and if any of the said goods, articles, or thing so advertised or listed by law
enforcement authorities or any part or portion thereof, shall then or
thereafter come into the possession of any dealer in junk articles, such person
shall forthwith file information thereof in writing at the office of the chief
of police, and shall also state through whom the same was received. (Ord. 1969 (part),
1978: prior code §22‑35).
5.20.110 Exemptions.
The provisions of this chapter shall not apply to persons engaged only in
buying or collecting rags, paper to be used exclusively in the manufacturing
of paper, or recycling of cans or bottles. If any of these businesses purchase
any items other than rags, paper, cans or bottles, records must be kept of any
such transactions pursuant to Section 15.20.050. (Ord. 1969 (part), 1978:
prior code §22‑36).
5.20.120 Auto wrecking plants prohibited.
No person shall own, operate, lease, conduct, permit or suffer to be permitted
an automobile wrecking plant or junk yard, or the accumulation of wrecked
automobiles, scrap iron or junk, upon any vacant lot or in any unenclosed
building within the limits of the city. (Prior code §22‑45).
Chapter 5.24
PAWNBROKERS
Sections:
5.24.010 Pawnbroker
defined.
5.24.020 License‑‑Posting
requirement.
5.24.030 License‑‑Issuance‑‑Fee.
5.24.040 License‑‑Revocation.
5.24.050 Engaging
in more than one business.
5.24.060 Record
book‑‑Penalty for false information.
5.24.070 Proof
of identity‑‑Penalty for false information.
5.24.080 Inspection
area.
5.24.090 Memorandum
or pawn ticket.
5.24.100 Report
to chief of police.
5.24.110 Lost
or stolen articles.
5.24.120 Dealing
with minors.
5.24.130 Hours
of business.
5.24.010 Pawnbroker
defined. "Pawnbroker" means any
person engaged in conducting, managing or carrying on the business of loaning
money for himself or for another, upon personal property, personal security,
pawns or pledges, or engaged in the business of purchasing articles of personal
property and reselling or agreeing to resell such articles to the vendors, or
their assigns, at prices agreed on, at or before the time of purchase.
(Ord. 1969
(part), 1978: prior code §22‑1).
5.24.020 License‑‑Posting
requirement.
A. It
shall be unlawful for any person to conduct or carry on the business of a
pawnbroker, loan broker, or keeper of a loan office without being specifically
licensed for such purpose at any place or location other than the one
designated in such license, and under such regulations as provided in this
chapter.
B. The
license plus a current copy of the city ordinance pertaining to pawnbrokers
must be posted in a prominent place within the pawnshop.
(Ord. 1969 (part), 1978: prior code §22‑2).
5.24.030 LicenseIssuanceFee.
The City
Council shall establish and amend fees relating to licensing pawnbrokers by
resolution after conducting a public hearing.
A.
The
city treasurer may issue a license to any person desiring to engage in business
as a pawnbroker pursuant to licensing provisions contained in Chapter
5.08. In addition to the license fee
required by that chapter, a person engaging in pawn broking must pay an
additional fee to offset costs of regulating pawnbrokers.
B.
Any
pawnbroker also engaging in the businesses of secondhand or junk dealing must
have an endorsement on the business license indicating the types of business
engaged in. No additional license fee
shall be charged for these endorsements.
(Ord. 3524, 2014; Ord. 3500, 2013; Ord. 3461,
2011; Ord. 3434 §6, 2010; Ord. 3383 §6, 2008; Ord. 3351 § 6, 2007; Ord. 3322
§6, 2006; Ord. 3299 § 6, 2005; Ord. § 6, 2004; 3258 Ord. 3229, 2003; Ord. 1969
(part), 1978: prior code §22-3)
5.24.040 License‑‑Revocation.
The city council may revoke the license of any pawnbroker who willfully or repeatedly
fails to observe the provisions of this chapter or Chapters 5.16 and 5.24, or
who shall plead guilty or be convicted
of any Federal, state or
local offense involving theft, dealing with stolen property or deceptive
practices.
(Ord. 1969
(part), 1978: prior code §22‑4).
5.24.050 Engaging
in more than one business. A pawnbroker may operate a secondhand
dealer business or junk dealer business at the same location as a pawnbroker
business is operated. Separate registers
shall be maintained for transactions involving pawnbroker, secondhand
dealer, or junk dealer business. The business operator shall comply with all
city ordinances applicable to each type of business engaged in.
(Ord. 3530,
2014; Ord. 1969 (part), 1978: prior code 522‑5).
5.24.060 Record
Keeping Register ‑‑penalty for false information.
A.
Every pawnbroker, loan broker, or keeper of a loan office, shall keep a permanent register that records, at the time of each loan, an accurate account and description of all goods,
articles, or things pawned or pledged or purchased and the time given to redeem or repurchase, the amount of money loaned or paid thereon, the time of pledging or purchasing the same and paying therefore, the rate of interest to be paid on the loan or amount for which the same may be repurchased, the name, residential address, and a number from the photograph identification card or reasonable proof of identity from the
person pledging or selling the articles or things and a personal description of the person. No entry or record shall be erased, deleted, obliterated, defaced, or altered in any manner.
The person pawning or selling an article must sign his or her full name on the receipt for the article(s)
pawned and a copy of such receipt shall be kept by the Pawnbroker.
B.
The register as well as every article or thing so pawned, pledged, or purchased shall at all times be open to inspection by any peace officer as defined pursuant to Montana state law. Every article
received that has a resale value greater than twenty-five dollars must be numbered with a number that corresponds with the number in the register for that particular article.
C.
It shall be a misdemeanor punishable
as set forth in Section 5.08.160 for an individual selling or purchasing articles or goods to give false information regarding any of the information required pursuant
to this section.
(Ord. 3551,
2015; Ord. 3530, 2014; Ord. 1969 (part), 1978: prior code §22‑6).
5.24.070 Proof
of identity‑‑Penalty for false information.
A.
Each
individual pledging or selling any article must show a photo identification
card of himself or herself or reasonable proof of identity to the pawnbroker.
B.
It
shall be a misdemeanor punishable as set forth in Section 5.08.170 for an
individual pledging or selling articles to give false information regarding any
of the information required pursuant to this section.
(Ord.
1969 (part), 1978: prior code §22‑7).
5.24.080 Inspection
area. Every pawnbroker and loan broker, or
keeper of a loan office shall set aside an area within the pawnshop wherein he
must keep all articles received during the most recent ten business days in
order to facilitate examination and inspection by law enforcement authorities
of all new articles received. Items which are pawned as a group but which may
be sold individually shall be kept together until inspected by law enforcement
authorities. (Ord. 1969 (part), 1978: prior code §22‑8).
5.24.090 Memorandum
or pawn ticket. Every pawnbroker or loan broker, or
keeper of a loan office, shall, at the time of each loan or purchase, deliver
to the person pawning, pledging, or selling any goods, article or thing, a
memorandum, receipt, note, pawn ticket or pawn stub signed by the pawnbroker
containing the name of pledge, date, and description of item, and no charge
shall be made for any such memorandum or note.
(Ord. 3530, 2014; Ord. 1969 (part), 1978:
prior code 522‑9).
5.24.100 Report
to chief of police.
A.
It shall be the duty of every pawnbroker, loan broker, or keeper of a loan office, subject to the exceptions below, to electronically transfer an accurate account of all items pawned or purchased by the
pawnbroker, loan broker or keeper of a loan office including but not limited to, an accurate description of the
item, the pawn number of the item, any corresponding serial number of the item, any other
information that would assist in identifying the item, the name, residential address of the person pledging or selling the articles or things and a personal description of the person as well as the identification type and number on the identification, to a designated person at the Missoula Police Department or by uploading that information to a software platform selected by the Missoula Police Department, on
or before a time each day that shall be determined by the Missoula Police Department.
B.
If a pawnbroker, loan broker, or keeper of a loan office elects to report electronically but not
upload the information to a software platform selected by the Missoula Police Department, the pawnbroker, loan broker, or keeper of a loan office shall electronically provide the information required in
Subsection A above, in a non-proprietary format prescribed by the Missoula Police Department to best
facilitate the informations bulk transfer into the Missoula Police Departments electronic record keeping system. A pawnbroker, loan broker or keeper of a loan may make a written election requesting the
Missoula Police Department redact the name, residential address, personal description of the person and identification type and identification number prior to transferring the information to a software platform
selected by the Missoula Police Department. This written election is valid until withdrawn in writing by the pawnbroker, loan broker, or keeper of a loan. The Missoula Police Department shall confirm in writing to the
pawnbroker, loan broker or keeper of a loan office that it has received the election and that it is
complying with the redaction requirements of this Section 5.24.100 B.
C.
No personal property or thing received on deposit, pledge, or purchased by the pawnbroker shall
be sold or removed from the place of business of such pawnbroker, other than by redemption, for a period of thirty days after the daily report of transactions is made to the designated member of the police
department.
D. The chief of police or a member of the police department may authorize the sale or redemption of any article before the expiration of the aforementioned thirty day period if the item has been inspected by
the police and there does not appear to be any reason to keep the article any longer.
(Ord. 3551, 2015; Ord. 3530, 2014; Ord. 1969
(part), 1978: prior code §22‑10).
5.24.110 Lost
or stolen articles. Every pawnbroker who shall receive or
be in possession of any goods, articles, or thing which may have been lost or
stolen, shall forthwith on demand to view the same, exhibit the same to any
police officer as defined by state law. (Ord. 1969 (part), 1978: prior code §22‑11).
5.24.120 Dealing with minors. No pawnbroker shall take or receive in pawn or
pledge or shall purchase any property or goods from a child under the age of
majority, whether the same be owned or claimed by such minor in his possession
and control. (Ord. 1969 (part),
1978: prior code §22‑12).
5.24.130 Hours of business.
A.
The hours of operation of a pawnshop shall be posted in a prominent place on
the outside of the business structure.
B. No pawnbroker shall receive on deposit or pledge
or purchase any property of any kind before the hour of seven o'clock a.m. or
after the hour of seven o'clock p.m., and no such business shall be kept open
for any purpose after the hours of seven o'clock p.m. and before the hour of
seven o'clock a.m. (Ord. 1969 (part), 1978: prior code §22‑13) .
SECONDHAND
DEALERS
Sections:
5.28.010 Secondhand
dealer defined.
5.28.020 License‑‑Required.
5.28.030 License‑‑Issuance‑‑Fee.
5.28.040 License‑‑Revocation.
5.28.050 Engaging
in more than one business.
5.28.060 Record
book‑‑Penalty for false information.
5.28.070 Proof
of identity.
5.28.080 Inspection
area.
5.28.090 Report
to chief. of police.
5.28.100 Hours
of operation.
5.28.110 Dealings
with minors.
5.28.120 Lost
or stolen articles.
5.28.010 Secondhand
dealer defined. "Secondhand dealer" means
any person who within the city, as a business, engages in the purchase, sale,
trade, barter, consignment, or exchange of secondhand goods, wares, or
merchandise,
other than
those businesses that deal exclusively in the following items: junk, furniture,
stoves, refrigerators, sewing machines other than portables or washing
machines; or any person who keeps any store, shop, room, or place where
secondhand goods, wares, or merchandise, of any kind or description other than
junk, furniture, stoves, refrigerators, sewing machines or washing machines
are bought, sold, traded, bartered, consigned, or exchanged. (Ord. 1969 (part),
1978: prior
code §22‑14).
5.28.020 License‑‑Required.
A. It is unlawful for any person to
conduct or carry on the business of dealing in secondhand furniture, household
goods, or other articles without being specifically licensed for such purpose,
nor shall any person conduct or carry on any such business at any place or
house other than the one designated in such license and under such regulations
as provided in this chapter.
B. The
license plus a current copy of the city ordinance pertaining to secondhand
dealers must be posted in a prominent place within the secondhand store. (Ord.
1969 (part), 1978: prior code §22‑15).
5.28.030
LicenseIssuanceFee.
5.28.030 LicenseIssuanceFee.
The City Council shall establish and
amend fees relating to licensing second hand dealers by resolution after
conducting a public hearing.
A.
The
city treasurer may issue a license to any person desiring to engage in business
as a secondhand dealer pursuant to licensing provisions contained in Chapter 5.08.
B.
Any
secondhand dealer also engaging in the business of pawn broking or junk dealing
must have an endorsement on the business license indicating the types of
business engaged in. No additional
license fee shall be charged for extra endorsements, except that any business
also engaging in pawnbroking must pay an additional fee to offset additional
costs of regulating pawnbrokers.
(Ord. 3524, 2014; Ord. 3500, 2013; Ord.
3477, 2012; Ord. 3461, 2011; Ord. 3434 §7, 2010; Ord. 3383 §7, 2008; Ord. 3351
§7, 2007; Ord. 3322 §7, 2006; Ord. 3299 §7, 2005; Ord. 3258 § 7, 2004; Ord.
3229, 2003; Ord. 1969 (part), 1978: prior code §33-16).
5.28.040 License‑‑Revocation.
The city council may revoke the license of any secondhand dealer who willfully
or repeatedly fails to observe the provisions of this chapter or the chapters
pertaining to secondhand dealers or junk dealers or who pleads guilty or is
convicted of any violation of any of the provisions of this chapter, or
Chapter 5.20, or who pleads guilty or is convicted of any Federal, state, or
local offense involving theft, dealing in stolen property or deceptive practices.
(Ord. 1969 (part), 1978: prior code §22‑17).
5.28.050 Engaging
in more than one business. A secondhand dealer may operate a
pawnbroker business or junk dealer business at the same location as a
secondhand dealer business is operated. Separate record books shall be
maintained for transactions involving secondhand dealer, pawnbroker, or junk
dealer business. The business operator shall comply with all city ordinances
applicable to each type of business engaged in. .(Ord. 1969 (part), 1978: prior
code §22‑18).
5.28.060 Record
book‑‑Penalty for false information.
A.
Every secondhand dealer shall keep a permanent book with chronologically
numbered pages in which shall be legibly printed or typed, the precise time of
purchase of any article or thing in the course of the secondhand dealer's
business, an accurate account and description of the article or thing so
purchased, the price therefor, the name, residence, a number from a photo
identification card or reasonable proof of identity, a personal description of,
as well as a full name signature of the person from whom the purchase was made.
No entry in the book shall be erased, obliterated, defaced, or altered in any
manner.
B. The book shall be open to the inspection of
any peace officer as defined pursuant to state law at all times.
C. Every article received that has a resale
value greater than twenty‑five dollars must be numbered with a number
that corresponds with the number in the record book for that particular
article.
D. It is a misdemeanor punishable as set forth
in Section 5.08.160 for an individual selling or purchasing articles or goods
to give false information regarding any of the information required pursuant to
this section. (Ord. 1969 (part), 1978: prior code §22‑19).
5.28.070 Proof
of identity. Each individual pledging or selling
any article must show a photo identification card of himself or herself or
reasonable proof of identity to the secondhand dealer. (Ord. 1969 (part), 1978:
prior code §22‑20) .
5.28.080 Inspection
area.
A.
Every secondhand dealer shall set aside an area within the secondhand dealer's
business wherein he must keep all articles received during the most recent ten
business days in order to facilitate examination and inspection by law
enforcement authorities of all new articles received. No article purchased by
the secondhand dealer shall be sold or removed from the place of business of
the secondhand dealer for a period of ten business days after the copy of the
transactions required to be made available to the chief of police or a member
of the police department shall have been prepared as required by this chapter.
B. The chief of police or a member of the
police department may authorize the sale of any article before the expiration
of the aforementioned ten day period if the item has been inspected by the
police and there does not appear to be any reason to keep the article any
longer. (Ord. 1969 (part), 1978: prior code §22‑21).
5.28.090 Report
to chief of police. It is the duty of every secondhand
dealer to make out and make available every day before the hour of twelve
o'clock noon to the chief of police or a member of the police department an
exact legible and correct copy of the transactions from the previous day from
the book required to be kept pursuant to Section 5.28.060. (Ord. 1969 (part),
1978: prior code §22‑22).
5.28.100 Hours
of operation. The hours of operation of a secondhand
dealer shall be posted in a prominent place on the outside of the business
structure. (Ord. 1969 (part), 1978: prior code §22‑23).
5.28.110 Dealings
with minors. No person, licensed as set forth in
this chapter, shall purchase any goods, articles, or thing whatsoever from a
minor. (Ord. 1969 (part), 1978: prior code §22‑24).
5.28.120 Lost
or stolen articles. Every secondhand dealer who shall
receive or be in possession of any goods, articles, or thing which may have
been lost or stolen, shall forthwith on demand to view the same, exhibit the
same to any police officer as defined by state law. (Ord. 1969 (part), 1978:
prior code §22‑25).
