Title 8

8.02.010 Authority 7-5-108(1) MCA and 7-4-4202, MCA allow a local government to adopt a code or portions of any code or any amendment by reference, without setting forth the provisions in full. (Ord. 3703, 2022)

8.02.020 Adopted by Reference The Missoula City-County Health Code is adopted by reference, including the following sections:

A. Health Code Administrative Section, except 3(B) Penalties, as approved by the Missoula City-County Health Board (Health Board) on June 21, 2016.

B. Regulation 1 – Wastewater Treatment and Disposal Systems, as approved by the Health Board on September 20, 2018.

C. Regulation 2 – Large Group Function Public Health Permits, as approved by the Health Board on June 21, 2016.

D. Regulation 3 – Solid Waste Management, as approved by the Health Board on March 21, 1996.

E. Regulation 4 – Food Service Establishments, as approved by the Health Board on October 15, 2015.

F. Regulation 5 – Water Well Protection, as approved by the Health Board on October 17, 2013.

G.Regulation 6 – Drop-In Childcare Facilities, as approved by the Health Board on May 17, 2012.

H. Regulation 7 – Rabies Control, as approved by the Health Board on January 21, 2016

I. Regulation 8 – Trailer Courts and Campgrounds, as approved by the Health Board on August 17, 2017.

J. Health Code-Related Fees, as approved by the Health Board on October 21, 2021.

A copy of the current health code shall be available for public inspection at the City-County Health Department and the Missoula City Clerk Office. (Ord. 3703, 2022)

8.02.030 Penalties Pursuant to 7-5-109, MCA, penalties for violations of this chapter include a fine up to $500. Such penalty does not preclude and may be pursued in addition to civil actions seeking injunctive relief to enjoin violations of this chapter. Each day a violation exists constitutes a separate offense. (Ord. 3703, 2022)

Chapter 8.04

HEALTH PROVISIONS GENERALLY

Sections:

8.04.010 General limitations on use of premises.

8.04.020 Agents to disclose owners of premises.

8.04.030 Removal of obnoxious substances.

8.04.040 Removal of dead animals.

8.04.050 Expectoration.

8.04.060 Public urination or defecation.

8.04.070 Public restroom requirements.

8.04.080 Violation.

8.04.010 General limitations on use of premises. No person owning or in possession, charge or control of any building or premises shall use the same, or permit the use of the same or rent the same to be used for any business or employment, or for any purpose, pleasure or recreation, if the use, from its boisterous nature, disturbs or destroys the peace of the neighborhood in which the building or premises are situated, or is dangerous or detrimental to health. (Prior code §15‑1).

8.04.020 Agents to disclose owners of premises. Every agent or other person having charge, control or management, or who collects or receives the rents of any lands, premises or other property in the city, shall disclose the name of the owner of the land, premises or property, or the name of the person for whom the agent or other person is acting, upon application being made therefor by any inspector, agent or officer of the board of health. (Prior code §15‑2).

8.04.030 Removal of obnoxious substances. It is the duty of every contractor, scavenger and person, his agent and employees, who has contracted or undertaken to remove any diseased or dead animal, offal, rubbish, garbage, dirt, street sweepings, night soil or other filthy, offensive or noxious substance, or is engaged about any such removal, or in loading or unloading of any such substance, to do the same with dispatch, and in every particular in a manner as cleanly and free from offense and with as little danger and prejudice to life and health as possible. (Prior code §15‑12) .

8.04.040 Removal of dead animals. Every person having in his possession or control or upon any premises occupied or owned by him any dead animal not proper for food and liable to become noxious and detrimental to health shall cause the same to be at once removed. (Prior code §15‑6).

8.04.050 Expectoration. It is unlawful for any person to expectorate upon any sidewalk, hallway or office or public building, floor or public conveyance or stairway or public or office building in the city. (Prior code §15‑8).

8.04.060 Public urination or defecation. It is unlawful for any person to urinate or defecate in or upon any street, alley or public place except in restroom facilities. Any violation shall be deemed a health hazard and shall be charged as such. (Prior code §15‑14).

8.04.070 Public restroom requirements. Every establishment required by city, county, or state law or regulations to provide restroom facilities for employee or public use shall provide in the restroom hot and cold running water, a dispenser of handwashing soap, a functional toilet, a reasonable supply of toilet paper, and a reasonable supply of

hand drying towels or other hand drying equipment. The restroom shall be maintained on a daily basis so as to provide a reasonably clean facility. (Ord. 1997, 1979).

8.04.080 Violation. Any person who violates, disobeys, omits, neglects or refuses to comply with, or who resists the enforcement of any of the provisions of this chapter, or who refuses or neglects to obey any of the rules, orders or sanitary regulations of the city health officer, or of the sanitary inspector, or of the board of health, or who omits, neglects or refuses to comply therewith, or who resists any officer or order or special regulations of either the city health officer, or the sanitary inspector, or the board of health, where no other penalty is provided, shall be deemed guilty of a violation of the provision of this code. (Ord. 2117 §3(part), 1980; prior code §15‑13).

Chapter 8.08

MILK

Sections:

8.08.010 Limitations on milk sales.

8.08.010 Limitations on milk sales. No person shall within the city or its police jurisdiction produce, sell, offer or expose for sale or have in his possession with intent to sell any raw fluid milk (milk which is unpasteurized) or any milk or milk product which is adulterated, misbranded or ungraded. (Prior code §12‑30).

Chapter 8.12

FOOD PROCESSING ESTABLISHMENTS

Sections:

8.12.010 State regulations adopted‑‑Amendments.

8.12.020 Soft drinks defined.

8.12.030 Bottling license‑‑Application‑‑Required.

8.12.040 Bottling license‑‑Issuance‑‑Fee.

8.12.050 Bottling license‑‑Revocation and appeal‑‑Establishment of additional regulations.

8.12.060 Bottling shop requirements.

8.12.070 Straining, storing and handling of ingredients.

8.12.080 Sterilization and labeling of bottles.

8.12.090 Sterilization of tubing and ingredient containers.

8.12.100 Smoking, expectoration, food and beverage consumption.

8.12.010 State regulations adopted‑‑Amendments. All food processing establishments located within the city shall

comply with A.R.M. (formerly M.A.C.) 16‑2.14(2) ‑ S14211, Sanitary Rule for Food Processing Establishments. Section

16‑2.14(2) ‑ S14211 is adopted with the following specific amendments:

A. The definition of food processing establishment in the definition section, section 2, is amended to provide as

follows:

Food Processing Establishment means a commercial establishment in which food is processed or otherwise prepared and/or packaged for human consumption. This includes food manufacturing establishments, bottling plants, meat markets, bakeries, frozen food plants, commercial food processors or perishable food dealers.

B. Section 4(a)(viii) of A.R.M. 16‑2.14(2) ‑ S14211 is amended to include subsection (a)(viii) as follows:

FOOD PROTECTION:

(a) Temperatures

(viii) Frozen food plants, other food processing establishments in which over one‑half of the food present is stored or held frozen and also those food processing establishments offering frozen food lockers to the public must have, and use, a recording thermometer for each of the compartments used to freeze food or to store frozen food.

C. Section 14 is amended as follows:

Section 14. FLOORS, WALLS AND CEILINGS

repair and kept clean and must also be fire resistant. Carpeting shall not be permitted in food processing, storage, preparation areas, utensil and equipment washing areas or bathrooms.

D. Section 18 is added as follows:

Section 18. All Licensing and Compliance Procedures set forth in Section 36 and Section 37 (as

previously amended) of A.R.M. 16‑2.14(2) ‑ S14215 pertaining to food service establishments are also

requirements for food processing establishments. (Ord. 2119 §8, 1980).

8.12.020 Soft drinks defined.

A. For the purpose of this chapter all soft drinks or other nonalcoholic beverages, except pure, nonalcoholic fruit juices, shall consist of a beverage made from a pure cane or beet sugar syrup containing pure flavoring materials, with or without added fruit acid, with or without added color; provided, that nothing in this chapter shall prohibit the use of any other ingredient or artificial coloring approved by the federal government.

B. The provisions of this section shall apply to nonalcoholic beverages made in imitation of beer, bitter drinks and other similar drinks.

C. All soft drinks or other nonalcoholic beverages not in compliance with the standards established by this

chapter shall be deemed to be adulterated. (Ord. 2119 §1, 1980; prior code §12‑1).

8.12.030 Bottling license‑‑Application‑‑Required information.

A. Licenses to manufacture or bottle any soft drink, as defined by Section 8.12.020, may be granted to any applicant who shall apply to the commissioner of public health and safety for a license so to do.

B. The application may be made by the applicant either for himself or on behalf of any firm or corporation.

C. The application shall clearly state the name and address of the applicant for the firm or corporation in behalf of which such application is made.

D. The application shall further contain a description of the property by street or number wherein or whereon the applicant is conducting or proposing to conduct his principal place of business, and if such principal place of business has no street or number, then such description as will enable the same easily to be found.

E. The application shall also clearly state all facts necessary to assist the commissioner of public health and safety in determining whether the person is competent to properly conduct such manufacturing or bottling business, as well as any facts which may be necessary to aid the commissioner of public health and safety in determining whether or not the plant and the equipment are such that it may be conducted in a sanitary manner. (Prior code §12‑12).

8.12.040 Bottling license‑‑Issuance‑‑Fee. If it appears to the commissioner of public health and safety after due investigation that the applicant is competent to properly conduct the manufacturing or bottling of soft drinks, as described in Section 8.12.020, and that the plant and its equipment are such that the same may be operated in a sanitary manner, the city treasurer shall issue to the applicant a license on the recommendation of the commissioner of public health and safety, upon receipt of the fee prescribed in Chapter 5.04 to conduct or carry on such manufacturing or bottling business. (Prior code §12‑13).

8.12.050 Bottling license‑‑Revocation and appeal‑Establishment of additional regulations. The commissioner of public health and safety has the authority to establish any rules and regulations not inconsistent with the provisions of this chapter providing for the proper maintenance of sanitary conditions of plants and utensils used in the manufacture and bottling of soft drinks, and may revoke or suspend any license issued in accordance with the provisions of this section at any time if it appears to the satisfaction of the commissioner of public health and safety that the manufacturing establishment is not conducted in a sanitary manner, or that any of the rules and regulations, or that any of the provisions of this chapter have been violated; provided, however, that any licensee whose license is so revoked shall be entitled to a hearing before the city council to show cause, if any he has, why his license should not be cancelled. In such case licensee must make written request to the mayor and file the same with the city clerk for a hearing thereon within five days after notice has been received by him that his license has been so cancelled by the commissioner of public health and safety. (Prior code §12‑14).

8.12.060 Bottling shop requirements.

A. Concrete or other similar construction of floors must be maintained in the bottling room, so as to be adequately drained and easily cleaned.

B. All walls and ceilings in the bottling room are to be constructed so as to be hard, smooth and easily cleanable and shall be maintained in a clean and sanitary condition.

C. All syrups must be handled separately from the bottling operation in rooms with walls, floors and ceilings with hard, smooth easily cleaned surfaces and kept thoroughly clean with all outside openings completely screened.

D. All syrups must be handled only in glass enameled tanks, crockery, or stainless steel containers and proper connections must be provided of stainless steel, or food grade plastic or rubber hose feed to the filling machines. The use of copper, galvanized metal, lead and tin hoses, tubing, piping or tanks for syrup or finished soft drinks is expressly prohibited. (Ord. 2119 §2, 1980; prior code §12‑3).

8.12.070 Straining, storing and handling of ingredients. All prepared syrups, flavors, extracts or other liquid beverage ingredients or concentrates used in the manufacture of carbonated or malt beverages shall be strained twice through a screen of twenty‑eight meshes or more, to the inch, or twice through cloth of equal fineness; and, after mixing and straining, shall be kept, until used, in the unopened container in which they are shipped, or in a covered porcelain, glasslined, glazed crockery or stainless steel container. Such containers or receptacles shall be connected to the filling machine and the syrup therefrom transferred to such machine without being handled or exposed to contamination. (Ord. 2119 §3, 1980; prior code §12‑4).

8.12.080 Sterilization and labeling of bottles. Bottles used in the manufacture or bottling of soft drinks must be of glass or foodgrade plastic and uniform. All bottles used in the manufacture of soft drinks or other nonalcoholic beverages designed for a single use shall be protected from contamination prior to being filled. All refillable bottles shall be sanitized by soaking in a hot caustic solution of not less than one hundred twenty degrees Fahrenheit that shall contain not less than four percent caustic alkali expressed in terms of sodium hydroxide for a period of not less than five minutes, then thoroughly rinsed in pure water until free of sodium hydroxide. If mechanical bottle washers are used, same shall be maintained in good operating condition with all spray nozzles being regularly cleaned and functional. Each and every bottle whether single use or refillable shall be distinctly labeled with the true name of the soft drink or other nonalcoholic beverage therein contained, or the name blown in the glass or plastic of the bottle. (Ord. 2119 §4, 1980; prior code §12‑5).

8.12.090 Sterilization of tubing and ingredient containers. All syrup, flavoring extract, concentrate or other

liquid beverage ingredient containers in the manufacture or bottling of soft drinks, and all tubing for the conveyance

of the same shall be sanitized by the use of heat or approved chemicals at effective concentrations not less frequently than

at intervals of five working days, or before each use after a twenty‑four hour interval of disuse or interruption in use. Such containers and tubing shall be clean at all times. (Ord. 2119 S5, 1980; prior code §12‑7).

8.12.100 Smoking, expectoration, food and beverage consumption. No person shall smoke, expectorate or consume food or drink anywhere in any room where water or beverages or beverage ingredients are bottled or handled. (Ord. 2119 §6, 1980; prior code §12‑10).

Chapter 8.16

FOOD SERVICE ESTABLISHMENTS

Sections:

8.16.010 State regulations adopted‑‑Amendments.

8.16.020 Permit requirement‑‑Revocation or suspension.

8.16.030 Grade A restaurant‑‑Sanitation requirement.

8.16.040 Itinerant restaurants‑‑Sanitation requirements.

8.16.050 Itinerant restaurants‑‑Penalties for failure to comply with sanitation requirements.

8.16.010 State regulations adopted‑‑Amendments. All food service establishments located within the city shall comply with the Administrative Regulations of Montana (A.R.M.) as set forth in Section 16‑2.14(2) ‑ S14215 requirements for compliance with Food Service Establishments. Section 16‑2.14 (2) ‑ S14215 is adopted by reference with the following specific amendments:

A. For the purpose of this chapter an additional definition shall be added to the definition section of A.R.M. 16‑214(2) ‑ S14215 as follows:

"Food Service Establishment" means a fixed or mobile restaurant, coffee shop, cafeteria, short order cafe, luncheonette, grill, tearoom, sandwich shop, soda fountain, food store serving food or beverage samples, food or drink vending machine, tavern, bar, cocktail lounge, nightclub, industrial feeding establishment, catering kitchens, commissary, private organization routinely serving the public, or similar place where food or drink is prepared, served or provided to the public with or without charge. The term does not include establishments, vendors, or vending machines which sell or serve only packaged nonperishable foods in their unbroken original containers or a private organization serving food only to its members.

B. Section 3(aa) of definitions of Section 16‑2.14(2) ‑ S14215 (A.R.M.) is amended to read:

"Regulatory Authority" means the Missoula City-County Health Department.

C. Section 36(a) Licenses of A.R.M. 16‑2.14(2) S14215 is amended to read as follows:

No person shall operate a food service establishment who does not have a valid license issued to him by the Montana State Department of Health and Environmental Sciences as well as a valid Missoula City Business License. Only a person operating a food service establishment who complies with the requirements of this ordinance and the provisions of A.R.M. 16‑2.14(2) ‑ S14215 shall be entitled to receive and retain the above licenses.

When a food service establishment changes owners, licenses are not transferable. New owners shall not commence operations until all current health standards have been met and the necessary licenses obtained.

The City Business License of a food service establishment may be revoked, suspended, or cancelled pursuant to the provisions set forth for revocation in the City Business License Chapter.

D. Section 37(a) Inspection Frequency:

Inspections of the food service establishments shall be performed as often as necessary for the enforcement of this ordinance. (Ord. 2119 §7, 1980).

8.16.020 Permit requirement‑‑Revocation or suspension.

It is unlawful for any person to operate a restaurant in the city who does not possess an unrevoked permit from the

health officer. The permit shall be posted in a conspicuous place. Only persons who comply with the requirements of

this chapter shall be entitled to receive and retain a permit. Such a permit may be temporarily suspended by the health

officer upon the violation by the holder of any of the terms of this chapter or revoked after an opportunity for a hearing

by the health officer. (Prior code §12‑16).

8.16.030 Grade A restaurant‑‑Sanitation requirement. All grade A restaurants shall comply with all of the following items of sanitation:

A. Cleaning and Bactericidal Treatment of Utensils and Equipment. All equipment, including display cases or

windows, counters, shelves, tables, refrigerators, stoves, hoods and sinks, shall be kept clean and free from dust,

dirt, insects and other contaminating material. All cloths used by waiters, chefs and other employees shall be clean.

Single‑service containers shall be used only once. All multiuse eating and drinking utensils shall be thoroughly

cleaned and effectively subjected to an approved bactericidal process after each usage. All multiuse utensils used in the

preparation or serving of food and drink shall be thoroughly cleaned and effectively subjected to an approved batericidal

process immediately following the day's operation. Drying cloths, if used, shall be clean and shall be used for no

other purpose. No article, polish or other substance containing any cyanide preparation or other poisonous material

shall be used for the cleaning or polishing of utensils.

B. Cleanliness of Employees. Wearing apparel of all employees shall be clean and all employees shall keep their hands and arms clean at all times while engaged in handling food, drink, utensils or equipment and shall use all precautions to prevent hair from getting into food. Employees shall not expectorate or use tobacco in any form in rooms in which food is prepared, stored or served or in which utensils are washed.

C. Construction of Utensils and Equipment. All multiuse utensils and all show and display cases or windows, counters, shelves, tables, refrigerating equipment, sinks and other equipment or utensils used in connection with the operation of a restaurant shall be so constructed as to be easily cleaned and shall be kept in good repair. Utensils having contact surfaces which are attacked and dissolved by food or drink shall not be used in connection with the preparation or storage of such food or drink.

D. Disposal of Wastes. All wastes shall be properly disposed of and all garbage and trash shall be kept in suitable receptacles, in such manner as not to become a nuisance or a menace to health.

E. Doors and Windows. Where flies are prevalent, all openings into the outer air shall be effectively screened and doors shall be self‑closing, and close‑fitting, unless other effective means are provided to prevent the entrance of flies.

F. Floors. The floors of all rooms in which food or drink is stored, prepared or served, or in which utensils are washed, shall be of such construction as to be easily cleaned, shall be smooth and shall be kept clean and in good repair.

G. Lavatory Facilities. Adequate and convenient hand washing facilities shall be provided, including hot and

cold running water under pressure, soap and approved sanitary towels. The use of a common towel is prohibited. No

employee shall resume work after using the toilet room without first washing his hands. Lavatory facilities shall be kept

clean and in good repair. In no case shall hand washing be permitted over a sink used for the preparation of food

or for the washing of utensils.

