PROPOSED RULEMAKING
LIQUOR CONTROL BOARD
[40 PA. CODE CHS. 5, 11, 13 AND 17]
Revisions to Codify Practices and Procedures Resulting from Legislative Amendments
[35 Pa.B. 2112] 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 5, 11, 13 and 17.
Summary
The proposed rulemaking codifies practices and procedures of the Board and further explains various legislative changes to the Code (47 P. S. §§ 1-101--8-803). The following is a summary:
1. The proposed rulemaking explains conditions under which minors without a parent, guardian or proper supervisor may be present in those licensed premises that primarily serve food.
2. It prohibits purchases or redemption of the Board's gift cards by minors.
3. It explains qualifications for obtaining Sunday sales permits by licensees.
4. It explains the process of renewing Sunday sales permits by licensees.
5. It establishes requirements for the Board to participate in wine events.
6. It codifies established practices regarding limits on point-of-sale incentive programs for malt or brewed beverages.
7. It explains the procedure for intervention by interested parties where a municipality has requested leave to enforce its own noise ordinance in lieu of the Board's regulations on amplified music.
Affected Parties
The proposed rulemaking will affect existing licensees, and parties interested in municipal noise ordinance proceedings.
Paperwork Requirements
The proposed rulemaking will not significantly increase paperwork for the Board or the regulated community.
Fiscal Impact
Because the proposed rulemaking primarily codifies and organizes existing practices or obligations under the Code, it will not have a fiscal impact on the licensees of the Board, applicants for licenses or the Board itself.
Effective Date
These proposed amendments will become effective upon publication in final-form in the Pennsylvania Bulletin.
Public Comment/Contact Person
Written comments, suggestions or objections will be accepted for 30 days after the publication of the proposed rulemaking in the Pennsylvania Bulletin. Comments should be addressed to James F. Maher, Assistant Counsel, Office of Chief Counsel, Pennsylvania 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 March 17, 2005, 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 Chairperson 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 that have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final-form publication of the regulations, by the Board, the General Assembly and the Governor of comments, recommendations or objections raised.
JONATHAN H. NEWMAN,
ChairpersonFiscal Note: 54-61. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 40. LIQUOR
PART I. LIQUOR CONTROL BOARD
CHAPTER 5. DUTIES AND RIGHTS OF LICENSEE
Subchapter J. MINORS ON LICENSED PREMISES Sec.
5.121. Service in establishments primarily serving food. § 5.121. Service in establishments primarily serving food.
(a) Section 494(14) of the Liquor Code (47 P. S. § 4-494(14)) creates several exceptions to the general prohibition of minors being present in licensed premises. One of these exceptions, known as the ''Pizza Hut'' exception, permits a minor to be present in a restaurant, hotel or retail dispenser (but not a club) licensed premises that has gross sales of food and nonalcoholic beverages equal to at least 50% of its combined gross sales of both food and alcoholic beverages.
(b) Licensees qualifying for this exception will not be cited for unlawfully allowing minors to frequent the licensed premises.
(c) To qualify for this exception, a licensee shall assure that:
(1) Minors are not permitted to sit at the bar counter of the premises.
(2) Alcoholic beverages are not served to any adult at the table or booth where the minor is seated, unless the minor is also there with a parent, legal guardian or proper supervisor.
(3) Sales of food and nonalcoholic beverages at the licensed premises during the preceding 12-month licensing year are at least 50% of the combined gross sales of both food and alcoholic beverages.
CHAPTER 11. PURCHASES AND SALES
Subchapter A. GENERAL PROVISIONS § 11.13. Gift card transactions by minors prohibited.
Gift cards authorized by section 305 of the Liquor Code (47 P. S. § 3-305) for sale and redemption by the Board may not be purchased or redeemed by minors.
Subchapter I. SALE OF ALCOHOLIC BEVERAGES ON SUNDAY § 11.172. Application for a new Sunday sales permit.
