Subchapter C. AMUSEMENT AND ENTERTAINMENT

§ 5.30. Definitions.

 The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

   Audio/video playback device—A device which emits a musical recording, or in the case of a video jukebox, emits a musical recording accompanied by recorded video images on a screen that does not exceed 24 inches by 30 inches.

   Event/tournament/contest—A competitive endeavor involving skill, speed, strength or endurance. The term includes a competitive endeavor involving physical attributes of contestants.

   Game—A device, such as a pinball, shuffleboard, bowling or video machine which provides the player with amusement and no other form of award excepting free plays.

   Instrumental music—Music generated by instruments played by musicians without vocal accompaniment.

   Sweepstakes—A chance promotion in which tickets or game pieces are distributed and the winner or winners are selected in a random drawing.

 (a)  Requirements.

   (1)  Under section 493(10) of the Liquor Code (47 P. S. §  4-493(10)), the Board may issue an amusement permit authorizing dancing, theatricals, floor shows and motion picture exhibitions in licensed premises, or in another place operated in connection therewith, to the holder of a retail liquor or retail dispenser license, except clubs, upon proper application and payment of the required fee.

   (2)  An application for an amusement permit may be filed with the Board at any time during the license period. Amusement permits expire with the license. Amusement permits may be extended at license validation unless the permit is revoked or subject to suspension.

   (3)  An amusement permit may be denied to a licensee against whom revocation or criminal proceedings are pending or to a licensee who, in the Board’s opinion, has failed to conduct the licensed premises in accordance with the laws of the Commonwealth. A licensee denied an amusement permit may appeal the decision of the Board by requesting a hearing before the Board within 20 days of notice of denial.

   (4)  An amusement permit may not be assigned. When the retail liquor or retail dispenser license of the licensee is transferred by the Board from one person to another, or from one place to another, the amusement permit held by the licensee may be transferred in like manner upon the payment of a filing fee of $10.

   (5)  An amusement permit is not required for television devices, audio/video playback devices, radio, instrumental music, games or events/tournaments/contests.

 (b)  Suspension or revocation of an amusement permit.

   (1)  The Office of Administrative Law Judge, upon sufficient cause shown that a licensee holding an amusement permit, or a partner, officer, director, servant, agent or employe of the licensee, has permitted in the licensed premises a violation of the Liquor Code or this title, or upon other sufficient cause shown, may, upon due notice and proper hearing being given to the licensee, suspend or revoke the permit.

   (2)  The Office of Administrative Law Judge, upon sufficient cause shown that a licensee holding an amusement permit, or a partner, officer, director, servant, agent or employe of the licensee, is guilty of, or pleads guilty to a violation of the laws of the Commonwealth before a court may after hearing suspend or revoke the amusement permit of the licensee upon the receipt of a transcript of the record in that proceeding.

   (3)  The action of the Office of Administrative Law Judge in suspending or revoking an amusement permit is final. A new amusement permit will not be approved until the expiration of 1 year from the date of revocation.

 (c)  Revocation/suspension of a permit. If the liquor or malt or brewed beverage license is revoked or suspended, for whatever reason, the amusement permit of the licensee will be similarly automatically revoked or suspended. There will be no refund made nor credit given for the unused portion of the fee paid for the permit, upon suspension or revocation.

   The provisions of this §  5.31 adopted June 26, 1952; amended May 8, 1992, effective May 9, 1992, 22 Pa.B. 2450; amended March 12, 1993, effective March 13, 1993, 23 Pa.B. 1145; amended August 29, 1997, effective August 30, 1997, 27 Pa.B. 4432; amended January 19, 2001, effective January 20, 2001, 31 Pa.B. 430. Immediately preceding text appears at serial pages (261740) and (234077) to (234078).

   Appeals

 (a)  A licensee may not use or permit to be used inside or outside of the licensed premises a loudspeaker or similar device whereby the sound of music or other entertainment, or the advertisement thereof, can be heard on the outside of the licensed premises.

 (b)  A licensee may not permit an employee, servant, agent, event/tournament/contest participant or a person engaged directly or indirectly as an entertainer in the licensed establishment or a room or place connected therewith, to be in contact or associate with the patrons in the establishment, room or place for a lewd, immoral, improper or unlawful purpose. A copy of this restriction shall be constantly and conspicuously displayed on the wall of the dressing room used by the entertainers, as well as in a conspicuous location visible to employees, servants, agents and event/tournament/contest participants.

 (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 $500. The total value of all prizes awarded in any 7-day period may not exceed $5,000.

   (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.

   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. Immediately preceding text appears at serial pages (274494) and (234079) to (234082).

   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).

 (a)  A municipality that desires exemption from the Board’s regulation regarding amplified music being heard off the licensed premises, §  5.32 (relating to restrictions/exceptions), shall, under section 493.1(b) of the Liquor Code (47 P. S. §  4-493.1(b)), file a petition with the Board, requesting approval. With its petition, the municipality shall file the following:

   (1)  A copy of the municipality’s noise ordinance currently in effect.

   (2)  The municipality’s resolution that:

     (i)   Confirms the municipality’s support of the petition to substitute the municipal noise ordinance for the Board’s regulation.

     (ii)   Cites the municipal noise ordinance.

     (iii)   States the municipality’s intention to enforce the ordinance in place of the Board’s regulations.

   (3)  A complete written description of the boundary lines for the proposed exempted noise area.

   (4)  One copy of a geographical map, the minimum size of which is 36" x 36", including the designated boundary lines of the proposed exempted noise area within the municipality.

   (5)  Three copies of the geographical map required by paragraph (4), the size of which will be 81/2" x 111/2".

   (6)  Identification of a proposed location, within the proposed exempted noise area, to be used by the Board to hold the required public hearing within the proposed exempted area.

   (7)  Identification of a local print publication of general circulation that would satisfy 65 Pa.C.S. Chapter 7 (relating to open meetings) notice requirement for announcement of the required public hearing.

 (b)  A date for a public hearing shall be set and public notice given in advance of the hearing: The hearing must comply with all notice, recording and public participation requirements of 65 Pa.C.S. Chapter 7.

 (c)  Within 60 days after receipt of the petition, the Board will disapprove the petition for an exemption in its entirety or may approve an area more limited for which the petition will be granted if the Board finds that granting the petition will have an adverse effect on the welfare, health, peace and morals of the residents living in the vicinity of the identified area; otherwise the Board will approve the petition.

 (d)  The Board may place additional conditions on the petition’s approval such as limiting the duration of the approval and any other condition the Board deems appropriate.

 (e)  There shall be a right to appeal to the court of common pleas in the same manner provided by this act for appeals from refusals to grant licenses.

 (f)  A municipality may rescind any existing exemption from the Board’s regulations regarding amplified music by notifying the Board of its intention to do so in writing, 15 days prior to the rescission date. The notice must be accompanied by an ordinance or resolution authorizing the rescission.

 (g)  A rescission of an existing exemption which does not rescind the entire exempted area shall be treated as a new petition for exemption with the Board and shall follow the procedures in this section.

   The provisions of this §  5.36 adopted November 12, 2004, effective November 13, 2004, 34 Pa.B. 6139.