Tag: Pennsylvania

Supreme Court Decision Overturns Chevron: Impact on Cannabis Industry

Last month, the United States Supreme Court issued its decision and opinion in Loper Bright Enterprises v. Raimondo, significantly overruling the nearly 40-year-old precedent set by Chevron. The Chevron decision required federal courts to defer to a government agency’s interpretation of an ambiguous statute unless that interpretation was “arbitrary, capricious, or manifestly contrary” to the statute. This meant that if an agency such as the DEA published a bulletin or letter interpreting an ambiguous law, courts were generally bound to follow this interpretation due to the agency’s presumed expertise.

The Shift in Legal Interpretation

Loper Bright Enterprises has fundamentally changed this legal landscape. Now courts, rather than government agencies, are considered the best equipped to interpret ambiguous statutes. This shift means that a government agency’s interpretation of an ambiguous statute is now merely persuasive and not binding on the courts. This can be likened to a Pennsylvania court interpreting a Pennsylvania law and considering, but not being bound by, a Delaware state court’s interpretation of a similar corporate law. Just as Pennsylvania courts can choose to defer to, distinguish from, or disregard Delaware court decisions, federal courts now have the same discretion regarding agency interpretations of ambiguous statutes.

Impact on the Cannabis Industry

This change has significant implications for the cannabis industry. The Drug Enforcement Administration (DEA) enforces federal drug laws and has issued numerous letters and bulletins determining the legality of various cannabis substances. For example, the DEA issued opinions that seemingly argued that Delta-8 THC products and THCA products were not allowed under the 2018 Farm Bill. I have generally disagreed with these interpretations, believing that the DEA incorrectly cited statutes related to hemp at harvest rather than downstream products.

With Loper Bright Enterprises, these DEA letters will lose their authoritative value. Courts are no longer bound to follow DEA interpretations and can more readily consider arguments opposing the DEA’s stance. This development is critical for the cannabis industry, as it opens the door for courts to reinterpret federal drug laws and potentially challenge the DEA’s restrictive interpretations of the 2018 Farm Bill.

The Importance of This Shift

The overruling of Chevron by Loper Bright Enterprises marks a pivotal change in administrative law, particularly impacting the cannabis industry. This shift of interpretive authority from government agencies to the courts means there is now greater potential for legal challenges to restrictive interpretations of cannabis laws. This change enhances the ability of cannabis businesses and advocates to contest adverse decisions and interpretations by the DEA and other agencies, potentially leading to more favorable outcomes for the industry.

©2024 Norris McLaughlin P.A., All Rights Reserved
For more on Cannabis, visit the NLR Biotech Food Drug section

School Law & Legislative Update: New Laws In Effect 2024

Act 24 of 2023:

Effective 11/06/2023. Adds Section 1302.1 to the Public School Code entitled “Military Child Advance Enrollment” to require schools to develop a policy on enrollment of students to allow a child whose parent or guardian is an active duty member of the armed forces and has received orders to transfer into or within the Commonwealth of Pennsylvania to enroll in the school district prior to establishing residency for purposes of Section 1302 upon providing a copy of the official military orders and proof of the parent/guardian’s intention to move into the school district. This proof may include a signed contract to purchase a home, a signed lease, or statement from the parent/guardian stating their intention to move into the school district.

Act 26 of 2023:

Effective 01/05/2024. Repeals section 1112 of the Public School Code that prohibits teachers from wearing any dress, mark emblem or insignia indicative of their faith or denomination. This Act was passed on November 6, 2023 and is effective in 60 days.

Act 33 of 2023:

Effective 12/13/2023. Omnibus amendments to the Public School Code of 1949 including the following provisions:

Read the entirety of Act 33 here.

HIGHLIGHTS INCLUDE:

• Added a new Article XII-B entitled “Educator Pipeline Support Grant Program.” This is a new program within the Pennsylvania Higher Education Assistance Agency (PHEAA) to awards grants to individuals who are seeking placement as student teachers. Ten million dollars is available for implementation of the program, and the minimum grant available to a student teacher is $10,000. An additional minimum grant of $5,000 is available to a student teacher who is student teaching in a school entity in an area that “attracts few student teachers” or that “has a high rate of open teaching positions.” In addition to the student teacher receiving a grant payment, the student teacher’s cooperating teacher shall also receive a minimum grant of $2,500, unless the cooperating teacher receives compensation from an institution of higher education for servicing as a cooperating teacher.

