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COMMONWEALTH PENNSYLVANIA v. ECLECTIC ENTERPRISES (08/30/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 30, 1983.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
ECLECTIC ENTERPRISES, INC., APPELLEE

Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board v. Eclectic Enterprises, Inc., No. 8107-2476.

COUNSEL

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

John M. Willmann, for appellee.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 76 Pa. Commw. Page 626]

The Pennsylvania Liquor Control Board appeals a Philadelphia County Common Pleas Court order reversing a liquor license suspension. We reverse.

[ 76 Pa. Commw. Page 627]

The Philadelphia Department of Licenses and Inspections' citation of Eclectic Enterprises*fn1 for violating the City's Fire Code resulted in a one-week revocation of its health permit. The Board then ordered Eclectic to show cause why its liquor license should not be revoked.*fn2 A waiver of hearing was executed in which Eclectic admitted the revocation. The Board suspended the license for five days, this being Eclectic's third citation in four years. Following a de novo hearing, the common pleas reversed.

Our scope of review is limited to a determination of whether the order was supported by sufficient evidence and whether the court below committed an error of law or abused its discretion. Matter of Revocation of Hotel Liquor License, 73 Pa. Commonwealth Ct. 198, 457 A.2d 1035 (1983).

Before the trial Court may modify or set aside Board actions, it must make findings of fact on the material issues different from those made by the Board. Pennsylvania Liquor Control Board v. Brock's Cafe, Inc., 39 Pa. Commonwealth Ct. 597, 598, 396 A.2d 74, 75 (1974). Here, the trial court found that "Eclectic repaired the violation the day after notification of its nonconformity but remained closed for approximately four days until a reinspection by L & I could be arranged." (Emphasis added.) The trial court clearly recognized that a violation did occur.*fn3 That Eclectic expeditiously corrected the violation is of no consequence and does not constitute a materially-different

[ 76 Pa. Commw. Page 628]

    finding. Thus, the trial court committed an error of law by setting aside the Board order without making findings materially different from those of the Board.

Since the Board found that this violation was Eclectic's third violation in a four-year period, at least a license suspension was required.*fn4

Reversed.

Order

The Philadelphia County Court of Common Pleas order, No. 8107-2476, dated July 2, 1982, is hereby reversed.

Disposition

Reversed.


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