PROPOSED RULEMAKING
LIQUOR CONTROL BOARD
[40 PA. CODE CH. 1, 3, 5, 7, 9, 11, 13 AND 15]
Revisions to Codify Practices and Procedures Resulting from Legislative Amendments
[34 Pa.B. 3411] 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 Chapters 1, 3, 5, 7, 9, 11, 13 and 15.
Summary
The proposed rulemaking codifies numerous practices and procedures of the Board and further explains various legislative changes to the Liquor Code (47 P. S. §§ 1-101--8-803). The following list summarizes the proposed rulemaking:
* It defines what may be considered when evaluating a person's reputation.
* It explains seating requirements for licensed retail establishments.
* It explains the issuance of a certificate of approval, a letter of authority and who must execute a certificate of completion for licensing and the consequences for failing to do so.
* It states the recordkeeping requirements for alternate brewers' licenses and explains brewery pubs' privileges and requirements.
* It states requirements for issuing economic development licenses.
* It sets forth whom licensees may employ and who may be appointed as manager in accordance with the Liquor Code.
* It defines sweepstakes and who may sponsor sweepstakes promotions.
* It eliminates the prohibition of a stage on the licensed premises where entertainment could be seen outside the premises.
* It fully explains how municipalities may petition the Board for exemption from the Board's regulations on noise.
* It eliminates the prohibition on selling or furnishing lunch below cost.
* It explains how clubs and catering clubs may exchange their licenses.
* It explains that a licensee may request a hearing when the licensee cannot comply with a prior approval for reasons beyond the licensee's control.
* It explains how to convert a suspension to a fine.
* It sets forth the requirements for a temporary extension of license.
* It sets the maximum period for safekeeping of retail licenses, except clubs, to 3 years per the Liquor Code.
* It fully explains sheriff's sales of liquor licenses.
* It defines procedures for intermunicipal transfers of retail licenses.
* It regulates Internet wine sales.
* It replaces vehicle identification emblems with cards for vehicles hauling alcoholic beverages.
* It increases the number of authorized agents who may purchase liquor on behalf of licensees from two to four.
* It eliminates prohibitions on cooperative advertising and the requirement for prior Board approval for point-of-sale and advertising novelties.
* It explains advertising by manufacturers on distributor trucks.
* It clarifies limits on bar spending/free drinks.
* It defines discount pricing practices.
* It regulates tasting events on licensed premises and in Wine and Spirits Stores.
* It sets forth conditions on providing free samples.
Affected Parties
The proposed rulemaking will affect Internet wine purchasers and sellers, retail and wholesale licensees and applicants for licenses issued by the Board.
Paperwork Requirements
The proposed rulemaking will not significantly increase paperwork for the Board or the regulated community. In several cases, existing paperwork will be eliminated.
Fiscal Impact
Because the proposed rulemaking primarily codifies and organizes existing practices or obligations under the Liquor Code, it will not have a fiscal impact on the licensees of the Board or applicants for licenses, the Commonwealth or its subdivisions.
Effective Date
The proposed rulemaking will become effective upon final-form publication in the Pennsylvania Bulletin.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on June 18, 2004, 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 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 rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections shall 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.
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 sent to James Maher, Office of Chief Counsel, Liquor Control Board, Room 401, Northwest Office Building, Harrisburg, PA 17124-0001.
JONATHAN H. NEWMAN,
ChairpersonFiscal Note: 54-59. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 40. LIQUOR
PART I. LIQUOR CONTROL BOARD
CHAPTER 1. GENERAL PROVISIONS § 1.5. Reputation: Use of criminal and citation history.
When considering whether a person is reputable or the repute of a person under any section of the Liquor Code or this title, the Board may consider whether that person has been convicted of any crimes including misdemeanors and felonies, the person's history regarding licenses issued by the Board, including the citation history of the licenses, and any other factor the Board deems appropriate.
