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COMMONWEALTH PENNSYLVANIA v. RICHARD C. KEHLER (03/09/88)

decided: March 9, 1988.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
RICHARD C. KEHLER, APPELLEE



Appeal from the Order of the Court of Common Pleas of McKean County, in the case of In Re: The Appeal of Richard C. Kehler, d/b/a Park Hotel, 25 Pearl Street, Port Allegheny, Pa., No. 95 Criminal of 1985.

COUNSEL

Eileen S. Maunus, Assistant Counsel, with her, Kenneth B. Skelly, Chief Counsel, for appellant.

Merle G. Johnson, for appellee.

Judges MacPhail, Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 114 Pa. Commw. Page 311]

The Pennsylvania Liquor Control Board (Board) appeals the order of the Court of Common Pleas of McKean County (trial court) rejecting the findings and conclusions of the Board and reversing the Board's decision finding Richard C. Kehler (Licensee) to be in violation of the law of the Commonwealth and/or regulations of the Board and imposing a fine of $1,000.00. We vacate and remand.

It was Super Bowl Sunday, January 22, 1984. The Licensee, who operated the Park Hotel in Port Allegheny, decided to have a private party for his best customers. Realizing that he did not have a Sunday sales license, Licensee went to great pains to have someone on a committee order a keg of beer and some food. Those invited to the party contributed $10.00 each.

Two uninvited guests, who were enforcement officers for the Board, walked into the licensed premises through the unlocked back door. They observed seven persons sitting around a round table playing poker with both coins and bills on the table. Beer was being served through taps from behind the bar. Several men were drinking beer from plastic cups. The officers also saw a table in an adjoining room where dice were being thrown. There were approximately 22 persons present at the party.

[ 114 Pa. Commw. Page 312]

As soon as the Licensee became aware of the two strangers, he requested them to leave, explaining this was a private party. The officers left and returned about an hour later with two local police officers and a Pennsylvania State Trooper. This time, the back door was locked. After displaying their credentials, the officers were admitted. There was no one at the poker or dice tables but some persons were still drinking beer. No liquor was seen to be drunk or dispensed.

Upon receiving the results of this investigation, the Board cited Licensee for violating the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 1-101 -- 9-902, by furnishing malt or brewed beverages during hours when such sales were prohibited*fn1 and for permitting gambling on the premises. Following a Board hearing, Licensee was found to be in violation of the Code in both respects and a fine of $1,000 was assessed.

Licensee appealed. The trial court conducted a de novo hearing and entered an order sustaining the appeal. The Board filed notice of its appeal to this Court and was directed by the trial court to set forth a statement of the matters complained of on appeal. The Board stated that since gambling was a violation of Section 5513 of the Crimes Code, 18 Pa. C. S. § 5513, such activity constituted ...


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