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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| HOUSE BILL |
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| INTRODUCED BY WATERS, BROWN, PRESTON, M. O'BRIEN, CLYMER, CREIGHTON, DONATUCCI, FRANKEL, GROVE, HARKINS, MELIO, MURT, PAYTON, READSHAW AND SANTONI, MAY 29, 2009 |
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| REFERRED TO COMMITTEE ON LIQUOR CONTROL, MAY 29, 2009 |
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| AN ACT |
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1 | Amending the act of April 12, 1951 (P.L.90, No.21), entitled, as |
2 | reenacted, "An act relating to alcoholic liquors, alcohol and |
3 | malt and brewed beverages; amending, revising, consolidating |
4 | and changing the laws relating thereto; regulating and |
5 | restricting the manufacture, purchase, sale, possession, |
6 | consumption, importation, transportation, furnishing, holding |
7 | in bond, holding in storage, traffic in and use of alcoholic |
8 | liquors, alcohol and malt and brewed beverages and the |
9 | persons engaged or employed therein; defining the powers and |
10 | duties of the Pennsylvania Liquor Control Board; providing |
11 | for the establishment and operation of State liquor stores, |
12 | for the payment of certain license fees to the respective |
13 | municipalities and townships, for the abatement of certain |
14 | nuisances and, in certain cases, for search and seizure |
15 | without warrant; prescribing penalties and forfeitures; |
16 | providing for local option, and repealing existing laws," |
17 | further providing for court jurisdiction on appeals from |
18 | decision of the board, for hearings before the board and |
19 | administrative law judges, for revocation of licenses, for |
20 | increased fines and for renewal of licenses. |
21 | The General Assembly of the Commonwealth of Pennsylvania |
22 | hereby enacts as follows: |
23 | Section 1. Section 464 of the act of April 12, 1951 (P.L.90, |
24 | No.21), known as the Liquor Code, reenacted and amended June 29, |
25 | 1987 (P.L.32, No.14) and amended December 9, 2002 (P.L.1653, |
26 | No.212), is amended to read: |
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1 | Section 464. Hearings Upon Refusal of Licenses, Renewals or |
2 | Transfers; Appeals.--The board may of its own motion, and shall |
3 | upon the written request of any applicant for club, hotel or |
4 | restaurant liquor license, or any applicant for any malt or |
5 | brewed beverage license other than a public service license, or |
6 | for renewal or transfer thereof, or for the renewal of an |
7 | amusement permit, whose application for such license, renewal or |
8 | transfer, or the renewal of an amusement permit, has been |
9 | refused, fix a time and place for hearing of such application |
10 | for license or for renewal or transfer thereof, or the renewal |
11 | of an amusement permit, notice of which hearing shall be mailed |
12 | to the applicant at the address given in his application. Such |
13 | hearing shall be before a hearing examiner designated by the |
14 | board. At such hearing, the board shall present its reasons for |
15 | its refusal or withholding of license, renewal or transfer |
16 | thereof, or its refusal for renewal of an amusement permit. The |
17 | applicant may appear in person or by counsel, may cross-examine |
18 | the witnesses for the board and may present evidence which shall |
19 | likewise be subject to cross-examination by the board. Such |
20 | hearing shall be stenographically recorded. The hearing examiner |
21 | shall thereafter report, with the examiner's recommendation, to |
22 | the board in each case. The board shall thereupon grant or |
23 | refuse the license, renewal or transfer thereof or the renewal |
24 | of an amusement permit. In considering the renewal of a license |
25 | or amusement permit, the board shall not refuse any such renewal |
26 | on the basis of the propriety of the original issuance or any |
27 | prior renewal of such license or amusement permit. If the board |
28 | shall refuse such license, renewal or transfer or the renewal of |
29 | an amusement permit, following such hearing, notice in writing |
30 | of such refusal shall be mailed to the applicant at the address |
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1 | given in his application. In all such cases, the board shall |
2 | file of record at least a brief statement in the form of an |
3 | opinion of the reasons for the ruling or order and furnish a |
4 | copy thereof to the applicant. Any applicant who has appeared at |
5 | any hearing, as above provided, who is aggrieved by the refusal |
6 | of the board to issue any such license or to renew or transfer |
7 | any such license or to issue or renew any amusement permit may |
8 | appeal, or any church, hospital, charitable institution, school |
9 | or public playground located within three hundred feet of the |
10 | premises applied for, aggrieved by the action of the board in |
11 | granting the issuance of any such license or the transfer of any |
12 | such license, may take an appeal limited to the question of such |
13 | grievance, within twenty days from date of refusal or grant, to |
14 | the court of common pleas of the county in which the premises or |