CHAPTER 3. LICENSE APPLICATIONS
Subchapter A. GENERAL PROVISIONS § 3.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Bar/counter--A smooth flat surface affixed to the premises on which drinks and food are served.
Bench--A long seat for more than one person.
Booth--A table usually surrounded by one or two benches, serving as partitions.
Chair--A single seat with back, often with arms, and supported on legs or a pedestal.
Eating space--A space at least 18 inches wide by 12 inches deep, which is suitable for a service setting of plate, utensils and drink.
* * * * * Seating--The number of patrons able to be served meals in a restaurant or eating place retail dispenser premises where a stool, chair, booth or bench is provided to sit on, and where an eating space is provided.
Stool--A backless and armless single seat supported on legs or a pedestal.
Table--A piece of furniture having a smooth flat top supported by one or more vertical legs.
§ 3.8. Certificate of completion; certificate of approval; letter of authority.
(a) Upon Board approval of an application for new license, transfer of a license or extension of premises, [and within] the Board will issue a certificate of approval to the applicant. The Board will also issue a letter of authority which shall authorize the applicant to operate the licensed premises for no more than 30 days. If the application is for an extension of premises, the letter of authority shall be effective immediately. If the application is for a new license, the letter of authority shall be effective when the applicant acquires the right to occupy the premises. If the application is for the transfer of a license, the letter of authority shall be effective upon completion of the underlying financial transaction. Within 15 days of completion of transactions necessary to complete the process, the applicant shall submit a [certification] certificate of completion to the Board, indicating that the financial arrangements were completed as reported or modified. The certification shall be on forms provided by the Board. If the application is a transfer application, then the certificate of completion must be signed by the transferor and the transferee. Failure to submit a properly executed certificate of completion may void the approval.
(b) If the [certification] certificate of completion discloses modified arrangements, the Board may request information or documentation, as it deems necessary.
* * * * *
Subchapter B. NOTICE POSTING § 3.13. Retail liquor and retail malt and brewed beverage licenses, importing distributor and distributor licenses.
* * * * * (b) Except for nonprofit clubs, retail liquor licensees, retail malt and brewed beverage licensees, importing distributor and distributor licensees, reporting a change in officers, directors or stockholders, which would constitute a change in majority ownership or controlling interest, shall post notice of the change. Except for nonprofit clubs, if a corporate licensee is owned by two persons each of whom owns 50% of the corporation, then any change in ownership shall require posting.
* * * * *
Subchapter J. MALT OR BREWED
BEVERAGE MANUFACTURERSSec.
3.91. Alternate brewers' license. 3.92. Brewery pubs. § 3.91. Alternate brewers' license.
Records required to be maintained shall be the same as are required by a licensed manufacturer of malt or brewed beverages under § 5.101 (relating to breweries).
§ 3.92. Brewery pubs.
(a) The Board will be authorized to issue a brewery pub license to the holder of a brewery license. A brewery pub license may only be issued in those municipalities in which the Board may issue or transfer a malt and brewed beverage retail dispenser license.
(b) The holder of a brewery pub license shall have all the rights and be subject to the same conditions and qualifications as those imposed on holders of a malt and brewed beverage retail dispenser license except as set forth in this section.
(c) The brewery pub license will be issued to premises immediately adjacent to but separate and distinct from the brewery premises.
(d) Sales of alcoholic beverages at the brewery pub premises shall be limited to sale of malt or brewed beverages produced at and owned by the adjacent brewery and sale of wine produced by the holder of a Pennsylvania limited winery license.
(e) A brewery pub license may not be issued to a brewery that has already acquired a restaurant, hotel or malt and brewed beverage retail dispenser license. If a brewery, which has a brewery pub license, applies for and acquires a restaurant, hotel or malt and brewed beverage retail dispenser license, the brewery pub license will be cancelled upon approval of the restaurant, hotel or malt and brewed beverage retail dispenser license.