• Section 1302-C (relating to school safety) is amended to now require that when a school police officer is appointed by a court, the court order must be submitted to the School Safety and Security Committee established under Section 1302-B. In addition, a school that has previously applied to court to appoint a person to act as a school police officer prior to the effective date of this subsection is required, within 120 days of the effective date of this subsection, submit a copy of the court order relating to the appointment of each school police officer to the committee. This subsection takes effect immediately.

• Adding a new Article XXVI-L entitled “School environmental Repairs Program,” to provide for a restricted account in the Commonwealth general fund to provide grants for the abatement or remediation of environmental hazards in school buildings; PDE is to develop an application process for schools to apply for the grants; eligible projects include abatement or remediation of lead in water sources, asbestos and mold inside the school building; the school must have a local match of at least 50% of the total cost of all the projects listed in its application; the local match may come from any non-state source funding, including federal and local donations, and the local match must be documented as part of the application.

Act 35 of 2023:

Effective 12/13/2023. Omnibus amendments to the Public School Code of 1949 including the following:

Read the entirety of Act 35 here.

HIGHLIGHTS INCLUDE:

• Section 130 is added to include a new section entitled “Public Job Posting Database” which is a public database to be established and maintained by PDE for both public and nonpublic schools to voluntarily advertise job vacancies.

• Section 131 is added to include a requirement that school entities, which includes charter schools, to submit information about instructional vacancies to PDE by August 31, 2024. The information required to be submitted includes the total budgeted number of instructional employees and vacancies included in the final adopted budget; and the quarterly average number of instructional vacancies had by the school during the school year. This information is to be posted on PDE’s website.

Act 52 of 2023:

Effective 12/14/2023 (see note about retroactivity). Adds a new Section 1525.1 to the Public School Code of 1949 entitled “Calculation of Average Daily Membership for a Dual Credit Course.” This section provides that a high school student who is enrolled in a dual credit course may be included in the school entity’s average daily membership.
This section shall apply retroactively to July 1, 2023.

Act 55 of 2023:

Effective 02/12/2024. Amends Section 1403 of the Public School Code of 1949 to provide for dental screenings by a school dentist or public health dental hygiene practitioner (previously only permitted dental examinations by a dentist).

Act 56 of 2023:

Effective 12/14/2023. Adds a new Section 103 to the Public School Code of 1949 entitled “Minimum Number of Days or Hours.” Provides that beginning in the 2023-2024 school year, a school entity is required to provide a minimum of 180 days or instruction OR 900 hours of instruction at the elementary level or nine hundred ninety (990) hours of instruction at the secondary level. This section does not preempt or supersede a collective bargaining agreement that was entered into prior to the effective date of this section. This Act is effective immediately. (Previously the requirement was 180 days AND the hours requirement). Note, However, That This Section Appears To Not Be Applicable To Charter Schools.

©2024 Strassburger McKenna Gutnick & Gefsky
For more news on 2024 Updates to the Public School Code, visit the NLR Public Education & Services section.

Governor Wolf Signs Act 151 Addressing Data Breaches Within Local Entities

On Thursday, November 3, 2022, Governor Tom Wolf signed PA Senate Bill 696, also known as Act 151 of 2022 or the Breach of Personal Information Notification Act.  Act 151 amends Pennsylvania’s existing Breach of Personal Information Notification Act, strengthening protections for consumers, and imposing stricter requirements for state agencies, state agency contractors, political subdivisions, and certain individuals or businesses doing business in the Commonwealth.  Act 151 expands the definition of “personal information,” and requires Commonwealth entities to implement specific notification procedures in the event that a Commonwealth resident’s unencrypted and unredacted personal information has been, or is reasonably believed to have been, accessed and acquired by an unauthorized person.  The requirements for state-level and local entities differ slightly; this Alert will address the impact of Act 151 on local entities.  While this law does not take effect until May 22, 2023, it is critical that all entities impacted by this law be aware of these changes.

For the purposes of Act 151, the term “local entities” includes municipalities, counties, and public schools.  The term “public school” encompasses all school districts, charter schools, intermediate units, cyber charter schools, and area career and technical schools.  Act 151 requires that, in the event of a security breach of the system used by a local entity to maintain, store, or manage computerized data that includes personal information, the local entity must notify affected individuals within seven business days of the determination of the breach.  In addition, local entities must notify the local district attorney of the breach within three business days.

