Title 40--LIQUOR LIQUOR CONTROL BOARD [40 PA. CODE CHS. 5, 7, 9, 11 AND 13] Licensees and Vendors [31 Pa.B. 430] The Liquor Control Board (Board) under the authority of section 207(i) of the Liquor Code (47 P. S. § 2-207(i)), adopts amendments to §§ 5.16, 5.31, 7.1, 7.5, 7.6, 7.22, 7.23, 7.41, 9.12, 9.91, 11.1, 11.2, 11.3, 11.201, 11.203, 11.204, 11.205, 13.43 and adds §§ 7.8 and 7.9.
Purpose
The Board regulations amended by this order will codify the Board's policy permitting outside employment for club managers or stewards, rescind the ability of municipalities to set the hours of amusement for retail licensees in contravention of the Liquor Code, delete references to surety bond requirements that were eliminated by statute, correct erroneous cites to the Malt Beverage Tax Law (72 P. S. §§ 9001--9016), delete the 120-day requirement for discounting wholesale beer prices as a result of a Federal court decision that struck down corresponding portions of the act of December 20, 1996 (P. L. 1513, No. 196) (Act 196), permit the sale of grain alcohol for nonpotable use, eliminate inaccurate references to cost limits on interior displays and eliminate the requirement that interior displays bear serial or model numbers.
Comments
Notice of proposed rulemaking was published at 29 Pa.B. 5301 (October 9, 1999), with a 30-day written public comment period.
The Board received four written comments from managers of hotels and a written comment from the President of the Pennsylvania Travel Council in support of its proposed regulatory change to § 13.102. This regulatory amendment would have allowed hotels to offer an open bar to their overnight guests as part of a meal package on December 31, 1999, until 2 a.m. on January 1, 2000. The amendment to § 13.102, as well as amendments to §§ 3.31, 3.33, 3.63, 3.73, 11.91, 11.92, 13.71--13.75, 13.77--13.79, 13.81, 13.86 and 13.87 relating to registration of vendors' agents, which were previously included with these regulatory amendments, were filed as a final rulemaking with proposed rulemaking omitted on November 8, 1999. These amendments took effect upon their publication at 29 Pa.B. 6337 (December 18, 1999).
The Independent Regulatory Review Commission (IRRC) submitted comments relative to the proposed rulemaking as follows:
1. As a general comment, IRRC referenced that portion of the rulemaking dealing with vendor registration as an area not addressed in these comments since a separate final-omitted regulations were submitted by the Board on November 8, 1999.
2. IRRC commented on several sections of the regulations that refer to forms and noted that the Board uses expressions such as ''form furnished by the Board'' or ''transfer form'' throughout its regulations. IRRC suggested that for the sake of clarity, the Board should consider providing a brief description of the forms after each of the aforementioned phrases. IRRC suggested this would help licensees obtain and use the appropriate form. However, only the Board's Bureau of Licensing furnishes forms to licensees and applicants for licenses and permits. In doing so, the Bureau of Licensing takes steps to insure that the appropriate and correct forms are furnished. Because the Board issues over 70 different types of licenses or permits and each of those licenses or permits could require a variety of actions such as transfer of location or ownership, correction to license, renewal, and the like, describing the forms in the regulations would serve no useful purpose. Identifying forms in the regulations would also restrict the Board's ability to change or eliminate a form without a regulatory change.
3. IRRC suggested that in § 7.5 (relating to transfers on death of the licensee) the comma between ''transfer form'' and the word ''application'' should be deleted. However, the transfer form and application are separate forms, therefore only the reference to the bond is deleted.
4. IRRC suggested that § 7.9 (relating to site plans) needed clarification. The proposed language states that the site plan submitted by an applicant for a new license or transfer of an existing license must depict the location of the proposed licensed premises in relation to identifiable property lines or easily identifiable landmarks. IRRC recommended that the term ''easily identifiable landmarks'' should be defined since the term is unclear. Therefore, ''or reference points'' was added after ''landmarks.''
5. IRRC stated that the term ''maximum value'' as used in § 13.43(b) and (c) (relating to interior display) referencing the value of interior displays, is vague and suggested that ''maximum value as set by the Board'' would better define the term. The Board agrees and the referenced section is being amended.
