PROPOSED RULEMAKING
LIQUOR CONTROL BOARD
[40 PA. CODE CH. 5]
Responsible Alcohol Management
[32 Pa.B. 5664] The Liquor Control Board (Board), under the authority of section 207(i) of the Liquor Code (47 P. S. § 2-207(i)), proposes to add Subchapter I (relating to responsible alcohol management) to read as set forth in Annex A.
Purpose
The additional sections are necessary to supplement legislative changes to the Liquor Code, specifically the addition of section 471.1 (47 P. S. § 4-471.1) by the act of December 20, 2000 (P. L. 992, No. 141) (Act 141), which addresses responsible alcohol management. The proposed rulemaking establishes guidelines for implementing a responsible alcohol management program as required by Act 141.
Summary of Proposed Rulemaking
The proposed rulemaking defines terms, outlines the procedure for certification of providers of alcohol server education, sets forth provider responsibilities, including recordkeeping and penalties for prohibited conduct by a provider or its instructors. The proposed rulemaking explains new employee orientation, acceptable types of signage and certification of licensees by the Board.
Affected Parties
This is a voluntary program for retail licensees including: restaurants, retail dispenser eating places (beer-only restaurants), clubs, catering clubs, public and private golf courses, distributors and importing distributors and their employees. The program would be mandatory for a licensee who is required to attend the Board's responsible alcohol management classes resulting from an adjudication by an administrative law judge.
Paperwork Requirements
The Board will be required to keep records of persons trained in manager/owner and server/seller training for the purpose of certifying licensees as being in compliance with the responsible alcohol management program. The Board will also keep records of providers and instructors certified for the program. Participating licensees will be required to keep records of employee orientation and server/seller training. There is also an application requirement for those licensees desiring to be certified as being in compliance with the responsible alcohol management program.
Fiscal Impact
The Board anticipates an annual interest that would require costs of about $400,000 from the State Stores Fund. Actual costs will be determined by the extent of voluntary participation by licensees and to a lesser extent when mandatory participation is part of an adjudication in a citation proceeding. Greater participation could increase costs beyond $400,000 and less participation would reduce costs below $400,000. The $500 license fees for providers and $100 license fees for instructors will defray some of the Board's administrative costs but will have little or no impact on the cost of the program.
Effective Date/Sunset Date
This proposed rulemaking will become effective upon final-form publication in the Pennsylvania Bulletin. No sunset date has been assigned.
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 Jerry Danyluk, Regulatory Coordinator, Liquor Control Board, Room 513, 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 October 30, 2002, the Board submitted a copy of this proposed rulemaking to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House Committee on Liquor Control and the Senate Committee on Law and Justice. In addition to submitting the proposed rulemaking, the Board has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Board in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, if IRRC has objections to any portion of the proposed rulemaking, it will notify the Board within 10 days of the close of the Committees' review period. The notification shall specify the regulatory review criteria that have not been met by the portion of the proposed rulemaking to which an objection is made. 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 objections raised.
JONATHAN H. NEWMAN,
ChairpersonFiscal Note: 54-57. (1) State Store Fund; (2) Implementing Year 2002-03 is $200,000 (half year); (3) 1st Succeeding Year 2003-04 is $400,000; 2nd Succeeding Year 2004-05 is $400,000; 3rd Succeeding Year 2005-06 is $400,000; 4th Succeeding Year 2006-07 is $400,000; 5th Succeeding Year 2007-08 is $400,000; (7) Executive Authorization; (8) recommends adoption.
Annex A
TITLE 40. LIQUOR
PART I. LIQUOR CONTROL BOARD
CHAPTER 5. DUTIES AND RIGHTS OF LICENSEES
Subchapter I. RESPONSIBLE ALCOHOL MANAGEMENT GENERAL PROVISIONS
Sec.
5.201. Definitions. PROVIDERS OF ALCOHOL SERVICE PERSONNEL TRAINING
5.211. Provider certification. 5.212. Provider responsibilities. 5.213. Penalties for prohibited conduct. NEW EMPLOYEE ORIENTATION, SIGNAGE, CERTIFICATION OF COMPLIANCE
5.221. New employee orientation. 5.222. Signage. 5.223. Certification of compliance.
GENERAL PROVISIONS § 5.201. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Alcohol service education provider or provider--An individual or business entity certified by the Board who employs instructors to administer responsible alcohol management classes to alcohol service personnel.
Instructor/trainer--An individual employed by an alcohol service education provider who is certified by the Board to instruct alcohol service personnel in responsible alcohol management.
New employee orientation--The training of new employees on issues including, but not limited to, underage drinking and visibly intoxicated patrons, in the manner set forth in § 5.221 (relating to new employee orientation).
Responsible server practices--Methods utilized by alcohol service personnel to recognize and prevent attempted illegal activity on the licensed premises including, but not limited to, violations of sections 493--495 of the Liquor Code (47 P. S. §§ 4-493--4-495) and 18 Pa.C.S. §§ 6307--6310.3.
PROVIDERS OF ALCOHOL SERVICE PERSONNEL TRAINING § 5.211. Provider certification.
(a) A person or entity desiring to become an alcohol service education provider shall be Board certified. Certification shall be for a 2-year period. The Board may certify a provider if it complies with the following:
(1) Files an application on forms to be provided by the Board, and submits a $500 nonrefundable application evaluation fee.
(2) Submits a curriculum to the Board that minimally includes the following:
(i) Alcohol as a drug and its effects on the human body and behavior, especially driving ability.
(ii) The effects of alcohol in combination with illegal drugs as well as in combination with commonly used legal prescription and over-the-counter drugs.
