Subchapter A. GENERAL


Sec.


17.1.    Purpose.
17.2.    Liberal construction.
17.3.    Definitions.
17.4.    Legal representation.
17.5.    Subpoenas.
17.6.    Depositions and discovery.
17.7.    Exhibits.
17.8.    Continuances.
17.9.    Briefs.

§ 17.1. Purpose.

 This chapter supplements 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure) and governs the practice and procedure before the Board regarding license applications, appeals from ALJ decisions, applications for supersedeas, divestiture and noise exemption petitions.

Source

   The provisions of this §  17.1 adopted May 6, 1983, effective May 7, 1983, 13 Pa.B. 1580; amended December 27, 1991, effective December 28, 1991, 21 Pa.B. 5935; amended January 5, 2007, effective January 6, 2007, 37 Pa.B. 16. Immediately preceding text appears at serial page (229089).

§ 17.2. Liberal construction.

 (a)  This chapter shall be liberally construed to assure just, speedy and inexpensive determination of issues presented.

 (b)  This section supplements 1 Pa. Code §  31.2 (relating to liberal construction).

Source

   The provisions of this §  17.2 adopted December 27, 1991, effective December 28, 1991, 21 Pa.B. 5935.

§ 17.3. Definitions.

 The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

   ALJ—Administrative Law Judge—An individual learned in the law and appointed by the Governor under section 212 of the Liquor Code (47 P. S. §  2-212).

   Appellant—The party—Enforcement Bureau or licensee—who feels aggrieved by a decision of the ALJ.

   Appellee—The party who prevailed before the ALJ.

   Board—The Liquor Control Board, or its designee.

   Bureau—The Bureau of Liquor Control Enforcement of the State Police.

   Supersedeas—A stay or delay of a penalty; for example, payment of fine, imposition of suspension or revocation.

   Special violation—A violation which is specially designated in section 471 of the Liquor Code (47 P. S. §  4-471) which, if found to have been committed, would prevent the appeal from operating as a supersedeas unless, upon sufficient cause shown, the reviewing authority determines otherwise.

   Standard violation—A violation other than a ‘‘special violation.’’

Source

   The provisions of this §  17.3 adopted December 27, 1991, effective December 28, 1991, 21 Pa.B. 5935.

§ 17.4. Legal representation.

 (a)  Appellants, appellees or applicants may represent themselves or may be represented by anyone presently admitted to practice law by the Supreme Court of Pennsylvania. Representation on behalf of an appellant, appellee or applicant by a legal intern certified under the Pennsylvania Bar Admission Rules is permitted.

 (b)  Legal representatives shall file a notice of appearance with the Board, prior to the time of the hearing, if any, or together with the appeal or application for supersedeas, or both.

 (c)  No person other than those set forth in subsection (a) is permitted to represent an appellant, appellee or applicant at a hearing of the Board.

 (d)  When a legal representative represents an appellant, appellee or applicant, notices of the date of hearing and of the decision, and other communications relating to the case, shall be directed to the legal representative. Notice to, or communication with, the legal representative shall have the same force as though personally given to the appellant, appellee or applicant.

 (e)  Subsection (b) supplements 1 Pa. Code §  31.24(a) and (b) (relating to notice of appearance). Subsection (d) supplements 1 Pa. Code § §  31.26, 33.31 and 33.33 (relating to service on attorneys; service by the agency; and effect of service upon an attorney).

Source

   The provisions of this §  17.4 adopted December 27, 1991, effective December 28, 1991, 21 Pa.B. 5935.

§ 17.5. Subpoenas.

 (a)  Issuance. Except for subpoenas issued upon the Board’s own motion, issuance of subpoenas will be as follows:

   (1)  Subpoenas for the attendance of witnesses or for the production of documents will be issued only upon written application to the Board, with a copy of the application to the opposing party.

   (2)  Written application shall specify as clearly as possible the relevance of the testimony or documentary evidence sought. Requests for documents must specify, to the extent possible, the documents desired.

   (3)  Failure to adhere to this subsection may result in the refusal by the Board to issue the requested subpoenas.

 (b)  Service. Service of subpoenas shall be as follows:

   (1)  A subpoena shall be served personally upon the witness by the party requesting the subpoena, who shall be responsible for witness fees.

   (2)  Subpoenas for the production of documents shall be served upon the individual in possession of the documents, if known, or the agency head, who may designate a custodian of the documents.

   (3)  Service shall be made at least 48 hours prior to the hearing, unless the witness agrees to waive the 48-hour requirement.

   (4)  Failure to adhere to this subsection may result in a ruling by the Board denying the enforceability of the subpoena.

 (c)  Supersession. Subsection (a) supersedes 1 Pa. Code §  35.142(a) (relating to subpoenas). Subsection (b) supplements 1 Pa. Code §  35.142(b) and (c).

