PLCB Allows Retail Liquor Licensees to Deliver Beer
On December 5, 2014, the Pennsylvania Liquor Control Board (PLCB) issued an Advisory Opinion that suggests retail licensees can now obtain a Transport-for-Hire License in order to deliver beer to their customers. (View a copy of the Advisory Opinion here – http://paalcohollaw.com/?page_id=608). This represents a significant change in retail licensee operations and represents a big step in making alcohol purchases more convenient for customers.
For background, in Pennsylvania, you generally need a license to not only sell alcohol, but also to transport it. There are some exceptions — breweries, for example, are allowed to transport their own beer without obtaining a separate license. Retail licensees, however, are not allowed to transport alcohol and, in the past, the PLCB apparently did not allow them to obtain Transport-for-Hire licenses. As a result, a retail licensee could not deliver beer no matter how many customers requested it.
Perhaps on account of restaurants receiving a larger portion of their sales through on-line and telephone orders, the PLCB has apparently changed its position. According to the Advisory Opinion, in order to be able to deliver beer (note that the Advisory Opinion only relates to beer), a retail licensee will need to first obtain a Transport-for-Hire license, specifically a Transport-for-Hire Class B license. Once this license is obtained, a retail licensee may deliver beer to a customer so long as that customer has already paid for the beer by debit or credit card prior to the beer being delivered. In other words, the customer cannot pay the delivery person at the door (except for a tip). This is due to the fact that the law requires all sales of alcohol to be made on licensed premises.
The Advisory Opinion goes on to discuss some additional requirements of a Transport-for-Hire license, such as a prohibition from transporting beer and a commodity that is “hawked or peddled” at the same time. Additionally, a retail licensee cannot use a licensed vehicle to pick-up alcohol from a beer distributor. However, the Advisory Opinion fails to discuss the other requirements for a licensed vehicle, including the record keeping and signage requirements.
In addition to not fully explaining the Transport-for-Hire requirements, the Advisory Opinion does not offer much guidance on how to actually implement this process, especially how to ensure that whoever is purchasing and receiving the beer is over 21 years old. For example, will it be sufficient merely to have the delivery person verify the customer’s age when the beer is delivered? Accordingly to the language of the Advisory Opinion, the sale must be completed prior to delivery; therefore, it seems that the answer would be “No,” age verification must occur at the time of the sale, not at the time of delivery.
It is also important to note that this change in position has only come from an Advisory Opinion issued to a single retail licensee. An Advisory Opinion can act as a defense against an enforcement action; however, they generally can only be relied upon by the licensee requesting the Advisory Opinion. Accordingly, if a licensee would like to offer beer delivery to its customers, it is recommended that it obtain its own Advisory Opinion in order to receive the PLCB’s approval for how it plans to implement this delivery service.
We will be monitoring this issue closely and will provide updates should additional guidance be received by the PLCB. For further information regarding this matter, or for any liquor license matters, please contact attorneys in our Alcohol Industry Practice Group by calling 717-763-1121.