225 Pa. Super. 224 | Pa. Super. Ct. | 1973
Opinion by
The defendants, David Alton, John Backa and Daniel Backa were indicted and stood trial on a charge that they did “'expose and keep for sale and offer for sale and did sell for consumption on the premises where sold, beer, not then and there being holder of a valid license in violation of Section 492, Subsection 2 of the Liquor Code”. The uncontradicted facts appearing of record, as stated by the lower court in its opinion, are as follows: Officer Donald Kidd, an enforcement officer with the Pennsylvania Liquor Control Board, testified that at approximately 9:15 p.m. on July 11, 1971, he arrived at the premises known as the Alpine Ice Chalet located in Swissvale. He noticed a sign on the outside of the premises stating “Swimming, Dancing and Free Beer, 13.00”. As he approached the entrance he was met by John Backa, who collected a
On July 18,1971, Officer Kidd returned to the same premises accompanied by Officers Falta and Ehenspear. As they approached they again saw the same sign posted. The officer paid $3.00 to John Backa and entered. This time the bar was being tended by David Alton. Approximately one-third of the patrons were dancing and about twice that many were holding beer cups. At approximately 10 :Q0 p.m. a raid was conducted and John Backa and David Alton were arrested and the beer confiscated. Daniel Backa was arrested later. After being informed of Ms rights, John Backa stated that they did not possess a license to sell beer. Also implicit in the record and standing uncontested is the fact that the activities engaged in by the defendant did not constitute an isolated social event but represented a business activity engaged in with regularity.
It was the opiMon of the court below that these facts did not sustain a finding of sale of the beer for a consideration. We cannot agree with this conclusion. It is our opinion and holding that there was a sale in violation of Section 492, Subsection 2 of the Pennsylvania Liquor Code of April 12,1951, P. L. 90, Article 4, which provides: “it shall be unlawful for any person to sell to another for consumption upon the premises where sold or to permit another to consume upon the premises where sold, any malt or brewed beverages, unless such a person holds a valid retail dispenser’s license or a valid liquor license issued by the board authorizing
The trial judge in reaching the conclusion that there was no sale laid emphasis on and gave great weight to the fact that no specific amount was stated to be a consideration for the beer, the court’s opinion including statements such as “Officer Kidd admitted that once he was inside the premises he noticed no monetary consideration being exacted for the beer. At no time did he observe money passing between people obtaining the beer and the bartender . . . there is no evidence of such a sale to anyone on the premises for a specific consideration . . . nowhere in the testimony has the Commonwealth shown that a specific consideration was exacted for dispensing of the beer ... it is not against the law to give away beer nor can it be construed against the law to offer beer as an inducement to attend a function . . . .”
This reasoning by the trial court assumes that the beer was in fact free because the sign said so. The court thus begged the very question which was before it for consideration, that question being: though no specific consideration is set forth and though the beer was stated to be “free,” was there in fact included in the admission price a payment for the beer and was the method here employed of supplying beer to patrons for their consumption on the premises a sham and subterfuge for what was in fact a sale? The lower court admits that the activity here involved could be “construed as a sale of beer” but states, however, that it seems illogical that the defendant went to the trouble of renting a swimming pool, hiring a band, atid employing off-duty police to check for the presence of minors just to sell beer. It would be more logical to assume that the beer was offered as an inducement to attend this affair. This being so, it cannot be said that any violation of the law has occurred.”
The fact that a few of the patrons did come to swim and dance and did not drink any beer does not negate the finding that the admission price included therein a consideration for the beer. Those patrons had the right to drink beer if they so chose because they had paid for it. A person being served in the restaurant may, without any reduction in the price of the meal, decline the potato included with the meal he has ordered, but that does not mean the price he paid for the meal does not include the cost of the potato.
Implicit in the lower court’s opinion is the view that the defendant’s transactions in beer are to be deemed lawful unless clearly made unlawful by the Code. However, the law is to the contrary. Transactions in liquor are lawful only to the extent that they are made lawful by the liquor code. Tahiti Bar, Inc., Liquor License Case, 395 Pa. 355 (1959). This is for the reason that “there is perhaps no other area of permissible state action within which the exercise of the police power of a state is more plenary than in the regulation and control of the use and sale of alcoholic beverages.” Hankin Liquor License Case, 202 Pa. Superior Ct. 100, 103 (1963); Tahiti Bar, Inc., Liquor License Case, supra, at 360.
A reasonable interpretation of the restrictions of the Pennsylvania Liquor Code requires us to hold that there was under the uncontradicted facts of record indeed a sale of the beer for consumption on the premises by persons not having a license to make such a sale.
It is not here material that the defendants were not shown of record to be the owner-operators of the busi
We therefore reverse the lower court’s sustaining of the demurrer and remand the case to the lower court for further proceedings consistent with this opinion.