Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Hospitality Investments of Philadelphia, Inc.
Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Hospitality Investments of Philadelphia, Inc.
Opinion of the Court
OPINION OF THE COURT
This appeal arises from a finding by the Court of Common Pleas of Philadelphia County that Section 498 of the Pennsylvania Liquor Code, 47 P.S. § 4-498, is unconstitutional. This is an appeal as of right directly to this Court, as authorized by 42 Pa.C.S.A. § 722(7), since, under that section we have exclusive jurisdiction of appeal from final orders of courts of common pleas in cases where such a court has held any statute to be unconstitutional. For the reasons set forth below, we reverse.
Appellant, the Bureau of Liquor Control Enforcement (“Bureau”), is responsible for enforcing the Pennsylvania Liquor Code, 47 P.S. § 1-101, et seq. Appellee (hereinafter the “Licensee”) is the holder of a restaurant liquor license issued by the Pennsylvania Liquor Control Board (“Board”). In late 1989, the Bureau issued a citation against the Licensee charg
The administrative law judge who heard the case found that the Licensee had violated Section 498 and she imposed a fine of $250.00 for this violation. She also found that she had no jurisdiction to address the constitutional issue. The Pennsylvania Liquor Control Board affirmed. The Licensee appealed to the Court of Common Pleas of Philadelphia County and oral argument was held on July 28, 1991. At that argument, the Licensee contended that the Bureau failed to establish that the policy behind the price advertising prohibition of Section 498 outweighed its constitutional right to commercial free speech. The trial judge accepted this argument and, by order dated July 23, 1991, granted the Licensee’s appeal and reversed the order of the Board. On June 26, 1992, the trial judge issued a one page memorandum opinion concluding that Section 498 violated the Pennsylvania Constitution. The trial judge otherwise noted that his reasoning appeared on the record.
The Bureau appealed to the Commonwealth Court and the matter was subsequently transferred to this Court pursuant to our exclusive jurisdiction under 42 Pa.C.S.A. § 722(7), as noted above.
The Licensee herein argues that its right to commercial free speech as guaranteed under the First Amend
In Tahiti Bar, Inc. Liquor License Case, 395 Pa. 355, 150 A.2d 112, appeal dismissed, 361 U.S. 85, 80 S.Ct. 159, 4 L.Ed.2d 116 (1959), this Court held that an individual has no constitutionally protected right to engage in the business of selling alcoholic beverages. Rather, the authority to sell alcoholic beverages is a privilege granted by the State. Accordingly, a state may impose conditions and limitations on that privilege. We held that regulation of the liquor business is required only to bear a reasonable relation to the evil sought to be controlled. Since an individual who accepts the privilege of holding a liquor license is deemed to consent to the conditions and restrictions attached to that license, the usual tests, still applicable in other situations and used to evaluate constitutional challenges, are not involved. See also,
It is clear here that Section 498, which prohibits price advertising of alcoholic beverages, is reasonably related to permissible goals of the legislature in the area of alcohol control. The Bureau argues, and we have no reason to doubt their contention, that Section 498, along with other sections of the Liquor Code, is intended to restrain and discourage the consumption of alcoholic beverages. This is a legitimate legislative purpose. It is reasonable to accept that banning price advertising is prima facie consonant with such a purpose. By its very nature, price advertising (typically discount price advertising) is designed to encourage consumption by promoting and increasing the sale of alcoholic beverages. A string of witnesses or statistical studies áre not needed to prove this point. In short, we find that Section 498 bears a reasonable relation to legitimate legislative goals in the area of alcohol control and since this is so, the incidental curtailment of the right of commercial free speech is justified where acquisition of a liquor license is a privilege and not a right. A careful balancing of competing interests as is usually done in free speech cases is not required.
