RULES AND REGULATIONS
Title 37--LAW
STATE POLICE
[37 PA. CODE CH. 23]
Administration of the Bureau of Liquor Control Enforcement Age Compliance Check Program
[34 Pa.B. 6325] The State Police is adding Chapter 23 (relating to administration of the Bureau of Liquor Control Enforcement Age Compliance Check program) to read as set forth in Annex A.
As a requirement of section 1 of the act of December 3, 2002 (P. L. 1144, No. 141) (Act 141), this final-form rulemaking is necessary for the general administration of the age compliance program. The effective date of Act 141 was February 1, 2003. This final-form rulemaking prescribes the manner in which compliance checks are to be performed and requires officers, employees and interns of the Bureau of Liquor Control Enforcement (Bureau) to undergo approved training prior to participation in a compliance check.
Statutory Authority
This final-form rulemaking is authorized by Act 141.
Effect
This final-form rulemaking will affect the Bureau and establishments licensed to serve alcoholic beverages
Effective Date/Sunset Date
This rulemaking will go into effect upon final-form publication in the Pennsylvania Bulletin. The regulations will sunset when Act 141 sunsets on December 31, 2007.
Comments and Responses
The State Police did not receive any comments from the Senate Committee on Law and Justice. The State Police received the following comments from the House Judiciary Committee.
1. The Committee suggested that the training curriculum for underage buyers include a segment on alcohol abuse. The State Police accepted this suggestion and included § 23.21(b)(1)(v) (relating to required training) to require that training.
2. The Committee noted its concern with language found in § 23.22(a) (relating to age compliance schedule) which stated that age compliance checks would be conducted with no less than one Bureau officer and one underage buyer. The Committee suggested that the language be amended to read ''no less than one Bureau officer for each underage buyer.'' The State Police adopted that suggestion and revised § 23.22(a) accordingly.
3. The Committee was concerned with the language found in proposed § 23.22(e) which stated that the Bureau officer ''will endeavor to maintain visual contact with the underage buyer.'' The Committee felt the phrase ''will endeavor'' did not set a sufficiently clear standard and suggested the subsection be amended to provide that the Bureau officer ''shall maintain'' visual contact with the underage buyer. The State Police did not make the suggested revision because the crowded bar environment and the necessity of effective undercover operations make it impractical for a Bureau officer to maintain a ''visual lock'' on the underage buyer at all times. In a crowded bar, it would not be uncommon for the Bureau officer to lose temporary visual contact as the underage buyer moves through the bar or the officer occasionally scans the crowd under normal undercover procedure. In response to the Committee's comment, the State Police has eliminated the requirement that Bureau officers endeavor to maintain contact. Instead, the State Police will enact undercover operating procedures to address this situation.
4. The Committee expressed some concerns about proposed § 23.22(j), which related to notifying the licensed premises of the compliance check results. First, the Committee recommended that the actual licensee be notified; second, that the Bureau officer who supervised the underage buyer be responsible for providing the notification; third, that written notification of compliance be made within 10 working days of the age compliance check program. With respect to the Committee's first point, the State Police believes there would be innumerable problems associated with notifying the actual licensee of the compliance check results. A liquor license can be held by an individual, a partnership or a corporation. Moreover, a management corporation can be placed under contract by the ''licensee'' to operate the premises; this is common practice with franchises and bars located in major hotels. In response to the Committee's concern, the State Police has provided in § 23.23 (relating to notification of results of age compliance check), that the notification will be made to the Board-approved manager or person in charge of the licensed premises. This is consistent with Liquor Control Board (Board) regulations that require a bar to have a full-time manager. See 40 Pa. Code §§ 5.16, 5.17 and 5.23 (relating to appointment of managers, distributor or importing distributor licensees: appointment of manager; and appointment of managers). With respect to the Committee's second point, the final-form rulemaking has been amended to provide that a Bureau officer will make the required notification; however, that notification does not need to be made by the same officer who supervised the underage buyer during the compliance check. The Bureau may want to use the same undercover officer to conduct additional compliance checks in that bar or to supervise the underage buyer in more than one establishment on any given day. For that reason, the State Police has chosen to retain the flexibility of using another Bureau officer to make the required notification. The State Police has accepted the Committee's recommendation that written notification of compliance be provided within 10 working days; that requirement is now contained in § 23.23(b).
The State Police received the following comments from the Independent Regulatory Review Commission (IRRC):
1. IRRC incorporated comments and concerns raised by the House Judiciary Committee. The State Police has responded to those comments as previously outlined.