(f) Any citations which may be issued pursuant to section 471 of the Liquor Code (47 P. S. § 4-471) for activity relating to the brewery pub will be issued against the brewery license.
Subchapter K. ECONOMIC
DEVELOPMENT LICENSESSec.
3.101. Economic development licenses. 3.102. Approval for economic development license. 3.103. Filing criteria for provisional economic development license. 3.104. Municipal standing before the Board. 3.105. Quarterly filing of applications and application hearings. 3.106. Criteria for issuance of a permanent economic development license. 3.107. Failure to meet the minimum requirement. 3.108. Subsequent transfers. § 3.101. Economic development licenses.
(a) Issuance of license. The Board may issue restaurant and eating place retail dispenser licenses without regard to county quota restrictions for the purpose of economic development in a municipality for premises situated within any of the following:
(1) A KOZ established under the authority of the Keystone Opportunity Zone, Keystone Opportunity Expansion Zone and Keystone Opportunity Improvement Zone Act (73 P. S. §§ 820.101--820.1309).
(2) An EZ, as designated by the Department of Community and Economic Development.
(3) A municipality that has approved the issuance of a restaurant or eating place retail dispenser license for the purpose of local economic development.
(b) Definitions. The following words and terms, when used in this subchapter, have the following meanings:
EZ--Enterprise zone.
KOZ--Keystone opportunity zone.
§ 3.102. Approval for economic development license.
(a) An applicant shall request written certification from the KOZ or EZ authority that the proposed licensed premises is situated in a zone or an area designated for economic development.
(b) An applicant shall request approval from the municipality for a KOZ, EZ or local economic development license.
(1) The municipality will hold at least one public hearing on the applicant's request for an economic development license.
(2) The municipality shall, within 45 days of a request for approval, render a decision by ordinance or resolution to approve or disapprove the applicant's request for an economic development license.
(3) If the municipality finds that the issuance of the license would promote economic development, it may approve the request. The municipality shall refuse the request if it finds that the approval of the request would adversely affect the welfare, health, peace and morals of the municipality or its residents.
(4) If the receiving municipality denies the applicant's request for approval of an economic development license, the applicant may appeal the decision of the municipality to the court of common pleas in the county in which the proposed licensed premises is located.
§ 3.103. Filing criteria for provisional economic development license.
A license application may be filed with the Board for premises situated within either a KOZ, an EZ or a municipality that has approved the issuance of a license for the purpose of local economic development, provided that the applicant submits the following with its application:
(1) The required initial application surcharge fee as determined by county class, the appropriate license fee and application-processing fee.
(2) Written certification from the KOZ or EZ authority or from the municipality that the proposed licensed premises is situated in a zone or an area designated for economic development.
(3) Municipal approval in the form of an ordinance or resolution, including the applicant's name and exact address, approving the issuance of an economic development license.
§ 3.104. Municipal standing before the Board.
(a) The receiving municipality may file a protest against the issuance of a license for economic development into its municipality and the municipality shall have standing in a hearing to present testimony in support of or against the issuance of a license.
(b) If the Board receives a protest from the receiving municipality, the Board may in its discretion refuse an application for an economic development license.
(c) A protest must be filed within 30 days of the filing of the application.
§ 3.105. Quarterly filing of applications and application hearings.
(a) Issuance of economic development licenses is limited to two licenses per calendar year in counties of the first through fourth class and one license per calendar year in counties of the fifth through eighth class. Quarterly filing periods are established for all counties as follows:
1st Quarter--January 1 through March 31
2nd Quarter--April 1 through June 30
3rd Quarter--July 1 through September 30
4th Quarter--October 1 through December 31
(b) At the end of the first quarter, every properly filed license application in a county will be subject to an administrative hearing before a Board hearing examiner. Second quarter applications will be held in abeyance until after hearings are held for first quarter applications and a determination is made by the Board as to the availability of a license within the county.
