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COMMONWEALTH PENNSYLVANIA v. RICO FRANZONI (01/18/83)

decided: January 18, 1983.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
RICO FRANZONI, JR. AND YVONNE A. FRANZONI, T/A RICO'S BIG TROUT INN, APPELLEE



Appeal from the Order of the Court of Common Pleas of Elk County in case of In Re: Appeal of Fine Imposed by the Pennsylvania Liquor Control Board, Citation No. 39, 1981, Rico Franzoni Jr. and Yvonne A. Franzoni, t/d/b/a Rico's Big Trout Inn, Criminal Miscellaneous No. 81-3.

COUNSEL

J. Leonard Langan, Chief Counsel, for appellant.

No appearance for appellee.

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

Author: Blatt

[ 71 Pa. Commw. Page 249]

The Pennsylvania Liquor Control Board (Board) appeals here from an order of the Court of Common Pleas of Elk County which reversed the Board's order of May 1, 1981. That order imposed a fine of $400 upon Rico and Yvonne Franzoni (licensees) for engaging in another business on the licensed premises (Rico's Big Trout Inn).

Officer Molitierno, an enforcement officer employed by the Board, testified that he commenced an investigation into this matter upon receiving a complaint that another business was being operated on the licensed premises. On three separate occasions he observed shelves behind the bar containing hats, knives, belt buckles, shotgun shells, rifle ammunition, turkey calls and other items of sports and hunting equipment, all marked with price tags. He also noted that approximately 40 paintings were hanging on the wall, also marked with price tags. He testified that, when he asked the bartender if these items could be purchased, she replied in the affirmative.

The record reveals that the basement of the Trout Inn had at one time been part of the licensed premises; however, upon the application of the licensee, the

[ 71 Pa. Commw. Page 250]

Board had removed this area from the total area licensed and authorized the establishment of a business known as "The Cellar" in this basement area. "The Cellar" is engaged in the retail sale of sporting goods generally related to hunting and fishing and incidental momentos and memorabilia. It appears that some of these items were displayed on the licensed premises, and Rico Franzoni admitted that, if "The Cellar" was closed, he would sell some of these items on the licensed premises "as a service" to the customer.

The Board determined that the licensees had violated Board regulations by operating another business on the licensed premises, and fined them $400, which fine was subsequently modified to $250. The trial court, reasoning that "there is nothing prohibiting a licensee to operate a business even on his own premises nor prohibiting a licensee from operating another business on the premises", found that the licensees had not committed any violations and reversed the Board's order.

Our scope of review in a case of this nature is to determine whether or not there is evidence to support the Board's order appealed from and whether or not the trial court committed an error of law or an abuse of discretion. Shiloh American Legion Liquor License Case, 61 Pa. Commonwealth Ct. 628, 434 A.2d 1314 (1981).

The Board argues, and we would agree, that there is ample evidence in the record to suport its finding that the licensees operated another business on the licensed premises. Like the trial court, however, we are at a loss to ...


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