2. IRRC commented that the definition of ''compliance'' should include references to the statutes with which the licensee needs to comply. This final-form rulemaking has been amended to include a reference to section 493(1) of the Liquor Code (47 P. S. § 4-493(1)) (Code). IRRC also questioned whether the final-form rulemaking needs to include a definition of the terms ''sale or sell.'' The State Police decided to retain the definition of ''sale or sell'' to be consistent with the Code, which contains such a definition.
3. IRRC recommended including a provision specifying how the State Police will determine if required training has been completed. The State Police does not believe the provision is necessary with respect to Bureau officers who cannot become Bureau officers until they have successfully completed a 13--15 week resident training course at the State Police Academy (Academy). With respect to the training required of underage buyers, § 23.21(b)(2) of the final-form rulemaking requires underage buyers to pass an examination administered by the Bureau.
4. Section 23.22(a) of the proposed rulemaking required an age compliance check to be performed with ''at least one Bureau officer and one underage buyer.'' IRRC asked in what situations there would not be a one-to-one ratio. Based on comments received from the House Judiciary Committee, the final-form rulemaking provides that the age compliance check shall be conducted with at least one Bureau officer for each underage buyer.
5. IRRC expressed three concerns regarding the notice procedures and requirements contained in proposed § 23.22(j). First, IRRC noted that subsections (a)--(i) addressed how compliance checks would be implemented and that subsection (j) addressed notification requirements after the compliance check was completed. IRRC recommended that subsection (j) be separated from § 23.22 and assigned its own section. The State Police has adopted IRRC's suggestion and moved the notification procedures to § 23.23. Second, IRRC noted that the proposed rulemaking states that notification of the results of the age compliance check would be given to the licensed premises. IRRC suggested that the final-form rulemaking should direct the Bureau officer to give written notice of the results of the compliance check to an individual such as a manager or person in charge of the premises. The State Police agrees. Section 23.23 of the final-form rulemaking states that notification will be made to the Board-approved manager or person in charge of the licensed premises. The final-form rulemaking also includes a definition of the term ''Board-approved manager.'' Finally, IRRC suggested that the final-form rulemaking should specify the date, time and any other information, if available, that would assist the licensee and its employees in complying with the law. In response to this suggestion, the State Police has added § 23.23(c), which requires the verbal and written notification to include the date and time of the compliance check as well as the name of the server if known.
6. IRRC suggested amending the preamble to include an expiration date of December 31, 2007, to be consistent with Act 141, which will sunset on that date. The State Police made the suggested revision.
7. IRRC pointed out that the proposed rulemaking incorrectly refers to the Liquor Code as 43 P. S. IRRC also suggested that the regulation refer to specific sections of the Liquor Code and the Crimes Code that will be addressed in training for underage buyers. As a result of IRRC's comments, § 23.21(b) has been revised to provide that underage buyers will receive training on sections 493(1) and 493(14) of the Liquor Code (47 P. S. §§ 4-493(1) and 4-493(14)) and 18 Pa.C.S. §§ 6307--6310.3.
The Pennsylvania Tavern Association (Association) provided the House Judiciary Committee with the following comments which were subsequently forwarded to the State Police:
1. The Association suggested altering the definition of an ''underage buyer'' to provide that the underage buyer must be ''an individual who a reasonable person standing in the shoes of the server would believe to be underage at the time of purchase or attempt to purchase and would require the underage buyer to produce valid proof of age.'' The State Police made no response to this comment. The purpose of the age compliance check is to ensure that licensed premises comply with the law, and it is illegal to serve alcohol, malted or brewed beverages to persons under the age of 21 regardless of their physical appearance.
2. The Association suggested that no more than one underage buyer should be supervised by a single Bureau officer. In response to this comment, the State Police revised § 23.22(a) to provide that a compliance check will be conducted with one Bureau officer for each underage buyer.
3. Like the House Judiciary Committee, the Association suggested that Bureau officers be required to maintain constant visual contact with the underage buyer. The State Police thoughtfully considered this suggestion but rejected it as impractical. The final-form rulemaking has been amended to omit any requirement as to maintaining eye contact; instead, that issue will be addressed in internal standard operating procedures.
4. The Association suggested that licensed establishments be given immediate notice of noncompliance. The State Police made no change in response to this comment because § 23.22(j)(2) already provided that immediate verbal notification would be made when a licensed premises is not in compliance. At IRRC's suggestion, in the final-form rulemaking, the notification provisions were moved to a new subsection in § 23.23. The requirement of immediate notification of noncompliance has been retained and can now be found in § 23.23(a).
