Mailing Date: July 14, 2011
Janet E. Amacher
Attorney at Law
311 North Sumneytown Pike, Suite 1A
North Wales, PA 19454
RE: Employment of a Bartender with a DUI Conviction
Dear Ms. Amacher:
ISSUE: Your e-mail of June 7, 2011 advises that you represent a licensee who employs a bartender who was recently arrested and convicted on a DUI (“Driving under the Influence of Drugs or Alcohol”) charge. You have asked if your client may continue to employ this individual.
OPINION: Until 2002, the Liquor Code included a provision that effectively prevented the employment of any person with a criminal conviction history. It is now legal for a licensee to employ someone with a criminal record, unless that criminal record involves prostitution.
Please note that, when an application is filed for renewal of the license, the Pennsylvania Liquor Control Board (“Board”) may still consider criminal records of licensees, or officers, directors, managers, or stockholders of licensees, because sections 404 and 437 of the Liquor Code require that licensees be persons of good repute, and the Board’s Regulations specify that criminal convictions impact a person’s reputation. [47 P.S. §§ 4-404, 4-437; 40 Pa. Code §§ 1.5, 5.23]. Sections 404 and 437 of the Liquor Code also permit the Board to refuse a license to persons with a felony conviction in the five (5) years prior to their application. [Id.]. Divestiture of such persons may be required. [40 Pa. Code § 17.41].
However, the criminal records of mere employees are generally not a consideration, although there might be occasions when it could be a factor in the renewal of the license. For example, if a bartender was arrested for and convicted of selling drugs out of the bar and the licensee was aware or should have been aware of this practice, it could become part of a non-renewal action at some point.
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 LIQUOR CONTROL BOARD.
Very truly yours,
FAITH S. DIEHL
cc: Pennsylvania State Police,
Bureau of Liquor Control Enforcement
Jerry W. Waters, Director of Office of Regulatory Affairs
Tisha Albert, Acting Director, Bureau of Licensing
LCB Advisory Opinion No. 11-279