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BERNHARD HUDE v. COMMONWEALTH PENNSYLVANIA (11/24/80)

decided: November 24, 1980.

BERNHARD HUDE, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Northampton County in the case of Commonwealth of Pennsylvania v. Bernhard Hude, t/a The Lighthouse, No. 343-1979, Misc.

COUNSEL

Bernard V. O'Hare, III, O'Hare & Heitczman, for appellant.

David Shotel, Assistant Attorney General, with him Kenneth W. Makowski, Acting Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for appellee.

Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 55 Pa. Commw. Page 2]

Bernhard Hude, owner of "The Light House" tavern, appeals the order of the Court of Common Pleas of Northampton County, affirming the imposition of a fine by the Pennsylvania Liquor Control Board (PLCB) for a violation of the music noise level restrictions contained in 40 Pa. Code ยง 5.32(a). That regulation provides:

(a) No licensee shall use or permit to be used inside or outside of the licensed premises a loudspeaker or similar device whereby the sound of music or other entertainment, or the advertisement thereof, can be heard on the outside of the licensed premises.

The fine arose from two occasions. One included the appearance of a musical group -- perhaps not inappropriately named "The Extremes" -- at appellant's tavern on February 4, 1979. The second occasion, with another group performing, was on February 18, 1979. The PLCB enforcement officer testified at the hearing that, on both occasions, the music from inside the tavern after midnight could "clearly and distinctly"

[ 55 Pa. Commw. Page 3]

    be heard from distances of 70, 80, and 180 feet away from the premises, radii within which the nearest residences were located.

The hearing examiner imposed a fine of $250 for the violation of Section 5.32(a). In the court of common pleas and here, the licensee, without disputing the facts, has attacked the validity of the regulation on two grounds. He claims it violates the due process requirements of the Fourteenth Amendment because it is not reasonably related to a legitimate exercise of the state's police powers, and that it is so overbroad it chills the freedom of expression guaranteed by the state and federal constitutions.

The validity of a liquor-related state regulation rests upon the state's plenary power to control the sale and use of alcoholic beverages by virtue of the Twenty-First Amendment to the United States Constitution. That the amendment "conferred on the states something more than the normal authority over public health, welfare and morals" is well-recognized. Fantastic Plastic, Inc. v. Pittsburgh, 32 Pa. Commonwealth Ct. 41, 377 A.2d 1051 (1977); California v. LaRue, 409 U.S. 109, 93 S.Ct. 390 (1972). Indeed, "there is perhaps no other area of permissible state action within which the exercise of the police power of a state is more plenary than in the regulation and control of the use and sale of alcoholic beverages." United Tavern Owners of Philadelphia v. Philadelphia School District, 441 Pa. 274, 277, 272 A.2d 868, 871 (1971).

Judge Van Antwerpen, in the trial court, found the regulation to be reasonably related to the public purpose of controlling evils historically associated with the sale and consumption of liquor, namely, "unruly behavior thought to be incited by loud, raucous music, and the resulting disturbance to the public and residents in the ...


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