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2013 Pennsylvania Attorney General Reports and Opinions 1 (2013)

handle is hein.sag/sagpa0063 and id is 1 raw text is: COMMONWEALTH OF PENNSYLVANIA OFFICE OF ATTORNEY GENERAL 16TH FLOOR HARRISBURG, PA 17120 STRAWBERRY SQUARE KATHLEEN G. KANE HARRISBURG, PA 17120 ATTORNEY GENERAL (717) 787-3391 July 11, 2013 Joseph E. Brion, Chairman Liquor Control Board 517 Northwest Office Building Harrisburg, PA 17124 Re: Request for Legal Advice Concerning the Citizenship and Residency Requirements for Licensure under the Liquor Code Dear Chairman Brion: On behalf of the Pennsylvanian Liquor Control Board (Board), you have requested an opinion regarding the Board's enforcement responsibility for the citizenship and residency prerequisites to licensure contained in the Liquor Code (Code), 47 P.S. §1-101 et. seq. With regard to those sections of the Code which require an applicant for licensure be a United States citizen, this office has rendered two previous opinions on the subject. Official Opinion No. 23 of 1974 advised the Board not to take any action to enforce the citizenship requirement for corporate licensees with resident alien officers contained in section 4-403 of the Code, as it was unconstitutional under the Fourteenth Amendment of the United States Constitution. In rendering the opinion, the office relied upon United States Supreme Court jurisprudence, which establishes that classifications based on alienage are inherently suspect and the subject of close judicial scrutiny. See Graham v. Richardson, 403 U.S. 365 (1971) (striking down a Pennsylvania statute which conditioned state welfare benefits on United States citizenship). Only when a state can demonstrate a compelling interest will a citizenship requirement be upheld. Id. The Fourteenth Amendment requires that all persons lawfully in this country possess an equality of legal privileges with all citizens under non-discriminatory laws. Takahashi v. Fish and Game Commission, 334 U.S. 410, 420 (1948) (holding that California could not refuse to issue commercial fishing licenses to resident aliens which were otherwise available to non-alien state residents). As a result, this office concluded that discrimination against alien residents is obviously irrational and invidious and ultimately unenforceable. 0.0. No. 23 at pg. 83, Op. Pa. Atty. Gen. (April 30, 1974). Also in 1974, this office issued Official Opinion No. 48, which clarified whether the ruling in Official Opinion No. 23 applied to foreign corporations having nonresident alien officers or stockholders. While we acknowledged that nonresident aliens are not expressly protected by the United States Constitution or Federal Civil Rights Acts, there was no need to require that the citizenship provisions of the Liquor Code be treated as unconstitutional when

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