Opinion
Argued May 6, 1981
December 21, 1981.
Liquor license — Scope of appellate review — Gambling — Liquor industry — Warrantless search — Gambling device.
1. In a liquor licensing case, the scope of review of the Commonwealth Court of Pennsylvania is limited to a determination of whether the order of the Pennsylvania Liquor Control Board is supported by sufficient evidence and whether the trial court committed an error of law or abused its discretion. [315]
2. A liquor license can be revoked if gambling is conducted on the licensed premises. [315]
3. The uniqueness of the liquor industry, the pervasiveness of government regulation found in the industry, and the broad powers granted to states to regulate the industry under the United States Constitution justify warrantless searches of premises serving alcohol. [316]
4. Gambling devices include purely games of chance, where the element of skill is inconsequential and which have no other, lawful use. [317]
Argued May 6, 1981, before President Judge CRUMLISH, JR. and Judges BLATT and WILLIAMS, JR., sitting as a panel of three.
Appeal, No. 1680 C.D. 1980, 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.
Fine imposed upon liquor licensee by the Pennsylvania Liquor Control Board. Licensee appealed to the Court of Common Pleas of Fulton County. Appeal sustained. KELLER, J. The Board appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
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.
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.
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. Commw. 295, 299, 402 A.2d 305, 307 (1979).
The PLCB may inspect the entire licensee's premises during business hours, and cite a licensee for any violation of the Liquor Code or any law of the Commonwealth. Although gambling is not a specific violation, a license can be revoked if gambling is conducted on the premises, Commonwealth v. Runkle, 287 Pa. Super. 422, 430 A.2d 676 (1981).
Section 4-493 (21) of the Liquor Code, Act of April 12, 1951. P.L. 90, as amended, 47 P. S. § 4-493(21). See Pennsylvania Liquor Control Board v. American and Croation Singing Society, 18 Pa. Commw. 614, 336 A.2d 699 (1975).
Section 4-407 of the Code, 47 P. S. § 4-471. See V.J.R. Bar Corp. v. Pennsylvania Liquor Control Board, 480 Pa. 322, 390 A.2d 163 (1978).
The court below reasoned that Section 2-209 of the Code requires reasonable and probable cause 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.
Section 2-209 of the Code, 47 P. S. § 2-209.
We note here that the fact that the inspection was made to specifically search for gambling devices had no effect on the power of the PLCB to make such a search and seizure. The inspection for violations of the Code, or other laws of the Commonwealth, in the instant case, was a "reasonable" warrantless search as delineated by the U.S. Supreme Court. See n. 5, infra.
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, and the broad powers granted to states to regulate the industry under the U.S. Constitution justify warrantless searches of premises serving alcohol.
Donovan v. Dewey, ___ U.S. ___, 101 S.Ct. 2534 (1981) (recognizing that warrants may not be required when "warrantless searches are necessary to further a regulatory scheme . . ." in a pervasively regulated industry); Marshall v. Barlow's, Inc., 436 U.S. 307, 313 (1978) (recognizing the exception to warrant requirement in closely regulated industries); U.S. v. Biswell, 406 U.S. 311, 316 (1972); (effective inspection routine in gun industry could reasonably require unannounced warrantless inspections); and Colonnade Catering Corp. v. U.S., 397 U.S. 72, 77 (1970) (acknowledging Congress's broad powers to regulate the liquor industry).
Amend. XXI, Section 2, which states: "The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the law is hereby prohibited."
See Commonwealth v. Runkle, 287 Pa. Super. 422, 430 A.2d 676 (1981), for similar facts and holding as in the case before us, the Superior Court finding a PLCB agent's warrantless search to be reasonable.
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. Super. 480, 149 A.2d 483 (1959). We conclude that the devices at issue are gambling devices, per se, 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. Super. 10, 176 A.2d 115 (1961). There is sufficient evidence to support the PLCB fine. Reversed.
Compare, Commonwealth v. Rose, 257 Pa. Super. 514, 390 A.2d 1356 (1978) (lottery tickets); In Re American Legion Post No. 109, 25 Pa. D. C.2d 572, aff'd sub nom., Magaro Appeal, 197 Pa. Super. 10, 176 A.2d 115 (1961) (slot machines); Commonwealth v. Bruno, 176 Pa. Super. 115, 106 A.2d 95 (1954) (numbers slips); and see 18 Pa. C. S. § 5513 (makes maintenance of a punchboard a misdemeanor).
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.