Chapter 5.32
SELF‑SERVICE GAS STATIONS
Sections:
5.32.010 Pumps
to be equipped with automatic shut‑off nozzles.
5.32.020 Firefighting
equipment requirement.
5.32.030 Public
address system requirement.
5.32.040 No
smoking requirement.
5.32.050 Number
of attendants required.
5.32.010 Pumps
to be equipped with automatic shut‑off nozzles.
Pumps in self‑service gas stations shall be equipped with automatic shut‑off
filling nozzles which cut the flow of gasoline when the vehicle tank is full.
(Prior code §11‑29).
5.32.020 Firefighting
equipment requirement. Self-service gas stations shall be
equipped with firefighting equipment consisting of one four or five pound CO2
extinguisher at each island and a fifteen pound C02 extinguisher in the office.
(Prior code §11‑30).
5.32.030 Public
address system requirement. Self-service gas stations shall be
equipped with a public address system. (Prior code §11‑31).
5.32.040 No
smoking requirement. Self‑service gas stations shall
strictly enforce a "no smoking" order. (Prior code §11‑32).
5.32.050 Number
of attendants required. One attendant for every two islands
shall be on duty at all times at a self‑serving gas station except during
the overnight shift. (Prior code §11‑33).
Chapter 5.36
GOING OUT OF BUSINESS OR FIRE OR OTHER ALTERED STOCK SALES
Sections:
5.36.010 Definitions.
5.36.020 License‑‑Required.
5.36.030 Established
business requirement.
5.36.033 Exception
for survivors of businesspersons
5.36.035 Denial
of future business licenses
5.36.037 Location
restricted
5.36.039 Licensing
exemptions
5.36.040 Application
requirements.
5.36.045 Fee.
5.36.050 Issuance.
5.36.060 Licensing
period.
5.36.070 Renewal
procedure.
5.36.080 Nature
of sale limitation.
5.36.090 Saleable
goods.
5.36.100 Nontransferability.
5.36.110 Duties
of licensee.
5.36.120 Enforcement.
5.36.130 Violation‑‑Penalty.
5.36.010 Definitions.
T The following words, terms
and phrases, when used in this chapter, shall have the meanings ascribed to
them, except where the context clearly indicates a different meaning:
A. "City"
means the City of Missoula.
B. Bona
fide orders means orders of goods purchased for resale placed in excess of
ninety days prior to the sale without cancellation privileges. Bona fide orders shall not comprise goods
purchased on consignment.
C. "Business
licensing" means the office responsible for licensing businesses in the
city.
D. "Fire
and other altered or damaged goods sale" means a sale held out in such a
manner as to reasonably cause the public to believe that the sale will offer
goods damaged or altered by fire, smoke, water or other means.
E. "Going‑out‑of‑business
sale" means a sale held out in such a manner as to reasonably cause the
public to believe that upon the disposal of the stock of goods on hand the
entire business operation will cease and be discontinued at its existing
location. This definition includes but is not limited to the following sales:
Adjuster's, Adjustment, Alteration, Assignee's, Bankrupt, Benefit of
Administrator's, Benefit of Creditor's, Benefit of Trustees, Building Coming
Down, Closing, Creditor's Committee, Creditor's End, Everything Must Go,
Executor's, Final Days, Forced Out, Forced Out of Business, Insolvent, Last
Days, Lease Expires, Liquidation, Loss of Lease, Mortgage Sale, Receiver's,
Trustee's, Quitting Business, Retirement.
F. "Goods"
means any goods, wares, merchandise or other property being capable of being
the object of a sale regulated hereunder.
G. "Person"
means any person, firm, partnership, association, corporation, company or
organization of any kind.
(Ord. 3515 §1,
2013 Ord. 1989 (part), 1979: prior code §18‑15).
5.36.020 License‑‑Required.
A license issued by business licensing shall be obtained by any person before
offering to sell any goods at a sale to be advertised or held out by any means
to be one of the following kinds:
A. Going‑out‑of‑business
sale;
B. Fire and other altered stock sale; and
(Ord. 3515 §2,
2013; Ord. 1989 (part), 1979: prior code §18‑16).
5.36.030 Established business requirement for
going out of business sales
Any person
applying for a going out of business sale license regulated under this chapter
must have been the owner of the business for a period of at least twelve months
prior to the date of the proposed sale.
This minimum may be waived by the Mayor following a recommendation of
business licensing whenever a hardship is shown to exist and following proper
application of the owner of such a business. The application must explain in
detail what the hardship is and why the license is needed. The business must be physically located in the
city limits.
(Ord. 3515 §3,
2013; Ord. 1989 (part), 1979: prior code §18‑17).
5.36.033 Exception for survivors of
businesspersons.
Upon the death
of a person doing business in this city, his or her heirs, devisees or
legatees, shall have the right to apply at any time for a license hereunder.
(Ord. 3515 §4,
2013)
5.36.035 Denial of future business licenses.
The City of
Missoula will not license a business with the same business name and/or
corporation/LLC name as a business that has held a going out of business sale
for a period of one year from the ending date of the sale listed in the
application.
(Ord. 3515 §5,
2013)
5.36.037 Location restricted.
Where a person
applying for a license hereunder operates more than one place of business, the
license issued shall apply only to one store, or branch specified in the
application and no other store or branch shall advertise or represent that it
is cooperating with it, or in any way participating in the licensed sale, nor
shall the store or branch conducting the licensed sale advertise or represent
that any other store or branch is cooperating with it or participating in any
way in the licensed sale.
(Ord. 3515 §6,
2013)
5.36.039 Licensing exemptions
The provisions
in this chapter shall not apply to or affect the following persons:
A. Persons
acting pursuant to an order or process of a court of competent jurisdiction;
B. Persons
acting in accordance with their powers and duties as public officials;
C. Duly
licensed auctioneers, selling at auction;
D. Persons
conducting a sale of the type regulated herein on the effective date of the
ordinance codified in this chapter, unless such sale is continued for a period
of more than thirty days from and after such effective
date, in which event, such person, at
the lapse of the thirty day
period, shall comply with the provisions of this chapter.
E. Any
publisher of a newspaper, magazine or other publication who publishes in good
faith, any advertisement without knowledge of its false, deceptive or
misleading character, or without knowledge that the provisions of this chapter
have not been complied with.
(Ord. 3515 §7,
2013)
5.36.040 Application
requirements.
A person desiring
to conduct a sale regulated by this chapter shall make a written application to
the city clerk setting forth and containing the following information:
A. The true name, address, and phone number
of the owner of the goods to be the object of the sale; as well as the true
name, address, and phone number of the business;
B. The true name and address of the person
from whom he purchased the goods to be sold and the price therefor, and if not
purchased, the manner of such acquisition;
C. A description of the place where the
sale is to be held;
D. The nature of the occupancy, whether by
lease or sublease and the effective date of termination of such occupancy;
E. The dates of the period of time in which
the sale is to be conducted;
F. A full and complete statement of the
facts in regard to the sale, including the reason for the urgent and
expeditious disposal of goods thereby and the manner in which the sale will be
conducted;
G. A complete and detailed list of the
types of goods to be sold at such sale as well as the total dollar value of the
items as disclosed by the applicant's records. The inventory shall be attached
to and become part of the required application. The mayor or the city council,
if the application is referred to the city council, may request a complete and
detailed inventory of the goods to be sold at such sale as disclosed by the
applicants records:
1.
Bona
Fide Orders. All goods included in such inventory shall have been purchased by
the applicant for resale on bona fide orders without cancellation privileges
and shall not comprise goods purchased on consignment,
2.
Goods
Purchased for Sale Under this Chapter. Such inventory shall not include goods
ordered in contemplation of conducting a sale regulated under this chapter.
Any unusual purchase, or additions to the stock of goods of the business
affected within ninety days before the filing of an application hereunder shall
be deemed to be of such character.
The applicant
must have a current city business license at the time of the application.
The location of
the sale must comply with the city's zoning ordinances which include the Citys
signage regulations.
The location of
the sale and the conduct of the sale must comply with the city's fire and
building codes.
(Ord. 3515 §8,
2013; Ord. 1989 (part), 1979: prior code §18‑18).
5.36.045 Fee
The fee for a license issued pursuant to this chapter shall be established and amended by resolution
after conducting a public hearing.
(Ord. 3524,
2014; Ord. 3515 §9, 2013)
5.36.050 Issuance and appeal procedure.
A license which
includes the application, inventory list, bona fide orders and any other
information shall be issued by business licensing under this chapter on the
following terms:
A. Business licensing shall review the
application for compliance with the regulations set forth herein and then refer
the application to the Mayor for approval. If the Mayor refuses to approve an
application and issue a license, the applicant may appeal to the City Council.
The City Council may approve, conditionally approve, or deny the application.
B. When ordered by a court of competent
jurisdiction following the denial of a license by the Mayor and the City
Council.
(Ord. 3515 §10,
2013; Ord. 1989 (part), 1979: prior code §18‑19).
5.36.060 Licensing
period The
license shall authorize the sale described in the application for a period of
not more than ninety (90) consecutive calendar days, The start of the
ninety(90) day period shall begin on the sale date described in the application
or the first public advertisement whichever is sooner. No renewals or extensions of the ninety (90)
day sale duration shall be granted. (Ord. 3515 §11, 2013; Ord. 1989 (part),
1979: prior code §18‑20).
5.36.070 Repealed (Ord. 3515 §12, 2013; Ord. 1989 (part),
1979: prior code §18‑21).
5.36.080 Nature
of sale limitation. The license shall authorize only the
one type of sale described in the application at the location named therein. (Ord. 3515 §13, 2013; Ord. 1989 (part),
1979: prior code §18‑22).
5.36.090 Saleable
goods. The license shall authorize only the
sale of goods described in the application or in the inventory attached to the
application. (Ord. 3515 §14; Ord. 1989 (part), 1979: prior code 518‑23).
5.36.100 No transferability.
Any license provided for in this chapter shall not be assignable or
transferable. (Ord. 3515 §15, 2013; Ord.
1989 (part), 1979: prior code §18‑24).
5.36.110 Duties
of licensee. A licensee shall:
A. Adhere
to the inventory list approved in the application. Licensees shall make no additions whatsoever
to the stock of goods to be sold during the period of the licensed sale. Licensees shall not take orders from
customers for goods during the sale that are not included on the approved
inventory list unless the goods are listed on the bona fide orders submitted
with the approved application;
B. Advertise
in good faith refraining from employing any untrue, deceptive or misleading
advertising;
C. Conspicuously
display the license at or near the entrance to the business;
C. Adhere
to advertising requirements and conduct the licensed sale in strict conformity
with any advertising or holding out incident thereto;
D. Keep
a duplicate copy of the inventory list submitted with the application readily
available at the place of sale and shall present such duplicate to inspecting
officials upon request;
E. Between
the 45th and 50th day of the sale, the licensee shall
submit an updated inventory list meeting the requirements outlined in 5.36.040
(G) to business licensing and keep a duplicate copy of the list readily
available at the place of the sale.
Failure to submit an update inventory list to business licensing will
result in the immediate revocation of the sale license.
F. Close
the doors of any store location from which a going-out-of-business sale has
been held at the termination of the ninety (90) day license period and shall
not engage in any further business activity for which a going-out-of-business
license was issued in or from such location.
G. At
the termination of the time period allowed for a going-out-of-business sale,
immediately cease and discontinue the business in Missoula for which a
going-out-of-business license was issued.
(Ord. 3515 §16, 2013; Ord. 1989 (part),
1979: prior code §18‑25) .
5.36.120 License display, merchandise examination
and advertisement requirements
A. On commencement of any sale as
defined in Section 5.36.010, the license issued by business licensing shall be
prominently displayed near the entrance to the premises.
B. The
licensee shall permit City inspectors, Mayor, City officials, and City Council
members to examine all merchandise in the premises at any time during the
period of the sale for comparison with the approved inventory list and bona
fide orders.
C. All
advertisements and advertising and the language contained therein shall be in
accordance with the purpose of the sale as stated in the approved application
pursuant to which the license was issued, and the wording of such advertisements
shall not vary from the wording as indicated in the application. Applicants shall ensure any signage
associated with the sale conforms to the Citys signage regulations set forth
in Chapter 20.75 Missoula Municipal Code.
D. Advertising for the sale shall in no
manner or form whatsoever, either directly or indirectly, indicate that such
sale is held with the approval of the city.
E. Such
advertising shall contain the following statement: "Sale held pursuant
to License Number ...... issued by the City of Missoula on
. " and in
such blank spaces shall be indicated the license number and the date of issuance
of the license.
(Ord. 3515 §17, 2013; Ord. 1989 (part),
1979: prior code§18‑26).
5.36.130 Violation‑‑Penalty.
Any person violating the provisions of this chapter shall, upon conviction
thereof, be fined not less than five hundred dollars. Each day's violation shall constitute a
separate offense.
Upon conviction
of any person for violating the provisions of this chapter, the court shall
order the immediate revocation of the persons business license and any license
issued pursuant to this chapter. (Ord. 3515 §18, 2013; Ord. 1989 (part), 1979:
prior code §18‑27).
BOILERROOM
OPERATION
Sections:
5.40.010 Definitions.
5.40.020 License‑‑Required.
5.40.030 License‑‑Fees.
5.40.040 License‑‑Bond.
5.40.050 License‑‑Revocation.
5.40.055 Exclusions.
5.40.060 Violation‑‑Penalty.
5.40.010 Definitions. For
the purposes of this chapter, the words set out below shall have the following
meanings:
A. "Boilerroom operation" means and
includes any of the following:
1. Any
mass telephone solicitation operated by any person, as defined in this section,
using one or more telephones each operated by an employee whose principal duty
is to solicit by telephone, whether located in the same room or building or
not, for the purpose, directly or indirectly, of selling any product or
service, including renewals and cancellations or combination thereof,
whatsoever, to the general public for which any monetary consideration is
charged to and received from the person being so solicited;
2. The
use of any automatic telephone device or devices to contact the general public
under any pretext whatsoever for the purpose, directly or indirectly, of
selling any product or service, including renewals and cancellations, or any
combination thereof, whatsoever, to the general public for which any monetary
consideration is charged to and received from the person being so contracted.
B.
"Conduct" means initiating telephone calls from without the city and
completing them within the city, as well as initiating telephone calls from
within the city.
C. "Person" means natural person,
partnership, corporation, organization, or any combination of the same. (Ord.
2707 §1, 1989: Ord. 2185 §1, 1981: Ord. 1981 (part), 1978: prior code §18‑14.3
(part)).
5.40.020 License‑‑Required.
The City
Council shall establish and amend fees relating to background investigations of
persons involved with boiler room operations by resolution after conducting a
public hearing.
A.
No
person shall conduct any boiler room operation within the city, without first
obtaining a business license therefor and paying in advance the license fee for
conducting such operation set forth hereafter. Application for the license
shall be made to the city treasurer on forms to be provided by and retained by
the city treasurer. The license fee shall be paid to the city treasurer.
B.
Nonprofit
organizations are excluded from this chapter. However, if the nonprofit
organization retains any business or professional promoter to organize and/or
assist in a boiler room operation, that business or professional promoter must
comply with the provisions of this chapter.
C.
A
background investigation of each person involved in a boiler room operation
shall be conducted by the police department prior to the issuance of any
license. A background investigation fee shall be paid to the city treasurer
prior to the background investigation being conducted. The police department
shall be allowed up to ten days to conduct background investigations of the
applicants. If a license is denied by city officials' investigation the
applicant may appeal to the city council for a hearing on the application.
(Ord. 3524,
2014; Ord. 2185 §2, 1981: Ord. 1981 (part), 1978: prior code §18‑14.3
(part)).
5.40.030 LicenseFees.
The City
Council shall establish and amend fees relating to licensing boiler room
operations by resolution after conducting a public hearing.
Boiler
room operations shall be licensed at a weekly rate for twenty-six consecutive
weeks. After having been licensed for
twenty-six consecutive weeks at the weekly rate, a boiler-room operation may
choose to be licensed at the annual rate for up to seven phones. The annual license shall expire at the same
time as general city business licenses.
There shall be no prorating of annual licenses for boiler-room
operations.
Whenever a boiler-room operation
purchases an annual license) and later increases its number of telephones
utilized for telephone solicitation to eight or more, it shall be required to
pay an additional license fee in order to pay the full license equivalent for
having eight or more telephones. All
boiler-room operation license fees are nonrefundable.
(Ord. 3524, 2014; Ord. 3461, 2011; Ord.
3434 §8, 2010; Ord. 3383 §8; 2008; Ord. 3351 §8, 2007; Ord. 3322 §8, 2006; Ord.
3299 §8; Ord. 3258 §8, 2004; Ord. 3229, 2003; Ord. 2927 §3, 1995: Ord. 2707 §2,
1989: Ord. 2185§3, 1981: Ord. 1981 (part), 1978: prior code §18-14.3 (part)).