The definition of “personal information” has been updated, and includes a combination of (1) an individual’s first name or first initial and last name, and (2) one or more of the following items, if unencrypted and unredacted:

  • Social Security number;
  • Driver’s license number;
  • Financial account numbers or credit or debit card numbers, combined with any required security code or password;
  • Medical information;
  • Health insurance information; or
  • A username or password in combination with a password or security question and answer.

The last three items were added by this amendment.  Additionally, the new language provides that “personal information” does not include information that is made publicly available from government records or widely distributed media.

Act 151 defines previously undefined terms, drawing a distinction between “determination” and “discovery” of a breach, and setting forth different obligations relating to each.  “Determination,” under the act, is defined as, “a verification or reasonable certainty that a breach of the security of the system has occurred.”  “Discovery” is defined as, “the knowledge of or reasonable suspicion that a breach of the security of the system has occurred.”  This distinction affords entities the ability to investigate a potential breach before the more onerous notification requirements are triggered.  A local entity’s obligation to notify Commonwealth residents is triggered when the entity has reached a determination that a breach has occurred.  Further, any vendor that maintains, stores, or manages computerized data on behalf of a local entity is responsible for notifying the local entity upon discovery of a breach, but the local entity is ultimately responsible for making the determinations and discharging any remaining duties under Act 151.

Another significant update afforded by Act 151 is the addition of an electronic notification procedure.  Previously, notice could be given: (1) by written letter mailed to the last known home address of the individual; (2) telephonically, if certain requirements are met; (3) by email if a prior business relationship exists and the entity has a valid email address; or (4) by substitute notice if the cost of providing notice would exceed $100,000, the affected class of individuals to be notified exceeds 175,000, or the entity does not have sufficient contact information.  Now, in addition to the email option, entities can provide an electronic notice that directs the individual whose personal information may have been materially compromised to promptly change their password and security question or answer, or to take any other appropriate steps to protect their information.

Act 151 also provides that all entities that maintain, store, or manage computerized personal information on behalf of the Commonwealth must utilize encryption –  this provision originally applied only to employees and contractors of Commonwealth agencies, but was broadened in Act 151.  Further, the act provides that all entities that maintain, store, or manage computerized personal information on behalf of the Commonwealth must maintain policies relating to the transmission and storage of personal information – such policies were previously developed by the Governor’s Office of Administration.

Finally, under Act 151, any entity that is subject to and in compliance with certain healthcare and federal privacy laws is deemed to be in compliance with Act 151.  For example, an entity that is subject to and in compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) is deemed compliant with Act 151.

Although Act 151 is an amendment to prior legislation, the updates create potential exposure for local entities and the vendors that serve them.  For local municipalities, schools, and counties, compliance will require a proactive approach – local entities will have to familiarize themselves with the new requirements, be mindful of the personal information they hold, and ensure that their vendors are aware of their obligations.  Further, local entities will be required to implement encryption protocols, and prepare and maintain storage and transmission policies.

Originally Published by Babst Calland November 29, 2022. Article By Michael T. Korns and Ember K. Holmes of Babst, Calland, Clements & Zomnir, P.C.

Click here to read more legislative news on the National Law Review website.

© Copyright Babst, Calland, Clements and Zomnir, P.C.

Important Considerations for Mediation

“You can’t always get what you want. But if you try sometimes, well, you just might find, you get what you need.” – Mick Jagger and Keith Richards

Successful Mediation. Unlike the regular adjudication of a legal dispute, in mediation there is no “decision-maker” to determine who is “right” or “wrong.” No final order or judgment is issued. Instead, a good mediation will result in a resolution created by both parties that satisfy both parties’ interests or concerns. Mediators are not looking to find fault or assign blame – rather, a mediator works with the parties to problem solve and find creative solutions and proposals.

Selecting a Mediator. In some court programs there is a list of “pre-approved” mediators. The mandatory Alternative Dispute Resolution program in the Western District of Pennsylvania has such a list. In the Allegheny County Court of Common Pleas there will be no such guidance on preferred mediators. Pennsylvania does not have any national or statewide organization that certifies mediators. However, there is training available and basic mediation training is generally a 40-hour course covering problem solving, conflicts, communication skills, ethics and practical skills in role plays and other exercises. Mediators should have attended at least a basic mediation training course as well as have experience in mediating civil cases.

Article By Kathryn L. Clark of Strassburger McKenna Gutnick & Gefsky

For more arbitration and mediation legal news, click here to visit the National Law Review.

