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COMMONWEALTH PENNSYLVANIA v. FLOWERS & DAVIS ENTERPRISES (05/27/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 27, 1983.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
FLOWERS & DAVIS ENTERPRISES, INC., APPELLEE

Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Commonwealth of Pennsylvania v. Flowers & Davis Enterprises, Inc., No. 2432 January Term, 1981.

COUNSEL

Gary F. DiVitto, with him, J. Leonard Langan, Chief Counsel, for appellant.

No appearance for appellee.

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

Author: Williams

[ 74 Pa. Commw. Page 515]

The Pennsylvania Liquor Control Board (Board) appeals an order of the Court of Common Pleas of Philadelphia County, dated July 29, 1981, reversing the Board's order revoking the restaurant liquor license, No. R-2780, of Flowers and Davis Enterprises, Inc. (Appellee).

On August 20, 1980, the Board issued a citation to show cause why appellee's liquor license should not be revoked. An ex parte hearing was held on November 21, 1980, before a Board Hearing Examiner. The Board issued an opinion and order, dated December 29, 1980, revoking appellee's liquor license and ordering the forfeiture of the bond filed with the license application for the year beginning November 1, 1979 and ending October 31, 1980.*fn1 The Board's action was based on its sole finding of fact that

[t]he licensee, by its servants, agents or employes possessed controlled substances on the licensed premises or on premises contiguous or adjacent thereto or used in connection therewith, on May 13, 1980. . . .

Appellee subsequently appealed to the court of common pleas, which in a de novo hearing held on July 29, 1981, reversed the Board's order revoking appellee's license and providing for the bond forfeiture.

Consistent with the language and decisions of the Supreme Court in Noonday Club of Delaware County, Inc. Liquor License Case, 433 Pa. 458, 252 A.2d 568 (1968) and Carver House, Inc. Liquor License Case, 454 Pa. 38, 310 A.2d 81 (1973), this Court has repeatedly adhered to the following:

Pursuant to Section 471 of the Liquor Code, the lower court, on appeal from a decision of the

[ 74 Pa. Commw. Page 516]

Board is required to hold a hearing de novo, make its own findings of fact and conclusions of law, and then, in the exercise of its own discretion, either sustain, reverse, or modify the action of the Board. . . . The Court below [is] required to make a completely independent determination of all the facts of the case.

Banks Liquor License Case, 67 Pa. Commonwealth Ct. 479, 481-82, 447 A.2d 723, 724 (1982) (emphasis added) (citations omitted); see also, Pennsylvania Liquor Control Board v. Argonne Tavern, Inc., 25 Pa. Commonwealth Ct. 286, 288, 361 A.2d 480, 481 (1976); Pennsylvania Liquor Control Board, v. Latrobe Armed Services Association, 16 Pa. Commonwealth Ct. 199, 201, 329 A.2d 549, 551 (1974). In the case at bar, however, the lower court failed to make the required findings of fact and conclusions of law. We must therefore remand.*fn2

Furthermore, it is axiomatic that "the lower court may not change or modify a penalty imposed on a licensee by the Board without making specific material changes in the facts as found by the Board." James Alston, Inc. v. Pennsylvania Liquor Control Board, 71 Pa. Commonwealth Ct. 216, 455 A.2d 228, 229 (1983) (quoting Carver House, Inc., 454 Pa. at 41-42,

[ 74 Pa. Commw. Page 517310]

A.2d at 83). Since the lower court, sub judice, failed to make any findings of fact which differed materially or otherwise from the Board's finding, the lower court's order vacating the Board's license revocation order is reversed*fn3 and the matter remanded to the Court of Common Pleas of Philadelphia County for further proceedings consistent with this opinion.

Order

And Now, the 27th day of May, 1983, the order of the Court of Common Pleas of Philadelphia County, dated July 29, 1981, is reversed, and the case is remanded to that court for further proceedings consistent with this Opinion.

Jurisdiction relinquished.

Disposition

Reversed and remanded.


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