(c) If a vacancy continues to exist in a county after hearings are held and a determination has been made by the Board, properly filed applications for the next quarter will be scheduled for hearings.
(d) In addition to any objections to, or support of, an application for the issuance of a license, an applicant shall establish at the administrative hearing, that it has exhausted reasonable means to find a suitable license within the existing county quota law.
(e) Upon approval of an application, the applicant will receive a provisional license for 120 days.
(f) In the event of an appeal from the Board's decision regarding the issuance or renewal of an economic development license, the appeal will act as a supersedeas and will preclude the processing of additional applications for vacancies in that county.
§ 3.106. Criteria for issuance of a permanent economic development license.
(a) After 90 days from the date of issuance of the provisional license, the licensee may file an application with the Board for a permanent license. The licensee shall certify that for 90 consecutive days since the granting of the provisional license, the licensee's sales of food and nonalcoholic beverages were equal to or greater than 70% of the combined gross sales of food and alcoholic beverages.
(b) Upon submission of certification, the Board will issue a permanent economic development license.
(c) The economic development license will be governed by the license district in which it is situated for the purpose of validation and renewal. Validation and renewal applications will require submission of certification that during the license year immediately preceding its application for renewal or validation, the licensee met or exceeded the 70% minimum requirement.
(d) An appeal of the Board's decision refusing to grant or renew a license will not act as a supersedeas if the decision is based, in whole or in part, on the licensee's failure to demonstrate that its sales of food and nonalcoholic beverages were at least 70% of its combined gross sales of food and alcoholic beverages.
§ 3.107. Failure to meet the minimum requirement.
(a) Failure to meet the 70% minimum requirement as set forth in this subchapter, as submitted upon renewal or validation application will result in an investigation by the Bureau of Licensing. If the investigation discloses that the licensee failed to meet the 70% minimum requirement, the license will be cancelled.
(b) An appeal of the Board's decision refusing to grant or renew a license will not act as a supersedeas if the decision is based, in whole or in part, on the licensee's failure to demonstrate that its food and nonalcoholic beverages were at least 70% of its combined gross sales of food and alcoholic beverages.
§ 3.108. Subsequent transfers.
Neither an economic development license nor a provisional license is transferable with regard to ownership or location.
CHAPTER 5. DUTIES AND RIGHTS OF LICENSEES
Subchapter B. [EMPLOYES] EMPLOYEES
OF LICENSEES
EMPLOYMENT OF OTHERS § 5.21. [Employment of criminals] Prohibited employment.
A retail licensee may not employ in his licensed establishment a person who is precluded by section 493(14) of the Liquor Code (47 P. S. § 4-493(14)) from frequenting the establishment, except minors employed in accordance with §§ [5.11--5.15] 5.12--5.14 (relating to employment of minors by retail licensees; employment of minors 18 to 21 years of age by licensees other than retail; and employment of minors 17 years of age as 18 years of age).
§ 5.23. Appointment of managers.
(a) [A corporation holding one or more licenses shall appoint an individual as manager for each licensed establishment. An individual holding more than one license shall appoint a manager for each licensed establishment.] The operation of a licensed business requires a manager. A licensee shall appoint an individual as manager for each licensed establishment. The manager shall devote full time and attention to the licensed business.
(b) [Approval] Appointment or approval, or both, by the Board of a manager will not exempt the licensee from the penalties provided by law and this [part] title for violations committed in the licensed establishment or in the course of the operation of the licensed business.
* * * * * (e) [This section may not be construed to prohibit the designation as manager of a reputable employe by a licensee when the designation is not intended to relieve the licensee of his responsibility for giving his full attention to the operation of the licensed establishment. The purpose and intent of this subsection is to permit the licensee, without Board approval, to designate one of his employes as the person in charge of the business during short periods of time when the licensee is absent from the licensed premises.] The licensee, without Board approval, may designate one of its employes 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 following governs licensees in the Armed Forces of the United States:
(1) Notwithstanding anything to the contrary in this part, individuals licensed to sell liquor or malt or brewed beverages in this Commonwealth who may, during an emergency in which a state of war is declared or imminent, enlist or be inducted into the Armed Forces of the United States or who may be required by the Federal government to enter a tour of duty with the Armed Forces; and who furnish to the Board documentary proof of the service, or evidence that the service is about to begin, may appoint a manager for their respective licensed establishments, subject to this section.
