§ 4-461. Limiting number of retail licenses to be issued in each county
Purdon's Pennsylvania Statutes and Consolidated StatutesTitle 47 P.S. LiquorEffective: February 12, 2024
Purdon's Pennsylvania Statutes and Consolidated Statutes
Title 47 P.S. Liquor (Refs & Annos)
Chapter 1. Liquor Code (Refs & Annos)
Article IV. Licenses and Regulations; Liquor, Alcohol and Malt and Brewed Beverages
(c) General Provisions Applying to Both Liquor and Malt and Brewed Beverages (Refs & Annos)
Effective: February 12, 2024
47 P.S. § 4-461
§ 4-461. Limiting number of retail licenses to be issued in each county
(a) No additional restaurant, eating place retail dispenser or club licenses shall be issued within a county if the total number of restaurant and eating place retail dispenser licenses is greater than one license for each three thousand inhabitants in the county, except the board may issue licenses to public venues, performing arts facilities, continuing care retirement communities, airport restaurants, municipal golf courses, hotels, privately-owned private golf courses, privately-owned public golf courses, racetracks, automobile racetracks, nonprimary pari-mutuel wagering locations, privately-owned ski resorts and to any other entity which this act specifically exempts from the limitations provided in this section, and the board may issue a license to a club situated in a borough having a population less than eight thousand inhabitants which is located in a county of the second class A whose application is filed on or before February 28, 2001. In addition, the board may issue an eating place retail dispenser license for on-premises sales only to the owner or operator of a facility having a minimum of a one-half mile asphalt track and having a permanent seating capacity of at least six thousand people used principally for holding automobile races, regardless of the number of restaurant and eating place retail dispenser licenses already issued in that county. When determining the number of restaurant and eating place retail dispenser licenses issued in a county for the purposes of this section, licenses exempted from this limitation, licenses subject to the mixed-use town development project provisions of this act, licenses subject to the commercial and mixed-use overlay project provisions of this act, licenses subject to the tourist development project provisions of this act and club licenses shall not be considered. Inhabitants of dry municipalities shall be considered when determining the population in a county. Licenses shall not be issued or transferred into municipalities where such licenses are prohibited pursuant to local referendum in accordance with section 472.1 Licenses approved for intermunicipal transfer may not be transferred from the receiving municipality for a period of five years after the date that the licensed premises are operational in the receiving municipality.
(i) A keystone opportunity zone established under the authority of the act of October 6, 1998 (P.L. 705, No. 92),2 known as the “Keystone Opportunity Zone and Keystone Opportunity Expansion Zone Act,” or an area designated as an enterprise zone by the Department of Community and Economic Development.
(ii) A municipality in which the issuance of a restaurant or eating place retail dispenser license has been approved by the governing body of the municipality for the purpose of local economic development. Upon request for approval of an economic development license by an applicant, at least one public hearing shall be held by the municipal governing body for the purpose of receiving comments and recommendations of interested individuals residing within the municipality concerning the applicant's intent to acquire an economic development license from the Pennsylvania Liquor Control Board. The governing body shall, within forty-five days of a request for approval, render a decision by ordinance or resolution to approve or disapprove the applicant's request for an economic development license. If the municipality finds that the issuance of the license would promote economic development, it may approve the request. A decision by the governing body of the municipality to deny the request may not be appealed to the court of common pleas in the county in which the municipality is located. A copy of the approval must be submitted with the license application. Failure by the governing body of the municipality to render a decision within forty-five days of the applicant's request for approval shall be deemed an approval of the application in terms as presented unless the governing body has notified the applicant in writing of their election for an extension of time not to exceed sixty days. Failure by the governing body of the municipality to render a decision within the extended time period shall be deemed an approval of the application in terms as presented.
