PROPOSED RULEMAKING
LIQUOR CONTROL BOARD
[ 40 PA. CODE CH. 7 ]
Conversion of Suspension to Fine
[43 Pa.B. 5825]
[Saturday, October 5, 2013]The Liquor Control Board (Board), under the authority of section 207(i) of the Liquor Code (47 P. S. § 2-207(i)), proposes to amend § 7.10 (relating to conversion of suspension to fine).
Summary
The proposed rulemaking will amend § 7.10 by increasing the minimum amount of fines acceptable to the Board when the Board converts an unserved suspension to a fine.
Section 468(a)(4) of the Liquor Code (47 P. S. § 4-468(a)(4)) authorizes the Board to convert pending unserved suspensions in citation cases into monetary fines at the request of a transferee, and to make the payment of a fine a condition for the transfer of the license, if the current licensee is unable to serve the suspension. Under § 7.10, the Board adopted a methodology whereby it would base the fine on 1/2 of the average daily gross receipts of the transferor in its last year of operation. Currently, a minimum fine of $100 per each day of unserved suspension is imposed unless the citation is one in which the minimum fine would have been $1,000; in those situations, the minimum fine acceptable is $1,000 per each day of unserved suspension.
The minimum fine is imposed when a licensee does not possess or fails to provide tax returns to demonstrate the gross revenue for the last calendar year of operation or when the formula results in an amount that is lower than the previously-referenced minimum. Fines received by the Board instead of the suspension may not cover the cost, in work hours, of processing the conversion. Further, converting a suspension into a fine of $100 diminishes the deterrent effect that was intended by the initial suspension order. If the minimum fines were increased to $1,000 a day for nonenhanced penalty citations and $3,000 a day for enhanced penalty citations, these concerns would be alleviated.
Affected Parties
Retail and other licensees who must comply with the Liquor Code and the Board's regulations will be affected by this proposed rulemaking. Enforcement is the province of the Pennsylvania State Police, Bureau of Liquor Control Enforcement. Increasing the minimum fines in conversion of suspension to fine actions would only affect those licensees which would have incurred a lesser fine amount under the current regulation. In 2012, the Board converted suspensions to fines in six cases, five of which would have been affected by the proposed amendment. As of May 31, 2013, the Board has converted suspensions to fines in two cases, both of which would have been affected by the proposed amendment.
Paperwork Requirements
The Board does not anticipate that this proposed rulemaking will affect the amount of paperwork or administrative costs of the regulated community.
Fiscal Impact
This proposed rulemaking is not expected to have a substantial adverse fiscal impact on the regulated community since the proposed amendment only affects licensees that would have been subject to the lower fine amount that is in the current statute. In 2012, the Board converted suspensions to fines in six cases, five of which would have been affected by the proposed amendment. As of May 31, 2013, the Board has converted suspensions to fines in two cases, both of which would have been affected by the proposed amendment.
This proposed rulemaking is not expected to have adverse fiscal impact on State and local governments. In fact, this proposed rulemaking will have a small, positive fiscal impact on Board revenues, nominally increasing the amount the Board remits to the Commonwealth.
Effective Date
This proposed rulemaking will become effective upon final-form publication in the Pennsylvania Bulletin.
Public Comment/Contact Person
Written comments, suggestions or objections will be accepted for 30 days after publication of the proposed rulemaking in the Pennsylvania Bulletin. Comments should be addressed to Alan Kennedy-Shaffer, Assistant Counsel, or Rodrigo Diaz, Executive Deputy Chief 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 September 24, 2013, the Board 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 the Senate Law and Justice Committee. 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 rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Board, the General Assembly and the Governor of comments, recommendations or objections raised.
JOSEPH E. BRION,
ChairpersonFiscal Note: 54-74. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 40. LIQUOR
PART I. LIQUOR CONTROL BOARD
CHAPTER 7. TRANSFER, EXTENSION, SURRENDER, EXCHANGE AND SUSPENSION OF LICENSES
Subchapter A. TRANSFER OF LICENSES § 7.10. Conversion of suspension to fine.
* * * * * (d) The fine will be calculated by application of the following formula: [Gross earnings of the transferor divided by 365 (or the number of days in operation in the transferor's last year of operation) multiplied by .50. The resulting figure is the amount of the fine per day of suspension, subject to the following exceptions:]
(1) [If the amount is less than $100 per day, a fine of $100 per day will be set.] If the suspension was issued for a citation for which the minimum fine, if a fine had been imposed, is $100, a minimum fine of $1,000 per day will be set.
(2) [If the suspension was issued for a citation that required a minimum fine amount of $1,000 per day, a minimum fine of $1,000 per day will be set.] If the suspension was issued for a citation for which the minimum fine, if a fine had been imposed, is $1,000, a minimum fine of $3,000 per day will be set.
* * * * *
[Pa.B. Doc. No. 13-1852. Filed for public inspection October 4, 2013, 9:00 a.m.]
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