15 | permit applied for is located. If the application is for an |
16 | economic development license under section 461(b.1) or the |
17 | intermunicipal transfer of a license, the governing body of the |
18 | municipality receiving the new license or the transferred |
19 | license may file an appeal of the board decision granting the |
20 | license, within twenty days of the date of the board's decision, |
21 | to the court of common pleas of the county in which the proposed |
22 | premises is located. Such appeal shall be upon petition of the |
23 | aggrieved party, who shall serve a copy thereof upon the board, |
24 | whereupon a hearing shall be held upon the petition by the court |
25 | upon ten days' notice to the board. The said appeal shall, |
26 | except in cases involving the renewal of a license, act as a |
27 | supersedeas unless upon sufficient cause shown the court shall |
28 | determine otherwise. The court shall [hear the application de |
29 | novo on questions of fact, administrative discretion and such |
30 | other matters as are involved, at such time as it shall fix, of |
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1 | which notice shall be given to the board. The court shall either |
2 | sustain or over-rule the action of the board and either order or |
3 | deny the issuance of a new license or the renewal or transfer of |
4 | the license or the renewal of an amusement permit to the |
5 | applicant.] affirm the board unless the board's decision is an |
6 | error of law, an abuse of discretion or unless the board's |
7 | decision is not supported by substantial evidence. |
8 | Section 2. Section 470(a) and (b) of the act, amended |
9 | December 9, 2002 (P.L.1653, No.212) and December 8, 2004 |
10 | (P.L.1810, No.239), are amended and the section is amended by |
11 | adding subsections to read: |
12 | Section 470. Renewal of Licenses; Temporary Provisions for |
13 | Licensees in Armed Service.--(a) All applications for renewal |
14 | of licenses under the provisions of this article shall be filed |
15 | with tax clearance from the Department of Revenue and the |
16 | Department of Labor and Industry and requisite license and |
17 | filing fees at least sixty days before the expiration date of |
18 | same: Provided, however, That the board, in its discretion, may |
19 | accept nunc pro tunc a renewal application filed less than sixty |
20 | days before the expiration date of the license with the required |
21 | fees, upon reasonable cause shown and the payment of an |
22 | additional filing fee of one hundred dollars ($100.00) for late |
23 | filing: And provided further, That except where the failure to |
24 | file a renewal application on or before the expiration date has |
25 | created a license quota vacancy after said expiration date which |
26 | has been filled by the issuance of a new license, after such |
27 | expiration date, but before the board has received a renewal |
28 | application nunc pro tunc within the time prescribed herein the |
29 | board, in its discretion, may, after hearing, accept a renewal |
30 | application filed within two years after the expiration date of |
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1 | the license with the required fees upon the payment of an |
2 | additional filing fee of two hundred fifty dollars ($250.00) for |
3 | late filing. Where any such renewal application is filed less |
4 | than sixty days before the expiration date, or subsequent to the |
5 | expiration date, no license shall issue upon the filing of the |
6 | renewal application until the matter is finally determined by |
7 | the board and if an appeal is taken from the board's action the |
8 | courts shall not order the issuance of the renewal license until |
9 | final determination of the matter by the courts. The board may |
10 | enter into an agreement with the applicant concerning additional |
11 | restrictions on the license in question. If the board and the |
12 | applicant enter into such an agreement, such agreement shall be |
13 | binding on the applicant. Failure by the applicant to adhere to |
14 | the agreement will be sufficient cause to form the basis for a |
15 | citation under section 471 and for the nonrenewal of the license |
16 | under this section. A renewal application will not be considered |
17 | filed unless accompanied by the requisite filing and license |
18 | fees and any additional filing fee required by this section. |
19 | Unless the board shall have given ten days' previous notice to |
20 | the applicant of objections to the renewal of his license, based |
21 | upon violation by the licensee or his servants, agents or |
22 | employes of any of the laws of the Commonwealth or regulations |
23 | of the board relating to the manufacture, transportation, use, |
24 | storage, importation, possession or sale of liquors, alcohol or |
25 | malt or brewed beverages, or the conduct of a licensed |
26 | establishment, or unless the applicant or its shareholders, |
27 | directors, officers, association members, servants, agents or |
28 | employes has by his own act become a person of ill repute, or |
29 | unless the premises do not meet the requirements of this act or |
30 | the regulations of the board, the license of a licensee shall be |
