§ 5.32. Restrictions/exceptions.
(a) (Reserved).
(b) (Reserved).
(c) A licensee may not directly or indirectly employ a minor person under 18 years of age as an entertainer in the licensed establishment, or in a room or place connected therewith, nor may a licensee permit in the establishment, room or place, a minor person under 18 years of age to act as an entertainer.
(d) A hotel, restaurant, club, privately-owned public golf course, privately-owned private golf course, municipal golf course, brew pub or malt beverage eating place licensee may not hold or permit to be held, on the licensed premises an event, tournament or contest; nor advertise, offer, award or permit the award on the licensed premises of trophies, prizes or premiums, for any purpose except as follows:
(1) A hotel, restaurant, club or malt beverage eating place licensee may permit to be held within the licensed premises an event sanctioned by the State Athletic Commission under 5 Pa.C.S. Part I, Subparts A and B (relating to general provisions; and boxing) or under 5 Pa.C.S. Part I, Subpart C (relating to the Wrestling Act). Only malt or brewed beverages, as generally permitted by the class of license involved, may be sold, served or delivered on that portion of the licensed premises where the event is held, and not sooner than 1 hour before, and not later than 1 hour after the event. Service of malt or brewed beverages at these events will be conducted only with the prior written approval of the State Athletic Commission filed with the Board. Drinks shall be dispensed in that portion of the licensed premises where the event is conducted only in paper or plastic cups.
(2) A hotel, restaurant, club or malt beverage eating place licensee may hold or permit to be held within the licensed premises or in a bowling alley immediately adjacent thereto as provided in sections 406(a)(1) and 442(b) of the Liquor Code (47 P. S. § § 4-406(a)(1) and 4-442(b)), a bowling tournament or bowling contest. Liquor and malt or brewed beverages, as generally permitted by the class of license involved, may be served, sold or delivered at the bowling tournament or bowling contest by the licensee.
(3) A hotel, restaurant, club, privately-owned public golf course, privately-owned private golf course, municipal golf course, brew pub or malt beverage eating place licensee may permit the conduct of events on the licensed premises by groups constituting a league. Liquor and malt or brewed beverages, as generally permitted by the class of license involved, may be sold, served or delivered at the events on the licensed premises.
(4) Hotel, restaurant, club, privately-owned public golf course, privately-owned private golf course, municipal golf course, brew pub or malt beverage eating place licensees may permit the conduct of tournaments and contests on the licensed premises for the benefit of, and officially sponsored by, bona fide charitable organizations.
(i) A charitable organization for the purposes of this section is defined as one qualified, approved by and registered with the Department of State and operated under 49 Pa. Code Part I, Subpart B (relating to charitable organizations).
(ii) Charitable organization functions shall be operated in accordance with the Solicitation of Funds For Charitable Purposes Act (10 P. S. § § 162.1—162.24) and, if applicable, the Local Option Small Games of Chance Act (10 P. S. § § 311—327), and the Bingo Law (10 P. S. § § 301—308.1).
(5) Hotel, restaurant, club, privately-owned public golf course, privately-owned private golf course, municipal golf course, brew pub and malt beverage eating place licensees may conduct self-sponsored tournaments, events or contests on their own licensed premises so long as the activities are in conformance with the applicable provisions of this subchapter.
(e) For an activity conducted under this subchapter, the following apply:
(1) There may not be lewd, immoral or improper conduct by the licensee, its servants, agents, employees, patrons or event, contest or tournament participants.
(2) There may not be unlawful gambling directly or indirectly associated with an activity on the licensed premises. A licensee will be held strictly liable for unlawful gambling on the licensed premises.
(3) There may not be an event, contest or tournament which involves the consumption of alcoholic beverages by an event, tournament or contest participant.
(4) The price of a ticket or evidence of admission to an event, tournament or contest may not include a charge or assessment for alcoholic beverages or entitle the holder thereof to receive an alcoholic beverage anywhere on the licensed premises except for alcoholic beverages included in a meal package offering as provided for in Chapter 13 (relating to promotion).
(5) A licensee or sponsoring charity may advertise an event, tournament or contest.
(6) Hotel, restaurant, club, privately-owned public golf course, privately-owned private golf course, municipal golf course, brew pub and malt beverage eating place licensees, as well as governing bodies of professional golf, skiing, tennis, bowling, pocket billiards and nonlicensee sponsors as provided in subsection (e) may award prizes to contestants or participants of events, tournaments or contests.
(7) The total value of all prizes for any given event, tournament or contest may not exceed $1,000. The total value of all prizes awarded in any 7-day period may not exceed $25,000. An event, tournament or contest conducted under the authority of the Local Option Small Games of Chance Act (10 P. S. § § 328.101—328.707) or the Bingo Law (10 P. S. § § 301—308.1) is subject to the prize limits in these acts.
(8) Golf, skiing, tennis, pocket billiards or bowling events, tournaments, contests and events sanctioned by the State Athletic Commission are exempted from the prize value restrictions in this section.
(9) Licensees shall maintain on the licensed premises for 2 years, from the date of the event, an itemized list of all prizes for each event, tournament, contest indicating each prize, its value and the name and address of the recipient.
(f) The restrictions in this section apply not only to the licensee, but to partners, officers, directors, servants, agents and employees of a licensee.
(g) Municipalities may petition the Board for exemption from the Board’s regulations regarding the enforcement of subsection (a) for all licensees within an identifiable area in accordance with section 493.1(b) of the Liquor Code (47 P. S. § 4-493.1(b)).
(h) A manufacturer, manufacturer’s representative or licensee may sponsor sweepstakes promotions. Permissible sweepstakes shall provide that the following conditions apply:
(i) No purchase is necessary to enter.
