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COMMONWEALTH PENNSYLVANIA v. FORT WASHINGTON INN OPERATING COMPANY (03/11/83)

decided: March 11, 1983.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
FORT WASHINGTON INN OPERATING COMPANY, T/A HOLIDAY INN OF FORT WASHINGTON, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Pennsylvania Liquor Control Board v. Fort Washington Inn Operating Company, t/a Holiday Inn of Fort Washington, No. 286 (Misc.) April Term, 1981.

COUNSEL

J. Leonard Langan, Chief Counsel, for appellant.

Morris Gerber, Gerber, Gerber & Shields, for appellee.

Judges Blatt, Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Doyle. Dissenting Opinion by Judge blatt.

Author: Doyle

[ 72 Pa. Commw. Page 543]

This is an appeal by the Pennsylvania Liquor Control Board (Board) from an order of the Court of Common Pleas of Montgomery County reversing the decision of the Board which suspended the liquor license of the Fort Washington Inn Operating Company, t/a Holiday Inn of Fort Washington (Holiday Inn), for a period of five days. We affirm the order of the court of common pleas.

[ 72 Pa. Commw. Page 544]

On February 25, 1981, Holiday Inn was cited for a violation of Section 493(1) of the Liquor Code (Code)*fn1 which prohibits the sale of alcoholic beverages to minors. Following a hearing convened by the Board, an Opinion and Order was issued suspending Holiday Inn's liquor license for a period of five days.*fn2 Holiday Inn appealed to the Court of Common Pleas of Montgomery County and a trial de novo was held on October 9, 1981. At that time, counsel for both parties stipulated that the testimony taken and transcribed at the hearing convened by the Board would be admitted as the testimony considered by the court de novo. The court of common pleas reversed the Board's decision by order dated November 17, 1981, and on March 4, 1982, issued an opinion to support its order. The Board has appealed to this Court from the order and opinion of the common pleas court.

Our review is limited to a determination of whether the court of common pleas abused its discretion or committed an error of law. Pennsylvania Liquor Control Board Appeal, 56 Pa. Commonwealth Ct. 601, 426 A.2d 173 (1981); Figueroa, Inc. v. Pennsylvania Liquor Control Board, 51 Pa. Commonwealth Ct. 422, 414 A.2d 747 (1980).

The court of common pleas determined that the investigation by the Board of the alleged violation of the Code was commenced on November 3, 1980 and ended on February 6, 1981. The court found that the investigation was, therefore, not completed within ninety days as required by Section 471 of the Code,

[ 72 Pa. Commw. Page 54547]

P.S. ยง 4-471, and held that the Board's suspension must be reversed. Section 471 provides in pertinent part:

No penalty provided by this section shall be imposed by the board or any court for any violations provided for in this act unless the enforcement officer or the board notifies the licensee of its nature and of the date of the alleged violation within ten days of the ...


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