Fantastic Plastic, Inc. v. City of Pittsburgh
| Decision Date | 22 September 1977 |
| Parties | FANTASTIC PLASTIC, INC., a Pennsylvania Corporation, v. The CITY OF PITTSBURGH, a Municipal Corporation, Peter F. Flaherty, Mayor and Public Safety Director of the City of Pittsburgh, and Robert Coll, Superintendent of Police of the City of Pittsburgh. Appeal of CITY OF PITTSBURGH et al. |
| Court | Pennsylvania Commonwealth Court |
Argued May 3, 1977.
Eugene B. Strassburger, III, Deputy City Sol Mead J. Mulvihill, Jr., City Sol., Pittsburgh, for appellant.
John L. Laubach, Jr., Stevens, Clark, Laubach & Semple Pittsburgh, for appellee.
Before BOWMAN, President Judge, and CRUMLISH, Jr., WILKINSON MENCER, ROGERS and BLATT, JJ.
Fantastic Plastic, Inc. (Plastic) is a discotheque in the City of Pittsburgh where patrons are permitted to bring onto the premises intoxicating beverages for their own consumption. For some time, officials of the City have been of the view that the business operation conducted by Plastic is somewhat less than fantastic, as evidenced in part by disputes over entertainment and dance-hall licenses and zoning matters. [1] This appeal has been taken from a decision of the Court of Common Pleas of Allegheny County which held that the City's bottle-club ordinance, directed at Plastic's operation, was unconstitutional. Since we agree with that decision, we will not disturb the grant of an injunction restraining enforcement of the ordinance by the court below.
Prior to the enactment of Ordinance No. 18, Series 1976, the discotheque had operated by charging an admission fee and serving food, soft drinks, and mixes. In 7 months of operations, it had over 47,000 admissions and experienced no vandalism or disorder. Minors were excluded from the club, [2] a dress code was enforced, and a security staff was maintained.
Ordinance No. 18 provides:
'Person' shall include the singular and the plural and shall mean any person, firm, partnership, association, corporation, company or organization of any kind.
'Bottle Club' shall mean a place of assembly owned, maintained or leased, for pecuniary gain, in which no intoxicating liquors are sold, but where patrons are permitted to bring intoxicating liquors upon the premises for their own use and consumption.
Since the ordinance made Plastic's operation as a bottle club illegal, a complaint in equity was filed against the City, the Mayor, and the Superintendent of Police (City).
Before the lower court, Robert Coll, Superintendent of Police, offered the opinion that bottle clubs constitute some form of danger to the health, safety, and welfare of the community. No competent evidence was offered to corroborate this conclusion. The court below held that Ordinance No. 18 was an improper exercise of the police power, and the City brought this appeal.
Our consideration of the police-power question begins with an examination of the Twenty-first Amendment to the Federal Constitution. U.S.Const. amend. XXI. Where liquor is involved, this amendment has conferred on the states something more than the normal state authority over public health, welfare, and morals. California v. La Rue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972). The states may absolutely prohibit the manufacture, sale, transportation, or possession of intoxicants. Ziffrin, Inc. v. Reeves, 308 U.S. 132, 60 S.Ct. 163, 84 L.Ed. 128 (1939). Under such broad authority state regulation of bottle clubs has been upheld in other jurisdictions. [3]
In Pennsylvania, because of the evils generally associated with liquor, see Tahiti Bar, Inc. Liquor License Case, 395 Pa. 355, 150 A.2d 112 (1959), public policy favors restriction of liquor sales. J. C. Grille, Inc. Liquor License Case, 181 Pa.Super. 456, 124 A.2d 659 (1956). Indeed, regulation of such sales is the primary focus of the Liquor Code [4] (Code). The Code also contemplates, however, regulation of the use or possession of alcoholic beverages. See title of the Code; Commonwealth v. Stofchek, 322 Pa. 513, 185 A. 840 (1936); cf. Section 104(c) of the Code, 47 P.S. § 1-104(c) (purpose of the Code). Nevertheless, the Code does not contain any regulations on the type of possession involved here; i. e., possession in a bottle club as defined by the ordinance.
In light of this state policy, Ordinance No. 18 must be examined to determine whether it is a proper exercise of the police power. [5] As was stated in Gambone v. Commonwealth, 375 Pa. 547, 551-52, 101 A.2d 634, 637 (1954):
See also Commonwealth v. Barnes & Tucker Co., 472 Pa. 115, 371 A.2d 461 (1977).
Initially, we note that the testimony adduced here failed to disclose that the ordinance was related to the public good. Superintendent Coll's opinion was the only competent evidence indicating a "menace" to the public, and the lower court was not persuaded by this opinion.
More importantly, the prohibitory nature of the ordinance was unreasonable and clearly beyond the necessities of the case. Since the public policy of this Commonwealth is adequately served by regulation of the sale, use, and possession of liquor, prohibition of bottle clubs is not the proper method of achieving the City's objective. [6] This prohibitory nature acts oppressively to destroy property rights. See Lutz v. Armour, 395 Pa. 576, 151 A.2d 108 (1959). This case is thus analogous to zoning cases where the total prohibition of a lawful use has been struck down. See, e. g., Norate Corp., Inc. v. Zoning Board of Adjustment, 417 Pa. 397, 207 A.2d 890 (1965); Amerada Hess Corp. v. Zoning Board of Adjustment, 11 Pa.Cmwlth. 115, 313 A.2d 787 (1973). Therefore, we must conclude that Ordinance No. 18 was an invalid exercise of the police power.
In light of this holding, we need not reach the other constitutional arguments raised by Plastic. The City has also argued that the lower court failed to act impartially by rendering a decision before a supplemental brief was due and by ruling erroneously on the admissibility of certain items of evidence. We have carefully examined these contentions and find no prejudicial error.
Decree affirmed.
KRAMER, J., did not participate in the decision in this case.
AND NOW, this 22nd day of September, 1977, the decree of the Court of Common Pleas of Allegheny County, declaring Ordinance No. 18 Series 1976, of the City of Pittsburgh unconstitutional and enjoining its enforcement, is hereby affirmed.
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