(2) Appointments of managers under this subsection shall be subject to approval by the Board and, when approved, shall be effective only during the period the licensee is required by the Federal government to be in the Armed Forces of the United States. Reenlistment in the Armed Forces, after the emergency has ended, will not be considered justification for the appointment of a manager.] 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 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) 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)).
Subchapter C. AMUSEMENT AND ENTERTAINMENT § 5.30. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Sweepstakes--A chance promotion in which tickets or game pieces are distributed and the winner or winners are selected in a random drawing. Permissible sweepstakes shall provide that the following conditions apply:
(i) No purchase is necessary to enter.
(ii) Entrants shall be 21 years of age or older.
(iii) Retail licensed premises may only be involved as pick-up or drop-off points for entry forms and not for the conducting of drawings or the awarding of prizes.
(iv) Alcoholic beverages may not be part of the prize.
§ 5.32. Restrictions/exceptions.
* * * * * (b) [A licensee may not maintain on the licensed premises a platform or stage level with or elevated above the floor and used by musicians or entertainers, if the platform or stage or the entertainment produced thereon can be seen from outside the licensed premises.
(c)] A licensee may not permit an [employe] employee, servant, agent, event/tournament/contest participant or a person engaged directly or indirectly as an entertainer in the licensed establishment or a room or place connected therewith, to be in contact or associate with the patrons in the establishment, room or place for a lewd, immoral, improper or unlawful purpose. A copy of this restriction shall be constantly and conspicuously displayed on the wall of the dressing room used by the entertainers, as well as in a conspicuous location visible to [employes] employees, servants, agents and event/tournament/contest participants.
[(d)] (c) * * *
[(e)] (d) * * *
* * * * * [(f)] (e) * * *
* * * * * [(g)] (f) * * *
(g) Municipalities may petition the Board for exemption from the Board's regulations regarding the enforcement of subsection (a) for all licensees within an identifiable area in accordance with section 493.1(b) of the Liquor Code (47 P. S. § 4-493.1(b)).
(h) A manufacturer, manufacturer's representative or licensee may sponsor sweepstakes promotions.
§ 5.36. Municipal noise ordinances.
(a) A municipality that desires exemption from the Board's regulation regarding amplified music being heard off the licensed premises, § 5.32 (relating to restrictions/exceptions), shall, under section 493.1(b) of the Liquor Code (47 P. S. § 4-493.1(b)), file a petition with the Board, requesting approval. With its petition, the municipality shall file the following:
(1) A copy of the municipality's noise ordinance currently in effect.
(2) The municipality's resolution that:
(i) Confirms the municipality's support of the petition to substitute the municipal noise ordinance for the Board's regulation.
(ii) Cites the municipal noise ordinance.
(iii) States the municipality's intention to enforce the ordinance in place of the Board's regulations.
(3) A complete written description of the boundary lines for the proposed exempted noise area.
(4) One copy of a geographical map, the minimum size of which is 36" x 36", including the designated boundary lines of the proposed exempted noise area within the municipality.
(5) Three copies of the geographical map required by paragraph (4), the size of which will be 81/2" x 111/2".
(6) Identification of a proposed location, within the proposed exempted noise area, to be used by the Board to hold the required public hearing within the proposed exempted area.
(7) Identification of a local print publication of general circulation that would satisfy 65 Pa.C.S. Chapter 7 (relating to open meetings) notice requirement for announcement of the required public hearing.
