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MATTER CATERING CLUB LIQUOR LICENSE NO. CC-4837 (12/21/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 21, 1981.

IN RE: THE MATTER OF THE CATERING CLUB LIQUOR LICENSE NO. CC-4837, ISSUED TO FULTON POST, INC. ETC. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT

Appeal from the Order of the Court of Common Pleas of Fulton County in the case of In Re: The Matter of the Catering Club Liquor License No. SS-4837, issued to Fulton Post, Inc., 227 North First Street, McConnellsburg, Pa. 17233, Misc. C.P.

COUNSEL

Patrick M. McHugh, Assistant Attorney General, with him James J. Fitzgerald, III, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for appellant.

James R. Silvis, O'Connell & Silvis, for appellee.

President Judge Crumlish, Jr. and Judges Blatt and Williams, Jr., sitting as a panel of three. Opinion by President Judge Crumlish.

Author: Crumlish

[ 63 Pa. Commw. Page 314]

The Fulton County Court of Common Pleas reversed a Pennsylvania Liquor Control Board order imposing a $350.00 fine on Fulton Post, Inc. We reverse.

[ 63 Pa. Commw. Page 315]

PLCB agents entered the Post, a licensed premises, with permission of the steward, to conduct an inspection for gambling devices.

"Our scope of review is limited to a determination of whether or not the PLCB's order is supported by sufficient evidence and whether or not the trial court committed an error of law or abused its discretion." L. & G., Inc. v. Pennsylvania Liquor Control Board, 43 Pa. Commonwealth Ct. 295, 299, 402 A.2d 305, 307 (1979).

The PLCB may inspect the entire licensee's premises during business hours,*fn1 and cite a licensee for any violation of the Liquor Code or any law of the Commonwealth.*fn2 Although gambling is not a specific violation, a license can be revoked if gambling is conducted on the premises, Commonwealth v. Runkle, 287 Pa. Superior Ct. 422, 430 A.2d 676 (1981).

The court below reasoned that Section 2-209 of the Code requires reasonable and probable cause*fn3 to conduct a warrantless search. We disagree since Section 2-209 specifically applies to a warrantless search for unlawful possession or manufacture of alcohol, not to a search incident to a lawful inspection.*fn4

[ 63 Pa. Commw. Page 316]

Fulton Post argues that the PLCB may not conduct warrantless searches, directing our attention to Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523 (1967), and its companion case, See v. City of Seattle, 387 U.S. 541 (1967), which held that "except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant." Camara, supra at 528-29 (emphasis added).

Applying the Camara standard, we conclude that the warrantless search of Fulton Post was reasonable since it was made within the context of a "carefully defined class," the liquor industry. The uniqueness of the liquor industry, the pervasiveness of government regulation found in this industry,*fn5 and the broad powers granted to states to regulate the industry under the U.S. Constitution*fn6 justify warrantless searches of premises serving alcohol.*fn7

[ 63 Pa. Commw. Page 317]

Alternatively, the court below found that there was insufficient evidence to support the fine imposed by the PLCB. We disagree.

A PLCB agent testified that he observed patrons at the bar opening numeral tip seal tickets. In searching the bar area, over 1,000 bingo and numeral tip seal tickets were discovered. In addition, punch boards and more tip seal tickets were found in cabinets in a storage area.

Although there is no specific statutory definition of gambling device, it has been defined as a device which can only be used for an unlawful purpose. American Legion Post No. 51 Appeal, 188 Pa. Superior Ct. 480, 149 A.2d 483 (1959). We conclude that the devices at issue are gambling devices, per se,*fn8 since they are purely games of chance, where the element of skill is inconsequential and they have no lawful use. In Re American Legion Post No. 109, 25 Pa. D. & C.2d 572, aff'd sub nom., Magaro Appeal, 197 Pa. Superior Ct. 10, 176 A.2d 115 (1961). There is sufficient evidence to support the PLCB fine. Reversed.

Order

The opinion of the Fulton County Court of Common Pleas per Keller, J., filed May 20, 1980, is reversed and the order of the Pennsylvania Liquor Control Board, No. 1774, dated December 11, 1979, is reinstated.

Disposition

Reversed.


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