(ii) Entrants shall be 21 years of age or older.
(iii) Retail licensed premises may only be involved as pick-up or drop-off points for entry forms and not for the conducting of drawings or the awarding of prizes.
(iv) Alcoholic beverages may not be part of the prize.
Authority The provisions of this § 5.32 amended under section 207(i) of the Liquor Code (47 P. S. § 2-207(i)).
Source The provisions of this § 5.32 adopted June 26, 1952; amended April 2, 1976, effective April 3, 1976, 6 Pa.B. 832; amended November 1, 1985, effective November 2, 1985, 15 Pa.B. 3935; amended May 8, 1992, effective May 9, 1992, 22 Pa.B. 2450; amended May 10, 1996, effective May 11, 1996, 26 Pa.B. 2209; amended November 12, 2004, effective November 13, 2004, 34 Pa.B. 6139; amended July 12, 2013, effective July 13, 2013, 43 Pa.B. 3946; amended December 6, 2013, effective December 7, 2013, 43 Pa.B. 7082. Immediately preceding text appears at serial pages (307794), (367735) to (367736) and (337275) to (337276).
Notes of Decisions Appeals
The authority of the Liquor Control Board to refuse renewal of an amusement permit is inherently provided by 47 P. S. § 4-470. Therefore, an appeal from the denial of an amusement permit was an appeal pursuant to the Liquor Code and section 933 of the Judicial Code mandated that jurisdiction laid with the court of common pleas. Teazers, Inc. v. Liquor Control Board, 661 A.2d 455 (Pa. Cmwlth. 1995).
In light of amendments to Liquor Code, the scope of review in enforcement proceedings involving suspensions and fines when liquor licensee was cited for permitting male stripper to come into contact with and/or associate with patrons continued to be de novo which was the same as in appeals from refusals to grant licenses. State Police v. Cantina Gloria’s Lounge, Inc., 639 A.2d 14 (Pa. 1994).
Construction with Constitution/Property Rights
Tournament operator failed to state cause of action where complaint challenged constitutionality of prohibition of tournaments in establishments licensed by Liquor Control Board. Operator did not own liquor license; thus loss of opportunity for business income tied to a liquor license was not compensable absent property taken for public use. Horan v. Commonwealth, 526 A.2d 458 (Pa. Cmwlth. 1987).
Evidence
The Liquor Control Board need not prove actual knowledge by the licensee that an employe or agent was violating this section and the circumstantial evidence was that licensee organized the dancer’s activity who were found to be licensee agents. Hospitality Investments of Society Hill, Inc. v. Commonwealth, 551 A.2d 341 (Pa. Cmwlth. 1988).
Evidence/Sufficient
Graphic testimony by an enforcement officer that the officer observed a scantily-clad ‘‘go-go’’ dancer perform in the bar area of a restaurant, where the dancer conversed with various patrons and, after placing her leg onto the bar, allowed said patrons to place money into her ‘‘G-string’’ was sufficient to support the conclusion that the licensee had violated subsection (d). In re Alray Corp., 456 A.2d 1167 (Pa. Cmwlth. 1983).
Evidence/Insufficient
A Liquor Control Board fine for operating a licensed premise in a noisy and disorderly fashion must be based on a showing of noisy and disorderly operation on a routine basis and was not supported by evidence of a single incident of noisy operation coupled with testimony by a liquor control agent describing noisy operation on a second occasion but not indicating whether the noise could be heard outside of the premises in violation of subsection (a). Matter of Banks, 429 A.2d 1279 (Pa. Cmwlth. 1981).
Gambling Devices Prohibited
Advertising discount coupons which, in addition to product discounts, contained a rub-off section offering the chance to win cash prizes were a subterfuge for gambling, and therefore, coupons constituted ‘‘gambling devices’’ prohibited in licensed establishments pursuant to Liquor Control Board regulations. Lindey v. Pennsylvania State Police, 916 A.2d 703, 706 (Pa. Cmwlth. 2006).
Prohibited Activities
The Liquor Control Board regulation prohibiting use of loudspeaker whereby sound of entertainment could be heard outside premises, subsection (a), was reasonable and consistent with legislative intent of Liquor Code. Appeal of Two-O-Two Tavern, Inc., Friendly Saloon, 492 A.2d 502 (Pa. Cmwlth. 1985).
Even though the licensee took affirmative action in the nature of signs and announcements to prohibit dancers from contacting patrons, it nevertheless violated this section, since the licensee was responsible for the acts of its servants and agents. In re New Look Lounge, Inc., 459 A.2d 68 (Pa. Cmwlth. 1983).
The restriction purported to limit the sound of music to the inside of licensed premises thus protecting neighbors, street pedestrians, and others from being subject to unwanted sounds or ‘‘noise pollution’’; the regulation was reasonable and, thus, a valid exercise of the police power. Smart, Inc. v. Liquor Control Board, 70 Pa. D. & C.2d 535 (1974).
Regulation Unconstitutional
Operator of club that features semi-nude dancing challenged a Pennsylvania Liquor Code statute and regulation that prohibit ‘‘lewd’’ entertainment at any establishment holding a liquor license; statute and regulation were facially invalid because they are substantially overbroad, in violation of First Amendment protection of expression in that the prohibition applied not only to adult entertainment venues offering nude or topless dancing for which government interest was applicable, but to artistic, theatrical and other nonadult entertainment venues for which such government interest was not applicable. 47 P. S. § 4-493(10) and 40 Pa. Code § 5.32(b) held unconstitutional. Conchatta Inc. v Miller, 458 F.3d 258, 266 (3rd Cir. 2006).
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