H. Lighting. All rooms in which food or drink is stored or prepared, or in which utensils are washed shall be well lighted.

I. Miscellaneous. The premises of all restaurants shall be kept clean and free of litter or rubbish. None of the operations connected with a restaurant shall be conducted in any room used as living or sleeping quarters. Adequate lockers or dressing rooms shall be provided for employees' clothing and shall be kept clean. Soiled linens, coats and aprons shall be kept in containers provided for that purpose.

J. Refrigeration. All readily perishable food and drink shall be kept at or below forty‑five degrees Fahrenheit except when being prepared or served. Wastepaper from refrigeration equipment shall be properly disposed of.

K. Storage, Display and Serving of Food and Drink. All food and drink shall be so stored, displayed and served

as to be protected from dust, flies, vermin, depredation and pollution by rodents, unnecessary handling, droplet infection,

overhead leakage or condensation and other contamination. No live animals or fowl shall be kept or allowed in any room

in which food or drink is prepared, stored or served. All means necessary for the elimination of flies, roaches and

rodents shall be used.

L. Storage and Handling of Utensils and Equipment. After bactericidal treatment utensils shall be stored in a clean dry place protected from flies, dust and other contamination, and shall be handled in such a manner as to prevent contamination. Single‑service utensils shall be purchased only in sanitary containers, shall be stored therein in a clean, dry place until used and shall be handled in a manner which will provide protection from flies, dust or other contamination.

M. Toilet Facilities. Every restaurant shall be provided with adequate and conveniently located toilet facilities for its employees, conforming with the ordinances of the city. Toilet rooms shall not open directly into any room

in which food, drink or utensils are handled or stored. The doors of all toilet rooms shall be self‑closing. Toilet

rooms shall be kept in a clean condition, in good repair and well lighted and ventilated. Hand washing signs shall be

posted in each room used by employees.

N. Ventilation. All rooms in which food or drink is stored, prepared or served or in which utensils are washed shall be well ventilated.

O. Walls and Ceilings. Walls and ceilings of all rooms shall be kept clean and in good repair. All walls and ceilings of rooms in which food or drink is stored or prepared shall be finished in light color. The walls of all rooms in which food or drink is prepared or utensils are washed shall have a smooth, washable surface up to the level reached by splash or spray.

P. Water Supply. Running water under pressure shall be easily accessible to all rooms in which food is prepared or served or utensils are washed and the water supply shall be adequate and of a safe sanitary quality.

Q. Wholesomeness of Food and Drink. All food drink shall be clean, wholesome, free from spoilage and so

prepared as to be safe for human consumption. All milk, milk products, ice cream and other frozen desserts served

shall be from approved sources. Milk and fluid milk products shall be served in the original individual containers in which

they were received from the distributor or from a bulk container equipped with an approved dispensing device; provided,

that this requirement shall not apply to cream, which may be served from the original bottle or from a dispenser approved

for such service. All oysters, clams and mussels shall be from approved sources, and if shucked shall be kept until

used in the containers in which they were placed in the plant at which they were originally shucked. Ice used in or with

food or drink shall be from a source approved by the state sanitary engineer and so handled as to avoid contamination.

(Ord. 2388, 1984; prior code §12‑17).

8.16.040 Itinerant restaurants‑‑Sanitation requirements. The health officer should approve an itinerant restaurant only if it complies with the following sanitation requirements:

A. It shall be located in clean surroundings and kept in a clean and sanitary condition.

B. It shall be so constructed and arranged that food, drink, utensils and equipment will not be exposed to insects or to dust or other contamination.

C. Only food and drink which is clean, wholesome and free from adulteration shall be sold or served.

D. An adequate supply of water of safe sanitary quality shall be easily available and used for drinking and for cleaning utensils and equipment.

E. If multiuse utensils are used in the serving of food or drink, they shall be thoroughly washed with hot water and a satisfactory detergent and effectively subjected to an approved bactericidal process after each use and so handled and kept as to be protected from contamination.

F. Adequate provision shall be made for refrigeration of perishable food and drink. Ice used in or with food or drink shall be from a source approved by the state sanitary engineer and so handled as to avoid contamination.

G. Garbage and refuse shall be kept in tightly covered, watertight containers until removed and shall be disposed of in a place and manner approved by the health officer. Dishwater and other liquid wastes shall be so disposed of as not to create a nuisance.

H. No person suffering from any disease transmissable by contact or through food or drink who is a carrier of the germs of such a disease shall be employed in any capacity. Adequate and satisfactory toilet and hand washing facilities shall be readily accessible to employees. No person engaged in the handling or serving of food or drink shall return to his work, after using the toilet, without first thoroughly washing his hands. (Prior code §12‑21).

8.16.050 Itinerant restaurants‑‑Penalties for failure to comply with sanitation requirements. Upon failure of any person maintaining or operating an itinerant restaurant, after warning, to comply with any of the requirements of Section 8.16.070, it shall be the duty of the health officer summarily to forbid the further sale or serving of food or drink therein. Any person continuing to sell or serve food or drink in such a restaurant after being so forbidden, shall be subject to the penalties provided for violation of this chapter. (Prior code §12‑22).

Chapter 8.18

PUBLIC MARKETS

Sections:

8.18.010 Definitions

8.18.020 Established.

8.18.030 Commodities to be sold.

8.18.040 Public Markets to be established by resolution

8.18.050 Days open and boundaries.

8.18.060 Hours of operation.

8.18.070 Months of operation.

8.18.080 Health department supervision.

8.18.090 Compliance with Business Licensing provisions

8.18.100 Animals Prohibited

8.18.110 Exclusions

8.18.120 Public Market by‑laws to be filed with city clerk.

8.18.130 Revocation.

8.18.010 Definitions A Public Market is generally described as an open space, public or private, or a building with tables, booths and stalls for the various sellers where there is a gathering of people for the purpose of buying and selling:

A. raw and unprocessed farm products, baked goods, preserves produced or grown in Montana which are sold by the grower or producer at a “Farmer’s Market” approved pursuant to MCA 50-50-102; and/or

B. meat, poultry, fish and dairy products produced or grown in Montana and sold by persons properly licensed pursuant to MCA 50-50-201; and/or

C. ready to eat food or salt water fish sold by persons properly licensed pursuant to MCA 50-50-201; and/or

D. arts, crafts, handcrafted, sewn or other products made or imported through the personal labor of the vendor or the vendor’s representative. The vendor and their representative must reside within Montana.

If a Public Market wishes to sell certain foods as specified by Title 50, Chapter 50, Part 1, (MCA) of the Montana Code annotated, which currently includes baked goods and preserves, that market must be specifically designated as a Farmers Market in the enabling Resolution and must comply with the provisions of Title 50, Chapter 50, Parts 1 and 2, as well as all other state or local laws.

If a Public Market is not designated or authorized as a Farmers Market, it may only sell food items by food vendors licensed pursuant to Title 50, Chapter 50.

(Ord. 3485, 2014)

8.18.020 Established.

A. Public markets may be established in the city limits, within the following zoning districts: CBD-4, C1-4, C1-4, C2-4, M1R-2, M1-2, and M2-4 or in a specifically designed or designated city park as authorized by the city council.

B. A Public market may not be established in any manner that impedes or impairs emergency response service ingress and egress, or impedes or impairs any emergency response service access to any fire hydrant or building. No Public market vendor or any vehicle shall be located within fifteen feet (15’) of any fire hydrant.

C. A Public Market may not be established or allowed to operate on or within the public right-of-way of any federal or state highway route or any main arterial streets within the City limits.

(Ord. 3485, 2014)

8.18.030 Commodities to be sold. The commodities sold at a Public Market established pursuant to this chapter shall include, but are not limited to, farm and garden produce, meat, poultry, fish, dairy products, baked goods, preserves, arts, crafts, handcrafted, or sewn products. Any commodity offered for sale at any public market must be approved for sale at any table, booth or stall pursuant to the adopted by‑laws for the specific Public Market and also must comply with state and local laws.

(Ord. 3485, 2014)

8.18.040 Public markets to be established by resolution.

A. A Public Market may only be established and authorized by Resolution. Any person or entity desiring to establish a Public Market shall request an enabling resolution from the city council stipulating the purpose, boundary, type, days and hours of operation of the Public Market, and whether the Public Market shall be designated as an authorized Farmers Market.

B. All Public Markets properly adopted by Resolution of the City Council prior to October 1, 2012 shall be deemed and recognized as authorized Public Markets.

(Ord. 3485, 2014)

8.18.050 Days open and boundaries.

A. Public Markets shall be open only on the days designated by the city council.

B. Pursuant to the street vendors chapter in Title 5, Chapter 56 of the Missoula Municipal code, during the hours of operation of any city approved Public Market, no street vending operations on public property or public right-of-way may conduct business within a minimum of three hundred feet (300’) of a Public Market boundary, and as specified in the resolution creating the Public Market unless operating as part of another city approved Public Market. Participating members of any Public Market must keep their vending operations within the city council approved boundaries of the Public Market during the operating hours of the Public Market.

(Ord. 3485, 2014)

8.18.060 Hours of operation. Public Markets located on public open space or public right-of-way may only operate within the hours designated by the City Council. Public Markets located in a building shall operate for a maximum of 4 hours three days a week during any months of the year, or as designated by City Council.

(Ord. 3485, 2014)

8.18.070 Months of Operation.

All Public Markets located on public open space or public right-of-way shall operate only during the months of May, June, July, August, September and October of each year. Public Markets located in a building shall operate only in the months as designated by City Council.

(Ord. 3485, 2014)

8.18.080 Health department supervision.

A. Each Public Market and each individual stand or booth selling produce, baked goods, preserves, meat, poultry, fish, dairy products or any other commodity that may be a health concern shall operate according to the rules and regulations of the City of Missoula, the Missoula City-County Health Code, Missoula City-County Health Department and the State of Montana, specifically including, but not limited to, Title 50, Section 50, Parts 1 and 2 of the Montana Code Annotated. Each individual stand or booth selling food or drink shall be required to obtain any permit or approval from the city-county health department which is required by State law, the Missoula City-County Health Code or City Ordinance. . The operation of any individual stand or booth shall be subject to regulatory compliance or closure by the city-county health department in the event of a violation, and the health department shall be empowered to suspend any of its permits already issued until the violation is corrected.

B. All food and beverage products must be properly handled and stored. No food or beverage products shall be left in an individual stand or booth overnight.

(Ord. 3485, 2014)

8.18.090 Compliance with Business Licensing Provisions. Each Public Market and each individual stand or booth selling any commodity shall comply with all applicable Business Licensing provisions set forth in the Missoula Municipal Code including, but not limited to, Chapter 5.08 and 5.56.

(Ord. 3485, 2014)

8.18.100 Animals Prohibited. Cats, dogs and other animals shall not be permitted within the boundaries of any Public Market, unless the animal is a service animal as defined by §6.07.020(E) of the Missoula Municipal Code. All animals, except a service animal, should be prohibited from coming within 15 feet of the boundaries of a Public Market.

(Ord. 3485, 2014)

8.18.110 Exclusions.

A. This ordinance shall not apply to any temporary church, civic, fraternal organization or school fund-raising event.

B. This ordinance shall not apply to a market or activity located within the boundaries of the University of Montana and Southgate Mall unless market or activity constitutes a Farmers Market as defined herein.

C. Farmer’s Markets proposed on County owned land shall obtain the local government approval required by Title 50, Chapter 50 MCA) from the Missoula County Commissioners..

(Ord. 3485, 2014)

8.18.120 Public market by‑laws to be filed with city clerk. A current copy of the by‑laws or other operational documents pertaining to the operation of any Public Market shall be placed on file with the city clerk's office and shall be available for public review and inspection. By-Laws must be filed with the city clerk’s office no later than 5 business days after approval of a Resolution authorizing and establishing the Public Market.

(Ord. 3485, 2014)

8.18.130 Revocation. Whenever the city council deems it in the public interest to do so, it may, by resolution adopted by two-thirds vote of all the members of the council, revoke any resolution authorizing and establishing a Public Market under this chapter.

(Ord. 3485, 2014)

Chapter 8.20

Repealed

Sections:

8.20.010 Repealed. (Ord. 3485, 2012; Ord. 3290, 2005; Ord. 3052, 1998; Prior code §9A‑1).

8.20.020 Repealed. (Ord. 3485, 2012; Ord. 3290, 2005; Ord. 2789 §1, 1991; prior code §9A‑2).

8.20.030 Repealed. (Ord. 3485, 2012; Ord. 3290, 2005; Ord. 3066, 1998; Ord. 3052, 1998; Prior code §9A‑14).

8.20.040 Repealed. (Ord. 3485, 2012; Ord. 3290, 2005; Ord. 3052, 1998; Prior code §9A‑3).

8.20.050 Repealed. (Ord. 3485, 2012; Ord. 3290, 2005; Ord. 3052, 1998; Prior. code §9A‑5).

8.20.060 Repealed. (Ord. 3485, 2012; Ord. 3290, 2005; Ord. 2789 §2, 1991).

8.20.070 Repealed. (Ord. 3485, 2012; Ord. 3290, 2005; Ord. 2789 §3, 1991).

Title 8.22

STREET MARKETS

Chapters:

8.22.010 Repealed. (Ord. 3485, 2012; Ord. 3054, 1998)

8.22.020 Repealed. (Ord. 3485, 2012; Ord. 3248 §1, 2004; Ord. 3054, 1998)

8.22.030 Repealed. (Ord. 3485, 2012; Ord. 3068, 1998; Ord. 3054, 1998)

8.22.040 Repealed. (Ord. 3485, 2012; Ord. 3054, 1998)

8.22.050 Repealed. (Ord. 3485, 2012; Ord. 3054, 1998)

8.22.060 Repealed. (Ord. 3485, 2012; Ord. 3054, 1998)

8.22.070 Repealed. (Ord. 3485, 2012; Ord. 3054, 1998)

Chapter 8.28

GARBAGE AND RUBBISH

Sections:

8.28.010 Definitions.

8.28.020 Jurisdiction.

8.28.030 Enforcement authority.

8.28.040 Containers‑‑Zoning permit requirement.

8.28.050 Containers‑‑Commercial.

8.28.060 Containers‑‑Residential.

8.28.070 Containers‑‑Supply and use.

8.28.080 Keeping property and containers clean.

8.28.085 Special provisions for the accumulation and storage of garbage within the Bear Buffer Zone.

8.28.090 Distribution of handbills.

8.28.100 Littering.

8.28.110 Removal of litter at construction and other sites.

8.28.120 Transportation requirements.

8.28.130 Dumping on vacant lots.

8.28.140 Burning and burying garbage.

8.28.150 Violation‑‑Penalty.

8.28.010 Definitions. For the purposes of this chapter, the following words shall have the meanings set out below:

A. "Bear Buffer Zone" means a zone within the City of Missoula limits approved by City Council resolution on advice from the Montana Department of Fish, Wildlife and Parks (FWP). Copies of the map are available from the City/County Animal Control Division, FWP, and the City Mapping and GIS Section.

B. "Bear Resistant Container" means any fully enclosed container with a lid certified by the Interagency Grizzly Bear Committee (IGBC) or approved by FWP. The lid must have a latching mechanism or other device of sufficient design and strength to prevent access of the contents by bears.

C. "Bear Resistant Enclosure" means a fully enclosed structure capable of reliably excluding a bear.

D. "Commercial garbage container" means watertight, insect-proof, durable metal or plastic containers having tight‑fitting lids which are so designed as to be mechanically dumped, and so that they cannot be dumped over by children or animals.

E. "Garbage" means putrescible animal and vegetable wastes resulting from handling, preparation, cooking and consumption of food.

F. "Litter" means any quantity of uncontainerized paper, metal, plastic, glass, or miscellaneous solid waste which may be classed as trash, debris, rubbish, refuse, garbage or junk.

G. Notice. The city shall give "notice" under this chapter by one of the following methods:

1. Delivering written notice at the place of business of the owner through which a rental agreement was made if the property is nonowner occupied;

2. Mailing a written notice by registered or certified mail to the owner, agent, occupant, or lessee at the address held out by him as the place for receipt of communications or, in the absence of such designation, to his last known address;

3. Delivery of written notice by hand to owner, agent, occupant, or lessee.

H. "Person" means an individual, group of individuals, partnership, firm, corporation, association, company, county, city, village, or improvement district.

I. "Private property" includes, but is not limited to, the following exterior locations owned by private individuals, firms, corporations, institutions or organizations: yards, grounds, driveways, entranceways, passageways, parking areas, working areas, storage areas, vacant lots and recreation facilities.

J. “Public property" includes, but is not limited to, the following exterior locations: streets, street medians, roads, road medians, catch basins, sidewalks, strips between streets and sidewalks, lanes, alleys, public rights‑of‑way, public parking lots, school grounds, municipal vacant lots, parks, playgrounds, other publicly owned recreation facilities and municipal waterways and bodies of water.

K. "Refuse" means all putrescible and nonputrescible solid waste except human body wastes, including garbage, rubbish, street cleanings, dead animals, yard clippings, and solid market and solid industrial wastes.

L. Residential Garbage Container. A "residential garbage container" is designed to be emptied manually, shall have a capacity of not less than ten gallons and not more than thirty‑two gallons, and shall have two handles located on opposite sides of the containers, located not lower than twenty‑two inches above the bottom, shall be watertight, insect-proof, have overlapping tight‑fitting lids, and be constructed of durable metal or plastic.

M. "Rubbish" means nonputrescible solid waste consisting of both combustible and noncombustible wastes such as paper, cardboard, abandoned vehicles, tin cans, wood, glass, crockery, lawn clippings, and similar materials. (Ord. 3420, 2010; Ord. 3419, 2010; Ord. 3412, 2009; Ord. 2138 §1, 1980; Ord. 2096 §1, 1979).

8.28.020 Jurisdiction. The provisions of this chapter shall apply to all areas within the city. (Ord. 3420, 2010; Ord. 3419, 2010; Ord. 3412, 2009; Ord. 2096 §2, 1979).

8.28.030 Enforcement authority.

A. The city‑county health department has the primary responsibility for enforcement of all provisions of this chapter. The police department and parking enforcement officers have authority to enforce in their normal course of duty violations of this chapter.

B. The city‑county health officer has primary responsibility to make the determinations required in Sections 8.28.050D, 8.28.080F and 8.28.080G.The city‑county health officer also has authority to enforce all provisions of this chapter within the city.

C. The health officer and chief of police are authorized to delegate enforcement authority to such officers and/or inspectors within the health department or police department as he or she deems appropriate. (Ord. 3420, 2010; Ord. 3419, 2010; Ord. 3412, 2009; Ord. 2475 §1, 1985; Ord. 2096 §13, 1979).

8.28.040 Containers‑‑Zoning permit requirement.

A. A zoning compliance permit shall not be issued for construction of commercial buildings and multiple‑dwelling units until plans for the adequacy, location, and accessibility of garbage and rubbish containers and facilities have been reviewed and approved by the city zoning officer.