5.40.040 License‑‑Bond.
No license shall be issued by the city treasurer until the applicant has
answered fully all questions on the application form provided by the city treasurer
and until the applicant has placed on file with the treasurer a surety bond
executed by a surety company duly licensed to do business within the state in
the amount of one thousand five hundred dollars, conditioned that the license
shall fully comply with the terms of this chapter and shall pay any and all
judgments which may be obtained against it or him on the part of any person
arising out of such boilerroom operation or the performance, or breach, of any
contract entered into as the result of such boilerroom operation. The bond
shall remain in effect either for the period of one year from the expiration
date of the license issued or until all judgments arising out of any legal
action instituted within the one‑year period and covered by the bond have
been fully satisfied and paid, whichever occurs last. (Ord. 2185 §4, 1981: Ord.
1981 (part), 1978: prior code §18‑14.3(part)).
5.40.050 License‑‑Revocation.
Whenever the city council shall deem it in the public interest, it may, by
resolution adopted by two‑thirds vote of all the members of the city
council and approved by the mayor, refuse to authorize the issuance of or
revoke any license issued for a boilerroom operation. (Ord. 2185 §5, 1981: Ord.
1981 (part), 1978: prior code §18‑14.3 (part)).
5.40.055 Exclusions.
The provisions of this chapter pertaining to background investigations, license
fees and bonding shall not be applicable to any business using telephone
solicitation that has a permanently established business operation located
within the city limits, if that business is:
A. Currently licensed pursuant to other city
business licensing provisions;
B. Telephone solicitation is not the primary
purpose of the business;
C. The telephone solicitation engaged in by
that business is directly related to the services or products normally provided
in the regular course of business operations for that type of business;
D. The telephone solicitation is conducted by
permanent employees of the business on whose behalf the telephone
solicitation is occurring.
Each
of the four criteria identified herein must exist in order for any business to
be excluded from the provisions of this chapter. (Ord. 2707 §3, 1989: Ord.
2185 §6, 1981) .
5.40.060 Violation‑‑Penalty.
Every person carrying on or engaging in the transaction of any boilerroom operation
without first procuring a background investigation for each employee and the
proper business licenses, and any persons providing misinformation upon
application for a license, shall be guilty of a misdemeanor and upon conviction
shall be punished as provided by Chapter 1.20. Every day that a business is
conducted without a license shall constitute a separate offense. (Ord. 2185 §7,
1981: Ord. 1981 (part), 1978: prior code §18‑14.3 (part)).
Chapter 5.44
AMBULANCES (REPEALED, ORD. 3399, 2009 )
Sections:
5.44.010 Repealed (Ord. 3399, 2009; Ord. 2904 §1, 1994: Ord. 2802 §1, 1991).
5.40.020 Repealed (Ord. 3399, 2009; Ord. 2802 §2, 1991).
5.44.030 Repealed (Ord. 3399, 2009; Ord. 2802 §3, 1991).
5.44.040 Repealed (Ord. 3399, 2009; Ord. 2802 §4, 1991).
5.44.050 Repealed (Ord. 3399, 2009; Ord. 2802 §5, 1991).
5.44.060 Repealed (Ord. 3399, 2009; Ord. 2802 §6, 1991).
5.44.070 Repealed(Ord. 3399, 2009; Ord. 2802 §7, 1991).
Chapter 5.45
AMBULANCE SERVICES
Sections
5.45.010
Purpose
5.45.020
Authority
5.45.030
Definitions
5.45.040
License Required
5.45.050
Standards for License
5.45.060
Performance Contract Required
5.45.070
Suspension of License and Performance Contract
5.45.080
Notice and Hearing Required for Cancellation and Termination
5.45.090
Exemptions
5.45.100
Violation and Penalty
5.45.010 Purpose. The
purpose of this chapter is to:
A. Allow for the orderly and lawful
operation of ambulance services in the city;
B. Enact regulations and policies necessary
for the safety and well-being of the public in regard to ambulance services in
the city. (Ord. 3399 §1, 2009)
5.45.020 Authority. As
authorized by Montana state law, Title 7, Chapter 34, Part 1 M.C.A. entitled
Ambulance Services, the city through its governing body may establish and
maintain ambulance service for the city or may contract for ambulance services
pursuant to the provisions of this chapter. (Ord. 3399 §2, 2009)
5.45.030 Definitions.
For the purposes of this chapter, the following words and phrases shall have
the meanings respectively ascribed to them by this section.
A. Ambulance
shall have the same meaning as defined in Montana state law, 50‑6‑302,
M.C.A.
B. "Ambulance
business" means the business of owning, operating, managing or maintaining
any ambulance service for receiving or picking up within the city for medical
purposes handicapped, wounded, injured, ill or sick persons for transportation
to any point within or without the city.
C. "License" means the city
business license or renewed business license issued to any party to engage in
the ambulance business.
D. Ambulance service performance contract
means a binding agreement between the ambulance business and the City of
Missoula containing performance criteria and other provisions designed to
promote public safety and protect the public interest. (Ord. 3399 §3, 2009)
5.45.040 License
Required.
A. No person shall engage in the ambulance
business without first obtaining a license as provided in this chapter. The
license fee shall be as determined in Chapter 5.08. All such licenses shall be
for a city business licensure year or the remainder thereof. A license may be
renewed annually subject to compliance with the provisions of this
chapter. A license shall be
non-transferable.
B. Any ambulance business licensed by the city as of the effective date of
this ordinance shall be allowed to renew their license subject to compliance
with the provisions of this chapter. No
license shall be issued under this chapter to any new applicant unless the city
council determines that another ambulance business is in the public interest
and that the applicant is able to perform such services, and to operate in
compliance with Montana law and the provisions of this chapter.
C. If
the city council finds another ambulance business to be in the public interest
and that the applicant is able to perform such services in compliance with
Montana law and the provisions of this chapter, the city council shall
authorize the issuance of a license to the new applicant. If the city council
does not find an additional ambulance business to be in the public interest or
that the applicant is unable to perform such services in compliance with
Montana law or the provisions of this chapter, the application shall be
denied. (Ord. 3399 §4, 2009)
5.45.050 Standards
for license. An ambulance business shall meet all
applicable standards and requirements of Montana state law, Title 50, Chapter
6, M.C.A. and Title 37, Chapter 104, A.R.M. It shall be unlawful for anyone to
operate an ambulance business within the city if the ambulance business is not
in compliance with the provisions of Montana state law and this chapter. (Ord.
3399 §5, 2009)
5.45.060 Performance Contract Required
A. No person shall engage in the ambulance
business without entering into an ambulance service performance contract with
the city as provided in this chapter.
B.
Any ambulance business operating within the
city as of the effective date of this ordinance shall have a period of one
hundred twenty (120) days to meet the requirements of this chapter. If an existing ambulance business does not
fulfill the requirements of this chapter, the city reserves the right to
solicit competitive bids for another ambulance service provider in accordance
with Montana state law.
C.
The performance contract shall be
non-transferable.
D. The performance contract may contain operating and reporting requirements,
performance criteria, penalties for violations of the agreement, and other
provisions as deemed appropriate by the city.
E.
The performance contract shall contain
provisions, such as a performance bond requirement, designed to assure
continuity of ambulance services in the event of default or breach of contract
by the ambulance business and any subsequent suspension or termination by the
city.
F.
Pursuant
to the statutory duties of the mayor to administer the affairs of city
government, supervise the discharge of official duty by city employees and
carry out the policies established by the city council, the mayor shall be
responsible for administering the performance contract, except for those policy
function determinations expressly reserved to the city council within the
provisions of the performance contract.
G.
In the event ambulance services within the
city are terminated, either voluntarily by a contracted ambulance business or
by city council action, the mayor shall take such action as he/she determines
is necessary for the continued provision of ambulance services. Emergency action taken by the mayor must be
ratified and approved by the city council within 30 calendar days to remain
valid. (Ord. 3399 §6, 2009)
5.45.070 Suspension
of License and Performance Contract. The city council may suspend a license
and the performance contract if it finds that the ambulance business has:
A. Violated
state law, city ordinance, or the terms of the ambulance performance contract;
and,
B. Failed or refused to remedy or correct
the violation in accordance with the provisions of the ambulance performance
contract. (Ord. 3399 §7, 2009)
5.45.080
Notice and Hearing Required for
Cancellation and Termination.
A. The city council shall not cancel a license
or terminate the performance contract without:
1. First having given the ambulance
business reasonable opportunity to correct any breach or deficiency as provided
for in the performance contract.
2. Delivery to the ambulance business a
written statement of the grounds for termination and the charge involved.
3. An opportunity for the ambulance
business to answer questions before the city council in a public meeting and
demonstrate why they think the agreement should not be terminated. (Ord. 3399 §8,
2009)
5.45.090 Exemptions. The
provisions and requirements of this article shall not apply to:
A. The fire department of the city;
B. Any ambulance service operating outside
the city that in the course of providing such services, transports a patient from
outside the city into or through the city;
C. Any ambulance service that is providing
such services under a mutual or automatic aid agreement with the city;
D. Nonemergency transport service provided
by a hospital as defined in Montana state law, Section 50‑5‑101,
M.C.A. that transports its admitted patients to another hospital building
wholly owned by that hospital;
E. Air ambulance services provided by a
hospital as defined in Montana state law, Section 50‑5‑101, M.C.A. (Ord.
3399 §9, 2009)
5.45.100 Violation
and Penalty. Any person who operates an ambulance business within the
city without a city license and without entering into a performance contract
with the city in accordance with the provisions of this chapter, shall be
deemed guilty of a misdemeanor and upon conviction thereof may be fined up to
five hundred dollars for each offense. Each day an offense exists shall
constitute a separate and distinct offense. There shall be no imprisonment as a
penalty for a violation of this chapter. (Ord. 3399 §10, 2009)
Chapter 5.48
GAMBLING
Sections:
5.48.010 Permissible
hours.
5.48.020 Zoning authority to prohibit gambling in
certain areas.
5.48.010 Permissible
hours. It shall be permissible for gambling
establishments to be operated twenty‑four hours per day and for video
draw poker and video keno and video bingo gaming machines to be operated twenty‑four
hours per day. (Ord. 2708 §2, 1989).
5 48.020 Zoning authority to prohibit gambling in certain
areas. The city is empowered pursuant to
Montana state law to enact an ordinance or resolution to zone certain areas
within its incorporated limits in which gambling is prohibited. (Ord. 2708 §3,
1989).
LIQUOR
Sections:
5.52.010 Hours
of sale.
5.52.020 Zoning
restrictions.
5.52.030 License‑‑Required‑‑Fee.
5.52.040 License‑‑Application‑‑Information
required.
5.52.050 License‑‑Posting
requirement.
5.52.060 License‑‑Expiration
date.
5.52.070 License‑‑Transfer.
5.52.080 License‑‑Additional.
5.52.010 Hours of sale.
No liquor, beer, or wine shall be sold, offered for sale, or given away upon
any premises licensed to sell such alcoholic beverages during the following
hours: on any day between 2:00 a.m. and
8:00 a.m. (Ord. 2047 §1, 1979).
5.52.020 Zoning
restrictions. The sale of liquor, beer, and wine
within the city is restricted to the following zoning designations:
A. On‑premises consumption of beer and/or
wine CLB‑1;
B. On‑premises consumption of liquor ‑
CLB;
C. Sale of wine, beer and liquor at
establishments located in A, B, RR‑I, R‑I, R‑II, R‑III,
R‑IV and R‑V, residential districts, and BN neighborhood business
districts and BC restricted commercial districts, sale of beer and/or wine at
the neighborhood grocery stores shall be conducted between the hours of eight
a.m. and twelve p.m. only. (Ord. 2276 5§1, 3, 1982: Ord. 2125, 1980: Ord. 2047
§2, 1979).
5.52.030 LicenseRequiredFee.
The City
Council shall establish and amend fees relating to license to sell liquor, beer
and/or wine by resolution after conducting a public hearing.
Any person desiring to sell
liquor, beer, and/or wine in the city shall, in addition to obtaining a license
from the Montana State Department of Revenue, obtain a City liquor license The
fee for the issuance of a new license subsequent to the first day of the
current year for which such license may be issued shall be prorated on a semiannual
basis.
(Ord. 3524, 2014; Ord. 3500, 2013; Ord. 3477, 2012; Ord.
3461, 2011; Ord. 3434 §9, 2010; Ord. 3383 §9, 2008; Ord. 3351 §9, 2007; Ord.
3322 §9, 2006; Ord. 3299 §9, 2005; Ord. 3258 §p, 2004; Ord. 3229, 2003; Ord.
2047 §3, 1979).
5.52.040 License‑‑Application‑‑Information
required.
A.
Any person desiring to purchase the license
required by this chapter shall submit to the city treasurer an application for
the license, accompanied by the license fee set forth in Section 5.52.030 and a
copy of the license issued by the state.
B.
The application for license and the license
itself shall set forth the following information:
1.
Name of the person to whom issued;
2.
The location, by street and number or other
specific description of location if no street address exists, of the premises
where the business is to be carried on under the license;
3.
If the licensee is a partnership or if more
than one person has any interest in the business operated under the license,
the names of all persons in the partnership or interested in the business must
appear on the license;
4.
If applicant is agent, the application must be
accompanied by the principal's acknowledgment of the agency.
C.
It is the duty of the city treasurer to issue
a license upon presentation of a properly completed application together with
tender of the appropriate license fee, unless inspection by the city health
officer, sanitary inspector, fire inspector, zoning officer, building
inspector, or police officer indicates a violation of any city ordinance or
code existing at the place of business sought to be licensed; in which case the
inspector or officer shall submit a written description of the violation
specifying the steps necessary to qualify the premises for a license, a copy of
which shall be furnished to the applicant.
D.
Sidewalk cafés with dining as well as
consumption of alcohol on a public sidewalk in conjunction with sidewalk café
dining are subject to the provisions of Chapter 12.18 Missoula Municipal Code.
(Ord.
3543, 2015; Ord. 2047 §4, 1979).
5.52.050 License‑‑Posting
requirement. Every license issued under this
chapter must be posted in a conspicuous place on the premises wherein the
business authorized under the license is conducted, and such license shall be
exhibited upon request to any peace officer of the city. (Ord. 2047 §5, 1979).
5.52.060 License‑‑Expiration date.
Every license issued under this chapter shall expire on the thirty‑first
day of January at midnight. No licensee under this chapter shall be entitled to
a refund of any portion of the license fee in the event of his discontinuing
the business, or the suspension or revocation of his license, prior to the
normal expiration date.
(Ord. 3375, 2008; Ord. 2047 §6, 1979)
5.52.070 License‑‑Transfer.
The transfer of any license issued by the city under this chapter will be made
by the city treasurer upon application signed by the applicant for the transfer
accompanied by evidence of approval of the transfer of the license by the
department of revenue to the named business. Provided, however, that the city
treasurer shall not issue a license in the name of the transferee until he/she
has determined pursuant to subsection C of Section 5.52.040 that no violations
of the city code exist at the place of business sought to be licensed under the
transfer. (Ord. 2047 §7, 1979).
5.52.080 License‑‑Additional.
The license required by this chapter shall be in addition to the city business
license required by Chapter 5.04. (Ord. 2047 §8, 1979).
Chapter 5.56
STREET VENDORS
Sections:
5.56.010 Defined.
5.56.020 License
requirement.
5.56.030 Permit
requirement.
5.56.035 Parking.
5.56.040 Compliance
with health and safety regulations.
5.56.050 Location
of street vending operations.
5.56.060 Vending
facilities.
5.56.070 Grievance
procedure.
5.56.010 Defined.
A. "Transient Vendor" is any person engaged or employed in the business of
selling to consumers whether or not for profit by going from consumer to
consumer, either on the streets or to their places of residence or employment
and soliciting, selling or taking orders for future delivery of any goods,
wares or merchandise, which includes any
or every person, firm or corporation,
acting for himself or itself or representing any other person, firm or
corporation, who or which brings onto temporary premises within the city a
stock of goods, wares, or merchandise, notions or other articles of trade,
other than farm, orchard, vineyard or garden products, and who or which
solicits, sells or offers to sell or exhibits for sale such stock of goods,
wares or merchandise, notions or other articles of trade at retail. This
definition applies to persons vending food or other merchandise from pushcarts,
vehicles, trailers, or other readily mobile sources to customers within the
City limits. This all-inclusive definition applies to vendors coming into the
City of Missoula to provide any type of service (e.g. painters, contractors,
tree trimmers, computer technicians, etc.), to residents within the City limits.
Nothing contained in this subsection shall apply to duly constituted city
markets when and if operated by authority of the city.
