Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Steven Seder, t/a Denny's Beverages, PLCB No. 8302-2586.
Patrick M. McHugh, Deputy Chief Counsel, with him, Gary F. DiVito, Chief Counsel, for appellant.
Jeffrey M. Voluck, for appellee.
Judges Doyle and Palladino, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Doyle. Judge Williams, Jr., did not participate in the decision in this case.
[ 88 Pa. Commw. Page 352]
This is an appeal by the Pennsylvania Liquor Control Board (Board) from a decision and order of the Court of Common Pleas of Philadelphia County which reduced a fine assessed against Steven Seder, t/a Denny's Beverages, (Licensee) from $700 to $150 in one Board charge, and vacated a ten day suspension assessed against Licensee in a separate Board charge. Both the fine and suspension were for sale of liquor to minors, but each relates to a separate incident. The trial court took evidence on both appeals at one hearing and issued one order which is here appealed.
The Board found that "[t]he licensee, his servants, agents or employes sold, furnished and/or gave or permitted such sale, furnishing and/or giving of malt or brewed beverages to a minor, on June 18, 1982.
[ 88 Pa. Commw. Page 353]
. . ." Based upon this finding it imposed a seven hundred dollar fine. The Board, in a separate adjudication, made an identical finding with respect to an occurrence on June 30, 1982 and consequently, suspended Licensee's license for ten days. Both orders were issued on January 19, 1983. Section 493(1) of the Liquor Code*fn1 prohibits a licensee from selling liquor, malt or brewed beverages to minors. The trial court, after a hearing de novo, determined that the Licensee had taken "reasonable precautions" to insure that it was not selling beverages to minors. N.T. 45. Consequently, it reduced the $700 fine to $150 and vacated the suspension. The trial court also determined that the Licensee had violated the Liquor Code's requirement of having purchasers whom it suspects may be under age complete a declaration of majority form pursuant to Section 495(c) of the Liquor Code, 47 P.S. § 4-495(c), but left undisturbed the Board's findings that sales to minors had occurred on both dates.
Our scope of review is limited to determining whether the Board's orders are supported by substantial evidence or whether the lower court committed an error of law or an abuse of discretion. Pennsylvania Liquor Control Board v. Eclectic Enterprises, Inc., 76 Pa. Commonwealth Ct. 626, 464 A.2d 683 (1983). Before a trial court may modify or set aside a Board order "it must make findings of fact on the material issues different from those made by the Board." Id. at 627, 464 A.2d at 684. Here the trial court did not do this. Indeed, we note that both minors stated at the trial court hearing that they had purchased alcohol from Licensee although each individual was under age at the time of his purchase. The trial court, however, found that Licensee had taken "reasonable precautions" and hence, modified the Board orders on this
[ 88 Pa. Commw. Page 354]
basis. This situation is similar to that in Eclectic where the trial court, although it found that a fire code violation had occurred, set aside a Board order because it made an additional finding that the licensee had repaired the violation after notice. In reversing the trial court in Eclectic we said:
The trial court clearly recognized that a violation did occur. That Eclectic expeditiously corrected the violation is of no consequence and does not constitute a materially-different finding. Thus, the trial court committed an error of law by setting aside the Board order without making findings materially ...