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TRI-STATE PROMOTIONS v. COMMONWEALTH PENNSYLVANIA (01/28/75)

decided: January 28, 1975.

TRI-STATE PROMOTIONS, INC., APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Matter of the Revocation of Hotel Liquor License No. H-4309, issued to Tri-State Promotions, Inc., trading as Zodiac Club, 2266 Lincoln Way, White Oak, Pennsylvania, 15131, Nos. SA 350 of 1972, SA 450 of 1972 and SA 607 of 1972.

COUNSEL

John F. Lambest, with him James J. Dodara and Zappala & Zappala, for appellant.

J. Leonard Langan, Assistant Attorney General, with him Harry Bowytz, Chief Counsel, and Israel Packel, Attorney General, for appellee.

Judges Wilkinson, Jr., Rogers, and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 17 Pa. Commw. Page 170]

Tri-State Promotions, Inc. (Tri-State), the appellant in this action, holds a hotel liquor license for use in doing business as the Zodiac Club in White Oak, Pennsylvania. Between February and June of 1972 the Liquor Control Board (Board) issued four separate citations against Tri-State, the first three of which alleged that it had on several occasions violated Section 493(10) of the Liquor

[ 17 Pa. Commw. Page 171]

Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-493(10), in permitting dancing and/or entertainment on the licensed premises without first procuring from the Board a special permit for such activities. Tri-State had applied for such a permit in September of 1971 but the Board never issued one until May of 1972. The fourth citation, issued after Tri-State had obtained the necessary permit, alleged a violation of the Board's regulations which provide that licensees may permit dancing in their licensed establishments only during the hours when the sale of liquor or malt or brewed beverages is permitted. 40 Pa. Code § 5.35(a). On Sundays, during hours when such sales were prohibited under Tri-State's license, the premises had been leased to Spectrum Productions, Inc. (Spectrum) for teenage dances.

After hearings, the Board issued opinions in which it found that Tri-State had in fact violated the statute and regulations. The Board issued four orders, the first of which imposed a fine of $300. The other three orders provided that Tri-State's license be suspended for periods of ten days, fifteen days and thirty days respectively. Tri-State took appeals to the Court of Common Pleas of Allegheny County, where the cases were consolidated. After a hearing that court affirmed the Board. An appeal to this Court ensued.

Tri-State argues first that it should not be held responsible for violations which took place on Sundays, when the premises were under the control of Spectrum. The lease between Tri-State and Spectrum was admitted into evidence during the hearing before the court below, and a rider to that lease provided in part as follows: "3. The premises leased may be only used for teen-age dances . . . . Violation of this clause will mean an instant forfeiture of this Lease." It is clear that Tri-State not only permitted the Sunday dancing but actually contracted that the premises be used exclusively for that purpose. Tri-State controlled the use of the premises on

[ 17 Pa. Commw. Page 172]

Sundays by virtue of its lease arrangement and thus cannot avoid responsibility for the dancing merely because the premises were in the possession of a sub-lessee.

Secondly, Tri-State asserts that it should not be held responsible for its failure to have an amusement permit during the eight months when its application for such a permit was pending before the Board and was not being acted upon. Tri-State cites Obradovich Liquor License Case, 386 Pa. 342, 126 A.2d 435 (1956), in which the Court interpreted Section 404 of the Liquor Code. That section dictates that the Board shall issue a license for a hotel or restaurant upon receipt of the application, the proper fees and bond and upon being satisfied that certain other conditions are met. The statute then enumerates special situations where the Board may exercise discretion. The provision of the Liquor Code dealing with the Board's authority to grant special permits for entertainment, ...


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