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CLEVELAND BATES v. COMMONWEALTH PENNSYLVANIA (02/14/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 14, 1979.

CLEVELAND BATES, T/A NEETA'S BAR, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In the Matter of Revocation of Restaurant Liquor License No. R-14658 and Amusement Permit No. AP-19884, issued to Cleveland Bates, t/a Neeta's Bar, No. S.A. 136 of 1976.

COUNSEL

Morris F. Cohen, for appellant.

J. Leonard Langan, Assistant Attorney General, with him Kenneth W. Makowski, Acting Chief Counsel, and Gerald Gornish, Acting Attorney General, for appellee.

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

Author: Mencer

[ 40 Pa. Commw. Page 427]

Cleveland Bates, trading as Neeta's Bar, appeals an order of the Court of Common Pleas of Allegheny County dismissing his appeal from a decision of the Pennsylvania Liquor Control Board (Board) revoking his restaurant liquor license and amusement permit. We affirm.

The Board cited Bates for selling or furnishing alcoholic beverages to a minor in violation of Section

[ 40 Pa. Commw. Page 428493]

(1) of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-493(1), and for permitting the use of the licensed premises for traffic in or use of controlled substances. After a hearing, the Board revoked Bates' license and permit pursuant to Section 471 of the Liquor Code, 47 P.S. § 4-471. Bates appealed, and the Court of Common Pleas of Allegheny County, after a hearing de novo, made the following findings of fact:

1. Appellant's employee, Roosevelt Davis, sold intoxicating drink on May 3 and May 8, 1975, to Deborah Elizabeth Jones, a minor born June 18, 1956.

2. On February 8, March 21, May 17 and June 19, 1975, the licensee, or his employee, permitted licensed premises to be used in the use of a controlled substance, and on May 23 and May 27, 1975, the licensee allowed the premises to be used in the furtherance of traffic in such substances.

With regard to the first finding, Bates argues that the Commonwealth's only witness, the minor's mother, was biased and hostile and therefore her testimony was not competent to support the finding. To the contrary, a witness' interest may be considered when judging his credibility, but that interest does not render him incompetent to testify, and such testimony may properly support a finding of fact. See College Watercolor Group, Inc. v. William H. Newbauer, Inc., 468 Pa. 103, 111, 360 A.2d 200, 204 (1976). Therefore, the first finding is properly supported by the testimony of the minor's mother.

Bates also argues that the evidence does not establish that he "permitted" the unlawful use of and traffic in drugs on his premises. In Glass Door Liquor License Case, 193 Pa. Superior Ct. 416, 165 A.2d

[ 40 Pa. Commw. Page 429139]

(1960), the Superior Court defined "permitted" as "acquiesced by failing to prevent" and held that the evidence established that the licensee had permitted entertainers to associate with patrons in violation of the Board's regulation, despite apparently uncontradicted testimony by the licensee and bartender that this practice was not allowed and that they had no knowledge of its occurrence.

In this case, it is undisputed that drug sales occurred on the premises, that numerous controlled substances were discovered on police raids, and that drugrelated arrests were made on the premises by the police. A police inspector testified that, when he informed Bates about numerous neighborhood complaints regarding the unlawful activity on his premises, Bates responded that he was aware of it but was unable to do anything about it. Bates testified himself that he suspected unlawful activity was occurring on his premises; however, he was unable to discern particular instances of such activity due to the secrecy involved. He said he did not know any "pushers." He testified that he attempted to control the activity by calling the police and by suggesting that the police make gun checks. Twice he received threats when attempting to disperse troublemakers from the front of his premises.

In view of the continued pattern of unlawful activity on the premises of which Bates was aware, we can only conclude that there is substantial evidence to support the second finding. See Hoffco Corp. Liquor License Case, 198 Pa. Superior Ct. 1, 180 A.2d 270 (1962); In re Revocation of License of Clock Bar, Inc., 85 Dauph. 125, 131-32 (1966).*fn1

[ 40 Pa. Commw. Page 430]

The issue remains, however, whether the Board revoked Bates' license for "sufficient cause" within the meaning of Section 471 of the Liquor Code.*fn2 Bates argues that the Board did not have sufficient cause since (1) only patrons engaged in the unlawful activity, not employees, (2) he and his employees had no direct knowledge of specific incidents of unlawful activity due to the secrecy surrounding it, (3) he had taken steps to alleviate the problem, and (4) the character of the neighborhood contributed to the problem.

Neither the Liquor Code nor the cases have defined what constitutes sufficient cause. It has been held, however, that violation of criminal laws by a licensee or his employees or agents constitutes sufficient cause. See, e.g., In re Quaker City Development Co., 27 Pa. Commonwealth Ct. 13,

[ 40 Pa. Commw. Page 431365]

A.2d 683 (1976). It has also been held that violation of the laws regarding the use or sale of controlled substances by an employee, regardless of whether the licensee had knowledge of the conduct, constitutes proper grounds for license suspension. Sobel Liquor License Case, 211 Pa. Superior Ct. 129, 235 A.2d 623 (1967); Dubin Liquor License Case, 210 Pa. Superior Ct. 346, 234 A.2d 7 (1967). Further, a license suspension was upheld based on evidence of solicitations by homosexuals among patrons when there was no evidence of involvement in or direct knowledge of such conduct by the licensee or his employees. In re Revocation of License of Clock Bar, Inc., supra. In Quaker City Development Co., supra at 16, 365 A.2d at 684, Judge Wilkinson, speaking for this Court, said:

The Liquor Code is remedial civil legislation. 'This act shall be deemed an exercise of the police power of the Commonwealth for the protection of the public welfare, health, peace and morals [and] . . . shall be liberally construed for the accomplishment of this purpose.' Section 104 of the Liquor Code, 47 P.S. § 1-104. It is almost impossible to anticipate all the actions that may justify revocation of a license. Weinstein Liquor License Case, 159 Pa. Superior Ct. 437, 48 A.2d 1 (1946). Therefore, to accomplish the remedial purposes of the Act a 'catch-all' provision is needed. The 'other sufficient cause' provision is proper for this purpose.

We appreciate the licensee's problem of controlling his premises when secretive unlawful conduct occurs among patrons without the knowledge of the licensee or his employees. Nevertheless, absent proof of substantial affirmative measures taken by a licensee to eliminate a known pattern of use of and traffic in

[ 40 Pa. Commw. Page 432]

    controlled substances on his premises, we believe the Board has sufficient cause to revoke or suspend a license.*fn3

Therefore, we enter the following

Order

And Now, this 14th day of February, 1979, the order of the Court of Common Pleas of Allegheny County, dated December 6, 1976, dismissing the appeal of Cleveland Bates from the Pennsylvania Liquor Control Board's order of January 5, 1976, revoking the restaurant liquor license No. R-14658 and amusement permit No. AP-19884 issued to Cleveland Bates, trading as Neeta's Bar, is affirmed.

Disposition

Affirmed.


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