Definition of “Frequenting” under 2003 Amendment to Liquor Code

Pa. State Police, Liquor Control Bd. v. Jet-Set Restaurant, LLC, 2017 WL 1365605 (unreported) (Pa. Cmwlth. 2017), allocatur granted Oct. 13, 2017, appeal docket 61 MAP 2017

This case arises from the Liquor Control Board’s (LCB) citation of Jet-Set, a liquor licensee operating a bar and restaurant in Reading, Pennsylvania. On November 1, 2014, LCB conducted an investigation of Jet-Set and found four underage, twenty-year old females inside. Bureau officers observed three of the underage females provide identification to the doorman to gain entrance even though their identification showed that each was underage. Bureau officers observed one of the females purchase a bottle of beer inside Jet-Set, and observed another consume two bottles of beer purchased by another patron of the bar. Bureau officers also learned that one of the females had been inside Jet-Set on one prior occasion that year.

On December 29, 2014, the LCB cited Jet-Set, alleging (1) that Jet-Set permitted several underage minors to frequent the premises in violation of section 493(14) of the Liquor Code; and (2) that Jet-Set furnished alcohol to underage minors in violation of section 493(1). On May 19, 2015, an administrative law judge issued an adjudication dismissing Count 1 and sustaining Count 2. On June 19, 2015, the Bureau appealed the dismissal of Count 1 to the Board, which issued an opinion and order affirming the ALJ’s adjudication. On September 3, 2015, the LCB appealed the Board’s order to the trial court. The trial court affirmed the Board’s order, determining that Jet-Set had not violated section 493(14) of the Liquor Code because it determined that there was insufficient evidence to show that Jet-Set had permitted minors to frequent the restaurant.

The LCB appealed. The sole issue before the Commonwealth Court was whether Jet-Set violated section 493(14) of the Liquor Code when it allowed underage minors to enter the restaurant on two separate occasions in 2014.

The Commonwealth Court focused its attention on the meaning of “frequent” as used in the Liquor Code, noting that under the Pennsylvania Supreme Court’s holding in Appeal of Speranza:

to “frequent” means to visit a licensed premises often, to resort to the licensed premises habitually, to recur again and again, or on more than one or two visits. 206 A.2d 292, 294 (Pa. 1965). While it is not necessary for the same underage minor or minors to come to the premises habitually in order for a licensee to be in violation of section 493(14), it must be established that the licensee permits minors to come on the premises as a course of conduct.

Slip Op. at 2 (quoting Appeal of Speranza, 206 A.2d 292, 294 (Pa. 1965)).

However, the Supreme Court’s decision in Speranza was based on since-amended version Section 493(14) of the Liquor Code, which provided:

It 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.

Section 493(13) was amended in 2003 to provide the so-called “Pizza Hut exception” for those bar/restaurants with more than 50% non-alcohol sales, providing:

… 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.

The Commonwealth Court rejected the LCB’s argument that the definition of the word “frequent” as provided by the Supreme Court in Speranza should be updated in light of the 2003 Amendment. The court explained “[w]hen our Supreme Court has construed the language in a statute, we presume that the legislature intends for the same construction of the language to exist in subsequent statutes on the same subject matter.” Therefore, absent evidence that the legislature intended to attribute a different meaning to “frequent” than that meaning provided by the Supreme Court, the majority found Speranza remains the applicable definition. Based on Speranza’s interpretation of “frequenting” as a minor entering a licensed premises on more than one or two occasions, the Commonwealth Court affirmed the trial court’s finding that Jet-Set did not violate Section 493(14) of the Liquor Code when evidence showed that minors were only present at the licensed premise on two occasions.

Judge McCullough dissented, agreeing with the LCB that the language and specificity in the amended statute “evidenced a change in the General Assembly’s intent, as that intent was gleaned by the court in Speranza.” Specifically, Judge McCullough explained that 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.”

The dissent further argued that the Speranza doctrine was not clear in all its possible factual applications, as was acknowledged by the Commonwealth Court in Bateman-Gallagher v. Liquor Control Board, 540 A.2d 617 (Pa. Cmwlth. 1988). In Bateman-Gallagher, the Commonwealth Court found evidence that two minors entered a bar; one of the minors was a member of the bar and the other was a guest; and the licensee apparently permitted the minors in the bar because the member previously, was sufficient to charge the licensee with “frequenting” under Section 493(14) of the Liquor Code. The dissent argued that Jet-Set’s case was more like Bateman-Gallagher than Speranza, given that evidence showed minors were served alcohol by Jet-Set and that Jet-Set had carded the underage patrons:

Ultimately, this conduct reflects active acquiescence, promotion or, in other words, a pattern and practice on the part of Jet-Set in knowingly and willingly permitting minors to frequent the bar. In explaining the difference between the situation where a licensee accidentally permits minors to be on the premises and the scenario where the licensee actively promotes such behavior, one court explained:

Upon a close reading of Speranza and its progeny, it appears evident that the reluctance of the courts to sustain charges of frequenting based upon a single occasion of minors being present on the premises derives from a concern that “frequenting” implies that the licensee has acquiesced to the presence of minors on its premises. While such acquiescence may be demonstrated by proving that the licensee engaged in a pattern of conduct of allowing minors onto the premises, a single visit by a small number of minors would not normally, in and of itself, prove such a pattern and would not demonstrate the active acquiescence of the licensee to the presence of the minors. A single visit of a small number of uninvited minors could indeed be nothing more than accidental, and could happen even to the most diligent licensee. . . .

Pennsylvania State Police Bureau of Liquor Control Enforcement v. Cic Investors No. 850, 13 Pa. D. & C. 4th 518, 524-25 (1992). The court in Cic Investors then concluded that where minors visit a bar on only one occasion, the Bureau can nevertheless establish that the bar engaged in an impermissible course of conduct when the bar was “actively acquiescing to the presence of minors . . . .” Id. at 525.

Slip Op. at 5-6.

Focusing on this “promotion” standard, the dissent found that the LCB provided sufficient evidence to support a violation of Section 493(14), concluding:

Therefore, regardless of whether “frequent” is currently interpreted to mean that ipso facto, a minor may not be inside a bar on a single occasion, unless the minor falls within one of the statutory exceptions, or whether the term is construed to incorporate the Speranza definition and progeny, I would conclude that the tribunals below erred in dismissing Count I.

Slip Op. at 6.

The Pennsylvania Supreme Court limited its grant of allocatur to the issue set forth below.

Does the definition of “frequenting” set forth in Appeal of Speranza, 206 A.2d 292 (Pa. 1965) 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?

For more information, contact Kevin McKeon or Dennis Whitaker.