(iii) The initial application surcharge minus a seven hundred dollar ($700) processing fee shall be refunded to the applicant if the board refuses to issue a provisional license under subsection (b.2). Otherwise, the initial application surcharge minus a seven hundred dollar ($700) processing fee shall be credited to The State Stores Fund. The processing fee shall be treated as an application filing fee as prescribed in section 614-A(1)(i) of the act of April 9, 1929 (P.L. 177, No. 175),3 known as “The Administrative Code of 1929.”
(7) An appeal of the board's decision refusing to grant or renew a license under this subsection shall not act as a supersedeas of the decision of the board if the decision is based, in whole or in part, on the licensee's failure to demonstrate that its food and nonalcoholic beverages were at least fifty per centum (50%) of its combined gross sales of food and alcoholic beverages.
(8) A license issued under this subsection may not be validated or renewed unless the licensee can establish that its sale of food and nonalcoholic beverages during the license year immediately preceding application for validation or renewal is equal to fifty per centum (50%) or more of its food and alcoholic beverage sales.
(b.2) Qualified applicants under subsection (b.1) shall receive a provisional license for one hundred twenty days, exclusive of periods of safekeeping. After ninety days from the date of issuance, the licensee may file an application for a permanent license. A license shall be issued if the licensee establishes that for ninety consecutive days from the date of initial issue its sales of food and nonalcoholic beverages is equal to at least fifty per centum (50%) of its combined gross sales of food and alcoholic beverages. Licensees shall not be subject to citation by the Enforcement Bureau for a violation of the requirement that food and nonalcoholic beverages equal at least fifty per centum (50%) of the combined gross sales of food and alcoholic beverages during the provisional licensing period.
(b.3) An intermunicipal transfer of a license or issuance of a license for economic development under subsection (b.1)(2)(i) must first be approved by the governing body of the receiving municipality when the total number of existing restaurant liquor licenses and eating place retail dispenser licenses in the receiving municipality equal or exceed one license per three thousand inhabitants. Upon request for approval of an intermunicipal transfer of a license or issuance of an economic development license by an applicant, at least one public hearing shall be held by the municipal governing body for the purpose of receiving comments and recommendations of interested individuals residing within the municipality concerning the applicant's intent to transfer a license into the municipality or acquire an economic development license from the Pennsylvania Liquor Control Board. The governing body shall, within forty-five days of a request for approval, render a decision by ordinance or resolution to approve or disapprove the applicant's request for an intermunicipal transfer of a license or issuance of an economic development license. The municipality may approve the request. A decision by the governing body of the municipality to deny the request may not be appealed. A copy of the approval must be submitted with the license application. The approval requirement shall not apply to licenses transferred into a tax increment district created pursuant to the act of July 11, 1990 (P.L. 465, No. 113),4 known as the “Tax Increment Financing Act,” located in a township of the second class that is located within a county of the second class if the district was created prior to December 31, 2002, and the governing body of the township has adopted an agreement at a public meeting that consents to the transfer of licenses into the tax increment district. Failure by the governing body of the municipality to render a decision within forty-five days of the applicant's request for approval shall be deemed an approval of the application in terms as presented unless the governing body has notified the applicant in writing of their election for an extension of time not to exceed sixty days. Failure by the governing body of the municipality to render a decision within the extended time period shall be deemed an approval of the application in terms as presented.
(b.4)(1) Notwithstanding any other provision of this act to the contrary, the board may approve the transfer of a restaurant liquor or eating place retail dispenser license from a city of the first class to a county designated as a second class A county or a county of the third class for the purpose of economic development, subject to the following conditions:
(ii) The proposed location is located within a mixed-use town center development project as the term is defined in section 102.5
(vii) The application to the board is accompanied by the applicant's written Intra-County Affirmation that demonstrates that the applicant, its agents, employes or brokers are unable to secure, at a price that is, to the best of the applicant's knowledge, information and belief, the relative market price, as defined in this section, an existing license in the county in which the applicant's proposed premises are to be located. Said affirmation shall be accompanied by an affidavit from a real estate agent, license broker or other similar professional attesting to the unavailability of a liquor license to the applicant at a price that is comparable to prices paid by bona fide purchasers for value for liquor licenses in the respective county immediately prior to obtaining municipal approval under subclause (iii), such comparable price being referred to as the “relative market price” for the respective county. Said affirmation shall set forth any measures taken to secure an existing license, including the time period during which the applicant attempted to secure a license, as well as any other pertinent information. The board shall not approve the issuance of a license under this section where it reasonably determines an existing license was available to the applicant at the relative market price prior to the applicant filing a request for a license under this section.
