ISSUE:This office is in receipt of your e-mail dated June 25, 2009 concerning the legality of having a ladies night and multiple drink specials.You state that you had previously received a letter from the Pennsylvania Liquor Control Board (“Board”) explaining your noncompliance with the Pennsylvania Liquor Code and the Pennsylvania Human Relations Act by hosting a ladies’ night, and you subsequently stopped having ladies’ nights at your establishment. You further state that you have recently seen promotions for similar ladies’ nights and multiple drink specials at two (2) other licensed establishments, and you ask why other establishments are permitted to host ladies’ nights when your establishment is not.
Records of the Board indicate that Paxton Street Pub Inc. holds Restaurant Liquor License No. R-9548 (LID 50166) for the premises located at 1619 Paxton Street, Harrisburg, Pennsylvania.
OPINION:With respect to drink specials, section 13.102 of the Board’s Regulations sets forth what is permissible regarding discount pricing practices by retail licensees.[40 Pa. § 13.102].In each business day, retail licensees may have a daily drink special and a happy hour. With respect to daily drink specials, a retail licensee is permitted to offer one (1) specific type of alcoholic beverage at a discounted price all day, or for a portion of the day, if it chooses. [40 Pa. Code § 13.102(b)(2)]. A specific type of alcoholic beverage means either a specific registered brand of malt or brewed beverage, a type of wine, a type of distilled spirits or a mixed drink. [Id.]. As a daily drink special, a specific brand of beer such as “Blue Hound Pilsner” or “Brendan’s Cream Stout” or “Oil City Light” may be discounted, but not “all draft” or “all bottled” beer or “all Blue Hound products.” Daily wine drink specials could be “Chardonnay” or “Merlot,” but not “all white wine” or “all red wine” or “all Kendall’s wines.” Permissible spirits specials would be “Rum and Cola” or “all brandy drinks,” but not “all well drinks” or “all Jackson’s products.” [See Board Advisory Notice No. 16 (Amended)].
With regard to happy hour pricing, a retail licensee is permitted to discount any and all alcoholic beverages for a period of time not to exceed two (2) consecutive hours. [40 Pa. Code § 13.102(a)]. During this happy hour, the price of alcoholic beverages may not change. Further, in accordance with section 13.102 of the Board’s Regulations, no discount pricing practice (daily drink special or happy hour) may occur between () and the legal closing hour, i.e., , for most retail licensees. [Id.].
With regard to your question about hosting ladies’ nights, the Pennsylvania Human Relations Act prohibits discrimination on the basis of gender and/or sex.[43 P.S. § 951, etseq.].It would be unlawful to offer only one (1) sex a benefit, such as charging a cover only to male patrons.Therefore, a ladies’ night promotion in which females received a benefit that is not also offered to men is not permissible unless both men and women receive the same benefit.
Regarding your question of why other establishments are having ladies’ nights and multiple drink specials, all retail licensees of the Board must comply with the regulations as stated above.Please be aware that it is the Pennsylvania State Police, Bureau of Liquor Control Enforcement (“Bureau”), and not the Board, that enforces the liquor laws in Pennsylvania. You may contact the Bureau directly at 800-932-0602.
Should you have any further questions or concerns regarding the Liquor Code or the Board’s Regulations, please do not hesitate to again contact this office.
THIS OPINION APPLIES ONLY TO THE FACTUAL SITUATION DESCRIBED HEREIN AND DOES NOT INSULATE THE LICENSEE OR OTHERS FROM CONSEQUENCES OF CONDUCT OCCURRING PRIOR TO ITS ISSUANCE. THE PROPRIETY OF THE PROPOSED CONDUCT HAS BEEN ADDRESSED ONLY UNDER THE LIQUOR CODE AND REGULATIONS. THE LAWS AND POLICIES ON WHICH THIS OPINION IS BASED ARE SUBJECT TO CHANGE BY THE LEGISLATURE OR THE PENNSYLVANIA LIQUORCONTROL BOARD.
Very truly yours,
FAITH S. DIEHL CHIEF COUNSEL
Bureau of Liquor Control Enforcement
Jerry W. Waters, Sr., Director, Office of Regulatory Affairs