Three United States Supreme Court cases in the area of liquor license control clinch the argument. In California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972); New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981); and City of Newport, Ky. v. Iacobucci, 479 U.S. 92, 107 S.Ct. 383, 93 L.Ed.2d 334 (1986), the United States Supreme Court was faced with a challenge to a local liquor licensing law or regulation prohibiting live sexual entertainment or nude dancing in establishments licensed to sell liquor. In each case, the court rejected the licensees’ arguments based on the free speech guarantees of the First and Fourteenth Amendments and the court did not engage in the traditional First Amendment analysis. Rather, the relevant liquor regulation was held not to be irrational (LaRue); was held to be a valid attribute of the state’s power to ban the sale of alcoholic beverages entirely
The case instantly before this Court involves a restriction on commercial speech as implicated in the enforcement of the Liquor Code and we do not intend to deprecate the importance of the constitutionally protected right to commercial speech in appropriate cases. Although neither LaRue, Bellanca nor Iacobucci involved such a restriction, the applicability of those cases to the case sub judice is most compelling because commercial speech is generally accorded less protection than other forms of expression. Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, supra. It seems unnecessary to apply a rigorous First Amendment analysis where a liquor regulation is attacked on commercial speech grounds when such an analysis has not been utilized relative to speech which is usually accorded greater protection. The United States Supreme Court has held that “the Twenty-first Amendment shields restrictions on speech from full First Amendment review.” Iacobucci, 479 U.S. at 97, 107 S.Ct. at 386.
In conclusion, upon carefully reviewing LaRue, Bellanca and Iacobucci two points stand out. First, the Twenty-First Amendment gives a state broad authority and, hence, there is an “added presumption of validity” when the state regulates in the area of liquor sales. Second, the reasonable relationship test is relevant to determining constitutionality. Constitutionally protected speech may be restricted because the law in question is related to the regulation of liquor.
Accordingly, we find Section 498 to be a valid exercise of Pennsylvania’s right to regulate the sale and consumption of alcohol. The order of the Court of Common Pleas of Philadelphia County is reversed.
. A review of the record shows that the Judge’s few remarks are inadequate and contain no reference to any section of the Pennsylvania Constitution.
. The Pennsylvania Constitution’s guarantee of free speech is involved in the Pastor decision.
Dissenting Opinion
dissenting.
I dissent. The majority holds that a state has the power under the Twenty-First Amendment to the United States Constitution to regulate the sale and consumption of alcohol; that there is no constitutional right to engage in the business of selling alcoholic beverages; that the state may impose reasonable conditions and limitations on the sale of alcoholic beverages; and that “the usual tests” concerning the constitutional validity of these conditions and limitations are not involved because “an individual who accepts the privilege of holding a liquor license is deemed to consent to the conditions and restrictions attached to the license.” Since discouraging consumption of alcoholic beverages is a legitimate legislative purpose, and since banning price advertising “bears a reasonable relation to legitimate legislative goals,” any curtailment of free speech which results, the majority reasons, is “justified where acquisition of a liquor license is a privilege and not a right.”
While it is true that there may be no federally protected right of commercial speech on the facts of this case under the First Amendment to the United States Constitution, it is equally certain under our decision in Insurance Adjustment Bureau v. Insurance Commissioner that there are rights under Article I, Section 7 of the Pennsylvania Constitution:
We hold, therefore, that the Pennsylvania Constitution, Article I, Section 7, will not allow the prior restraint or other restriction of commercial speech by any governmental agency where the legitimate, important interests of government may be accomplished practicably in another, less intrusive manner.
518 Pa. 210, 225, 542 A.2d 1317, 1324 (1988)
Moreover, there is no presumption of validity of a liquor regulation or any governmental regulation which restricts commercial speech. In Insurance Adjustment Bureau, we stated:
We note our agreement with the Bureau that in cases involving the constitutional challenge to a restriction on commercial speech which is not false or deceptive, “The party seeking to uphold a restriction of commercial speech carries the burden of justifying it.”
Id. at 219, n. 5, 542 A.2d at 1321, n. 5. (Citations omitted.)
