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COMMONWEALTH PENNSYLVANIA v. BOARDWALK (09/20/88)

decided: September 20, 1988.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
THE BOARDWALK, INC., APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County, in the case of In Re: The Boardwalk, Inc., appealing from the Revocation of its Restaurant Liquor License v. Pennsylvania Liquor Control Board, No. S.A. 1881 of 1986.

COUNSEL

Eileen S. Maunus, Assistant Counsel, for appellant.

Louis E. Caputo, Caputo & Caputo, P.C., for appellee.

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

Author: Craig

[ 119 Pa. Commw. Page 556]

The Pennsylvania Liquor Control Board appeals from an order of the Court of Common Pleas of Allegheny County that reversed an order of the board revoking the liquor license of The Boardwalk, Inc.

The issues presented are (1) whether the court erred by concluding that the licensee was not responsible for drug-dealing activities having some contact with the licensed premises, and (2) whether the court erred by concluding that revocation of the corporation's liquor license was not warranted where the corporate ownership had passed to lienholders not connected with the

[ 119 Pa. Commw. Page 557]

    violations of the Liquor Code*fn1 for which the board cited the corporate licensee, even though those violations otherwise were sufficient to justify an order of revocation.

The board's revocation order was based on the following findings:

1. The licensee, by its servants, agents or employes aided, abetted or engaged in the traffic in or sale of a controlled substance on the licensed premises in the furtherance of the traffic in or use of a controlled substance, on December 12, 1984.

2. The licensee, by its servants, agents or employes sold liquor and/or malt or brewed beverages after its Restaurant Liquor License expired on April 30, 1985 and had not been renewed, on May 25, 1985 . . . .

The licensee appealed from the board's order, and the common pleas court conducted a de novo hearing. The court summarized the testimony on the issue of drug sales as follows:

Drug Enforcement Agency (DEA) Agent Joseph Ratter*fn2 purchased (2) ounces of cocaine on 24 October 1984 from a Mr. Farber (Farber).*fn3 On 1 December 1984 DEA Agent Ratter met with a John Kelleher (Kelleher) and a Frank Torsia, Jr. (Torchia) and again purchased two (2) ounces of cocaine from them. These two (2) transactions occurred during a time when the Licensee's premises were not open for business.

[ 119 Pa. Commw. Page 558]

On 12 December 1984 DEA Agent Ratter made a phone call to order eight (8) ounces of cocaine for purchase. This call was made to Licensee's premises. A total of three (3) phone calls were made to or from Licensee's premises. Incoming calls were answered by Farber with the salutation 'Boardwalk.'

A search of Licensee's premises produced a white powder substance which was field tested and found to be cocaine.*fn4 Farber owned 150 shares in Licensee's premises as testified to by witness Guy M. Davis.*fn5 DEA Agent Ratter's testimony was corroberated [sic] by Special Agent James Devanney.*fn6 (Footnotes added.)

The trial court, as well as the board, found that the corporation sold alcoholic beverages after its license had expired in 1985. The uncontradicted testimony before the court of an LCB enforcement officer was that on May 25, 1985, roughly one month after the corporation's license expired on April 30, 1985, and before any renewal of the license, the officer visited the establishment shortly after midnight and found ...


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