(2) A restaurant liquor or eating place retail dispenser license that has been transferred from a city of the first class to a county designated as a second class A county or a county of the third class under this section may not be subsequently transferred to any location outside of the mixed-use town center development project.
(3) No more than one license for each fifty thousand square feet of proposed or actual construction may be transferred into a mixed-use town center development project under the provisions of this section. The applicant shall demonstrate that this requirement has been met by providing documentation on its application to the board that the development has sufficient proposed or actual square footage to support the transfer of licenses under this section.
(4) The board may approve licensure of exterior serving areas for premises to be located within a mixed-use town center development project or tourist development project where such exterior serving areas are situated on municipal-owned or private-owned property, regardless of whether such exterior serving areas are located immediately adjacent, abutting or contiguous to the building to be licensed, provided that the employes of licensees in a qualified mixed-use town center development project or tourist development project may traverse unlicensed areas in order to deliver alcohol to patrons who are seated in any such licensed serving area that is not immediate, adjacent, abutting and contiguous to the licensee's primary licensed premises; and provided further that any such licensed serving area is delineated from all adjacent public areas by a railing, barrier or other partition for the purpose of table service only; and provided further that the entirety of such noncontiguous licensed exterior serving area or areas is not located more than thirty-five feet from the nearest point of the licensed structure; and provided further that such noncontiguous licensed exterior serving areas shall not include any additional enclosed structure with four walls and a roof other than the primary licensed building; and provided further that any and all public thoroughfare or thoroughfares situated between the licensed building and the noncontiguous exterior licensed serving area is or are used primarily for pedestrian foot traffic and not vehicular traffic; and provided further that the local municipality has approved, by ordinance or resolution, the use of such areas by the applicant; and provided further that, in the case of municipal-owned property, a sidewalk cafe or similar permit, as applicable, is first obtained by the applicant; and provided further that the applicant complies with any regulation issued by the board pursuant hereto or in furtherance hereof. Any restaurant (“R”), eating place (“E”) or hotel (“H”) license transferred to or issued for premises located within a mixed-use town center development or tourist development project shall have the privileges of this subsection so long as such license remains within the mixed-use town center development or tourist development project.
(b.5)(1) Notwithstanding any other provision of this act to the contrary, the board may approve the transfer of a restaurant liquor license available for auction under section 470.36 for the purpose of economic development through increased tourism, subject to the conditions of this subsection.
(2) A tourist development project restaurant liquor license application may be submitted by any interested party at any time. The application to the board shall be accompanied by a resolution or ordinance indicating that the municipality has approved the request to have the area designated as a tourist development project by the board, a map of the area proposed to be designated and any additional information the board may require. The application fee shall be one million dollars ($1,000,000).
(4) A tourist development project restaurant liquor license application must indicate the number of restaurant liquor licenses that the applicant is seeking, but the applicant may not seek more than seventy-five licenses for the tourist development project. The applicant must submit a surcharge of sixty-five thousand dollars ($65,000) for each restaurant liquor license upon board approval of the transfer of the applicable restaurant liquor license.
(5) On receiving a tourist development project restaurant license application as well as any additional documents and fees, and following satisfaction that the applicant's request meets all board requirements, the board shall approve the application request and place the surcharge under clause (4) into The State Stores Fund. The restaurant liquor license shall then be held in safekeeping for the benefit of the applicant until the applicant or the applicant's assignee files a formal transfer application. The applicant may assignee the rights to file a formal transfer application to a third party.