(b) A date for a public hearing shall be set and public notice given in advance of the hearing: The hearing must comply with all notice, recording and public participation requirements of 65 Pa.C.S. Chapter 7.
(c) Within 60 days after receipt of the petition, the Board will disapprove the petition for an exemption in its entirety or may approve an area more limited for which the petition will be granted if the Board finds that granting the petition will have an adverse effect on the welfare, health, peace and morals of the residents living in the vicinity of the identified area; otherwise the Board will approve the petition.
(d) The Board may place additional conditions on the petition's approval such as limiting the duration of the approval and any other condition the Board deems appropriate.
(e) There shall be a right to appeal to the court of common pleas in the same manner provided by this act for appeals from refusals to grant licenses.
(f) A municipality may rescind any existing exemption from the Board's regulations regarding amplified music by notifying the Board of its intention to do so in writing, 15 days prior to the rescission date. The notice must be accompanied by an ordinance or resolution authorizing the rescission.
(g) A rescission of an existing exemption which does not rescind the entire exempted area shall be treated as a new petition for exemption with the Board and shall follow the procedures in this section.
Subchapter E. [LUNCH] (Reserved) § 5.61. [Food items permitted] (Reserved).
[Under section 493(9) of the Liquor Code (47 P. S. § 4-493(9)), the Board authorizes the giving, or selling at below fair retail cost, of food items for consumption on the premises, to consumers. This section does not permit licensees to furnish, give or sell below a fair cost any lunch to any consumer.]
Subchapter F. CLUBS
OTHER REQUIREMENTS § 5.86. Permitted exchange of club and catering club licenses.
(a) Upon application under Chapter 3 (relating to license applications), the Board may issue to a club, a club liquor license in exchange for a club malt beverage retail dispenser license in any municipality which has approved the granting of liquor licenses.
(b) Upon application under Chapter 3, and upon approval of the Board, a club holding a club liquor license may surrender its license, and receive a catering club liquor license in its place.
(c) Upon application under Chapter 3, and upon approval of the Board, a club holding a catering club liquor license may surrender its license and receive a club liquor license in its place.
(d) Upon application under Chapter 3, and upon approval of the Board, a club holding a club malt beverage retail dispenser license may surrender that license, and receive in its place a catering club malt beverage retail dispenser license.
(e) Upon application under Chapter 3, and upon approval of the Board, a club holding a catering club malt beverage retail dispenser license may surrender that license and receive in its place, a club malt beverage retail dispenser license.
(f) The Bureau of Licensing will set the fee for filing an application for exchange of club licenses.
(g) Exchange of licenses may only occur within a municipality that has approved the granting of such licenses.
CHAPTER 7. TRANSFER, EXTENSION, SURRENDER EXCHANGE OF LICENSES
Subchapter A. TRANSFER OF LICENSES § 7.3. Transfers of location.
* * * * * (c) Effect of failure to achieve full compliance. When a request for the transfer of a license has received prior approval by the Board, and thereafter, a licensee is unable to achieve full compliance based on the plans submitted under prior approval, a hearing may be held to determine whether full compliance with the licensee's plans was impossible for reasons outside the licensee's control and if so, an application for transfer to another location will be considered.
(d) If a prior approval for transfer was originally granted for transfer to a different municipality, the 5-year moratorium on a transfer from the municipality to which the transfer was effected is measured from the date the license becomes operational. See section 461(a) of the Liquor Code (47 P. S. § 4-461(a)).
§ 7.10. Conversion of suspension to fine.
(a) When a license application for transfer is pending and the transferor has an outstanding license suspension imposed by the Office of Administrative Law Judge that has not yet been served and cannot be served because the premises is not in operation, the transferee shall either serve the suspension upon the approval of the transfer, or request that the suspension be converted to a fine to be paid by the transferee upon the approval of the transfer.
(b) If the transferee prefers to pay a fine in lieu of serving a suspension, it shall make a request to the Office of Chief Counsel that a fine be set by the Board.
