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PETTY LIQUOR LICENSE CASE (11/12/69)

decided: November 12, 1969.

PETTY LIQUOR LICENSE CASE


Appeal from order of Court of Common Pleas of Cameron County, Sept. T., 1968, No. 24, and No. 78 of 1968, in matter of suspension of restaurant liquor license No. R-10946 and amusement permit No. AP-11611, issued to Douglas and Gretchen Petty, trading as The Cottage.

COUNSEL

Donald D. Doerr, Special Assistant Attorney General, with him Thomas J. Shannon, Assistant Attorney General, and William C. Sennett, Attorney General, for Pennsylvania Liquor Control Board, appellant.

No argument was made nor brief submitted for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Wright, P. J. Dissenting Opinion by Cercone, J.

Author: Wright

[ 216 Pa. Super. Page 56]

On October 29, 1968, after hearing on Citation No. 1098 for 1968, the Pennsylvania Liquor Control Board entered an order suspending for a period of sixty days the restaurant liquor license issued to Douglas and Gretchen Petty for premises known as "The Cottage" in the Borough of Emporium. This order was based upon four findings of fact set forth in the footnote.*fn1 The licensees appealed to the Court of Common Pleas of Cameron County -- Criminal, which tribunal entered an order, June 27, 1969, reducing the period of suspension

[ 216 Pa. Super. Page 57]

    from sixty to thirty days. The Board has appealed to this court.

The history of the licensed premises includes four prior citations which resulted in suspension or fine. The present citation was based upon an investigation during the months of April and May 1968. In reducing the period of suspension, the court below sustained the Board's findings (Nos. 3 and 4) as to sales and dancing after hours, but ruled as a matter of law that the Board was without authority to suspend the license on a finding (No. 2) of conducting the establishment "in a noisy and/or disorderly manner". With regard to the Board's finding (No. 1) concerning sales to visibly intoxicated persons, the court below concluded that the evidence "was circumstantial and fell far short of sustaining the charge".

Section 471 of the Liquor Code, Act of April 12, 1951, P. L. 90, as amended, 47 P.S. 4-471, reads in pertinent part as follows (italics supplied): "Upon learning of any violation of this act or any laws of this Commonwealth relating to liquor, alcohol or malt or brewed beverages, or of any regulations of the board adopted pursuant to such laws . . . or upon any other sufficient cause shown, the board may . . . cite such licensee to appear before it . . . Upon such hearing, if satisfied that any such violation has occurred or for other such sufficient cause, the board shall immediately suspend or revoke the license . . ." The court below reasoned that there is no section in the Liquor Code which specifically relates to the conduct of an establishment "in a noisy and/or disorderly manner", nor is there any regulation of the Board in that regard. It is important to note that the court below did not find that the premises were not conducted in a noisy and/or disorderly manner.

In Reiter Liquor License Case, 173 Pa. Superior Ct. 552, 98 A.2d 465, this Court expressly stated that conducting

[ 216 Pa. Super. Page 58]

    the licensed premises in a noisy and disorderly manner was one of the conditions which constitute "other sufficient ...


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