B. No certificate of occupancy shall be issued for the premises until the city zoning officer has approved the garbage and rubbish containers and facilities. (Ord. 3419, 2010; Ord. 3412, 2009; Ord. 2096 §8,1979).

8.28.050 Containers‑‑Commercial.

A. Commercial garbage containers shall be kept covered at all times.

B. Commercial garbage containers shall be placed on a hard level surface with the surrounding area maintained to allow for roll-out and/or emptying.

C. Commercial garbage containers shall be emptied at intervals of seven days or less.

D. Commercial garbage containers are required of all of the following: All trailer courts and mobile home parks with four or more units, hotels, motels, retirement homes, nursing homes, hospitals, schools, establishments selling food or drink for consumption on or off the premises, and apartments or apartment complexes having four or more living units or any other establishment which in the judgment of the city‑county health officer generates sufficient refuse to warrant a commercial container. Exceptions to this requirement may be granted by the city‑county health officer upon a finding that the container is unnecessary or impracticable. (Ord. 3420, 2010; Ord. 3419, 2010; Ord. 3412, 2009; Ord. 2096 §6, 1979).

8.28.060 Containers‑‑Residential.

A. Residential garbage containers shall weigh not more than seventy pounds when fully loaded.

B. Residential garbage containers shall be kept covered at all times

C. All residential garbage containers shall be emptied at intervals of seven days or less, unless the volume of garbage generated during this interval is normally less than the capacity of the containers.

D. Installation of sunken residential garbage containers after the effective date of the ordinance codified in this chapter shall not be permitted.

E. Residential garbage container racks must be provided to hold all such containers. Racks must be so designed, installed and maintained as to secure and hold the containers so that they cannot be spilled, tipped and overturned and the contents strewn on the ground. The requirement for racks shall be waived where containers must be placed for collection at the curb because no alley exists. In such cases, containers shall be at the curb for no longer than sixteen consecutive hours. However, all provisions of Section 8.28.140 and subsection B of this section still apply. (Ord. 3420, 2010; Ord. 3419, 2010; Ord. 3412, 2009; Ord. 2096 §5, 1979).

8.28.070 Containers‑‑Supply and use.

A. Every person owning or in possession of property from which refuse is generated shall maintain at all times one or more residential or commercial garbage containers as defined in this section in a place where it will not be offensive or a public nuisance,. The capacity of the containers shall be adequate to hold all refuse generated between collections.

B. The owner of any rental dwelling, including apartments, rental manufactured homes, duplexes, or single family rental units, shall subscribe to commercial garbage collection, transport, and disposal of all refuse generated on the premises. Garbage collection shall occur on an interval of not more than seven days, unless the volume of garbage generated during this interval is normally less than the capacity of the containers.

C. All garbage accumulated on the premises shall be placed in the garbage containers.

D. Rubbish consisting wholly of lawn clippings, leaves, nonfood garden wastes, cardboard boxes, foliage trimmings and small pieces of waste lumber for collection may be stored in garbage containers or next to the garbage rack for pickup in plastic bags or neatly tied into bundles or placed in sturdy cardboard boxes. No rubbish or garbage shall be placed out for collection in paper bags or sacks.

E. No garbage, refuse or litter container shall be stored or set out for collection in the public right‑of‑way so as to impede or block public access or use or constitute a hazard or nuisance.

F. Any garbage, refuse or litter container which is not watertight, has sharp or ragged edges, which does not conform to prescribed standards or which has defects likely to hamper collection or injure the person collecting the contents thereof or the public generally, shall be replaced promptly by the owner or user of the container upon receipt of written notice of such defects. Failure to do so within ten days of notification shall constitute a violation of this section. (Ord. 3420, 2010; Ord. 3419, 2010; Ord. 3412, 2009; Ord. 2096 §4, 1979).

8.28.080 Keeping property and containers clean.

It is the duty of the owner, agent, occupant, or lessee of property to keep premises free of litter, rubbish, and garbage. This requirement applies not only to loose litter but also to materials that already are or become trapped at such locations as fence and wall bases, grassy and planked areas, borders, embankments, and other lodging points.

B. It is the duty of the owner, agent, occupant, or lessee of property to keep garbage and rubbish containers of property reasonably clean and free of offensive odors.

C. Owners, agents, occupants, or lessees whose properties face on municipal sidewalks and boulevards are responsible for keeping that portion of the sidewalks and boulevards adjacent to their property free of garbage, litter, and rubbish. Owners, agents, occupants, or lessees whose properties face on alleys are responsible for keeping that half of the alley adjacent to the property free of garbage, litter and rubbish.

D. It is unlawful to sweep or push litter from sidewalks and boulevard into streets.

E. It is the duty of every owner of vacant property to keep that property free of litter.

F. If an owner, agent, occupant, or lessee of property fails to remove litter on his or her property within ten days after notice by the city‑county health officer or police department, the litter will be removed by the city and the owner or his appointed agent, occupant, or lessee billed for the cost thereof.

G. If, in the determination of the city‑county health officer a litter situation exists that constitutes an "emergency" to the city or neighboring property owners, the city may remove the litter and bill the owner, his appointed agent, occupant, or lessee of the property for the cost thereof after making a good faith effort to notify by telephone or in person, the owner, agent, occupant, or lessee of the problem and giving him or her a twenty‑four hour period to remedy the problem. (Ord. 3420, 2010; Ord. 3419, 2010; Ord. 3412, 2009; Ord. 2096 §10, 1979).

8.28.085 Special provisions for the accumulation and storage of garbage within the Bear Buffer Zone.

A. It is unlawful to accumulate or store garbage that is attractant to bears within the Bear Buffer Zone in any manner that allows bears access. For the purpose of this chapter, garbage is also defined as any other human generated waste that attracts bears, not to include roadkill or windfall fruit. Except as provided in B. through D. below, bear attractant garbage shall be secured in a bear resistant container or enclosure.

B. Persons may, as an alternative to A. above, place non-bear resistant garbage containers containing bear attractants at the curb, alley, or public right-of-way only after 5:00 am on the morning of waste pickup. After waste pickup, the non-bear resistant garbage container that previously held bear attractants must be re-secured and stored inside an enclosed building or inside a bear resistant enclosure by 9:00 pm on the day of waste pickup.

C. Commercial, governmental, and institutional entities located within the Bear Buffer Zone may as an alternative to A. or B. above, develop a written waste management plan to prevent bears access to attractant waste. The waste management plan and any amendments will be approved in writing by Montana Fish, Wildlife, and Parks (FWP) and appropriate commercial waste hauler. City-County health department may be petitioned to arbitrate in the event plan agreement cannot be made between FWP and the entity.

D. Outdoor trash compactors may be used within the Bear Buffer Zone provided no waste is exposed and compactor doors are kept closed at all times, except when loading or removing wastes. The area around the compactor must be kept clean of garbage. (Ord. 3419, 2010)

8.28.090 Distribution of handbills. It is unlawful for any person to throw, scatter, distribute or cause to be thrown, scattered or distributed upon or along any of the sidewalks, streets, avenues or alleys of the city, or within or upon any of the public places within the city, and bills, posters, dodgers, cards or other advertising matter of any kind. (Ord. 3420, 2010; Ord. 3419, 2010; Ord. 3412, 2009; Prior code §13‑2).

8.28.100 Littering.

A. It is unlawful for any person to throw, discard, place or deposit litter in any manner or amount on any public or private property except in containers or areas lawfully provided therefore.

B. In the prosecution charging a violation of subsection A of this section from a vehicle, proof that the particular vehicle described in the complaint was the origin of the litter, together with proof that the defendant named in the complaint was at the time of the violation the registered owner of the vehicle, shall constitute in evidence a presumption that the registered owner was the person who committed the violation.

C. It is the duty of every person distributing or causing to be distributed commercial handbills, leaflets, flyers or any other advertising and informational material to take reasonable measures to keep such materials from littering public or private property.

D. It is unlawful for any person to deposit household garbage or refuse in garbage or refuse containers maintained for the use of other residences or establishments. (Ord. 3420, 2010; Ord. 3419, 2010; Ord. 3412, 2009; Ord. 2096 §3, 1979)

8.28.110 Removal of litter at construction and other sites.

A. Any owner or occupant of an establishment or institution at which litter or rubbish is attendant to the packing, unpacking, loading or unloading of materials at exterior locations shall provide suitable containers for the disposal and storage of such litter and rubbish and shall make appropriate arrangements for the collection thereof.

B. It is unlawful for the owner, agent or contractor in charge of any construction or demolition site to cause, maintain, permit, or allow to be caused, maintained or permitted, the accumulation of any litter or rubbish on the site before, during or after completion of the construction or demolition project.

C. It is the duty of the owner, agent, or contractor to have on the site adequate containers for the disposal of litter and rubbish and to make appropriate arrangements for its collection and transportation to an authorized facility for final disposition.

D. The owner, agent, or contractor may be required at any time to show proof of appropriate collection or final disposition at an authorized facility.

E. It is the duty of the owner, occupant, contractor, or agent to remove at the end of each working day any litter and rubbish which has not been containerized (Ord. 3420, 2010; Ord. 3419, 2010; Ord. 3412, 2009; Ord. 2096 §7, 1979).

8.28.120 Transportation requirements.

A. It is unlawful for any person to remove any garbage or carry it through the streets of the city except in vehicles having metallic or metal‑lined bins, with covers so that the garbage shall not be offensive. The garbage must be protected from the wind and rain and be loaded in such a manner that none of it shall fall, drop, blow, or spill upon the ground.

B. It is unlawful for any person to carry any rubbish on the streets except in vehicles having bins, containers, or enclosures so designed that no material loaded within shall fall, drop, blow, or spill upon the ground or public thoroughfare. Any load containing paper must be covered while moving through the streets. All rubbish so carried must be loaded into the transportation vehicle in such a manner that none of it shall fall, drop, blow, or spill upon the ground.

C. The duty and responsibility imposed by subsections A and B of this section shall be applicable alike to the owner of the truck or other vehicle, the operator thereof and the person, firm, corporation, institution or organization from which residence or establishment the cargo originated. (Ord. 3420, 2010; Ord. 3419, 2010; Ord. 3412, 2009; Ord. 2096 §9, 1979).

8.28.130 Dumping on vacant lots. It is unlawful for any person to dump, place, or leave, or cause to be dumped, placed, or left upon public property, including any of the streets, avenues, or alleys of the city any rock, gravel, dirt, earth or soil, garbage or rubbish, unless permission to do so is first obtained from the street department of the city; or to dump, place, or leave or cause to be dumped, placed or left upon any vacant or unoccupied private lot or lots any rock, gravel, dirt, earth or soil on private property, unless permission to do so shall be first obtained from the owner or owners of the vacant or unoccupied lot or lots. (Ord. 3420, 2010; Ord. 3419, 2010; Ord. 3412, 2009; Ord. 2096 §12, 1979).

8.28.140 Burning and burying garbage. Except in case of composting, it is unlawful for any person to burn or bury any garbage, rubbish, or litter in any yard or open space, unless a disposal site license has been obtained from the Solid Waste Bureau of the Montana State Department of Health and Environmental Sciences. (Ord. 3420, 2010; Ord. 3419, 2010; Ord. 3412, 2009; Ord. 2685 §1, 1989: Ord. 2446 §1, 1985: Ord. 2096 §11, 1979).

8.28.150 Violation‑‑Penalty. It is a misdemeanor for any person to do any act forbidden or to fail to perform any act required by this chapter. Every person convicted of a violation of any provision of this chapter shall be punished by a fine not to exceed five hundred dollars for each offense. A person who is found guilty of a violation of this section 8.25.085 one year after the effective date of this ordinance shall be fined not less than twenty five dollars which may not be suspended or deferred. During the first year this ordinance is in effect, warnings of noncompliance in lieu of citations will be issued for violations of section 8.28.085. Each day any violation of any provisions of this chapter shall continue shall constitute a separate offense. There shall be no penalty of imprisonment for any violation of this chapter. (Ord. 3420, 2010; Ord. 3419, 2010; Ord. 3412, 2009; Ord. 2685 §2, 1989; Ord. 2446 §2, 1985; Ord. 2096 §14, 1979).

Chapter 8.32

NUISANCES

Sections:

8.32.010 Generally.

8.32.030 Violation.

8.32.010 Generally. No building, vehicle, structure, receptacle or thing used or to be used for any purpose whatever shall be made, used, kept, maintained or operated in the city, if the use, keeping, maintaining or operating of such building, vehicle, structure, receptacle or thing shall be the occasion of any nuisance, or dangerous or detrimental to health. (Prior code §15‑3).

8.32.020 Related to business, work or labor. No substance, matter or thing of any kind whatever which shall be dangerous or detrimental to health shall be allowed to exist in connection with any business or to be used therein or to be used in any work or labor carried on or to be carried on or prosecuted in the city; and no nuisance shall be permitted to exist in connection with any business or in connection with any such work or labor. (Prior code §15‑4).

8.32.030 Violation. Any person who violates, disobeys, omits, neglects or refuses to comply with, or who resists the enforcement of any of the provisions of this chapter, or who refuses or neglects to obey any of the rules, orders or sanitary regulations of the city health officer, or of the sanitary inspector, or of the board of health, or who omits, neglects or refuses to comply therewith, or who resists any officer or order or special regulations of either the city health officer, or the sanitary inspector, or the board of health, where no other penalty is provided, shall be deemed guilty of a violation of the provision of this code. (Ord. 2117 §3 (part),1980; prior code §15‑13) .

Chapter 8.36

SMOKING IN ELEVATORS

Sections:

8.36.010 Prohibited.

8.36.020 Violation‑‑Penalty.

8.36.010 Prohibited.

A. No person shall smoke or carry a lighted cigarette, cigar or pipe within an elevator used by the public within the city. The owner, manager or person in charge of a building where such an elevator is used by the public shall post a "No Smoking" sign in a conspicuous place in each elevator. The lettering, size and color of the "No Smoking" signs shall be subject to the approval of the chief of the fire department. It is unlawful for any person for any reason to remove or mutilate or destroy the required posted "No Smoking" signs.

B. At each elevator lobby an ashtray approved for the safe disposal of smoking material by the fire chief or his designee shall be placed at 'a specific safe location approved by the fire chief or his designee. (Ord. 2686 §1, 1989: prior code §21‑27.1 (part)).

8.36.020 Violation‑‑Penalty. Any person who shall violate any of the provisions of this chapter shall be guilty of a misdemeanor punishable by a fine of not less than ten dollars nor more than three hundred dollars or by imprisonment for not less than one day nor more than ten days, or by both such fine and imprisonment. (Prior code §21‑27.1(part)).

Title 8.37

SMOKING IN INDOOR PLACES OF EMPLOYMENT AND PUBLIC PLACES

Sections:

8.37.010 Findings and Purpose.

8.37.020 Definitions.

8.37.030 Smoking Prohibited.

8.37.040 Exemptions to Smoking Prohibitions of 8.37.030.

8.37.050 Smoking Shelters.

8.37.060 Ashtrays.

8.37.070 Notification and Signage.

8.37.080 Enforcement.

8.37.090 (Repealed).

8.37.100 Nonretaliation.

8.37.110 Violations and Penalties.

8.37.120 Public Education.

8.37.130 Other Applicable Laws.

8.37.140 (Repealed).

8.37.010 Findings and Purpose.

A. Pursuant to Article II, Section 3 of Montana’s Constitution, all persons have certain inalienable rights which include a constitutional “right to a clean and healthful environment.” And pursuant to Article IX, Section 1 of Montana’s Constitution, “the state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.” With respect to this right and correlating duty, it is the intent of the City Council, the Board of County Commissioners, and the City-County Health Board (Health Board) in enacting this health ordinance to prescribe requirements concerning smoking tobacco in order to provide for a clean and healthful environment and to protect the health and safety of Missoula visitors and residents from exposure to smoke in environments not under their control.

B. The Missoula City Council, the Missoula Board of County Commissioners, and the Health Board hereby find that:

1. Environmental tobacco smoke (ETS) has been categorized as a known carcinogen by the United States Environmental Protection Agency (EPA), and;

2. Numerous scientific studies have determined that environmental tobacco smoke is a major cause of indoor air pollution that contains more than 40 known human carcinogens, numerous suspected carcinogens, co-carcinogens, carbon monoxide, sulfur dioxide, nitrous oxides, EPA-listed hazardous air pollutants, cilia toxic agents, sub-micron sized particulate, and;

3. The Surgeon General of the United States has declared that smoking is the largest preventable cause of premature death and disability in the United States; breathing environmental tobacco smoke is a cause of disease, including lung cancer, in nonsmokers, and;

4. At special risk from environmental tobacco smoke are children, elderly people, individuals with cardiovascular disease and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease, and;

5. Health hazards induced by breathing secondhand smoke include lung cancer, heart disease, respiratory infection, decreased respiratory function and broncho-constriction, and;

6. The National Institute for Occupational Safety and Health has recommended that all preventable measures should be used to minimize occupational exposure to environmental tobacco smoke, and;

7. Employees working in enclosed spaces where smoking is present have little or no control over the environment to which they are exposed, yet are likely to suffer lengthy and repetitive exposure to ETS; and

8. While alternative smoking devices contain fewer toxic chemicals than the deadly mix of 7,000 chemicals in smoke from regular cigarettes, e-cigarette aerosol is not harmless. It can contain harmful and potentially harmful substances, including nicotine, heavy metals like lead, volatile organic compounds, and cancer-causing agents, and can be inhaled by bystanders.

C. In conjunction with the Montana Clean Indoor Air Act, the purpose of this ordinance is to:

1. Protect the public health and welfare by prohibiting smoking in public places and places of employment;

2. Recognize the right of nonsmokers to breathe smoke-free air, and

3. Recognize the need to breathe smoke-free air has priority over the desire to smoke.

D. This health ordinance is adopted by the City of Missoula, which operates pursuant to a city voter approved self-governing charter form of government established in accordance with the provisions of Montana state law pertaining to self-government local government. 7-4-4306 MCA allows this ordinance to also be in effect outside the city limits, but within 5 miles of the city limits when approved by the Missoula County Commissioners and the Missoula City-County Health Board.

E. This ordinance is consistent with federal and state laws, and is not preempted by any such laws.

(Ord. 3604, 2018; Ord. 3098, 1999)

8.37.020 Definitions. The definitions found in 50-40-103, MCA apply to this ordinance, in addition to the words and phrases defined as follows:

A. “Alternative smoking device” means any product containing or delivering nicotine or any other substance intended for human consumption that can be used by a person in any manner for the purpose of inhaling vapor or aerosol from the product. The term includes any such device, whether manufactured, distributed, marketed, or sold as an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah, or under any other product name or descriptor.

B. “Employee” means any person who is employed by any employer in the consideration for direct or indirect monetary wages or profit.

C. “Employer” means any person, partnership, corporation, including a municipal corporation, or non-profit entity, who employs the services of one or more individual persons.

D. “Indoor Public Place” means an indoor place, building, or conveyance to which the public has or may be permitted to have access, or an enclosed public place as defined in 50-40-103 MCA.

E. “Managing Entity” means the person or agency that has chosen to prohibit outdoor smoking as provided in this ordinance, or the agency responsible for maintaining the public space when this ordinance directly prohibits smoking.