(c) For purposes of making a determination as to the amount of the fine, the transferee's request to the Office of Chief Counsel shall include the following:
(1) A letter requesting that a fine be set in lieu of the suspension.
(2) A statement that the transferor cannot serve the suspension because the premises is not in operation.
(3) The transferor's Federal tax return for its last year of operation, showing the licensed business's profit or loss.
(4) The number of days the transferor was open in its last year of operation.
(5) Other financial documents as requested by the Office of Chief Counsel.
(6) A copy of the administrative law judge's adjudication and order that resulted in the suspension. This document is obtainable from the Office of Administrative Law Judge.
(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.
(2) If the suspension was issued for a citation that required a minimum fine amount of $1,000 per day, then a minimum fine of $1,000 per day will be set.
(e) The Board, in its discretion, may set a fine in the absence of one or more of the documents described in subsection (c)(1)--(6).
(f) The Board will act on the request by accepting the request and setting the amount of the fine, or rejecting the request, or making a counteroffer and informing the transferee of its decision in writing.
(g) If the transferee rejects the Board's decision, the original suspension will remain in effect, to be served by the transferee if the transfer is approved.
(h) If after the Board approves a conversion to a fine, the transfer application is denied, the Board's decision regarding the suspension conversion to a fine is rendered a nullity and the unserved suspension remains in effect for the transferor.
Subchapter B. EXTENSION OF LICENSES § 7.25. Temporary extension of licensed premises.
(a) The Board has discretion to approve a temporary extension of a licensed premises upon filing of an application accompanied by appropriate plans or surveys setting forth the metes and bounds, the names of abutting streets and a plotting of the proximity of the principal licensed premises.
(b) The application must describe the entire scope of business to be conducted at the temporarily extended licensed premises and include the specific dates and hours business will be conducted.
(c) A nonrefundable fee of $220 must accompany an application for temporary extension of licensed premises.
(d) The additional premises for which it is desired to temporarily extend a license shall be completely equipped for the carrying on of the type of business permitted under the license, but sales or storage of liquor or malt or brewed beverages may not take place in the temporarily extended premises until approval has been given by the Board.
(e) Approval may be in the form of a new license, giving the additional address/location or a letter authorizing the use of the additional temporary premises extension. Board approval or letter of authorization shall be maintained on the temporarily extended licensed premises.
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 [2] 3 years from the date of surrender, except [when, in the opinion of the Board, circumstances beyond the control of the licensee prevent reactivation and except] as provided in section 474 of the Liquor Code (47 P. S. § 4-474) with regard to club licenses. [Failure] 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 [2] 3-year period shall [be sufficient cause for] 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.
* * * * * § 7.33. Sheriff's sale of a liquor license.
When a license is subject to a writ of execution the following apply:
(1) Any writ of execution must identify the liquor license by type and number, and may be filed in any county where jurisdiction would be appropriate. The Board may not be listed as garnishee. Notification to the Board upon the filing of a writ of execution is not required.
(2) Sheriff's seizure of the original license is not required. Licenses seized should be sent to the Bureau of Licensing for safekeeping within 15 days of seizure. If the debtor satisfies the judgment prior to sale, the sheriff may return the original license to the named licensee.
(3) Licenses may not be transferred without Board approval. Purchase at a sheriff's sale is not a transfer of the license but instead, only grants to purchaser the right to apply for the transfer of the license. Prospective purchases of a license are subject to the following conditions:
(i) Any sale of a license is subject to approval by the Board. Renewal and transfer applications may be obtained from the Bureau of Licensing.
(ii) The Board's Bureau of Licensing should be provided with the purchaser's current address immediately upon purchase.
(iii) A license renewal application must be filed 60 days prior to the expiration date of the license. See section 470 of the Liquor Code (47 P. S. § 4-470). If filed later than that date, or within 2 years after the expiration, a late filing fee will be assessed for the renewal application.