Thus, I would remand the case for a determination of whether the Commonwealth has met its burden of justifying its regulation of commercial speech by establishing that there is no less intrusive way in which its legitimate and important purpose practically can be achieved.
. Article I, Section 7 provides, in pertinent part:
The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.
Dissenting Opinion
dissenting.
I respectfully dissent. The majority opinion cites to In re Tahiti Bar, Inc., 395 Pa. 355, 150 A.2d 112 (1959), to support its theory that since an individual who accepts the privilege of holding a liquor license is deemed to consent to the conditions and restrictions attached to that license, the usual tests, still applicable in other areas and used to evaluate constitutional challenges, are not involved. The majority opinion goes on to assert that the Twenty-first Amendment to the United States Constitution allows the Commonwealth to substantially regulate liquor advertisement in Pennsylvania without meaningful regard for the free speech interests of those engaged in the
Restrictions on commercial speech, however, are generally much more rigorously scrutinized than the majority opinion seems willing to concede. Commercial speech, such as advertising, has been given substantial protection under the First Amendment to the U.S. Constitution and under Article 1, Section 7 of the Pennsylvania Constitution. See, e.g., Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); Insurance Adjustment Bureau v. Insurance Commissioner, 518 Pa. 210, 542 A.2d 1317 (1988). A constitutional free speech analysis, then, is likewise required of us in the instant matter.
Prior to 1976, Tahiti Bar, supra, 395 Pa. 355, 150 A.2d 112, was in keeping with the traditional view that purely commercial advertising was not entitled to any First Amendment protection and could therefore be subjected to governmental regulation in the same way as any other type of business activity. See Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942) (the Constitution imposes no restraint on government with respect to commercial advertising). However, after the U.S. Supreme Court expressly extended rigorous First Amendment protection to commercial
First, the Supreme Court has repeatedly affirmed the principle that neither the text nor the history of the Twenty-first Amendment suggests that it in any way limits the exercise of established individual constitutional rights where the sale or use of liquor is concerned. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (equal protection rights not limited by the implication of the Twenty-first Amendment); Wisconsin v. Constantineau, 400 U.S. 483, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) (the Twenty-first Amendment does not permit a state to regulate alcohol consumption at the expense of procedural due process). Indeed, the Twenty-first Amendment was intended simply to insulate state regulation of liquor from potential federal Commerce Clause objections: “[o]nce passing beyond consideration of the Commerce Clause the relevance of the Twenty-first Amendment to other constitutional provisions becomes increasingly doubtful.” Craig 429 U.S. at 205-06, 97 S.Ct. at 461. Further, in the cases cited by the majority opinion (La Rue, 409 U.S. 109, 93 S.Ct. 390, Iacobucci 479 U.S. 92, 107 S.Ct. 383, and Bellanca, supra, 452 U.S. 714, 101 S.Ct. 2599), the Twenty-first Amendment served only to buttress the states’ standing to regulate live, explicitly sexual entertainment at establishments licensed to dispense liquor; the Twenty-first Amendment did not function in those cases to enhance the states’ ability to curtail expressly protected constitutional rights. Id. at 207 (distinguishing La Rue, supra, 409 U.S. 109, 93 S.Ct. 390).
