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PRINTER'S NO. 1985
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1547
Session of
2017
INTRODUCED BY J. HARRIS, JUNE 12, 2017
REFERRED TO COMMITTEE ON LIQUOR CONTROL, JUNE 12, 2017
AN ACT
Amending the act of April 12, 1951 (P.L.90, No.21), entitled "An
act relating to alcoholic liquors, alcohol and malt and
brewed beverages; amending, revising, consolidating and
changing the laws relating thereto; regulating and
restricting the manufacture, purchase, sale, possession,
consumption, importation, transportation, furnishing, holding
in bond, holding in storage, traffic in and use of alcoholic
liquors, alcohol and malt and brewed beverages and the
persons engaged or employed therein; defining the powers and
duties of the Pennsylvania Liquor Control Board; providing
for the establishment and operation of State liquor stores,
for the payment of certain license fees to the respective
municipalities and townships, for the abatement of certain
nuisances and, in certain cases, for search and seizure
without warrant; prescribing penalties and forfeitures;
providing for local option, and repealing existing laws," in
preliminary provisions, further providing for definitions; in
Pennsylvania Liquor Control Board, further providing for
enforcement; in licenses and regulations and liquor, alcohol
and malt and brewed beverages, further providing for hearings
upon refusal of licenses, renewals or transfers and appeals,
providing for declaration of need and further providing for
revocation and suspension of licenses and fines and for
rights of municipalities preserved; in distilleries,
wineries, bonded warehouses, bailees for hire and
transporters for hire, further providing for appeals; and, in
property illegally possessed or used and forfeitures and
nuisances, providing for saturated nuisance market.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The definitions of "eating place" and
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"restaurant" in section 102 of the act of April 12, 1951
(P.L.90, No.21), known as the Liquor Code, are amended to read:
Section 102. Definitions.--The following words or phrases,
unless the context clearly indicates otherwise, shall have the
meanings ascribed to them in this section:
* * *
"Eating place" shall mean a premise where food is regularly
and customarily prepared and sold, having a total area of not
less than three hundred square feet available to the public in
one or more rooms, other than living quarters, and equipped with
tables and chairs, which must be in place and available for
immediate seating of patrons at all times, including bar seats,
but not including stacked or stored chairs on the licensed
premises, accommodating thirty persons at one time. The board
shall, by regulation, set forth what constitutes tables and
chairs sufficient to accommodate thirty persons at one time.
* * *
"Restaurant" shall mean a reputable place operated by
responsible persons of good reputation and habitually and
principally used for the purpose of providing food for the
public, the place to have an area within a building of not less
than four hundred square feet, equipped with tables and chairs,
which must be in place and available for immediate seating of
patrons at all times, including bar seats, but not including
stacked or stored chairs on the licensed premises, accommodating
at least thirty persons at one time. The board shall, by
regulation, set forth what constitutes tables and chairs
sufficient to accommodate thirty persons at one time.
* * *
Section 2. Section 211(a) of the act is amended by adding a
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paragraph to read:
Section 211. Enforcement.--(a) There is created within the
Pennsylvania State Police a Bureau of Liquor Control Enforcement
which shall be responsible for enforcing this act and any
regulations promulgated pursuant thereto. Officers and
investigators assigned to the bureau shall have the power and
their duty shall be:
* * *
(8) To investigate on an annual basis, without notice, any
licensed premises located in a saturated nuisance market as
defined in section 612 and issue citations for any violations of
this act discovered upon the investigation.
* * *
Section 3. Section 464 of the act is amended to read:
Section 464. Hearings Upon Refusal of Licenses, Renewals or
Transfers; Appeals.--The board may of its own motion, and shall
upon the written request of any applicant for club, hotel or
restaurant liquor license, or any applicant for any malt or
brewed beverage license other than a public service license, or
for renewal or transfer thereof, or for the renewal of an
amusement permit, whose application for such license, renewal or
transfer, or the renewal of an amusement permit, has been
refused, fix a time and place for hearing of such application
for license or for renewal or transfer thereof, or the renewal
of an amusement permit, notice of which hearing shall be mailed
to the applicant at the address given in his application. Such
hearing shall be before a hearing examiner designated by the
board. At such hearing, the board shall present its reasons for
its refusal or withholding of license, renewal or transfer
thereof, or its refusal for renewal of an amusement permit. The
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applicant may appear in person or by counsel, may cross-examine
the witnesses for the board and may present evidence which shall
likewise be subject to cross-examination by the board. Such
hearing shall be stenographically recorded. The hearing examiner
shall thereafter report, with the examiner's recommendation, to
the board in each case. The board shall thereupon grant or
refuse the license, renewal or transfer thereof or the renewal
of an amusement permit. In considering the renewal of a license
or amusement permit, the board shall not refuse any such renewal
on the basis of the propriety of the original issuance or any
prior renewal of such license or amusement permit. If the board
shall refuse such license, renewal or transfer or the renewal of
an amusement permit, following such hearing, notice in writing
of such refusal shall be mailed to the applicant at the address
given in his application. In all such cases, the board shall
file of record at least a brief statement in the form of an
opinion of the reasons for the ruling or order and furnish a
copy thereof to the applicant. Any applicant who has appeared at
any hearing, as above provided, who is aggrieved by the refusal
of the board to issue any such license or to renew or transfer
any such license or to issue or renew any amusement permit may
appeal, or any church, hospital, charitable institution, school
or public playground located within three hundred feet of the
premises applied for, aggrieved by the action of the board in
granting the issuance of any such license or the transfer of any
such license, may take an appeal limited to the question of such
grievance, within [twenty] thirty days from date of refusal or
grant, to the [court of common pleas of the county in which the
premises or permit applied for is located] Commonwealth Court.
