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MATTER REVOCATION HOTEL LIQUOR LICENSE NO. H-322 (06/23/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 23, 1978.

IN THE MATTER OF REVOCATION OF HOTEL LIQUOR LICENSE NO. H-322, AMUSEMENT PERMIT NO. AP-17442 AND SUNDAY SALES PERMIT NO. SS-3743, ISSUED TO RAYMOND EARL MOONEY, NEW NATIONAL HOTEL, 118 SOUTH GILPIN STREET, PUNXSUTAWNEY, PENNSYLVANIA 15767. RAYMOND EARL MOONEY, TRADING AS NEW NATIONAL HOTEL, APPELLANT

Appeal from the Order of the Court of Common Pleas of Jefferson County in case of In the Matter of Revocation of Hotel Liquor License No. H-322, Amusement Permit No. AP-17442 and Sunday Sales Permit No. SS-3743, issued to Raymond Earl Mooney, New National Hotel, 118 South Gilpin Street, Punxsutawney, Pa. 15767, No. 226-1976 M.D.

COUNSEL

David L. Young, with him R. Edward Ferraro, for appellant.

James P. Deeley, with him J. Leonard Langan, Assistant Attorney General, Kenneth W. Makowski, Acting Chief Counsel, and Robert P. Kane, Attorney General, for appellee.

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

Author: Disalle

[ 36 Pa. Commw. Page 289]

This is an appeal from an order of the Court of Common Pleas of Jefferson County, dated June 27, 1977, sustaining the order of the Pennsylvania Liquor Control Board (Board) which revoked the Hotel Liquor License issued to Raymond E. Mooney (Mooney). The lower court also vacated that part of the Board's order which forfeited the bond which Mooney had filed

[ 36 Pa. Commw. Page 290]

    with his license applications in 1974 and 1975. This part of the court's order is not in dispute.

The four findings of fact made by the lower court*fn1 which we have been asked to review are: (1) that the licensed establishment was maintained in an unsanitary condition; (2) that other persons were permitted to operate other businesses on the licensed premises; (3) that the licensed establishment was not a bona fide hotel in that there was no public dining room or rooms accommodating at least thirty persons at one time on the licensed premises; and, (4) that the licensed establishment was not a bona fide hotel in that there was no kitchen apart from the public dining room or rooms.

Our scope of review in liquor license revocation cases is limited to a determination of whether the court below committed an error of law or abused its discretion. Pennsylvania Liquor Control Board v. Latrobe Armed Services Association, 16 Pa. Commonwealth Ct. 199, 329 A.2d 549 (1974).

Section 102 of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 1-102 defines hotel as:

'Hotel' shall mean any reputable place operated by responsible persons of good reputation where the public may, for a consideration, obtain sleeping accommodations and meals and which, in a city, has at least ten, and in any other place at least six, permanent bedrooms for the use of guests, a public dining room or rooms operated by the same management accommodating at least thirty persons at one time,

[ 36 Pa. Commw. Page 291]

    and a kitchen, apart from the public dining room or rooms, in which food is regularly prepared for the public.

The Board Officer who inspected the licensed premises on March 2, 1976, testified that there were only thirteen chairs at the tables in the dining area for use by patrons. Clearly, this does not comply with the requirements that a dining room or rooms accommodate at least thirty persons. An employe of the Department of Environmental Resources accompanied the Board officer in the inspection of Mooney's premises. He testified at length concerning the unsanitary conditions which existed on the premises. His testimony was both competent and credible and was sufficient to support the conclusion that the licensed establishment was maintained in an extremely unsanitary condition. We conclude, therefore, that the lower court did not abuse its discretion in finding that these two violations did occur.

[ 36 Pa. Commw. Page 292]

Mooney argues that the court below committed an error of law when it found that other businesses were being operated on the licensed premises and that there was no kitchen separate from the dining area. He contends that Section 471 of the Liquor Code, 47 P.S. § 4-471, precludes the issuance of a citation when a Board Officer has knowledge of the continuing existence of conditions which violate the Liquor Code for over a year's duration, but fails within that period to cite the offending licensee for those violations. This was the situation in the instant case. In light of our determination that Mooney committed two violations of the Liquor Code in maintaining inadequate dining facilities and permitting unsanitary conditions to prevail, we need not decide this question. See generally, Silva Liquor License Case, 219 Pa. Superior Ct. 31, 275 A.2d 871 (1971); Lakewood Company Liquor License Page 292} Case, 198 Pa. Superior Ct. 169, 181 A.2d 918 (1962); Panichi's License, 41 Pa. D. & C. 256 (1941).

Finally, Mooney claims that revocation of his liquor license is too harsh a penalty under the facts of this case. We do not agree. Mooney previously had been cited five times for violations during 1975 and 1976. This fact, when coupled with the instant violations, makes revocation of his hotel liquor license an appropriate penalty.

We affirm.

Order

And Now, this 23rd day of June, 1978, the order of the Court of Common Pleas of Jefferson County, dated June 27, 1977, is hereby affirmed.

Disposition

Affirmed.


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