In none of those federal cases did the Supreme Court rely exclusively on the state’s authority under the Twenty-first
Accordingly, the regulation in the instant case should be analyzed no differently than are other governmental burdens on commercial speech. See Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, 478 U.S. 328, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986) (applying customary commercial speech standards to casino gambling advertising.) In Insurance Adjustment Bureau, supra, this Court analyzed a commercial speech constitutional challenge to an amendment to the public adjuster and public adjuster solicitor law prohibiting solicitation of business by public adjusters or public adjuster solicitors within 24 hours of a disaster or fire. The Court developed a method of analysis by which it first scrutinized the challenged regulations pursuant to the minimum standards of analysis and substantive protection as required
Proceeding with the Insurance Adjustment Bureau Court’s method of analysis, the First Amendment requires that the party seeking to uphold a restriction on commercial speech carries the burden of justifying it. Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 70, n. 20, 103 S.Ct. 2875, 2882 n. 20, 77 L.Ed.2d 469 (1983). The First Amendment also requires courts to subject state limitations on commercial speech to an intermediate standard of review and uphold those limitations only if the state carries its burden of proving that (1) the challenged regulation directly advances (2) a substantial governmental interest (3) in a way that is no more restrictive than necessary to achieve that objective. Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Conceding the second prong of the test that the Commonwealth has a substantial interest in promoting the public health, safety and welfare, the Commonwealth in the instant case must first have shown that the advertising limitation at issue directly advances that interest. To succeed, the Commonwealth must have demonstrated that its ban on advertising the price of any malt beverage, cordial, wine or distilled liquor directly reduces the consumption of such liquor and, thereby, the evils associated with such consumption. To satisfy the third prong of the Central Hudson test, the Commonwealth must have shown that the regulation is written or applied no more restrictively than necessary to achieve its asserted interest.
In short, the Commonwealth failed to shoulder its burden' regarding even the minimum standards of analysis and substantive protection as required by the U.S. Supreme Court and the federal constitution. Accordingly, at a minimum, this case should be remanded back to the trial court to allow the Commonwealth to develop the record, if it can, with evidence that (1) a ban on advertising liquor prices directly reduces the consumption of such liquor and (2) the regulation is written or applied no more restrictively than necessary to achieve its asserted interest.
Moreover, the litigants should utilize the analytical tool defined by this Court in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991) in order to allow the trial court to thoroughly determine whether the resolution of the particular issue in question is more appropriately treated pursuant to the Pennsylvania constitution or the United States constitution. Accordingly, the litigants should brief and analyze (1) the text of Article I, Section 7 of Pennsylvania constitution; (2) the history of that provision; (3) relevant caselaw from Pennsylvania and from other jurisdictions regarding commercial speech and state regulation of liquor advertising; (4) policy considerations, including unique issues of state and local concern; and (5) the impact on modern Pennsylvania jurisprudence. Id. at
The majority opinion simply goes too far in sustaining the challenged regulation without an analysis of the free speech protections afforded the licensee under the First Amendment of the federal constitution or under Article I, Section 7 of the Pennsylvania constitution. Commercial free speech warrants more protection than the majority wishes to confer.
. The other cases upon which the majority relies (Iacobucci, 479 U.S. 92, 107 S.Ct. 383 (1986) and Bellanca, 452 U.S. 714, 101 S.Ct. 2599 (1981), supra), in no way undermine this notion that the Twenty-first
. Hude is significant because it highlights the notion that in liquor control cases, Pennsylvania courts must first determine the inherent value of the speech at issue and then evaluate whether the state's authority to regulate liquor commerce is sufficient to override that particular class of speech.
. The majority opinion's assertion that live, sexually-explicit entertainment is generally accorded greater constitutional protection than commercial speech profoundly misinterprets federal caselaw. See Brian S. Steffey, Recent Development: Tension Between the First and Twenty-first Amendments in State Regulation of Alcohol Advertising, 37 Vand.L.Rev. 1421, 1448 (1984).
. The Court determined that Article I, Section 7 of the Pennsylvania constitution does not allow the prior restraint or other restriction of commercial speech by any governmental agency where the legitimate, important interests of government may be accomplished practicably in another, less intrusive manner. Id. 518 Pa. at 225, 542 A.2d at 1324. The Court applied that standard to strike down the prohibition of solicitation of business by public adjusters or public adjuster solicitors within 24 hours of a disaster or fire as violative of Pennsylvania constitutional free speech protections. Id.
Reference
- Full Case Name
- PENNSYLVANIA STATE POLICE, BUREAU OF LIQUOR CONTROL ENFORCEMENT, Appellant, v. HOSPITALITY INVESTMENTS OF PHILADELPHIA, INC., Appellee
- Cited By
- 25 cases
- Status
- Published