PROPOSED RULEMAKING
LIQUOR CONTROL BOARD
[ 40 PA. CODE CHS. 3, 5, 7 AND 13 ]
Licenses; Promotion
[37 Pa.B. 6932]
[Saturday, December 29, 2007]The Liquor Control Board (Board), under the authority of section 207(i) of the Liquor Code (code) (47 P. S. § 2-207(i)), proposes to amend Chapters 3, 5, 7 and 13.
Purpose
The Board has reviewed its regulations and determined that these proposed revisions to Chapters 3, 5, 7 and 13 are necessary to conform to changes in the code (47 P. S. §§ 1-101--10-1001), update obsolete regulations and implement new procedures to improve service to the public.
Summary of the Proposed Amendments
The proposed rulemaking concerns the ''Points System,'' the enabling legislation for which has expired. Other proposed changes permit the Board to conduct tasting events in its stores. Finally, obsolete and repetitive regulations are updated and consolidated.
* The proposed rulemaking rescinds regulations concerning the ''Points System.''
* It consolidates two separate regulations about the appointment of managers for licensed establishments.
* It corrects a regulation relating to license transfers upon death of a licensee.
* It amends regulations on the safekeeping of licenses to parallel recent changes in the code.
* It permits the Board to conduct tasting events in its stores.
Affected Parties:
The proposed rulemaking will affect licensees and customers of the Board's wine and spirits stores.
Paperwork Requirements:
The proposed rulemaking will not significantly increase paperwork for the agency or the regulated community.
Fiscal Impact:
No fiscal impact is expected.
Effective Date
This proposed rulemaking will become effective upon its publication in final-form in the Pennsylvania Bulletin.
Public Comment/Contact Person:
Written comments, suggestions or objections will be accepted for 30 days after publication of the proposed amendments in the Pennsylvania Bulletin. Comments should be addressed to James F. Maher, Assistant Counsel, Office of Chief Counsel, Liquor Control Board, Room 401, Northwest Office Building, Harrisburg, PA 17124-0001.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on December 6, 2007, the agency submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Liquor Control Committee and Senate Committee on Law and Justice. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed amendments within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria that have not been met. The Regulatory Review Act specifies detailed procedures for review by the agency, the General Assembly and the Governor of comments, recommendations or objections raised prior to final-form publication of the regulation.
PATRICK J. STAPLETON, III,
ChairpersonFiscal Note: 54-64. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 40. LIQUOR
CHAPTER 3. LICENSE APPLICATIONS
Subchapter L. [POINT SYSTEM FOR CERTAIN LICENSEES] (Reserved) § 3.121. [Statutory authority and applicability] (Reserved).
§ 3.122. [Points assessment] (Reserved).
(Editor's Note: As part of this proposed rulemaking, the Board is proposing to rescind the regulations which appear in 40 Pa. Code pages 3-23--3-25, serial pages (312235)--(312237).)
CHAPTER 5. DUTIES AND RIGHTS OF LICENSEES
Subchapter B. [EMPLOYES] EMPLOYEES OF LICENSEES
EMPLOYMENT OF MINORS § 5.16. [Appointment of managers] (Reserved).
[(a) The operation of a licensed business requires the full time and attention of a manager. A licensee holding one or more licenses shall appoint an individual as manager for each licensed establishment and the manager shall devote full time and attention to the licensed business. If the licensee is an individual, he may designate himself as manager of one licensed establishment, except in the case of distributors or importing distributors. If a license is held by more than one individual, the manager may be one of the individuals or another person the licensee may designate, except in the case of distributors and importing distributors.
(b) The manager appointed by a licensee shall be a reputable person. The licensee shall notify the Board in writing of the name and home address of the manager and the date and place of birth. If there is a change of manager, the licensee shall give the Board written notice within 15 days of the change together with full information for the new individual who is appointed as manager. Each notice of the appointment of a manager or notice of a change of manager shall be accompanied by a fee of $60.
(c) When a background investigation shall be conducted to obtain or verify information regarding an individual appointed as manager, an additional fee of $75, for a total fee of $135, will be assessed. An individual may not act in the capacity of manager after the licensee has been notified that the individual has been disapproved by the Board. The designated manager shall devote full time to the licensed business and may not be employed or engaged in another business unless prior written approval is obtained from the Board.
(d) A club manager or steward may be engaged in employment outside his duties as manager or steward except as provided in section 493(11) of the Liquor Code (47 P. S. § 4-493(11)).]
EMPLOYMENT OF OTHERS § 5.23. Appointment of managers.
* * * * * (b) An individual licensee holding multiple licenses may designate himself as manager of only one licensed establishment. If a license is held by more than one individual, the manager may be one of the individuals or another person the licensee may designate.
(c) The manager appointed by a licensee shall be a reputable person. The licensee shall notify the Board in writing of the name and home address of the manager and the date and place of birth. If there is a change of manager, the licensee shall give the Board written notice within 15 days of the change together with full information for the new individual who is appointed as manager. Each notice of the appointment of a manager or notice of a change of manager shall be accompanied by the appropriate fee.
(d) When a background investigation is conducted to obtain or verify information regarding an individual appointed as manager, a total fee of $135 will be assessed. An individual may not act in the capacity of manager after the licensee has been notified that the individual has been disapproved by the Board. The designated manager shall devote full time to the licensed business and may not be employed or engaged in another business unless prior written approval is obtained from the Board. If the designated manager is currently a Board- approved officer, member, partner or shareholder of that licensee, a fee of $60 will be assessed.