©2022 Strassburger McKenna Gutnick & Gefsky

Wendy’s E. Coli Outbreak Lawsuits

Health Department officials are investigating over one hundred cases of E. coli poisoning in Michigan, Ohio, Indiana and Pennsylvania. People have been diagnosed with food poisoning in Michigan, Ohio, Pennsylvania, and Indiana. The majority of these people claim that they ate sandwiches topped with lettuce at a Wendy’s Restaurant within the week before their food poisoning diagnosis.

Public health officials in Michigan have confirmed 43 cases of E. Coli that match the strain in a multi-state outbreak. A number of similar cases have been identified in Ohio. The specific source of the food poisoning has not been officially determined, but one possible source is romaine lettuce used to top hamburgers and sandwiches at Wendy’s restaurants.

The illness onset dates range from late July through early August 2022. The sickness and harm have ranged from mild to very severe. Many victims have required extensive hospitalization and medical care. Four cases of hemolytic uremic syndrome (HUS) have been diagnosed and suspected to be related to the contaminated lettuce at Wendy’s Restaurants.

  • E. Coli outbreak cases have been reported in the following counties: Allegan, Branch,Clinton, Genesee, Gratiot, Jackson, Kent, Macomb, Midland, Monroe, Muskegon, Oakland, Ogemaw, Ottawa, Saginaw, Washtenaw, and Wayne and the City of Detroit. Public health departments in those counties are closely monitoring patients and working hard to determine the source of the poisoning.

E. coli is a bacterium that lives in the digestive tracks of animals and humans. Most varieties are harmless, but some can cause severe illness. Common sources of E. coli include:

  • Raw milk or dairy products that are not pasteurized.
  • Raw fruits or vegetables, such as lettuce, that have come into contact with infected animal feces.

Symptoms of E. Coli poisoning are very serious. They include severe stomach cramps, diarrhea, and vomiting. Some people experience high fevers and many develop life-threatening conditions.

E. coli infections often require hospitalization and expensive medical care, the damages from this food poisoning can be extensive.

The Wendy’s food poisoning claims are just at their initial stages.  Very few lawsuits have been filed to date, but it is expected dozens will be filed in courthouses shortly.  At this time, there are no reported Wendy’s food poisoning settlements.

In general, food poisoning settlements include money payment for pain and suffering, mental anguish, and the physical injuries caused by the food contamination. In addition, claims for economic losses and damages are also demanded in a food poisoning lawsuit. These are financial losses and include payment of medical bills and expenses, as well as lost wages and income resulted from missed time at work.

If you ate food at a Wendy’s Restaurant that contained romaine lettuce in July or August and were diagnosed or hospitalized with E. coli poisoning, you may benefit from speaking to a food poisoning attorney.

Article By Lawrence J. Buckfire of Buckfire Law

For more personal injury legal news, click here to visit the National Law Review.

Buckfire & Buckfire, P.C. 2022

You Have Mail (Better Read It): District Court Finds EEOC 90-Day Deadline Starts When Email Received

If a letter from the EEOC is in your virtual mailbox but you never open it, have you received it? Most of us are familiar with the requirement that a claimant who files an EEOC charge has 90 days to file a lawsuit after receiving what is usually required a “right-to-sue” letter from the agency. This is one of the deadlines that both plaintiff and defense counsel track on their calendars. But when is that notice officially “received” by the claimant — especially in these days of electronic correspondence? In Paniconi v. Abington Hospital-Jefferson Health, one Pennsylvania federal court decided to draw a hard line on when that date actually occurs.

A Cautionary Tale

Denise Paniconi worked for a hospital in Pennsylvania and filed a charge of discrimination with the EEOC alleging race and religious discrimination. The EEOC investigated and issued a right-to-sue letter dated September 8, 2021, which gave her 90 days to file her complaint. She filed her complaint 91 days after the EEOC issued the letter. The employer moved to dismiss the complaint for failing to comply with the 90-day deadline.

What ordinarily would just be a day counting exercise took a twist because of how the EEOC issued the notice. The EEOC sent both the plaintiff and her lawyer an email stating that there was an “important document” now available on the EEOC portal. Neither the plaintiff nor her lawyer opened the email or accessed the portal until sometime later. They argued that the 90-day filing deadline should run from the date that the claimant actually accesses the document, not from the date the EEOC notified them it was available.

