decided: June 6, 1988.
ROYLENE ASHMAN, T/A ZACK'S PLACE, APPELLANT
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT V. ROYLENE ASHMAN, APPELLEE
Appeals from the Order of the Court of Common Pleas of Luzerne County, in the matter of Revocation of Restaurant Liquor License No. R-13125, Amusement Permit No. R-AP-13125 issued to Roylene Ashman t/a Zack's Place, 70-72 South Main Street, Pittston, PA, No. 268 of 1987.
Joseph J. Yeager, for appellant.
Faith S. Diehl, Assistant Counsel, with her, Kenneth B. Skelly, Chief Counsel, for appellee.
President Judge Crumlish, Jr., and Judges McGinley and Smith, sitting as a panel of three. Opinion by Judge McGinley. Judge Smith concurs in the result only.
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The Court of Common Pleas of Luzerne County (trial court) by order dated March 30, 1987, dismissed
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the appeal of Roylene Ashman (Licensee) of Citation No. 86-0284 and affirmed the finding of the Pennsylvania Liquor Control Board (PLCB) that Licensee served alcohol, malt and/or brewed beverages to a visibly intoxicated person in violation of Section 4-493(1) of the Pennsylvania Liquor Code (Code), 47 P.S. § 4-493(1),*fn1 but, reduced the penalty assessed by the PLCB. The PLCB appeals only the penalty modification. Licensee appeals the merits of the trial court's decision.
The controversy involves the trial court's adjudication at Citation No. 86-0284 and how that adjudication was affected or influenced by the trial court's adjudication of Citation No. 86-1373. On November 29, 1985, Licensee, owner of Zack's Place in Pittston, Pennsylvania, allegedly sold, furnished and/or gave liquor and/or malt or brewed beverages to a visibly intoxicated person. The PLCB imposed a $750 fine on Licensee. After hearing the trial court modified and reduced the fine from $750 to $350 at Citation No. 86-0284 because of the dismissal of an unrelated citation at No. 86-1373.*fn2
Our scope of review of a de novo appeal is limited to a determination of whether there is evidence to support the PLCB's order and whether or not the trial court
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committed an error of law or abused its discretion. Hanover Bowling Center, Inc. v. Commonwealth of Pennsylvania, 101 Pa. Commonwealth Ct. 522, 516 A.2d 845 (1986). We conclude that the trial court erroneously modified the penalty imposed by the PLCB when it incorrectly considered the disposition of the unrelated citation.
The Legislature invested the PLCB with the power and duty to enforce the Code and part of that duty is to set penalties for proven violations.*fn3 The Pennsylvania Supreme Court and this Court have consistently held that absent materially and significantly different findings of fact from that of the PLCB, the Common Pleas Court may not modify the penalty imposed by the PLCB. Matter of Elemar, Inc., 499 Pa. 8, 451 A.2d 209 (1982), In Re: Carver House, Inc., 454 Pa. 38, 310 A.2d 81 (1973). In Elemar, 499 Pa. at 16, 451 A.2d at 213, the Supreme Court explained the significance of this standard of review:
'[T]he lower court must make findings of fact on the material issues different from those as found by the board before the action taken by the board can be reversed or changed, unless the lower court's change or modification is so grounded, it cannot stand.' Carver House, Inc. Liquor License Case, 454 Pa. 38, 40, 310 A.2d 81, 82-83 (1973), quoting Italian Citizens National Association of America Liquor License Case, 178 Pa. Super. 213, 216, 115 A.2d 881, 882 (1955) (citing cases). Such a limitation on judicial review is well founded. As the relationship between penalty and policy is one particularly within the Board's special competence, the Board's decision as to the appropriate sanction to
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impose for a violation of the Code should not easily be disturbed on appeal.
The trial court made no materially different findings of fact to justify its modification and we hold that Licensee's successful appeal of an unrelated citation does not constitute a materially different finding of fact.
This Court in In Re: Boardwalk, Inc.,*fn4 70 Pa. Commonwealth Ct. 416, 453 A.2d 378 (1982) affirmed the holding that a penalty imposed by the PLCB could not be revised or reduced unless the court of common pleas has made findings that are significantly and materially different than the findings of the PLCB. We held that a finding that action taken by the PLCB in a case lacks factual foundation may require a reduction in the penalty imposed by the PLCB in a subsequent case involving a different violation, which the court finds to have been factually established, if the penalty decision of the PLCB in the later case is partly weighted by an express reference to the earlier violation.
Under In Re: Boardwalk, Inc. a trial court may impose a reduction in the penalty of a case involving a
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violation, if one, the trial court finds the violation is factually established; two, the PLCB's penalty decision of that violation was partly weighted by an express reference to an earlier violation; and, three, the trial court makes a finding that the earlier violation relied upon lacks factual foundation. In the case sub judice, the trial court did not have on record the necessary elements to justify a penalty modification under In Re: Boardwalk. The trial court did find that the violation of Citation No. 86-0284 was factually established and that the alleged violations of Citation No. 86-1373 lacked factual foundation. However, the PLCB never made an express reference in Citation No. 86-0284 to Citation No. 86-1373 and its penalty decision was not weighted by the alleged violations at Citation No. 86-1373.*fn5 The trial court's reduction in penalty imposed by the PLCB is not justified.
Licensee argues that the PLCB did not sustain its burden of proof that Licensee served a visibly intoxicated person. This argument is without merit. PLCB enforcement officers are competent to express their opinion as to whether the person served is visibly intoxicated and that opinion is sufficient evidence to find a violation of the Code. Laukemann v. Commonwealth, Pennsylvania Liquor Control Board, 82 Pa. Commonwealth Ct. 502,
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A.2d 955 (1984) citing Turner v. Pennsylvania Liquor Control Board, 161 Pa. Superior Ct. 16, 53 A.2d 849 (1947). The testimony of PLCB Officer Tyler is sufficient evidence that Licensee violated the Code.*fn6
The order of the trial court is hereby affirmed in part, as to the merits of the decision, and reversed in part, as to the penalty modification. The $750 fine is reinstated.
And Now, this 6th day of June, 1988, the order of the Court of Common Pleas of Luzerne County dated March 30, 1987, No. 268 of 1987, is affirmed in part as to the merits of the violation and reversed in part as to the penalty modification and the $750 fine is reinstated.
Affirmed in part as to the merits of the violation and reversed in part as to the penalty modification and original fine reinstated.