Opinion
No. 61 MAP 2017
08-21-2018
PENNSYLVANIA STATE POLICE, BUREAU OF LIQUOR CONTROL ENFORCEMENT, Appellant v. JET-SET RESTAURANT, LLC, Appellee
Thomas M. Ballaron, Esq., Roy Harkavy, Esq., Pennsylvania State Police, for Appellant. Paul Fellman, Esq., Gibson & Perkins, P.C., Edward J. Morris, Esq., Gibson & Perkins, P.C., for Appellee.
Thomas M. Ballaron, Esq., Roy Harkavy, Esq., Pennsylvania State Police, for Appellant.
Paul Fellman, Esq., Gibson & Perkins, P.C., Edward J. Morris, Esq., Gibson & Perkins, P.C., for Appellee.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
JUSTICE DOUGHERTY
We granted discretionary review to determine whether the definition of "frequent" set forth in Appeal of Speranza , 416 Pa. 348, 206 A.2d 292 (1965) continues to apply to Section 4-493(14) of the Liquor Code, 47 P.S. § 4-493(14), in light of subsequent amendments to the statute. We conclude Speranza still controls and, accordingly, affirm the order of the Commonwealth Court.
On November 1, 2014, officers from the Pennsylvania State Police, Bureau of Liquor Control Enforcement (Bureau) conducted an investigation regarding underage persons present inside appellee Jet-Set Restaurant, LLC (Jet-Set), a licensed establishment located in Reading, Berks County. Adjudication of Administrative Law Judge (ALJ), 5/13/15 at 1. Bureau officers identified four underage females inside Jet-Set. Id. at 2. The officers observed three of the four females enter Jet-Set after providing a doorman with identification that showed they were underage. Id. Bureau officers also observed one of the females purchase a bottle of beer inside Jet-Set and another one of the females consume two bottles of beer purchased by another customer. Id. Bureau officers subsequently learned one of the females had been inside Jet-Set on a previous occasion in 2014. Id.
As a result of the investigation, the Bureau cited Jet-Set for: (1) permitting minors to frequent the premises in violation of Section 4-493(14) of the Liquor Code (frequenting count); and (2) furnishing alcohol to underage minors in violation of Section 4-493(1) of the Liquor Code, 47 P.S. § 4-493(1) (furnishing count). Id. at 1. An ALJ dismissed the frequenting count and sustained the furnishing count, which is not at issue in this appeal. Id. at 4. The Bureau appealed the dismissal of the frequenting count, but both the Pennsylvania Liquor Control Board and the Berks County Court of Common Pleas affirmed the dismissal on the basis that "frequent" means "to visit often or to resort to habitually or to recur again and again, or more than one or two visits" and the Bureau had not established a violation based on the isolated occurrence observed by Bureau officers in November 2014. See Liquor Control Board Op., 8/19/15 at 5-7 (discussing Speranza and finding General Assembly's continued use of "frequent" evidenced intent to retain Speranza definition after 2003 amendments); see also Trial Court Op., 3/10/16 at 2-3 (same).
Section 4-493(1) states, in relevant part, it shall be unlawful for a licensee "to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any minor[.]" 47 P.S. § 4-493(1). Section 4-493(14) specifies the limited circumstances when minors may "frequent" licensed premises, and is discussed in more detail below.
The Bureau then appealed to the Commonwealth Court and a divided three-judge panel affirmed the dismissal in an unpublished opinion. The majority first acknowledged there were differences between the version of Section 4-493(14) at issue in Speranza and the version at issue in this case. Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Jet-Set Restaurant, LLC , No. 575 C.D. 2016, 2017 WL 1365605, at *2 (Pa. Cmwlth. filed Apr. 13, 2017). However, the majority ultimately held the lower tribunals committed no error in determining Jet-Set did not allow minors to "frequent" its premises in violation of Section 4-493(14) as this Court in Speranza "unambiguously defined ‘frequenting’ as a minor entering a licensed premises on more than one or two occasions" and "Jet-Set was cited for permitting a minor to be present in a licensed premises on two occasions in 2014." Id. at *3, citing Speranza , 206 A.2d at 294. The majority held the term "frequent" was unambiguous, the General Assembly's continued use of the word in its 2003 amendments raised a presumption that the General Assembly "intended to retain the same definition" following Speranza, and "the Bureau [ ] presented no evidence" to the contrary. Id. ,citing 1 Pa.C.S. § 1922(4).
Judge Hearthway authored the memorandum opinion, which was joined by President Judge Leavitt. Judge McCullough authored a dissenting opinion.
