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

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 ...


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