If the application is for an economic development license under
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section 461(b.1) or the intermunicipal transfer of a license,
the governing body of the municipality receiving the new license
or the transferred license may file an appeal of the board
decision granting the license, within [twenty] thirty days of
the date of the board's decision. [, to the court of common
pleas of the county in which the proposed premises is located.
Such appeal shall be upon petition of the aggrieved party, who
shall serve a copy thereof upon the board, whereupon a hearing
shall be held upon the petition by the court upon ten days'
notice to the board. The said appeal shall act as a supersedeas
unless upon sufficient cause shown the court shall determine
otherwise. The court shall hear the application de novo on
questions of fact, administrative discretion and such other
matters as are involved, at such time as it shall fix, of which
notice shall be given to the board.] The court shall either
sustain or over-rule the action of the board and either order or
deny the issuance of a new license or the renewal or transfer of
the license or the renewal of an amusement permit to the
applicant.
Section 4. The act is amended by addition a section to read:
Section 470.4. Declaration of Need.--(a) A declaration of
need may be declared by the governing body of a county that
deems itself in need of additional retail liquor licenses above
the quota set forth in section 461 and which has exhausted all
available licenses under section 470.3.
(b) The board shall accept applications on forms and in a
manner set forth by the board, and the board shall issue a
declaration of need to a county when the county:
(1) has exhausted all available licenses under section
470.3; and
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(2) establishes a lack of reasonable means for obtaining a
suitable license within the county.
(c) Licenses revoked or not renewed under section 612 shall
be available for auction under section 470.3 only to counties
that are designated as a county of need under this section, in
the manner set forth by the board and at the date and time
appointed by the board.
Section 5. Sections 471(b), 493.1(b) and 515 of the act are
amended to read:
Section 471. Revocation and Suspension of Licenses; Fines.--
* * *
(b) Hearing on such citations shall be held in the same
manner as provided herein for hearings on applications for
license. Upon such hearing, if satisfied that any such violation
has occurred or for other sufficient cause, the administrative
law judge shall immediately suspend or revoke the license, or
impose a fine of not less than fifty dollars ($50) nor more than
one thousand dollars ($1,000), or both, notifying the licensee
by registered letter addressed to his licensed premises. If the
licensee has been cited and found to have violated section
493(1) insofar as it relates to sales to minors or sales to a
visibly intoxicated person, section 493(10) insofar as it
relates to lewd, immoral or improper entertainment or section
493(14), (16) or (21), or has been found to be a public nuisance
pursuant to section 611, or if the owner or operator of the
licensed premises or any authorized agent of the owner or
operator has been convicted of any violation of the act of April
14, 1972 (P.L.233, No.64), known as "The Controlled Substance,
Drug, Device and Cosmetic Act," or of 18 Pa.C.S. § 5902
(relating to prostitution and related offenses) or 6301
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(relating to corruption of minors), at or relating to the
licensed premises, the administrative law judge shall
immediately suspend or revoke the license, or impose a fine of
not less than one thousand dollars ($1,000) nor more than five
thousand dollars ($5,000), or both. However, if a licensee has
been cited and found to have violated section 493(1) as it
relates to sales to minors or sales to a visibly intoxicated
person but at the time of the sale the licensee was in
compliance with the requirements set forth in section 471.1 and
the licensee had not sold to minors or visibly intoxicated
persons in the previous four years, then the administrative law
judge shall immediately suspend or revoke the license, or impose
a fine of not less than fifty dollars ($50) nor more than one
thousand dollars ($1,000), or both. The administrative law judge
shall notify the licensee by registered mail, addressed to the
licensed premises, of such suspension, revocation or fine. In
the event the fine is not paid within twenty days of the
adjudication, the administrative law judge shall suspend or
revoke the license, notifying the licensee by registered mail
addressed to the licensed premises. Suspensions and revocations
shall not go into effect until thirty days have elapsed from the
date of the adjudication during which time the licensee may take
an appeal as provided for in this act, except that revocations
mandated in section 481(c) shall go into effect immediately. Any
licensee whose license is revoked shall be ineligible to have a
license under this act until the expiration of three years from
