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COMMONWEALTH PENNSYLVANIA v. UNITED VETERANS ASSOCIATION BLAIR COUNTY (12/13/85)

decided: December 13, 1985.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
UNITED VETERANS ASSOCIATION OF BLAIR COUNTY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Blair County in the case of In Re: Appeal of the United Veterans Association of Blair County, No. 296 of 1982.

COUNSEL

Felix Thau, Deputy Chief Counsel, with him, Gary F. DiVito, Chief Counsel, for appellant.

Harold E. Miller, for appellee.

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

Author: Colins

[ 93 Pa. Commw. Page 478]

The Pennsylvania Liquor Control Board (Board) appeals an order of the Blair County Court of Common Pleas sustaining the appeal of United Veterans Association of Blair County (Club), a licensee of the Board, and overruling the Board's imposition of a fine on the Club for allegedly violating the Liquor Code.*fn1 We vacate and remand.

Following a hearing, the Board cited the Club with two violations of the Liquor Code,*fn2 prohibiting the sale of liquor to non-members and gambling on the licensed premises, and imposed a Two Hundred Dollar

[ 93 Pa. Commw. Page 479]

    fine. The proceedings before the trial court, on de novo appeal by the Board, consisted solely of a series of stipulations between the parties. The Court dismissed the charge concerning the sale of liquor to non-members, finding that the Board presented no evidence to prove this infraction. The Board based the charge of gambling on a "raffle" conducted on a portion of the licensed premises by a local Kiwanis Association as a charitable fund raiser. The evidence indicated that the Club had no notice of the raffle drawing, that tickets were sold in advance at other locations and that the only activity on the premises of the Club was the selection of the winner. The Court found that the Board established the gambling charge but that the Club's actions amounted to a de minimis infraction. The Court overruled the action of the Board, reversed the imposition of the Two Hundred Dollar fine, and merely imposed court costs upon the licensee.

In his opinion, Judge Van Horn stated that, inasmuch as his findings of fact were materially different from those of the Board, he was under no constraint to adopt the sanction imposed by the Board. Judge Van Horn further indicated that the language of Section 471*fn3 does not mandate that he impose the minimum statutory sanction of Fifty Dollars for a de minimis infraction of the Liquor Code. It is from this decision that the Board appeals.

[ 93 Pa. Commw. Page 480]

Following a de novo hearing, the trial court makes a completely independent determination of the facts in the case and is not bound by the Board's decision. Pennsylvania Liquor Control Board v. Flowers & Page 480} Davis Enterprises, Inc., 74 Pa. Commonwealth Ct. 514, 459 A.2d 1374 (1983). Our scope of review in a de novo appeal of this nature is limited to a determination of whether the order appealed from was supported by substantial evidence and whether the Court committed an error of law or abuse of discretion. New Sorrento, Inc. v. Pennsylvania Liquor Control Board, 64 Pa. Commonwealth Ct. 422, 440 A.2d 676 (1982).

In this case, there is no question that the findings of Judge Van Horn materially differed from those of the Board and that the Judge correctly invoked the discretionary license of Section 741 in his modification of the Board's actions. See Harrison City Fire Protective Association Liquor License Appeal, 37 Pa. Commonwealth Ct. 525, 391 A.2d 1090 (1978). We also concur with the Court's characterization of the Club's infraction as a de minimus ...


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