When Speranza was decided, Section 4-493(14) stated, "[i]t shall be unlawful ... [f]or any hotel, restaurant or club liquor licensee, or any retail dispenser, his servants, agents or employes, to permit persons of ill repute, known criminals, prostitutes or minors to frequent his licensed premises or any premises operated in connection therewith, except minors accompanied by parents, guardians, or under proper supervision." Act of April 12, 1951, P.L. 90, former 47 P.S. § 4-493(14). The version of Section 4-493(14) at issue here states the following:
[i]t shall be unlawful ... [f]or any hotel, restaurant or club liquor licensee, or any retail dispenser, his servants, agents or employes, to permit persons of ill repute or prostitutes to frequent his licensed premises or any premises operated in connection therewith.
Minors may only frequent licensed premises if: (a) they are accompanied by a parent; (b) they are accompanied by a legal guardian; (c) they are under proper supervision; (d) they are attending a social gathering; or (e) the hotel, restaurant or retail dispenser licensee has gross sales of food and nonalcoholic beverages equal to fifty per centum or more of its combined gross sale of both food and alcoholic beverages. If a minor is frequenting a hotel, restaurant or retail dispenser licensee under subsection (e), then the minor may not sit at the bar section of the premises, nor may any alcoholic beverages be served at the table or booth at which the said minor is seated unless said minor is with a parent, legal guardian or under proper supervision. Further, if a hotel, restaurant, club liquor licensee or retail dispenser is hosting a social gathering under subsection (d), then written notice at least forty-eight hours in advance of such gathering shall be given to the Bureau of Enforcement. If a minor is frequenting licensed premises with proper supervision under subsection (c), each supervisor can supervise up to twenty minors, except for premises located in cities of the first class, where each supervisor can supervise up to five minors. Notwithstanding any other provisions of this section, if the minors are on the premises as part of a school-endorsed function, then each supervisor can supervise fifty minors. Nothing in this clause shall be construed to make it unlawful for minors to frequent public venues or performing arts facilities.
Act of May 8, 2003. P.L. 1, 47 P.S. § 4-493(14).
Alternatively, the majority held, even assuming the meaning of "frequent" was ambiguous, Jet-Set was entitled to a strict construction of Section 4-493(14) as it is a penal statute, which subjects violators to potential fines and incarceration under 47 P.S. § 4-494(a). Id. at *3 (internal citations and quotations omitted). The Bureau requested review of this alternative holding, but we denied that request. Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Jet-Set Restaurant, LLC , ––– Pa. ––––, 171 A.3d 1282, 1283 (2017) (per curiam ).
In dissent, Judge McCullough agreed with the Bureau and would have held the 2003 amendment to Section 4-493(14)"evidenced a change in the General Assembly's intent" because "the former version ‘prohibited a specific classification of patrons from frequenting a bar,’ while in the current formulation, the General Assembly stated ‘with great specificity the only circumstances when a minor may be in a bar, compelling the conclusion that the general rule is that minors are not permitted in bars.’ " Id. at *4 (McCullough, J., dissenting), quoting Bureau's Commonwealth Court Brief at 16-17. According to Judge McCullough, the new language of Section 4-493(14)"plainly refers to the legality of the presence of minors in a bar in terms of a single occasion" and "strongly supports the conclusion that any time a minor is present on a bar's premises, except for one of the reasons listed in the five statutory exceptions, the bar has permitted the minor to unlawfully visit or ‘frequent’ the premises." Id. As such, Judge McCullough would have concluded Jet-Set permitted minors to "frequent" its premises in violation of Section 4-493(14), based on the conduct observed in November 2014. Id.
Judge McCullough, in stating the Speranza definition is not well formulated or clear, relied upon Pennsylvania cases where frequenting counts were sustained based on minors being present on a licensed premises on only one occasion. Id. at *5 (McCullough, J., dissenting), citing Bateman-Gallagher Post No. 668, Home Ass'n. v. Commonwealth of Pennsylvania, Liquor Control Board , 115 Pa.Cmwlth. 348, 540 A.2d 617 (1988) ; Pennsylvania State Police, Bureau of Liquor Control Enforcement v. CIC Investors No. 850 Ltd. , 13 Pa. D. & C. 4th 518, 1992 WL 464263 (C.P. Montgomery filed Feb. 13, 1992). We discuss these cases in more detail below.
The Bureau sought allowance of appeal and this Court accepted review of the following question: "Does the definition of ‘frequenting’ set forth in [ Speranza ] still apply to Section 4–493(14) of the Liquor Code, or do the 2003 Amendments to the Code demonstrate the General Assembly's intent that a minor may not be inside a licensed premises even a single time unless one of the exceptions enumerated in Section 4–493(14) applies?" Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Jet-Set Restaurant, LLC , ––– Pa. ––––, 171 A.3d 1282, 1283 (2017) (per curiam ). When presented, as we are in this appeal, with questions of law pertaining to statutory interpretation, our scope of review is plenary and non-deferential. A.S. v. Pennsylvania State Police , 636 Pa. 403, 143 A.3d 896, 903 (2016).