6. IRRC recommended clarification of § 13.87 (relating to records). Since subsection (b) states, ''[T]he records shall also be open to inspection by authorized representatives of the Board during normal business hours,'' the IRRC questioned whether the phrase ''normal business hours'' referred to the standard hours of operation of the vendor or the Board. Although it is recognized that business may be conducted at all hours of the day or night, ''normal business hours'' is a general term similar to ''nine to five.'' It references a generally recognized standard for conducting business so as not to inconvenience either party. This section was amended by a final regulation with proposed rulemaking omitted as referenced and published at 29 Pa.B. 6337.
The Board received no other comments, either in support of or in opposition to the proposed amendments, during the public comment period.
Fiscal Impact
These final-form regulations will not impose additional costs on the regulated community, the State or local governments.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 17, 1999, the Board submitted a copy of the notice of proposed rulemaking to IRRC and the Chairpersons of the House Committee on Liquor Control and the Senate Committee on Law and Justice for review and comment. These final-form regulations were submitted to the Chairpersons of the House and Senate Committees and IRRC on October 31, 2000.
These final-form regulations were deemed approved by the House and Senate Committees on November 21, 2000. Under section 5.1(e) of the Regulatory Review Act (71 P. S. § 745.5a(e)), IRRC met on December 14, 2000, and approved the final-form regulations.
Contact Person
Persons requiring an explanation of the final-form regulations or information related thereto should contact Jerry Danyluk, Liquor Control Board, 513 Northwest Office Building, Harrisburg, PA 17124-0001.
Findings
The Board finds that:
(1) Public notice of intention to adopt amendments to the administrative regulations by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) The adoption of the final-form regulations set forth in this order is necessary and appropriate for the administration and enforcement of the authorizing statute.
Order
The Board, acting under the enabling statute, orders that:
(a) The regulations of the Board, 40 Pa. Code Chapters 5, 7, 9, 11 and 13, are amended by adding §§ 7.8 and 7.9; by deleting §§ 11.2 and 11.201, 11.203--11.205; and by amending §§ 5.16, 5.31, 7.1, 7.5, 7.6, 7.22, 7.23, 7.41, 9.12, 9.91, 11.1, 11.3 and 13.43 to read as set forth in Annex A. Amendments to §§ 3.31, 3.33, 3.63, 3.73, 11.91, 11.92, 13.71--13.75, 13.77--13.79, 13.81, 13.86, 13.87 and 13.102 previously published at 29 Pa.B. 5301 were filed separately as a final rulemaking with proposed rulemaking omitted and were effective upon publication in the Pennsylvania Bulletin at 29 Pa.B. 6337.
(b) The Board shall submit this order and Annex A to the Office of Attorney General for approval as to form and legality as required by law.
(c) The Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
JOHN E. JONES, III,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 30 Pa.B. 6964 (December 30, 2000).)
Fiscal Note: Fiscal Note 54-55 remains valid for the final adoption of the subject regulations.
Annex A TITLE 40. LIQUOR PART I. LIQUOR CONTROL BOARD CHAPTER 5. DUTIES AND RIGHTS OF LICENSEES Subchapter B. EMPLOYES OF LICENSEES § 5.16. Appointment of managers.
(a) The operation of a licensed business requires the full time and attention of a manager. A licensee holding one or more licenses shall appoint an individual as manager for each licensed establishment and the manager shall devote full time and attention to the licensed business. If the licensee is an individual, he may designate himself as manager of one licensed establishment, except in the case of distributors or importing distributors. If a license is held by more than one individual, the manager may be one of the individuals or another person the licensee may designate, except in the case of distributors and importing distributors.
(b) The manager appointed by a licensee shall be a reputable person. The licensee shall notify the Board in writing of the name and home address of the manager and the date and place of birth. If there is a change of manager, the licensee shall give the Board written notice within 15 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.
(c) When a background investigation shall be 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 individual has been disapproved by the Board. The designated manager shall devote full time to the licensed business and may not be employed or engaged in another business unless prior written approval is obtained from the Board.
(d) A club manager or steward may be engaged 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 § 5.31. Amusement permit.