"Transient Merchant" means any person, firm or
corporation acting for himself or representing any other person, firm or
corporation who or which brings into temporary premises into the city any
goods, ware, merchandise, notions or other articles of trade, other than farm,
orchard, vineyard or garden products and who or which solicits, sells or offers
to sell or exhibits for sale such stock of goods, wares, merchandise, notions
or other articles of trade at wholesale A transient merchant can operate out of
temporary premises for a period of ninety (90) calendar days in any 12 month
period.
B. Persons operating small motor vehicles
primarily in residential neighborhoods which are constantly in movement except
when stopped to make sales shall not be considered street vendors for purposes
of this chapter. (Ord. 3342 §3, 2007; Ord. 2206 §1, 19.81: Ord. 2161 §1, 1980).
5.56.020 License
requirement.
.
A. Except as provided in subsection C of
this section, each individual engaging in transient vendor type business within
the City must first obtain a transient vendor/merchant license must be obtained
prior to soliciting any customer or offering any goods or products for sale.
The cost shall be determined in accordance with Chapter 5.08.
The
short-term license shall be good for one week from the date of issuance. The
long term license is good from the issue date through May 31 of the same licensing
year.
B. Except as provided in subsection C of
this section, each individual engaging in transient merchant type business
within the City must first obtain a transient merchant license must be obtained
prior to soliciting any customer or offering any goods or products for sale.
The cost shall be determined in accordance with Chapter 5.08.
The
license is only valid for a period of ninety (90) calendar days in any twelve
month period.
C. Any street vendor who is already
licensed under Chapter 5.08 to conduct business in the city at a permanent
location shall not be required to obtain a separate business license for the
street vending operation.
D. A nonpermanent street vendor stand may
be used by a licensed business with no additional license requirement if the
stand is adjacent to the building in which the existing licensed business is
located. Such street vendor must conform in all respects with the remainder of
the street vendor ordinance. (Ord. 3342§4, 2007; Ord. 2813 §1, 1992: Ord. 2206
§ 1, 1981: Ord. 2161 §2, 1980).
5.56.030 Permit
requirement. Street vendors selling food or drink
shall be required to obtain any permit or approval from the city‑county
health department which that department deems necessary.
Street vendors
setting up in City of Missoula municipal parks shall be required to obtain any
permit or approval from the City of Missoula Parks Department which that
department deems necessary. (Ord. 3342 §5, 2007; Ord. 2813 §2, 1992: Ord. 2290
§1, 1982: Ord. 2206 §3, 1981: Ord. 2161 §3, 1980).
5.56.035 Parking.
Street vendors setting up in the Central Business District will be allowed to
park on the street utilizing the parking meters for a maximum of thirty (30)
minutes for set up and removal of display and goods. The Street Vendor will be
required to utilize an off street parking facility after the thirty minutes
(30) for set up and removal. The Parking Commission will have the right to
ticket or remove the vehicle in violation of this requirement as deemed
necessary pursuant to written policies and procedures adopted by the Missoula
Parking Commission. (Ord. 3342 §6, 2007)
5.56.040 Compliance
with health and safety regulations. All
business license applicants shall comply with health and safety regulations
enacted by the city, county, and the state. The operation of any street vendor
shall be subject to immediate shutdown by the health department in the event of
a violation of such regulations, and the health department shall be empowered
to suspend any of its permits already issued until the violation is corrected.
(Ord. 2813 §3, 1992: Ord. 2206 §5, 1981: Ord. 2161 §5, 1980).
5.56.050 Location of street vending operations.
A. Street vending operations conducted on
public rights-of-way shall be subject to the following rules:
1.
Street
vending in the public right-of-way shall be permitted only in areas zoned
"CBD" Central Business District and only at locations where the
street vendor does not obstruct visibility of motorists at street, alley or
driveway intersections;
2.
When
street vending facilities are located in parking spaces next to sidewalks,
patrons shall be served only upon the sidewalk, vending out of parking spaces
is not permitted in the CBD (Central Business District) unless permit is
granted by the Parking Commission pursuant to their written policies and
procedures to allow vending out of parking space in the CBD;
3.
Unless
an exemption is granted by the parking commission director pursuant to
subdivision 7 of this section, street vending operations shall not be located
within fifteen feet (15) of any fire hydrant, shall not block ingress or
egress into any building and shall be conducted only upon sidewalks and shall
not be situated in such manner as to leave less than six feet of clear area on
the sidewalk, measured perpendicularly from edge of curb and/or any other
obstruction thereof, free for the passage of pedestrians;
4.
Except
in the case of street vending operations conducted by businesses adjacent
thereto, no street vendor shall locate any apparatus closer than ten feet to a
door or in front of a window display of any structure, without permission of
property owner (5.56.050 section C); a window display is considered any display
of goods by a retail business;
5.
No
street vending operations shall be conducted within fifteen feet of a fire
hydrant;
6.
A
five-pound ABC Fire Extinguisher is required if a heating or cooking appliance
is used by the street vendor;
7.
The
director of the parking commission shall have power to grant exemptions to
street vendors from ordinances and rules governing overtime parking. Exemptions
shall be issued only to the business license applicant, shall be limited to two
parking spaces, and shall be nontransferable. Exemptions shall be effective
only between eight a.m. and nine p.m. and shall be effective only for the
duration of the permit. Any exemptions granted by the parking commission shall
be noted on a certificate of exemptions issued pursuant to written policies and
procedures adopted by the Parking Commission; The Parking Commission will have
the right to ticket or remove the vehicle in violation of this requirement as
deemed necessary by the Parking Commission.
8.
Street
vending facilities shall be removed from the public right-of-way when not in
use and must be removed no later than nine p.m. each day.
9.
During
the hours of operation of any city approved farmers market or street market
operation, no street vending operations on public property or public
right-of-way may conduct business along or between blocks of Railroad Street
(100W to 200E), Alder Street (100 W), Spruce Street (100E), Pine Street (100W
to 200E), Higgins Ave (300N to 500N) and Pattee Street (300N to 500N) and as
specified in the resolution creating the farmers or street market unless
operating as part of a city approved street market operation. Further, participating members of the street
market must keep their vending operations within the city council approved
boundaries of the street market during the operating hours of the street
market. Except that this provision is not intended to affect any licensed
business selling from a stand adjacent to their licensed business location.
B. Street vending operations conducted on
parking lots shall be subject to the following rules:
1.
Street
vending shall be permitted only in commercial and industrial zones; provided,
that persons conducting rummage sales and garage sales shall not be considered
street vendors for purposes of this chapter;
2.
Parking
lots upon which street vending operations are conducted must be in compliance
with the terms of Ordinance No. 1894, or its successor, with respect to the
business or concern served by such lots. No street vendor shall conduct a
street vending operation on any parking lot which does not comply;
Street vending facilities shall be
located at least fifteen feet away from any traffic or fire lane in a parking
lot. Street vending operations shall be situated so as to minimize pedestrian
traffic across any such lanes.
C. Location of Street Vending and Adjacent
Property Owner Requirements; The adjacent owner or tenant may require the
removal of a Street Vendors operation based on any one of the following
criteria:
1.
The
Street Vendor directly competes with any goods, products or foods that the
adjacent merchant may have for sale.
2.
If
window shopping availability is important to the adjacent merchant or retailer,
denial of a location may be based on the fact that the Street Vendor operation
potentially impairs or impedes the ability of the public to window shop at the
location.
3.
The
adjacent merchant or retailer desires to utilize the public sidewalk area for
their own business related purposes, such as for their own sales displays.
4.
Any
denial may not be based on anything that constitutes a prohibited
discriminatory practice pursuant to Montana state law, such as race, creed,
religion, color, national origin, age, physical or mental disability, marital
status or sex.
5.
The
Street Vendor will be given one (1) hour to move their operation from the
adjacent property per the adjacent property owners request if the Street
Vendor meets the criteria of Section 5.56.050 Subsection C 1-4. (Ord. 3342 §8, 2007; Ord. 3239,
2003; Ord. 2813 §6, 1992; Ord. 2206 §4, 1981; Ord. 2161 §4, 1980).
5.56.060
Vending facilities.
A. Facilities and equipment used by street
vendors shall be constructed and used in a safe manner.
B. All facilities and equipment used by
street vendors shall be portable. This
requirement shall be deemed met if set-up time does not exceed thirty (30)
minutes.
C. Size Restriction: Street vendor is limited
to seventy five (75) square feet of vending area which includes display of
goods, storage of goods and any and all equipment, which includes tables; the
street vendor is limited to a maximum of two (2) tables measuring a maximum of
thirty (30) square feet of table space for the display of their goods.
D. Signs on self-contained vending units
shall be attached to the surface of the unit. Sidewalk signs, as defined by
Section 15.64.030 MMC, (Codifiers note:
Correct reference should read: 19.90.030 (42)) are not permitted.
E. Street vendors shall keep the area of
operation free of debris and shall clean the area thoroughly upon ceasing
operations. Street vendors dispensing drink or food items shall provide at
least one trash container for use by patrons. (Ord. 3342, 2007; Ord. 2813 §5,
1992; Ord. 2206 §7, 1981; Ord. 2161 §7, 1980 )
5.56.070
Grievance procedure. Any person may file a complaint application with the
city attorney about any street vendor. The city attorney's office shall review
the evidence supplied by the complainant and any other evidence available to
determine whether there exists probable cause to believe that the vendor in question has
violated any provision of this chapter or any other ordinance or law. At the
same time the city attorney's office shall refer the complaint to the Business
Licensing Appeal Committee (5.08.130 E). The Business Licensing Appeal
Committee shall notify the vendor in writing of the complaint, the nature
thereof and the time and place
for a hearing thereon. The hearing shall he held after the vendor has received
notice of the complaint and has been given a reasonable time to appear and
defend. If at the hearing it shall affirmatively appear that the vendor or his
business operation in any manner interferes with the use of public or private
property by virtue of the vendor's location, size, or method of doing business,
the Business Licensing Appeal Committee may impose such conditions or sanctions
upon the vendor's existing business license as he deems to be in the public
interest, including but not limited to:
A.
Ordering
the vendor to change locations or to move from place to place more frequently;
B.
Temporarily
suspend the vendor's business license until the problem is satisfactorily
corrected;
C.
Attach
other reasonable conditions to the vendor's business license.
If the Business Licensing appeal committee feels that matters brought
forth by the complaint warrant revocation of the vendor's business license, he
shall refer the matter to an appropriate committee of the city council. (Ord. 3342, 2007; Ord. 2813 §6, 1992;
Ord. 2206 §4, 1981; Ord. 2161 §4, 1980)
Chapter 5.60 Repealed (Ord. 3538, 2015)
BICYCLES
Sections:
5.60.010 General provisions - Repealed. (Ord.
3538, 2015)
5.60.020 Licensing inspections‑‑Records‑‑Renewal
- Repealed. (Ord. 3538, 2015)
5.60.030 Renewal in case of transfer of
ownership Repealed. (Ord. 3538, 2015)
5.60.040
Licensing by bicycle
dealers and licensing promotions Repealed. (Ord. 3538, 2015)
5.60.050
Destruction of license
stickers and serial numbers Repealed. (Ord. 3538, 2015)
5.60.060 Penalty - Repealed. (Ord. 3538, 2015)
5.60.070 Bicycle and pedestrian advisory board
- Repealed. (Ord. 3538, 2015)
Chapter 5.70
OVERSIZE
LOAD/HOUSE MOVING
Sections:
5.70.010 License‑‑Required.
5.70.020 License‑‑Generally.
5.70.030 Compliance
with state regulations.
5.70.010 License‑‑Required.
Any person engaged in the business of moving any oversize load, house or
structure into, out of, through, or within the city limits shall first obtain
an oversize load/housemover's license, the annual fee of which shall be as
determined pursuant to this title. (Ord.
3448, 2010; Ord. 2357 §1, 1983: Ord. 1918, 1978: prior code §5‑6).
5.70.020 License‑‑Generally.
A.
Any person desiring to obtain such a license
shall make application to the City Treasurer and shall accompany such
application with an acceptable bond in the sum of twenty-thousand dollars ($20,000),
which shall indemnify the City against damages to thoroughfares, and shall also
submit a property damage and personal liability insurance policy containing the
coverage and policy limits required for building contractors pursuant to this
title.
B.
Upon presentation of such application, bond
and policy or policies, the City Treasurer, in consultation with the Building
Official, Public Works Director and City Engineer, shall examine the
qualifications and equipment of the applicant and shall either approve,
conditionally approve or disapprove the application. In the event the
application is approved or conditionally approved, the City Treasurer shall
issue the license. Any conditions to which the license may be subject shall be
written to the license. In the event the application is disapproved, the City
Treasurer shall not issue the license; provided, however, the applicant may
within forty five days of the disapproval appeal to the City Council. The City
Council may affirm the decision of the Building Official, Public Works Director
and City Engineer or modify the decision in any manner. (Ord. 3492, 2013; Ord. 3448, 2010; Ord.
2630 §1, 1988: Ord. 2357 §2, 1983: Ord. 2162 §2, 1980: prior code §5‑7).
5.70.030 License‑‑Compliance with state regulations.
Each application for an oversize load/housemover's license shall furnish proof
of compliance with all state regulations for such moving. (Ord. 3448, 2010; Ord. 2357 §3, 1984: prior
code §5‑8).
CABLE
COMMUNICATIONS SYSTEMS
Sections:
5.80.010 Title.
5.80.020 Purpose
and intent.
5.80.030 Definitions.
5.80.040 Granting
of franchises.
5.80.050 Construction
of franchise.
5.80.060 Franchising
procedures.
5.80.070 Systems
construction, street work and technical performance standards.
5.80.080 System
maintenance.
5.80.090 Tree
trimming.
5.80.100 Safety.
5.80.110 Service
availability.
5.80.120 System
basic capabilities.
5.80.130 Subscriber
service.
5.80.140 Equal
opportunity, affirmative action and nondiscrimination.
5.80.150 Access
services.
5.80.160 Privacy,
private property and subscriber lists.
5.80.170 Rates
and charges.
5.80.180 Franchise
fee.
5.80.190 Indemnification
and insurance.
5.80.200 Records
and reports.
5.80.210 Unlawful
activities.
5.80.220 Parental
control device.
5.80.230 Compliance
monitoring and enforcement.
5.80.240 Nonenforcement
by the city.
5.80.250 Penalties
and other corrective measures.
5.80.260 Franchise
termination or forfeiture.
5.80.270 Right
of intervention.
5.80.280 Legal
fees.
5.80.290 Adoption
of rules and regulations.
5.80.300 Amendment
or modification of this chapter and the franchise.
5.80.310 Severability.
5.80.320 Notices.
5.80.010 Title. This
chapter shall be known as the Missoula
cable communications ordinance." (Ord. 2931 §1, 1995) .
5.80.020 Purpose
and intent. Title VI (Cable Communications) of the
Communications Act of 1934, as amended or added by the Cable Television
Consumer Protection and Competition Act of 1992, establishes guidelines for the
exercise of federal, state and local authority with respect to the regulation
of cable communications systems. The Missoula city council has determined that
it is in the public interest and necessary for the promotion of the safety, convenience, comfort, prosperity and general
welfare of the residents of the city to regulate cable communications systems
within the city. No provision of this chapter is intended to be in conflict
with any preemptive provision of federal or state law. Whenever a preemptive
provision of federal or state law exists with respect to any provision of this
chapter, the federal or state law shall take precedence. (Ord. 2931 §2, 1995).
5.80.030 Definitions.
For the purposes of this chapter, and any franchise granted hereunder, the
following terms, phrases, words, abbreviations and their derivations shall have
the meaning given below unless the context indicates otherwise. When not
inconsistent with the context, words used in the present tense include the
future tense, words in the plural number include the singular number, and words
in the singular number include the plural number. The word "shall" is
always mandatory and not merely directory.
"Access"
means the availability for use by various agencies, institutions,
organizations, groups and individuals in the community, including the city and
its designees, of the cable communications system to acquire, create, provide and
distribute programming not under the franchisee's editorial control, including,
but not limited to:
1. "Public
access" means access where organizations, groups or individual members of
the general public, on a nondiscriminatory basis, are the primary or designated
programmers, providers or users having editorial control over their
programming;
2. "Educational
access" means access where schools are the primary or designated programmers,
providers or users having editorial control over their programming; and
3. "Government
access" means access where governmental institutions or their assignees
are the primary programmers, providers or users having editorial control over
their programming; and
4. "PEG
access" means public access, educational access and government access,
collectively.
"Access
channel" means any channel, or portion thereof, designated for access
purposes or otherwise made available to facilitate or transmit access
programming.
"Access
facilities" means the channel capacity, services, facilities, equipment
and/or technical components used or useable by PEG access programmers,
providers or users.