The Bureau contends the meaning of "frequent" as applied to minors is ambiguous in light of the 2003 amendments to Section 4-493(14). Bureau's Brief at 13-14. According to the Bureau, the changes were "material" as the subsection is "markedly different than when it was construed by the Court in Speranza " and now approaches "the issue of the presence of minors on a licensed premises in an entirely new manner." Id. at 16. The Bureau argues removing minors from "the general prohibition on ‘frequenting’ " which now "addresses only ‘persons of ill repute’ and ‘prostitutes’ " evidences the General Assembly's intention to prohibit minors from visiting licensed establishments when none of the enumerated exceptions apply. Id. at 16-17. In this respect, the Bureau contends, "[e]ach of the exceptions set forth in the 2003 amendment plainly and clearly refers to the legality of the presence of minors in a bar in terms of a single occurrence" and those exceptions act as "safeguards that will isolate and protect minors from the ill effects associated with alcohol." Id. at 18-19. Additionally, the Bureau argues such a reading will favor the public's interest in restricting minors from accessing alcohol, which it argues is the intent of the General Assembly, and prevent an unreasonable interpretation. Id. at 19-21.
The Bureau notes the Speranza definition of "frequent" arguably could continue to apply to persons of ill repute and prostitutes since the same general prohibition of those types of patrons remains from the statute at issue in Speranza. Id.
Jet-Set responds by arguing "[t]he [Bureau's] purported ‘material changes’ are primarily structural in nature and have no impact on the spirit or character of the Code" and, as such, "there is no justification to revisit this Court's definition of ‘frequent.’ " Jet-Set's Brief at 3. To illustrate its argument, Jet-Set refers to the 2002 version of Section 4-493(14), which "[i]n one sprawling fourteen-line sentence [ ] set forth the prohibitions, exceptions, and subparts to each exception relating to minors" and argues the 2003 amendment "was little more than sorely needed editing." Id. at 5. Accordingly, Jet-Set argues the 2003 amendment did "little more than restate the historic spirit of Section 4-493(14) — persons of ill repute and prostitutes are not permitted to frequent a licensed premises" and "minors are specifically permitted to ‘frequent’ a licensed premises so long as certain conditions exist." Id. at 7. Contrary to the Bureau's argument, Jet-Set contends Section 4-493(14)"does not ‘proactively’ state when minors may ‘legally be in a bar’ " but rather "controls when minors may ‘frequent’ a licensed premises." Id. To this end, Jet-Set argues this Court has already defined "frequent" as meaning " ‘to visit often or to resort to habitually or to recur again and again, on more than one or two visits[,]’ " id. at 7-8, quoting Speranza , 206 A.2d at 294, and "[t]he [Bureau] has failed to present evidence that the General Assembly intended to use any definition for ‘frequent’ other than that which existed from 1965 to 2003." Id. at 9. Jet-Set additionally contends the General Assembly's "choice to use the same term demonstrates acceptance of the existing definition" explained in Speranza. Id.
The 2002 version of Section 4-493(14) stated as follows:
[i]t shall be unlawful ... [f]or any hotel, restaurant or club liquor licensee, or any retail dispenser, his servants, agents or employes, to permit persons of ill repute, known criminals, prostitutes or minors to frequent his licensed premises or any premises operated in connection therewith, except minors accompanied by parents, guardians, or under proper supervision or except minors who frequent any restaurant or retail dispensing licensee whose sales of food and non-alcoholic beverages are equal to seventy per centum or more of the combined gross sales of both food and alcoholic beverages on the condition that alcoholic beverages may not be served at the table or booth at which the said minor is seated at the time (unless said minor is under proper supervision as hereinafter defined) and on the further condition that only table service of alcoholic beverages or take-out service of beer shall be permitted in the room wherein the minor is located: Provided, however, That it shall not be unlawful for any hotel, restaurant or club liquor licensee or any retail dispenser to permit minors under proper supervision upon the licensed premises or any premises operated in connection therewith for the purpose of a social gathering, even if such gathering is exclusively for minors: And provided further, That no liquor shall be sold, furnished or given to such minors nor shall the licensee knowingly permit any liquor or malt or brewed beverages to be sold, furnished or given to or be consumed by any minor, and the area of such gathering shall be segregated from the remainder of the licensed premises. In the event the area of such gathering cannot be segregated from the remainder of the licensed premises, all alcoholic beverages must be either removed from the licensed premises or placed under lock and key during the time the gathering is taking place. Notice of such gathering shall be given the board as it may, by regulation, require. Any licensee violating the provisions of this clause shall be subject to the provisions of section 471. Nothing in this clause shall be construed to make it unlawful for minors to frequent public venues or performing arts facilities.