(a) Requirements.
(1) Under section 493(10) of the Liquor Code (47 P. S. § 4-493(10)), the Board may issue an amusement permit authorizing dancing, theatricals, floor shows and motion picture exhibitions in licensed premises, or in another place operated in connection therewith, to the holder of a retail liquor or retail dispenser license, except clubs, upon proper application and payment of the required fee.
(2) An application for an amusement permit may be filed with the Board at any time during the license period. Amusement permits expire with the license. Amusement permits may be extended at license validation unless the permit is revoked or subject to suspension.
(3) An amusement permit may be denied to a licensee against whom revocation or criminal proceeds are pending or to a licensee who, in the Board's opinion, has failed to conduct the licensed premises in accordance with the laws of the Commonwealth. A licensee denied an amusement permit may appeal the decision of the Board by requesting a hearing before the Board within 20 days of notice of denial.
(4) An amusement permit may not be assigned. When the retail liquor or retail dispenser license of the licensee is transferred by the Board from one person to another, or from one place to another, the amusement permit held by the licensee may be transferred in like manner upon the payment of a filing fee of $10.
(5) An amusement permit is not required for television devices, audio/video playback devices, radio, instrumental music, games or events/tournaments/contests.
(b) Suspension or revocation of an amusement permit.
(1) The Office of Administrative Law Judge, upon sufficient cause shown that a licensee holding an amusement permit, or a partner, officer, director, servant, agent or employe of the licensee, has permitted in the licensed premises a violation of the Liquor Code or this title, or upon other sufficient cause shown, may, upon due notice and proper hearing being given to the licensee, suspend or revoke the permit.
(2) The Office of Administrative Law Judge, upon sufficient cause shown that a licensee holding an amusement permit, or a partner, officer, director, servant, agent or employe of the licensee, is guilty of, or pleads guilty to a violation of the laws of the Commonwealth before a court may after hearing suspend or revoke the amusement permit of the licensee upon the receipt of a transcript of the record in that proceeding.
(3) The action of the Office of Administrative Law Judge in suspending or revoking an amusement permit is final. A new amusement permit will not be approved until the expiration of 1 year from the date of revocation.
(c) Revocation/suspension of a permit. If the liquor or malt or brewed beverage license is revoked or suspended, for whatever reason, the amusement permit of the licensee will be similarly automatically revoked or suspended. There will be no refund made nor credit given for the unused portion of the fee paid for the permit, upon suspension or revocation.
CHAPTER 7. TRANSFER, EXTENSION, SURRENDER, EXCHANGE AND SUSPENSION OF LICENSES Subchapter A. TRANSFER OF LICENSES § 7.1. Filing of applications for transfer.
Licenses issued by the Board, under Article IV of the Liquor Code (47 P. S. §§ 4-401--4-498), may be transferred in accordance with this subchapter. Applications for transfer of licenses may be filed at any time, but when filed within 30 days of the expiration date of the license term, the transfer applies to the renewal license only, except in the case of death. Applications for transfer shall be made on the regular transfer form, which shall be accompanied by the application for license and remittance of proper fees in accordance with the applicable provisions of section 614-A of The Administrative Code of 1929 (71 P. S. § 240.14A).
§ 7.5. Transfers on death of the licensee.
On the death of the licensee, the license may be transferred immediately to the surviving spouse or to the administrator or executor of the estate of the licensee, upon presentation of the transfer form, application, filing fee, and short form certificate from the registrar of wills. If it is desired to transfer the license to a person designated by and acting for the administrator or executor, the transfer application and fee, with written evidence of the designation, shall be submitted by the administrator or executor. The Board will be notified in writing within 30 days of the death of a licensee.
§ 7.6. Transfer of partnership licenses.
If one or more partners voluntarily retire, an application for correction of license shall be executed and filed by all the partners, including the retiring partner. In the case of death of a partner, the application for correction of license shall be executed and filed by the surviving partners, and by the administrator or executor of the estate of the deceased partner, if any, and be accompanied by a short form certificate from the registrar of wills. If there is no administrator or executor, the application for correction of license shall be executed and filed by the surviving partners together with documentary evidence of the death of the deceased partner. These requirements also apply if the license is held jointly by husband and wife. Applications for correction of a license under this section shall be accompanied by the proper fee in accordance with the applicable provisions of section 614-A of The Administrative Code of 1929 (71 P. S. § 240.14A).
