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APPEAL IRENE'S CAFE (07/03/79)

decided: July 3, 1979.

APPEAL OF: IRENE'S CAFE, INC., 1727 NORTH 24TH STREET, PHILADELPHIA, PA. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT


Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Appeal of: Irene's Cafe, Inc., 1727 North 24th Street, Philadelphia, Pennsylvania, No. 2263 January Term, 1978.

COUNSEL

David Shotel, Assistant Attorney General, with him Kenneth W. Makowski, Acting Chief Counsel, and Gerald Gornish, Acting Attorney General, for appellant.

Abraham J. Levinson, for appellee.

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

Author: Blatt

[ 44 Pa. Commw. Page 21]

This is an appeal by the Pennsylvania Liquor Control Board (Board) from an order of the Court of Common Pleas of Philadelphia County which sustained the appeal of Irene's Cafe, Inc. (licensee) from an adjudication of the Board wherein the licensee's application to name a new manager was refused.

The licensee filed an application with the Board to name one Lovell Ross as the manager of its licensed restaurant premises. The Board issued an order after a hearing refusing to approve the application on the ground that Mr. Ross "is not a responsible person of good reputation" as required by the applicable regulations.*fn1

[ 44 Pa. Commw. Page 22]

The Court of common pleas sustained the licensee's appeal and this appeal by the Board then followed.

The record before the court, which was the same as that before the Board, indicates that the proposed manager for the licensed premises had been arrested nine times from June 1969 to May 1975. These arrests, all for misdemeanors including violations of the Liquor Code,*fn2 resulted in two convictions for which he had been placed on probation. The Board held that this evidence established that he was not a responsible person of good reputation. The lower court concluded, however, that, because he had never been convicted of a felony or sentenced to any period of incarceration, the arrests and convictions here concerned could not form the basis for a refusal to grant the licensee's application for Mr. Ross' appointment as manager.

The Court relied on three sections of the Liquor Code, i.e., Section 404, 47 P.S. § 4-404, Issuance of hotel, restaurant and club liquor licenses; Section 431, 47 P.S. § 4-431, Malt and brewed beverages manufacturers; distributors and importing distributors' licenses; and Section 432, 47 P.S. § 4-432, Malt and brewed beverages retail licenses. It then went on to review the evidence of the good reputation of Mr. Ross submitted by his parole officer and concluded that the Board had abused its discretion by determining that Mr. Ross was not a person of good reputation.

The Board contends that the lower court erred in two respects: first, by relying on ...


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