Appeal from the Order of the Court of Common Pleas of Blair County in the case of In re: Appeal of Alfred J. Mignogna, Jr. and Barbara L. Mignogna, trading as Hotel Belmar, from Judgment of Pennsylvania Liquor Control Board suspending license, Petition No. 98 of 1987.
Eileen S. Maunus, Assistant Counsel, with her, Kenneth B. Skelly, Chief Counsel, for appellant.
Harold E. Miller, for appellees.
Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. This decision was reached prior to the resignation of Judge MacPhail.
[ 120 Pa. Commw. Page 406]
The Pennsylvania Liquor Control Board (Board) appeals from an order of the Court of Common Pleas of Blair County which vacated a ten-day suspension of the liquor license of Alfred J. Mignogna and his wife (Licensees) imposed by the Board and instead imposed a $200 fine. We reverse in part, vacate in part and remand.
Licensees trade as the Hotel Belmar (Hotel). On September 2, 1986, Scott Reed, a fourteen-year-old minor, went to the Hotel with Charles Rodgers, an adult. They seated themselves at a table and Rodgers went and purchased a pitcher of beer from the bar. Rodgers purchased two more pitchers of beer during the course of the evening, and Reed had five glasses of beer from the two pitchers. At no time during the period Reed and Rodgers were in the Hotel's bar did Hotel employees ask Reed to show any proof of his age or to sign a card declaring his age. Because of this incident, Licensees were cited for permitting beer to be furnished to a minor in violation of Section 493(1) of the Liquor Code (Code).*fn1
Subsequently, on Sunday, October 26, 1986, Board enforcement officers went to Licensees' establishment. They found a private party in progress where beer was being consumed. The officers also found money in the bar's cash register. At that time, Mr. Mignogna presented the officers with receipts for the beer being consumed by the individuals having the private party indicating that the beer had been purchased by the hosts of the private party. The next day Mr. Mignogna supplied
[ 120 Pa. Commw. Page 407]
the Board with a contract between him and the hosts of the private party which stated that any alcoholic beverages consumed at the party would have to be purchased by the hosts. Because Licensees lacked a Sunday sales permit, they were cited for selling liquor without a permit in violation of Section 493(16) of the Code, 47 P.S. § 4-493(16).
Further, Licensees were cited at some point with violating 40 Pa. Code § 5.16, which requires that the designated manager of a Board-licensed establishment devote full time to the licensed premises and that he cannot have any other employment while managing the licensed premises without the approval of the Board. The citation was issued because the designated manager, Mr. Mignogna, went back to work with the Altoona Area School District in September 1985 without informing the Board.
All three citations were consolidated for a hearing, and the Board held the evidence sufficient to support all three citations. Accordingly, the Board suspended Licensees' license for ten days.
Licensees appealed the suspension to the court of common pleas. At the de novo hearing before the common pleas court, the only evidence presented was the transcript of the Board proceedings. The court found the evidence insufficient to support a finding that either Section 493(1) (selling beer to a minor) or Section 493(16) (Sunday sales) of the Code had been violated. The court also found, however, that Licensees had violated 40 Pa. Code § 5.16 relating to Mr. Mignogna as manager. ...