F. “Outside Air Intake” means an opening or inlet to the outside of the building, through which fresh air is introduced into the building or into an air conditioning system.

G. “Smoking” means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated tobacco or plant product intended for inhalation, including hookahs and marijuana, whether natural or synthetic, in any manner or in any form. Smoking also includes the use of an alternative smoking device which creates an aerosol or vapor, in any manner or any form.

(Ord. 3604, 2018; Ord. 3098, 1999)

8.37.030 Smoking Prohibited.

A. A person may not smoke or allow smoking in an indoor public place, except as provided in MMC 8.37.040.

B. A person may not smoke on, in or within 25 feet of the following outdoor public places owned or managed by the City of Missoula:

1. Playgrounds;

2. Sports fields assigned to or being used by youth under the age of 18;

3. Aquatic facilities, including but not limited to spray decks, pools and spas;

4. Silver’s Lagoon in McCormick Park;

5. Bancroft/34^th Street Duck Ponds; and

6. Structures including picnic shelters, dugouts, band shells, shade canopies, grandstands and bleachers.

C. The owner or manager of an outdoor space may choose to prohibit smoking on all or a portion of that property. A person may not smoke in an outdoor space when the property owner or manager has declared it as a non-smoking place by posting a sign in accordance with MMC 8.37.070.

D. As provided in MMC 12.18.050, an owner, operator or manager of a sidewalk cafe may choose to prohibit smoking in the sidewalk cafe. If they choose to prohibit smoking, they must post a sign in accordance with MMC 8.37.070. If they choose not to prohibit smoking, no sign has to be posted. A person may not smoke in a sidewalk cafe when the owner, operator or manager has declared it as a non-smoking place by posting a sign in accordance with MMC 8.37.070.

E. An owner or manager of an indoor public place may choose to prohibit smoking outdoors within 25 feet of a doorway, an outdoor air intake or other opening into that indoor public place. If they choose to prohibit outdoor smoking, they must post a sign in accordance with MMC 8.37.070. If they choose not to prohibit outdoor smoking, no sign has to be posted. A person may not smoke outdoors within 25 feet of a doorway, an outdoor air intake or other opening of that indoor public place, when the owner, operator or manager has declared it as a non-smoking place by posting a sign in accordance with MMC 8.37.070. This prohibition does not prevent a person in transit from smoking while passing through an area marked as non-smoking. (Ord. 3604, 2018; Ord. 3098, 1999)

8.37.040 Exemptions to Smoking Prohibitions of 8.37.030.

The prohibition in MMC 8.37.030(A) does not apply to the following places, whether or not the public is allowed access to those places.

A. a private residence unless it is used for any of the following purposes, in which case the prohibition in subsection (1) applies:

1. a family day-care home or group day-care home, as defined in 52-2-703, MCA and licensed pursuant to Title 52, chapter 2, part 7, MCA;

2. an adult foster care home, as defined in 50-5-101, MCA and licensed pursuant to Title 50, chapter 5, MCA; or

3. a health care facility, as defined in 50-5-101, MCA and licensed pursuant to Title 50, chapter 5, MCA;

B. a private motor vehicle;

C. school property in which smoking is allowed pursuant to the exception in 20-1-220, MCA;

D. a hotel or motel room designated as a smoking room and rented to a guest; however, not more than 35% of the rooms available to rent to guests may be designated as smoking rooms; and

E. a site that is being used in connection with the practice of cultural activities by American Indians that is in accordance with the American Indian Religious Freedom Act, 42 U.S.C. 1996 and 1996a.

(Ord. 3604, 2018; Ord. 3098, 1999)

8.37.050 Smoking Shelters. A smoking shelter is allowed as long as it includes all of the following:

A. An entrance or opening that does not open directly into an indoor public place, and is not on the shared wall between the shelter and building;

B. At least one entrance to the outdoors, with a minimum opening of 3 feet by 6 feet 8 inches remains open and unobstructed during all hours of use; and

C. At least 20% of the wall area, not including the doorway, is open with unobstructed air flow to the outdoors.

(Ord. 3604, 2018; Ord. 3098, 1999)

8.37.060 Ashtrays. Ashtrays may not be located in any area where smoking is prohibited by this ordinance.

(Ord. 3604, 2018; Ord. 3098, 1999)

8.37.070 Notification and Signage.

A. The proprietor or manager of an establishment containing an indoor public place shall post a sign in a conspicuous place at all public entrances to the establishment stating, in a manner that can be easily read and understood, that smoking is prohibited within the establishment.

B. The proprietor or manager of a hotel or motel shall post a sign on the door of each room as either a smoking room or a non-smoking room. Not more than 35% of the rooms available to guests may be designated or signed as smoking rooms.

C. If the owner, operator or manager of an outdoor space chooses to prohibit smoking outdoors as allowed by 8.37.030, the managing entity must post one or more signs in conspicuous locations, stating in a manner than can be easily read and understood, that smoking is prohibited in that outdoor space.

(Ord. 3604, 2018; Ord. 3098, 1999)

8.37.080 Enforcement.

A. Enforcement of MMC 8.37.030(A), 8.37.040, 8.37.050, 8.37.060 and 8.37.070 shall be implemented primarily by the Missoula City-County Health Department and the Missoula City Attorney’s office.

B. The Missoula City-County Health Department shall follow the enforcement procedures in ARM 37.113.112. When a person who owns, manages, operates or otherwise controls an area where smoking is prohibited by this ordinance fails to comply with the provisions of MMC 8.37.030(A), 8.37.040, 8.37.050, 8.37.060 and 8.37.070, the Missoula City-County Health Department shall issue a written warning for the first violation, and a written reprimand for the second violation, and any subsequent violations within three years of the first warning will be referred to the City Attorney’s office for enforcement.

C. The Missoula City-County Health Department has the right to enter and inspect premises in response to complaints and observations by department staff of potential violations of MMC 8.37.030(A), 8.37.040, 8.37.050, 8.37.060, and 8.37.070.

D. The managing entity of an outdoor public place where smoking is prohibited is responsible for ensuring that smoking does not occur within that area. (Ord. 3604, 2018; Ord. 3098, 1999)

8.37.090 Repealed. (Ord. 3604, 2018; Ord. 3098, 1999)

8.37.100 Nonretaliation. No person or employer shall discharge, refuse to hire, or in any manner retaliate or discriminate against any employee, applicant for employment, or customer because such person exercises any constitutional right to a clean and healthful environment afforded by this ordinance. Any such discrimination shall be cause for private civil action against the offending party or parties. (Ord. 3604, 2018; Ord. 3098, 1999)

8.37.110 Violations and Penalties.

A. Violations of this ordinance, whether the violation occurs inside the city limits or within 5 miles of the city limits, are subject to the jurisdiction of the City of Missoula Municipal Court.

B. A person who violates a provision in MMC 8.37.030(A), 8.37.040, 8.37.050, 8.37.060 or 8.37.070 shall be guilty of a misdemeanor and shall be subject to the following penalties, after receiving a warning for the first violation and a written reprimand for a second violation:

1. $100 for a third violation, within 3 years of the first violation;

2. $200 for a fourth violation within 3 years of the first violation; and

3. $500 for a fifth or subsequent violation within 3 years of the first violation.

C. A person who violates MMC 8.37.030(B) shall be guilty of a misdemeanor offense punishable by a fine not exceeding one hundred dollars ($100) for each violation.

D. Incarceration is not a penalty. Each day of violation is a separate violation. (Ord. 3098, 1999)

E. Enforcement of penalties shall not bar enforcement of this ordinance by injunction or other appropriate remedy. The Missoula City-County Health Department may petition the district court to enjoin any action in violation of MMC 8.37.030(A), 8.37.040, 8.37.050, 8.37.060 and 8.37.070.

F. Corporate entities and their agents may be held liable for conduct prohibited herein.

(Ord. 3604, 2018; Ord. 3098, 1999)

8.37.120 Public Education. The Missoula City-County Health Department shall engage in a continuing program to explain and clarify the purposes and requirements of this ordinance to citizens affected by it, and to guide owners, operators and managers in their compliance with it. (Ord. 3604 ,2018; Ord. 3098, 1999)

8.37.130 Other Applicable Laws. This ordinance shall not be interpreted or construed to allow smoking where it is otherwise restricted by other applicable laws.

(Ord. 3604, 2018; Ord. 3098, 1999)

8.37.140 Repealed. (Ord. 3604, 2018; Ord. 3098, 1999)

Chapter 8.38

Restrictions on the Display of Tobacco Products, and the Sale of Flavored Electronic Tobacco Products, and on the unlawful transactions consisting of selling or giving tobacco products to youth in violation of state or federal law.

Sections

8.38.010 Findings

8.38.020 Enforcement of Health and Quarantine Ordinances Extraterritorially Outside City Limits

8.38.030 Definitions

8.38.040 Sale of Tobacco Products by Self-Service Display Prohibited.

8.38.050 Sale of Flavored Electronic Tobacco Products Prohibited

8.38.060 Unlawful Transactions of Tobacco Products, Alternative Nicotine Products and Vapor Products with Persons Too Young to Legally Possess Such Products

8.38.070 Compliance and Inspections.

8.38.080 Violations and Penalties.

8.38.010 Findings.

Montana state law grants a city council legislative power to address public health, safety and general welfare concerns pursuant to health and quarantine ordinances inside the city limits. In addition, pursuant to section 7-4-4306 MCA city health and quarantine ordinances may be enforced extraterritorially outside the city limits within five (5) miles of the city limits if both the board of county commissioners and local health board approve the city ordinance as well. The City Council hereby finds and declares as follows with respect to this ordinance:

WHEREAS, state law prohibits the sale or distribution of tobacco products and electronic smoking devices to minors (MCA § 16-11-305); and

WHEREAS, youth exposed to nicotine are at higher risk for addiction than adults because youth brains are still forming and making permanent connections until age 25.ⁱNicotine exposure in youth can disrupt the formation of brain circuits that control attention, learning, impulse control, and mood; and

WHEREAS, nicotine is a dangerous and highly addictive chemical. It can cause an increase in blood pressure, heart rate, flow of blood to the heart and a narrowing of the arteries (vessels that carry blood). Nicotine may also contribute to the hardening of the arterial walls, which in turn, may lead to a heart attack. This chemical can stay in your body for six to eight hours depending on how often you smoke.

Also, as with most addictive substances, there are some side effects of withdrawal;ⁱⁱand

WHEREAS, 99% of e-cigarettes sold in U.S. convenience stores contain nicotine.ⁱⁱⁱEven e-cigarette products that claim to contain zero nicotine have been found to contain nicotine.^ivMany of the newer,

pod-based e-cigarette products contain high concentrations of nicotine in the form of nicotine salts, thus making these products as or more addictive than combustible cigarettes;^vand

WHEREAS, smoking causes cancer, heart disease, stroke, lung diseases, diabetes, and chronic obstructive pulmonary disease (COPD), which includes emphysema and chronic bronchitis. Smoking also increases risk for tuberculosis, certain eye diseases, and problems of the immune system, including rheumatoid arthritis;^viand

WHEREAS, as of February 18, 2020, 2,807 hospitalized lung injury cases associated with the use of e- cigarette, or vaping, products have been reported to CDC from 50 states, the District of Columbia, and 2

U.S. territories (Puerto Rico and U.S. Virgin Islands).As of February 18, 2020, the Montana Department of Public Health and Human Services (DPHHS) has confirmed 8 cases in Montana, which includes 1 death^vii; and

WHEREAS, $440 million is spent on healthcare each year in Montana due to smoking;^viiiand

WHEREAS, although smokers are most likely to use electronic smoking devices such as e-cigarettes, almost a third of current users are nonsmokers, suggesting that e-cigarettes contribute to primary nicotine addiction and to renormalization of tobacco use;^ixand

WHEREAS, the FDA has stated that “all tobacco products, including flavored tobacco products, are as addictive and carry the same health risks as regular tobacco products;”^xand

WHEREAS, research conducted over the past few decades show that the tobacco products industry’s marketing activities, including flavors and placement within children’s reach in convenience stores, have been a key factor in leading young people to take up tobacco products, keeping some users from quitting, and achieving greater consumption among users;^xiand

WHEREAS, tobacco companies use predatory marketing tactics to target youth, particularly susceptible consumers, by placing a large number of tobacco products at retail stores popular with the young, often within reach and near gum and candy;^xiiand

WHEREAS, more than half of teenagers visit a convenience store at least once a week, and tobacco product marketing is more prevalent in stores where youth shop frequently;^xiiiand

WHEREAS, according to the 2019 Missoula County Youth Risk Behavior Survey, when asked how Missoula youth in grades 9-12 obtain their electronic vapor products in the past 30 days, they responded:

A. I did not use any electronic vapor products during the past 30 days - 62.20%

B. I bought them in a store such as a convenience store, supermarket, discount store, gas station, or vape store - 3.19%

C. I got them on the Internet - 0.96%

D. I gave someone else money to buy them for me - 8.13%

E. I borrowed them from someone else - 17.22%

F. A person who can legally buy these products gave them to me - 3.19%

G. I took them from a store or another person - 0.48%

H. I got them some other way - 4.63% ^xiv; and

WHEREAS, youth reported product flavoring as a top reason for using tobacco within the past 30 days;^xv

and

WHEREAS, e-cigarette use predicts the onset of combustible tobacco product use;^xviand

WHEREAS, e-cigarettes are now the most commonly used tobacco product among Montana’s youth. 58.3% of Montana high school students have used an electronic smoking device in their lifetime;^xviiand

WHEREAS, on Dec. 20, 2019, the President of the United States signed legislation amending the Federal Food, Drug, and Cosmetic Act, and raising the federal minimum age of sale of tobacco products from 18 to 21 years. It is now illegal for a retailer to sell any tobacco product—including cigarettes, cigars and e- cigarettes—to anyone under 21^xviii; and

WHEREAS, the CDC and FDA analyzed nationally represented data from the 2020 Youth Tobacco Survey, a cross-sectional, school based, self-administered survey of U.S. middle school (grades 6-8) and high school (grades 9-12) students conducted during January 16-March 16, 2020. The data showed that in 2020, approximately one in five high school students and one in twenty middle school students currently used e-cigarettes; by comparison, in 2019, 27.5% of high school students (4.11 million) and 10.5

% of middle school students (1.24 million) reported current e-cigarette use^xix; and

WHEREAS, the Principal of Big Sky High School located in Missoula Montana, submitted public comment for the ordinance on October 20, 2020, stating that "As Principal of Big Sky High School, I write in support of the proposed ordinance to restrict the sale of flavored tobacco products in Missoula. As an MCPS high school administrator, I see first-hand the impact of this marketing tactic. In Missoula...we are experiencing an epidemic of e-cigarette use among youth. [T]he arrival of e-cigarettes and the continued marketing of flavored products, and their presence in local stores, presents an uphill challenge^xx; and

WHEREAS, a Missoula School Resource Officer testified in Case Number DV-19-388 in Montana Twenty-First Judicial District Court, Ravalli County, and Honorary Judge Jennifer B. Lint found under the Findings of Fact numbers 23-24 the Officer is a sworn peace officer who is frequently citing students for Minor in Possession of vaping devices, accessories and liquid; and that the vaping and tobacco use statistics in the YRBS are reflected in what he sees as a School Resource Officer^xxi.

WHEREAS, in the same litigation referenced in the prior Whereas statement, neither party disputed that youth vaping has exploded, that nicotine is harmful to youth's neural development, and that youths are attracted to the flavored liquids^xxii.

WHEREAS, 21% of adults in Montana smoke;^xxiiiand

WHEREAS, 10% of youth reported trying their first cigarettes before age 13, and 33.5% of Montana high school youth reported currently using any tobacco product, including e-cigarettes in 2019;^xxivand

WHEREAS, in Montana, 58 percent of high school students have tried e-cigarettes and more than 30 percent use them regularly. From 2017 to 2019, frequent vaping among Montana high school students increased by 243% and daily use increased by 263%^xxv

WHEREAS, the Montana State Legislature and State of Montana have for decades been concerned about youth possession and consumption of tobacco products and prohibited youth possession or consumption of tobacco products by youth as is evidenced by Montana state criminal law 45-5-637 Montana Code annotated (MCA) and Montana Youth Court Act law 41-5-203 MCA; and

WHEREAS current Montana state criminal law 45-5-637 makes possession or consumption of tobacco products, alternative nicotine products, or vapor products by persons under 18 years of age unlawful as well as makes it unlawful for a person under 18 years of age to attempt to purchase a tobacco product, alternative nicotine product, or vapor product.

NOW THEREFORE, it is the intent of the Missoula City Council in enacting this ordinance to protect public health and welfare by reducing access to flavored electronic tobacco products and self-service access to tobacco products, prohibit unlawful transactions consisting of selling or giving tobacco products to a minor under the age of 18, making it easier to quit and more difficult to start.

(Ord. 3872, 2021)

8.38.020 Enforcement of Health and Quarantine Ordinances Extraterritorially Outside City Limits.

This chapter is adopted by the Missoula City Council for enforcement inside the city limits. If both the County commissioners and the local health board approve enforcement of this chapter extraterritorially within five (5) miles of the city limits this chapter is thereafter enforceable outside the city limits, within five

(5) miles of the city limits. (Ord. 3872, 2021)

8.38.030 Definitions.

The following words and phrases, whenever used in this chapter, have the meanings:

A. “Electronic Smoking Device” means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e- cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic Smoking Device includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine. Electronic Smoking Device does not include drugs, devices, or combination products authorized for sale by the

U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.

B. “Flavored Tobacco Product" means a tobacco product that imparts a taste or smell other than the taste or smell of tobacco, that is distinguishable by an ordinary consumer either prior to, or during the consumption of, a tobacco product, including, but is not limited to, the taste or smell of menthol, mint, wintergreen, fruit, chocolate, cocoa, vanilla, honey, or the taste or smell of any candy, dessert, alcoholic beverage, herb, or spice. A tobacco product shall be presumed to be a flavored tobacco product if a retailer, manufacturer, or a manufacturer's agent or employee has made a statement or claim directed to consumers or the public, whether expressed or implied, that the product or device imparts a distinguishable taste or aroma other than the taste or aroma of tobacco or uses text, images, or coloring on the tobacco product’s labeling or packaging to explicitly or implicitly indicate that the tobacco product imparts a taste or aroma other than the taste or aroma of tobacco.

C. “Self-Service Display” means the open display or storage of Tobacco Products in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person-to-person transfer between the purchaser and the retailer or employee of the retailer.

D. “Tobacco Product” means any product containing, made, or derived from tobacco or that contains nicotine that is intended for human consumption or is likely to be consumed, whether smoked, heated, chewed, absorbed, dissolved, inhaled, or ingested, or by any other means, including but not limited to a cigarette, a cigar, hookah, pipe tobacco, chewing tobacco, snuff, snus and electronic smoking device. Notwithstanding any provision to the contrary, “Tobacco Product” includes any component, part, or accessory intended or reasonably expected to be used with a Tobacco Product, whether or not any of these contain tobacco or nicotine, including but not limited to filters, rolling papers, blunt or hemp wraps, hookahs, and pipes, and whether or not any of these are sold separately. The term “Tobacco Product” does not include drugs, devices or combination products approved for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act.

