Appeal from the Order of the Court of Common Pleas of Allegheny County, in the case of Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board v. Charles W. Locy, No. S.A. 2445 -- 87.
Ross F. Dacal, Litman, Litman, Harris, Brown and Watzman, P.C., for appellant.
Eileen S. Maunus, Assistant Counsel, with her, Cheryl G. Young, Chief Counsel, for appellee.
Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. Dissenting Opinion by Judge McGinley.
[ 125 Pa. Commw. Page 482]
Charles W. Locy (Licensee) appeals an order of the Court of Common Pleas of Allegheny County which affirmed an order of the Pennsylvania Liquor Control Board (Board) imposing a ten day suspension of his restaurant liquor license for discounting the price of alcoholic beverages in violation of Board Regulation 13.102(a), 40 Pa. Code § 13.102(a).*fn1
On February 27, 1987, at approximately 8:40 p.m., Board Enforcement Officer Todd Merlina (Merlina) entered Licensee's establishment, the Victorian Lounge, and observed a sign stating "Fridays, domestic beer and bar liquor 85 cents." The bartender replied in the affirmative when Merlina queried whether the "special [price] was all night." (Hearing Transcript, March 15, 1988 (H.T.), at 6.) Merlina purchased a 12 oz. bottle of beer and a shot of whiskey paying $0.85 for each. Merlina then returned after midnight (February 28, 1987). The bartender again replied in the affirmative when Merlina queried whether the "special [price] was still on." (H.T. at 7.) Merlina ordered the same drinks as he had ordered earlier, and was again charged $0.85 for each. (H.T. at
[ 125 Pa. Commw. Page 4835]
-7). Merlina had also been at the Licensee's establishment on Thursday, February 5, 1987, and purchased a beer for $1.00.
On March 12, 1987, Merlina inquired as to the regular price of beer, and was informed by the bartender that the regular price was $1.00. (H.T. at 9.) Merlina returned to the Victorian Lounge on Friday March 13, 1987, and ordered a bottle of beer and a shot of whiskey paying $0.85 for each. The bartender informed Merlina that the regular price for whiskey was $1.50, and further stated that the $0.85 price was "a good deal." (H.T. at 8-9.)
At the conclusion of its investigation, the Board sent to Licensee, by certified mail, a notice of violation. After a hearing, the Board imposed a ten day suspension for illegally discounting the price of alcoholic beverages, in violation of Regulation § 13.102(a). That regulation pertinently provides:
(a) General. Retail licensees may discount the price of alcoholic beverages for a consecutive period of time not to exceed 2 hours in a business day, but may not engage in discount pricing practices between 12 midnight and the legal closing hour.
Licensee filed an appeal with the trial court. Following the de novo hearing, the trial court upheld the order of ...