(iii) Laws dealing with liquor liability, drunk driving, furnishing alcoholic beverages to minors, and visibly intoxicated persons as well as penalties associated with violations of these laws.
(iv) Standards and operating procedures for recognizing and dealing with a customer who has had enough to drink or a problem customer, such as cessation of service and providing alternative means of transportation to get the customer home safely.
(v) Techniques for determining the validity of age identification through legally acceptable forms of identification.
(vi) Policies regarding advertising, marketing and promotion of safe and responsible drinking patterns.
(3) Employs Board certified instructors.
(b) Providers shall identify all program instructors on provider Staff Certification Forms issued by the Board, together with a $100 fee for each instructor.
(c) To qualify for Board certification as an instructor, an applicant shall have a minimum of 2 years experience as a full-time employee in any one or more of these fields: education, law, law enforcement, substance abuse prevention, the hospitality industry or alcohol service training.
(d) Both provider or instructor certification shall be effective for 2 years from the date of issuance. Reapplication for provider and instructor certification, or both, may be made 30 days prior to expiration of the current certification.
(e) Termination of employment with the provider will result in termination of instructor certification for that employee.
§ 5.212. Provider responsibilities.
A provider shall:
(1) Be responsible for monitoring instructors, classes, students and examinations as prescribed by the Board.
(2) Be responsible for maintaining instructor records regarding attendance and test results.
(3) Keep, for 2 years, complete enrollment records, a record of all students it certifies as having successfully completed its course and the name and license number of the licensee who employs each student at the time of certification. A list consisting of the students each provider certifies and the licensee who employs them shall be submitted to the Board within 5 days of certification.
(4) Keep and make available for review, all records referenced in this section in the same manner prescribed for the maintenance of business records by Board licensees under section 493(12) of the Liquor Code (47 P. S. § 4-493(12)).
(5) Be responsible for reporting changes in ownership, management, the employment status of instructors or curriculum not later than 30 days after the change.
§ 5.213. Penalties for prohibited conduct.
(a) The Board may decertify a provider and its instructors or an individual instructor for violating any of the provisions of this subchapter or engaging in the following conduct:
(1) Discrimination or harassment based on age, race, sex, disability, national origin or religion.
(2) An act in violation of the Liquor Code or this title.
(3) An act resulting in a misdemeanor or felony conviction.
(4) An act resulting in admittance into an Accelerated Rehabilitative Disposition Program if the underlying activity is related to alcoholic beverages, narcotics or controlled substances.
(5) Being under the influence of alcoholic beverages, narcotics or controlled substances during course presentations, exams or breaks.
(6) Knowingly permitting students to be under the influence of alcoholic beverages, narcotics or controlled substances during course presentations, exams or breaks.
(7) Fraudulent activity relating to the conduct or requirements of the training.
(b) Appeals from decertification shall be as set forth in 2 Pa.C.S. § 702 (relating to appeals). The Board will not consider application for recertification until 1 year has passed from the date of decertification.
NEW EMPLOYEE ORIENTATION, SIGNAGE, CERTIFICATION OF COMPLIANCE § 5.221. New employee orientation.
(a) Owners or managers who wish to or are ordered to be in compliance with section 471.1 of the Liquor Code (47 P. S. § 4-471.1) shall provide new employee orientation on or before the first day of the employee's employment as a member of the licensee's alcohol service personnel staff. It is the sole responsibility of the licensee to ensure that either the designated manager or owner conducts the training. Licensees shall maintain new employee orientation records consisting of the name of the employee, date of hire, date of orientation and the name of the individual who trained the employee. Records shall be maintained in the same manner as other business records under section 493(12) of the Liquor Code (47 P. S. § 4-493(12)).
(b) The Board will provide licensees with a checklist and appropriate learning materials.
§ 5.222. Signage.
(a) Signage will be provided by the Board. A licensee may use other signage provided that it is equivalent in size, number and content to the Board's signage. Signage shall minimally include the following information:
(1) Acceptable forms of identification as described in section 495(a) of the Liquor Code (47 P. S. § 4-495(a)).
(2) Refusal of service to minors and visibly intoxicated patrons under the Liquor Code.
(b) Signage shall be prominently displayed in a conspicuous place that can be observed readily by patrons. The signage shall be continuously posted commencing with the date a licensee seeks to be certified as in compliance with the responsible alcohol service program. A licensee shall be responsible for the posting and maintenance of the signage at all times.
§ 5.223. Certification of compliance.
(a) Licensees may be certified by the Board in compliance with section 471.1 of the Liquor Code (47 P. S. § 4-471.1). Licensees shall file an application for compliance certification to be provided by the Board. If the requirements of section 471.1 of the Liquor Code are met, a licensee will be issued a certificate of compliance. Issuance of the certificate shall raise a presumption of compliance from the application mailing date, unless rebutted, in any subsequent legal proceeding in which compliance with section 471.1 of the Liquor Code is at issue. Compliance certification shall be valid for 2 years. Licensees may apply for recertification of compliance at least 60 days prior to expiration of current certification.
(b) If a licensee is found to be noncompliant with section 471.1 of the Liquor Code or this subchapter the Board may refuse or revoke certification. If certification is revoked, the Board will not consider application for recertification until 1 year has passed from the date of revocation. Appeals shall be as set forth in 2 Pa.C.S. § 702 (relating to appeals).
(c) The Office of Administrative Law Judge will take administrative notice of the Board's records with regard to questions of certification.
[Pa.B. Doc. No. 02-2057. Filed for public inspection November 15, 2002, 9:00 a.m.]
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