E. “Tobacco Product Flavor Enhancer” means any product designed, manufactured, produced, marketed or sold to impart a taste or smell other than the taste or smell of tobacco when added to any tobacco product.

F. “Tobacco Retailer” means any person, partnership, joint venture, society, club, trustee, trust, association, organization, or corporation who owns any Tobacco Retail Establishment required to be licensed under MCA § 16-11-303

“Tobacco Retail Establishment” means any place of business where tobacco products are available for sale to the general public. The term includes but is not limited to grocery stores, tobacco products shops, kiosks, convenience stores, gasoline service stations, bars, and restaurants. (Ord. 3872, 2021)

8.38.40 Sale of Tobacco Products by Self-Service Display Prohibited.

No person shall sell or offer to sell Tobacco Products by means of a Self-Service Display. Tobacco retailer or tobacco retailer’s employee shall not transfer the Tobacco Product to the purchaser until after payment has been received and processed.

A. This section does not prohibit retailing of tobacco products by means of a vending machine located in places where alcoholic beverages are sold and consumed on the premises and where the vending machine is under the direct line-of-sight supervision of the owner or an employee of the establishment.

B. This section does not apply to facilities where the Tobacco Retailer:

1. has prominently posted signage setting forth the federal age restriction of 21, and

2. ensures that no youth under the age of 18, and pursuant to the federal age restriction, no adult aged 18 to 20 years of age are present within or allowed to enter the area at any time. (Ord. 3872, 2021)

8.38.050 Sale of Flavored Tobacco Products used in or with Electronic Smoking Devices Prohibited

It is unlawful for any Tobacco Retailer, licensed under MCA § 16-11-303, to sell, offer for sale, give, possess with the intent to sell or offer for sale, or otherwise distribute a Flavored Tobacco Product or a Tobacco Product Flavor Enhancer that is or can be used in or with an Electronic Smoking Device. (Ord. 3872, 2021)

8.38.060 Unlawful Transactions Of Tobacco Products, Alternative Nicotine Products And Vapor Products With Persons Too Young To Legally Possess Such Products.

Montana state law, section 45-5-637 prohibits a person under 18 years of age to knowingly possess or consume a tobacco product, alternative nicotine product, or vapor product. Federal law establishes a similar prohibition for anyone under the age of 21. A person commits the offense of unlawful transactions with persons too young to legally possess such products if the person knowingly sells, gives or provides a tobacco product, alternative nicotine product or vapor product to another person in violation of either Montana state or federal law. (Ord. 3872, 2021)

8.38.070 Compliance and Inspections.

A. The Missoula City-County Health Department is responsible for enforcing the provisions of sections

8.38.040 and 8.38.050.

B. The Missoula City-County Health Department or other authorized agents may enter and inspect premises of Tobacco Retail Establishments during reasonable hours, including whenever the retailer is open, to evaluate compliance with sections 8.38.040 and 8.38.050.

Local law enforcement is responsible for enforcing the provisions of section 8.38.060 (Ord. 3872, 2021)

8.38.080 Violations and Penalties.

A. It is a violation for a Tobacco Retailer to fail to comply with the requirements of sections 8.38.040 and 8.38.050. A violation of this chapter, whether the violation occurs inside the city limits or within 5 miles of the city limits, is subject to the jurisdiction of the City of Missoula Municipal Court. Any fines collected under this chapter shall be used for youth tobacco prevention and education. All Tobacco Retailers are responsible for the actions of their employees regarding the sale, offer to sell, and furnishing of Tobacco Products on the premises of the Tobacco Retail Establishment. The sale, offer to sell, or furnishing of any Tobacco Product by an employee shall be considered an act of the Tobacco Retailer.

1. A Tobacco Retailer convicted of violating a provision of these sections shall be subject to a fine not exceeding five hundred dollars for each offense.

2. Each day of violation constitutes a separate offense.

3. Assessment of penalties does not bar enforcement of these sections by injunction or other appropriate remedy.

A person convicted violating section 8.38.060 shall be fined an amount not to exceed $250. A person convicted of a second or subsequent violation of section 8.38.060 shall be fined an amount not to exceed $500. (Ord. 3872, 2021)

ii U.S. Department of Health and Human Services. E-Cigarette Use Among Youth and Young Adults. A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2016.

iii How smoking and nicotine damage your body, American Heart Association, 2015

iv American Public Health Association (2017) Sales of Nicotine-Containing electronic Cigarette Products: United States 2015, https://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2017.303660

v American Cancer Society (2019) What Do We Know About E-cigarettes? https://www.cancer.org/cancer/cancer- causes/tobacco-and-cancer/e-cigarettes.html

vi Truth Initiative (2019) E-cigarettes: Facts, stats and Regulations. https://truthinitiative.org/research-resources/emerging- tobacco-products/e-cigarettes-facts-stats-and-regulations

viiU.S. Department of Health and Human Services. The Health Consequences of Smoking—50 Years of Progress: A Report of the

Surgeon General. Atlanta: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2014 [accessed 2016 Dec 20].

viii Montana DPHHS Tobacco Use Prevention Program: Youth and Tobacco Use

ix Centers for Disease Control and Prevention. (2017). Extinguishing the tobacco epidemic in Montana. Retrieved January 19, 2018, from https://www.cdc.gov/tobacco/about/osh/program-funding/pdfs/montana-508.pdf

x McMillen, R.C., Gottlieb, J.D., Whitmore Shaefer, R.M., Winickoff, J.P. & Klein, J.D. (2014). Trends in Electronic Cigarette Use

Among U.S. Adults: Use is Increasing in Both Smokers and Nonsmokers. Nicotine & Tobacco Research, 1-8. doi:10.1093/ntr/ntu213

xiLevy DT, Pearson JL, Villanti AC, et al. Modeling the future effects of a menthol ban on smoking prevalence and smoking- attributable deaths in the United States. Am J Public Health. 2011;101(7):1236-1240. doi:10.2105/AJPH.2011.300179.

xii American Heart Association/Campaign for Tobacco Free Kids/Counter Tools. (2012). Deadly Alliance: How Big Tobacco and

Convenience Stores Partner to Market Tobacco Products and Fight Life-Saving Policies; National Cancer Institute. (2008). The Role of the Media in Promoting and Reducing Tobacco Use. Bethesda (MD): U.S. Department of Health and Human Services, National Institutes of Health, National Cancer Institute. Tobacco Control Monograph No 19. NIH Publication No. 07-6242.

xiiiHenriksen et al. (2004). Reaching Youth at the Point of Sale: Cigarette Marketing is More Prevalent at Stores Where Adolescents Shop Frequently, 12 TOBACCO CONTROL 315, 317

xiv American Heart Association/Campaign for Tobacco Free Kids/Counter Tools. (2012). Deadly Alliance: How Big Tobacco and

Convenience Stores Partner to Market Tobacco Products and Fight Life-Saving Policies; Sanders-Jackson, A, et al., “Convenience store visits by US adolescents: Rationale for healthier retail environments,” Health & Place 34:63- 66, 2015

xv 2019 Missoula County Youth Risk Behavior Survey

xvi Ambrose, B. K., Day, H. R., Rostron, B., Conway, K. P., Borek, N., Hyland, A., & Villanti, A. C. (2015). Flavored Tobacco Product Use Among US Youth Aged 12-17 Years, 2013-2014. Jama, 314(17), 1871. doi:10.1001/jama.2015.13802

xviiBarrington-Trimis, J.L. (2016). The e-cigarette social environment, e-cigarette use, and susceptibility to cigarette smoking.

Journal of Adolescent Health. 59(1), 75-80. https://doi.org/10.1016/j.jadohealth.2016.03.019; Leventhal, A.M., et al. (2015). Association of electronic cigarette use with initiation of combustible tobacco product smoking in early adolescence. JAMA. 314(7): 700-707. doi:10.1001/jama.2015.8950; Soneji, S., Barrington-Trimis, J.L., Wills, T.A., Leventhal, A., Unger, J.B., et al. (2017). E-Cigarette Use and Subsequent Cigarette Smoking Among Adolescents and Young Adults: A Systematic Review and Meta-Analysis. JAMA Pediatrics; Watkins, S.L., Glantz, S.A., & Chaffee, B.W. (2018). Association of non cigarette tobacco use with future cigarette smoking among youth in population assessment of tobacco and health (PATH) study, 2013-2015. JAMA Pediatrics. doi:10.1001/jamapediatrics.2017.4173; Miech, R., Patrick, M., O’Malley, P., Johnston, L. (2017). E-cigarette use as a predictor of cigarette smoking: results from a 1-year follow up of a national sample of 12th grade students; King, A.C., Smith, L.J., McNamara, P.J. & Cao, D. (2017). Second Generation Electronic Nicotine Delivery System Vape Pen Exposure Generalizes as a Smoking Cue. Nicotine Tob Res; 327; Cobb, C.O., Hendricks, P.S., Eissenberg, T. (2015) Electronic cigarettes and nicotine dependence: evolving products, evolving problems. BMC Med. 13:119. https://doi.org/10.1186/s12916-015- 0355-y.

xviii Montana Youth Risk Behavior Survey, 2019

xix Food and Drug Administration, Center for Tobacco Products, January 15, 2020.

xx Wang, Teresa W., Neff, Linda J., Park-Lee, Eunice, Ren, Chunfeng, Cullen, Karen A., King, Brian A., (September 18, 2020), Centers for Disease Control and Prevention, Morbidity and Mortality Weekly Report.

xxi Oct. 20, 2020 public comment submitted to Missoula City Council via Group City Council email, entitled "Support of Ordinance".

xxii pages 16-17 of Opinion by Judge Lint in Case Number DV-19-388, Opinion and Order, signed on December 17, 2019,Montana Smokefree Association Inc, Freedom Vapes LLC, Liberty SMoke Inc, and Ublaze Vapor Inc., Petitioners, vs. Montana Department of Public Health and Human Services; Sheila Hogan in her capacity as the Director of the Montana Department of Health and Human Services and, Stephen C. Bullock, in his official capacity as Governor of the State of Montana.

xxiii pages 19, finding of fact #29 of Opinion by Judge Lint in Case Number DV-19-388, Opinion and Order, signed on December 17, 2019,Montana Smokefree Association Inc, Freedom Vapes LLC, Liberty SMoke Inc, and Ublaze Vapor Inc., Petitioners, vs. Montana Department of Public Health and Human Services; Sheila Hogan in her capacity as the Director of the Montana Department of Health and Human Services and, Stephen C. Bullock, in his official capacity as Governor of the State of Montana.

xxiv Behavioral Risk Factor Surveillance System, 2019

xxv Montana Youth Risk Behavior Survey, 2019

xxvi Montana Risk Factor Surveillance System, 2019

Chapter 8.40

HAZARDOUS VEGETATION AND NUISANCE WEEDS

Sections:

8.40.010 Definitions.

8.40.020 Weed removal‑‑Property owner duty‑‑By city.

8.40.030 Weed removal‑‑Collection of charges.

8.40.040 Weed removal‑‑Fee for removal by city.

8.40.050 Violation‑‑Penalty.

8.40.010 Definitions.

A. The following shall be considered hazardous vegetation pursuant to this chapter:

1. Any weeds and any grasses in excess of twenty-four inches in height if they exist within the city limits and abut a street or alley intersection or are within one hundred feet of a developed property located within the city limits or,

2. Accumulations of vegetation in excess of twenty-four inches in height that pose a fire hazard, as determined by the City Fire Department.

B. Nuisance weeds shall be defined as hazardous vegetation as defined pursuant to this chapter. (Ord. 3480, 2012; Ord. 3210, 2002; Ord. 3155, 2000; Ord. 2932 §1, 1995; prior code §3110.1).

8.40.020 Hazardous Vegetation cutting, removal or extermination--Property owner’s duty--By City.

A. It shall be the duty of property owners to maintain their property so that it shall not be considered a fire hazard, a public safety visibility hazard at street or alley intersections, a public health hazard or a public or a private nuisance. The owner, owner’s representative, contract purchaser or any occupant of real property within the city shall cut hazardous vegetation growing on their real property including any public boulevards and alleys abutting their property.

B. The owner, owner’s representative, contract purchaser or any occupant of real property within the City shall remove or exterminate vegetation that poses a hazard as determined by the Development Services Director or designee .

C. In case of their failure to do so, the owner may be subject to the punishment provided in Section 8.40.050, and/or the City may cause the vegetation to be cut 12 calendar days from the date a notice of non-compliance is sent pursuant to 8.40.030.

D. In lieu of cutting all weeds and grasses on the entire parcel, the property owner is permitted to mow or cut a twenty-five foot (25') swath on the property along the border of any adjacent rights-of-way or any adjacent developed property with buildings, and is required to cut a twenty-five foot (25’) swath next to any structures located on the parcel itself.

E. In situations involving parcels of land that are maintained and designated or designed as natural parks/gardens, the owners may request exemption from the Director of Development Services or designated representative. The exemption will be in the form of a Managed Natural Garden/Park Agreement. The purpose is to recognize that private owners may have managed naturalized, less water intensive gardens and lawns. It shall be the duty of such persons to maintain their property so that it shall not be considered a fire hazard, a public safety visibility hazard at street or alley intersections, a public health hazard or a public/private nuisance. Parcels of land designated or designed as natural parks/gardens may lose the designation of exempt, under this ordinance, if the property is not managed as stated in the management agreement.

F. In situations involving parcels of land used for agricultural purposes such as growing crops, that are fully irrigated, the owners may request exemption from the Director of Development Services or designated representative. The exemption will be in the form of an Agricultural Property Management Agreement. It shall be the duty of such persons to maintain their property so that it shall not be considered a fire hazard, a public safety visibility hazard at street or alley intersections, a public health hazard or a public or a private nuisance. Parcels of land used for agricultural purposes may lose the designation of exempt, under this ordinance, if the property is not managed as stated in the management agreement.

(Ord. 3629, 2019; Ord. 3492, 2013; Ord. 3480, 2012; Ord. 3210, 2002; Ord. 3155, 2000; Ord. 2932 §2, 1995; prior code §31‑11).

8.40.030 Hazardous Vegetation cutting, removal or extermination--Collection of charges. In the event the owner, representative of the owner, contract purchaser or occupant of any property required by Section 8.40.020 to cut hazardous vegetation fails to do so, the City may at any time, cause such vegetation to be cut. In the case of accumulation of hazardous vegetation the Development Services Director or designee may cause the accumulated hazardous vegetation to be removed or exterminated and the expense incurred shall be charged against the property or against the owner as provided by law. The cost of such cutting, removal, or exterminating shall be based upon charges as set forth in Section 8.40.040 and collected as a special tax against the property, in accordance with the provisions of MCA Section 7-22-4101.

(Ord. 3629; Ord. 3480, 2012; Ord. 3210, 2002; Ord. 3155, 2000; Ord. 2932 §3, 1995; Ord. 2014 §1, 1979; prior code §31‑12).

8.40.040 Hazardous Vegetation cutting, removal or extermination--Fee for cutting, removal or exterminating by the City.

A. A hazardous vegetation cutting, removal or exterminating fee equal to the amount the contractor bills the City, plus a City administrative fee shall be charged for the cutting, removal or exterminating of hazardous vegetation. The work will be performed by a City assigned cut contractor at the direction of the City. Fees are intended to pay for labor, fuel, equipment and administrative costs.

B. A City administrative fee shall be assessed for each weed and grass cutting, removal or exterminating work order that is processed. The City Council will establish and/or amend the fee by resolution after conducting a public hearing.

C. If a fire originates in the grasses or weeds on a property, the property owner may be assessed costs for fighting that fire if the City Fire Chief deems it appropriate to do so after conducting an investigation of the cause of the fire.

(Ord. 3525, 2014; Ord. 3496 §1, 2013; Ord. 3480, 2012; Ord. 3476, 2012;Ord. 3462 §1, 2011; Ord. 3433 §1, 2010; Ord. 3350, §1 2007; Ord. 3323 §1, 2006; Ord. 3227, 2003; Ord. 3210, 2002; Ord. 3155, 2000; Ord. 2932 §4, 1995: Ord. 2680 §1, 1989; prior code §31‑13).

8.40.050 Violation‑‑Penalty. Any owner, representative, contract purchaser or occupant of the property violating the provisions of Section 8.40.020 shall be fined not less than fifty dollars nor more than five hundred dollars. The imposition of one penalty for any violation shall not excuse the violation or permit it to continue; and all such persons shall be required to correct or remedy such violation within a reasonable time. Each day that prohibited conditions are maintained or allowed to exist shall constitute a separate offense. The application of the above penalty shall not be held to prevent the enforced removal of prohibited conditions. (Ord. 3480, 2012; Ord. 3210, 2002; Ord. 3155, 2000; Ord. 2932 §5, 1995; prior code §31‑15).

Chapter 8.44

BARBED WIRE AND ELECTRICAL FENCES

Sections:

8.44.010 Repealed.

8.44.020 Repealed.

8.44.010 Repealed (Ord. 3577, 2016; Ord. 2722 §1, 1990; prior code §21‑9.1).

8.44.020 Repealed (Ord. 3577, 2016; Ord. 2722 §2, 1990; prior code §21‑9.1).

Chapter 8.48

GENERAL FIRE REGULATIONS

Sections:

8.48.010 Smoking in public places.

8.48.020 Setting fires by smoking‑‑Prohibited.

8.48.030 Setting fires by smoking‑‑Notice to be posted.

8.48.040 Water turn‑off during fires.

8.48.010 Smoking in public places. No person shall smoke or carry any lighted cigarette, cigar or pipe within any theatre, moving picture house, auditorium, gymnasium, grandstand, dance hall or any other public place, building or structure within the city, where people congregate for the purposes of entertainment, amusement, instruction or otherwise; provided, however, that in theatres, moving picture houses, dance halls and other public places within the city where people congregate for the purposes of entertainment, amusement, instruction or otherwise a room or rooms may be provided and designated in which persons may smoke or carry lighted cigarettes, cigars or pipes, but such room or rooms must be so constructed and furnished, and the floor thereof must be so covered, as to meet the approval and requirements and to pass the inspection of the chief of the fire department of the city with respect to fire restricting qualities. (Ord. 2681 §1, 1989; prior code §11‑3).

8.48.020 Setting fires by smoking‑‑Prohibited. No person shall, by smoking or attempting to light or to smoke cigarettes, cigars, pipes or tobacco in any manner in which lighters or matches are employed, in a careless, negligent or reckless manner, whether willfully or wantonly or not, set fire to any building, furniture, curtains, drapes, bedding, house or household fittings or furnishings whatsoever so as to endanger life or property in any way or to any extent. (Prior code §11‑4).

8.48.030 Setting fires by smoking‑‑Notice to be posted. A plainly‑printed notice of Section 8.48.020 shall be posted in a conspicuous place in each sleeping room of all hotels, motels, roominghouses, lodginghouses and other places of public abode advising tenants of the provisions of the section and the penalties thereof. (Prior code §11‑5).

