Nuisance Bar Program
In January 1990, the Pennsylvania Liquor Control Board established a program under the provisions of Section 470 of the Liquor Code [47 P.S. § 4-470] to review at the time of license renewal, the operational history of any licensed establishment who, by its actions, may have abused the licensed privilege. The program sought response from the community and various enforcement and government jurisdictions to report any adverse activity which was occurring via the licensed establishment. These reported licensees’ records were reviewed to determine whether the Board would issue a renewal of the license for the new term.
In December 1998, Act 155 of 1998 expanded the provisions of Section 470 of the Liquor Code to allow the Board to consider activity occurring on or about the licensed premises or in areas under the licensee's control, if the activity occurs when the premises is open for operation and if there is a relationship between the activity outside the premises and the manner in which the premises is operated.
The Pennsylvania Liquor Control Board is not charged with enforcing the Liquor Code. The Board cannot fine a licensee or suspend or revoke a license. These enforcement powers are vested with the Pennsylvania State Police, Bureau of Liquor Control Enforcement. The adjudication of any violation is decided after a waiver of admission or an administrative hearing conducted by a judge from the Office of Administrative Law Judge, an autonomous arm of the Pennsylvania Liquor Control Board.
The Board, however, is charged by statute with authority to issue licenses, to make regulations, and to protect the safety, peace, health and welfare of the Commonwealth [47 P.S. § 1-104(a)]. The Nuisance Bar Program was established within this scope of Board authority. The program has withstood the test of appeals and various administrative and policy adjustments throughout its history. The Board and the Bureau of Licensing have observed a variety of local strategies through the review process. This experience has given us a certain expertise in setting up local programs and advising the community and law enforcement of the best sustainable methods in attacking and eliminating the “problem bar” from their community. These strategies and various court decisions will be shared during this overview. The summary may offer suggestions to prompt a program within the scope of other state laws or communities.
In the Commonwealth of Pennsylvania, retail licensed establishments are limited in number by a quota system. Each local municipality has the right to regulate zoning and enforce local ordinances [47 P.S. § 4-493.1]. Pursuant to this system a license is a privately owned asset and may be transferred through a private sale with Board approval. Operating the license is a privilege granted by the Board. The license, however, is property between the licensee and a third party [47 P.S. § 4-468(d)].
These licenses are renewable. The licensee must continue to meet all statutory requirements, and the Bureau of Licensing must determine if the licensee, by its record, has abused the licensed privilege. The Board, in fulfilling its mandate to protect the health and welfare of the community, established the Nuisance Bar Program.
The Board has set forth strict criteria in which to review the operational history of establishments. The Nuisance Bar Program is successful in that it has established coalitions among a variety of police and government agencies to bring to bear all legal leverage to abate the nuisance and offer timely relief to the community. The program has been able to deny licensed authority to the establishments at times when the various police or other government powers have been unable to do so.
This overview is offered to demonstrate what has worked in Pennsylvania within the context of current statute and court precedent.