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COMMONWEALTH PENNSYLVANIA v. S & B RESTAURANTS (01/07/88)

decided: January 7, 1988.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
S & B RESTAURANTS, INC., T/A THE WOODLANDS, AN INN, APPELLEE



Appeal from the Order of the Court of Common Pleas of Luzerne County, in case of S & B Restaurants, Inc., t/a The Woodlands, An Inn v. Pennsylvania Liquor Control Board, Nos. 1003 and 1004 of 1985.

COUNSEL

Kenneth B. Skelly, Chief Counsel, for appellant.

Daniel G. Flannery, Rosenn, Jenkins & Greenwald, for appellee.

Judge Craig, and Senior Judges Barbieri and Kalish, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 112 Pa. Commw. Page 383]

The Pennsylvania Liquor Control Board (PLCB) appeals here an order of the Court of Common Pleas of Luzerne County sustaining the appeal of S & B Restaurants, Inc., trading as The Woodlands, An Inn (Licensee), from a PLCB order and adjudication that suspends its Restaurant Liquor License for a period of ten days. We shall reverse.

The relevant factual background is as follows. The Licensee operates a restaurant located at 1073 Route 315, Plains Township, Luzerne County, Pennsylvania, that is licensed by the PLCB to sell alcoholic beverages. On May 23, 1984, the PLCB issued Citation No. 1514-1984

[ 112 Pa. Commw. Page 384]

    to the Licensee as a result of an investigation of the restaurant on March 26, 1984, charging the following violations:

1. Violation of Section 493(1) of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-493(1), by permitting alcoholic beverages to be sold or furnished to minors;

2. Violation of Section 493(14) of the Liquor Code, 47 P.S. § 4-493(14), by permitting minors to frequent the licensed premises; and

3. Violation of 40 Pa. Code § 5-32(d), by allowing entertainers to come in contact with or associate with patrons.

The hearing on these charges was held on August 3, 1984, but the PLCB did not issue an adjudication finding the charges substantiated and suspending the license until April 19, 1985. On appeal by the Licensee from that adjudication and order, the common pleas court found that the PLCB failed to sustain its burden of proof regarding the frequenting charge and the charge of allowing entertainers to come in contact with patrons. The trial court did find sufficient evidence to sustain the sales to minors charge but held that the PLCB had violated the Licensee's due process rights by waiting more than eight months from the hearing to issue its adjudication and suspension order in ...


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