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MATTER REVOCATION RESTAURANT LIQUOR LICENSE NO. R-11533 (11/27/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 27, 1978.

IN THE MATTER OF REVOCATION OF RESTAURANT LIQUOR LICENSE NO. R-11533, AMUSEMENT PERMIT NO. AP-23185 AND SUNDAY SALES PERMIT NO. SS-4392 ISSUED TO EDWARD J. AND KATHRYN GRIFFIN, T/A MAGOO'S, 3321-23 B STREET, PHILADELPHIA, PA. 19134. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT

Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Pennsylvania Liquor Control Board v. Edward and Kathryn Griffin, t/a Magoo's, Misc. No. 76-12-2196.

COUNSEL

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

No appearance for appellee.

Judges Crumlish, Jr., Wilkinson, Jr., and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 38 Pa. Commw. Page 597]

On June 7, 1976, the Pennsylvania Liquor Control Board (Board) issued an order suspending the restaurant liquor license of Edward J. and Kathryn Griffin (Licensees) for a period of three (3) days, effective July 1, 1976, "and thereafter until the licensees have corrected the unsanitary conditions which caused the citation to be issued." On July 6, 1976, the Licensees served beer to a Board officer. As of that date, the license in question had not been restored.*fn1 Subsequently, a citation was issued against the Licensees for selling alcoholic beverages during a time when the license was suspended. After a hearing, the Board found that the averments in the citation

[ 38 Pa. Commw. Page 598]

    had been sustained and imposed a fine upon the Licensees of $350.00. An appeal was then taken to the Court of Common Pleas of the First Judicial District. After a hearing, that Court vacated the order of the Board. In its memorandum opinion the Court held that the Licensees had fully complied with the Board's order, i.e., the conditions which caused the license to be suspended had been corrected and the premises had been closed for five (5) days (instead of three).

Even though there is evidence from which the learned trial judge could make the findings upon which he based his order to vacate the order of the Board, the fact remains that the Licensees sold alcoholic beverages at a time when they did not have a license, for whatever reason. Section 492(2) of the Liquor Code (Code), Act of April 12, 1951, P.L. 90, as amended, 47 P.S. ยง 4-492(2), states:

It shall be unlawful --

(2) Sales of Malt or Brewed Beverages for Consumption on the Premises. For any person to sell to another for consumption upon the premises where sold or to permit another to consume upon the premises where sold, any malt or brewed beverages, unless such person holds a valid retail dispenser license or a valid liquor license issued by the board authorizing the sale of malt or brewed beverages for consumption upon such premises.

Hence, whether the alleged unsanitary conditions were corrected or not,*fn2 the Licensees could not legally dispense alcoholic beverages until their license was physically restored.

[ 38 Pa. Commw. Page 599]

Accordingly, we must reverse.

Order

And Now, this 27th day of November, 1978, the order of the Court of Common Pleas of the First Judicial District of Pennsylvania, Trial Division, dated May 2, 1977, is reversed and the order of the Pennsylvania Liquor Control Board, dated November 22, 1976, is reinstated.

Disposition

Reversed. Order of Board reinstated.


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