            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


PJD Entertainment, Inc., d/b/a                   :
Savannah’s on Hanna,                             :
                         Petitioner              :
                                                 :
                       v.                        :   No. 751 C.D. 2015
                                                 :   Argued: December 7, 2015
Department of Health, Bureau of                  :
Health Promotion and Risk                        :
Reduction,                                       :
                        Respondent               :



BEFORE:        HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                                     FILED: January 29, 2016


               PJD Entertainment, Inc., d/b/a Savannah’s on Hanna (Appellant/PJD),
petitions for review of the order of the Secretary of Health upholding the decision
by the Department of Health, Bureau of Health Promotion and Risk Reduction,
revoking the Clean Indoor Air Act (CIAA)1 Exception Permit issued to PJD on or
about February 5, 2013, finding that the establishment met the definition of a




   1
       Act of June 13, 2008, P.L. 182, 35 P.S. §§ 637.1--637.11.
“nightclub” under the law and was therefore not exempt from the CIAA’s general
prohibition against smoking in a public place.2
               PJD initially sought an exception under the CIAA on the ground that
it qualified as a Type I Drinking Establishment under Section 2 of the CIAA, 35
P.S. § 637.2(1). The Department classifies drinking establishments as either Type
I or Type II, based on the definitions provided in Section 2, subsections (1) and (2).
35 P.S. § 637.2(1)(i)-(iii) and (2)(i)-(iv). A Type I drinking establishment is one
which:
               (i)     operates pursuant to an eating place retail
                       dispenser’s license, restaurant liquor license or
                       retail dispenser’s license under the act of April 12,
                       1951 (P.L. 90, No. 21), known as the Liquor Code;
               (ii)    has total annual sales of food sold for on-premises
                       consumption of less than or equal to 20% of the
                       combined gross sales of the establishment; and
               (iii)   does not permit individuals under 18 years of age.
                       ****
                       The term does not include a nightclub.

Pursuant to Section 3 of the CIAA, an exception to the general smoking ban is
available to a “drinking establishment,” provided that the establishment “submit[s]
a letter, accompanied by verifiable supporting documentation, to the department
claiming an exception under subsection (b).” 35 P.S. § 637.3(b)(10) and (c)(1).
               PJD submitted a CIAA Exception Renewal Sales Information form to
the Department in January 2014. After the Bureau requested additional



    2
       Pursuant to Section 2 of the CIAA, a “Night Club” is “[a] public hall or hall for which
admission is generally charged and which is primarily or predominantly devoted to dancing or to
shows or cabarets as opposed to a facility that is primarily a bar, tavern or dining facility.” 35
P.S. § 637.2.



                                                2
information, PJD faxed the additional information form3 and a copy of its
Pennsylvania Restaurant Liquor License to the Bureau. Reproduced Record (R.R.)
10A-11A. Based on this information, on February 12, 2014, the Bureau issued
PJD a letter revoking its previously issued CIAA Exception Permit based on the
determination that the establishment met the definition of a nightclub (and not a
drinking establishment) under the CIAA. PJD requested reconsideration,4 which
was denied, after which it filed an appeal with the Secretary. By letter dated July
28, 2014, the Department notified PJD that it had received its appeal letter and that
the record had been certified and was available for review at the Department until
August 28, 2014.          PJD was also informed that it could submit additional
documentation with the Department up to September 8, 2014.
               On April 9, 2015, the Department, through its Acting Deputy
Secretary of Health, issued its determination and order, deciding first that, as there
were not any facts at issue, an evidentiary hearing was not needed.                          The
Department also concluded that PJD’s establishment was a “nightclub” under the
CIAA and, therefore, it could not meet the exception for a “drinking
establishment” under Section 3 of the CIAA. Accordingly, it upheld the Bureau’s
decision revoking PJD’s Exception Permit. This appeal followed.
               PJD raises three issues before this Court. PJD asserts that it had a
vested right in the Exception Permit and that it was error to revoke the permit

    3
       On this form, PJD stated that it served food; that the facility was a dance club/hall on
certain days and that it had dancing, which it described as “Entertainers/Performers”; that
entertainment was also provided by “Weekly bands (DJ’s [sic] & live)”; that admission was
charged at “[v]arious [times], depending on entertainment”; and that the hours of operation were
identical with the hours of entertainment. R.R. 10A.
     4
       PJD asserted: “We are not a nightclub . . . [we are] a Gentlemen’s Club. Any ‘dancing’
that is happening on site is only done by Entertainers/Performers, not that of patrons.” R.R. 15A.