(6) The board may choose which specific restaurant liquor licenses will be made available for transfer but shall choose licenses from a saturated county, if they are available, up to the maximum number of licenses that can be accepted from that saturated county. For purposes of this subsection, the maximum number of licenses that can be accepted from a county shall be calculated by subtracting from the total number of restaurant liquor licenses in the county, a number equal to 2.64 times the county population divided by three thousand.
(7) A license held in safekeeping under clause (5) may remain in safekeeping for up to four years without having to pay the additional safekeeping fees in section 474.1.7 The restaurant liquor license shall be subject to all other fees such as renewal fees and the application surcharge under section 470.8 After the four-year period, measured from the date the board approves the application request for making the license available for transfer, the license shall be revoked unless the applicant has submitted a transfer application prior to that date. If a license is revoked, the applicant may not receive any refund. A license revoked under this clause shall be reassigned to the county in which the license was located before the license was transferred under this subsection and be available for auction under section 470.3.
(9) A license transferred under this subsection is ineligible for a wine expanded permit under section 415.9 A licensee under this subsection may not sell malt and brewed beverages for off-premises consumption except patrons may take wine, spirits and malt and brewed beverages off the licensed premises if the wine, spirits and malt and brewed beverages remain in the area previously designated as a tourist development project.
(2) The initial application may be submitted to the board by an interested party. The application shall be accompanied by a resolution or ordinance indicating that the municipality where the proposed project is located has approved the request to have the area designated as a commercial and mixed-use overlay project by the board, a map of the area proposed to be so designated and any additional information the board may require.
(3) The application shall indicate the number of licenses that the applicant is seeking to transfer, up to twenty licenses. In addition to the normal application and license fees for a restaurant liquor license, the application shall be accompanied by a twenty-five thousand dollar ($25,000) surcharge for each license.
(4) Upon receipt of a completed application that satisfies board requirements, the board shall approve the request and deposit the twenty-five thousand dollar ($25,000) surcharge per license into the State Stores Fund. Each license shall be held in safekeeping for the benefit of the applicant until the applicant files a formal transfer application. The applicant may assign the applicant's rights to file a formal transfer application to a third party.
(7) A license placed in safekeeping under paragraph (4) may be held for up to four years from the date the board approves the application and shall be exempt from the additional safekeeping fees imposed under section 474.1. The license shall be subject to all other fees, including renewal fees and the application surcharge imposed under section 470. Upon expiration of the four-year period, the license shall be revoked unless the applicant has submitted a transfer application prior to expiration. If a license is revoked, the applicant is not entitled to a refund.
(c) The word “hotel” as used in this section shall mean any reputable place operated by a responsible person of good reputation where the public may, for a consideration, obtain sleeping accommodations, and which shall have the following number of bedrooms and requirements in each case--at least one-half of the required number of bedrooms shall be regularly available to transient guests seven days weekly, except in resort areas; at least one-third of such bedrooms shall be equipped with hot and cold water, a lavatory, commode, bathtub or shower and a clothes closet; and an additional one-third of the total of such required rooms shall be equipped with lavatory and commode:
(8) The provisions of this subsection (c) shall not apply to hotel licenses granted prior to the first day of September, one thousand nine hundred forty-nine, or that have been granted on any application made and pending prior to said date, nor to any renewal or transfer thereof, or hotels under construction or for which a bona fide contract had been entered into for construction prior to said date. In such cases, the provisions of section one of the act, approved the twenty-fourth day of June, one thousand nine hundred thirty-nine (Pamphlet Laws 806),10 shall continue to apply.
(8.1) The provisions of this subsection (c) shall not apply to hotel licenses that were granted prior to the first day of January, one thousand nine hundred sixty-five, in municipalities having a population of less than ten thousand during the two thousand Federal Decennial Census. Further, the provisions of this subsection (c) shall not apply to hotel licenses that were granted prior to the first day of September, one thousand nine hundred forty-nine, and that lapsed not more than once, provided that the board issued the hotel a new hotel license prior to the first day of January, one thousand nine hundred seventy-one. In such cases, the provisions of section one of the act, approved the twenty-fourth day of June, one thousand nine hundred thirty-nine (Pamphlet Laws 806), shall continue to apply.
