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APPEAL 'ELAN PHILADELPHIA (01/22/82)

decided: January 22, 1982.

IN RE: APPEAL OF 'ELAN OF PHILADELPHIA, LTD. ETC. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT


Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of In Re: Appeal of 'Elan of Philadelphia, Ltd. from the Order of the Pennsylvania Liquor Control Board, No. 80-022387.

COUNSEL

J. Leonard Langan, Assistant Attorney General, with him James J. Fitzgerald, III, Chief Counsel, and Harvey Bartle, II, Acting Attorney General, for appellant.

Barry Goldstein, with him G. Craig Lord and Peter J. Boyer, Blan, Rome, Comisky & McCauley, for appellee.

Judges Williams, Jr., MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Williams, Jr. This decision was reached prior to the expiration of the term of office of Judge Palladino.

Author: Williams

[ 64 Pa. Commw. Page 231]

This is an appeal by the Pennsylvania Liquor Control Board (Board) from an opinion and order of the Court of Common Pleas of Philadelphia County. The lower court reversed the Board's order and vacated its penalty imposed upon appellee, 'Elan of Philadelphia, Ltd.

Appellee, 'Elan of Philadelphia, Ltd. ('Elan) is a restaurant and social club owning and holding a restaurant liquor license, amusement permit and Sunday sales permit. A person wishing to patronize 'Elan can gain entry to the establishment in one of two ways. The patron can either purchase an annual or lifetime membership card to the club, or he can pay an entrance fee each time he wishes to gain access to the facility.*fn1 Those people holding membership cards to the club can enter without waiting in line. Additionally, they are afforded certain guest and billing privileges. On the other hand, non-members are required to wait in line to pay their fee and are admitted on a first come first served basis.

In July, 1979, 'Elan received a citation issued by the Board, charging it with violating the provisions of the Liquor Code.*fn2

[ 64 Pa. Commw. Page 232]

The summons read,

WHEREAS, the Board is in possession of facts which lead it to believe that you have violated the provisions of the Liquor Code (Act of Assembly approved April 12, 1951, P.L. 90), as amended, and the rules and regulations adopted pursuant thereto, in the following manner:

1. You, by your servants, agents or employees offered and/or gave inducements to certain persons by allowing them privileges not permitted the general public, on or about April 24, May 9, 11, June 1, 1979, and on divers other occasions within the past year.

A hearing on the citation was conducted before a Board hearing examiner. In January, 1980 the Board issued an opinion and order sustaining the violation and imposing, as a penalty, a suspension for a period of three days, and thereafter until the conditions causing the issuance of the citation have been corrected. Following the Board's decision, 'Elan filed an appeal to the Court of Common Pleas of Philadelphia. The lower court held a de novo hearing in March, 1980. At the hearing, the lower court heard testimony relating to 'Elan's admission policy and the procedures followed in gaining entry to the restaurant and club. Subsequent to the hearing, the lower court, based on the testimony presented, rendered a decision reversing that of the Board and vacating the penalty imposed thereby. The court reasoned that 'Elan's mode of operation was ...


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