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APPEAL R.G.R. ENTERPRISES (06/21/77)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 21, 1977.

IN RE: APPEAL OF R.G.R. ENTERPRISES, INC., T/A GRAEME PARK INN FROM ORDER OF PENNSYLVANIA LIQUOR CONTROL BOARD. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT

Appeal from the Order of the Court of Common Pleas of Montgomery County in case of In Re: Appeal of R.G.R. Enterprises, Inc., t/a Graeme Park Inn from the Order of the Pennsylvania Liquor Control Board, No. 29 Misc. January 1976.

COUNSEL

J. Leonard Langan, Assistant Attorney General, with him Harry Bowytz, Chief Counsel, and Robert P. Kane, Attorney General, for appellant.

Michael J. Sheridan, for appellee.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 30 Pa. Commw. Page 608]

In this appeal, we are once again faced with the question of the lower court's authority to modify a penalty imposed by the Pennsylvania Liquor Control Board (Board). After a de novo hearing, the Court

[ 30 Pa. Commw. Page 609]

    of Common Pleas of Montgomery County reduced the 30-day suspension which had been imposed by the Board to 10 days. Since the lower court modified the penalty without making significant and material changes in the facts as found by the Board, we reverse.

The Board found that an employee of R.G.R. Enterprises, Inc. (R.G.R.) served liquor or brewed beverages to a minor on November 3, 1974. The 30-day suspension was imposed after the Board found that R.G.R. had two prior citations for violation of the Liquor Code*fn1 (Code) within the last four years. R.G.R. appealed to the lower court where a hearing de novo was held pursuant to Section 464 of the Code, 47 P.S. ยง 4-464. The lower court adopted the Board's findings concerning the November incident and the prior citations and made the following additional findings:

1. The licensee has always had a policy of firing any bartender found guilty of violation of the Liquor Code.

2. The licensee fired the previous bartender on the second citation which was also for a sale to a minor.

3. The licensee fired the barmaid for the incident of November 3, 1974.

4. The licensee had no personal knowledge of the sales to minors until notified by the authorities.

Opining that the penalty imposed by the Board was too severe, the lower court reduced the suspension to 10 days based on the additional findings.*fn2

It is well settled that the lower court may not reduce the penalty imposed by the Board simply because

[ 30 Pa. Commw. Page 610]

    it is considered too severe. Pennsylvania Liquor Control Board v. Washington Sporting Club, 13 Pa. Commonwealth Ct. 257, 320 A.2d 851 (1974). As to whether or not the additional findings made by the lower court here justified a modification of the penalty, we must be guided by the following applicable standard:

The court of common pleas may change the penalty imposed by the Board 'only when it has made significant and material changes in the findings of the Board.' Noonday Club of Delaware County, Inc., Liquor License Case, 433 Pa. 458, 464, 252 A.2d 568, 572 (1968).

It is now firmly established that the lower court must make findings of fact on the material issues different from those made by the Board before the action taken by the Board can be reversed or changed. Unless the lower court's change or modification is so grounded, it cannot stand. Carver House, Inc. Liquor License Case, 454 Pa. 38, 310 A.2d 81 (1973).

Id. at 259, 320 A.2d at 852.

Findings 1, 2, and 3*fn3 above concern R.G.R.'s policy regarding employees who have violated the Code and specific instances of the application of this policy. As such, these findings do not address the questions of whether and in what manner a violation of the Code occurred. While the policy may be an admirable one, we do not consider the findings on this point significant and material. They are relevant, if at all, not on the questions of the occurrence of a violation and the circumstances surrounding it, but solely on the issue

[ 30 Pa. Commw. Page 611]

    of what penalty should have been assessed after a violation of the Code had been found. If Noonday Club, supra, and Carver House, supra, and their progeny have made one thing clear in this area, it is that the Board has the primary responsibility for fixing penalties in Code violation cases. This case is thus distinguishable from one in which the lower court found that a violation of the Code had occurred once instead of twice as found by the Board, Barone's, Inc. v. Pennsylvania Liquor Control Board, 10 Pa. Commonwealth Ct. 563, 312 A.2d 74 (1973), or a case in which the lower court's findings on how a violation of the Code occurred differed from those of the Board, Commonwealth v. M.S.G., Inc., 7 Pa. Commonwealth Ct. 540, 297 A.2d 556 (1972).

Similarly, since finding 4 was not on a material issue, it does not justify the reduction of the period of suspension. Lack of personal knowledge by the licensee or its officers of a violation of the Code is not a defense. Fraternal Order of Eagles Easton Aerie No. 111 v. Pennsylvania Liquor Control Board, 29 Pa. Commonwealth Ct. 646, 372 A.2d 1247 (1977); Alston Beer Distributor Liquor License Case, 214 Pa. Superior Ct. 32, 251 A.2d 808 (1969).

Order reversed.

Order

Now, this 21st day of June, 1977, the order of the Court of Common Pleas of Montgomery County is reversed, and the order of the Pennsylvania Liquor Control Board suspending for 30 days the hotel liquor license of R.G.R. Enterprises, Inc., for premises known as the Graeme Park Inn, is reinstated.

Disposition

Reversed. Original suspension order reinstated.


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