8.48.040 Water turn‑off during fires. Every person using water for irrigation purposes from any system of waterworks upon which the city depends for water during the progress of a fire who shall, upon a fire alarm being given, fail immediately to shut off such water and cease using the same for a period of one hour or until it shall be known that the fire is extinguished, shall be guilty of a misdemeanor. (Prior code §11‑6).

Chapter 8.50

FIRE INSPECTION FEES

Sections:

8.50.010 Establishment of fees.

8.50.010 Establishment of Fees. A processing fee is required for fire department review of building plans during the building permit process and for the inspection of fire and life safety structures and systems. The City Council will establish and/or amend fees by resolution after conducting a public hearing.

(Ord. 3525, 2014; Ord. 3502 §1, 2013; Ord. 3478, 2012; Ord. 3463, 2011; Ord. 3231, 2003)

Chapter 8.52

FIREWORKS

Sections:

8.52.010 Fireworks defined.

8.52.015 Exceptions

8.52.020 Manufacture sale, use and explosion of fireworks.

8.52.027 Professional Fireworks Display Permit

8.52.030 Bond or liability insurance required for display.

8.52.040 Disposal of unfired fireworks.

8.52.050 Exceptions to Sections 8.52.010 through 8.52.040.

8.52.060 Violation‑‑Seizure of fireworks.

8.52.070 Penalty

8.52.010 Fireworks defined.

A. The term “fireworks” means any fireworks defined in 50-37-101 Montana Code Annotated (MCA) as well as any combustible or explosive composition or any substance, or combination of substances, or article prepared for the purpose of providing a visible or audible effect by combustion, explosion, deflagration or detonation and includes sky rockets, roman candles, daygo bombs, blank cartridges, toy cannons, toy canes or toy guns in which explosives other than toy paper caps are used, the types of balloons which require fire underneath to propel them, firecrackers, torpedoes, sparklers or other fireworks of like construction and any fireworks containing any explosive or flammable compound, or any tablets or other device containing any explosive substance

[Codifier’s note: In 2013, portions of this section pertaining to exceptions were amended and moved to a newly established Section 8.52.015 entitled “Exceptions.”]

(Ord. 3512 §1, 2013; Ord. 2983, 1996; Prior code §11‑9.1).

8.52.015 Exceptions

A. This chapter does not apply to:

1. novelties as described in APA (American Pyrotechnics Association) Standard 87-1 section 3.2 (December 2001 Edition) including party poppers, snappers, toy smoke devices, snakes and glow worms, and sparklers, or

2. toy paper caps containing less than one-forth (¼) of a grain of explosive composition per cap, or

3. any resident wholesaler, dealer or jobber wholesaling fireworks that are not prohibited by this chapter or the sale of any kind of fireworks provided the same are to be shipped directly out of state, or

4. the use of fireworks by railroads or other transportation agencies for signal purposes or illumination,

5. the use of explosives when used in quarrying or blasting or other industrial use

6. the sale or use of blank cartridges for ceremonial or theatrical performances, or

7. use blank cartridges for signal or ceremonial purposes in athletics or sports, or

8. use of cartridges by military organizations or law enforcement organizations.

9. any use provided for in 50-37-102 MCA

(Ord. 3512 §2, 2013)

8.52.020 Manufacture sale, use and explosion of fireworks.

The manufacture and/or sale of fireworks is prohibited in the city.

Unless permitted by the Fire Chief in accordance with Section 8.52.027, the use and/or explosion of fireworks are prohibited in the city.

[Codifier’s note: In 2013, this section was retitled “Manufacture, sale, use and explosion of fireworks” from Manufacture in city prohibited—Permit for sale or discharge.” The portions of this section pertaining to permits for public displays of fireworks were moved to newly established Section 8.52.027 entitled “Professional Fireworks Display Permit.”]

(Ord. 3512 §3, 2013; Ord. 3478, 2012; Ord. 3463, 2011; Ord. 2983, 1996; Ord. 2452 §1, 1985; Ord. 2374 §1, 1984; prior code §11‑9.2).

8.52.027 Professional Fireworks Display Permit

A. The Fire Chief shall have power to adopt reasonable rules and regulations for the granting of permits for supervised public displays of fireworks. Every such display shall be handled by a competent operator approved by the chiefs of the police and fire departments of the city and shall be of such a character, and so located, ignited, discharged or fired as in the opinion of the chief of the fire department, after proper inspection, shall not be hazardous to property or endanger any person.

B. Application for permits shall be made in writing at least fifteen days in advance of the date of the display to the treasurer of the city. The fee for the permit is established as follows:

1. Fire performance artists, fireworks operators, and pyro technicians are required to obtain a City business license or business license exemption per 5.08.010 MMC.

2. Fire Performance Art includes but is not limited to fire juggling, fire dancing, and fire eating. Every venue hosting fire performance art is required to obtain a permit. The fire performance art venue permit expires one year after the issuance date and is renewable annually.

3. Pyrotechnic Special Effects include but are not limited to pyrotechnic displays at concerts, sporting events, theatrical productions, and stage shows. The pyro technician or operator conducting a pyrotechnic special effects performance is required to obtain a permit. A separate pyrotechnic special effects permit is required for each date of the event or performance (the Fire Chief may waive this requirement for certain productions, shows, and events involving repeat performances in the same venue).

C. Fire Performance Art Venue and Pyrotechnic Special Effect permit fees are established as follows:

Venue Capacity		Permit Fee
1 – 500 people		$140.00
501 – 1,000 people		$178.00
1,001 – 5,000 people		$204.00
Each additional 5,000 people		$38.00

1. Aerial Pyrotechnic Displays include outdoor aerial fireworks shows or displays. The pyro technician or operator conducting an aerial pyrotechnic display is required to obtain a permit. A separate permit is required for each date of the aerial pyrotechnic display.

The aerial pyrotechnic display permit fees are established as follows:

Vertical and Horizontal Projectile Distance		Permit Fee
0 – 20 feet		$183.00
21 – 50 feet		$236.00
Greater than 50 feet		$290.00

Fire performance art, pyrotechnic special effects, and aerial pyrotechnic displays that are conducted in compliance with a valid permit are lawful under this chapter. Permits granted under this chapter are not transferable.

(Ord. 3512 §4, 2013)

8.52.030 Bond or liability insurance required for display. T The permittee for a permitted fireworks display shall conduct the fireworks display pursuant to Missoula Municipal Code in a manner that is not likely to expose persons or property to risk or injury. The permittee shall submit a complete list of all fireworks that will be used in the fireworks display as part of any application for a fireworks display permit. The permittee shall furnish pursuant to the following list a bond or liability insurance conditioned for payment of all damages which may be caused to person or persons or to property by reason of the licensed fireworks display and arising from any acts of the licensee, his agents, employees or subcontractors:

A. If the permitted fireworks display is comprised entirely of fireworks that have a projectile distance of no greater than twenty feet horizontally or vertically for any individual firework the permittee shall either post a bond with the city or possess liability insurance in the amount not less than one hundred thousand dollars;

B. If the permitted fireworks display is comprised entirely of a ground display and/or fireworks having a projectile distance no greater than fifty feet horizontally or vertically for any individual firework, the permittee shall either post a bond with the city or possess liability insurance in an amount not less than three hundred thousand dollars;

C. If the permitted fireworks display includes any fireworks that have a projectile distance in excess of fifty feet horizontally or vertically, the permittee shall either post a bond with the city or possess liability insurance in an amount not less than one million dollars. (Ord. Ord. 2983, 1996; Ord. 2452 92, 1985; Ord. 2374 §2, 1984; prior code §11‑9.3).

8.52.040 Disposal of unfired fireworks. Any fireworks that remain unfired after a permitted fireworks display is concluded shall immediately be disposed in a safe manner that is approved by the chiefs of the fire and police department. (Ord. 3512 §6, 2013; Ord. 2983, 1996; Prior code §11‑9.4).

8.52.050 Repealed. (Ord. 3097, 1999; Ord. 3061, 1998; Ord. 2983, 1996; Prior code §11‑9.5).

[Codifier’s note: In 2013, Section 8.52.050 entitled “Exceptions to Sections 8.52.010 through 8.52.040” was repealed, amended and incorporated into newly established Section 8.52.015]

8.52.060 Violation, enforcement and seizure of fireworks. City police and fire departments are responsible for enforcing this chapter and are authorized to:

A. seize, take, remove or cause to be removed at the expense of the owner all stocks of fireworks offered or exposed for sale, stored, being used or held in violation of this chapter or in violation of any state or federal law regulating fireworks.

B. Issue a “Notice to Appear to Missoula Municipal Court” for violations of this chapter.

It shall not be an offense pursuant to this chapter to possess fireworks permitted by Montana state law for use within the State of Montana.

(Ord. 3512 §8, 2013; Ord. 2983, 1996; Ord. 2682 §1, 1989; prior code §11‑9.6).

8.52.070 Penalties. Any person who violates this chapter shall be guilty of a misdemeanor and subject to the following fines:

Offense	Penalty
1st offense	$100 + court costs
2nd offense (during the same calendar year as the 1^st offense)	$300 + court costs

There shall be no penalty of imprisonment for a violation of any provision of this chapter. (Ord. 3512 §9, 2013; Ord. 2983, 1996)

Chapter 8.56

TRANSPORTATION OF RADIOACTIVE MATERIAL

Sections:

8.56.010 Purpose.

8.56.020 Definitions.

8.56.030 Transportation of radioactive materials prohibited.

8.56.040 Exceptions‑‑Extraordinary permits.

8.56.045 Administrative regulations.

8.56.050 Violation‑‑Penalty.

8.56.010 Purpose. The purpose of this chapter is to fulfill the constitutional requirement to maintain and improve a clean and healthful environment in Montana for present and future generations, to protect the health and safety of the citizens of Missoula from radiation exposure resulting from transportation accidents involving radioactive materials, to protect the citizens of Missoula from the cost of clean‑up and the immediate residual health costs to those citizens exposed to radioactive materials, to protect the property interest and value of that property which is located near or adjoining transportation routes which would be affected in the event of transportation accidents, to implement the public policy of the county of Missoula to maintain a nuclear‑free zone within Missoula County, a policy established by initiative of the citizens on November 7, 1978, and to protect the general health, safety, comfort, and welfare of the citizens of Missoula. (Ord. 2181 §1, 1980; Ord. 2104 §1, 1980).

8.56.020 Definitions. For the purposes of this chapter, the following words shall have the meanings ascribed to them:

A. "Intermediate amounts" means any quantity or radioactive material greater than a small amount being carried in a single transportation unit, the aggregate total activity of which does not exceed, for the particular type of radioactive material being transported, a level which could cause it to be classified as a "Large Quantity" rather than a "Type B" quantity, as defined and described in U.S. Nuclear Regulatory Commission regulations, 10 C.F.R. 71.4(f), 10 C.F.R. 71.4(q), and 10 C.F.R. 71, Appendix C, as these regulations exist on the effective date of the ordinance codified in this chapter.

B. "Person" means any person, firm, partnership, association, corporation, company, governmental entity or department thereof, or organization of any kind and includes, where applicable, any officers or employees of an organization who are responsible for or cause acts violative of law.

C. "Radioactive material or substance" means any material or combination of materials which spontaneously emits ionizing radiation and includes, but is not limited to, accelerator‑produced isotopes and by‑product materials.

The term "radioactive material or substance" does not include unconcentrated or unprocessed materials as they occur in nature which emit radiation. The term does include, without limitation, all materials which enter into or are produced as part of the nuclear fuel cycle including milled uranium ore, and radioactive waste of any type; fissile material, whether or not used for or incorporated in weaponry; and all fission by‑products.

D. "Single transportation unit" means any vehicle which, if involved in a transportation accident, would subject each package or container within it equally to the chance of damage or destruction. Examples of single transportation units are one railroad car or one truck trailer.

E. "Small amounts" means any quantity of radioactive material being carried in a single transportation unit, the

aggregate total activity of which does not exceed, for the particular type of radioactive material being transported,

a level which would cause it to be classified as a "Type B" rather than a "Type A" quantity, as defined and described

in U.S. Nuclear Regulatory Commission regulations, 10 C.F.R. 71.4(q), and 10 C.F.R. 71, Appendix C, as these regulations exist on the effective date of the ordinance codified in this chapter.

F. "Transport" is the transportation by any mode, including but not limited to rail, highway, waterway or air. (Ord. 2181 §2, 1980; Ord. 2104 §2, 1980).

8.56.030 Transportation of radioactive materials prohibited. No person shall transport into or through the city any radioactive material or substance, except under the circumstances described in Section 8.56.040 of this chapter. (Ord. 2181 §3, 1980; Ord. 2104 §3, 1980).

8.56.040 Exceptions‑‑Extraordinary permits.

A. Small amounts of radioactive material may be transported into and through the city so long as such transportation takes place in accordance with applicable laws and regulations of the United States, the state, and the city.

B. Intermediate amounts of radioactive material may be transported into or through the city provided that:

1. No later than twenty‑four hours prior to the arrival of any such shipment in Missoula, notification of the shipment has been submitted to and received by the chief of police. Such notification shall include at least the

following information:

a. Name of shipper;

b. Name of carrier;

c. Name of consignee;

d. Type and quantity of radioactive material, including identification of the aggregate radioactive level of the shipment in curies;

e. Proposed date and time of shipment;

f. Starting point, scheduled route, and destination;

g. Name, address, and telephone number of the person submitting the notice (whether consignee, shipper, or carrier); and

h. Identification of vehicle transporting the radioactive materials.

Such notification shall be supplemented currently if necessary to reflect changes in the shipment, including change of date and time of transmit into or through the city. Failure to provide such notification shall render the shipment an unlawful transportation of radioactive material under the terms of this chapter, and shall subject all persons responsible for such transport to penalties therefor.

2. In the case of shipments scheduled to be made into or through Missoula during the period November 15th

through March 30th of each year, the chief of police may, upon receipt of the notification required in subdivision 1

and within six hours of the scheduled time of transit into or through the city, temporarily exclude such shipment

from the city if, in his opinion, currently existing weather or highway conditions render such transportation unreasonably hazardous. Such exclusion shall continue only for the period of time that the chief determines that such weather or highway conditions persist.

1. Larger than intermediate amounts of radioactive material may, in extraordinary circumstances, be transported into or through the city upon issuance of an extraordinary permit for such transport by the city council. Any person wishing such a permit shall apply to the city for the permit and provide the city with the following information:

a. Name of shipper;

b. Name of carrier;

c. Name of consignee;

d. Type and quantity of radioactive material, including identification of the aggregate radioactive level of the shipment in curies;

e. Proposed date and time of shipment;

f. Starting point, scheduled route, and destination; and

g. Any other information required by the council, including information on the past safety record of shipper and carrier.

2. The council shall hold a public hearing upon the permit application, and grant or deny the permit. The permit

may be granted only upon a finding that:

a. The shipment is of a special nonrecurring nature, such that a similar permit will not be required more than once annually; and

b. The shipment is in the public interest, is not violative of public policy, and involves compelling considera-tions of public health, safety or welfare which transcend the public health and safety concerns of this chapter;

c. The transporting of such material will be accomplished in a manner which securely protects the health and safety of the citizens of the city.

In granting such a permit, the council may require changes in dates or routes for the transporting of such material, and the use of escorts if necessary to protect the public health and safety. It may also require the applicant to post an appropriate bond conditioned upon the safe transportation of the material through the city, and may also require the applicant to pay any costs the city may incur in ensuring compliance with the permit, including escorts costs, if any.

D. The city council may, in its discretion, deny permission to any shipper or carrier of radioactive materials of whatever type or quantity, to transport such materials into or through Missoula if, upon notice and hearing, it finds that such person has in the past habitually transported or caused to be transported such materials in a grossly negligent manner or has an accident history indicating the likelihood of unsafe transportation in the future. (Ord. 2181 S4, 1980; Ord. 2104 §4, 1980).

8.56.045 Administrative regulations. The chief of police of the city is authorized to promulgate, and, subsequent to their approval by the city council, enforce appropriate regulations to implement Section 8.56.040. (Ord. 2181 §5, 1980).

8.56.050 Violation‑‑Penalty. Any person transporting radioactive material in violation of the provisions of this chapter shall be guilty of a misdemeanor and shall be fined not more than five hundred dollars or imprisoned for not more than six months, or both, for each offense. (Ord. 2181 §6, 1980; Ord. 2104 §5, 1980).

Chapter 8.58

FIREARMS IN PUBLIC BUILDINGS AND LOCATIONS OF PUBLIC ASSEMBLY

Sections

8.58.010 Firearms prohibited in certain public buildings or other locations of public assembly‑‑Exceptions.

8.58.020 Firearms prohibited in public meetings and public assemblies

8.58.025 Consistency with state regulation required

8.58.030 Penalty.

8.58.010 Firearms prohibited in certain public buildings or other locations of public assembly —Exceptions

A. Under the authority provided to counties, cities, towns, consolidated local governments or other local government units by 45-8-351 (2)(a) Montana Code Annotated which states “For public safety purposes, a city or town may regulate the discharge of rifles, shotguns, and handguns. A county, city, town, consolidated local government, or other local government unit has power to prevent and suppress the carrying of concealed or unconcealed firearms to a public assembly, publicly owned building, park under its jurisdiction, or school, and the possession of firearms by convicted felons, adjudicated mental incompetents, illegal aliens, and minors,” no person shall wear, bear, or otherwise carry any firearm, whether concealed or unconcealed, or any explosive device into:

1. Missoula city hall

2. Missoula City Council Chambers

3. City Council meeting buildings

4. Public museums

5. Public library

6. Public parks under the City’s jurisdiction as shown in Exhibit A. Amendments to Exhibit A shall be made by City Council resolution.

7. Any public election polling places

8. Public school building within the city, excluding The University of Montana

9. Any other locations of public assembly where persons gather together to conduct and/or administer any public election while election related activities are taking place.

B. This section shall not apply to:

1. Peace officers of the state or the United States government;

2. Persons participating or displaying guns and weapons at shows authorized by the city or school;

3. Persons participating in hunter or gun safety courses sanctioned by the Montana Fish Wildlife and Parks Department and authorized by the city or school;

4. Open space conservation lands that are under the City’s jurisdiction;

5. Commuter shared use paths or trails as listed in Exhibit B. Amendments to Exhibit B shall be made by City Council resolution;

6. Persons specifically authorized by the city or school to carry firearms or demonstrate or use explosive devices on its premises.

(Ord. 3619 §1, 2018; Ord. 2322 §1, 1983).

8.58.020 Firearms prohibited in public meetings and public assemblies

A. It is unlawful for any person, other than a peace officer of the state or the United States government, to attend a public meeting anywhere within the city or public assembly as defined in 8.58.010B wearing, bearing, or carrying a firearm or explosive device, unless specifically authorized by the agency conducting the public meeting or public assembly.

B. For the purposes of this chapter a public meeting means the convening of public or governmental bodies, boards, bureaus, commissions, agencies of the state, or any political subdivision of the state for the purpose of hearing, discussing or acting upon a matter over which the agency has supervision, control, jurisdiction, or advisory power.