The court dismissed the complaint for failing to meet the deadline. The opinion noted that although the 90-day period is not a “jurisdictional predicate,” it cannot be extended, even by one day, without some sort of recognized equitable consideration. Paniconi’s lawyer argued that the court should apply the old rule for snail mail  ̶  without proof otherwise, it should be assumed that the notice is received within three days after the issuance date. The court disagreed and pointed out that no one disputed the date that the email was sent  ̶   it was simply not opened and read by either Paniconi or her lawyer. The court said that there was no reason that those individuals did not open the email and meet the 90-day deadline.

Deadlines Are Important

This is another example of how electronic communication can complicate the legal world. The EEOC has leaned into its use of the portal, and the rest of the world needs to get used to it. The minute you receive an email or notice from the portal, you need to calendar that deadline. Some courts (at least this one) believe that electronic communication is immediate, and you may not get grace for not logging on and finding out what is happening with your charge. Yet another reason to stay on top of your emails.

Article By J. William Manuel and Anne R. Yuengert of Bradley Arant Boult Cummings LLP

For more labor and employment legal news, click here to visit the National Law Review.

© 2022 Bradley Arant Boult Cummings LLP

Pennsylvania Lawmakers Propose New State Office to Support Immigrants

A group of Pennsylvania lawmakers recently proposed legislation to establish the Office of New Pennsylvanians, which aims to attract, retain, and embrace immigrants in Pennsylvania. As Pennsylvania continues to suffer lagging population growth, the proposal highlights the critical need to welcome immigrants and support their transition to the Commonwealth.

Population Growth Lagging in Pennsylvania

Despite being the fifth-largest state in the country, Pennsylvania has experienced slower population growth than much of the country. According to 2020 census data, Pennsylvania has achieved only 2.4% population growth since 2010, ranking 44th out of 50 states. Western states like Utah (18.4%), Idaho (17.3%), and Texas (15.9%) led all states in population growth during the same period.

Due to this lagging growth, Pennsylvania is set to lose a congressional seat in this year’s redistricting, for a decrease from 18 to 17 seats in the U.S. House of Representatives. The loss of a congressional seat could cost the Commonwealth political clout and will affect the amount of federal funding it receives, which is often based on population.

Despite Pennsylvania’s lagging population growth, its immigrants are becoming an increasingly important portion of its economy. According to the American Immigration Council, one in fourteen residents of Pennsylvania is an immigrant, while one in ten entrepreneurs is an immigrant. In fact, immigrants represent approximately 9% of the entire workforce in Pennsylvania. For this reason, lawmakers are exploring options to promote and retain immigrants and spur additional growth in Pennsylvania.

Proposed Legislation Creating the Office of New Pennsylvanians

On Feb. 9, 2022, members of the Welcoming PA Caucus of the Pennsylvania House of Representatives formally unveiled House Bill 2173, which proposes the creation of the Office of New Pennsylvanians. The bill, sponsored by Reps. Sara Innamorato (D-Allegheny) and Joe Hohenstein (D-Phila.), will be responsible for attracting, retaining, and embracing immigrants who live in Pennsylvania. Speaking of the bill, Rep. Innamorato noted, “immigrants move to our country for the promise of freedom and more opportunity. But recent census data shows Pennsylvania is lagging in population growth. So, it’s more important than ever to enact policies that welcome them to our beautiful Commonwealth.”

The proposed Office of New Pennsylvanians will operate within the Department of Community and Economic Development (“DCED”). Additionally, the proposed legislation will develop an advisory committee consisting of appointed public and private officials who will make recommendations to the governor on policies, procedures, regulations, and legislation to attract, retain, and integrate immigrants.

If created, the Office of New Pennsylvanians will respond to immigration-related issues and inquiries, coordinate with state agencies regarding immigration-related policy, and work with stakeholders (including higher education facilities, municipal officials, and business leaders) to develop strategies to attract and retain immigrants in the Commonwealth.

Rep. Hohenstein stressed that “it is incumbent upon each of us to ensure that people who emigrate from their home country to Pennsylvania will find a new welcoming, supportive home here. Codifying the support we provide to immigrants would establish that we see our responsibility to our immigrant neighbors as a priority and would benefit all Pennsylvanians.”

The bill was introduced on Dec. 16, 2021, and has been referred to the Committee on State Government. Sponsored and co-sponsored by Democrats, it must overcome a Republican majority in Harrisburg before being enacted into law.

