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APPEAL OLD EXPRESS LIMITED FROM PENNSYLVANIA LIQUOR CONTROL BOARD CITATION NO. 2231 (12/15/82)

decided: December 15, 1982.

IN RE: APPEAL OF OLD EXPRESS LIMITED FROM PENNSYLVANIA LIQUOR CONTROL BOARD CITATION NO. 2231, 1980. OLD EXPRESS LIMITED, APPELLANT


Appeal from the Order of the Court of Common Pleas of Mercer County in the case of In Re: Appeal of Old Express Limited from Pennsylvania Liquor Control Board Citation No. 2231, 1980, No. 1 Summary Appeal, 1981.

COUNSEL

William G. McConnell, Cusick, Madden, Joyce and McKay, for appellant.

J. Leonard Langan, Chief Counsel, for appellee.

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

Author: Rogers

[ 70 Pa. Commw. Page 383]

This appeal*fn1 presents the question of whether the holder of a liquor license can be held to have violated Section 493(1) of the Liquor Code*fn2 on the basis of proof, without more, that on a date specified and in the vicinity of the licensee's place of business, minors were discovered by agents of the Liquor Control Board (LCB) to be in possession of and to be consuming malt beverages -- beer.

Section 493(1) is as follows:

It shall be unlawful --

Furnishing liquor or malt or brewed beverages to certain persons

(1) For any licensee or the board, or any employe, servant or agent of such licensee or of

[ 70 Pa. Commw. Page 384]

    the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, . . . to any minor.

The facts, adduced at a hearing conducted by the LCB, are not the subject of serious dispute.*fn3 On three consecutive dates in August, 1980, the licensee, as he was licensed to do by the LCB, organized and managed an entertainment variously called by the parties a Bavarian festival, an Oktoberfest, and a Funfest; that the locus of these festivities was a large tent erected by the licensee in which were located musicians and other amenities and facilities for the sale and service of refreshments including beer; and that in the evening of August 8, 1980, LCB agents interviewed in the licensee's parking lot three of the approximately 1500 guests and discovered that each of them was a minor and each was in possession of beer and that two of the three had been drinking the beer.

Only one of the minors was available for examination at the LCB hearing and his testimony was that on the evening in question he was fourteen years of age; that moments before being confronted by LCB agents, he had been given a pitcher of beer by a friend, also a minor; that this transaction took place in the ...


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