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COMMONWEALTH PENNSYLVANIA v. JOSEPHINE E. ADAIR (10/01/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 1, 1986.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
JOSEPHINE E. ADAIR, T/D/B/A T & R GRILL, APPELLEE

Appeal from the Order of the Court of Common Pleas of Crawford County in the case of Josephine E. Adair, t/d/b/a T & R Grill, Plaintiff; Mary E. Terregino, Intervenor v. Pennsylvania Liquor Control Board, No. 1983-747.

COUNSEL

Eileen S. Maunus, Assistant Counsel, with her, Gary F. DiVito, Chief Counsel, for appellant.

Theodore H. Watts, Pepicelli, Pepicelli, Watts and Youngs, P.C., for appellee.

George J. Barco, Barco and Barco, for intervenor, Mary E. Terregino.

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

Author: Crumlish

[ 101 Pa. Commw. Page 164]

The Pennsylvania Liquor Control Board (LCB) appeals a Crawford County Common Pleas Court order setting aside the liquor license revocation of Josephine E. Adair (Adair), owner of the T & R Grill. The court imposed instead a $200 fine. The LCB appeals; we reverse.

On February 2, 1983, the LCB issued a citation to Adair to show cause why her license and permit should not be suspended or revoked. The incident giving rise to the citation involved the receipt of a quantity of cocaine by an undercover state police officer from a barmaid at the T & R Grill. After an LCB hearing at which the undercover officer testified, Adair's license was revoked. Adair appealed to the Crawford County Common Pleas Court,*fn1 which conducted a de novo hearing*fn2 at which the barmaid also testified. The court then issued an order modifying the penalty.

[ 101 Pa. Commw. Page 165]

Where an appeal from a LCB decision is heard de novo by the common pleas court, our review is limited to determining whether the trial court abused its discretion or committed an error of law and whether the order of the LCB was supported by substantial evidence. Acorn Club of Swissvale v. Pennsylvania Liquor Control Board, 93 Pa. Commonwealth Ct. 335, 500 A.2d 1296 (1985).

The LCB contends that the common pleas court committed an error of law when it found that the alleged romantic feelings that the barmaid had developed for the undercover officer constituted a materially different finding of fact, thus permitting a modification of the LCB's penalty. We agree.

While it is true that the common pleas court has the discretion to modify an action taken by the LCB, it may only do so when it makes findings of fact which materially differ from those of the LCB. Pennsylvania Liquor Control Board v. Camac Bar, Inc., 43 Pa. Commonwealth Ct. 349, 403 A.2d 136 (1979). In the instant case, the essential fact that the barmaid illegally delivered a controlled substance to the undercover officer is not substantially disputed. That the barmaid believed she was making a gift to a supposed boyfriend does not mitigate the licensee's culpability. However justified the court's observation that the violation did not merit so harsh a penalty,*fn3 it cannot reverse the LCB by declaring the violation de minimis. Pennsylvania Liquor Control Board v. Dobrinoff, 80 Pa. Commonwealth Ct. 453, 471 A.2d 941 (1984).

[ 101 Pa. Commw. Page 166]

Moreover, the fact that no money changed hands does not negate the element of drug trafficking by the barmaid. The Superior Court has held that "trafficking" in drugs occurs even in the absence of a sale. Commonwealth v. Hill, 236 Pa. Superior Ct. 572, 346 A.2d 314 (1975).

The intervenor, Terregino, submits that the undercover officer entrapped the barmaid due to an alleged "special friendship" the agent and the barmaid had developed during the course of the undercover investigation. We disagree. Our review of the record reveals no credible or substantial evidence to support an entrapment defense.

Thus, in the absence of materially different findings of fact, the court erred by substituting its judgment for that of the LCB regarding the penalty for the licensee's violation. In Re: Omicron Enterprises, 68 Pa. Commonwealth Ct. 568, 449 A.2d 857 (1982).

Accordingly, the common pleas court order is reversed and the revocation order is reinstated.

Order

The Crawford County Common Pleas Court order, No. AD 1983-746 dated October 24, 1984, is reversed. The order of license revocation issued by the Pennsylvania Liquor Control Board is reinstated. The petition to intervene is granted, and the application to bar the intervenor's brief is denied.

Disposition

Reversed.


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