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1 | renewed. |
2 | * * * |
3 | (b) In cases where a licensee or its servants, agents or |
4 | employes are arrested or charged with violating any of the laws |
5 | of this Commonwealth or if a licensee has one or more |
6 | unadjudicated citations pending against the licensee at the time |
7 | a renewal application for the license is pending before the |
8 | board, the board may, in its discretion, renew the license; |
9 | however, the renewed license may be subsequently revoked by the |
10 | board if and when the licensee or its servants, agents or |
11 | employes are convicted of the pending criminal charges or when |
12 | the citation issued against the license is adjudicated by the |
13 | Office of Administrative Law Judge. |
14 | In the event the renewal license is revoked by the board, |
15 | neither the license fee paid for the license nor any part |
16 | thereof shall be returned to the licensee. Any licensee whose |
17 | license is revoked shall be ineligible to have a license under |
18 | this act until the expiration of three years from the date such |
19 | license was revoked. In the event a license is revoked, no |
20 | license shall be granted for the premises or transferred to the |
21 | premises in which the said license was conducted for a period of |
22 | at least one year after the date of the revocation of the |
23 | license conducted in the said premises, except in cases where |
24 | the licensee or a member of his immediate family is not the |
25 | owner of the premises, in which case the board may, in its |
26 | discretion, issue or transfer a license within the said year. |
27 | * * * |
28 | (d) If the renewal of the license is objected to because of |
29 | the reputation of the applicant or its shareholders, directors, |
30 | officers, association members, servants, agents or employes or |
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1 | under subsection (a.1), the Director of the Bureau of Licensing |
2 | may, in his discretion, grant the applicant temporary operating |
3 | authority under whatever terms he deems appropriate. Such |
4 | operating authority shall not exceed ninety calendar days. |
5 | (e) If the renewal of the license is objected to because of |
6 | the reputation of the applicant or its shareholders, directors, |
7 | officers, association members, servants, agents or employes or |
8 | under subsection (a.1), the board shall render a decision on the |
9 | application within ninety calendar days. |
10 | Section 3. Section 471(b) of the act, amended July 6, 2005 |
11 | (P.L.135, No.39), is amended to read: |
12 | Section 471. Revocation and Suspension of Licenses; Fines.-- |
13 | * * * |
14 | (b) Hearing on such citations shall be held in the same |
15 | manner as provided herein for hearings on applications for |
16 | license. Upon such hearing, if satisfied that any such violation |
17 | has occurred or for other sufficient cause, the administrative |
18 | law judge shall immediately suspend or revoke the license, or |
19 | impose a fine of not less than fifty dollars ($50) nor more than |
20 | [one thousand dollars ($1,000)] two thousand dollars ($2,000), |
21 | or both, notifying the licensee by registered letter addressed |
22 | to his licensed premises. If the licensee has been cited and |
23 | found to have violated section 493(1) insofar as it relates to |
24 | sales to minors or sales to a visibly intoxicated person, |
25 | section 493(10) insofar as it relates to lewd, immoral or |
26 | improper entertainment or section 493(14), (16) or (21), or has |
27 | been found to be a public nuisance pursuant to section 611, or |
28 | if the owner or operator of the licensed premises or any |
29 | authorized agent of the owner or operator has been convicted of |
30 | any violation of the act of April 14, 1972 (P.L.233, No.64), |
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1 | known as "The Controlled Substance, Drug, Device and Cosmetic |
2 | Act," or of 18 Pa.C.S. § 5902 (relating to prostitution and |
3 | related offenses) or 6301 (relating to corruption of minors), at |
4 | or relating to the licensed premises, the administrative law |
5 | judge shall immediately suspend or revoke the license, or impose |
6 | a fine of not less than [one thousand dollars ($1,000)] two |
7 | thousand dollars ($2,000) nor more than [five thousand dollars |
8 | ($5,000)] ten thousand dollars ($10,000), or both. If the |
9 | licensee has been cited for and found to be knowingly aware of |
10 | an illegal firearms transaction which occurs on the licensed |
11 | premises, the administrative law judge shall immediately revoke |
12 | the license and impose a fine of not less than two thousand |
13 | dollars ($2,000) nor more than ten thousand dollars ($10,000). |
14 | However, if a licensee has been cited and found to have violated |
15 | section 493(1) as it relates to sales to minors or sales to a |
16 | visibly intoxicated person but at the time of the sale the |
17 | licensee was in compliance with the requirements set forth in |
18 | section 471.1 and the licensee had not sold to minors or visibly |
19 | intoxicated persons in the previous four years, then the |
20 | administrative law judge shall immediately suspend or revoke the |
21 | license, or impose a fine of not less than fifty dollars ($50) |