"Affiliated
entity" means any enterprise having ownership or control in common with
the franchisee, in whole or in part, including, without limitation, the
franchisee's parent corporations and any subsidiaries or affiliates of such
parent corporations.
"Cable
communications system" or "cable system" or "cable
television system" or "CATV system" means a system plant,
facilities, equipment, and closed signal transmission paths, including, without
limitation, antennas, cables, amplifiers, towers, microwave links, studios,
real and personal property, and any and all other conductors, home terminals,
converters, remote control units, and all associated equipment or facilities
designed and constructed for the purposes of distributing cable services to
subscribers and of producing, receiving, amplifying, storing, processing or distributing
audio, video, voice, digital, analog, or other forms of electronic or optical
signals, whether owned, rented, leased, leased‑purchased, or otherwise
controlled by or within the responsibility of the franchisee.
"Cable
services" means programming, in any combination, provided on the cable
system by the franchisee to subscribers.
"Channel"
means a radio frequency band, or its technical equivalent on the cable system,
discretely identified and capable of carrying at least a standard video channel,
which may include combinations of any audio, digital or other non‑video
signals. "Standard video channel" means a six megahertz (MHz)
frequency band, or its technical equivalent on the cable system, before any
signal compression.
"City"
means the city of Missoula, a municipal corporation of the state of Montana,
and all of the territory within its corporate boundaries, as such may change
from time to time.
"City
council" or "council" means the present governing body of the
city or any future board constituting the legislative body of the city.
"Designated
access provider" means the entity or entities designated by the city
under Section 5.80.150(C).
"Downstream
channel" means a channel capable of carrying a signal transmission from a
cable communications system headend to remote points, and/or to
interconnection points, on said system.
"FCC"
means the Federal Communications Commission.
"Franchise"
or "franchise agreement" means any authorization granted hereunder
in terms of a franchise, fully executed by the city, to construct, operate and
maintain a cable communications system in the city.
"Franchisee"
or "grantee" means the person, firm or corporation to whom or which a
franchise, as hereinabove defined, is granted by the city council under this
chapter, and the lawful successor, transferee or assignee of said person, firm
or corporation.
"Grantor"
means the city of Missoula acting through its council.
"Gross
revenues" means any and all compensation, in whatever form, received
directly or indirectly by the franchisee, in connection with the operation
within the city of its cable communications system, not including any taxes on
services furnished by the franchisee, which taxes are imposed directly on a
subscriber or user by a county, state or other governmental unit, and collected
by the franchisee for such entity. Gross revenues shall also include amounts
earned during any period regardless of whether:
(a) the amounts are paid in cash, in
trade or by means of some other benefit to the franchisee or any affiliated
entity;
(b) the goods or
services with which the revenue is associated are provided at cost or the
revenue amount can be matched against an equivalent expenditure;
(c) the amounts are
characterized, separately identified or accounted as being for goods, services
or fees to be paid to government agencies; and
(d) the amounts are
initially recorded by the franchisee or an affiliated entity. Gross revenues
shall not be net of:
(i) any operating expense;
(ii) any accrual, including,
without limitation, any accrual for commissions; or
(iii) any other
expenditure, regardless of whether such expense, accrual or expenditure
reflects a cash payment.
"Headend"
means a franchisee's facility for signal reception and dissemination on its
cable communications system, including antennas, satellite dishes, cables,
wires, monitors, switchers, modulators, processors, amplifiers, for television
signals, equipment for the interconnection of said system with adjacent cable
systems and interconnection of any separate networks which are part of franchisee's cable system, and all other related equipment and facilities.
"Institution"
means a building or buildings where service may be utilized in connection with
business, trade, profession, public agency or service, school or non‑profit
organization.
"Interactive
services" or "two‑way services" or "interactive
capability" or "two‑way capability" means services or
capabilities, respectively, provided to subscribers where the subscriber either:
(a) both receives information consisting of either television or other signals
and transmits signals generated by the subscriber or equipment under his/her
control for the purpose of selecting what information shall be transmitted to
the subscriber or for any other purpose; or (b) transmits signals to any other
location for any purpose.
"Interconnect"
or "interconnection" means the provision by the franchisee of
technical, engineering, physical, financial and all other necessary components
to accomplish, complete and adequately maintain a physical linking of the
franchisee's cable communications system and cable services or any designated
channel or signal pathway thereof, with any other designated cable system or
programmer so that cable services of technically adequate quality may be sent
to and received from such other systems.
"Leased
access channel" means any channel or portion of a channel available for
programming for a fee or charge by persons or entities other than the
franchisee.
"Parent
corporation" means any existing or future corporation with greater than
fifty percent ownership or control over the franchisee.
"Person"
means any individual, sole proprietorship, partnership, association,
corporation or other form of organization authorized to do business in the
state and includes any natural person.
"Public
way" or "right‑of‑way" means any street, right‑of‑way,
park, pedestrian or bicycle easement, utility easement or other public place,
ground or water for public use that is controlled by the city.
"Street"
means the surface of the space above and below any public street, boulevard,
avenue, road, parkway, freeway, highway, waterway, court, alley, sidewalk or
other public way of any type whatsoever, now or hereafter existing as such within
the city, and any easements or other similar means of access to the extent the
city has the right to allow a grantee to use them.
"Subscriber"
means any person or institution, as defined hereinabove, who is lawfully
receiving, for any purpose or reason, any cable service or services provided by
a franchisee by means of or in connection with a cable communications system,
whether or not a fee is paid for such service.
"Upstream
channel" means a channel capable of carrying a transmission to the system
headend from remote signal origination points on the cable system or from
interconnection points on the cable system. (Ord. 2931 §3, 1995).
5.80.040 Granting of franchises.
A.
Authority to Grant Cable Communications Franchises.
1. It
is unlawful to engage in or commence construction, operation or maintenance of
a cable communications system without a franchise issued under this chapter.
The council may, by ordinance, award a nonexclusive franchise to construct,
operate and maintain a cable communications system within all or any portion of
the city to any person, whether operating under an existing franchise or not,
who makes application for authority to furnish a cable communications system
which complies with the terms and conditions of this chapter. Provided, that this
section shall not be deemed to require the grant of a franchise to any
particular person or to prohibit the council from restricting the number of
franchisees should it determine such a restriction would be in the public
interest. Any franchise or license for the construction, maintenance and
operation of cable television systems using the public streets, utility
easements, other public right‑of‑ways or places shall conform to
the provision of this chapter.
2. The granting of a franchise, or any of
the provisions contained herein, shall not be construed to prevent the city
from granting any identical or similar franchise to any person other than the
franchisee, including rights, privileges or authority similar to or different,
from the rights, privileges or authority set forth herein or the franchise
award ordinance, in the same or other streets, right‑of‑ways and
public places.
3. However, in view of the possibly
appreciable difference in the comparative sizes of various cable operations
within the city, the city reserves the right, as necessary and appropriate, to
lawfully modify or scale down in certain franchise award ordinances issued
hereunder certain provisions and requirements of this chapter in recognition of
the technical and economic realities of the subject cable operations.
B. Franchise Grant. This chapter itself grants
no authority to operate a cable communications system to any person(s). Such
grants are made only by the adoption of a separate ordinance awarding a
specific franchise to an applicant who has complied with the provisions of this
chapter.
C. Nature and Extent of the Grant. Any
franchise granted hereunder by the city shall authorize the franchisee,
subject to the provisions herein contained:
1. To
engage in the business of operating and providing cable communication services
and the distribution and sale of such services to subscribers within the city;
2. To
erect, install, construct, repair, replace, reconstruct, maintain and retain
in, on, over, under, upon, across and along any street, such cable, fiber,
amplifiers and appliances, attachments, supporting structures and other
property as may be necessary and appurtenant to the cable communications
system; and, in addition, so to use, operate and provide similar facilities, or
properties rented or leased from other persons, firms or corporations,
including but not limited to any public utility or other franchisee franchised
or permitted to do business in the city; and
3. To
maintain and operate said franchise properties for the reception, origination,
collection, transmission, amplification and distribution of electrical or radiant
energy.
D. Duration of Franchises.
1. A
franchise shall become effective on the thirty‑first day after approval
of the franchise agreement or license; provided, that in accordance with
Section 5.80.060(C)(2), the franchisee shall have filed, within thirty days
after such effective date, a written instrument, addressed to the council,
accepting the franchise, together with the insurance policies and bond required
by applicable provisions of the franchise agreement granted pursuant to this
chapter.
2. A
franchise shall terminate upon expiration of the franchise term or duration set
forth in the franchise award ordinance, unless sooner terminated pursuant to
the provisions of this chapter or the award ordinance.
3. In
the event of any holding over after expiration or other termination of any
franchise granted hereunder, the franchisee shall pay to the city all fees
consistent with the provisions herein as if there had not been such holding
over and as if the terms and conditions of the franchise continued in full
force and effect. In the event of any such holding over, in direct
contravention by franchisee of a final lawful order of the city expressed by
resolution, upon notice, requiring franchisee to cease and desist all
operations upon a certain date, then and in that event, the franchisee shall
pay to the city, reasonable compensation and damages, as may be awarded by a
court of law. (Ord. 2931 §4, 1995).
5.80.050 Construction of franchise.
A.
Interpretation. Unless otherwise specifically prescribed herein, the following
provisions shall govern the interpretation and construction of franchise.
1. The
provisions of this chapter shall be incorporated by reference in
any franchise agreement resultant from a franchise award made hereunder.
2. In
the event of conflict between the specifications of this chapter and those of
a franchise award ordinance issued under this chapter, the specifications of
the franchise award ordinance shall take precedence.
3. The
franchisee shall have no recourse whatsoever against the city for any loss,
costs, expense or damage, arising out of any provision or requirement of a
franchise or the lawful enforcement thereof, unless such loss, costs, expense
or damage is due to the fault of the city, after reasonable notice and cure
period.
4. A
franchise does not relieve the franchisee of any requirement of the city or of
any ordinance, rule, regulation or specification of the city, including, but
not limited to any requirement relating to street work, street excavation
permits, or the use, removal or relocation of property in streets.
5. Any franchise granted shall take
priority over any and all other conflicting rights, privileges, powers,
immunities and authorities owned, possessed, controlled or exercisable by
franchisee, or any successor to any interest of franchisee, of or pertaining to
the construction, operation or maintenance of any cable communications system
in the city, as an abandonment of any and all of such rights, privileges,
powers, immunities and authorities within the city to the effect that, as
between franchisee and the city, and all construction, operation and
maintenance by any franchisee of any cable communications system in the city
shall be, and shall be deemed and construed in all instances and respects to
be, under and pursuant to said franchise, and not under or pursuant to any
other right, privilege, power, immunity or authority whatsoever. Nothing in
this section of this chapter is intended to, or shall be interpreted as,
negating in any way, nor or in the future, the first amendment rights of a
franchisee.
B.
Limitations Upon Grant.
1. No
privilege or exemption is granted or conferred by a franchise except those
specifically prescribed herein.
2. Any
privilege claimed under a franchise by the franchisee in any street, right‑of‑way,
or other public place shall be subordinate to the public use and any other
lawful use, including prior occupancy, thereof. No franchise shall authorize
use of any public property other than public streets, rights‑of‑way,
and public utility easements owned by the city unless such franchise or
subsequent resolution of the council expressly authorizes such other public
property. The city reserves the right to reasonably designate where a
franchisee's facilities are to be placed within the public ways.
3. The
franchisee, shall at all times during the life of its franchise, be subject to
the lawful exercise of the city's police power and such reasonable regulations
as the council may subsequently promulgate thereunder.
4. The
franchisee shall be subject to all provisions of the other ordinances, rules,
regulations and other provisions of the city heretofore or hereafter adopted,
including but not limited to those pertaining to works and activities in, on,
over, under and about public rights‑of way, so long as such ordinances,
rules, regulations and other provisions of the city do not unreasonably
interfere with or conflict with specific provisions of the franchise.
5. The
franchisee shall be subject to the provisions of general laws of the state of
Montana or as hereafter amended, when applicable to the exercise of any
privilege contained in any franchise granted pursuant to this chapter,
including but not limited to those pertaining to works and activities in and
about state highways.
6. No
franchisee nor any major stockholder of a franchisee shall directly or
indirectly use the position as cable franchisee to gain a competitive advantage
in the business of selling, leasing, renting, servicing or repairing radio or
television sets; provided, that nothing herein shall prevent franchisee from
making modifications to the tuner input circuit of the subscribers' communications
transmitters and/or receivers, and the fine tuning of the subscribers'
operating controls only, to ensure proper operation under conditions of cable
connection at the time of installation, or in repairing receivers and other
equipment belonging to other cable operators for use in the conduct of their
business.
C. Rights Reserved to City. There is hereby
provided and reserved to the city every right and power which is required to be
herein reserved or provided by any provision of the city or its ordinances, as
amended, and the franchisee by its acceptance of a franchise agrees to be bound
thereby and to comply with any action or requirement of the city in its lawful
exercise of any such right or power, including but not limited to city eminent
domain rights. Private property of any franchisee shall not be taken for public
use without just compensation.
1. Neither
the granting of a franchise nor any provision thereof shall constitute a waiver
or bar to the exercise of any governmental right or power of the city,
including regulation of service rates and fees as permitted by law.
2. The
council may do all things which are necessary and convenient in the exercise
of its jurisdiction under this chapter and/or franchisee's franchise.
3. The city reserves the right to enact
reasonable regulations pertaining to any franchise granted pursuant to
this chapter which may include, but is not limited to: a. Construction and
use of poles; b. Use of poles and conduits by the city; c . Common user; d. Filing
of pole user agreement; e. Reservation of street rights; f. Restoration of
streets; and g. Movement of facilities.
4. The
city reserves the right to maintain, or establish and maintain, a cable
communications advisory committee to assist the council in regulating cable
activity in the city. The members and duties of any such committee, if any,
to be as established by the council.
5. The
city reserves the right to join with one or more of the other local area city
and/or county governments in the formation and operation of an
intergovernmental administrative authority for the purpose of joint administration
of the cable communications franchises of the various members of the joint
authority. The city reserves the right to assign the administration of the
provisions of any franchise granted pursuant to this chapter to such a duly
established joint authority, and to join with other members of the authority in
developing such intergovernmental agreement bylaws, rules and regulations as
necessary for the proper administration of the joint authority.
6. The
city shall have the right, free of charge, to make additional use, for any
public or municipal purpose, whether governmental or proprietary, of any
poles, conduits or other similar facilities erected, controlled or maintained
exclusively by or for the franchisee in any street, provided such use by the
city does not interfere with the present and future use by the franchisee, and
provided that the city shall indemnify the franchisee from all reasonable
costs associated with any verified damages that arise as a result of the city's
use. The franchisee shall advise the city immediately upon the franchisee's
realization of any potential for the incurment of damages by the city from the
city's use of the franchisee's facilities under the provisions of this section.
7. Any
intra‑state interconnection of interactive services between the system
operated by franchisee and any other system shall be subject to the regulatory
authority of the city, pursuant to any franchise awarded under this chapter.
8. The
reservation of any particular right shall not be construed to limit the
promulgation of any other reasonable rules and regulations. (Ord. 2931 §5,
1995).
5.80.060 Franchising
procedures.
A.
Franchise Application.
1. Each
application for a franchise to construct, operate or maintain any cable
communications system(s) in the city shall be filed with the city clerk and
shall contain or be accompanied by the following, as a minimum:
a. The
name, address and telephone number of the applicant;
b. A
detailed statement of the corporate or other business entity organization of
the applicant including, but not limited to, the following, and to whatever
extent required by the city.
i.