the date such license was revoked. In the event a license is
revoked, no license shall be granted for the premises or
transferred to the premises in which the said license was
conducted for a period of at least one year after the date of
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the revocation of the license conducted in the said premises,
except in cases where the licensee or a member of his immediate
family is not the owner of the premises, in which case the board
may, in its discretion, issue or transfer a license within the
said year. In the event the bureau or the person who was fined
or whose license was suspended or revoked shall feel aggrieved
by the adjudication of the administrative law judge, there shall
be a right to appeal to the board. The appeal shall be based
solely on the record before the administrative law judge. The
board shall only reverse the decision of the administrative law
judge if the administrative law judge committed an error of law,
abused its discretion or if its decision is not based on
substantial evidence. In the event the bureau or the person who
was fined or whose license was suspended or revoked shall feel
aggrieved by the decision of the board, there shall be a right
to appeal to the [court of common pleas] Commonwealth Court in
the same manner as herein provided for appeals from refusals to
grant licenses. Each of the appeals shall act as a supersedeas
unless, upon sufficient cause shown, the reviewing authority
shall determine otherwise; however, if the licensee has been
cited and found to have violated section 493(1) insofar as it
relates to sales to minors or sales to a visibly intoxicated
person, section 493(10) insofar as it relates to lewd, immoral
or improper entertainment or section 493(14), (16) or (21), or
has been found to be a public nuisance pursuant to section 611,
or if the owner or operator of the licensed premises or any
authorized agent of the owner or operator has been convicted of
any violation of "The Controlled Substance, Drug, Device and
Cosmetic Act," or of 18 Pa.C.S. § 5902 or 6301, at or relating
to the licensed premises, or if the license has been revoked
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under section 481(c), its appeal shall not act as a supersedeas
unless the reviewing authority determines otherwise upon
sufficient cause shown. In any hearing on an application for a
supersedeas under this section, the reviewing authority may
consider, in addition to other relevant evidence, documentary
evidence, including records of the bureau, showing the prior
history of citations, fines, suspensions or revocations against
the licensee; and the reviewing authority may also consider, in
addition to other relevant evidence, evidence of any recurrence
of the unlawful activity occurring between the date of the
citation which is the subject of the appeal and the date of the
hearing. If the reviewing authority is the board, no hearing
shall be held on the application for a supersedeas; however, a
decision shall be made based on the application, answer and
documentary evidence under this subsection. If the application
for a supersedeas is for a license that has been revoked under
section 481(c), the reviewing authority shall grant the
supersedeas only if it finds that the licensee will likely
prevail on the merits. No penalty provided by this section shall
be imposed for any violations provided for in this act unless
the bureau notifies the licensee of its nature within thirty
days of the completion of the investigation.
* * *
Section 493.1. Rights of Municipalities Preserved.--* * *
(b) A municipality may file a petition with the board for an
exemption from section 493(34) of this act for all the licensees
within an identifiable area in the municipality. Prior to
submitting a petition, the municipality shall adopt a local
noise ordinance and a resolution adopted by its governing body
confirming support of the petition, citing the noise ordinance
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and its intention to enforce the ordinance in place of section
493(34) of this act. Upon receipt of a petition, including a
copy of the noise ordinance, a map of the area to be exempted
and resolution, the board shall hold at least one (1) public
hearing on the petition. The hearing may be held before a
hearing examiner. The hearing shall take place within the
identified area and must comply with the notice, recording and
public participation requirements of 65 Pa.C.S. Ch. 7 (relating
to open meetings). Within sixty (60) days after receipt of the
petition, the board shall disapprove the petition for an
exemption in its entirety or may approve an area more limited
for which the exemption will be granted if the board finds that
granting the petition shall 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 shall
approve the petition. The board may place additional conditions
on its approval such as limiting the duration of the approval
and any other condition the board deems appropriate. There shall
be a right to appeal to the [court of common pleas] Commonwealth
Court in the same manner as provided by this act for appeals
from refusals to grant licenses.