(9) Upon application to and subject to inspection by the board, hotel licensees under clause (8) of this subsection shall no longer be required to maintain bedrooms for public accommodation. Such area may be used as licensed storage area or serving area consistent with this act and existing regulations.
(9.1) Upon application to and subject to inspection by the board, hotel licensees under clause (8.1) of this subsection shall no longer be required to maintain bedrooms for public accommodation. However, areas required and designated as bedrooms for public accommodation prior to the effective date of this clause11 may not subsequently be used as licensed serving areas. Such areas may be used as licensed storage area consistent with this act and existing regulations.
(9.2) Upon application filed with the board by February 27, 2026, and payment of a fee of thirty thousand dollars ($30,000) by a hotel licensee, the board shall convert a hotel license referenced under clause (8) or (8.1) of this subsection to a restaurant license without regard to the quota restrictions set forth in subsection (a). This clause shall not apply to a hotel license with a pending objection by the director of the Bureau of Licensing or the board under section 470(a.1) until the application for renewal of the hotel license is approved. This clause shall not apply to hotel licenses in a city of the first class. An application to transfer a restaurant license that was converted from a hotel license under this clause in accordance with section 40412 within five years after the board received the application for the restaurant license shall be subject to a fee of twenty-five per centum (25%) or thirty thousand dollars ($30,000), whichever is greater, of the transactional cost for the transfer of the restaurant license to be paid by the seller of the license. As used in this paragraph, the term “transactional cost” shall mean the cost of the restaurant license.
(10) Notwithstanding any other provision of law, the holder of a hotel liquor or hotel retail dispenser license shall be deemed a holder of a restaurant liquor license for the purposes of the act of June 13, 2008 (P.L. 182, No. 27),13 known as the “Clean Indoor Air Act.”
(d) “Airport restaurant,” as used in this section, shall mean restaurant facilities at any airport for public accommodation, which are owned or operated directly or through lessees by the Commonwealth of Pennsylvania, by any municipal authority, county or city, either severally or jointly, with any other municipal authority, county or city, but shall not include any such restaurant facilities at any airport situated in a municipality where by vote of the electors the retail sale of liquor and malt or brewed beverages is not permitted. An airport restaurant is not subject to the seating requirements nor to the square footage requirements of the definition of restaurant in section 102. An airport restaurant may have unlimited extensions of service areas providing all extended service areas are inside the airport terminal building or buildings, notwithstanding any intervening thoroughfares. In addition to the privileges granted under sections 406 and 40714 relative to malt or brewed beverages, airport restaurant liquor licensees may also sell liquor by the glass, open bottle or other container for consumption within the airport terminal building. Notwithstanding any provision to the contrary, an airport restaurant licensee that has acquired a Sunday sales permit may commence sales at five o'clock antemeridian.
(e) “Municipal golf course” as used in this section shall mean the restaurant facilities at any municipal golf course open for public accommodation, which are owned or operated directly or through lessees by a county, municipality or a municipal authority, severally or jointly with any other county, municipality or municipal authority, including any such restaurant facilities at any municipal golf course situate in a municipality where by vote of the electors the retail sale of liquor and malt and brewed beverages is not permitted.
(e.1) “Privately-owned public golf course” as used in this section shall mean the restaurant facilities at any privately-owned golf course open for public accommodation. The license may be issued to the operator of the privately-owned public golf course. The license holder may designate a concessionaire to provide food, alcoholic beverage and nonalcoholic beverage service at the restaurant facility.
(e.2) “Privately-owned private golf course” as used in this section shall mean the clubhouse at any privately-owned golf course as defined in section 102 open for private membership accommodations only as a club as defined in section 102. The license to be issued in this instance shall be a club license.