(e) Appointment or approval, or both, by the Board of a manager will not exempt the licensee from the penalties provided by law and this title for violations committed in the licensed establishment or in the course of the operation of the licensed business.
[(c)] (f) The Board may rescind the approval of an appointment of a manager at any time for any cause which it deems sufficient.
[(d)] (g) In the event of the illness or extended vacation of a licensee, the Board may approve the appointment of a manager for a period not to exceed 30 days. In case of emergency, the approval may be extended upon written request of the licensee.
[(e)] (h) The licensee, without Board approval, may designate one of its [employes] employees as the person in charge of the business for a period of time not to exceed 15 calendar days, when the manager is absent from the licensed premises.
[(f) The manager appointed by a licensee shall be a reputable person. The licensee shall submit an application for appointment of a manager to the Board. If the licensee is a club or catering club, notice of the change in manager shall be part of licensee's application for license validation or renewal. For other licensees, if there is a change of manager, the licensee shall give the Board written notice within 15 calendar days of the change together with full information for the new individual who is appointed as manager. Each notice of the appointment of a manager or notice of a change of manager shall be accompanied by a fee of $60.
(g) When a background investigation is conducted to obtain or verify information regarding an individual appointed as manager, an additional fee of $75 for a total fee of $135 will be assessed. An individual may not act in the capacity of manager after the licensee has been notified that the Board has disapproved the individual. The designated manager shall devote full time to the licensed business and may not be employed or engaged in another business unless prior approval is obtained from the Board.
(h)] (i) A club manager or steward may engage in employment outside his duties as manager or steward except as provided in section 493(11) of the Liquor Code (47 P. S. § 4-493(11)).
[(i)] (j) If approved by the Board, management contracts may permit the manager for the licensed premises to be employed by the management company; however, licensee shall have unfettered discretion in all aspects of management of the licensed business, including the employment of the manager and sales of food, alcoholic and nonalcoholic beverages. Licensee's discretion includes control of the manager's hiring, firing, discipline, salary and duties. The manager is an agent of the licensee. (Editor's Note: This subsection is being published as it had been presented in the proposed regulations at 37 Pa.B. 3418, 3420 (July 21, 2007). The text has not been finally adopted by the Board.)
CHAPTER 7. TRANSFER, EXTENSION, SURRENDER AND EXCHANGE OF LICENSES
Subchapter A. TRANSFER OF LICENSES § 7.5. Transfers on death of the licensee.
On the death of the licensee, the license may be transferred immediately to the surviving spouse or to the [administrator or executor of the estate of the licensee,] decedent's estate upon presentation of the transfer form, application, filing fee, and short form certificate from the registrar of wills. If it is desired to transfer the license to a person designated by and acting for the administrator or executor, the transfer application and fee, with written evidence of the designation, shall be submitted by the administrator or executor. The Board [will] shall be notified in writing within 30 days of the death of a licensee.
Subchapter C. SURRENDER OF LICENSES § 7.31. Surrender of licenses in certain cases.
* * * * * (d) A license surrendered to the Board, or a renewal thereof in possession of the Board, will not be held for the benefit of the licensee for a period exceeding 3 years from the date of surrender, [except as provided in section 474 of the Liquor Code (47 P. S. § 4-474)] or with regard to club licenses, for a period exceeding 2 years from the date of surrender, except as set forth in this section. Unless an application for transfer or request for reissue of the license from safekeeping is pending, failure of the licensee to reactivate the license and resume operation of the licensed business or to effect a transfer of the license within the 3-year or 2-year period shall result in revocation of the license. The Board will extend the period for an additional year if, at the end of the 3-year period, the licensed premises are unavailable due to fire, flood or other similar natural disaster. The safekeeping period for licenses other than club licenses may also be extended by the Board for successive 1 year periods upon a licensee's written request and payment of the fee, as provided in section 474.1 of the Liquor Code (47 P. S. § 4-474.1), unless the license or licensee no longer meets the requirements of the Liquor Code or this title.
* * * * * § 7.32. Surrender of licenses for cancellation or transfer.
* * * * * (b) A retail licensee will not be granted a new retail license to cover an establishment for which he already holds a retail license of a different type. [Where] When an application for a new retail license of a different type is approved, the license then in effect in the name of the applicant for that establishment shall be surrendered to the Board for [cancellation prior to issuance of the new license] safekeeping.
(c) Except as provided by section 461(f) of the Liquor Code (47 P. S. § 4-461(f)), when an application for transfer of a retail license of a different type to premises already licensed is approved, the license then in effect in the name of the applicant for that establishment shall be surrendered to the Board before the issuance of the transferred license in the name of the applicant. In this case, the license surrendered to the Board, or a renewal thereof in possession of the Board, will be held available for the benefit of the licensee solely for transfer for up to [2] 3 years from the date of surrender. When a transfer is not effected within the [2] 3-year period, the license will automatically be cancelled with no refund of the license fee, or a portion thereof, unless the safekeeping period has been extended as set forth in section 474.1 of the Liquor Code (47 P. S. § 4-474.1). A transfer application pending at the expiration of the [2] 3-year period may be processed to conclusion.
CHAPTER 13. PROMOTION
Subchapter D. TASTING EVENTS
IN-STORE TASTING EVENTS § 13.221. General requirements.
* * * * * (d) The Board may conduct its own in-store tasting event with or without the participation of a sponsor.
§ 13.227. Participation by Board employees.
(a) Board employees may [not] pour, dispense or serve tastings to the public. [Board employees may not encourage consumer participation in the event].
* * * * *
[Pa.B. Doc. No. 07-2405. Filed for public inspection December 28, 2007, 9:00 a.m.]
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