22 | nor more than [one thousand dollars ($1,000)] two thousand |
23 | dollars ($2,000), or both. The administrative law judge shall |
24 | notify the licensee by registered mail, addressed to the |
25 | licensed premises, of such suspension, revocation or fine. In |
26 | the event the fine is not paid within twenty days of the |
27 | adjudication, the administrative law judge shall suspend or |
28 | revoke the license, notifying the licensee by registered mail |
29 | addressed to the licensed premises. Suspensions and revocations |
30 | shall not go into effect until thirty days have elapsed from the |
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1 | date of the adjudication during which time the licensee may take |
2 | an appeal as provided for in this act, except that revocations |
3 | mandated in section 481(c) shall go into effect immediately. Any |
4 | licensee whose license is revoked shall be ineligible to have a |
5 | license under this act until the expiration of three years from |
6 | the date such license was revoked. In the event a license is |
7 | revoked, no license shall be granted for the premises or |
8 | transferred to the premises in which the said license was |
9 | conducted for a period of at least one year after the date of |
10 | the revocation of the license conducted in the said premises, |
11 | except in cases where the licensee or a member of his immediate |
12 | family is not the owner of the premises, in which case the board |
13 | may, in its discretion, issue or transfer a license within the |
14 | said year. In the event the bureau or the person who was fined |
15 | or whose license was suspended or revoked shall feel aggrieved |
16 | by the adjudication of the administrative law judge, there shall |
17 | be a right to appeal to the board. The appeal shall be based |
18 | solely on the record before the administrative law judge. The |
19 | board shall only reverse the decision of the administrative law |
20 | judge if the administrative law judge committed an error of law, |
21 | abused its discretion or if its decision is not based on |
22 | substantial evidence. In the event the bureau or the person who |
23 | was fined or whose license was suspended or revoked shall feel |
24 | aggrieved by the decision of the board, there shall be a right |
25 | to appeal to the court of common pleas [in the same manner as |
26 | herein provided for appeals from refusals to grant licenses.] |
27 | which shall affirm the board unless the board's decision is an |
28 | error of law, is an abuse of discretion or unless the board's |
29 | decision is not supported by substantial evidence. Each of the |
30 | appeals shall act as a supersedeas unless, upon sufficient cause |
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1 | shown, the reviewing authority shall determine otherwise; |
2 | however, if the licensee has been cited and found to have |
3 | violated section 493(1) insofar as it relates to sales to minors |
4 | or sales to a visibly intoxicated person, section 493(10) |
5 | insofar as it relates to lewd, immoral or improper entertainment |
6 | or section 493(14), (16) or (21), or has been found to be a |
7 | public nuisance pursuant to section 611, or if the owner or |
8 | operator of the licensed premises or any authorized agent of the |
9 | owner or operator has been convicted of any violation of "The |
10 | Controlled Substance, Drug, Device and Cosmetic Act," or of 18 |
11 | Pa.C.S. § 5902 or 6301, at or relating to the licensed premises, |
12 | or if the license has been revoked under section 481(c), or if |
13 | the license is revoked because of an illegal firearm |
14 | transaction, its appeal shall not act as a supersedeas unless |
15 | the reviewing authority determines otherwise upon sufficient |
16 | cause shown. In any hearing on an application for a supersedeas |
17 | under this section, the reviewing authority may consider, in |
18 | addition to other relevant evidence, documentary evidence, |
19 | including records of the bureau, showing the prior history of |
20 | citations, fines, suspensions or revocations against the |
21 | licensee; and the reviewing authority may also consider, in |
22 | addition to other relevant evidence, evidence of any recurrence |
23 | of the unlawful activity occurring between the date of the |
24 | citation which is the subject of the appeal and the date of the |
25 | hearing. If the reviewing authority is the board, no hearing |
26 | shall be held on the application for a supersedeas; however, a |
27 | decision shall be made based on the application, answer and |
28 | documentary evidence under this subsection. If the application |
29 | for a supersedeas is for a license that has been revoked under |
30 | section 481(c), the reviewing authority shall grant the |
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1 | supersedeas only if it finds that the licensee will likely |
2 | prevail on the merits. No penalty provided by this section shall |
3 | be imposed for any violations provided for in this act unless |
4 | the bureau notifies the licensee of its nature within thirty |
5 | days of the completion of the investigation. |
6 | * * * |
7 | Section 4. This act shall take effect in 60 days. |
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