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APPEAL TWO-O-TWO TAVERN (05/21/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 21, 1985.

IN RE: APPEAL OF TWO-O-TWO TAVERN, INC. FRIENDLY SALOON. TWO-O-TWO TAVERN, INC., APPELLANT

Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of In Re: Two-O-Two Tavern, Inc. Friendly Saloon, Restaurant Liquor License No. R-18489, Amusement Permit No. AP-18489, Miscellaneous No. 319 April Term, 1983.

COUNSEL

John J. McCreesh, III, McCreesh, McCreesh & Russo, for appellant.

Gary F. DiVito, Chief Counsel, with him, Felix Thau, Assistant Counsel, for appellee.

Judges Barry and Colins and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 89 Pa. Commw. Page 374]

This is an appeal by Two-O-Two Tavern, Inc., t/a Friendly Saloon (Tavern), from an order of the Court of Common Pleas of Montgomery County which dismissed its appeal from and affirmed the order of the Pennsylvania Liquor Control Board (LCB). The LCB order suspended the Tavern's Restaurant Liquor License for a period of ten days as a result of the Tavern's

[ 89 Pa. Commw. Page 375]

    violation of 40 Pa. Code § 5.32(a)*fn1 pertaining to noise levels outside of licensed premises. We affirm.

The essential facts of this case are as follows. The Tavern operates a tavern in Ardmore, Montgomery County. On October 22, 23, and 27, 1982 and on November 3, and 5, 1982, enforcement officers of the LCB investigated the Friendly Saloon. In the course of those investigations, the enforcement officers noted that music from the Saloon could be clearly heard from a distance of over one hundred fifty feet from the Saloon on each occasion. The sound system used inside the premises consisted of two speakers located on the stage and two speakers suspended from the ceiling, facing the rear of the premises. As a result of that investigation, the LCB issued a citation to the Tavern for violation of the LCB regulation dealing with noise pollution, 40 Pa. Code § 5.32(a). A hearing was held on February 8, 1983 regarding the citation issued to the Tavern. On May 26, 1983, the LCB issued an order suspending the Tavern's Restaurant Liquor License for a period of ten days beginning June 28, 1983. The Tavern appealed that LCB order to the Court of Common Pleas of Montgomery County which held a hearing on September 27, 1983. On September 29, 1983, the common pleas court dismissed the Tavern's appeal and affirmed the order of the LCB. The Tavern then appealed that order to this Court.

The sole issue presented in this appeal is whether the LCB regulation, 40 Pa. Code § 5.32(a), is a valid exercise of the Board's power to regulate licensed

[ 89 Pa. Commw. Page 376]

    premises under the Liquor Code.*fn2 In considering this question, we are cognizant, of course, that our review of administrative regulations is limited to a determination of whether they are reasonable and consistent with the legislative intent of the statutes to which they relate. See Pennsylvania State Education Association v. Pennsylvania Department of Education, 68 Pa. Commonwealth Ct. 279, 449 A.2d 89 (1982).

Our review of the challenged regulation and the statutory mandate given the LCB by the General Assembly satisfies us that the regulation is both reasonable and consistent with the intent of the General Assembly in enacting the Liquor Code. We initially note that Section 104 of the Liquor Code, 47 P.S. § 1-104, states in no uncertain terms that the act is an exercise of the Commonwealth's police power to protect the public welfare, health, peace and morals of the people of this Commonwealth. Our Supreme Court has also recognized that there is perhaps no other area of permissible state action within which the exercise of the police power of the Commonwealth is more plenary than in the regulation and control of the use and sale of alcoholic beverages. Tahiti Bar, Inc. Liquor License Case, 395 Pa. 355, 150 A.2d 112 (1959), appeal dismissed, 361 U.S. 85 (1959).

We also note that the regulation prohibits the sound of music or entertainment outside and coming from licensed premises; it does not limit the playing of any type of music the sound of which is contained inside of licensed premises. The restriction is clearly designed to protect neighbors, street pedestrians, and others from being subject to unwanted sounds, commonly known as "noise pollution." As such, we hold that that regulation is a valid exercise of the Commonwealth's police power and does not constitute an arbitrary,

[ 89 Pa. Commw. Page 377]

    unreasonable or unnecessary intrusion into the conduct of the Tavern's licensed business. Hude v. Commonwealth, 55 Pa. Commonwealth Ct. 1, 423 A.2d 15 (1980). See also Smart, Inc. v. Pennsylvania Liquor Control Board, 70 Pa. D. & C. 2d 535, 538 (C.P. Lehigh 1974).

Having found the contested regulation to be a valid exercise of the Commonwealth's police power and noting that the Tavern does not dispute the factual finding that it indeed violated that regulation, we must, therefore, affirm the order of the common pleas court which upheld the LCB's suspension of its Restaurant Liquor License for ten days.*fn3

Order

And Now, this 21st day of May, 1985, the Order of the Court of Common Pleas of Montgomery County at Miscellaneous No. 319, April Term, 1983, dated September 29, 1983, is hereby affirmed.

Disposition

Affirmed.


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