"Proper supervision," as used in this clause, means the presence, on that portion of the licensed premises where a minor or minors are present, of one person twenty-five years of age or older for every fifty minors or part thereof who is directly responsible for the care and conduct of such minor or minors while on the licensed premises and in such proximity that the minor or minors are constantly within his sight or hearing. The presence of the licensee or any employe or security officer of the licensee shall not constitute proper supervision.
Act of December 20, 2000, P.L. 992, former 47 P.S. § 4-493(14).
Jet-Set further argues Judge McCullough relied on distinguishable precedent in her dissent, and also failed to recognize "[t]he 2003 [a]mendments provide no greater protection for minors — and hence greater restrictions on licensees — than existed at the time of Speranza. " Id. at 9-10. In fact, Jet-Set argues, "the number of exceptions has been expanded since Speranza , in favor of the licensee, to allow licensees more flexibility in catering to their customers' needs." Id. at 10. Jet-Set further contends "the 2003 [a]mendment exceptions ‘relate to a single occurrence or event’ no more than they did, or did not, in Speranza " since the General Assembly did not change the exceptions, but simply added the word "only" before its use of "frequent." Id. As to the addition of the word "only," Jet-Set notes " ‘only’ is the adverb which modifies ‘frequent’ expressing a relation of place, time, circumstance, manner, cause, [or] degree" but it "cannot alter its definition." Id. Jet-Set ultimately contends "the General Assembly was stating that minors may ‘solely or exclusively’ ‘visit often or habitually’ a licensed premises if certain conditions existed." Id.
It is clear Speranza , decided in 1965, is compelling precedent here, notwithstanding subsequent statutory amendments; indeed, we conclude the decision controls this appeal. In Speranza , the Bureau cited the liquor licensee for permitting minors to "frequent" its premises based on an inspection that revealed ten minors eating pizza and drinking soda. 206 A.2d at 294. Four of the ten minors testified before the Liquor Control Board: two had been on the premises with their parents once or twice before, and two had never been on the premises. Id. On appeal from an order upholding suspension of the licensee's liquor license, this Court reversed on the basis there was no evidence establishing that minors "frequent[ed]" the premises. Id. The Court explained, "[t]o ‘frequent,’ in the context of the relevant statutory provision, means to visit often or to resort to habitually or to recur again and again, or more than one or two visits." Id. (citations omitted). Importantly, the Court further held it did "not mean to say that it must be found that the same minor or minors come to the premises habitually. But it must be established by a fair preponderance of specific evidence that, as a course of conduct, licensees permit minors to come on the premises." Id. (emphasis in original).
We now consider whether the post- Speranza , 2003 amendment to Section 4-493(14) somehow demonstrates an intent on the part of the General Assembly to alter the meaning of "frequent" from the definition set forth in Speranza. Our analysis is guided by the Statutory Construction Act, which directs courts "to ascertain and effectuate the intention of the General Assembly." 1 Pa.C.S. § 1921(a). The plain language of a statute generally provides the best indication of legislative intent. A.S. , 143 A.3d at 903. We note the term "frequent" is ordinarily used to denote repeated visits to a location. See American Heritage Dictionary 545 (3d. ed. 2000) (defining frequent as "[o]ccurring or appearing quite often or at close intervals" and defining frequenting as "[t]o pay frequent visits to; be in or at often").
Moreover, we may presume that, where this Court has previously interpreted certain statutory language, and that language is retained in subsequent amendments to the same statute, the legislature approved of and intended to uphold that interpretation. See 1 Pa.C.S. § 1922(4) (presuming "[t]hat when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed upon such language"); see also Verizon Pennsylvania, Inc. v. Commonwealth , 633 Pa. 578, 127 A.3d 745, 757 (2015) ("[o]ne of the most venerable and fundamental tenets of statutory interpretation is that, whenever our Court has interpreted the language of a statute, and the General Assembly subsequently amends or reenacts that statute without changing that language, it must be presumed that the General Assembly intends that our Court's interpretation become part of the subsequent legislative enactment"); Parisi v. Philadelphia Zoning Bd. of Adjustment , 393 Pa. 458, 143 A.2d 360, 363 (1958) ("long established rule ... that when, in a later legislative enactment, the same language is used as in a prior cognate statute, which has been construed by us, the presumption is that the language thus repeated is to be interpreted in the same way it previously had been"); In re Buhl's Estate , 300 Pa. 29, 150 A. 86, 87 (1930) (same).