The names, residence and business address of all officers, directors and
associates of the applicant,
ii. The names, residences and business
addresses of all officers, persons and entities having, controlling, or being
entitled to have or control of one percent or more of the ownership of the applicant,
and the respective ownership share of each person or entity,
iii. The names and addresses of any
parent or subsidiary of the applicant, namely, any other business entity owning
or controlling applicant in whole or in part or owned or controlled in whole or
in part by the applicant, and a statement describing the nature of any such
parent or subsidiary business entity, including but not limited to cable
television systems owned or controlled by the applicant, its parent and
subsidiary and the areas served thereby,
iv. A detailed description of all previous
experience of the applicant in providing cable television communications system
service in related or similar fields,
v. A detailed and complete financial
statement of the applicant, vi. A statement identifying, by place and date, any
and all cable television franchises awarded the applicant, or its parent or
subsidiary; the status of said franchises with respect to completion thereof;
the total cost of such systems; and the amount of applicant's and its parent's
or subsidiary's resources committed to the completion thereof;
c. A
thorough, detailed description of the proposed cable communications system and
plan of operation of the applicant which shall include, but not be limited to
the following:
i. A detailed map indicating all areas
proposed to be served, and a proposed time schedule for the installation of all
equipment necessary to become operational throughout the entire area to be
served,
ii. A detailed, informative and referenced
statement describing the actual equipment and operational standards proposed by
the applicant. In no event shall said operational and performance standards be
less than those adopted by the Rules and Regulations of the FCC (contained in
Title 47, Subpart K, Sections 76.601 et seq. 9), and as augmented herein and
modified by the franchise awarded,
iii. A detailed estimate of the cost of
constructing the applicant's proposed system,
iv. A copy of the form of any agreement,
undertaking or other instrument proposed to be entered into between the
applicant and any subscriber,
v. A detailed statement
setting forth in its entirety any and all agreements and undertakings, whether
formal or informal, written, oral, or implied, existing or proposed to exist between
the applicant and any person, firm or corporation, including, but not limited
to, public utilities which materially relate or pertain to or depend upon the
application and the granting of the franchise,
vi. A statement or
schedule setting forth all proposed classifications of rates and charges to be
made against subscribers and all rates and charges as to each of said
classifications, including installation charges and service charges;
d. A
copy of any agreement existing between the applicant and any public utility
subject to regulation by the Montana Public Utilities Commission providing for
the use of any facilities of the public utility, including but not limited to
poles, lines or conduits, within the city and/or adjacent areas;
e. Any
other details, statements, information or references pertinent to the subject
matter of such application which shall be required or requested by the council,
or by any provision of any other ordinance of the city;
f. An
application fee in a sum to be set by the city which shall be in the form of
cash, certified or cashier's check, money order, to pay the costs of studying,
investigating and otherwise processing such application, and which shall be in
consideration thereof and not returnable or refundable in whole or in part, except
to the extent that such fee exceeds the actual costs incurred by the city in
studying, investigating and otherwise processing the application; provided,
that any applicant who shall deliver to the city clerk a written withdrawal of
or cancellation of any application following the date such application is
received by the city clerk, shall be entitled to have returned and refunded the
sum of fifty percent of the fee less any actual costs or expenses incurred by
the city by reason of such applications.
2. The
council may, by advertisement or otherwise, solicit for any other applications
for cable communications system franchises, and may determine and fix any date
upon, after or before which the same shall be received by the city, or the date
before which the same shall not be received, and may make any other
determinations and specify any other times, terms, conditions or limitations
respecting the soliciting, calling for, making and receiving of such
applications.
3. Upon
receipt of any application for franchise, the council shall refer the same to
the city clerk or cable communications advisory committee, if such exists, who
shall prepare a report and make recommendations respecting such application,
and cause the same to be completed and filed with the council within one
hundred and twenty days.
4. In
making any determinations hereunder as to any application, the council shall
give due consideration to the character and quality of the service proposed,
rates to subscribers, experience, character, background and financial
responsibility of any applicant, and its management and owners, technical and
performance quality of equipment, willingness and ability to meet construction
and physical requirements, and to abide by policy conditions, franchise limitations
and requirements, and any other consideration deemed pertinent by the council
for safeguarding the interest of the city and the public. The council, in its
discretion, shall determine the
award of any franchise on the basis of such considerations and without
competitive bidding.
5. If
the council, after public hearing, shall determine to reject such application,
such determination shall be final and conclusive, and the same shall be deemed
rejected.
6. If
the council shall determine to further consider the application, the following
shall be done:
a. The
council shall decide and specify the terms and conditions of any franchise to
be granted hereunder and as herein provided.
b. The
council shall give notice of its intention to consider the granting of such a
franchise, stating the names of the proposed franchisee, and that copies of the
proposed franchise may be reviewed at the office of the city clerk fixing and
setting forth a time and public place certain when and where interested parties
may inspect all the bona fide applications, fixing and setting forth a day,
hour and place certain when and where any persons having any interest therein
or objection to the granting thereof may file written protests and appear
before the council and be heard, and directing the city clerk to publish notice
of said resolution's adoption at least once within ten days of the passage
thereof in a newspaper of general circulation within the city.
7. At
the time set for the hearing or at any adjournment thereof, the council shall
proceed to hear all written protests. Thereafter, the council shall make one of
the following determinations:
a. That
such franchise be denied; or
b. That
such franchise be granted upon such conditions as the council deems appropriate,
which conditions may include, on a not to exceed basis, where in accordance
with applicable federal and state regulations and laws:
i. Charges for installation,
ii. Subscriber service rates and fees,
iii. Service rates for separate classifications
of service such as additional connections.
8. If
the council shall determine that a franchise be denied, such determination
shall be expressed by resolution; if the council shall determine that a
franchise be granted, such determination shall be expressed by ordinance
granting a franchise to the applicant. The action of the council shall be final
and conclusive.
9. The
franchisee, within thirty days of receipt of written notification by the city
following franchise award, upon initial franchise award and any renewal
thereof, shall pay to the city a sum of money to reimburse the city for all
expenses incurred by the provisions of this chapter regarding the franchise
award or renewal process, beyond those defrayed by application fees. The city shall
furnish the franchisee a statement of such expenses with the notification.
B. Replacement
Franchise.
1. A
franchisee's cable service may be required by the city to continue
uninterrupted beyond the expiration or termination of the franchise, but not
for longer than twenty‑four months thereafter. To assure continued
service to the subscribers, the city shall issue a request for proposals, for a
replacement franchise, not later than twenty-four months prior to expiration of
a franchise. The RFP shall include the minimum acceptable level of system
capability, services, access, etc. as determined by the city, to meet the needs
and interests of the Missoula community, in accordance with applicable law. If
the city deems the franchisee's past performance to warrant consideration for
franchise renewal, then the city shall provide the franchisee first right of
refusal in accepting the franchise offered. However, if the city deems the
franchisee's past performance to not warrant such consideration, or if franchisee
elects to not accept the franchise offered under its first right of refusal,
then the city may consider other applicants with the understanding that no
further consideration will be given to awarding the incumbent franchisee a
replacement franchise.
2. The
specifications, terms and conditions of this section are not intended, nor
should such be construed, to contradict or abrogate the rights and/or
privileges of a franchisee under federal or state law, and more specifically
Section 626 of Title VI of the Communications Act of 1934 as amended; i.e., the
specifications, terms and/or conditions of such federal or state law shall take
precedence where such may conflict with the specifications, terms and/or
conditions of this section.
3. Franchises
will normally not be renewed for periods in excess of ten years, and may be
renewed prior to expiration of an existent franchise in accordance with the
procedures set forth in subsection B(1) of this section.
4. If
the city after public hearing elects to not consider the incumbent franchisee
for a replacement franchise, then it shall do so by resolution prior to
issuance of an RFP for the replacement franchise. In such an event the city may
purchase or require any successor franchisee to purchase franchisee's facilities
for a cost not to exceed its fair market value. The fair market value shall be
determined pursuant to law.
C. Franchise Acceptance.
1. No
franchise granted under this chapter shall become effective for any purpose
unless and until written acceptance thereof, together with the bond and
insurance policies required by Section 5.80.190, shall have been filed with the
city clerk. Written acceptance, which shall be in the form and substance
approved by the city attorney, shall also be and operate as an acceptance of
each and every term and condition and limitation contained in this chapter, and
in such franchise or otherwise specified as herein and therein provided.
2. The
written acceptance shall be filed by franchisee within thirty days after the
effective date of the ordinance granting such franchise. In the event this day
falls on a non‑working day, then the next working day will suffice.
3. In
default of the filing of such written acceptance as herein required, the
grantee shall be deemed to have rejected and repudiated the franchise.
Thereafter, the acceptance of the grantee shall not be received nor filed by
the city clerk. The grantee shall have no rights, remedies or redress in the
premises, unless and until the council, by resolution, shall determine that such
acceptance be received or filed and then upon such terms and conditions as the
council may impose.
4. In any case, and in any instance, all
rights, remedies and redress which may or shall be available to the city, shall
at all times be available to the city, and shall be preserved and maintained
and shall continuously exist in and to the city and shall not be in any manner
or means modified, abridged, altered, restricted or impaired by reason of any
of these premises or otherwise.
D.
Franchise Transfer or Assignment.
1. A
franchise awarded under this chapter shall be a privilege to be held in
personal trust by the franchisee. The franchise shall not be sublet or
assigned, nor shall any rights or privileges therein granted or authorized be
leased, assigned, mortgaged, sold, transferred, pledged or disposed of either
in whole or in part, either by forced or involuntary sale or by voluntary sale,
merger, consolidation or otherwise, nor shall title thereto, either legal or
equitable, or any right, interest or property therein, pass to or vest in any
person(s), except the franchisee or a company controlling, controlled by or
under common control with the franchisee, either by act of the franchisee or by
operation of law, without the consent of the city expressed by ordinance;
provided, however, that no such consent shall be required for any transfer in
trust, mortgage or other hypothecation, as a whole, to secure an indebtedness.
2. The
franchisee shall promptly notify in writing the city, but not less than ninety
days prior to, of any proposed change in or transfer of, or acquisition by, any
other party of control of the franchisee with respect to which the consent of
the city is required, pursuant to subsection D(1) of this section, providing
with such notification a summary explanation of the nature, purpose and terms
of the transaction.
3. The
franchisee shall, if requested by the city and within thirty days of such
request, provide the city attorney a copy of deeds, leases, mortgages, agreements
or other written instruments evidencing such transaction, certified as correct
by the franchisee. A change in beneficial ownership of ten percent of stock or
other interest in the franchisee shall be presumed to be a change in control
of the franchisee. Such change of control shall make the franchise subject to
revocation unless and until the council have consented thereto.
4. Consent
of the council shall not be granted until it has examined the proposed
assignee's legal, financial, technical, character and other qualifications to
construct, operate and maintain a cable communications system in the city and
has afforded all interested parties notice and an opportunity to be heard on
the question. The franchisee shall assist the city in any such examination. The
city may condition any transfer upon such conditions it deems appropriate.
5. The
said consent of the council may not be unreasonably refused; provided, however,
the proposed assignee must show financial responsibility as determined by council
and this chapter; and provided, further, that no such consent shall be required
for a transfer in trust, mortgage or other hypothecation, in whole or in part,
to secure an indebtedness.
6. In
the event that the franchisee is a corporation, prior approval of the council
shall be required where there is an actual change in control or where ownership
of more than fifty percent of the voting stock of the franchisee is acquired
by a person or group of persons acting in concert, none of whom
already own fifty percent or more of the voting stock, singly or collectively.
Any such acquisition occurring without prior approval of the council shall
constitute a failure to comply with a provision of this chapter within the
meaning of Section 5.80.260(B)(1).
7. No
transfer for which the city's consent by ordinance is required may occur until
the successor or lessee has complied with the requirements of subsection C(1)
of this section, including, but not limited to, providing certificates of
insurance, unless the city council waives such compliance by resolution.
8. The
city shall make a final decision upon a proposed change of control within one
hundred and twenty days of receiving a written request for approval of a change
in control containing or accompanied by such information as is required by
federal law and by the city. If the city fails to render a final decision on
the request within one hundred twenty days, then the proposed change shall be
deemed to be consented to by the city. At any time during the one hundred twenty‑day
period, the city may request in writing that franchisee provide or cause to
provide any information reasonably necessary to rendering a final decision on
the request. The city and franchisee may, at any time, agree to extend the one hundred
twenty-day period.
9. Any
such transfer or assignment shall be made by an instrument in writing, which
shall include acceptance of all terms and conditions of the franchise, a duly
executed copy of which shall be filed with the city clerk within thirty days after
any such transfer or assignment.
10. Nothing
contained in this section shall be deemed to prohibit the mortgage, pledge or
assignment of tangible assets of franchisee's cable system, including but not
limited to accounts receivable, inventory or monetary assets, for the purpose
of financing acquisition of equipment or for the acquisition, construction and
operation of the cable system of franchisee or any affiliated entity, without
the city's consent, but any such mortgage, pledge or assignment shall be
subject to the city's other rights contained in the franchise. The
franchisee may also sell tangible assets of the cable system in the ordinary
conduct of its business without the consent of the city.
11. Nothing
contained in this section shall be deemed to prohibit franchisee's lease or
sublease to other city franchisees any of the rights or privileges granted or
authorized by the franchise, with or without the city's consent, so long as
franchisee remains solely responsible for locating, servicing, repairing,
relocating or removing its system. (Ord. 2931 §6, 1995).
5.80.070 Systems
construction, street work and technical performance standards.
A.
Standards. Standards of cable communications system(s) design,
construction, safety and operation
will meet, but not be limited to, all applicable city, state and
national/federal codes, rules, regulations and specifications referenced and/or
set forth in this chapter and the franchise agreement, including those
documents incorporated therein by reference.
B.
Compatibility. All cable communications
systems authorized to be constructed and/or operated pursuant to this chapter
shall be, insofar as financially and technically feasible, compatible one with
another.
C.
General
Construction.
1. The
franchisee may perform all construction necessary for the operation of its
cable system, subject to applicable regulations of the city. All construction
and maintenance of any and all facilities within the streets and public ways
incident to the franchisee's cable system shall, regardless of who performs the
construction, be and remain the franchisee's responsibility.
2. Failure
on the part of the franchisee to commence and diligently pursue each of the
system construction, extension and/or upgrade requirements, and to complete each
of such matters as set forth in the franchisee's franchise agreement, except as
otherwise provided for in said franchise agreement, shall be grounds for
termination of such franchise. By resolution and order, the council shall
extend the time for the commencement and completion of construction, extension
and/or upgrade for additional periods in the event the franchisee, acting in
good faith, experiences delays by reason of circumstances beyond his control.
3. The
franchisee shall utilize existing poles, conduits and other facilities whenever
possible, and shall not construct or install any new, different or additional
poles, conduits or other facilities whether on public property or on privately
owned property unless and until first securing the written approval of the
city's Director of Development Services.
4. In all
sections of the city where wires, cables and other system appurtenances are
mounted above ground, every reasonable effort shall be made to minimize
obstruction of the view of residents and every reasonable effort shall be made
to preclude an unsightly system installation.
- Conditions on Street Occupancy.
1.
In
accordance with subsection E of this section, any pavements, sidewalks, curbing
or other paved area taken up or any excavations made by a franchisee shall be
done under permits issued for the work by proper officials of the city, and
under their supervision and direction, and shall be done in such a manner as to
give the least inconvenience to the inhabitants of the city. The franchisee
shall, at its own cost and expense, and in a manner approved by the city's director of Development Services, replace and restore any
such pavements, sidewalks, curbing or other paved areas in as good a condition
as before the work involving such disturbance was done, and shall also make and
keep full and complete plats, maps and records, as set forth in subsection L of
this section, showing the exact locations of its facilities located within the
public streets, ways and easements of the city. These maps shall be available
for inspection at any time during normal business hours by city officials.
2.
Upon
any failure of the franchisee to commence, pursue or complete any work required
of it by law or by the provisions of a franchise to be done in any street, the
city council, at its option and according to law, after reasonable notice from
the city to the franchisee, may cause such work to be done and the franchisee
shall pay to the city the cost thereof in the itemized amounts reported by the
council to the franchisee, within thirty days after receipt of such itemized
report.
3.
In
the event that any part of such system has been installed in any street or
other area without complying with the requirements hereof and/or the franchise
agreement; or the use of any part of the system of the franchisee is
discontinued for any reason for a continuous period of thirty days, without
prior written notice to and approval by the city; or any franchise shall be
terminated, canceled or shall expire, then the franchisee shall, at the option
of the city, and at the expense of the franchisee and at no expense to the
city, upon demand of the city, promptly remove from any streets or other area
all property of the franchisee and the franchisee shall promptly restore the
street or other area from which such property has been removed to such
condition as the city director of Development Services shall approve.
4. The franchisee shall,
on the request of any person holding a building moving permit issued by the
city, temporarily raise or lower its wires to permit the moving of buildings.
The expense of such temporary removal or raising or lowering of wires shall be
paid by the person requesting same, and the franchisee shall have the authority
to require such payment in advance. The franchisee shall be given not less than
ten calendar days advance written notice of any requested arrangement for such
temporary wire changes.
5. Whenever in the
judgment of the city it is deemed impracticable to permit erection of poles or
construction of underground conduit system by any utility which may at the
time have authority to construct or maintain a conduit or poles in street
area, the city may require the franchisee to afford to such utility the right
to use such poles or facilities of the franchisee as the city finds practicable
in common with the franchisee, both as they may agree upon, so long as the use
of such poles or facilities do not interfere with the franchisee's present and
future use of such poles or facilities.
E. Permits. The franchisee shall apply for and
obtain all permits necessary or construction or installation of any
facilities, and for excavating and laying any facilities, within the streets
and public ways, and shall pay all applicable fees upon issuance of the
requisite construction permits by the city to the franchisee. In the event
that emergency repairs are necessary, the franchisee shall immediately notify
the city of the need for such repairs. The franchisee may initiate such
emergency repairs, and shall apply for appropriate permits within forty‑eight
hours after discovery of the emergency. The franchisee shall comply with all
applicable city regulations relating to such excavations or construction,
including the payment of permit or license fees.
