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EMERY W. DAWES v. COMMONWEALTH PENNSYLVANIA. PENNSYLVANIA LIQUOR CONTROL BOARD (12/12/80)

decided: December 12, 1980.

EMERY W. DAWES, INC., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA. PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Commonwealth of Pennsylvania v. Emery Dawes, Inc., No. 2355 May Term, 1979.

COUNSEL

Thomas M. Nocella, for appellant.

J. Leonard Langan, Assistant Attorney General, with him Kenneth W. Makowski, Acting Chief Counsel, and Harvey Bartle III, Acting Attorney General, for appellee.

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

Author: Craig

[ 55 Pa. Commw. Page 302]

Emory W. Dawes, Incorporated (licensee) appeals from an order of the Court of Common Pleas of Philadelphia County, which affirmed the imposition of a $300 fine and revocation of licensee's Sunday liquor sales permit by the Pennsylvania Liquor Control

[ 55 Pa. Commw. Page 303]

Board (PLCB), on the ground that licensee had furnished false information to the PLCB regarding sales of food and beverages in connection with its application for a Sunday permit under Section 406 of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. ยง 4-406.

After hearing the case de novo, the trial court found that the PLCB had established that licensee had sumitted false information, based on the following facts.

Licensee applied for the Sunday permit in August 1978 and certified that from September 19, 1977 to August 8, 1978, its total sales were $37,028, of which $15,268, or 41.3%, represented sales of food and non-alcoholic beverages; thus licensee represented sales of alcoholic beverages totaling $21,760. Section 406 requires, as a condition of receiving a Sunday permit, that a minimum of 40% of a licensee's total sales be sales of food and non-alcoholic beverages.

The court concluded that testimony by a PLCB investigator demonstrated that licensee's sales of alcoholic beverages in fact totaled $33,969 in that period, as opposed to the submitted figure of $21,760; taking into account the submitted figure of $15,268 in sales of food and non-alcoholic beverages, the relevant percentage was in fact 31%, as opposed to the 41.3% figure submitted by the licensee.

The court thus affirmed the action taken by the PLCB and dismissed licensee's appeal.

Our scope of review is limited to a determination of whether the board's order is supported by sufficient evidence and whether or not the lower court committed an error of law or abused its discretion. The question here is thus whether the PLCB's revocation order is supported by substantial ...


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