After careful review, we agree with Jet-Set that the 2003 amendments to Section 4-493(14) do not evidence an intent on the part of the General Assembly to alter the meaning of "frequent" from the one established in Speranza , and in fact, the legislature's continued use of the term reflects an intent to approve of Speranza 's definition. Moreover, our view in this regard has more than mere "facial appeal." See Dissenting Opinion, at 828 (Baer, J.). Unlike Justice Baer, we do not find a material or "substantial disparity between the text of the prior statute and that of the 2003 amendments[.]" Id. Section 4-493(14) has always included a general prohibition on permitting persons of ill repute, prostitutes, and minors to "frequent" licensed locations, and has always provided exceptions to the general prohibition of minors. See Act of April 12, 1951, P.L. 90, former 47 P.S. § 4-493(14). When Speranza was decided the only exception to the prohibition was for "minors accompanied by parents, guardians, or under proper supervision." Id. In the years that followed, however, the General Assembly expanded that exception to allow minors to frequent licensed premises that met requirements regarding food sales, or to attend social gatherings, and to make clear minors could frequent public venues with no restrictions. See Act of December 20, 2000, P.L. 992, former 47 P.S. § 4-493(14). Indeed, the text of Section 4-493(14) ballooned to the point where it encompassed numerous exceptions "[i]n one sprawling fourteen-line sentence[.]" Jet-Set's Brief at 5. These multiple exceptions remain in the current version of Section 4-493(14), and there were no substantive alterations in 2003 beyond much-needed organization into subparts (a) through (e). This minor technical revision does not suggest the General Assembly intended to alter the definition of "frequent" as described in Speranza , and instead indicates an intent to maintain that exact interpretation.
Although we recognize Justice Mundy's point regarding the practicability of enforcing Section 4-493(14) when using the Speranza definition of "frequent," we must note the use of that definition in the present statute is no more "impractical" than when Speranza was decided. Dissenting Opinion, at 829 (Mundy, J.). As stated above, in Speranza , this Court held that the General Assembly, by use of the word "frequent," specifically intended to encumber the Bureau with the burden of establishing that minors visited a licensed premises on "more than one or two" occasions, or that a licensee, "as a course of conduct," permitted minors to visit their premises when one of the exceptions did not apply. 206 A.2d at 294. As such, contrary to Justice Mundy's opinion "it is unlikely that the General Assembly intended to condone allowing licensed premises to knowingly admit minors into their establishments unless one of the Section 4-493(14) exception was met[,]" the Speranza Court held the General Assembly did, in fact, intend to condone such action so long as it did not occur "more than one or two" times or as "a course of conduct." Dissenting Opinion, at 829 (Mundy, J.).
Nor are we persuaded that inserting the Speranza definition of "frequenting" — visiting more than once or twice — into the numerous places where the term appears in the current statute would "make little sense." Dissenting Opinion, at 828 (Baer, J.). Justice Baer asserts, "[u]tilizing the Speranza Court's definition of ‘frequent,’ a minor could arguably sit at the bar or have alcoholic beverages served at an unsupervised table so long as it was the minor's first or second time in the licensed facility." Id. at 828. However, under Speranza , whether it was a particular minor's first or second time in the establishment is of no moment. The Speranza Court explained the Bureau's burden does not include proving "the same minor or minors" frequented the premises in order to establish a violation of Section 4-493(14), but can sustain a "frequenting" count by proving "a course of conduct" by the licensee. Speranza , 206 A.2d at 294. Accordingly, pursuant to subsection (e), a licensee may not engage in a course of conduct of allowing minors to sit at a bar or serving alcoholic beverages at a table containing unsupervised minors. The same is true for subsection (c). A licensee may not engage in a course of conduct of allowing minors to be present in a licensed premises without the requisite number of supervisors. Further, Section 4-493(14) makes clear the prohibition does not apply to public venues, performing arts facilities, and ski resorts, and thus we find nothing nonsensical regarding the use of the word "frequenting" with respect to those establishments. Accordingly, we conclude the tribunals below and the Commonwealth Court correctly held the Bureau failed to establish that Jet-Set permitted minors to "frequent" its premises under the circumstances of this case. Further, we reiterate the holding of Speranza and expressly apply it to Section 4-493(14) in its current form: "to ‘frequent,’ in the context of [ Section 4-493(14) ], means to visit often or to resort to habitually or to recur again and again, or more than one or two visits" and to sustain a frequenting count against a licensee, the Bureau does not have to prove "that the same minor or minors come to the premises habitually," but instead must show "that, as a course of conduct, licensees permit minors to come on the premises" in violation of Section 4-493(14) and its enumerated exceptions. Speranza , 206 A.2d at 294 (emphasis in original).