(iv) It shall be the purchaser's responsibility to review all letters from the Board and to take all necessary steps to renew or transfer, or both, the license in a timely manner.
(v) Licenses not renewed within 2 years after expiration will cease to exist and will not be reactivated.
(vi) Transfer and renewal of the license will not be approved without tax clearance certificates from the Departments of Revenue and Labor & Industry for both the previous license holder and the purchaser. See section 477 of the Liquor Code (47 P. S. § 4-477).
(vii) Any pending citations issued against the license shall be satisfied prior to transfer.
(4) The purchaser shall obtain the seal of the sheriff or the prothonotary on Board transfer or renewal applications in lieu of the signature of the previous license holder. The sheriff's bill of sale and writ of execution shall accompany the transfer or renewal application when filed.
Subchapter F. INTERMUNICIPAL
TRANSFER OF RETAIL LICENSES.Sec.
7.61. Criteria for intermunicipal transfer of retail licenses. 7.62. Refusal of an intermunicipal transfer by receiving municipality. 7.63. Municipal standing before the Board. 7.64. Appeal of Board decision. 7.65. Subsequent transfers. § 7.61. Criteria for intermunicipal transfer of retail licenses.
(a) Restaurant, eating place retail dispenser and club licenses may be transferred from one municipality to another municipality within the same county, without approval from the receiving municipality, if both of the following apply:
(1) The number of existing licenses in the receiving municipality does not exceed one license per 3,000 inhabitants as determined at the date of filing of the application.
(2) The applicant submits the appropriate application forms and associated fees to the Bureau of Licensing.
(b) If the number of existing licenses in the receiving municipality exceeds one license per 3,000 inhabitants or if the population of the receiving municipality is less than 3,000 inhabitants and the receiving municipality has an existing license:
(1) The applicant shall request approval from the receiving municipality for the intermunicipal transfer of the license.
(2) Upon request for approval of an intermunicipal transfer of a license by the applicant, at least one public hearing shall be held by the receiving municipality for the purpose of receiving comments and recommendations of interested individuals residing within the municipality concerning the applicant's intent to transfer the license into the municipality.
(3) The receiving municipality shall, within 45 days of a request for approval, render a decision by ordinance or resolution to approve or disapprove the applicant's request for an intermunicipal transfer.
(4) The receiving municipality shall approve the request unless it finds that doing so would adversely affect the welfare, health, peace and morals of the municipality or its residents.
(5) The applicant shall submit to the Board, along with its application for transfer, a copy of the receiving municipality's approval of the intermunicipal transfer of the license in the form of an ordinance or resolution which includes the applicant's name and exact address.
§ 7.62. Refusal of an intermunicipal transfer by receiving municipality.
If the receiving municipality refuses to grant approval for the intermunicipal transfer of the license, an applicant may appeal the decision to the court of common pleas in the county in which the proposed licensed premises is located. The appeal is from the decision of the municipality.
§ 7.63. Municipal standing before the Board.
(a) The receiving municipality may file a protest against the approval of an intermunicipal transfer of a license into its municipality and such municipality shall have standing in a hearing to present testimony in support of or against the transfer of a license.
(b) If the Board receives a protest from the receiving municipality, the Board may refuse an application for an intermunicipal transfer of a license.
(c) A protest must be timely filed.
§ 7.64. Appeal of Board decision.
(a) The receiving municipality may file an appeal of the Board decision granting the license, within 20 days of the date of the Board's decision, to the court of common pleas in the county in which the proposed licensed premises is located.
(b) The applicant may file an appeal of the Board's decision denying the license, within 20 days of the date of the Board's decision, to the court of common pleas in the county in which the proposed licensed premises is located.
§ 7.65. Subsequent transfers.
Licenses transferred from one municipality to another may not be transferred out of the receiving municipality for a 5 years from the date of operation in the receiving municipality.
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