§ 7.8. Floor plans.
Applicants for new licenses or for transfer of location of existing licenses shall submit floor plans with the application depicting all areas to be licensed. Floor plans are required for existing structures, as well as for structures proposed for construction and are to depict room dimensions. Floor plans shall be reproduced on paper and are not to exceed 8 1/2 by 11 inches. A separate floor plan is required for each floor used in conjunction with the licensed business.
§ 7.9. Site plans.
Applicants for new licenses or for transfer of location of existing licenses shall submit site plans when the structure the applicant intends to occupy has not been constructed at the time the application is filed with the Board. Site plans shall be reproduced on paper in an 8 1/2 by 11-inch format and shall depict the location of the proposed licensed premises in relation to identifiable property lines or easily identifiable landmarks or reference points with measurements to the property lines, landmarks or reference points.
Subchapter B. EXTENSION OF LICENSES § 7.22. Application.
(a) To obtain Board approval, an application for extension of license describing the additional premises shall be filed with the Board.
(b) A fee of $220 shall accompany an application for extension of license, and a physical inspection of the premises will be made whenever deemed necessary by the Board.
(c) An applicant for extension of premises shall post, for a period of at least 15 days beginning with the day the application is filed with the Board, in a conspicuous place on the outside of the licensed premises, a notice of application in a form, and size and containing provisions the Board requires concerning the requested extension. Proof of the posting of the notice shall be filed with the Board.
§ 7.23. Approval.
The additional premises for which it is desired to extend a license shall be completely equipped for the carrying on of the type of business permitted under the license, but no sales of liquor or malt or brewed beverages, storage or similar activity may take place in the additional premises until approval has been given by the Board. Where the extension of premises involves physical alterations or new construction, the Board may grant prior approval for the extension, as similarly provided in section 403(a) of the Liquor Code (47 P. S. § 4-403(a)). The application for extension of license shall be accompanied by a written request for consideration, together with floor plans as set forth in § 7.8 (relating to floor plans) clearly showing the premises as it will be after the alterations or construction are completed. If the additional premises the applicant intends to license has not been constructed at the time the application is filed with the Board, a site plan shall be submitted as set forth in § 7.9 (relating to site plans). Approval may be in the form of a new license, giving the additional address or a letter authorizing the use of additional premises. In the case of distributors and importing distributors of malt or brewed beverages, no sales of malt or brewed beverages may be made in a warehouse except that in which the office or principal place of business of the licensee is maintained.
Subchapter D. EXCHANGE OF LICENSES DISTRIBUTOR AND IMPORTING DISTRIBUTOR LICENSES § 7.41. Applications.
An application for the exchange of Distributor or Importing Distributor Licenses shall be filed on a form furnished by the Board and will be considered by the Board only at the times indicated in § 7.42 (relating to effective dates).
CHAPTER 9. TRANSPORTATION, IMPORTATION, DISPOSITION AND STORAGE Subchapter A. TRANSPORTATION OF LIQUOR, MALT OR BREWED BEVERAGES OR ALCOHOL LICENSES § 9.12. Applications for Transporter-for-Hire Licenses.
(a) Transporter-for-Hire License, Class A. An application for a Transporter-for-Hire License, Class A, shall be filed on forms furnished by the Board and shall be accompanied by application and license fees in accordance with section 614-A of The Administrative Code of 1929 (71 P. S. § 240.14A). The license will be issued for the calendar year and the license fee will be prorated quarterly, in accordance with section 508 of the Liquor Code (47 P. S. § 5-508).
(b) Transporter-for-Hire License, Class B. An application for a Transporter-for-Hire License, Class B, shall be accompanied by application and license fees in accordance with section 614-A of The Administrative Code of 1929. The licenses will be issued for the calendar year.