We likewise reject the contention of the Bureau and the dissent below that Bateman-Gallagher and CIC Investors somehow demonstrate Speranza 's definition of "frequenting" is unclear. In her dissent below, Judge McCullough posited that Bateman-Gallagher sustained a frequenting count based on two minors entering a bar on a single occasion. See 2017 WL 1365605 at *5 (McCullough, J., dissenting). Judge McCullough's reading is factually correct, but we note the appellant in Bateman-Gallagher failed to invoke Speranza or specifically challenge the "frequenting" charge. Furthermore, the discussion in Bateman-Gallagher regarding the "frequenting" charge consists of exactly two sentences, which did not refer to the Speranza doctrine. As such, we reject the notion that Bateman-Gallagher demonstrates that the Speranza definition of "frequenting" is unclear.
Similarly, Judge McCullough opined this case is analogous to CIC Investors as in both cases the licensee "engaged in an impermissible course of conduct" by " ‘actively acquiescing to the presence of minors [on one occasion].’ " JetSet , 2017 WL 1365605 at *5 (McCullough, J., dissenting), citing CIC Investors , 13 Pa. D. & C. 4th at 525. But the single incident at issue in CIC Investors was indeed extraordinary, and involved the presence of over 1,000 minors. CIC Investors , 13 Pa. D. & C. 4th at 519. Furthermore, all of the minors in CIC Investors were invited to the licensed premises for a "teen night," easily distinguishable from the scenario in this case, notwithstanding the fact the minors gained entry to Jet-Set using identification that showed they were underage. Id. at 525 ("[w]here the number of minors at issue is small and/or the minors have not been invited onto the premises by licensee, it would clearly be inappropriate to find that a single visit by minors supports a charge of permitting frequenting. But where the number of minors at issue is large and those minors were invited onto the premises by licensee (a scenario not faced by either Speranza or its progeny) it would be equally inappropriate to deny that licensee has permitted minors to frequent his establishment").
The order of the Commonwealth Court is affirmed.
Chief Justice Saylor and Justices Todd, Donohue and Wecht join the opinion.
Justice Baer files a dissenting opinion.
Justice Mundy files a dissenting opinion in which Justice Baer joins.
JUSTICE BAER, Dissenting
I respectfully dissent from the majority's holding that there was insufficient evidence to demonstrate that liquor licensee Jet-Set Restaurant ("Jet Set") permitted minors to frequent its licensed premises when the record establishes that it admitted entry to four minors, three of whom presented identification confirming they were underage. The majority bases its holding on this Court's 1965 decision in Appeal of Speranza , 416 Pa. 348, 206 A.2d 292 (1965), which defined the term "frequenting" as "more than one or two visits." Id. at 294. Because I find that Speranza is not dispositive of this appeal as it interpreted a statute different from the one at issue here, I would reverse the Commonwealth Court's order, which upheld the dismissal of Jet Set's frequenting charge.
As noted by the majority, while conducting an investigation at Jet-Set on November 1, 2014, Bureau officers discovered four minors present on the licensed premises. Jet-Set was aware that most of these individuals were underage as Bureau officers observed three of them gain entry by presenting identification to the doorman that revealed they were minors. Bureau officers further observed one minor purchase a bottle of beer inside the establishment and another minor consume two beers purchased by a patron of the bar. Finally, the officers learned that Jet-Set had permitted one of the minors to enter the premises on a prior occasion.
The Bureau subsequently issued a citation to Jet-Set, alleging that it permitted minors to frequent the premises in violation of Section 493(14) of the Liquor Code ("Code"), 47 P.S. § 4-493(14), set forth in full infra at 827. Several months later, an administrative law judge issued an adjudication dismissing the frequenting count, and both the Pennsylvania Liquor Control Board and the trial court affirmed this dismissal. The Commonwealth Court also affirmed, relying on Speranza's definition of "frequent" as encompassing more than one or two visits to the licensed premises.
Jet Set was also cited for furnishing alcohol to minors, but that charge is not at issue in this appeal.
Judge Patricia McCullough dissented, opining, inter alia , that the profound change in statutory language in the 2003 amendments to Section 4-493(14) of the Code reflects a change in the General Assembly's policy regarding the presence of minors in licensed establishments, thus, the Speranza definition of "frequent" did not apply. As explained infra , I agree with this position.
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As explained by the majority, in Speranza , a hotel liquor licensee was charged with allowing minors to frequent its premises after ten individuals under the age of twenty-one were present in the establishment, eating pizza and drinking soda without alcoholic beverages being requested or served. At issue on appeal to this Court was whether there was sufficient evidence to support the frequenting charge. Notably, at the time Speranza was decided, Subsection 493(14), entitled, "Permitting undesirable persons or minors to frequent premises," employed the term "frequent" once in the text of the provision and stated in its entirety:
It shall be unlawful --
* * *
(14) For any hotel, restaurant or club liquor licensee, or any retail dispenser, his servants, agents or employes, to permit persons of ill repute, known criminals, prostitutes or minors to frequent his licensed premises operated in connection therewith, except minors accompanied by parents, guardians, or under proper supervision.
