Title of Regulation: 3VAC5-50. Retail Operations (amending 3VAC5-50-140).

Statutory Authority: §§ 4.1-103 and 41.1-111 of the Code of Virginia.

Effective Dates: January 9, 2008, through June 30, 2009.

The Alcoholic Beverage Control Board requested an extension of the above-referenced emergency regulation pursuant to § 2.2-4011 of the Code of Virginia. The emergency regulation was published in 24:11 VA.R. 1344-1345 February 4, 2008 (http://register.dls.virginia.gov/vol24/iss11/v24i11.pdf).

The final permanent regulation to replace this emergency regulation was adopted by the Alcoholic Beverage Control Board on November 17, 2008. Executive review of the regulation was completed in January. The regulation is expected to be published in the Virginia Register of Regulations in February 2009, and to become effective in March. A gap between the emergency regulation and its permanent replacement would make the board’s nudity regulation unenforceable for that period since the U. S. District Court for the Eastern District of Virginia has determined that without an exemption for legitimate artistic, scientific, or political expression, the current permanent regulation is unconstitutionally broad.

This regulation has been the focus of litigation since 2007. Its enforcement was enjoined in August 2007, which led to the adoption of the emergency regulation. The regulatory action that creates the permanent replacement was actually initiated prior to the effective date of the emergency regulation, and the board has acted expeditiously at each step of the process. Executive branch approval was slowed because of interest in seeking changes to the procedure for approving the employment of felons at licensed establishments, another change made in the regulatory action. The proposed regulation was submitted by the department on October 5, 2007. It was approved for publication July 3, 2008, submitted to the Registrar of Regulations on July 14, 2008, and published in the Virginia Register of Regulations on August 18, 2008. The public comment period on the proposed regulation ended October 17, 2008, and the board took final action on November 17, 2008, and submitted the final regulation to the Department of Planning and Budget on November 19, 2008.

A six-month extension of the expiration date is requested to make sure that there is no gap between the emergency regulation and the permanent replacement, taking into account the Virginia Register publication schedule and any possible additional public comment period.

The Governor approved the department's request to extend the expiration date of the emergency regulations for six months as provided in § 2.2-4011 D of the Code of Virginia. Therefore, the regulation will continue in effect through June 30, 2009.

Agency Contact: Jeffrey L. Painter, Legislative and Regulatory Coordinator, Department of Alcoholic Beverage Control, P.O. Box 27491, Richmond, VA 23261, telephone (804) 213-4621, FAX (804) 213-4411, TTY (804) 213-4687, or email jeffrey.painter@abc.virginia.gov.