©2022 Norris McLaughlin P.A., All Rights Reserved
For more articles about Pennsylvania, visit the NLR Pennsylvania area of law page.

Biden Administration to Open New For-Profit Immigrant Detention Center in Pennsylvania

After Pennsylvania’s York County prison dissolved its contract with Immigration Customs and Enforcement (ICE) in August, it was announced that a new immigration detention center will be opened in Clearfield County. The Clearfield County Board of Commissioners approved and signed a five-year contract with ICE and the GEO Group.

Clearfield County Immigration Detention Center

The prison, which operates for-profit, will convert the former Clearfield County Prison facility into a detention center to process individuals in violation of federal immigration laws. The prison can house roughly 1,900 immigrant detainees, but due to COVID-19 safety requirements, no more than 800 members will be held. “The beds will hold adults. There will not be any children. Primarily males, with some room for females,” said John Sibel, a Clearfield County Commissioner.

Training for prison employees is due to start soon, and the facility is expected to be in full operation within the next two months. Upgrades to the prison’s fencing and other areas will be underway soon.

GEO Group Detention Center and Clearfield County

GEO Group, a private company that ran the former Moshannon Valley Correctional Center, also owns the facility in Philipsburg. The correctional center, a federal prison, was closed in March this year. The closure impacted 300 employees, causing job loss in an already economically disadvantaged area.

Unlike York County, where the facility housed both immigrant detainees and other incarcerated people, the converted facility will house only immigrant detainees. Sibel said, “[t]he signing of the contract guarantees now that property tax revenues will continue to come to Clearfield County, Decatur Township, and the Philipsburg-Osceola School District.”

Safety Concerns for Local Residents

Residents of Clearfield County raised safety concerns over the new facility. However, Sibel reassured them that the GEO Group, which is responsible for running the facility, is in the process of upgrading the perimeter, and will transport immigrants who are released to the locations where they want to return.

“A lot of the folks that will be there, that will go through the processing center, will be there because they violate federal immigration laws, but they won’t necessarily have committed a criminal act… that would have caused them to be in the old prison,” Sibel said.

ICE’s Priorities Guidelines to Be Enforced

The Action field office director Brian McShane said that individuals held in the facility will fall under ICE’s enforcement priorities guidelines. Those priorities are focused on national security, border security, and public safety. “They will have their due process in immigration court if that’s what the law calls for while we go through the process to attempt to effectuate their removal,” he added.

©2021 Norris McLaughlin P.A., All Rights Reserved

COVID-19 Brings Consumer Convenience to Pennsylvania

Effective tomorrow, August 4, 2020, the Pennsylvania Liquor Control Board (PLCB) amended sections 407, 415, and 442 of Act 29 of 2020. These revisions allow Pennsylvania Restaurant (“R”) liquor licensees, Eating Place Malt Beverage (“E”) licensees, and Wine Expanded Permit (“WEP”) holders that possess interior connections to another business they operate, such as a grocery store, convenience store, or similarly situated business that cannot have its entire building or business licensed, to have the consumer use the cash registers at their other business to sell malt or brewed beverages and wine for off-premises consumption.

Consumer Convenience in Pennsylvania

Previously, all alcohol sales in these businesses were confined to the licensed areas where alcohol was stored, served, and sold. This confused many customers who tried to check out at the wrong register line with beer and wine purchases. However, during the COVID-19 pandemic, there has been a push to allow customers to use other registers in the store to create fewer touchpoints for customers by not having to use two different registers and to create less congestion in the licensed areas, which are typically fairly small.

Qualifications for Additional Cash Registers

In order to qualify, ALL the following requirements must be met:

  • The licensee’s building is 11,000 square feet or less;
  • The other business cash registers are in the same building as the licensed premises; and
  • The other business cash registers comply with the following standards as set forth by 47 P.S. 4-415(a)(8) and (9) of the Liquor Code:
    • Cash registers must have signage to designate that alcohol may be purchased at said register
    • Cash registers cannot be registers where customers scan their own purchases, which means that self-checkout is still prohibited for all alcohol purchases
    • Cash registers must always be staffed when patrons are purchasing alcohol
    • Cash register clerks must be at least 18 years of age and have completed Responsible Alcohol Management Program training
    • Cash register clerks must use a transaction scan device to verify the age of any patron purchasing alcohol who appears to be under 35 years of age before a sale can occur
    • The licensee may not sell or share the data from the use of its transaction scan device, except for providing said data to the Pennsylvania State Police Bureau of Liquor Control Enforcement

