Commonwealth v. CIC Investors No. 870, Ltd.

584 A.2d 1094, 137 Pa. Commw. 48, 1990 Pa. Commw. LEXIS 690
CourtCommonwealth Court of Pennsylvania
DecidedDecember 28, 1990
DocketNos. 1446, 1447 C.D. 1989
StatusPublished
Cited by4 cases

This text of 584 A.2d 1094 (Commonwealth v. CIC Investors No. 870, Ltd.) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. CIC Investors No. 870, Ltd., 584 A.2d 1094, 137 Pa. Commw. 48, 1990 Pa. Commw. LEXIS 690 (Pa. Ct. App. 1990).

Opinion

OPINION

CRUMLISH, Jr., Senior Judge.

Before us are the consolidated appeals of the Pennsylvania Liquor Control Board (Board) from two Philadelphia County Court of Common Pleas orders which reversed the Board’s imposition of a five hundred dollar fine and a five-day suspension on CIC Investors No. 870, Ltd. (Investors). We reverse the common pleas court.

No. 1446 C.D. 1989

According to the testimony adduced at the de novo hearing before the common pleas court, a Liquor Control Board officer witnessed a bikini contest at Flanigan’s, an establishment owned by Investors, in which prizes were awarded to the winning patrons. The officer testified that she witnessed the first and third place finishers receive cash and gift certificates, and the runner-up receive a gift certificate and a bottle of champagne which she consumed immediately. Another officer witnessed a similar contest on a separate occasion.

The Board imposed the fine on Investors for giving liquor as a prize in a contest, in violation of Section 493 of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-493(24), and for holding the contest without Board approval. 40 Pa.Code § 5.32(g).

[51]*51Investors appealed to the common pleas court, which vacated the Board’s action, upon concluding that the activities at Flanigan’s did not violate the Liquor Code since “it [was] not [that] type of activity that the cited code section was intended to prevent.” 1

Section 4-493(24) of the Liquor Code, states in pertinent part:

it shall be unlawful ... for any licensee ... to offer or give to trade or consumer buyers any prize, premium, gift or other inducement to purchase liquor or malt or brewed beverages except advertising novelties of nominal value which the board shall define.

47 P.S. § 4-493(24).

The Board now appeals, contending that there was sufficient competent evidence before the trial court to sustain the Board’s findings that Investors permitted a contest without Board approval and gave liquor as a prize.

Our scope of review in a liquor license case, where a de novo hearing has been held, is limited to a determination of whether the Board’s order is supported by sufficient evidence and whether the trial court abused its discretion or committed an error of law. Adair v. Pennsylvania Liquor Control Board, 519 Pa. 103, 546 A.2d 19 (1988).

We agree with the assessment of the common pleas court that the activity at Flanigan’s was not the type proscribed in Section 4-493(24) of the Liquor Code. However, our inquiry does not end here. Investors’ contends that it did not conduct a contest or tournament, and therefore, did not violate Section 5.32(g) of the Pennsylvania Code. 40 Pa. Code § 5.32(g). The Board argues that the “contests” were announced, conducted by Investors’ doorman, and entailed the award of prizes to the top contestants. Section 5.32(g) provides in pertinent part:

No hotel, restaurant, or eating place licensee shall hold or permit to be held, on the licensed premises or on [52]*52the premises contiguous and adjacent thereto, any tournament or contest; nor directly or indirectly advertise, offer, award or permit the award, on the licensed premises of trophies, prizes, or premiums, for any purpose except as follows: (1) [t]he licensees, by special permit issued by the Board on application filed and fees paid ...

40 Pa.Code § 5.32(g).

In its opinion, the trial court placed “great importance in the fact that these contests’ were not held on a regular basis, were not advertised in any way preceding the event itself and the quantity and type of prizes awarded varied.” 2 (Emphasis added). The trial court, as evidenced by its opinion, in essence found that there were contests held on Investors’ premises and prizes were awarded without a special permit. The evidence and the findings of the trial court are sufficient to support the Board’s original citation. We hold that the activity Investors permitted violated Section 5.32(g) of the Pennsylvania Code.

Investors argue alternatively that Flanigan’s is not a hotel, restaurant or eating place licensee, and therefore not subject to Section 5.32(g). In its appeal to the common pleas court, however, Investors represented that it was a “Pennsylvania limited partnership engaged in the restaurant business and holds restaurant liquor license No. R-AP-563 issued by the Pennsylvania Liquor Control Board.” (Emphasis added). Having admitted it held a restaurant liquor license and engaged in the restaurant business, Investors cannot now argue that it is not a restaurant licensee to which Section 5.32(g) does not apply.

Accordingly, we will reverse the trial court and reinstate the Board’s fine.

No. 1447 C.D. 1989

The pertinent facts in this appeal are not in dispute. Two Liquor Control Board officers testified that they witnessed contact between an entertainer at Flanigan’s and a [53]*53patron. The officers described the performance of an unknown male, as he stripped down to a G-string before an unknown female, apparently celebrating a bachelorette party. The officers then testified that the entertainer sat on the woman’s lap, making explicit movements while the woman placed her hands on each side of his bare buttocks. The entertainer kissed the woman on the lips, gave her a bottle of champagne and then departed.

The Board issued a citation charging that Investors “by its servants, agents or employes permitted lewd, immoral or improper entertainment on the licensed premises, on June 6, 1987” ... and that Investors “permitted entertainers to contact and/or associate with patrons on the licensed premises, on June 6, 1987____”

Following a hearing, the Board made findings of fact substantiating these charges and, upon consideration of these findings as well as the record of prior citations, suspended Investors’ license for a period of five (5) days.

Investors appealed this decision to the common pleas court, contending that it did not permit the dancer’s performance and that the activities viewed by the officers did not, as a matter of law, amount to lewd entertainment. The common pleas court, after a de novo hearing on this citation, reversed Investors’ license suspension.

The Board now appeals, contending that the trial court committed an error of law in reversing its decision when there were sufficient facts to support the finding that Investors permitted lewd, immoral or improper entertainment, and permitted entertainers to contact patrons. We agree.

Section 493(10) of the Liquor Code, provides in part: It shall be unlawful ... (10) for any licensee, his agents or employes ... to permit in any licensed premises any lewd, immoral or improper entertainment ...

47 P.S. § 4-493(10).

We first address the Board’s contention that Investors permitted the dancer’s performance. The testimony of the [54]*54two Board officers, who entered Investors’ establishment on June 6, 1987, supports the finding that Investors at the very least allowed the described entertainment on the premises.

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Bluebook (online)
584 A.2d 1094, 137 Pa. Commw. 48, 1990 Pa. Commw. LEXIS 690, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-cic-investors-no-870-ltd-pacommwct-1990.