Act of April 12, 1951, P.L. 90, former 47 P.S. § 4-493(14).
The Speranza Court defined the term "frequent" in this context to mean "to visit often or to resort to habitually or to recur again and again, or more than one or two visits." 206 A.2d at 294. This Court explained in Speranza that "[w]e do not mean to say that it must be found that the same minor or minors come to the premises habitually. But it must be established by a fair preponderance of specific evidence that, as a course of conduct, licensees permit minors to come on the premises." Id. (emphasis in original). Applying such law to the facts presented, the Speranza Court concluded that there was insufficient evidence to sustain a violation of Section 493(14).
The majority concludes that Speranza is dispositive of the instant appeal, reasoning that the Legislature intended the term "frequent" in Section 493(14) of the current Code to mean the same as it did in the previous version of the statute, which we defined in Speranza. See Op. at 823 (citing 1 Pa.C.S. § 1922(4) (providing "[t]hat when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed upon such language"). Finding that the Bureau did not establish that Jet Set permitted minors on the licensed premises more than twice, the majority concludes that there was insufficient evidence to support the frequenting count.
Contrary to the majority, I would adopt the position of the Commonwealth Court dissent, set forth by Judge Patricia McCullough. The dissent opined that nearly forty years after Speranza was decided, the General Assembly enacted the 2003 amendments to Section 493(14), which are dispositive of this appeal and state, in their entirety, as follows:
It shall be unlawful—
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(14) PERMITTING UNDESIRABLE PERSONS OR MINORS TO FREQUENT PREMISES. For any hotel, restaurant or club liquor licensee, or any retail dispenser, his servants, agents or employes, to permit persons of ill repute or prostitutes to frequent his licensed premises or any premises operated in connection therewith.
Minors may only frequent licensed premises if: (a) they are accompanied by a parent; (b) they are accompanied by a legal guardian; (c) they are under proper supervision; (d) they are attending a social gathering; or (e) the hotel, restaurant or retail dispenser licensee has gross sales of food and nonalcoholic beverages equal to fifty per centum or more of its combined gross sale of both food and alcoholic beverages. If a minor is frequenting a hotel, restaurant or retail dispenser licensee under subsection (e), then the minor may not sit at the bar section of the premises, nor may any alcoholic beverages be served at the table or booth at which the said minor is seated unless said minor is with a parent, legal guardian or under proper supervision. Further, if a hotel, restaurant, club liquor licensee or retail dispenser is hosting a social gathering under subsection (d), then written notice at least forty-eight hours in advance of such gathering shall be given to the Bureau of Enforcement. If a minor is frequenting licensed premises with proper supervision under subsection (c), each supervisor can supervise up to twenty minors, except for premises located in cities of the first class, where each supervisor can supervise up to five minors. Notwithstanding any other provisions of this section, if the minors are on the premises as part of a school-endorsed function, then each supervisor can supervise fifty minors. Nothing in this clause shall be construed to make it unlawful for minors to frequent public venues, performing arts facilities or ski resorts.
Act of May 8, 2003, P.L. 1, 47 P.S. § 4-493(14).
The dissent agreed with the Bureau that the profound change in statutory language in the 2003 amendments reflected a change in the General Assembly's policy regarding the presence of minors in licensed establishments. It emphasized that while the prior version of the statute generally prohibited licensees from permitting minors to frequent licensed premises, the 2003 amendments, when read in their entirety, set forth detailed and exclusive circumstances under which minors could lawfully be present in a licensed establishment, i.e. , when the minor is accompanied by a parent or legal guardian, is under proper supervision as defined by the Code, is attending a social gathering as defined by the Code, or where the establishment sells primarily food and incidentally alcohol. The dissent found that this comprehensive statutory language plainly suggests that if a licensee knowingly permits a minor to visit a licensed premises absent Section 493(14)'s protections, as occurred here, the licensee has permitted the minor to visit unlawfully or frequent the premises in violation of that statutory provision. To hold to the contrary, the dissent opined, absent any inquiry as to the number of minors present in the licensed establishment or the manner in which they gained entry, would be inconsistent with the General Assembly's clearly expressed intent to restrict minors' unsupervised presence in places where alcohol is served.
