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COMMONWEALTH PENNSYLVANIA v. HERB ANTHONY ENTERPRISE (05/17/78)

decided: May 17, 1978.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
HERB ANTHONY ENTERPRISE, INC., E. L. GRINGO



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Pennsylvania Liquor Control Board v. Herb Anthony Enterprise, Inc. and E. L. Gringo, No. 76-12-2200.

COUNSEL

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

Marvin Allanoff, for appellee.

Judges Wilkinson, Jr., Blatt and DiSalle, sitting as a panel of three. Opinion by Judge DiSalle.

Author: Disalle

[ 35 Pa. Commw. Page 344]

The Pennsylvania Liquor Control Board (Board) appeals an order of the Court of Common Pleas of Philadelphia County, dated April 7, 1977, which sustained an appeal by Herb Anthony Enterprises, Inc., trading as E. L. Gringo (Appellee), and vacated the order of the Board revoking the restaurant liquor license, No. R-1503, of Appellee.

On July 7, 1976, the Board issued a citation to show cause why the license and amusement permit of Appellee should not be revoked. An ex parte hearing was held on October 27, 1976, before a Board Examiner.*fn1 The Board issued an Opinion and Order, dated December 16, 1976, revoking Appellee's license, basing its action on its finding that: "(t)he licensee, by its servants, agents or employes, aided, abetted and engaged in the traffic in or sale of a controlled substance on the licensed premises and/or permitted the use of its licensed premises in the furtherance of the traffic in or use of a controlled substance, on January 19, 1976; . . . ." Appellee thereafter filed an appeal in the Court of Common Pleas where a de novo hearing was held on February 7, 1977.

[ 35 Pa. Commw. Page 345]

The following events of January 19, 1976, were uncontradicted and are not in dispute. Undercover police officers entered Appellee's licensed premises for the purpose of purchasing heroin. The bartender, Carl Williams, informed them that a third person, Awelda Pena, would bring the narcotics to them shortly. After Awelda Pena's arrival, a discussion ensued concerning the price of the heroin. A price was agreed upon but Ms. Pena stated it would take a short time to deliver the heroin as the drug was in the process of being bagged. She received three phone calls and, after the last call, left the premises. She returned with a brown paper bag containing numerous glassine packets. Three of the packets were taken at random by one of the officers to a vehicle parked outside for qualitative testing. Carl Williams and Awelda Pena were then arrested.

Our scope of review is limited to a determination of whether the court below abused its discretion or committed an error of law. Pennsylvania Liquor Control Board v. Two Guy's Delicatessen, Inc., 13 Pa. Commonwealth Ct. 602, 319 A.2d 695 (1974).

The Board contends that the owner of the licensed premises, Jay Diamond, is liable for the action of the bartender, Carl Williams, since an agency relationship existed between them. This liability attaches, it is argued, even though Mr. Diamond had no notice of the bartender's acts, nor did he permit them. In this regard, the court below made the following findings of fact:

2. At all times relevant to these proceedings, JAY DIAMOND had sole responsibility for operating EL GRINGO;

6. Neither JAY DIAMOND nor any of his or the corporation's officers, servants, agents or employees ...


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