                                                3
before its expiration. PJD also challenges the Department’s determination that it
was a “nightclub” and, therefore, not eligible for the smoking ban exemption.
Finally, PJD contends that it was entitled to an evidentiary hearing.
              PJD argues that the Department erred in not recognizing that it had a
“vested right” in the Exception Permit (until it expired on February 28, 2015),
upon which PJD relied for over a year before it was revoked. PJD asserts that, like
the landowner who is allowed to use his or her property when in good faith he or
she relied on a permit issued in error and incurred significant non-recoverable
costs, the vested rights doctrine should similarly allow it to rely on the CIAA
Exception Permit until its natural expiration on February 28, 2015.5 PJD argues
that in Turner v. Martz, 401 A.2d 585 (Pa. Cmwlth. 1979), this Court held that a
landowner could not have his sewer permit revoked even though improperly issued
because he had relied on the permit in good faith and had expended monies based
upon its validity. We disagree.
              First, we are aware of no application of the doctrine cited by PJD
outside the area of land use variances. Second, the doctrine requires that the
applicant prove that, in relying upon the permit issued in error, it incurred
“significant non-recoverable costs.” Muth v. Ridgway Twp. Mun. Auth., 8 A.3d
1022, 1026 (Pa. Cmwlth. 2012) (citation omitted). PJD has not averred that it



    5
      PJD cites for support Muth v. Ridgway Twp. Mun. Auth., 8 A.3d 1022 (Pa. Cmwlth. 2010);
Chateau Woods, Inc. v. Lower Paxton Twp., 772 A.2d 122 (Pa. Cmwlth. 2001); and Hitz v.
Zoning Hearing Bd. of South Annville Twp., 734 A.2d 60 (Pa. Cmwlth. 1999). These cases all set
forth the “vested rights doctrine,” which “permits a landowner to use his property without
obtaining a variance. However, the doctrine only applies to those cases where the applicant, in
good faith, relies upon [some permission] issued in error and incurs significant non-recoverable
costs.” Muth, 8 A.3d 1022, 1026 (citing Chateau Woods, 772 A.2d at 126).



                                               4
incurred any expenses, let alone “significant” expenses. Accordingly, even if not
waived, we find no merit to PJD’s vested rights argument.
             Next, PJD asserts that the Department erred in concluding that its
establishment was a “nightclub” and, therefore, not exempt from the general ban
on smoking in a public place under the CIAA.            PJD argues that it is not a
“nightclub” as defined in the CIAA. Section 2 of the CIAA defines nightclub as:
“[a] public hall or hall for which admission is generally charged and which is
primarily or predominantly devoted to dancing or to shows or cabarets as opposed
to a facility that is primarily a bar, tavern or dining facility.” 35 P.S. § 637.2. PJD
avers that because it operates pursuant to a restaurant liquor license, has total
annual sales of food for on-premises consumption of less than or equal to 20% of
the combined gross sales of its establishment, and it does not permit individuals
under 18 years of age in the premises, it meets the definition of a “drinking
establishment” under Section 2(1)(i) – (iii) of the CIAA, 35 P.S. § 637.2(1)(i)-(iii).
             What PJD attempts to ignore is that even if the other criteria for a
drinking establishment are met, a nightclub is specifically excluded from that
definition under Section 2 of the CIAA.         See 35 P.S. § 637.2 (Definitions,
“Drinking Establishment” – “The term does not include a nightclub”). The
statutory language clearly demonstrates that the General Assembly intended that
facilities that focus on dancing, shows, or entertainment would be required to
comply with the general ban on smoking, whereas facilities that focus
predominantly on drinking could be exempted from the general ban on smoking.
             The Department concluded that PJD operates as a “nightclub” because
PJD’s primary purpose is to provide entertainment in the form of nude or partially
nude dancers and weekly bands and/or DJs, for which it generally charges