F. Excavations.
1. The
franchisee may make excavations in the streets and public ways for any facility
needed for the maintenance or extension of the franchisee's cable system. The
franchisee's cable system shall be constructed and maintained in such manner as
not to interfere with sewers, water pipes or any other property of the city, or
with any other pipes, wires, conduits, structures or other facilities that may
have been laid in the streets by or under the city's authority. Prior to doing such work, the franchisee shall apply for, and obtain,
appropriate permits from the city and give appropriate notices to any other
franchisees, licensees or permittees of the city, or departments of the city,
or other units of government owning or maintaining pipes, wires, conduits or
other facilities which may be affected by the proposed excavation. Within forty‑eight
hours after any city department or any city franchisee, licensee or permittee
notifies the franchisee of a proposed street excavation, the franchisee shall:
mark all of its locatable underground facilities within the area of proposed
excavation; notify the excavator of any locatable underground facilities in the
area of the proposed excavation; or, notify the excavator that the franchisee
does not have any underground facilities in the vicinity of the proposed
excavation. All of the franchisee's work under this section shall be done in
strict compliance with all rules, regulations and ordinances of the city,
including the proper safeguarding of excavations for the prevention of accidents.
2. Nothing in the franchise shall prevent the
city from constructing sewers; grading, paving, repairing and/or altering any
street or public way; laying down, repairing or removing water mains; or,
constructing or establishing any other public work or improvement. All such
work shall be done, insofar as practicable, so as not to obstruct, injure or
prevent the use and operation of the franchisee's cable system. However, if any
of the franchisee's system interferes with the construction or repair of any
street or public improvement, including construction, repair or removal of a
sewer or water main, the franchisee's system shall be removed or replaced in
accordance with the provisions of subsection I of this section.
G.
Underground Facilities.
1.
Unless otherwise authorized by council, in
those areas and portions of the city where the transmission and/or distribution
facilities of the public utility providing telephone service, and those of the
utility providing electric service, are underground or hereafter are placed
underground, or are to be placed underground by a builder, developer or
subdivider as part of a development or subdivision, then the franchisee shall
likewise construct, operate and maintain all its transmission and distribution
facilities underground to the maximum extent that existing technology permits
the franchisee to do so.
2.
Underground
cable will be enclosed in conduit when installed under the pavement of the
street, under the sidewalk, or other paved areas; and, when installed in the
nature strip, normally a minimum of six feet from the curb away from the
street. Variations from this procedure must be approved by the city's director
of Development Services prior to initiation, and on a case by case basis.
3.
In any new developments or subdivisions, the
franchisee shall install required equipment to provide future service. The
developer shall be required to give the franchisee reasonable notice of any
construction or development, including a copy of any final plan, and of the particular
date in which open trenching or other facilities shall be available for
franchisee's installation of conduit or cable. Trench costs shall be borne by
the developer, who shall be responsible for the opening and closing of such
trenches. The franchisee will provide cable and active equipment. Upon
request, the franchisee shall also provide specifications to the developer as
needed for trenching or other technical data that may be required. The
franchisee will be responsible for the conduct of the engineering and labor to
put the cable conduit in the trench. If
technical equipment, such as pre-wiring or the distribution system is installed
by the developer, it is the developer's responsibility that such equipment
meets FCC standards. The franchisee will be responsible for pulling in the
cable, and providing the plant electronics and drops to individual dwelling
units, after occupancy.
4.
In those areas and portions of the city where
utility service and/or cable communications facilities are currently located
underground, the franchisee shall be responsible for the undergrounding of its
cable facilities including the performance of all necessary trenching and
backfilling of main line and service trenches and furnishing of any imported
backfill material required.
5.
Previously installed aerial cable shall be
undergrounded in concert, and on a cost‑sharing basis, with utilities
pursuant to the general ordinances of the city or applicable state law, or in
event such action shall be taken by all utilities on a voluntary basis.
6.
Incidental appurtenances such as amplifier
boxes and pedestal‑mounted terminal boxes may be placed above ground, but
shall be of such size and design and shall be so located as not to be unsightly
or hazardous to the public.
H. Street Restoration. Whenever the franchisee
disturbs the surface of any street for any purpose, the franchisee shall
promptly restore the street to at least its prior condition. When any opening
is made by the franchisee in a hard surface pavement in any street, the
franchisee shall promptly refill the opening and restore the surface to a
condition satisfactory to the Development Services Director. If the franchisee fails, after reasonable
notice by the city, to properly restore a street, the city may have the street
repaired, with the cost of such work and repairs paid by the franchisee,
including costs of inspection and supervision.
I.
Relocation. The city shall have the right to require the franchisee to change
the location of any of the franchisee's cable system within the streets when
the public convenience requires such change, and the expense thereof shall be
paid by the franchisee. Should the franchisee fail to remove or relocate any
such facilities by the date established by the city, the city may effect such
removal or relocation, and the expense thereof shall be paid by the franchisee,
including all costs and expenses incurred by the city due to the franchisee's
delay. If the city requires the franchisee to relocate its facilities located
within the streets, the city shall make a reasonable effort to provide the
franchisee with an alternate location within the streets. The franchisee shall
indemnify the city for any damages, claims, additional costs or expenses
against or payable by the city arising out of or resulting, directly or
indirectly, from the franchisee's failure to remove, adjust or relocate any of
its facilities in the streets in a timely manner in accordance with a
relocation schedule furnished the franchisee by the Development Services
Director in writing, unless the franchisee's failure arises directly from the
city's negligence or willful misconduct.
J. System Extension.
1. It is the city's general policy that all
dwelling units in the franchisee's service areas should have equivalent
service availability from the franchisee's cable system(s) under
nondiscriminatory rates and reasonable terms and conditions. The franchisee
shall not arbitrarily refuse to provide cable service to any person within its
franchise area.
2. The
franchisee shall extend residential and institutional service (the latter as
set forth in the franchise award ordinance) to individual dwelling units and
into every new subdivision and/or development. The capacity to provide cable
communications service shall be available to newly constructed structures on
the date of first occupancy. Actual installation of service may be delayed up
to sixty days from first occupancy or until after final grading, whichever is
first. Those new areas having more dwelling units per strand mile of plant than
the number stipulated in the franchise agreement, shall receive residential
service for the normal installation fee. In those areas where the number of
dwelling units per strand mile is less than the number stipulated in the franchise
agreement, the franchisee will provide residential cable service on a pro‑rata
basis, sharing the costs with the potential subscriber s) as determined by a
formulation set forth in the franchise award ordinance.
K. Interconnection. The franchisee may be
required to provide interconnection to other cable systems serving business and
residential areas within the city. This and other possible system
interconnections will be provided by franchisee as set forth in the franchise
agreement.
L. Schedule and As‑Builts.
Prior to beginning any construction, the franchisee shall provide the city with
a construction schedule for work in the streets and/or public ways. When the
franchisee's construction of facilities in the streets and public ways is
completed, the franchisee shall provide the city, upon request therefrom, with
a map showing the location of the installed facility in the streets and public
ways, as built.
M. Changes Required by Public Improvement. The
franchisee at his expense shall protect, support, temporarily disconnect,
relocate or remove any property of the franchisee when required by the council
by reason of traffic conditions, public safety, street vacation, freeway or
street construction; change or establishment of street grade, installation of
sewers, drains, water pipes, power lines, structure or improvements by
governmental agencies whether acting in a governmental or proprietary capacity,
or any other structure of public improvement, including but not limited to
movement of buildings, urban renewal and redevelopment, and any general program
under which the city shall undertake to cause all such properties to be located
beneath the surface of the ground; provided that the franchisee shall in all
cases have the privileges and be under the obligations as to the abandonment of
franchise property in place which are provided in subsection N of this section.
N. Removal or Abandonment of Franchisee
Property.
1.
In the event the use of any of the
franchisee's property is permanently discontinued, or no franchise has been
obtained therefor, upon expiration of or within twelve months after any
termination of a franchise, and subject to applicable federal or state law, the
franchisee shall promptly remove from the streets all property involved, other
than the council may, at its sole option, permit to be abandoned in place.
2.
A permit to abandon in place must be obtained
from the city's director of Development Services. Nothing hereunder shall be
deemed as taking of the property of the franchisee, and the franchisee shall be
entitled to no surcharge by reason of anything hereunder.
3.
Any property of the franchisee remaining in
place one hundred and twenty days after termination or expiration of the
franchise shall be considered permanently abandoned. The city's director
Development Services may extend such time in thirty‑day increments not to
exceed two such extensions, or a total of one hundred and eighty days.
4.
The franchisee's property to be abandoned in
place shall be abandoned in such a manner as the council shall prescribe. Upon
abandonment of any franchise property in place, the franchisee shall submit to
the council an instrument, satisfactory to the city attorney, transferring to
the city the ownership of such property.
(Ord. 3492,
2013; Ord. 2931 §7, 1995).
5.80.080 System maintenance.
A.
General. Throughout the life of franchise, and in addition to other service
regulations adopted by council, and excepting circumstances beyond franchisee's
control, such as acts of God, riots and civil disturbances, and in providing
the foregoing services, a franchisee shall maintain all parts of its system in
good operating condition. The system must serve individual residents, but also
serve as a broad based communications source for city government, other public
facilities including hospitals, public libraries, schools, and
industrial/commercial business users.
B. Quality Control. The franchisee's cable
system(s) constructed or erected and operated under the franchise shall be of
good quality and workmanship and shall be maintained in good repair and
efficiency. The franchisee shall install and maintain its cable system in
accordance with the requirements of the National Electric Safety Code, and in
such manner that the cable system shall not interfere with any installations of
the city or any public utility or telecommunications utility, or any
franchisee, licensee or permittee of the city. The city shall have the right to
inspect any construction or installation work performed under the franchise,
and to make such tests as it deems necessary to ensure compliance with the
terms thereof and the provisions of applicable law, rules and regulations.
C. Corrective Maintenance. The franchisee's
corrective maintenance program shall render efficient corrective service, make
repairs promptly, and interrupt subscriber service only for good cause and for
the shortest possible time. Such interruptions shall be proceeded by notice
where practicable and shall occur during a period of minimum use of the system
if feasible. A written log shall be maintained of all service interruptions.
The log shall reflect the date, time, duration and reason for each service
interruption. The record of the log shall be kept on file for a minimum of
three years.
D. Proof‑of‑Performance. The
franchisee shall comply with FCC Rules and Regulations, Part 76, Subpart K
(Technical Standards), now in effect or as may be amended from time to time.
The city reserves the right to periodically conduct technical performance and
compliance tests and inspections of the franchisee's cable system(s); however,
not more frequently than annually unless the city, at its sole discretion, has
reason to suspect some noncompliance with the provisions of the franchise. The
franchisee shall retain on file at its offices within the city, for a minimum
of thirty‑six months immediately following the production thereof, and
make available for inspection by the city upon request, copies of all systems
proof‑of‑performance tests results, system cumulative leakage index
tests results, systems outage logs, customer service complaint logs, and other
files as may be necessary to verify compliance with the provisions of the
franchise. The franchisee will cooperate with the city in the performance of
all such tests and inspections. (Ord. 2931 §8, 1995).
5.80.090 Tree
trimming. Upon obtaining a written permit from
the city forester, the franchisee may prune or cause to be pruned, using proper
arboricultural practices in accordance with such permit, any tree in or
overhanging the streets or public ways which interferes with the franchisee's
cable system. Except in emergencies, the franchisee may not prune trees at a
point below thirty feet above the sidewalk grade until one week after written
notice has been given to the owner or occupant of the premises abutting the
street or public way in or over which the tree is growing. For purposes of this
section, emergencies exist when it is necessary to prune to protect the public
from imminent danger. The owner or occupant shall have seven days from receipt
of the franchisee's notice to prune such tree at his or her own expense. If the
owner or occupant fails to do so, the franchisee may prune such tree at its
own expense. The city forester may at his or her discretion, waive the
notification or permit process in the case of single trees, if the franchisee
adequately demonstrates to the city forester's satisfaction the ability to
consistently apply proper arboricultural practices to the pruning of trees.
Before any tree trimming permit may be issued, any contractor to be used by the
franchisee shall be subject to the approval of the city forester. The city
forester shall have the discretion to cancel the permit if, at any time, the
franchisee or its agents, fails to use proper arboricultural practices. (Ord.
2931 §9, 1995).
5.80.100 Safety.
The franchisee shall provide and put in use such equipment and appliances as
shall control on a closed circuit basis and effectually carry all electric
currents and the franchisee's television and other system signal impulses in a
manner so as to prevent injury to the wires, structures and property belonging
to the city or to any person within the city. The franchisee shall at all times
employ the standard of care attendant to the risks involved and shall install
and maintain in use commonly accepted methods and devices for keeping and maintaining
in a safe, suitable, substantial condition and in good order and repair, all
its structures, lines, equipment and connections in, over, under and upon the
streets, sidewalks, alleys and public ways or places of the city wherever
situated or located so as to prevent failures and accidents which are likely
to cause damage, injury or nuisance to the public or to employees of the
franchisee. The franchisee, at its own expense, shall repair, renew, change
and improve its cable system from time to time as may be necessary to
accomplish these purposes. (Ord. 2931 §10, 1995).
5.80.110 Service
availability. After the franchisee shall have established
service pursuant to a franchise in any area of the city, service to such area
shall not be suspended or abandoned unless such suspension or abandonment be
authorized or ordered by council, provided such authorization or order is not
to be unreasonably withheld. (Ord. 2931 §11, 1995).
5.80.120 System
basic capabilities.
A.
Minimum Capacity and Capability. The system should have a minimum capacity of
downstream video channels as set forth in the franchise award ordinance, and
have two‑way operational capability, the latter to be activated on a
selective basis when technically and economically feasible, or as otherwise
mutually agreed upon by the city and the franchisee.
B. Emergency Override. The franchisee may, in
its franchise agreement, be required to design, construct and maintain the
system in manner to provide for restricted audio and/or video override of all
video channels during emergencies. If an override capability is stipulated in
the franchise agreement, the system shall include a squeal alert tone to
precede the verbal and/or video messages. If a video override capability is
provided, the system shall include a character generator for delivery of emergency messages to the communicatively handicapped.
C. Emergency Power. Emergency power sources shall
be provided at the headend, network distribution center, satellite earth
station, processing hubs and other system locations as may be necessary to
guarantee that in the event of a power failure on any part of the system,
service will be maintained on the rest of the system. (Ord. 2931 §12, 1995).
5.80.130 Subscriber
service.
A.
Business Office. The franchisee shall maintain a conveniently located business
office and service center within the city with toll free telephone numbers so
that subscribers may report service outages or deficiencies at any time. The
office shall maintain an adequate staff such that subscribers may transact all
necessary business, including payment of bills, during regular business hours.
The franchisee's employees shall maintain a high standard of courtesy in
customer relations at all times.
B. Continuity of Service. In the event the
franchisee elects to rebuild, upgrade, modify or sell the system, or the city
revokes or fails to renew the franchise, the franchisee shall take all
reasonable efforts to ensure that all subscribers receive continuous,
uninterrupted service in accordance with the provisions of this chapter and the
franchise agreement. (Ord. 2931 §13, 1995).
5.80.140 Equal opportunity, affirmative action and nondiscrimination.
A.
Equal Employment Opportunity. Throughout the term of the franchise, the
franchisee shall fully comply with the equal employment opportunity requirements
of federal, state and local law, including FCC rules and regulations relating thereto.
Upon request by the city, the franchisee shall furnish the city a copy of the
franchisee's annual statistical report filed with the FCC, along with proof of
the franchisee's annual certification of compliance. The franchisee shall immediately
notify the city in the event the franchisee is at any time determined not to be
in compliance with FCC rules or regulations.
B. Affirmative Action. The franchisee shall
carry out its equal employment policy by making a determined and
good‑faith
effort at affirmative action to employ and advance in employment women,
minorities and the physically and mentally handicapped.
C. Nondiscrimination. It shall be the right of
all subscribers to receive all available services insofar as their financial
and other obligations to the franchisee are honored. The franchisee shall not
deny cable service, or otherwise discriminate against subscribers, programmers
or any other persons on the basis of race, color, religion, age, sex, marital
or economic status, national origin, sexual orientation, physical or mental
disability or geographical location. Neither the city nor the franchisee
shall, as to rates, charges, service, service facilities, rules, regulations or
in any other respect, make or grant any preference
or advantage to any person, nor subject any person to prejudice or disadvantage. The franchisee shall comply at all
times with all other applicable federal, state or local laws, rules and
regulations relating to nondiscrimination. (Ord. 2931 §14, 1995).