(f) The provisions of subsection (a) which apply to privately-owned public golf courses or privately-owned ski resorts shall not apply to the owner of such course or resort who has, within three years prior to the effective date of this amendatory act or at any time after the effective date of this amendatory act, sold or transferred a regularly issued license for such course or resort.
Credits
1951, April 12, P.L. 90, art. IV, § 461. Amended 1959, Aug. 11, P.L. 670, §§ 1, 2; 1959, Dec. 17, P.L. 1932, § 1; 1961, June 19, P.L. 484, § 1; 1961, Sept. 15, P.L. 1337, § 1; 1969, Sept. 25, P.L. 233, §§ 1, 2; 1971, Sept. 2, P.L. 429, No. 103, § 6; 1972, June 9, P.L. 379, No. 108, § 3; 1978, June 1, P.L. 451, No. 56, § 1, effective in 60 days; 1980, Dec. 12, P.L. 1195, No. 221, § 6, imd. effective; 1980, July 11, P.L. 558, No. 117, § 3, effective in 60 days; 1982, Dec. 17, P.L. 1390, No. 319, § 4, effective in 60 days; 1986, May 2, P.L. 141, No. 44, § 2, imd. effective. Reenacted 1987, June 29, P.L. 32, No. 14, § 60, effective July 1, 1987. Amended 1990, Dec. 7, P.L. 622, No. 160, § 3, effective in 60 days; 1992, June 30, P.L. 327, No. 66, § 6, imd. effective; 1994, April 29, P.L. 212, No. 30, § 14, effective in 60 days; 1994, Oct. 5, P.L. 522, No. 77, § 4, imd. effective; 1998, June 18, P.L. 664, No. 86, § 10, effective in 60 days; 1998, Dec. 21, P.L. 1202, No. 155, § 12, imd. effective; 1999, Nov. 10, P.L. 514, No. 47, § 7, imd. effective; 2000, Dec. 20, P.L. 992, No. 141, § 9; 2002, Feb. 21, P.L. 103, No. 10, § 9, imd. effective; 2004, Dec. 8, P.L. 1810, No. 239, § 5.2, effective Feb. 7, 2005; 2006, Feb. 21, P.L. 42, No. 15, § 1, effective in 60 days [April 24, 2006]; 2006, July 7, P.L. 591, No. 85, § 4, imd. effective; 2006, Nov. 29, P.L. 1421, No. 155, § 2, imd. effective; 2007, July 16, P.L. 107, No. 34, § 4, effective in 60 days [Sept. 14, 2007]; 2010, June 25, P.L. 217, No. 35, § 6, imd. effective; 2011, June 28, P.L. 55, No. 11, § 8, imd. effective; 2012, Oct. 24, P.L. 1203, No. 149, § 2, effective in 60 days [Dec. 24, 2012]; 2016, June 8, P.L. 273, No. 39, § 16, effective in 60 days [Aug. 8, 2016]; 2019, July 2, P.L. 371, No. 57, § 2, effective in 60 days [Sept. 3, 2019]; 2019, Nov. 21, P.L. 635, No. 86, § 3, effective in 60 days [Jan. 21, 2020]; 2020, Nov. 25, P.L. 1222, No. 125, § 2, effective in 60 days [Jan. 25, 2021]; 2023, Dec. 14, P.L. 414, No. 49, § 4, effective in 60 days [Feb. 12, 2024].
Footnotes
47 P.S. § 4-472.
73 P.S. § 820.101 et seq.
71 P.S. § 240.14A.
53 P.S. § 6930.1 et seq.
47 P.S. § 1-102.
47 P.S. § 4-470.3.
47 P.S. § 4-474.1.
47 P.S. § 4-470.
47 P.S. § 4-415.
47 P.S. § 744-1001.
Sept. 14, 2007.
47 P.S. § 4-404.
35 P.S. § 637.1 et seq.
47 P.S. §§ 4-406 and 4-407.
47 P.S. § 4-461, PA ST 47 P.S. § 4-461
Current through Act 11 of the 2024 Regular Session. Some statute sections may be more current, see credits for details.
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