Opinion
June 12, 1967.
September 14, 1967.
Liquor Law — Licenses — Suspension — Liquor furnished to minor by bartender — Evidence — Liquor Code — Construction — Words "or any other person" — Legislative intention.
1. On appeal by the Liquor Control Board from an order of the court below setting aside an order of the board suspending the restaurant liquor license issued to appellee, in which it appeared that police officers testified that, ten minutes after they had observed a male minor enter the licensed premises, they entered and found the minor sitting at the bar; that in front of him was a glass of wine, with the minor's hand wrapped around it; that seated beside the minor was an adult who also had a drink in front of him; that the minor testified that the adult beside him had ordered two drinks, one of which was for the minor; and that the minor was not questioned as to his age, or asked for identification, and was not requested to leave the premises; it was Held that by necessary implication the testimony established a violation of the law by the licensee's bartender, and that the order of the court below should be reversed and the order of the board reinstated.
2. Under § 493(1) of the Liquor Code of April 12, 1951, P.L. 90 (which provides that it shall be unlawful for any licensee or the board or any employee, servant, or agent of the licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages to any minor), the words "or any other person" are not to be given a limited construction.
3. It is the legislative intention that the persons designated in the Liquor Code should be protected.
Argued June 12, 1967.
Before ERVIN, P.J., WRIGHT, WATKINS, MONTGOMERY, JACOBS, HOFFMAN, and SPAULDING, JJ.
Appeal, No. 51, Oct. T., 1967, from order of Court of Quarter Sessions of Philadelphia County, Aug. T., 1966, No. 1644, in re suspension of restaurant liquor license issued to J-J Bar, Incorporated. Order reversed.
Appeal by licensee from decision of Pennsylvania Liquor Control Board suspending restaurant liquor license.
Order entered sustaining appeal, opinion by BRADLEY, J. Commonwealth appealed.
James Phelan, Jr., Special Assistant Attorney General, with him I. Harry Checchio, Special Assistant Attorney General, Thomas J. Shannon, Assistant Attorney General, and William C. Sennett, Attorney General, for Pennsylvania Liquor Control Board, appellant.
Ralph Schwartz, for appellee.
On July 20, 1966, after hearing on Citation No. 1954 of 1965, the Pennsylvania Liquor Control Board entered an order suspending for a period of ten days the restaurant liquor license issued to J-J Bar, Inc. for premises at 2034 North 31st Street in the City of Philadelphia. This order was based upon the following finding of fact: "The licensee, by its servants, agents or employes, sold, furnished and/or gave or permitted such sale, furnishing and/or giving of liquor and/or malt or brewed beverages to minors, on March 25, 1965". The licensee appealed to the Court of Quarter Sessions of Philadelphia County which entered an order, November 3, 1966, setting aside the suspension. The Board has appealed to this court.
On the same date the Board also issued a suspension order for a consecutive period of twenty days on Citation No. 127 of 1966. The court below sustained the Board as to this Citation and the licensee has not appealed.
The history of the licensed premises includes two prior suspensions in addition to the one mentioned in the footnote. The suspension presently under consideration is based upon an investigation under date of March 25, 1965. Officer Flamer testified that, shortly after one o'clock in the morning, he and another officer observed a male minor enter the premises. Ten minutes later the officers entered and found the minor seated at the bar. In front of him was a glass of wine "with his hand wrapped around it". Seated beside the minor was an adult who also had a drink in front of him. The testimony of Officer Flamer was corroborated by Officer Cameron. The minor in question did not appear at the hearing before the court, but his testimony before the Board was received by stipulation. The minor testified that he was nineteen years of age, and that the adult beside him had ordered two drinks "and one was for me".
The reasoning of the court below was as follows: "There was no evidence that the bartender was aware or should have been aware that the minor was to be the ultimate receiver of the wine, or that the bartender was aware that the wine had been transferred to the minor". We are not in accord with this reasoning. By necessary implication the testimony establishes a violation of the law by the licensee's bartender. Cf. Smith's License, 26 Pa. D. C. 370. The minor was not questioned as to his age, or asked for identification, nor was he requested to leave the premises. The minor and the adult were seated together at the bar, and two drinks were ordered. It was the bartender's duty to refuse to permit the adult to furnish liquor to the minor. As used in the relevant section of the Liquor Code, the words "or any other person" are not to be given a limited construction: Commonwealth v. Randall, 183 Pa. Super. 603, 133 A.2d 276. The legislature intended that persons designated in the statute should be protected: Majors v. Brodhead Hotel, 416 Pa. 265, 205 A.2d 873.
Act of April 12, 1951, P.L. 90, § 493(1), 47 P.S. 4-493(1).
The order of the court below is reversed, and the order of the Board is reinstated.