Chernov Enterprises, Inc. v. Scuncio, 747-M

• Decision Date: 24 July 1970
• Docket Number: No. 747-M,747-M
• Citation: 268 A.2d 424,107 R.I. 439
• Parties: CHERNOV ENTERPRISES, INC. v. Joseph C. SCUNCIO et al., members of the Bureau of Licenses. P.
• Court: Rhode Island Supreme Court

Page 424

268 A.2d 424

107 R.I. 439

CHERNOV ENTERPRISES, INC.

v.

Joseph C. SCUNCIO et al., members of the Bureau of Licenses.

No. 747-M.P.

Supreme Court of Rhode Island.

July 24, 1970.

[107 R.I. 444] Seth Gifford, Providence, for petitioner.

Edward Malloy, Providence, for respondents.

OPINION

JOSLIN, Justice.

Chernov Enterprises, Inc., a Rhode Island corporation, and the holder of a Class B retail liquor license, owns and operates a restaurant and night club known as 'The Warehouse' at 95 India Street in the City of Providence. On May 7, 1969, Chernov applied to the Providence Bureau of Licenses for permission to have 'Pacific Gas and Electric,' a rock group, and Neil Young, a singer, perform respectively at the Warehouse on May 11 and May 18, 1969, both Sundays, and to charge an admission fee for the shows. The applications were denied.

Notwithstanding that the case was then moot in the sense that the dates for which the applications were filed had long since passed, the possiblility that the denials were 'capable of repetition, yet evading review' persuaded us to issue the writ. Southern Pacific Terminal Co. v. Interstate Commerce Comm., 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310, 316; Accord, Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1. We decide only what kind of entertainment is permissible on the premises of a Class B retail liquor establishement.

The controlling statutory framework is confusing. There is the legislation dealing with shows, exhibitions and performances. (G.L.1956, chap. 22 of title 5, as amended.) Section 1 of that chapter as amended, assigns the responsibility for licensing and regulating in those areas to the respective cities and towns of the state, and sec. 5, as amended, permits prohibition or suppression only if the premises proposed to be used'presents a danger to the public health or safety,' or if the 'performance, show or exhibition is obscene.' ( § 5-22-5 as amended by P.L.1966, chap. 260, sec. 1.) A further provision, penal rather than regulatory in form, if not in substance, reads:

'Whoever offers to view, sets up, sets on foot, maintains or carries on a theatrical exhibition, public show, concert or dance-hall exhibition of any description, at which lager beer or other intoxicating liquors are sold or exposed for sale with his consent, except as provided in title 3, shall be fined not exceeding five hundred dollars ($500) or be imprisoned not exceeding six (6) months.' (Emphasis supplied.) ( § 5-22-20.)

Title 3 is the legislation which pertains to alcoholic beverages. Chernov holds a Class B retailer's liquor license. The rights of and the limitations upon such a license are delineated in § 3-7-7. It may issue only to a duly licensed bonafide tavernkeeper or victualler; it permits the sale of alcoholic beverages for consumption on the premises, but only at tables or lunch bars where food is served; and it prohibits the holding of dances within the licensed permises unless a proper permit therefor has been obtained from the local licensing authorities.

In support of its position the Bureau first compares that portion of § 3-7-7 relating to the holding of dances with the statutes governing Class C ¹ and Class D ² retail liquor licenses. Neigher of those contains any reference authorizing entertainment of any kind to be held on the premises. Then the Bureau compares the Class B statutory provisions with those controlling Class I ³ and Class J ⁴ retail licenses. Insofar as they refer to entertainment, they permit 'music, dancing and other forms of entertainment' on the premises of a Class I licensee, and any kind of entertainment on Class J premises so long as it is in conformity with local ordinances.

The Bureau reads the entertainment provisions of the liquor licensing laws (title 3) and the exhibition and performance provisions (chap. 22 of title 5) in pari materia. It argues that together they disclose a clear legislative intention to regularte and to limit the kinds and types of entertainment which may take place at establishments where on-the-premises consumption of alcoholic beverages is permitted. Then, after contrasting each of the several liquor law provisions with each of the others, it concludes that the holding of dances is the only kind of entertainment which may be authorized on a Class B retail licensee's premises.

The Bureau's argument might be more persuasive did it not run counter to the administrative construction which title 3 and its precursors have received since the repeal of article XVIII and the adoption of article XXI of amendments to the Constitution of the United States. So construed, a Class B licensee has over the years been permitted to provide its partrons with a variety of entertainment including shows, performances, or exhibitions by vocalists, pianists, guitarists, musical combinations of various types, 'M.C.'s,' exotic dancers, folk singers, other kinds of singing groups and the like. ⁵ The only limitations upon what might be offered, except as hereinafter indicated, apparently have been that the entertainment, whatever its nature, be incidental to the principal business of providing food and drink to patrons, that no separate charge be made for it, that the licensing provisions of chap. 22 of title 5, be complied with, and that the safety and obscenity standards established by § 5-22-5 as amended, be satisfied.

That long continued practice, particularly where the pertinent statutes are not clearly susceptible to a single meaning, is entitled to great weight in determining legislative intention. Stidhams v. McPherson, R.I., 259 A.2d 114, 115; City of...