I agree with these sentiments. While there is facial appeal to the majority's analysis due to the Legislature's continued use of the word "frequent," such construction ignores the substantial disparity between the text of the prior statute and that of the 2003 amendments and, most importantly, the context in which that term is employed in the current statutory provision when viewed in its entirety. Simply put, the Speranza Court interpreted different language than that at issue herein; thus, there should be no presumption that the General Assembly intended for the word "frequent" to retain the same meaning as this Court afforded it in our 1965 decision in Speranza.
To illustrate, the Speranza Court interpreted the word "frequent" as used once in the prior version of Section 493(14), while the current statute employs the term five times in the text of the provision. If one would insert the Speranza definition of "frequent" (i.e. , visited more than once or twice) into each of the five instances where that term is employed, Section 493(14) would make little sense. For example, Section 493(14) directs that if a minor is "frequenting" a licensed hotel or restaurant that sells primarily food and incidentally alcohol, "then the minor may not sit at the bar section of the premises, nor may any alcoholic beverages be served at the table or booth at which the said minor is seated unless said minor is with a parent, legal guardian or under proper supervision." 47 P.S. § 4-493(14). Utilizing the Speranza Court's definition of "frequent," a minor could arguably sit at the bar or have alcoholic beverages served at an unsupervised table so long as it was the minor's first or second time in the licensed facility. Similarly, Section 493(14) states, "[i]f a minor is frequenting licensed premises with proper supervision under subsection (c), each supervisor can supervise up to twenty minors...." 47 P.S. § 4-493(14). Employing the Speranza definition would leave unanswered the number of minors that a supervisor could oversee on the minor's first or second visit to the establishment. Finally, Section 493(14) states "[n]othing in this clause shall be construed to make it unlawful for minors to frequent public venues, performing arts facilities or ski resorts." 47 P.S. § 4-493(14). Concluding that "frequent" denotes visiting more than twice would render the sentence nonsensical as it would suggest a potential illegality if the minor visited the particular venue on a single occasion.
When read in its entirety, it becomes clear that the Legislature did not intend to import into the 2003 amendments to Section 493(14) the meaning of "frequent" that this Court utilized when interpreting a different statute nearly forty years before. Giving effect to all of the provisions of Section 493(14), while avoiding an unreasonable or absurd result, I would conclude that the Legislature intended the term "frequent," as used in the current version of Section 493(14), to mean "visit." See 1 Pa.C.S. § 1922(2) (presuming that the General Assembly intends the entire statute to be effective and certain); id. § 1922(1) (presuming that the General Assembly does not intend a result that is absurd, impossible of execution, or unreasonable). As noted, the evidence established that a Jet-Set employee permitted four minors to visit the licensed premises, three of whom had been permitted entry after Jet-Set confirmed they were underage and one of whom had been permitted entry on a prior occasion. Accordingly, I would find such evidence sufficient to establish a violation of Section 493(14).
I readily acknowledge that the case would be much simpler, in fact would not be before us, had the General Assembly employed a term other than "frequent" in the revised Section 493(14). The General Assembly may desire to revisit the statutory provision so that the Bureau will be able to carry out its obligations in this regard, unhampered by the continued application of the Speranza decision.
JUSTICE MUNDY, Dissenting
I join Justice Baer's dissenting opinion in full. As Justice Baer notes, the 2003 amendments added four additional instances of the word "frequent" to 47 P.S. § 4-493(14). Utilizing the definition of "frequent" set forth in Appeal of Speranza , 416 Pa. 348, 206 A.2d 292 (1965) results in a nonsensical construction of the statute as fully discussed by Justice Baer. See Dissenting Op. of Baer, J. at 827–29. I write separately to emphasize that a reading contrary to that outlined by the dissent results in a law that allows violations to occur on two occasions without penalty, before a citation is issued on the third occasion.
Section 4-493(14) clearly intends to penalize licensed establishments for allowing the admission of minors unless one of the enumerated exceptions applies. To interpret the Act otherwise is to ignore the directive that it be construed to accomplish its purpose: "protection of the welfare, health, peace and morals of the people of the Commonwealth." 47 P.S. § 1-104.
Further, the Speranza definition is impractical to implement as it requires a system for tallying and tracking infractions prior to issuing a citation. Instantly, the Commonwealth Court noted that "Jet-Set was cited for permitting a minor to be present in a licensed premises on two occasions in 2014." Cmwlth Ct. Op. at 820. Because it was not Jet-Set's third known instance of allowing minors to be present, the Commonwealth Court determined no violation of Section 4-493(13) had occurred and the citation was improper. In my view, it is unlikely that the General Assembly intended to condone allowing licensed premises to knowingly admit minors into their establishments unless one of the Section 4-493(13) exceptions was met. For the foregoing reasons, I respectfully dissent.
Justice Baer joins this dissenting opinion.