Appeal from order of County Court of Allegheny County, No. C 2050 of 1962, in re appeal of Frank Ellis, trading and doing business as Ellis Hotel and Grill, from decision of Pennsylvania Liquor Control Board.
John E. Caputo, Special Assistant Attorney General, with him Thomas J. Shannon, Assistant Attorney General, and Walter E. Alessandroni, Attorney General, for Pennsylvania Liquor Control Board, appellant.
Byrd R. Brown, with him Utterback, Brown & Harper, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Wright, J.
[ 205 Pa. Super. Page 455]
On March 2, 1962, Frank Ellis, owner of premises known as Ellis Hotel and Grill, located at 2044 Centre Avenue in the City of Pittsburgh, and operated under a hotel liquor license, filed with the Pennsylvania Liquor Control Board an application for renewal of a Sunday
[ 205 Pa. Super. Page 456]
Sales permit. On April 17, 1962, this application was refused by the Board for the following reason: "Sales of food and nonalcoholic beverages in your establishment are not equal to 55 per centum or more of the combined gross sales of both food and alcoholic beverages, as required by the Pennsylvania Liquor Code and the Regulations of the Board". Following a premature appeal and a subsequent hearing before the Board, an order was entered by the Board on November 15, 1962, again refusing the application for the reason stated. Ellis then appealed to the County Court of Allegheny County, and the matter was submitted on the record before the Board. On August 27, 1964, the appeal of Ellis was sustained. The Board thereafter appealed to this court.
There is no real dispute as to the facts. The establishment in question has two areas in which liquor is served. One is the tap room, and the other is the dining room. Although some discrepancy is apparent in the figures which follow, they are thus stated in both briefs and in the opinion below. Gross sales of food and alcoholic beverages in the entire establishment for the year 1961 amounted to $59,837.54. Of this total amount the sum of $10,200.61, or 17.05 percent, represented sales of food. In the taproom, sales of alcoholic beverages amounted to $42,310.36, and sales of food amounted to $1,755.92. In the dining room, sales of alcoholic beverages amounted to $145.50, and sales of food amounted to $2,876.67. It is the contention of the licensee, sustained by the lower court, that his application for a Sunday sales permit may be based on the figures for his dining room only.
The Liquor Code, as enacted April 12, 1951, P. L. 90, 47 P.S. 4-401 et seq., contains two sections which are here pertinent. Section 403 provides, inter alia, that every application for a hotel, restaurant or club liquor license "shall contain a description of that part
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of the hotel, restaurant or club for which the applicant desires a license". Section 406 provides, inter alia, that every hotel, restaurant or club liquor licensee may sell alcoholic beverages "for consumption only in that part of the hotel or restaurant habitually used for the serving of food to guests or patrons, and in the case of hotels, to guests, and in the case of clubs, to members, in their private rooms in the hotel or club".
The instant appeal involves a dispute as to the interpretation of the amendment to Section 406, enacted January 7, 1960, P. L. 2106, permitting Sundays sales in certain hotels located in cities of the first and second class. This amendment made no change in the 1951 language of Section 406 above quoted, and which now appears as subsection (a). ...