Authority

   The provisions of this §  17.5 amended under section 207(i) of the Liquor Code (47 P. S. §  2-207(i)).

Source

   The provisions of this §  17.5 adopted December 27, 1991, effective December 28, 1991, 21 Pa.B. 5935; amended March 5, 2010, effective March 6, 2010, 40 Pa.B. 1149. Immediately preceding text appears at serial page (215289).

§ 17.6. Depositions and discovery.

 (a)  Depositions. At the discretion of the Board, sworn depositions may be transcribed and submitted in lieu of testimony at hearing, if the witness is unavailable to testify because of unavoidable absence from the jurisdiction, illness or other compelling reasons.

 (b)  Discovery of documents. At the discretion of the Board, relevant documents may be obtained from an opposing party prior to the hearing.

   (1)  Requests for discovery of documents shall be in writing and shall be served upon the opposing party or legal representative in sufficient time to allow completion of discovery prior to the hearing.

   (2)  If the parties are unable to agree upon a reasonable scope of discovery, requests for discovery shall be forwarded in writing to the Board, which may issue appropriate subpoenas under this title.

 (c)  Supplementation. Subsection (a) supplements 1 Pa. Code §  35.145 (relating to depositions).

Source

   The provisions of this §  17.6 adopted December 27, 1991, effective December 28, 1991, 21 Pa.B. 5935.

§ 17.7. Exhibits.

 (a)  Exhibits to be presented in connection with a hearing shall be submitted in five copies each at the time of the hearing unless otherwise directed by the Board.

 (b)  Documents that the Board, a party, petitioner or intervener expects to offer as exhibits may be presented to the Board’s hearing examiner and all other parties of record in advance of a hearing. The documents are not evidence unless admitted into the record by the hearing examiner at the hearing. Presentation of documents to the other parties before a hearing is encouraged.

 (c)  Subsection (a) supersedes 1 Pa. Code §  33.15 (relating to number of copies).

Authority

   The provisions of this §  17.7 amended under section 207(i) of the Liquor Code (47 P. S. §  2-207(i)).

Source

   The provisions of this §  17.7 adopted December 27, 1991, effective December 28, 1991, 21 Pa.B. 5935; amended March 5, 2010, effective March 6, 2010, 40 Pa.B. 1149. Immediately preceding text appears at serial page (215290).

§ 17.8. Continuances.

 (a)  A party moving for a continuance shall submit, if required by the Board, an affidavit containing the facts submitted in support of the motion. The facts shall include the names and addresses of all parties concerned, the caption, number and term of a case which may be the subject of the motion, the reasons why the case should not proceed and other information the Board may request.

 (b)  When the application is made for continuance because of the illness of an applicant, licensee, witness or counsel, the Board may require a medical certificate attesting to the illness and inability to testify.

 (c)  A request for a continuance shall be received within the following time limits:

   (1)  Except as otherwise provided in this section, a continuance will not be approved unless a written request for the continuance is received by the Board at least 48 hours prior to the time fixed for hearing.

   (2)  A request for continuance received by the Board within the 48-hour period will not be granted unless satisfactory arrangements in writing are made with the Board for the payment of expenses resulting from the continuance. The Board may waive payment of the expenses in case of extenuating circumstances.

   (3)  Upon approval by the Office of the Chief Counsel of the Board, a motion for continuance may be granted at the time and place set for hearing. The motions will be granted only when a material party, witness or counsel is unavailable to appear for reasons of illness or other sufficient and reasonable cause, which unavailability was not known prior to the time set for the hearing, and could not have been known by the exercise of due diligence. A motion shall include the following:

     (i)   The name and address of the unavailable material party, witness or counsel.

     (ii)   A brief statement of the service or testimony to be offered by the party, witness or counsel.

     (iii)   The reason for the inability to be present.

     (iv)   A medical certificate, if required for an illness attesting to the illness and inability to appear.

     (v)   The willingness of the moving party to bear the expense of increased witness fees and mileage occasioned by the request.

 (d)  This section supplements 1 Pa. Code §  31.15 (relating to extensions of time).

Source

   The provisions of this §  17.8 adopted December 27, 1991, effective December 28, 1991, 21 Pa.B. 5935.

§ 17.9. Briefs.

 (a)  At the close of each hearing, a schedule for the submission of briefs will be determined. Briefs to be presented in connection with a hearing shall be submitted in four copies.

 (b)  The provisions of 1 Pa. Code §  35.193 (relating to filing and service of briefs) are supplemented as to acceptance and filing of briefs and superseded as to the number of copies to be filed. To the extent it relates to the time within which the Board must act on an appeal or application for supersedeas, 1 Pa. Code §  35.190(c) (relating to appeals to agency head from rulings of presiding officers) is superseded.

Source

   The provisions of this §  17.9 adopted December 27, 1991, effective December 28, 1991, 21 Pa.B. 5935.



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