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OMICRON ENTERPRISES (09/02/82)

decided: September 2, 1982.

IN RE: OMICRON ENTERPRISES, T/A/D/B/A PARKWAY TAVERN ETC. OMICRON ENTERPRISES, TRADING AND DOING BUSINESS AS PARKWAY TAVERN, APPELLANT


Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of In Re: Omicron Enterprises trading and doing business as Parkway Tavern, appeal from Pennsylvania Liquor Control Board opinion suspending Liquor License No. 19414, No. SA 725 of 1980.

COUNSEL

Henry M. Horvat, for appellant.

J. Leonard Langan, Chief Counsel, with him Felix Thau, Counsel, for appellee.

Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 68 Pa. Commw. Page 569]

This is an appeal by Omicron Enterprises, trading and doing business as Parkway Tavern (Tavern), from a decision and order of the Court of Common Pleas of Allegheny County affirming a decision by the Pennsylvania Liquor Control Board (Board) to suspend the Tavern's restaurant liquor license for ten days for serving liquor to a minor. We affirm.

On January 9, 1980, the Board issued a citation charging that on or about November 2, 1979, a minor was served liquor at the Tavern. A hearing was held on the citation on May 9, 1980. At the hearing, a Pennsylvania State Police trooper testified that at around 12:30 a.m. on November 3, 1979, he conducted a motor vehicle stop at the Darwin Interchange of the Pennsylvania Turnpike of a car being driven in an erratic fashion. The driver of the car was an eighteen year old male who appeared to be incoherent and who failed to pass a sobriety test. When questioned, the youth informed the trooper that he had purchased a number of rum and cokes at the Tavern earlier in the evening. Testimony was also received from a Board enforcement officer who stated that, following the receipt of

[ 68 Pa. Commw. Page 570]

    information from the State Police, he conducted an investigation into the matter. During the course of this investigation, the minor accompanied the officer to the Tavern at which time the minor identified it as the place where he had been drinking on November 2. In addition, the minor himself appeared as a witness and unequivocally testified that he had gone to the Tavern on November 2, 1979, and purchased alcoholic beverages.

In an effort to rebut the evidence presented by the Commonwealth, the Tavern introduced the testimony of its two owners and the bartender who was on duty the evening in question. None of these witnesses remembered seeing or serving the minor. The witnesses for the Tavern also pointed out alleged factual errors in the statements made by the minor to the State Police and his testimony such as the cost of drinks on the night in question,*fn1 the presence of entertainment in the Tavern, the location in the bar of the television set, and the approximate number of people actually in the Tavern at the time the minor stated he was there.

Following the hearing, the Board found that the Tavern had served alcoholic beverages to a minor as charged and, in light of the Tavern's record of two prior citations in the preceding two years and the penalties imposed thereon, it suspended the Tavern's license for a period of ten days pursuant to Section 1 of the Liquor Code (Code).*fn2 On appeal, the common

[ 68 Pa. Commw. Page 571]

    pleas court took no additional evidence, made its own findings of fact and conclusions of law and affirmed the license suspension. In its appeal to this Court, the Tavern asserts that there was insufficient evidence to support a conclusion that it had served liquor to a minor and that, in the ...


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