(Ord. 3619 §2, 2018; Ord. 2322 §2, 1983).

8.58.025 Consistency with state regulation required.

A. A local government with self-government powers is prohibited the exercise of any power in a manner inconsistent with state law or administrative regulation in any area affirmatively subjected by law to state regulation or control.

(Ord. 3619 §3, 2018)

8.58.030 Penalty

Any person convicted of a violation of this chapter shall be subject to a fine up to five hundred dollars. Incarceration shall not be a penalty for violation of sections 8.58,010 or 5.58.020 Missoula Municipal Code.

(Ord. 3619 §4, 2018; Ord. 2322 §3, 1983).

Chapter 8.60

OUTDOOR BURNING REGULATIONS

Sections:

8.60.010 Definitions.

8.60.015 Fire Nuisance Prohibited.

8.60.020 Open burning restricted.

8.60.025 Enforcement Authority.

8.60.030 Violation‑‑Penalty.

8.60.010 Definitions. For the purpose of this chapter, the following definitions apply:

A. “Bonfire” means a ceremonial fire conducted by a state-accredited school, a nonprofit organization, a government entity, or a religious organization for the purpose of celebrating a particular organization-related event, where only cordwood or untreated dimensional wood will be used as fuel.

B. “Health Department” means Missoula City-County Health Department.

C. “Fire nuisance” means any thing or act, which is annoying, unpleasant, offensive or obnoxious because of fire.

D. “Manufactured firewood,” means wood products that are made specifically for use as fuel for fires. “Manufactured firewood” includes items such as “presto logs” and does not include materials such as plywood or pressboard.

E. “Non-profit organization” means an organization exempt from taxation under section 501(c) of the Internal Revenue Code of 1954.

F. “Outdoor Burning” means combustion of any material out-of-doors, with or without a receptacle. “Outdoor Burning” does not include, the use of a barbeque fueled by natural gas, propane or wood, or charcoal briquettes for cooking purposes on private property, or the use of heating devices using refined liquid or gaseous fuel. (Ord. 2445 S1, 1985)

G. “Trade waste” means waste material resulting from construction or operation of any business, trade, industry or demolition project, including wood products industry wastes such as sawdust, bark, peelings, chips, shavings and cull wood. Trade wastes do not include untreated vegetation produced by agricultural operations, or wood wastes generated relatively close to a timber harvest site. (Ord. 3175, 2001; Ord. 2445 §1, 1985).

8.60.015 Fire Nuisance Prohibited. Within the Missoula city limits, a person may not cause a fire nuisance, as determined by the fire or health department. (Ord. 3175, 2001)

8.60.020 Open burning restricted.

A. Outdoor Burning is unlawful within Missoula city limits except as specifically authorized below.

B. Notwithstanding subsection A above, outdoor burning may be allowed within the city limits if:

1. A valid permit has been issued by the health department or its authorized agent;

2. The fire has been approved by the city fire department;

3. The fire does not cause a fire nuisance as determined by the fire or health department;

4. The fire is conducted in accordance with the Uniform Fire Code and the Missoula City-County Air Pollution Control Program; and

5. The fire is for one of the following purposes:

a. eliminating a fire hazard that cannot be abated by any other means; or

b. firefighter training; or

c. thawing frozen ground to allow excavation of utilities; or

d. eliminating hazards in an emergency; or

e. burning a bonfire as long as the time, location and fuel are approved in writing by the Health, police and fire departments prior to conducting the bonfire; or

f. eliminating natural vegetation or untreated dimensional lumber as long as the material is not trade waste, was generated on the property where it will be burned, and will be burned on parcels of at least one acre under single ownership. or

g. maintaining an irrigation ditch, as long as the fire will not come within 50 feet of structures.

h. for agricultural activities that meet the definition of MCA 76-2-902. (Ord. 3175, 2001; Ord. 2705 §1, 1989; Ord. 2445 §2, 1985).

8.60.025 Enforcement Authority.

A. The fire department has the primary responsibility of enforcement of all provisions of this chapter. The health department and police department also have authority to enforce the provisions of this chapter. (Ord. 3175, 2001)

8.60.030 Violation‑‑Penalty. It is a misdemeanor for any person to do any act forbidden by this chapter. Every person convicted of a violation of any provision of this chapter shall be punished by a fine not exceeding five hundred dollars for each offense. Each day any violation of any provisions of this chapter continues shall constitute a separate offense. There shall be no penalty of imprisonment for any violation of Chapter 8.60, Missoula Municipal Code. No person shall be arrested for violating a provision of this ordinance. (Ord. 3175, 2001; Ord. 2445 §3, 1985).

Title 8.62

PESTICIDE NOTIFICATION AND CONTAMINATION PREVENTION

Chapters:

8.62.010 Legislative Intent.

8.62.020 Definitions.

8.62.030 Contamination Prevention.

8.62.040 Notification Required.

8.62.050 Enforcement.

8.62.060 Penalties.

8.62.010 Legislative Intent The City Council enacts these requirements concerning notification of pesticide use in order to provide the city’s inhabitants with information useful to preserve their health, safety and welfare. Scientific studies of pesticides clearly indicate a potential for certain concentrations to harm to human health. Notification will help citizens who are specially sensitive to chemicals to avoid exposure to pesticides and the attendant symptoms. Many citizens who are not specially sensitive to chemicals nevertheless wish to avoid exposure to pesticide on the grounds that such exposure may cumulatively undermine their health; notification will help these people avoid pesticide exposure. The requirement of notification may serve an educational function in calling to the attention of pesticide users the possible ill effects of such use. The city council finds that the provisions of this chapter comply with MCA 80-8-120. (Ord. 3022, 1997)

8.62.020 Definitions. As used in this chapter, the following terms shall have the following meanings unless the context clearly indicates that a different meaning is intended:

A. “Applicator” means a commercial applicator as defined in MCA 80-8-102(6)

B. "Pesticide" means any substance or mixture of substances with an EPA pesticide registration number. The following products are not pesticides for the purposes of this ordinance:

1. Wood preservatives when applied out of doors by brush, dipping or spraying from a distance of less than one foot; and

2. "Low Risk" pesticides identified by the US EPA pursuant to 40 CFR 152.25

3. Other pesticides determined to be of low risk by unanimous approval of the Missoula City-County Health Officer, a practicing MD toxicologist, and the county extension agent.

4. A sanitizer, a disinfectant, or a microbial registered with the environmental protection agency. (Ord. 3022, 1997)

8.62.030 Contamination Prevention.

A. No person shall connect to a potable water supply for the purpose of mixing or applying pesticides in a manner that violates the Uniform Plumbing Code, Section 1002 - Unlawful Connections or Section 1003 Cross Connection Control, or the most recent equivalent adopted into the Missoula Municipal Code.

B. No person shall dispose of pesticides into the city sewer in a manner that violates the Sewer Pretreatment Requirements of the City as specified in Chapter 13.06 of the Missoula Municipal Code.

C. No person shall dispose of pesticides in a manner that violates M.C.A. 75-5-605. (Ord. 3022, 1997)

8.62.040 Notification Required. An applicator of pesticides shall post a sign or signs at the time of the pesticide application or provide notification as provided for in subsection 4 (D). The City recommends that all persons post notice of use of pesticides. The applicator, property owner, or property manager may not remove a sign until the pesticide is dry or the reentry interval on the pesticide label has expired, whichever is later.

A. A sign must be:

1. at least 4 inches in height and 5 inches in width; and

2. made of weather‑resistant material if used for outdoor application.

B. A sign must contain:

1. the words "pesticide application"; and

2. the telephone number of the applicator, property owner, or property manager who can supply further information about the pesticide.

C. A sign must be posted:

1. at a point clearly visible from each street or road frontage of the property so that the warning is conspicuous from the public right‑of‑way;

2. for an interior application, at each public access to the treated property with the front of the sign facing the access;

3. for a golf course, at a conspicuous place in the clubhouse or pro shop or at the first and tenth tees.

D. It is recommended that signs have lettering of at least 3/8 inches in height, with no greater size of letters for the applicator than for any other information, and consist of dark lettering on a bright yellow background.

E. Notification for an application by a mosquito control district or a weed control district must be provided in a local newspaper or on local radio or television stating that the property will be treated and providing the telephone number of an individual who can supply further information on the pesticide applications. Notification under this subsection 4 (D) must be made annually in the spring and periodically during the pesticide application season.

F. Posting or notification is not required for the following:

1. a spot treatment of an area that is less than 100 square feet;

2. an applicator subject to the environmental protection agency's worker protection standards as published in 40 CFR, part 156, subpart K, and 40 CFR, part 170;

3. an application on land classified as agricultural land or forest land for taxation purposes;

4. an application on an irrigation conveyance facility or land or on an irrigation ditch easement or right‑of‑way;

5. an application on a railroad facility or right‑of‑way;

6. an application on a public utility facility or right‑of‑way. (Ord. 3022, 1997)

8.62.050 Enforcement.

A. For the purpose of carrying out the provisions of this chapter, the Health Officer, Police, Parks Director, Public Works Director, or Development Services Director, or respective designee may enter upon any public or private land in a reasonable and lawful manner during reasonable business hours for the purposes of inspection and observation. The Mayor's office will determine the most appropriate primary enforcement agency and shall consult to determine the amount of funds necessary to provide education and enforcement of this regulation. The primary enforcement agency shall be provided additional funds to carry out these services.

B. If denied access to any land, or building, the enforcing agency may apply to the municipal court for a search warrant or other appropriate court order.

(Ord. 3492, 2013; Ord. 3022, 1997)

8.62.60 Penalties. A person who violates this ordinance:

A. is subject to a written warning for the first violation;

B. is guilty of a misdemeanor and upon conviction may be fined not more than $50 for the second violation; and

C. is guilty of a misdemeanor and upon conviction may be fined not more than $500 for a third or subsequent conviction.

D. Imprisonment shall not be used as a penalty. Each day of violation shall constitute a separate offense. (Ord. 3022, 1997)

Chapter 8.64

MISSOULA OUTDOOR LIGHTING ORDINANCE

Sections:

8.64.010 Findings

8.64.020 Purpose and Intent

8.64.030 Definitions

8.64.040 Lighting Administration

8.64.050 Applicability

8.64.060 Prohibitions and Exemptions for Commercial, Industrial, and Multi-Family Residential Installations

8.64.070 General standards for New Commercial, Industrial, and Multi-Family Residential Lighting Installations

8.64.080 General standards for exterior residential lighting installations

8.64.090 Non-conforming Commercial, Industrial, or Multi-Family Residential light fixtures

8.64.100 New Street Lighting

8.64.110 Submittal and Certification

8.64.120 Appeal

8.64.130 Violations and Procedures

8.64.140 Conflicts with other ordinances or applicable codes

8.65.150 Repealed

8.64.010 Findings.

A. Excessive and improperly located lighting can cause unsafe and unpleasant conditions.

B. Lighting which is appropriate to the location and purpose can enhance safety and enjoyment of the city. (Ord. 3341, 2007)

8.64.020 Purpose and Intent. This ordinance is established to promote the public health, safety, security, and the nighttime use and enjoyment of property, including:

A. To protect and improve safe travel for all modes of transportation

B. To reduce light pollution, light spillover, glare, and unnecessary light intensity

C. To promote lighting practices and systems to conserve energy

D. To maintain and improve nighttime aesthetics of Missoula, including preservation of the night sky.

This ordinance provides basic outdoor lighting requirements based on industry standards. Creative use of outdoor lighting to supplement building architecture, enhance outdoor enjoyment and other uses of lighting are encouraged rather than discouraged within the framework of ordinance requirements. (Ord. 3341, 2007)

8.64.030 Definitions.

CANDELA: The metric unit luminous intensity (that is, power emitted by a light source in a particular direction, with wavelengths weighted by the luminosity function, a standardized model of the sensitivity of the human eye).

CUTOFF: See FULL CUTOFF or SEMI CUTOFF

DIRECT GLARE SOURCE: Light that originates in a direct line of sight from a source which results in objectionable glare.

EXISTING STREET LIGHTING: Those streetlight fixtures in operation prior to the effective date of this ordinance.

LIGHT FIXTURE: The assembly that holds the lamp in a lighting system. It includes the elements designed to give light output control, such as a reflector (mirror) or refractor (lens), the ballast housing, and the attachment parts.

FOOTCANDLE: (fc) a unit of measurement for a total amount of light cast on a surface (illuminance). One foot-candle is equivalent to the illuminance produced by a source of one candle at a distance of one foot. Vertical foot-candle is the measurement on a vertical surface. Horizontal foot-candle is a measurement on a horizontal surface.

FULL CUTOFF FIXTURE: An outdoor lighting fixture that emits 0% of its light above 90 degrees and 10% above 80 degrees from horizontal. This is a standard IESNA definition.

GLARE: The sensation produced by a light source that is sufficiently brighter than the level to which the eyes are adapted causing annoyance, discomfort, or loss in visual performance and visibility. The magnitude of glare depends on such factors as the size, position, brightness of the source, and on the brightness level to which the eyes are adapted.

GRADE: Ground level directly under the light fixture. Interchangeable with parking lot pavement surface and GROUND.

GROUND: Same as GRADE

HEIGHT: The distance between the lamp in a light fixture and the ground, measured perpendicular to the ground.

HISTORIC STREETLIGHT: Streetlight fixtures and poles manufactured before January 1, 1945, and streetlight fixtures manufactured after 1945 that are designed to replicate streetlight fixtures manufactured before January 1, 1945.

HORIZONTAL FOOTCANDLE: The amount of light measured on a horizontal surface

IESNA: Illumination Engineering Society of North America. The professional society of lighting engineers. IESNA publications contain industry standard guidelines for lighting design, including outdoor lighting.

ILLUMINANCE: The amount of luminous flux per unit area in the English system, equal to one lumen per square foot, and measured in foot-candles. The metric system uses the lux. One foot-candle equals approximately 0.1 (0.093) lux.

INITIAL LUMENS: Amount of luminous flux emitted by a lighting fixture at initial installation. Initial Lumens are usually listed by the manufacturer. A 100 watt incandescent light bulb emits approximately 1800 lumens.

LIGHT SOURCE: Artificial light emitted directly from a fixture lamp, lens, or mirror. Light which is reflected after leaving the fixture does not constitute a light source.

LIGHT SPILLOVER: Any form of artificial illumination emanating from a light fixture that spills over property boundaries and creates a direct glare source that exceeds 0.5 foot-candles horizontal on the work plane at the subject property line.

LIGHT TRESPASS: See LIGHT SPILLOVER

LIGHTING ADMINISTRATION: The part of the City of Missoula designated to administer the provisions of this ordinance.

LIGHTING PROFESSIONAL: An individual capable of specifying and designing lighting systems in accordance with the provisions of this ordinance. Lighting Professionals may include but are not necessarily limited to license Lighting Designers, Professional Engineers, Architects, lighting company representatives skilled in lighting system design, utility company employees skilled in lighting design, and electrical contractors skilled in lighting design. Qualified Lighting Professionals are determined by the Lighting Administration.

LUMEN: Unit of luminous flux; used to measure the amount of light emitted by lamps. LUMINAIRE: Same as LIGHT FIXTURE above

LUMINOUS FLUX: A measure of the energy emitted by a light source in all directions. The metric unit of Luminous flux is the lumen (lm). One lumen is defined as the amount of light that falls on a unit spherical area at unit distance from a light source of one candela.

MAINTAINED ILLUMINANCE LEVEL: Lamps emit less luminous flux over time and therefore illuminance levels of an installation will decrease over time. The maintained illuminance level is usually determined as a percentage of the initial illuminance level. The percentage is different for the various types of lamp sources. This number is reported as a part of the photometric plan.

MCBA: Missoula Building Code Board of Appeals

MEAN LUMENS: The lumen output of a lamp after it has operated for approximately 40% of its rated life.

NEW: Lighting installed after the effective date of this ordinance as in ‘new lighting’.

NUISANCE: any improperly specified, installed, unshielded, or misdirected light fixture or luminaire.

ROOF EDGE: Top of parapet wall or leading edge of the highest roof system (eaves and rakes).

SEMI CUTOFF: An outdoor lighting fixture that emits no more than 5% of its light above 90 degrees and 20% above 80 degrees from horizontal. This is a standard IESNA definition.

STREETLIGHT: An outdoor light fixture located within a public right of way.

TUBE LIGHTING FIXTURE: A light with a bulb containing neon gas that glows different colors when high-voltage current is passed through it or illuminated using LED or similar technology.

UPLIGHT: Light projected above the horizontal plane passing through the light fixture lamp. VERTICAL FOOTCANDLE: The amount of light measured on a vertical surface. (Ord. 3582, 2016; Ord. 3341, 2007)

8.64.040 Lighting Administration.

A. General. The Lighting Administration is the part of the City of Missoula government designated to administer this ordinance.

B. Responsibility. The Lighting Administration is responsible for the following:

1. Administration of the lighting ordinance

2. Interpreting the lighting ordinance provisions and requirements

3. Final approval of lighting plans submitted for Commercial, Industrial, and Multi-Family Residential new construction permits

4. Approval of exceptions as listed in the ordinance

5. Approval or disapproval of variances from the provisions of this ordinance

6. Recipient of complaints regarding violations of this ordinance

7. Delegation and overseeing of a complaint investigation

8. Adjudication of a complaint

9. Approval of applications to be deemed a ‘Lighting Professional’ as described in this ordinance(Ord. 3341, 2007)

8.64.050 Applicability.

A. New Commercial, Industrial, and Multi-Family Residential outdoor lighting. This ordinance shall apply to all outdoor lighting fixtures and land uses established after the effective date of this ordinance.

B. New Residential. This ordinance shall apply to Residential installations as listed in 8.65.080 of this ordinance.

C. Expansion or Redevelopment of Existing Commercial, Industrial, and Multi-Family Residential. This ordinance shall apply to the entire building/structure, parking area, or use, as appropriate, under the following conditions:

1. When an existing building or structure is expanded in size by 25 percent or more

2. When the area of an existing parking area is expanded in size by 25 percent or more

3. When an existing outdoor use (e.g., outdoor storage, vehicle sales) is expanded in size by 25 percent or more.

(The stated thresholds in items 1, 2, or 3 apply to a single addition or cumulative additions occurring after the effective date of this ordinance).

4. When there is a change in the primary use of the subject property.

EXCEPTION: Provisions of 8.64.050 (C) may be waived if the 25% redevelopment trigger of part of the said property would result in excessive lighting upgrade or replacement costs. In general, lighting upgrade or replacement costs can be considered excessive when they are greater than 25% of the total project costs.

D. Replacement of existing Commercial, Industrial, and Multi-Family Residential lighting systems. This ordinance shall apply to the replacement of existing lighting fixtures as part of an existing outdoor Commercial, Industrial, and Multi-Family Residential lighting installation even if the original lighting installation was purchased and/or installed before the effective date of this ordinance.

Replacement of a singular fixture within an assembly or group of singular fixtures may be the same as existing unless such replacements are no longer available. In such case the replacement fixtures shall be compliant with this ordinance.

