Title 40—LIQUOR LIQUOR CONTROL BOARD [ 40 PA. CODE CH. 11 ] Limited Winery Container Size Restrictions [42 Pa.B. 4465]
[Saturday, July 14, 2012]The Liquor Control Board (Board), under the authority of section 207(g) and (i) of the Liquor Code (code) (47 P. S. § 2-207(g) and (i)), amends Chapter 11 (relating to purchases and sales).
Summary
This final-omitted rulemaking deletes the container size restrictions imposed upon licensed limited wineries. Section 505.2 of the code (47 P. S. § 5-505.2) defines a ''limited winery'' as a winery which has an annual production of less than 200,000 gallons. Prior to this final-omitted rulemaking, under § 11.111(a)(3) (relating to sale by limited winery licensees), containers of wine sold by licensed limited wineries for delivery within this Commonwealth were not less than 3/16 liter nor more than 5 liters, except that sparkling grape wine could have been sold in glass containers larger than 5 liters. These size limitations did not apply to out-of-State sales conducted by licensed limited wineries.
The Board has been approached by industry members who would like to sell draught wine from limited wineries at their premises, which is becoming a popular trend in the retail marketplace. The regulation did not permit a limited winery to sell wine in larger keg containers which could be tapped by retail licensees and sold in draught form. This final-omitted rulemaking deletes container size restrictions applicable to licensed limited wineries thereby permitting limited wineries to sell wine in kegs and other containers larger than 5 liters. The minimum container size restriction is also being deleted, consistent with the Board's desire to allow limited wineries to sell in containers of any size, as the marketplace may demand.
Affected Parties
The final-omitted rulemaking will affect licensed limited wineries. There are 180 active limited wineries licensed by the Board, including 172 within this Commonwealth and 8 located outside of this Commonwealth. Potentially affected limited wineries have been or will be notified of this final-omitted rulemaking either by e-mail or by United States Postal Service mail.
Paperwork Requirements
The Board does not anticipate that this final-omitted rulemaking will affect the amount of paperwork or administrative costs of the regulated community.
Fiscal Impact
This final-omitted rulemaking is not expected to have adverse fiscal impact on the regulated community. In fact, this final-omitted rulemaking is expected to have a positive fiscal impact on licensed limited wineries and retail licensees who will be able to capitalize on a growing market trend. Further, selling wine in kegs may reduce the bottling and labeling costs of limited wineries, which may, in turn, result in overall cost-savings for those retail licensees buying kegs and for consumers who purchase wine at licensed establishments.
This final-omitted rulemaking is also not expected to have adverse fiscal impact on State and local governments. It should be noted that limited wineries may sell their products to the Board, retail licensees and the public. However, under section 305(i) of the code (47 P. S. § 3-305(i)) and § 11.104 (relating to wine in kegs), the Board is not authorized to sell wine in keg containers.
Effective Date
This final-omitted rulemaking will become effective upon publication in the Pennsylvania Bulletin.
Contact Person
Further information is available by contacting Alan Kennedy-Shaffer, Assistant Counsel, or Christopher Herrington, Deputy Chief Counsel, Office of Chief Counsel, Liquor Control Board, Room 401, Northwest Office Building, Harrisburg, PA 17124-0001.
Regulatory Review
Under section 5.1(c) of the Regulatory Review Act (71 P. S. § 745.5a(c)), on May 16, 2012, the Board submitted a copy of the final-omitted rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Liquor Control Committees. On the same date, the regulations were submitted to the Office of Attorney General for review and approval under the Commonwealth Attorneys Act (71 P. S. §§ 732-101—732-506).
Under section 5.1(j.2) of the Regulatory Review Act, on June 20, 2012, the final-omitted rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on June 21, 2012, and approved the final-omitted rulemaking.
Order
The Board, acting under the code, orders that:
(a) The regulations of the Board, 40 Pa. Code Chapter 11, are amended by amending § 11.111 to read as set forth in Annex A.
(b) The Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(c) This order shall become effective upon publication in the Pennsylvania Bulletin.
JOSEPH E. BRION,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 42 Pa.B. 4297 (July 7, 2012).)
