argued: November 11, 1963.
KOVALCHUK LIQUOR LICENSE CASE
Appeal, No. 276, April T., 1963, from order of Court of Common Pleas of Westmoreland County, Oct. T., 1963, No. 59, in re suspension of restaurant liquor license number R-4434 issued to Walter Thomas Kovalchuk, trading as Mill Cafe and Restaurant. Order affirmed.
Gilfert M. Mihalich, for appellant.
Thomas J. Shannon, Assistant Attorney General, with him John E. Caputo, Special Assistant Attorney General, and Walter E. Alessandroni, Attorney General, for Pennsylvania Liquor Control Board, appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 202 Pa. Super. Page 390]
OPINION BY WOODSIDE, J.
This is an appeal from an order of the Court of Quarter Sessions of Westmoreland County affirming the suspension of a restaurant liquor license because the licensee permitted a female to serve alcoholic beverages from behind the bar in violation of the Liquor Code.
The appellant questions the constitutionality of the so-called "Barmaid Act". Pennsylvania has had several such acts. See Act of March 28, 1878, P.L. 9; the Act of June 9, 1939, P.L. 307, and the Act of July 18, 1941, P.L. 408, all now specifically repealed. The barmaid provision is presently contained in Section 493 of the Liquor Code of April 12, 1951, P.L. 90, 47 P.S. § 4-493, and provides that "It shall be unlawful ... (25) For any licensee or his agent, to employ or permit the employment of any female at his licensed hotel, restaurant or eating place to mix or serve liquor or
[ 202 Pa. Super. Page 391]
"While Michigan may deny to all women opportunities for bartending, Michigan cannot play favorites among women without rhyme or reason. The Constitution in enjoining the equal protection of the laws upon States precludes irrational discrimination as between persons or groups of persons in the incidence of a law. But the Constitution does not require situations 'which are different in fact or opinion to be treated in law as though they were the same.' Tigner v. Texas, 310 U.S. 141, 147. Since bartending by women may, in the allowable legislative judgment, give rise to moral and social problems against which it may devise preventive measures, the legislature need not go to the full length of prohibition if it believes that as to a defined group of females other factors are operating which either eliminate or reduce the moral and social problems otherwise calling for prohibition. Michigan evidently believes that the oversight assured through ownership of a bar by a barmaid's husband or father minimizes hazards that may confront a barmaid without such protecting oversight. This Court is certainly not in a position to gainsay such belief by the Michigan legislature. If it is entertainable, as we think it is, Michigan has not violated its duty to afford equal protection of its laws. We cannot cross-examine either actually or argumentatively the mind of Michigan legislators nor question their motives. Since the line they have drawn is not without a basis in reason, we cannot give ear to the suggestion that the real impulse behind this legislation was an unchivalrous desire of male bartenders to try to monopolize the calling.
"Nor is it unconstitutional for Michigan to withdraw from women the occupation of bartending because it allows women to serve as waitresses where liquor is dispensed."
[ 202 Pa. Super. Page 394]
See also Cronin v. Adams, 192 U.S. 108, 24 S.Ct. 219 (1904); 30 Am. Jur., Intoxicating Liquor § 261, 172 A.L.R. 620; Milwaukee v. Piscuine, 18 Wis.2d 599, 119 N.W.2d 442 (1963); Anderson v. City of St. Paul, 226 Minn. 186, 32 N.W.2d 538 (1948).
Counsel for appellant, calling upon his experience as "a member of many clubs" and "a patron of many restaurant-bars", concludes "there is no apparent difference in the individuals who patronize the restaurant bars and those who patronize the club-bars". Therefore, he argues, it is unconstitutional to prohibit the employment of barmaids in restaurants when their employment is permitted in clubs. For the reasons set forth in the above cases, the legislature may establish different rules for club licensees and other licensees, and may allow barmaids in clubs and not in restaurants.
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