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MATTER REVOCATION RESTAURANT LIQUOR LICENSE ETC. ALRAY CORPORATION (03/10/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 10, 1983.

IN THE MATTER OF REVOCATION OF RESTAURANT LIQUOR LICENSE ETC. ALRAY CORPORATION, APPELLANT

Appeal from the Order of the Court of Common Pleas of Northampton County in the case of In the Matter of Revocation of Restaurant Liquor License No. R-19059 and Amusement Permit AP-19059 issued to Alray Corporation, No. 281, Misc. 1981.

COUNSEL

A. T. Gilespie, Jr., for appellant.

Gary F. DiVito, counsel, with him J. Leonard Langan, Chief Counsel, for appellee.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Blatt. Judge Williams, Jr. concurs in result only.

Author: Blatt

[ 72 Pa. Commw. Page 511]

The Alray Corporation (licensee) appeals from an order of the Court of Common Pleas of Northampton County which, after holding a de novo hearing, sustained an order of the Pennsylvania Liquor Control Board (PLCB) imposing fines totaling $700 upon the licensee for permitting lewd, immoral and improper entertainment in violation of Section 493(10) of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-493(10), and for permitting entertainers to contact or associate with patrons on the licensed premises in violation of 40 Pa. Code § 532(d).

At the de novo hearing, the only testimony presented directly to the trial court was that of an enforcement officer of the PLCB. Additionally, the trial court received a copy of the PLCB's findings and order along with a copy of the transcript of the proceedings before the PLCB's hearing examiner.

Where, as here, the matter was heard de novo, our scope of review is limited to a determination of whether or not the order appealed from was supported by sufficient evidence in the record and whether or not the trial court committed an error of law or abused its discretion. New Sorrento, Inc. v. Pennsylvania Liquor Control Board, 64 Pa. Commonwealth Ct. 422, 440 A.2d 676 (1982).

Before us the licensee argues*fn1 first that the evidence presented before the trial court was insufficient to substantiate a finding that the licensee had permitted

[ 72 Pa. Commw. Page 512]

    its live entertainers to contact or associate with patrons on the licensed premises in violation of 40 Pa. Code § 532(d). Our close examination of the record, however, indicates that the PLCB's enforcement officer graphically testified that he had witnessed, for instance, a scantily-clad "go-go" dancer leave her stage area and continue her performance in the bar area where she conversed with various patrons, and after placing her leg onto the bar, allowed said patrons to place money into her "G-string". This we believe, supports the trial court's conclusion that the licensee had violated 40 Pa. Code § 532(d) which forbids*fn2 such association or contact by entertainers with patrons. See Tahiti Bar, Inc. Liquor License Case, 395 Pa. 355, 150 A.2d 112 (1959).

The licensee next argues that the trial court committed an error warranting a reversal by permitting into evidence at the de novo hearing the transcript, findings, and order of the proceedings before the PLCB. Although we agree that a de novo hearing should be, according to its definition, "anew; afresh; a second time",*fn3 we believe that the admission of these documents into evidence, if improper, was nonetheless a harmless error. The PLCB's enforcement officer supplied sufficient testimony at the de novo hearing upon which the trial court could have based its findings.*fn4

We will therefore affirm the trial court's order.

[ 72 Pa. Commw. Page 513]

Order

And Now, this 10th day of March, 1983, the order of the Court of Common Pleas of Northampton County in the above-captioned matter is hereby affirmed.

Judge Williams, Jr. concurs in result only.

Disposition

Affirmed.


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