* * *
Section 515. Appeals.--The board, the enforcement bureau or
any applicant or any licensee aggrieved by any decision
refusing, suspending or revoking a license under the provisions
of this article may appeal to the [court of the county in which
the licensed premises or the premises to be licensed are
located. In the event an applicant or a licensee shall have no
place of business established within the Commonwealth, his
appeal shall be to the] Commonwealth Court. Such appeal shall be
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in accordance with 2 Pa.C.S. Ch. 7 Subch. A (relating to
judicial review of Commonwealth agency action).
Section 6. The act is amended by adding a section to read:
Section 612. Saturated Nuisance Market.--(a) The board may,
upon its own motion or upon notice by the Bureau of Liquor
Control Enforcement or at the written request of a resident of a
zip code area, evaluate a zip code area to determine whether or
not to designate the area as a saturated nuisance market.
(b) Immediately upon motion of the board, notice by the
Bureau of Liquor Control Enforcement or receipt of a written
request of a resident of a zip code area, the board shall
evaluate the zip code area to determine whether or not to
designate the area as a saturated nuisance market. The board
shall make the determination by evaluating the following
factors:
(1) The number of licenses that have been subject to
objections to renewal, nonrenewal or revocation under this act
within the zip code area in the preceding renewal period.
(2) The total number of citations issued against all
licensees within the zip code area in the preceding renewal
period.
(3) The total number of police incidents occurring in
licensed establishments, or in the areas surrounding licensed
establishments, within the zip code area in the preceding
renewal period.
(4) The total number of conditional licensing agreements
entered into within the zip code area.
(c) Within thirty (30) days of the motion, notice or written
request, the board shall make a determination whether or not to
designate a zip code area as a saturated nuisance market.
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Written notice of the determination shall be provided to all
governing officials and licensees within the zip code area, as
well as any resident that filed a written request with the
board. The written notice shall set forth the reasoning for the
board's determination.
(d) A restaurant or eating place retail licensee located
within a saturated nuisance market shall be subject to the
following conditions:
(1) A transaction scan device must be used to verify the age
of an individual who appears to be under thirty-five (35) years
of age before making a sale of liquor. Liquor shall not be sold
to anyone under twenty-one (21) years of age or to an individual
that is visibly intoxicated. Information from the use of a
transaction scan device shall not be sold or shared, except that
a licensee may use the data to demonstrate to the enforcement
bureau that the licensee is in compliance.
(2) Food preparation is required to take place on the
licensed premises. For purposes of this section, "food
preparation" shall mean the act of preparing multiple
ingredients for human consumption for taste and nutritional
value, and shall not include prepackaged food that does not
require modification for consumption.
(3) An application under section 404 for a licensed premise
located within a saturated nuisance market shall be considered a
new license to a new location.
(4) The board shall suspend the operating privileges of a
licensee upon notification by the Department of Agriculture or a
local health department that the licensee's retail food facility
license has been suspended, revoked or invalid. Once
verification that a licensee's retail food facility license has
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been restored, the board shall restore the liquor license
operating privileges of the licensee.
(5) Within five (5) days of receiving an application for a
license under section 404, the board shall notify the local law
enforcement agency, State Senator, State Representative and
governing body in the affected jurisdiction that an application
for transfer has been received. The local law enforcement agency
shall have standing in a hearing to present testimony in support
of or against the transfer of the license.
(e) A licensee that violates this section or any other
section of this act or Federal, State or local law shall be
subject to citation by the enforcement bureau, which may result
in:
(1) a fine or suspension or license revocation;
(2) nonrenewal of the license;
(3) revocation of operating authority; or
(4) another penalty authorized under sections 471 and 494.
(f) A restaurant or eating place retail licensee located in
a saturated nuisance market that has been cited and found to be
in violation of this act or Federal, State or local law shall be
subject to the following:
(1) For a first offense, a fine of not less than two hundred
and fifty dollars ($250), nor more than one thousand dollars
($1,000).
(2) For a second offense, a fine of not less than two
thousand dollars ($2,000), nor more than five thousand dollars
($5,000), and suspension of operating privileges for at least
seven (7) days.
(3) For a third or subsequent offense, a fine of not less
than five thousand dollars ($5,000), nor more than ten thousand
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dollars ($10,000), and license revocation under section 471.
(g) Within sixty days after the completion of two full
renewal periods, the board shall reevaluate a saturated nuisance
market based on the factors set forth under subsection (b) to
determine whether or not to continue the zip code area's
designation as a saturated nuisance market. After conducting the
evaluation, the board shall provide written notice of the
board's determination to all governing officials and licensees
within a zip code area. The written notice shall set forth the
reasoning for the board's determination.
(h) As used in this section, the term "zip code area" means
the geographic area covered by a postal zip code.
Section 7. This act shall take effect in 30 days.
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