                                          5
admission. As noted above, information provided to the Department by PJD stated
that the facility was a dance club/hall on certain days and that it had dancing,
which it described as, “Entertainers/Performers”; that entertainment was also
provided by “Weekly bands (DJ’s & live)”; that admission was charged at
“[v]arious [times], depending on entertainment”; and that the hours of operation
were identical with the hours of entertainment. R.R. 10A. We agree with the
Department that the plain language of the operative statutory phrase is clear on its
face and free from ambiguity. Moreover, an agency is granted deference with
respect to its interpretation of the laws it is charged with enforcing. See House of
Leung, Inc. v. Dep’t of Health, 38 A.3d 986, 989 (Pa. Cmwlth. 2011). When a
statute fails to define a term, the term’s ordinary usage applies, and dictionaries
provide substantial evidence of a term’s ordinary usage. Id. at 990. Considering the
ordinary usage of the terms in the CIAA, we conclude, as did the Department, that
because PJD’s primary or predominant purpose is in providing such entertainment
and is not that of a bar, tavern, or dining facility, Savannah’s on Hanna is by
definition a “nightclub” under the CIAA and, therefore, it cannot meet the
exception as a “drinking establishment.”
            Finally, PJD contends that the Department erred by not conducting an
evidentiary hearing as requested by PJD to allow it an opportunity to be heard and
examine witnesses. PJD asserts that the right to a hearing is especially critical
where a permit has been issued and relied upon for over a year before being
revoked without any opportunity to be heard. Although PJD concedes that the
record “can be supplemented with paperwork and various documentation,” it
argues that, without a hearing, it was unable to “confront and examine the person”
from the Bureau responsible for not only the original decision to issue the permit



                                           6
but also the later decision to revoke it. This argument is without merit. PJD asserts
that it sent a letter to the Department in July of 2014 requesting a hearing, but no
such letter is in the certified record. Nor does it appear that Appellant made any
attempt to supplement the certified record, although it was given an opportunity to
do so. Even if it did request a hearing, however, a hearing was properly denied.
             Section 504 of the Administrative Agency Law, 2 Pa. C.S. § 504,
provides:

             No adjudication of a Commonwealth Agency shall be
             valid as to any party unless he shall have been afforded
             reasonable notice of a hearing and an opportunity to be
             heard. All testimony shall be stenographically recorded
             and a full and complete record shall be kept of the
             proceedings.
However, we have not construed Section 504 as requiring an evidentiary hearing in
every case. See Millcreek Manor v. Dep’t of Pub. Welfare, 796 A.2d 1020, 1028
n.11 (Pa. Cmwlth. 2002). Where no issue of fact is to be decided, an evidentiary
hearing is not necessary. Sal’s Rest. v. Dep’t of Health, 67 A.3d 57, 61 (Pa.
Cmwlth. 2013) [citing Gruff v. Dep’t of State, 913 A.2d 1008 (Pa. Cmwlth. 2006)].
             In the matter sub judice, we have reviewed the record and are unable
to conclude that PJD has asserted a disputed material fact requiring an evidentiary
hearing.    Because the issue presented, whether Savannah’s on Hanna is a
“nightclub” ineligible for exemption under the CIAA, is a legal issue, not a factual
one, an evidentiary hearing was not required in this case. Sal’s Rest., 67 A.3d at 61.
             For all of the foregoing reasons, we affirm.



                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Judge

                                          7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


PJD Entertainment, Inc., d/b/a           :
Savannah’s on Hanna,                     :
                         Petitioner      :
                                         :
                   v.                    :     No. 751 C.D. 2015
                                         :
Department of Health, Bureau of          :
Health Promotion and Risk                :
Reduction,                               :
                        Respondent       :


                                      ORDER


            AND NOW, this 29th day of January, 2016, the order of the
Department of Health, Bureau of Health Promotion and Risk Reduction, is hereby
AFFIRMED.



                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Judge