5. The Association also suggested that the notice of compliance or noncompliance should include the date, time and location of the compliance check as well as the name of the server. The final-form rulemaking has been amended to provide in § 23.23(c) that verbal and written notification will include the date and time of the compliance check as well of the name of the server if it is known.
Finally, the Board provided the following comments to the Senate Committee on Law and Justice, which shared them with the State Police:
1. The Board opined that the definition of the term ''purchase'' is used in a manner inconsistent with the definition. The State Police disagrees and no change has been made to the regulation in response to this comment.
2. The Board commented that the proposed rulemaking does not detail the training Bureau officers must complete before participating in an age compliance check. The State Police do not believe Act 141 requires Bureau officers who supervise age compliance checks to receive specific training. Given the fact that an individual must be 21 years of age to work as a Bureau officer, Bureau officers will never serve as underage buyers. Section 21.21(a) reflects the fact that to become a Bureau officer, one must complete a 13--15 week resident training program at the Academy, which will include training related to age compliance checks. The State Police has chosen not to include more specific information about the resident training program's curriculum in the final regulation in order to retain the requisite flexibility to make changes to the training based on experience with the age compliance check program.
3. The Board questioned whether the Bureau's failure to comply with the regulations could expose the Bureau officer or the underage buyer to criminal liability or have consequences in a subsequent administrative action against the licensee. Internal checks and balances within the State Police will ensure that age compliance checks are conducted properly and no changes were made to the regulations based on the Board's comment.
4. The Board noted that a previous draft of House Bill 850, which ultimately became Act 141, had prohibited the underage buyer from orally misrepresenting the buyer's age. No change has been made to this final-form rulemaking based on the Board's observation. It is not uncommon for underage individuals to verbally represent that they are 21 in an effort to obtain alcohol, malt or brewed beverages. Consequently, it is entirely appropriate to allow underage buyers to make that verbal representation during an age compliance check in which the focus is the licensee's compliance with the law.
Regulatory Review
On December 8, 2003, copies of the proposed rulemaking were delivered to IRRC and the Majority and Minority Chairpersons of the House Judiciary Committee and Senate Law and Justice Committee. Notice of proposed rulemaking was published at 33 Pa. B. 6227 (December 20, 2003) and provided for a 30-day public comment period. In compliance with section 5(c) of the Regulatory Review Act (71 P. S. § 745.5(c)), the State Police provided IRRC and the Committees with copies of all comments received during the public comment period, as well as other documents if requested. In preparing the final-form rulemaking, the State Police has considered all comments received from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), this final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC approved the final-form rulemaking on October 7, 2004.
Contact Person
For further information on the final-form rulemaking, contact Syndi L. Guido, Policy Director, State Police, 1800 Elmerton Avenue, Harrisburg, PA 17110, (717) 772-0905. Individuals who are disabled and require an alternative format of this document (that is, large print, audio tape, Braille) should contact Syndi Guido so that necessary arrangements can be made.
Fiscal Impact
This final-form rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions and will impose no new costs on the general public or private sector.
Paperwork Requirements
The final-form rulemaking will not increase paperwork and will create no new paperwork requirements.
Findings
The State Police finds that:
(1) Public notice of intention to adopt these amendments has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered and forwarded to IRRC and the Senate and House Committees.
(3) The adoption of this final-form rulemaking in the manner provided in this order is necessary and appropriate for administration and enforcement of the authorizing statute.
Order
The State Police, acting under the authorizing statutes, orders that:
(a) The regulations of the State Police, 37 Pa. Code, are amended by adding §§ 23.1 and 23.21--23.24 to read as set forth in Annex A.
(b) The State Police will submit this order and Annex A to the Office of General Counsel and Office of Attorney General as required by law for approval as to form and legality.
(c) The State Police shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect immediately upon publication in the Pennsylvania Bulletin. The chapter will sunset on December 31, 2007.
COLONEL JEFFREY B. MILLER
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 34 Pa.B. 5859 (October 23, 2004).)
Fiscal Note: Fiscal Note 17-64 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 37. LAW
PART I. STATE POLICE
CHAPTER 23. ADMINISTRATION OF THE
BUREAU OF LIQUOR CONTROL ENFORCEMENT
AGE COMPLIANCE CHECK PROGRAM
GENERAL PROVISIONS Sec.