(c) Transporter-for-Hire License, Class C. An application for Transporter-for-Hire License, Class C, shall be accompanied by application and license fees in accordance with section 614-A of The Administrative Code of 1929. The license will be issued for the calendar year. To secure this license, the applicant shall demonstrate that he maintains a fleet of vehicles primarily engaged in general parcel consignment, servicing all points within this Commonwealth and shall demonstrate that he can transport liquor from points in this Commonwealth to Board facilities, from Pennsylvania licensed limited winery locations to limited winery customers and from distilleries of historical significance to distillery customers.
Subchapter E. IMPORTATION AND DISTRIBUTION OF MALT OR BREWED BEVERAGES GENERAL PROVISIONS § 9.91. Importation.
(a) A person may not import malt or brewed beverages into this Commonwealth for delivery or use therein, unless the person holds a valid Importing Distributor License, issued by the Board under the Liquor Code, or unless the person is otherwise exempted by the provisions of this section.
(b) This section does not prohibit the importation of malt or brewed beverages by either of the following:
(1) A resident of this Commonwealth, for personal use only and not for sale, provided that the malt or brewed beverages are in original containers and that the tax thereon has been paid, or provisions for the payment have been made under the Malt Beverage Tax Law (72 P. S. §§ 9001--9016).
(2) Railroad and pullman companies, in their dining, club and buffet cars, licensed in this Commonwealth.
(c) Sales of malt or brewed beverages intended to be transported for delivery or use in this Commonwealth shall be consummated outside this Commonwealth and shall be paid for in full prior to or at the time of delivery to the consignee in this Commonwealth, who shall pay transportation charges. The beverages shall also be tax paid in accordance with section 2003 of the Malt Beverage Tax Law (72 P. S. § 9003), and the transporter shall be considered the agent of the consignee.
CHAPTER 11. PURCHASES AND SALES Subchapter A. GENERAL PROVISIONS RETAIL AND WHOLESALE PURCHASE--GENERAL § 11.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Manufacturer--A person engaged in the manufacture, rectification or compounding of liquors, other than wines, or an agent or representative of the manufacturer. The term, as it relates to Subchapter L (relating to manner of changing prices of malt or brewed beverages), is any entity licensed for and engaged in the manufacture of malt or brewed beverages within this Commonwealth or elsewhere.
State, territory or county of origin--The place where liquors other than wines offered for sale to the Board are manufactured, rectified or compounded for the market.
§ 11.2. (Reserved).
§ 11.3. Sales at retail.
(a) State liquor stores may stock ethyl alcohol, 190 proof, for retail sales subject to the following:
(1) An individual or entity desiring to purchase ethyl alcohol shall file an application on forms provided by the Board.
(2) The Board may approve the application of an individual or entity who swears or affirms that the alcohol will be purchased for nonpotable use only.
(b) Special orders are subject to the following:
(1) Special orders for ethyl alcohol shall be accepted for a minimum quantity of one case of 24 pints or one case of 12 quarts.
(2) Special orders of absolute ethyl alcohol, 200 proof, shall be accepted for a minimum quantity of 1 gallon.
(3) Special orders require a deposit of at least 25% of the selling price at the time of placing an order. The name of the manufacturer shall also be furnished.
Subchapter L. (Reserved) § 11.201. (Reserved).
§ 11.203. (Reserved).
§ 11.204. (Reserved).
§ 11.205. (Reserved).
CHAPTER 13. PROMOTION Subchapter A. ADVERTISING ADVERTISING OF BRAND NAMES § 13.43. Interior display.
(a) A licensee may not install or permit to be installed electrically operated signs or devices, lithographs, framed pictures, cardboard displays, statuettes, plaques, placards, streamers or similar items advertising brand names and intended for interior display on the licensed premises until the licensee has submitted detailed information to the Board on forms provided by the Board, and obtained Board approval. A photograph or sketch of the display sign shall accompany the application form.
(b) When the approved sign, as described in subsection (a), is of maximum value as set by the Board, no background material may be used in conjunction with the installation.
(c) Signs or displays intended for use interchangeable in a window, doorway or in the interior shall meet the requirements for both maximum area, as provided in § 13.42 (relating to window and doorway display) and maximum value as set by the Board.
[Pa.B. Doc. No. 01-75. Filed for public inspection January 19, 2001, 9:00 a.m.]
