Opinion
September 18, 1967.
November 16, 1967.
Liquor Law — Licenses — Suspension — Disorderly or improper conduct on licensed premises — Solicitation of patrons for immoral purposes — Employes associating with patrons — Presence and activities of homosexuals — Violation of The Penal Code — Knowledge of licensee.
1. In this case, in which it appeared that the Liquor Control Board entered an order suspending for a period of ninety days a restaurant liquor license, based on findings of fact that the licensees or their employes (a) permitted disorderly or improper conduct on the licensed premises, (b) permitted upon the licensed premises solicitation of patrons for immoral purposes, and (c) the licensees permitted employes to contact or associate with patrons on the licensed premises; that the disorderly and improper conduct upon which the board based its case consisted of the presence and activities of homosexuals; and that on appeal by the licensees the court below entered an order sustaining the appeal as to the first two findings, dismissed the appeal as to the third finding, vacated the board's order of suspension, and directed that the licensees pay a fine of $250; it was Held that the testimony fully supported the factual findings made by the board, and established disorderly and improper conduct; the order of the court below was reversed and the order of the board was reinstated.
2. Sobel Liquor License Case, 211 Pa. Super. 129, Held controlling as to the contentions that the violations involved were of The Penal Code rather than of the Liquor Code, and that no evidence was adduced of personal knowledge by the licensees.
Before ERVIN, P.J., WRIGHT, WATKINS, MONTGOMERY, JACOBS, HOFFMAN, and SPAULDING, JJ.
Appeal, No. 884, Oct. T., 1967, from order of Court of Quarter Sessions of Philadelphia County, Dec. T., 1966, No. 1680, in the matter of revocation of liquor license of Emanuel Freedman and Anne Freedman, trading as Germantown Supper Club. Order of court below reversed; order of board reinstated; reargument refused December 11, 1967.
Appeal by licensees from decision of Pennsylvania Liquor Control Board suspending restaurant liquor license.
Order entered sustaining appeal, vacating suspension order and directing payment of fine, opinion by GREENBERG, J. Commonwealth appealed.
I. Harry Checchio, Special Assistant Attorney General, with him Paul J. Cody, Special Assistant Attorney General, Thomas J. Shannon, Assistant Attorney General, and William C. Sennett, Attorney General, for Pennsylvania Liquor Control Board, appellant. Michael E. Wallace, with him A. Charles Peruto, for appellee.
HOFFMAN, J., dissented.
Argued: September 18, 1967.
On December 15, 1966, after hearing, the Pennsylvania Liquor Control Board entered an order suspending for a period of ninety days the restaurant liquor license issued to Emanuel Freedman and Anne Freedman t/a Germantown Supper Club for premises at 5708 Germantown Avenue in the City of Philadelphia. This order was based on the following findings of fact: "1. The licensees, their servants, agents or employees permitted disorderly or improper conduct on the licensed premises on March 17, May 14, 15, 22, June 11, 12, 24, 1966. 2. The licensees, their servants, agents or employees permitted upon the licensed premises solicitation of patrons for immoral purposes on June 24, 1966. 3. The licensees permitted employees to contact and/or associate with patrons on the licensed premises on May 14, 15, June 11, 1966". The licensees appealed to the Court of Quarter Sessions of Philadelphia County which entered an order, July 5, 1967, sustaining the appeal as to the first two findings, dismissing the appeal as to the third finding, vacating the Board's order of suspension, and directing that the licensees pay a fine of $250.00. The Board has appealed to this court.
The disorderly and improper conduct upon which the Board based its case consisted of the presence and activities of homosexuals. We do not propose to detail the revolting testimony. Suffice it to say that it fully supports the factual findings made by the Board. As to the first finding, the learned hearing judge reasoned that, since public disturbance was not involved, "this is not the type of conduct which amounts to the crime of disorderly conduct." He reasoned further that the term improper conduct was too vague to satisfy due process requirements. Cf. Tahiti Bar Liquor License Case, 395 Pa. 355, 150 A.2d 112. Evidence of similar activities "in another gay bar" was presented in Anthony Wayne Bar Restaurant Liquor License Case, 42 Pa. D. C. 2d 712, wherein the able President Judge SLOANE had no difficulty in finding that the testimony established disorderly and improper conduct. His order in that case sustaining a suspension by the Board was affirmed on appeal. See Anthony Wayne Bar Restaurant Liquor License Case, 209 Pa. Super. 756, 230 A.2d 918, allocatur refused 209 Pa. Super. xli.
As to the second finding, the learned hearing judge reasoned that the violations involved were of The Penal Code rather than of the Liquor Code, and that no evidence was adduced of personal knowledge by the licensees. Similar reasoning was considered and disapproved in Sobel Liquor License Case, 211 Pa. Super. 129, 235 A.2d 622. As we stated in the Sobel case, it is readily apparent that the Board's order should not have been disturbed.
The order of the court below is reversed, and the order of the Board is reinstated.
HOFFMAN, J., dissents.