(a) A licensee who wishes to make Sunday sales of alcoholic beverages shall file an application in the form as may be prescribed by the Board for a Sunday sales permit. The application for a Sunday sales permit shall contain:
* * * * * (4) Information [to support the application's assertion] that for at least 90 consecutive days during the 12 months immediately preceding the date of application, sales of food and nonalcoholic beverages by the applicant at the licensed premises were [equal to or exceed] at least 30% of the combined gross [sale] sales of both food and alcoholic beverages.
(b) [The licensee shall be strictly liable for the accuracy of the information contained in the application and any inaccuracy shall be cause to show why the license should not be suspended or revoked or a fine imposed.] Inaccuracy in the application shall be sufficient cause for citation of a licensee under section 471 of the Liquor Code (47 P. S. § 4-471).
(c) Sunday sales permits are specific to the named licensee and not subject to transfer of ownership.
§ 11.176. Renewal.
(a) Renewals of Sunday sales permits shall be accomplished as set forth in § 11.172 (relating to application for a new Sunday sales permit), except that the information required by § 11.172(a)(4) shall be for the consecutive 12-month period [or portion thereof] immediately preceding the date of the application for renewal.
(b) If a licensee does not qualify for renewal of its Sunday sales permit, it may not apply for a new permit until at least 120 days after the expiration of its previous permit. The application will then be considered an application for a new Sunday sales permit.
(c) When the licensee delays its renewal application, sales during the prior Sunday sales permit may not be used to qualify the applicant for a new Sunday sales permit.
Example: A license and Sunday sales permit expire on February 28, 2004. The licensee applies for renewal on November 30, 2003. During the 12 consecutive months preceding the renewal application (November 1, 2002, through October 31, 2003) the licensee's ratio of sales of food and nonalcoholic beverages to its sales of food and alcoholic beverages is 25%. Therefore, the licensee's Sunday sales permit is not renewable. The licensee waits the required 120 days, and on July 1, 2004, it applies for a new Sunday sales permit. Its ratio is then at 35% for 90 consecutive days. It is issued a new Sunday sales permit that is valid until February 28, 2005. If the licensee's ratio stays above 30%, the Sunday sales permit will be validated and be in force at least until March 1, 2006.
CHAPTER 13. PROMOTIONS
Subchapter A. ADVERTISING
WINE § 13.27. Board participation in wine events.
(a) Section 215(e) of the Liquor Code (47 § 2-215 (e)) authorizes the Board to sponsor or participate in wine events.
(b) Persons seeking Board participation shall submit a request in writing to the Board at least 60 days prior to the first day of the wine event.
(c) If the event is approved, the Board will issue a letter of authority to the event organizer. The Board's letter will describe the premises upon which the wine event will be held.
(d) If the event is not approved, the Board's decision is final, and may not be appealed.
(e) Wine to be used in a wine event that the Board has chosen to sponsor or participate in may be acquired and possessed in accordance with the following:
(1) Wine donated for the event may be shipped directly to the wine event organizer or its agents.
(i) Records showing the amount, types and brands of all wine received, the identity of the donors and the dates received, and documents evidencing payment of all necessary taxes shall be forwarded to the Board prior to the wine event.
(ii) Wine obtained for the wine event that is not used at the wine event shall be returned to the donor, donated to a nonprofit, charitable organization registered with the Pennsylvania Department of State or destroyed and may not be sold.
(2) Wine may also be obtained for the wine event through the Board's wine and spirits stores.
(f) The Board's letter of authority authorizes the event organizer or its agents to possess and transport wine for the wine event.
(g) Participation in the wine event, including the service and consumption of wine, may be conditioned on the purchase of a ticket to the wine event. The event organizer, its agents or the Board may sell tickets. Sale of tickets by the event organizer or its agents does not constitute the unlawful sale of alcohol.
(h) The event organizer shall appoint a manager who shall be present on the premises at all times during the wine event.