In order to start using additional cash registers, all the above-mentioned criteria must be met AND an email notification of compliance must be sent to RA-LBLICINV@PA.GOV including the following information:

  • LID, license number, and licensee name and address
  • The building’s total square footage
  • Plans or sketches that show the location of the specific cash registers being used
  • Confirmation that all conditions are met

 

©2020 Norris McLaughlin P.A., All Rights Reserved

ARTICLE BY Matthew B. Andersen and Theodore J. Zeller III at Norris McLaughlin P.A. Summer Associate Benjamin MacLuckie contributed.
For more on state liquor laws, see the National Law Review Biotech, Food & Drug law section.

Pennsylvania Liquor Control Board Tackles Wine Slushie Sales by Restaurant Licensees

Ever since beer distributors in Pennsylvania were permitted to sell growlers for off-premises consumption, which is loosely interpreted as a closed container by the Pa.L.C.B., there has been an influx of beer distributors installing slushie machines and selling malt beverage slushies. Now, are wine slushies fair game?

In a recent Legal Advisory Opinion from the Pa.L.C.B., a question was presented as to whether Pennsylvania restaurant licensees that hold an additional Wine Expanded Permit (“WEP”) can sell wine to go in a container with a sealed lid.

Specifically, the question related to whether a WEP permits the sale of wine slushies to go in a sealed container.

As a bit of background, a WEP can be obtained by any restaurant licensee in Pennsylvania and permits the sale of wine, or wine-based drinks, for off-premises consumption. The sales of wine cannot exceed 3,000 milliliters in a single transaction (typically 4 bottles of wine), similar to the 192-fluid ounce (two six-packs) limitation for off-premises beer sales by a restaurant licensee. The sale of wine and beer can occur during the same transaction so long as the respective volume limitations are met for each product. Interestingly, the statute authorizing the issuance of the WEP to restaurant licensees does not have any limitations on the sale of wine to go, other than that the sale prices must not be less than what the licensee paid for the product from the Pa.L.C.B.

Now that we have covered the law related to a WEP, what was the Pa.L.C.B.’s response to the question in the Legal Advisory Opinion?

The Pa.L.C.B. stated that, because there are no other limitations for a WEP other than selling 3,000 milliliters or less in a single transaction, a WEP holder can sell wine slushies to go in any container, and are not limited to sales of wine in the container it was purchased by the WEP holder. This would permit wine, or any other wine-based drinks without any other alcohol mixed in, to be poured in a cup with or without a lid and sold for off-premises consumption as long as the volume does not surpass 3,000 milliliters in a single transaction.

It is important to note, however, that your local municipality may have open container rules that the licensee or its consumers must follow. With the proliferation of malt beverage slushie sales at beer distributors, I have to imagine this is something the municipalities have dealt with and are aware of. As far as Pennsylvania state law, this legal opinion clearly permits WEP holders to serve wine or wine cocktails (without liquor) in “to go” containers.

Additionally, the Pennsylvania Liquor Code generally prohibits the fortification or adulteration of any liquor, which includes wine.

The Pa.L.C.B. will permit the mixing or infusing of liquor or wine, but such mixtures or infusions, which are mixed in large volumes, must be discarded at the end of the business day. The Pa.L.C.B. has issued numerous advisory opinions stating that adding ice or water to create malt beverage slushies in the slushie machine would be adulterating the original product, but it appears this Legal Advisory Opinion permits WEP holders to serve wine-based drinks for off-premises consumption. In fact, there have been previous opinions that Distributor licensees were not permitted to mix because they are not permitted to have on-premises sales, which restaurant licensees are permitted to do. Therefore, if a WEP holder must add ice or water to the slushie machine to freeze the wine to make wine slushies, it must be discarded daily at the end of the business day (11 p.m. for WEP sales). To the extent that the slushie, or wine cocktail, is a single-serve preparation, those products can be sold in any container for off-premises consumption to the extent permitted by local ordinance.

Finally, because slushie machines have been determined to be “dispensing systems” (like a malt beverage draft system) they must be cleaned in conformance with the Pennsylvania Liquor Code, which requires weekly cleaning depending on the system you are operating.

©2020 Norris McLaughlin P.A., All Rights Reserved

For more liquor licensing updates, see the National Law Review Biotech, Food & Drug law page.