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MATTER REVOCATION RESTAURANT LIQUOR LICENSE NO. R-12122 AND AMUSEMENT PERMIT NO. AP-12122 (06/03/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 3, 1981.

IN THE MATTER OF REVOCATION OF RESTAURANT LIQUOR LICENSE NO. R-12122 AND AMUSEMENT PERMIT NO. AP-12122, ISSUED TO -- ARTHUR A. BANKS, OTTO'S ATMOSPHERE II. ARTHUR A. BANKS, APPELLANT

Appeal from the Order of the Court of Common Pleas of Dauphin County in case of In the Matter of the Revocation of Restaurant Liquor License No. R-12122 and Amusement Permit No. AP-12122, issued to Arthur A. Banks, Otto's Atmosphere II, No. 43 M.D. 1980.

COUNSEL

Norman M. Yoffe, P.C., for appellant.

Patrick M. McHugh, Assistant Attorney General, with him James J. Fitzgerald, III, Chief Counsel, for appellee.

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

Author: Crumlish

[ 59 Pa. Commw. Page 444]

Otto's Atmosphere II appeals an order of the Dauphin County Common Pleas Court which affirmed an order of the Pennsylvania Liquor Control Board assessing a $400 fine against Otto's for (1) operating its premises in a disorderly manner, and (2) serving a visibly intoxicated person. Affirmed in part and reversed in part.

On April 26, 1979, an agent for the Liquor Control Board visited Otto's, a licensed premises in Harrisburg. From a vantage point of 40 to 50 feet from the tavern, the agent heard music emanating from Otto's juke box.

On May 4, 1979, the same agent revisited the premises and observed a man sleeping at the bar. The agent sat next to the somnolent patron and, after engaging him in conversation, concluded that the patron was intoxicated. The patron then ordered, and was served, a quart of beer "to go."

As to the Board's charge that Otto's was guilty of serving a visibly intoxicated person, we must agree. The agent testified that the somnolent person spoke with slurred speech, was incapable of formulating intelligent responses to simple questions, had bloodshot eyes, and on occasion leaned over and slumped upon the agent's shoulder. It cannot be seriously contended that the veteran agent could not have concluded that the patron was intoxicated.

[ 59 Pa. Commw. Page 445]

Pressing our inquiry further, however, we also note that a partial basis for the $400 fine was a finding that Otto's was operated in a "noisy and disorderly manner."

We have held in the past that to be in violation of Section 471 of the Liquor Code*fn1 a licensed premises must be operated in a noisy and disorderly fashion on a routine basis. In the Matter of: Ciro's Lounge, 24 Pa. Commonwealth Ct. 589, 358 A.2d 141 (1976). In Hude v. Commonwealth, 55 Pa. Commonwealth Ct. 1, 423 A.2d 15 (1980), two occasions of noisy operation warranted a fine.

In the instant appeal, the record indicates only one instance of noisy operation.*fn2 This, in and of itself, is not evidence that Otto's was operated in a noisy and disorderly manner. We reverse that part of the lower court's findings but remand for a determination of what portion of the $400 fine was attributable to the erroneous finding of a noisy and disorderly operation.

Affirmed in part; reversed in part.

Order

The Dauphin County Common Pleas Court order dated June 4, 1980 is hereby affirmed insofar as it concluded that Otto's Atmosphere II violated Section 471 of the Pennsylvania Liquor Code by serving a visibly intoxicated person. The order is hereby reversed insofar as it found Otto's Atmosphere II operating in a noisy and disorderly manner and remanded to the trial court for proceedings consistent with the latter portion of this Opinion.

Disposition

Affirmed in part and reversed in part. Case remanded.


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