E. Existing Commercial, Industrial, and Multi-Family Residential lighting systems. This ordinance shall not apply to Commercial, Industrial, and Multi-Family Residential lighting fixtures installed before the effective date of this ordinance unless operation of such fixtures constitute a safety hazard. (Ord. 3341, 2007)

8.64.060 Exemptions and Prohibitions for Commercial, Industrial, and Multi-Family Residential Installations

A. Exempted Commercial, Industrial, and Multi-Family Residential:

1. All lighting required by state or federal agencies.

2. Seasonal displays using multiple low wattage bulbs (approximately fifteen lumens or less), provided that they do not constitute a fire hazard, create a nuisance, and are maintained in a safe condition.

3. Lighting used during an emergency.

4. Light fixtures attached to a multi-family residential building which are less than 2,000 lumens and mounted below the eave and shall be full cutoff with no light trespass.

5. Lighting placed underwater to illuminate swimming pools or fountains.

The Lighting Administration may authorize additional property specific exemptions when proposed lighting does not conflict with the purposes of this ordinance. An application for such an exemption must be made in writing and include an outdoor lighting plan prepared and signed by a Lighting Professional.

B. Prohibited Commercial, Industrial, and Multi-Family Residential Lighting. The following types of outdoor lighting are specifically prohibited:

1. Lighting that could be confused for a traffic control device

2. Lighting that is oriented upward, except as otherwise provided for in this ordinance

3. Search lights, laser source lights, or any similar high-intensity light except for those used in emergencies by police and fire personnel or at their direction, or for approved temporary lighting under a special event permit issued by the City of Missoula.

4. Blinking, flashing, moving, scintillating, flickering, changing intensity, and changing colors light fixtures not otherwise permitted by the sign ordinance.

5. Any lamp or bulb when not within a Light Fixture and which is visible from the property boundary line of the parcel on which it is located, except for landscape ornamental lighting.

6. A string of lights, individual lamps larger than 45 lumens, suspended between 2 or more objects (e.g., between 2 poles) unless used only for seasonal decorations.

7. Mercury vapor light fixtures.

8. Any lighting fixture or device that is operated in such manner as to constitute a hazard or danger to persons, or to safe vehicular operation. (Ord. 3582, 2016; Ord. 3341, 2007)

8.64.070 General standards for new Commercial, Industrial, and Multi-Family Residential Lighting Installations.

A. Illumination Standards. Unless otherwise specified, illumination shall have maintained intensities and uniformity ratios in accordance with the current recommended practices of the IESNA, as from time to time amended. Illumination shall be measured from grade and when the ground is free of snow. Illumination levels shall be no more than 125% of the minimum IESNA recommended horizontal foot-candles for the given task.

B. Illumination level at property boundary line. When a Commercial, Industrial or Multi-family use abuts a Residential use, illumination at the property boundary line from the Commercial or Industrial property may not exceed 0.5 vertical foot-candles. When a Commercial or Industrial use abuts a public right-of-way, or another Commercial or Industrial use, illumination at the property boundary line may not exceed 1.0 vertical foot-candles.

C. Pole-mounted Light Fixtures. Light Fixtures shall not be higher than 30 feet in all Commercial, Industrial, and Multi-Family Residential areas.

EXCEPTION: For parking lots with fewer than seventy-five spaces, the pole mounted light fixture shall not be mounted higher than 20 feet.

D. Building-mounted Light Fixtures. In Commercial, Industrial, and Multi-Family Residential areas, building-mounted light fixtures shall not be attached to a sloped roof and shall not be higher than 20 feet or the height of the building, whichever is less.

EXCEPTION: Where building mounted fixtures are used solely to illuminate architecture features of the building, such fixtures must comply with all applicable provisions of this ordinance including

8.64.080 (B).

E. Continued maintenance. Lighting installations for Commercial, Industrial, and Multi-Family Residential installations, shall be maintained to meet the provisions of this ordinance.

F. Lighting controls for Commercial and Industrial Parking Areas Lighting in vehicle parking areas containing 20 parking spaces or more shall be reduced to 50 percent of permitted levels as stated in 8, 64.070 (A) one hour after the business closing to one hour before the business opens. If lighting levels are already below 50 percent of permitted levels, no lighting adjustment is required.

EXCEPTION: The Lighting Administration may waive the 50% lighting level requirement where reduced lighting levels would reduce security or safety. Multi-family Residential uses are exempt from 8.64.070 (F).

G. Light Fixture types. If lighting is installed for parking areas, along internal streets, sidewalks, and trails, the light fixtures must be full cutoff rated.

H. Historic, period, or pole top decorative light fixture. To promote a unified development theme, post top light fixtures (also referred to as period lighting or decorative lighting) may be used if they are:

1. Equipped with cutoff or semi cutoff optics

2. Mounting height no more than 16 feet

3. Lamp lumen output no more than 17,600 initial lumens (175 watt pulse start metal halide lamp)

4. Light spillover shall be in accordance with the Definition in this ordinance.

EXCEPTION: The Lighting Administration in consultation with the Historic Preservation Officer may waive the provisions of 8.64.070 (H) if these provisions provide significant degradation of the historic nature of the facility and for which there is no reasonable alternative light fixture.

I. Flag poles, statues and similar monuments. A flag pole bearing a state flag, a flag of the United States or a flag of a foreign nation may be illuminated, provided the following standards are met:

1. The light fixture lamping or lens shall be fully shielded from direct view by pedestrians or vehicular traffic.

2. Upward aiming light fixtures shall be set back no more than 30% of the object height nor should be no closer than 15% of the object height unless it can be demonstrated that a closer mounting of the light fixture results in less sky illumination.

3. The light fixtures shall not collectively exceed 40,000 initial lumens.

4. Public statues, memorials or other monuments may also be illuminated in a similar manner, provided the above standards are met.

J. Exterior lighting of a building:

1. Lighting may be used only to accentuate an architectural or aesthetic element of the building, not the entire building.

2. Upward aimed lighting shall not exceed 4,000 mean lumens per architectural or aesthetic element, shall be fully shielded, and mounted as flush to the wall as possible.

3. Lighting exceeding 4,000 mean lumens architectural or aesthetic element shall be aimed downward, fully shielded, and mounted as flush to the wall as possible.

4. Accent building mounted luminous tubing (such as neon) may be used as long as only one horizontal luminous tube is located at the top of the parapet wall or at the leading roof edge of the highest roof system (eaves and rakes). Any luminous tubing installed below the parapet wall or leading roof edge of the highest roof system shall be cutoff by building appendages or shielded so that the fixture is not visible. Lighting should be designed to avoid confusion with emergency response vehicles and traffic control devices.

K. Externally Illuminated Sign lighting. Externally illuminated signs may be illuminated consistent with the following standards:

1. Ground signs that are less than 6 feet in height may be illuminated from above provided the light fixture is no taller than the top of the sign, or lighted with ground-mounted lights, provided the lights are fully shielded.

2. Ground signs 6 feet in height or taller may be illuminated from above provided the light fixture is no taller than the top of the sign.

3. Wall signs may be illuminated with ground-mounted lights provided the lights are fully shielded.

4. Ground mounted light fixtures shall not be visible from the opposite side of the sign.

5. Light fixture lamps used to externally illuminate a sign shall not be visible from vehicular travel lanes, adjacent public rights-of-way, or adjoining properties.

6. The intensity of illumination falling on an externally illuminated sign shall be no more than what is necessary to make the illuminated sign legible.

All other sign illumination standards and provisions, including but not limited to internally illuminated signs, sign placement, sign size, etc. are not a part of this ordinance and may be included in other ordinances such as the sign ordinance.

L. Canopy lighting. Lighting associated with a canopy used for vehicular shelters, including gas stations and car washes:

1. Canopy lights, such as service station lighting shall be fully recessed or fully shielded so as to ensure that no light source is visible from or causes glare on public rights of way or adjacent properties.

2. Lighting installed beneath a canopy shall be pointed downward and substantially confined to the ground surface directly beneath the perimeter of the canopy.

3. Lighting beyond the perimeter of the canopy shall be consistent with the lighting ordinance for parking areas.

M. Recreational facilities. Lighting for outdoor athletic fields, courts, or tracks:

1. When an outdoor athletic field abuts a residential district, lighting should be designed so that the illumination at the property boundary line that is attributable to the subject property does not exceed 0.5 foot-candles horizontal.

2. Lighting used to illuminate the athletic surface shall be turned off within one hour after the last event of the night.

3. Lighting shall be designed by a Montana registered professional engineer, Montana registered architect, or Montana registered landscape architect having experience with similar lighting installations or by a lighting fixture vendor specializing in the specific type of recreational lighting.

N. Outside Car Display Lots

1. Car display lots shall be illuminated in accordance with the latest edition of the IESNA standards.

2. Light fixtures shall be full cutoff type

3. Flood lights for area illumination are prohibited

4. Light spillover shall be in accordance with the definition in this ordinance

5. Light controls shall be used to reduce lighting levels by 50% by no later than 12:00 midnight until dawn.

EXCEPTION: The Lighting Administration may waive the 50% lighting level requirement where reduced lighting levels would reduce security or safety. (Ord. 3582, 2016; Ord. 3341, 2007)

8.64.080 General standards for exterior residential lighting installations.

A. Safety. No lighting fixture or device may be operated in such manner as to constitute a hazard or danger to persons, or to safe vehicular operation.

B. Pole-mounted light fixtures. Light fixtures shall not be higher than 25 feet or the height of the building, whichever is less.

C. Continued maintenance. Lighting installations shall be maintained to meet the provisions of this ordinance on an on-going basis.

D. Light fixtures

1. A light fixture installed after the effective date of this ordinance shall be equipped with full cutoff optics.

2. Exterior residential lighting installed after the effective date of this ordinance may not result in light spillover on adjacent property.

EXCEPTION: Seasonal lighting or light fixtures jointly owned or rented by owners of contiguous property may use fully compliant light fixtures with light spillover within the contiguous property, but not beyond the contiguous property.

E. Existing nonconforming light fixtures. Light fixtures installed before the effective date of this ordinance that are in violation of this ordinance are permitted as nonconforming light fixtures without any time limit.

EXCEPTION: Public complaints regarding light fixtures (see example below) containing one or more unshielded flood lamps rated 880 mean lumens or greater, with or without a motion sensor will cause an educational, informational notice to be issued by the Lighting Administration to the property owner, and the fixture shall be replaced or shielded within one year after the date of the notice.

EXCEPTION: Public complaints regarding light fixtures (see example below) generally used as a pole or building mounted high pressure sodium (HPS), mercury vapor, or metal halide yard light with a dropped unshielded diffuser will cause an educational, informational notice to be issued by the Lighting Administration to the property owner, and the fixture shall be replaced or shielded within one year after the date of the notice.

1. If leased from a utility company, then upgraded to compliance with the lighting ordinance in accordance with 8.64.050 (D)

2.

If not leased from a utility company, then shielded or replaced within one year after the date of the notice. (Ord. 3582, 2016; Ord. 3341, 2007)

8.64.090 Non-conforming Commercial, Industrial, or Multi-Family Residential light fixtures.

A. Street Light fixtures in Lighting Districts

1. All existing street lighting fixtures that are in violation of this ordinance are permitted as nonconforming street lighting without any time limit.

2. If a pole is replaced, both the pole and the pole mounted light fixture shall be compliant with the provisions of 8.64.100.

CLARIFICATION: Replacement of historic street lights shall comply with 8.64.070 (H)

3. If a light fixture is replaced on an existing non-conforming pole, the replacement light fixture shall be compliant with 8.64.100.

[Note for informational purposes only: Lighting in lighting districts makes up the majority of the public street lighting within the City of Missoula. They are owned and operated by a utility but rented to the City of Missoula. The residents of each lighting district pay 90% of the cost of the light fixtures within the respective lighting districts via property taxes. The City of Missoula pays the other 10% from general funds.]

B. Other Outdoor Lights

1. All existing outdoor lighting fixtures (except for existing street lights covered in 8.64.090 (A) or 8.64.090 (C) that are in violation of this ordinance are permitted as nonconforming outdoor lighting without any time limit.

EXCEPTION: The Lighting Administration may require compliance with the provisions of this ordinance of nonconforming light fixtures as a result of nonconforming fixture replacement, expansion or redevelopment of property, or safety as listed in 8.64.070, this ordinance and 8.64.050 (D)

C. Outdoor light fixtures owned by the City of Missoula

1. All existing City of Missoula owned outdoor light fixtures shall be classified as commercial for the provisions of this ordinance and are therefore subject to the provisions of 8.64.050. (Ord. 3341, 2007)

8.64.100 New Street Lighting.

A. Light Fixture Configuration. Street light fixtures installed after the effective date of this ordinance shall be equipped with full cutoff optics, and positioned to minimize any direct glare source and not create light spillover.

B. Mercury vapor bulbs or lamps. Mercury vapor bulbs or lamps may not be used in street lights installed after the effective date of this ordinance.

C. Street light mounting height. Street light fixtures installed after the effective date of this ordinance shall not be mounted higher than 30 feet above grade.

EXCEPTION TO 8.64.100 (C) Where a wide street or boulevard is illuminated such that a fixture mounted at 30’ precludes proper illumination, such lighting shall be mounted no higher than 45 feet. The owner of this lighting shall demonstrate via photometric calculations the need for this variance from 30’ mounting height.

EXCEPTIONS to 8.64.100 (A) (B) (C)

1. Traffic signals and other traffic safety and control devices

2. Historic streetlights.

(Ord. 3341, 2007)

8.64.110 Submittal and Certification.

A. New Construction of Commercial, Industrial, and Multi-Family Residential Lighting Plan. An outdoor lighting plan is required for all new outdoor lighting installations for all Commercial, Industrial, and Multi-Family Residential property. A lighting plan by a lighting professional shall include at least the following submittal information:

1.Fixture manufacturer specification sheets, cut-sheets, catalog sheets, or manufacturer provided information for all proposed outdoor fixtures showing compliance with the provisions of this ordinance.

2. A site plan on paper showing light fixture locations, light fixture types, mounting heights, and aiming instructions as required providing a clear expression of the proposed outdoor light fixture system design.

3.An iso-foot candle plot or contour drawing on paper showing calculated light levels for the area of proposed work. The iso-foot candle plot shall extend no less than 10 feet beyond the property line and to the middle of the street to indicate compliance with light spillover requirements of this ordinance.

4.If building elevations are proposed for illumination, submittal drawings for all relevant building elevations showing the fixtures, the portions of the elevations to be illuminated, calculated average, peak, and minimum vertical foot candles in the illuminated area, and the proposed aiming direction of the light fixture(s). The submittals must indicate how light is to be controlled for compliance with the building illumination sections of this ordinance.

B. Commercial, Industrial, and Multi-Family Residential Lighting Plan - Retrofits, Modifications of Existing Lighting Systems and/or Replacement of Light Fixtures in an Existing Lighting System. A lighting plan shall include at least the following submittal information:

2.Description of the proposed lighting system change. Description may be a plan, drawing, or a written description.

EXCEPTION: Replacement of a single fixture as indicated in 8.64.050 (D)

C. Residential Lighting Plan - New Construction. The Owner or the Owner’s Lighting Professional shall submit a signed and dated form certifying understanding and compliance with the provisions of this ordinance. This form will be available from the City of Missoula.

D. Residential Lighting Plan - Retrofits, Modifications of Existing Lighting Systems and/or Replacement of Light Fixtures in an Existing Lighting System. Neither a certification of lighting ordinance compliance nor a permit is required. The new lighting installation shall comply with 8.64.080.

E. Additional Information. Review of the submittal may require additional information or clarifications following the initial lighting plan submittal.

F. Approval and Appeal

1.The Lighting Administration may approve, deny, or require modifications to any outdoor lighting plan in order to insure compliance with the applicable sections of this ordinance.

2.The lighting plan applicant may appeal the Lighting Administration’s decision or required modifications as set forth in Section 8.64.120.

G. Fees

1.Fees may be collected at the time of application for a lighting permit.

2.Fees collected under the provisions of this ordinance shall not be used for any other purpose except for lighting ordinance administration. (Ord. 3341, 2007)

8.64.120 Appeal.

A. Lighting design review - All except hardship The appeal of a decision by the Lighting Administration, in accordance with the applicable provisions of Chapter 15.36 Missoula Municipal Code, will be heard by the Missoula Building Code Board of Appeals (MBCBA).

B. Lighting design review - Hardship

1. The MBCBA is to hear the appeal of a decision by the Lighting Administration in accordance with the applicable provisions of Chapter 15.36 and to hear and decide variances from the provisions of the light ordinance for the specific case where an unnecessary hardship or practical difficulty exists.

2. The MBCBA may grant a variance from the provisions of this ordinance when it is shown by the record before the board that a hardship or practical difficulty exists. The records of the board shall clearly indicate the particular and specific respect a hardship or practical difficulty. The burden shall be on the appellant to the board to present sufficient evidence to establish a record justifying board action granting the appellant’s request.

3. The MBCBA may grant variances from the provisions of this chapter where the board finds that literal enforcement will result in unnecessary hardship or practical difficulties to the appellant which were not brought about by an act of the appellant, or where strict application of the provisions of this ordinance would be unreasonable as to a particular lighting system. A "practical difficulty or unnecessary hardship" may result from the size, shape, location, elevation, or dimensions of a site, or the existing structures located on the site, or from geographic, topographic, or other physical conditions on the site or in the immediate (adjacent) vicinity which are unique to the applicant's site. The MBCBA, in granting any variance based on such practical difficulties or physical hardship, shall allow only the most restricted variance possible, which will provide the appellant remedy to the practical difficulties or physical hardship identified by the board, in keeping with the intent and purpose of this ordinance. (Ord. 3341, 2007)

8.64.130 Violations and Procedures for light fixtures installed after the effective date of this ordinance.

A. Lighting Administration If the Lighting Administration finds that any lighting fixture installed after the effective date of this ordinance violates the provisions of this ordinance, notice shall be given by hand delivery or certified mail, return receipt requested, of such violation to the owner and/or to the occupant of such premises, requiring the violation be abated within thirty (30) days of the date of the hand delivery or the date of mailing of the notice.

A Lighting Administration staff person shall be available to assist in working with the party to correct said violation. Educational materials are available from the Lighting Administration and/or the City of Missoula web based resources.

If the violation is not abated within the thirty (30) day period, the Lighting Administration may initiate actions and proceedings, either legal or equitable, as allowed by law.

B. Violation and Penalty

1. It shall be unlawful to install any lighting fixture not in compliance with this ordinance.

2. Any violation of any provision of this ordinance may be treated as a misdemeanor, incurring a penalty of not less than fifty dollars ($50.00) for each violation and other alternative relief from the Municipal Court as provided by law.

3. Each day the infraction exists constitutes a separate violation. (Ord. 3341, 2007)

8.64.140 Conflicts with other ordinances or applicable codes. If any provision or part of this ordinance conflicts with any existing City of Missoula ordinance, the most restrictive shall apply. (Ord. 3341, 2007)

8.64.150 Repealed (Ord. 3582, 2016; Ord. 3341, 2007)