Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of In re: T.J.J.R., Inc., Appealing from the Decision of the Pennsylvania Liquor Control Board v. Pennsylvania Liquor Control Board, No. S.A. No. 161 of 1987.
Paul T. Sosnowski, Assistant Counsel, with him, Kenneth B. Skelly, Chief Counsel, for appellant.
No appearance for appellee.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig. This decision was reached prior to the resignation of Judge MacPhail.
[ 120 Pa. Commw. Page 314]
This appeal by the Pennsylvania Liquor Control Board (LCB) from an order of the Court of Common Pleas of Allegheny County presents an issue of first impression:
Where the LCB has proved that a licensee permitted minors to frequent the licensed premises, must the LCB also prove the absence of proper supervision of the minors in order to establish a violation by the licensee, or does the licensee have the burden of showing proper supervision as a matter of affirmative defense?
Pursuant to section 493 of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-493, the LCB found that T.J.J.R., Inc., the licensee, violated subsection (1) of that section by furnishing alcoholic beverage to a minor and also its subsection (14) by permitting minors to frequent the licensed premises. From the LCB's imposition of a fine of $600, the licensee appealed to the common pleas court.
[ 120 Pa. Commw. Page 315]
After a de novo hearing before the court, at which the LCB presented evidence but the licensee did not, the trial judge filed an opinion reciting the facts and stating findings of fact as follows:
From 25 September to 11 October 1985 PLCB Enforcement Officer Thomas Manion conducted an investigation of Licensee. On 11 October 1985 Manion observed Francis B. Gusty possessing and consuming a glass of amber colored liquid (later determined to be beer). During an 'open' inspection Manion questioned Gusty and discovered that Gusty was only 19 years of age. Manion also found that Licensee did not maintain a minor I.D. card file.
On 11 October 1985 Gusty had come to Licensee's premises with friends. While there one friend ordered a draft beer for Gusty which Gusty consumed while on Licensee's premises. Gusty was never requested to produce any identification as to his age by anyone employed by Licensee.
Licensee's premises is a well-known restaurant. It specializes in the preparation and service of food -- not liquor or beer. Frequently minors come there with family and/or friends to partake of the food and non-alcoholic beverages offered for sale. Gusty himself had been there several times previously. On those ...