Fiscal Note: 54-71. No fiscal impact; (8) recommends adoption.
Annex A TITLE 40. LIQUOR PART I. LIQUOR CONTROL BOARD CHAPTER 11. PURCHASES AND SALES Subchapter C. WINES LIMITED WINERIES § 11.111. Sale by limited winery licensees.
(a) A limited winery licensee, licensed under § 3.62 (relating to creation), may sell wines produced on the licensed premises in accordance with the Liquor Code and this part, under the conditions in this subsection.
(1) There may be no sales for consumption on the licensed premises.
(2) Wine sold under a limited winery license may be shipped by transporter-for-hire or in a vehicle properly registered with the Board, as provided in Chapter 9, Subchapter A (relating to transportation of liquor, malt or brewed beverages or alcohol).
(3) Wine sold and destined to points within this Commonwealth shall be in sealed original containers.
(4) Sales may be made generally only between the hours of 9 a.m. and 9 p.m. Monday to Saturday, inclusive, and 10 a.m. to 6 p.m. on Sunday. During the period from the Thanksgiving Day holiday through New Year's Day, limited winery sales locations may remain open until 10 p.m. of sales day to conform with the closing times of neighboring mall or shopping district businesses. Additionally, a limited winery may request approval from the Board to extend sales hours in individual locations at other times during the year, or beyond the limits set in this section. The request shall be in writing, to the Board's Office of the Chief Counsel, and shall detail the exact locations where sales hours are proposed to be extended. The licensee shall also set forth the proposed hours and dates of extended operation, as well as the reason for, and justification of, the proposed extended sales hours.
(5) While there may be no sales on credit, a limited winery may accept:
(i) From licensees and retail customers, checks drawn on their account.
(ii) From retail customers, credit cards issued by banking or financial institutions subject to State or Federal regulations.
(6) Visitors on the licensed premises may be provided without charge with samples of wine produced by the limited winery for tasting and with crackers, nuts, cheese, bread sticks and bread cubes to be used in conjunction with tastings.
(7) Limited winery licensees engaged in the retail and wholesale sales of wine are responsible to conform to the Liquor Code and this title.
(8) In addition to the sale of wines, the following items are permitted to be offered for sale on the licensed premises:
(i) Pennsylvania-grown fruits and the following products produced from the fruits:
(A) Juices.
(B) Juice concentrates.
(C) Jellies, jams and preserves.
(ii) Pennsylvania-grown mushrooms.
(iii) Home winemaking equipment and supplies.
(iv) Wine serving and storage accessories as follows:
(A) Cork removers.
(B) Wine glasses and decanters.
(C) Wine racks.
(D) Serving baskets and buckets.
(E) Bottle stoppers.
(v) Publications dealing with wine and winemaking.
(vi) Cheese, crackers, breads, nuts and preserved meats for consumption off the premises.
(vii) Gift packages consisting of any combination of the items listed in subparagraphs (i)—(vi).
(viii) Promotional items advertising the limited winery such as tee shirts, glassware, caps and the like.
(9) Sales on the licensed premises of merchandise not listed in paragraph (8) is subject to Board approval. The approval shall be requested by letter addressed to the Board. A limited winery licensee will be advised of approved items through an appropriate means of dissemination.
(10) A specific code of wine which is listed for sale as a stock item by the Board in State Liquor Stores may not be offered for sale at a licensed winery location at a price which is lower than that charged by the Board.
(11) Mail or telephone orders may be accepted. Delivery of products shall be accomplished through the use of vehicles properly registered by the limited winery licensees or through properly licensed transporters. It is the responsibility of the limited winery licensee to insure that wine is not delivered to minors and that proper invoices are maintained under § 5.103 (relating to limited wineries).
(b) The employment of an agent by a limited winery is governed by § 3.63 (relating to agents).
(c) Records, sales invoices and reports shall be kept as prescribed in § 5.103.
(d) The use of additional Board-approved locations by limited winery licensees is governed by § 3.64 (relating to additional Board-approved locations).
[Pa.B. Doc. No. 12-1300. Filed for public inspection July 13, 2012, 9:00 a.m.]
