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

COMMONWEALTH COURT OF PENNSYLVANIA


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 completion of the investigation which in no event shall exceed ninety days.

Testimony by the Board's enforcement officer indicated that a report of the alleged violation was received by the Board's district office on November 3, 1980 from the state police. The enforcement officer testified that on that date he read the police report and decided to investigate. The court of common pleas determined that it was this reading and decision by the enforcement officer which marked the beginning of the investigation, not the first actual contact with the reporting state trooper which was made on December 12, 1980, as argued by the Board.

The Board correctly argues that the ninety days for investigation does not begin to run from the date of the alleged offense, 4-6 Club v. Pennsylvania Liquor Control Board, 442 Pa. 154, 275 A.2d 40 (1971), nor does the Board's investigation begin when the possibility of an offense comes to its attention. Liquor Control Board v. Greater Northeast Polish American Citizens Association, 24 Pa. Commonwealth Ct. 560, 357 A.2d 708 (1976). In the instant case, however, the court of common pleas did not hold that the investigation commenced with the receipt of the report of the offense from the State Police; rather it was the review of that report by the Board's enforcement officer, and his decision to investigate at that time, which began the investigation.

[ 72 Pa. Commw. Page 546]

Liquor Control Board (PLCB) on the basis of police reports, our Supreme Court stated that: "[t]his problem arises because the statute contemplates only the situation in which the Board or enforcement officers have made an independent investigation." Id. at 132, 264 A.2d at 691 (emphasis added). It appears, therefore, that the Court read Section 471's reference to "investigation" as meaning only an "independent investigation" by the PLCB and not the mere review of police reports.

In the case at hand, I do not believe that the PLCB conducted an independent investigation*fn1 involving affirmative actions, such as entering the licensed premises, and therefore can find no detrimental effect upon the licensee which the legislature may have intended to preclude by enacting Section 471 of the Liquor Code.

I would, therefore, reverse the order of the court of common pleas and reinstate the PLCB's order.


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