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CLEM'S CAFE LIQUOR LICENSE CASE (03/21/67)

decided: March 21, 1967.

CLEM'S CAFE LIQUOR LICENSE CASE


Appeal from order of Superior Court, April T., 1965, No. 308, affirming order of Court of Quarter Sessions of Washington County, March T., 1965, No. 210, in re appeal of Clement DaPra and Antoinette DaPra, his wife, trading as Clem's Cafe, from decision of Pennsylvania Liquor Control Board.

COUNSEL

Thomas J. Shannon, Assistant Attorney General, with him Edward J. Osterman, Special Assistant Attorney General, and Edward Friedman, Attorney General, for Pennsylvania Liquor Control Board, appellant.

George B. Stegenga, with him Murphy & France, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Roberts concurs in the result. Mr. Chief Justice Bell dissents. Dissenting Opinion by Mr. Justice Musmanno.

Author: O'brien

[ 425 Pa. Page 95]

We have before us for determination, this case, in which the relevant material facts are not in dispute. The appellees, Clement DaPra and Antoinette DaPra, his wife, are the holders of a restaurant liquor license. The tavern which they operate under the trade name of Clem's Cafe, is in the Borough of Canonsburg, Washington County. A police officer of the Borough, while patrolling, on or about February 8, 1965, noticed a young man come out of the tavern carrying a bag. The officer stopped to question him, and the young man dropped the bag and ran, but was apprehended immediately. Mr. DaPra admitted that he had made the sale of 4 quarts of Iron City beer after having inquired of the age of the young man, and after he had produced a draft card issued in West Virginia. The draft card indicated that the person to whom it was issued was born February 1, 1938. Interrogation revealed that the young man's name was Charles Smith, of McDonald, Pennsylvania, and he was using a draft card issued to another person from whom he bought it. Charles Smith was turned over to the juvenile authorities, and the attendant newspaper publicity drew attention to the incident, and the Liquor Control Board issued a citation to the licensees, the appellees herein. The Board suspended the license of the appellees for 10 days, finding that: "The licensees, their servants, agents or employes sold, furnished and/or gave or permitted such sale, furnishing and/or giving of alcoholic

[ 425 Pa. Page 96]

    beverages to minors, on February 8, 1964." This order was appealed to the Court of Quarter Sessions of Washington County, which court sustained the appeal and reversed the board's order suspending the license.

The Liquor Control Board appealed to the Superior Court, which affirmed the order of the Court of Quarter Sessions of Washington County, in a per curiam opinion, Judge Montgomery dissenting. We granted allocatur.

The lower court found that "Charles Smith, a minor, went into Clem's Cafe and bought four quarts of beer. The proprietor, who was tending bar at the time, had a question as to the customer's age because he 'looked border-line'. So challenged, Smith produced a draft card showing that he was Lewis William Nestor, of Rowlesburg, West Virginia." The court also found that the description on the draft card "fits him almost perfectly", Smith. The court further noted that "Our County has a border on the State of West Virginia, and it is not at all uncommon for West Virginia license plates to be seen on the streets of Washington County towns, or for West Virginians to do business, look for work, or seek refreshment in Washington, Claysville, Canonsburg or Fredericktown. The Hearing Judge finds it a fact that Smith's artful deception did deceive Clement DaPra, licensee, on the stated date. Since Smith had a West Virginia draft card, it would have been idle to have asked him for Pennsylvania type identification, either that furnished by the Liquor Control Board or voter's registration." The court found that Mr. DaPra was a man of good reputation and that there had been no previous record of any infraction of the Liquor Control Laws. The court further held that "Under the circumstances, therefore, it seems proper to sustain the appeal. To do otherwise would be to exalt form over substance. The furnishing and perusal of the West Virginia draft

[ 425 Pa. Page 97]

    card would seem to be substantial, although not meticulous, compliance with the relevant legislation."

The citation proceedings instituted against the appellees were pursuant to the Act of April 12, 1951, P. L. 90, as amended, 47 P.S. § 1-101 et seq., known as the "Liquor Code", § 471, 47 P.S. § 4-471. The appellant charges the appellees with infraction of § 493(1), 47 P.S. § 4-493(1), of the Liquor Code, which provides: "It shall be unlawful -- (1) . . . for any licensee . . . or any employe, servant or agent of such licensee . . . to sell, furnish or give any liquor or malt or brewed beverages to be sold, furnished or given, . . . to any minor . . ."*fn1 Section 495, 47 P.S. § 4-495 of the Liquor Code provides, in pertinent part, as follows: "Section 495. Identification Cards; Licensees and State Liquor Store Employes Saved From Prosecution. (a) The board shall issue, upon application of any citizen who shall have attained the age of twenty-one years, an identification card bearing the applicant's date of birth, physical description, photograph, signature, . . . (b) Such identification card shall be presented by the holder thereof upon request of any State Liquor Store or any licensee, or the servant, agent or employee thereof, for the purpose of aiding such store licensee or the servant, agent or employe to determine whether or not such person is twenty-one years of age and upwards, when such person desires alcoholic beverage at a State Liquor Store or licensed establishment. (c) In addition to the presentation of such identification card, the agent or employe, shall require the person whose age may be in question to fill in and sign a card in the following form: . . . (e) The signed statement in the possession of a licensee or an employe of a State Liquor Store may be offered as a defense in all civil and criminal prosecutions for serving a minor, and no

[ 425 Pa. Page 98]

    penalty shall be imposed if the Liquor Control Board or the courts are satisfied that the licensee or State Liquor ...


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