RULES AND REGULATIONS
Title 40—LIQUOR
LIQUOR CONTROL BOARD
[ 40 PA. CODE CH. 5 ]
Restrictions and Exceptions
[43 Pa.B. 7082]
[Saturday, December 7, 2013]The Liquor Control Board (Board), under the authority of section 207(i) of the Liquor Code (47 P. S. § 2-207(i)), amends § 5.32 (relating to restrictions/exceptions).
Summary
The final-omitted rulemaking amends § 5.32 by rescinding subsection (a), which is superseded by the act of December 22, 2011 (P. L. 530, No. 113) (Act 113) and the act of July 5, 2012 (P. L. 1007, No. 116), and rescinding subsection (b), which judicial rulings have struck down as unconstitutional.
With regard to subsection (a), Act 113 added section 493(34) of the Liquor Code (47 P. S. § 4-493(34)), regarding noise. Under section 493(34) of the Liquor Code, a licensee may not use, or permit to be used, inside or outside of the licensed premises, a loudspeaker or similar device whereby the sound of music or other entertainment, or the advertisement thereof, can be heard beyond the licensee's property line. As is also made clear, section 493(34) of the Liquor Code supersedes subsection (a). This created the need to rescind subsection (a).
On August 15, 2006, the Third Circuit Court of Appeals struck down section 493(10) of the Liquor Code and § 5.32(b) as facially unconstitutional insofar as they prohibited ''lewd'' entertainment in an establishment holding a liquor license. Conchatta Inc. v. Miller, 458 F.3d 258 (3rd Cir. 2006). In conjunction with a 2005 District Court decision that struck down section 493(10) of the Liquor Code and § 5.32(b) as facially unconstitutional insofar as they prohibited ''immoral or improper'' entertainment in an establishment holding a liquor license, § 5.32(b) is unconstitutional and unenforceable, and therefore should be rescinded.
Consistent with section 493(34) of the Liquor Code and section 204 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. § 1204), known as the Commonwealth Documents Law (CDL), these amendments may be submitted as a final-omitted rulemaking because the amendment is necessary as a result of a self-executed statute and judicial rulings on the regulation's constitutionality.
Affected Parties
Individuals affected by this final-omitted rulemaking include retail and other licensees who must comply with the Liquor Code and the Board's regulations. Enforcement is the province of the Pennsylvania State Police, Bureau of Liquor Control Enforcement. As the amendment to section 493(34) of the Liquor Code supersedes § 5.32(a) and judicial rulings have struck down § 5.32(b) as unconstitutional, the amendments affirm the statutory change and judicial rulings, respectively.
Paperwork Requirements
The Board does not anticipate that this final-omitted rulemaking will affect the amount of paperwork or administrative costs of the regulated community.
Fiscal Impact
This final-omitted rulemaking is not expected to have fiscal impact since the amendments affirm section 493(34) of the Liquor Code, which explicitly supersedes the Board's noise regulation, and judicial rulings as to the regulation's constitutionality.
Effective Date
This final-omitted rulemaking will become effective upon publication in the Pennsylvania Bulletin.
Contact Person
Further information is available by contacting Justin Blake, 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 5.1(c) of the Regulatory Review Act (71 P. S. § 745.5a(c)), on September 11, 2013, the Board submitted a copy of the final-omitted 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. On the same date, the regulations were submitted to the Office of Attorney General for review and approval under the Commonwealth Attorneys Act (71 P. S. §§ 732-101—732-506).
Under section 5.1(j.2) of the Regulatory Review Act, on November 6, 2013, the final-omitted rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on November 7, 2013, and approved the final-omitted rulemaking.
Order
The Board, acting under authorizing statute, orders that:
(a) The regulations of the Board, 40 Pa. Code Chapter 5, are amended by amending § 5.32 to read as set forth in Annex A, with ellipses referring to the existing text of the regulation.
(b) The Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(c) This order shall become effective upon publication in the Pennsylvania Bulletin.
JOSEPH E. BRION,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 43 Pa.B. 6988 (November 23, 2013).)
Fiscal Note: 54-77. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 40. LIQUOR
PART I. LIQUOR CONTROL BOARD
CHAPTER 5. DUTIES AND RIGHTS OF LICENSEES
Subchapter C. AMUSEMENT AND ENTERTAINMENT § 5.32. Restrictions/exceptions.
(a) (Reserved).
(b) (Reserved).
* * * * *
[Pa.B. Doc. No. 13-2257. Filed for public inspection December 6, 2013, 9:00 a.m.]
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