(i) The Board may sell wine for off-premises consumption in an area it designates at the wine event. The Board will comply with the provisions of the Liquor Code governing retail sales at wine and spirits stores, except that advance advertisement or notice posting by the Board of the location of the designated sales area is not required and provisions granting a right of protest will not be applicable.
(j) If the premises where the wine event is to occur is licensed by the Board, the licensee will not be cited under the Liquor Code for conduct occurring on the licensed premises during the wine event, so long as the licensee, its employees or agents are not directly involved in the violation and are not participating in the operation or management of the wine event.
GIVING AND ACCEPTING THINGS OF VALUE § 13.51. General prohibition.
(a) Except as [provided in subsections (b), (c) and § 13.52 (relating to advertising novelties)] otherwise permitted, no in-State or out-of-State manufacturer, licensee or group of licensees, their servants, agents or employes, may directly or indirectly, in person, individually or through a trade organization, contribute to or accept from another licensee or group of licensees of a different class, their servants, agents or employes or a trade organization of licensees of a different class, anything of value by means of advertisements, contributions, purchase, sale of tickets, donations or by any device, for any purpose.
* * * * * § 13.54. Point of sale (POS) incentive programs--defined.
A POS incentive program provides prizes for non- licensed buyers to purchase and for distributors/importing distributors to promote the sale of a brand of malt or brewed beverages. These promotions feature displays or advertisements at the location where a sale is made.
§ 13.56. Permissible point of sale (POS) incentive programs.
(a) A POS incentive program must be sponsored by a manufacturer or importing distributor of malt or brewed beverages.
(b) The composite value of prizes available to nonlicensed buyers must be at least three times the value of prizes available to distributors/importing distributors.
(c) Associated display and novelty items must be directed at and available for nonlicensed buyers.
(d) A prize may not be given to every participant.
(e) The value of a prize for a nonlicensed buyer may not exceed $1,500.
(f) The POS incentive program may not incorporate a payment to licensees based on the number of cases displayed.
(g) The POS incentive program must be approved in advance by the Office of Chief Counsel, Pennsylvania Liquor Control Board.
CHAPTER 17. SPECIAL RULES OF PRACTICE AND PROCEDURE REGARDING MATTERS BEFORE THE OFFICDE OF ADMINISRATIVE LAW JUDGE
Subchapter A. GENERAL § 17.1. Purpose.
This chapter supplements 1 Pa. Code Part II (relating to general rules of administrative practice and procedure) and governs the practice and procedure before the Board regarding license applications, appeals from ALJ decisions, applications for supersedeas [and], divestiture and noise exemption petitions.
Subchapter B. LICENSE APPLICATION § 17.15. Intervention in noise exemption petitions.
(a) Petitions to intervene may be filed when a municipality has petitioned the Board for exemption from the Board's regulation regarding the sound of amplified music or other entertainment, or the advertisement thereof, being heard outside of licensed premises.
(b) The deadline for filing a petition to intervene is 7 calendar days before the hearing. In extraordinary circumstances and for good cause, a petition to intervene may be accepted by the Board after the deadline, but not after the hearing begins.
(c) A petition to intervene will present proof that the petitioner has a substantial, direct and immediate interest in the outcome of the proceeding. For an interest to be substantial, it means that there is some discernible adverse effect to the petitioner's individual interest. For the petitioner to have a direct interest, it means that the person claiming to be aggrieved must show the harm to his interest would be caused by the municipality's enforcement of its own noise ordinance. An immediate interest means that there is a close causal connection between the alleged injury and the grant of the exemption.
(d) The Board may allow petitioners to become interveners if the petition also shows the petitioner has an interest of such a nature that intervention is necessary or appropriate to administration of the Liquor Code and this title. The Board will also consider whether or not the interest asserted in the petition to intervene is adequately represented by existing parties.
[Pa.B. Doc. No. 05-652. Filed for public inspection April 8, 2005, 9:00 a.m.]
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