23.1. Definitions.
COMPLIANCE CHECKS
23.21. Required training. 23.22. Age compliance checks. 23.23. Notification of results of age compliance check. 23.24. Sunset date.
GENERAL PROVISIONS § 23.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings unless the context clearly indicates otherwise:
Age compliance check--An undercover investigation of a licensed premises during which an underage buyer purchases or attempts to purchase liquor or malt or brewed beverages under the supervision of a Bureau officer.
Board-approved manager--A person appointed or designated by the licensee and approved by the Liquor Control Board under 40 Pa. Code § 5.16, § 5.17 or § 5.23 (relating to appointment of managers, distributor or importing distributor licensees: appointment of manager; and appointment of managers).
Bureau officer--A State Police officer or liquor enforcement officer who is assigned to an age compliance check.
Compliance--Refusing sale or service of liquor or malt or brewed beverages to the underage buyer as required by section 493(1) of the Liquor Code (47 P. S. § 4-493(1)).
Enforcement Bureau or Bureau--The Bureau of Liquor Control Enforcement of the State Police.
Licensed premises--A business licensed by the Liquor Control Board to sell liquor or malt or brewed beverages in this Commonwealth.
Liquor--Includes any alcoholic, spirituous, vinous, fermented or other alcoholic beverage, or combination of liquors and mixed liquor a part of which is spirituous, vinous, fermented or otherwise alcoholic, including all drinks and drinkable liquids, preparations or mixtures, and reused, recovered or redistilled denatured alcohol usable or taxable for beverage purposes which contain more than .5% of alcohol by volume, except pure ethyl alcohol and malt or brewed beverages.
Malt or brewed beverages--Any beer, lager beer, ale, porter or similar fermented malt beverage containing .5% or more of alcohol by volume, by whatever name the beverage may be called.
Purchase--Obtaining food, nonalcoholic beverages, liquor, alcohol or malt or brewed beverages for consideration.
Sale or sell--The transfer of liquor, alcohol or malt or brewed beverages for consideration.
Underage buyer--An individual between 18 and 20 years of age who is an officer, employee or intern of the Enforcement Bureau and participates in an age compliance check.
COMPLIANCE CHECKS § 23.21. Required training.
(a) Bureau officers. Before participating in an age compliance check, Bureau officers shall complete training approved by the Enforcement Bureau.
(b) Underage buyers. Before participating in an age compliance check, an underage buyer shall:
(1) Complete a training course prescribed by the Enforcement Bureau, which includes instruction in at least the following areas of study:
(i) Sections 493(1) and 493(14) of the Liquor Code (47 P. S. §§ 4-493(1) and 4-493(14)) and 18 Pa.C.S. §§ 6307--6310.3.
(ii) Safety protocols.
(iii) Undercover investigations.
(iv) Testifying in court.
(v) Alcohol abuse.
(2) Pass an examination administered by the Enforcement Bureau.
§ 23.22. Age compliance checks.
(a) The age compliance check shall be conducted with at least one Bureau officer for each underage buyer.
(b) A Bureau officer shall be in charge of the age compliance check.
(c) A Bureau officer shall enter and remain inside the licensed premises during the age compliance check.
(d) The age compliance check shall be conducted at the licensed premises during regular business hours.
(e) The Bureau officer shall observe the activity inside the licensed premises and determine if it is safe and appropriate to conduct the age compliance check.
(f) Underage buyers may purchase or attempt to purchase liquor or malt or brewed beverages only during an age compliance check and only while under the direct supervision of a Bureau officer.
(g) Underage buyers may not consume liquor or malt or brewed beverages.
(h) If an underage buyer removes the liquor or malt or brewed beverages from the licensed premises, the underage buyer shall deliver the liquor or malt or brewed beverages to the Bureau officer as soon as possible, consistent with safety protocols.
§ 23.23. Notification of results of age compliance check.
A Bureau officer will be responsible for insuring notification is made of the results of the age compliance check to the Board-approved manager or person in charge of the licensed premises.
(1) If the licensed premises is not in compliance, immediate verbal notification will be provided followed by written notification within 10 working days.
(2) If the licensed premises is found to be in compliance, written notification of compliance will be provided within 10 working days.
(3) Verbal and written notification will include the date and time of the compliance check as well as the name of the server if known.
§ 23.24. Sunset date.
This chapter will expire on December 31, 2007.
[Pa.B. Doc. No. 04-2102. Filed for public inspection November 24, 2004, 9:00 a.m.]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