5.80.150 Access services.
A.
Access Authority. The franchisee shall provide the city public, educational and
government (PEG) access support and services, and leased access services, in
accordance with public law, the provisions of this section and the franchise
award ordinance.
B. Shared
Usage. The city agrees to share the use of the franchisee's existing PEG access
channels insofar as reasonably possible; however, reserves the right to require
dedicated and additional PEG access channels and facilities as specified herein
below.
C. Access Programming Providers. The city may
designate PEG access providers, including itself for government access
purposes, to control and manage the use of any or all access facilities and
channels provided by the franchisee under the franchise, including
responsibility for operating and managing such access facilities and channels.
The franchisee shall cooperate with the designated PEG access providers in the use
of the access facilities and channels for the provision of PEG access. A
nonprofit corporation or other agency may be used for the purpose, inter alia,
of promoting and administering all public access channels except as may be
preempted by the city council, state or federal authorities. Subject to the
approval of the city, the franchisee shall enter into such operating agreements
with the designated PEG access providers as may be necessary to facilitate,
support and coordinate the provision of PEG access; provided, that all such
operating agreements shall not be inconsistent with the terms of the franchise.
D.
Signal Quality Control. The franchisee shall provide, install, operate,
maintain and replace plant, including headend equipment as necessary to ensure
that the cable system will adequately support any and all cable access
applications, including two‑way communications, required by the
franchise. The franchisee shall maintain all upstream and downstream access
channels and interconnections of access channels at the same level of technical
quality and reliability required by the franchise, and all other applicable
laws, rules and regulations, for residential subscriber channels. In the event
the franchisee makes any change in the cable system and related equipment and
facilities or in the franchisee's signal delivery technology, which directly
or indirectly substantially affects the signal quality or transmission of
access programming, the franchisee shall at its own expense take necessary
technical steps or provide necessary assistance, including the acquisition of all
necessary equipment, to ensure that the capabilities of access providers or
other users are not diminished or adversely affected by such change.
E. Schools. All public and private schools and
colleges within the city area served by the franchisee's system s) with an
enrollment of fifty or more students, will be provided free basic connection
with up to three drops and up to three outlets per drop and free basic service,
at the highest basic (non‑premium) tier level, for education purposes,
except, however, such users shall be responsible for converters in the same
manner as subscribers. Chosen drop locations should be at reasonably accessible
locations. Any additional drops and outlets will be paid for by the user on a
time and materials cost basis. The school will provide whatever easements may
be necessary for the franchisee to provide such service.
F. Remote Origination. The franchisee shall
provide for PEG access usage, within ninety days following written request by
the city, hardwired programming origination points, upstream and downstream
access channel(s) capacity, and requisite headend switching capability for
activation and support of the remote origination needs of PEG users. Such
installations and capabilities to be provided by the franchisee on an actual
installation time and materials costs basis, to be defrayed by the requesting
organization or agency, with no allocation of costs for previously activated
upstream plant. The franchisee shall provide a good faith estimate of costs in
a timely manner.
G. Good Faith Negotiation of Future Support.
When requested by the city, pursuant to the determination by the city council
of a bona fide community need for public, educational and/or government access
services or facilities above and beyond those set forth in the franchise agreement,
the franchisee shall meet and negotiate in good faith with the city, the
provision and support of such cable related access need or interest, in full
compliance with the specifications and intent of the Federal Cable Franchise
Policy and Communications Act of 1984, as set forth in that Act and the House
Committee on Energy and Commerce Report, No. 98‑934, on that Act, and the
Federal Cable Television Consumer Protection and Competition Act of 1992. The
city shall not be unreasonable in its determination of such access needs and
interests, and the city's determination shall include consideration of the
cost to the franchisee for such provision and support, in accordance with the
pertinent provisions of the Cable Acts of 1984 and 1992. Therefore, the council
in determination of such needs and interests, shall hold a well noticed public
hearing to determine whether an access service or facility is required to
satisfy any particular cable‑related need or interest of the community.
The franchisee shall be provided full opportunity to present factual showings
regarding its position as to the need for such service or facility, and any
other relevant information, including the potential impact of the cost
associated with the provision of same.
H. Indemnification. PEG access users shall
utilize the system at their own risk, and shall indemnify the franchisee
against any claims arising from their usage of systems capacity for access
applications, with the exception of such claims as may arise from damages
attributable to fault, oversight, omission, etc., associated with the
franchisee's responsibilities under the franchise.
I. Access Programming Placement. All
downstream PEG access channels provided residential subscribers under the
franchise shall be included by the franchisee, without limitation, as a part of
each and every tier, subtier, package, combination or other grouping of the
franchisee's basic cable service.
J. Leased Access. The franchisee shall meet the
leased access channels requirements imposed by federal law at reasonable rates.
(Ord. 2931 §15, 1995).
5.80.160 Privacy,
private property and subscriber lists.
A.
Privacy. A franchisee shall not violate any subscriber's privacy rights that exist
pursuant to either federal or Montana law. The franchisee and the city shall
maintain constant vigilance with regard to possible abuses of the right of
privacy or other human rights of any subscriber, programmer or any other
person resulting from any personnel action, device or signal associated with
the cable system. The franchisee shall not place in the residence, building,
structure or any facility of any subscriber any equipment capable of two‑way
communications without the written consent of the subscriber and residents,
revocable at the discretion of the subscriber and residents, and shall not use
the two‑way communications capability of the system for unauthorized or
illegal subscriber surveillance of any kind. For purposes of this section, tenants
who occupy premises shall be deemed to be subscribers, regardless of who
actually pays for the service. Written consent, as required herein, shall not
be required of any subscriber by the franchisee as condition of receiving cable
services.
B. Private Property. The franchisee shall not
install or attach any of its facilities to any residence or other property
without first securing the written permission of the owner or tenant of any
property involved, except where there is an existing utility easement reserved
by the plat or other conveyance. Nothing herein, however, shall excuse the
franchisee from obtaining permission from anyone who has the right to approve
or disapprove the attachment. If such permission or easement is later revoked,
whether by the original or a subsequent owner or tenant, the franchisee, on the
owner's request, shall promptly remove its facilities and promptly restore the
property to its original condition. The franchisee shall perform all such
installations and removals in workmanship‑like manner and shall be
responsible for any damage to residences or other property caused by the
installation or the removal.
C. Subscriber Lists. The franchisee shall not
sell, or otherwise make available, lists of the names, addresses and/or telephone
numbers of its subscribers, or any list which identifies the viewing habits by
the name of any subscriber, or any personalized data pertaining to a
subscriber's use of any of the franchisee's cable services by the name of any
subscriber, without the written, expressed consent of the subscriber to which
the personalized data pertains, except as otherwise expressly authorized by
federal law. For purposes of this section, "personalized data" means
the name and address or other information regarding an individual subscriber,
which is associated with or extracted from data obtained from the subscriber's
use of the franchisee's cable service. The franchisee shall be subject to the
provisions of federal, state and local law regarding the limitations on the
franchisee's collection and use of personally identifiable information, and
other issues involving the protection of subscriber privacy. (Ord. 2931 §16,
1995).
5.80.170 Rates and charges.
A.
Authority. Subject to any applicable federal or state or local law, the franchisee
shall charge its subscribers and users the service rates and charges approved
by the city council. The franchisee's service rates, fees and charges shall be
established and controlled in accordance with FCC rules and regulations adopted
for implementation of the rate regulation provisions of the Cable Television
Consumer Protection and Competition Act of 1992 (P.L. 102‑385).
B. Nonpreemption of Lawful Rights. The
provisions of this section shall not preempt or abrogate any right of either
the city or the franchisee under federal or state law.
C. Nondiscrimination in Service Charges. All
the franchisee rates and charges shall be published and nondiscriminatory as
to all persons and organizations of similar classes, under similar circumstances
and conditions. The franchisee shall establish similar rates and charges for
all subscribers receiving similar services, regardless of race, color,
religion, age, sex, marital or economic status, national origin, sexual
orientation, physical or mental disability or geographic location within the
franchisee's franchise area. Nothing in this section shall be construed to
prohibit:
1. The
temporary reduction or waiving of rates and charges in conjunction with promotional campaigns; or
2. The franchisee from establishing
separate rates for separate classes of subscribers, including the offering of
reasonable discounts to senior citizens and discounts to economically
disadvantaged citizens; or
3. The
franchisee from charging installation fees which reflect the increased cost of
providing service to isolated or sparsely populated areas.
D. Schedule of Rates and Charges. Throughout
the term of the franchise, the franchisee shall maintain on file with the city
a complete schedule of applicable rates and charges for cable services provided
under the franchise, in a form satisfactory to the city. Nothing in this
section shall be construed to require the franchisee to file rates and charges
under temporary reductions or waivers of rates and charges in conjunction with
promotional campaigns. No rate or charge shall be considered temporary if
subscribers have the ability over a period greater than four consecutive
months, or such other period as may be approved by the city, to purchase cable
services at such rate or charge.
E. Leased Access Rates and Charges. The
franchisee shall provide a complete schedule, in a form satisfactory to the
city, of rates and charges for any and all leased access channels, or portions
of such channels, provided by the franchisee. The schedule shall include a
description of the price, terms and conditions established by the franchisee
for leased access channels.
F. Notice of Rates and Charges Increase. The
franchisee shall provide written notice to the city and subscribers at least
thirty days in advance of any increase in rates and charges under this section.
Notice to the city of increases in rates and charges shall be filed in a form
satisfactory under subsection D of this section.
G. Hearing Impaired. To the extent authorized
by law, the city reserves the right to require and regulate the installation or
rental of equipment which facilitates the reception of cable service by hearing
impaired individuals.
H. Service Downgrade Charges. The franchisee
shall not impose any service downgrade charges, unless:
1. The subscriber has been notified, at
the time of initiating cable services and periodically thereafter, of the
franchisee's downgrade charges; and
2. Such
charges do not exceed the franchisee's actual direct and incremental costs of
performing the downgrade; and
3. The
downgrade is from a level of service which the subscriber has not maintained
continuously for six months immediately preceding the date of the downgrade
request.
I. Service Disconnection Charges. The franchisee
shall not impose charges for disconnection of cable service, nor may
the franchisee impose any rate, charge or other financial liability upon any
subscriber for cable services delivered after the date of a voluntary disconnection
request.
J. Adoption of Regulations. The city reserves
the right to adopt other lawful regulations governing the franchisee's
collection of advance charges and deposits, installation and reconnection
charges, disconnection charges, late payment and other administrative and
billing charges, upgrade and downgrade charges, the availability of refunds and
other franchisee policies and procedures insofar as such policies and
procedures substantially relate to the franchisee's subscribers or the city,
and not with respect to the internal policies and procedures of the franchisee
that do not have such an effect. (Ord. 2931 §17, 1995) .
5.80.180 Franchise
fee.
A.
Percentage. In consideration of the granting and exercise of a franchise to
use city streets and public ways for the operation of a cable communications
system, and as compensation for such benefits and privileges under the
franchise, the franchisee shall pay to the city during the life of the
franchise, a franchise fee not to exceed five percent of the franchisee's
annual gross revenues as defined in Section 5.80.030.
B. Schedule and Supporting Data. The franchise
fee payments shall be made to the city clerk each fiscal quarter based on
estimated revenues with a final fiscal year payment to be submitted, with an
audited annual financial statement for the franchisee and parent companies
(including statements of income, balance sheets, and statements of sources and
applications of funds), within forty‑five days of the end of the
franchisee's fiscal year, reflecting any adjustments of the quarterly estimated
payments. Payments not received within forty‑five days from the quarter
ending date shall be assessed interest compounded at the rate of one percent
per month from the due date.
C. Other Material Information. Each such payment
shall be accompanied by a statement, in duplicate, verified by a general
officer or other duly authorized representative of the grantee, showing in such
form and details as the council may require from time to time the facts
material to a determination of the amount due.
D. Certifications and Audits. The requirements
for audited financial information, as stipulated in subsection B of this
section may be met with certified, rather than audited, financial data, unless
the city has reason to doubt such verification. whereupon, the city may require
a third party audit at the franchisee's cost; however, if the audit report
proves to differ from the certified information in question by less than two
percent then the city shall bear the cost of the audit. The city may determine
the scope of audit in each instance. Any such audit shall be conducted in
accordance with generally accepted audit standards.
E. Noninclusion of Additional Commitments. No
term or condition in a franchise shall in any way be interpreted as modifying
or affecting the franchisee's obligation to pay franchise fees. Although the
total sum of franchise fee payments and additional commitments set forth in a
franchise agreement may total more than five percent of the franchisee's gross
revenues in any twelve‑month period, such additional commitments are not
to be construed by the franchisee as franchise fees as defined under Section
622 of Title VI of the Communications Act of 1934 as amended, nor are they to
be offset or credited against any franchise fee payments due the city, nor do
they represent an increase in franchise fees to be passed through to
subscribers pursuant to Section 622 (c) of said Act, as amended.
F. Payment in Lieu of. The payment to the city
by the franchisee pursuant to this section for any calendar year shall be in
lieu of any license fee or business tax, prescribed by the city for the same
period, but only to the extent of such payment. (Ord. 2931 §18, 1995).
5.80.190 Indemnification
and insurance.
A.
General Indemnification canon.
1. The
franchisee, by accepting a franchise shall be deemed to have agreed and
covenanted to indemnify, defend and hold the city, its officers, agents and
employees, harmless from any claim for injury, damage, loss, liability, cost or
expense, including court and appeal costs and attorney fees or expenses,
arising from any casualty or accident to person or property, including, without
limitation, copyright infringement, defamation and all other damages arising
out of or by reason of any construction, excavation, operation, maintenance,
reconstruction or any other act done under the franchise, by or for the
franchisee, its agents or its employees, or by reason of any neglect or
omission of the franchisee to keep its system in a safe condition, but not if
arising out of or by reason of any act done by the city or its officers, agents
or employees in the exercise of its emergency override authority under Section
5.80.120(B). The franchisee shall consult and cooperate with the city while
conducting its defense of the city, and the city shall fully cooperate with the
franchisee.
2. The franchisee shall at the sole risk
and expense of the franchisee, upon demand of the city, made by and through the
city attorney, appear in and defend any and all suits, actions or other legal
proceedings, whether judicial, quasi‑judicial, administrative,
legislative or otherwise brought or instituted or had by third persons or duly
constituted authorities, against or affecting the city, its officers, boards,
commissions, agents or employees, and arising out of or pertaining to the
franchisee's construction, operation or maintenance of its cable system.
B.
Public Liability and Property Damage Insurance.
1. The
franchisee shall at all times maintain in full force and effect public
liability and property damage insurance in such form as the city may require,
executed by an insurance company authorized to write the required insurance and
approved by the Insurance Commissioner of the state of Montana, insuring the
payment of any sums which the franchisee or city, its officers, boards,
commissioners, agents and employees may become obligated to pay by reason of
any liability imposed upon them by law for damages or personal injury including
death, demands, actions and suits brought against any of them arising pursuant
to a franchise, or in connection therewith, issued under this chapter.
2. The
insurance shall provide coverage at all times for not less than four hundred
thousand dollars for personal injury to each person, one million dollars
aggregate for each occurrence, and one hundred thousand dollars for each
occurrence involving property damages, plus costs of defense; or a single limit
policy of not less than two million dollars covering all claims per occurrence,
plus costs of defense; the limits of the insurance shall be subject to
statutory changes as to the maximum limits of liability imposed on
municipalities of the state of Montana during the term of the franchise. The
insurance shall be equal to or better than commercial general liability
insurance.
3. The
insurance shall be without prejudice to coverage otherwise existing and shall
name as additional insureds the city and its officers, agents and employees.
Notwithstanding the naming of additional insureds, the insurance shall protect
each insured in the same manner as though a separate policy had been issued to
each, but nothing herein shall operate to increase the insurer's liability as
set forth elsewhere in the policy beyond the amount or amounts for which the
insurer would have been liable if only one person or interest had been named as
insured. The coverag
Business. "Business"
means any and all industries, pursuits, occupations, avocations, professions
and businesses that have annual gross receipts of six thousand ($6,000) dollars
or more. Business carried on in a temporary manner by church, civic or
fraternal organizations for fund raising are exempt. Business also means any
and all rental of office and/or commercial space, wherein office or commercial
space rentals occur regardless of the amount of rent derived from the rental. A
person who is employed by another shall not be deemed a business. Itinerant
vendors, transient vendors, transient merchants and rental of office or
commercial space shall be considered a business for purposes of the ordinance
codified in this chapter, irrespective of their amount of annual gross receipts
Cannabis. A term used in this code
replacing the term marijuana used in state statutes and defined by the State
of Montana (MCA §16-12-102). The term does not include hemp as defined in state
law (MCA § 16-12-102).