Appeal from order of Superior Court, April T., 1964, No. 37, reversing order of Court of Quarter Sessions of Cambria County, No. 20 Misc. Sessions June, 1963, in re appeal of Louis Speranza and Pauline Speranza from suspension of hotel liquor license No. H-3765 and amusement permit No. AP-16227.
Robert Davis Gleason, with him Gleason & Krumenacker, for appellants.
Lawrence L. Davis, Special Assistant Attorney General, for Pennsylvania Liquor Control Board, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Eagen would vacate the order of the Superior Court and would reinstate the order of the Court of Quarter Sessions of Cambria County on that court's opinion.
Appellants are holders of a hotel liquor license. As a result of an open inspection on September 22, 1962, by Liquor Control Board agents at the licensed premises, appellants' license was suspended for 20 days on the ground that "[t]he licensees, their servants, agents, or employees permitted minors to frequent the licensed premises on September 22, 1962," in violation of the Liquor Code. This statute provides, inter alia, that "[i]t shall be unlawful . . . (14) for any hotel . . . liquor licensee . . . to permit . . . minors to frequent his licensed premises . . . except minors accompanied by parents, guardians, or under proper supervision." Act of April 12, 1951, P. L. 90, § 493(14), 47 P.S. § 4-493(14).
Licensees appealed from the suspension to the court of quarter sessions. After a hearing, which incorporated the testimony before the board, and after taking additional testimony, that court sustained the appeal and directed the board to revoke the suspension. The board appealed to the Superior Court which reversed the court of quarter sessions. We granted allocatur.
The parties and the lower courts have treated this case as though the dispositive question is whether or not there was "proper supervision" of minors who "frequent" the premises. We find it unnecessary to
reach this question because, regardless of whether there was "proper supervision," the record does not support a finding that minors " frequent " the licensed premises. Such a finding would be necessary to make out a violation.
The officer who conducted the only inspection of record, on September 22, 1962, testified before the board that on that date he found 10 minors on the premises. (It was established that these minors were only having pizza and cokes and that no alcoholic beverages were requested or served.) Four of these minors testified before the board. It was uncontradicted that two of them had never been to the premises before and that the other two had been there only once or twice before with their parents. Counsel stipulated that the remaining minors would testify substantially the same as these four. In the hearing before the court of quarter sessions, licensees themselves made general statements indicating that on other occasions minors came to the licensed premises for food. But in regard to these occasions there was no evidence of names, dates, or conditions surrounding their visits. In short, outside of the finding of 10 minors on the premises on September 22, 1962, there was no specific evidence going to the necessary element of whether minors "frequent" the premises.
The board has a duty and the burden is upon it to establish the elements of a violation by a fair preponderance of the evidence. Moravian Bar, Inc. Liquor License Case, 200 Pa. Superior Ct. 231, 188 A.2d 805 (1963); Summit Hill Rod and Gun Club Liquor License Case, 184 Pa. Superior Ct. 584, 135 A.2d 781 (1957). That on one occasion there were on the premises 10 minors, ...