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Pennsylvania State Police v. Harrisburg Knights of Columbus Home Association

October 19, 2009

PENNSYLVANIA STATE POLICE, BUREAU OF LIQUOR CONTROL ENFORCEMENT
v.
HARRISBURG KNIGHTS OF COLUMBUS HOME ASSOCIATION, APPELLANT



Per curiam.

ORDER

NOW, December 21, 2009, it is ordered that the above-captioned Memorandum Opinion, filed October 19, 2009, shall be designated OPINION and shall be REPORTED.

Argued: September 17, 2009

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.

OPINION

SENIOR JUDGE McCLOSKEY

The Harrisburg Knights of Columbus Home Association (Licensee) appeals from an order of the Court of Common Pleas of Dauphin County (trial court), denying its appeal from an order of the Pennsylvania Liquor Control Board (the Board) affirming the decision and order of the Administrative Law Judge (ALJ) and dismissing its appeal. We now affirm.

Licensee is the holder of a Pennsylvania Liquor License, No. CC-5300, for its premises located at 145 Peach Street, Harrisburg, Dauphin County, Pennsylvania. On November 29, 2007, the Pennsylvania State Police, Bureau of Liquor Control Enforcement (the Bureau), filed a citation against Licensee alleging that it had violated the Local Option Small Games of Chance Act (LOSGCA), Act of December 19, 1988, P.L. 1262, as amended, 10 P.S. §§311 - 327, and the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§1-101 -- 10-1001.

Specifically, the first count in the citation alleged that Licensee: failed to maintain complete and truthful records covering the operation of the licensed business for a period of two (2) years immediately preceding August 13, 2007, concerning [LOSGCA], in violation of Sections 471 and 493(12) of the Liquor Code, 47 P.S. §§4-471 and 4-493(12), Section 311 of LOSGCA, 10 P.S. §311 and Section 901 of the Department of Revenue Regulations, 61 Pa. Code §901.*fn1

(R.R. at 12a - 13a).

The citation's second count alleged that for approximately twenty-nine consecutive weeks Licensee awarded more than $5,000.00 in cash as prize money in violation of Section 471 of the Liquor Code and Section 315(b) of LOSGCA.*fn2 The citation further indicated that a hearing would be scheduled before an ALJ to "show cause as to why such license should not be suspended or revoked or a fine imposed." (R.R. at 13a).

Subsequently, on December 4, 2007, Albert Chaki, Licensee's president, signed a "statement of waiver, admission and authorization" form. The waiver form indicated that Licensee was admitting to all violations contained in the citation; admitting that the Bureau had complied with the notice requirements; waiving the right to a hearing; waiving the right to appeal the adjudication and authorizing the ALJ to enter an adjudication based on the summary of the facts as presented. (R.R. at 15a). This waiver form also indicated that the possible penalties authorized by law for each of the violations was a license suspension and/or revocation; a license suspension and/or revocation of any ancillary permit, including but not limited to the Amusement Permit or the Sunday Sales Permit; and/or the imposition of a fine of $50.00 to $1,000.00. Further, the waiver form indicated that if the violation was the third or subsequent violation of any of the offenses referred to in Section 471 of the Liquor Code or the Crimes Code, Act of December 6, 1972, P.L. 1482, as amended, 18 Pa.C.S. §§101 -- 1110, within a four year period, the ALJ was required to impose a license suspension upon Licensee.

On January 15, 2008, the ALJ sustained the citation and imposed a $1,000.00 fine for each of the two counts, plus a ten day suspension of Licensee's liquor license. The ALJ found that during the Bureau's routine inspection of Licensee's records, it was discovered that the records did not reflect all of the prizes awarded or all of the games' serial numbers. The ALJ found that the name of the person who won more than $100.00 was missing and that Licensee's routine payouts exceeded the $5,000.00 prize limit in any seven day period.*fn3 Licensee filed an appeal to the Board alleging that the Bureau did not have jurisdiction over the administration of small games of chance because jurisdiction rested solely with the Pennsylvania Department of Revenue (the Department) and law enforcement officials, neither of which included members of the Bureau.

By opinion and order with a mailing date of April 2, 2008, the Board affirmed the ALJ's order and dismissed Licensee's appeal. The Board noted that Licensee had executed a waiver admitting to all violations and authorizing the ALJ to enter an adjudication; thus, it had voluntarily relinquished its right to appeal the ALJ's decision. The Board rejected Licensee's argument that an appeal on jurisdictional grounds was not subject to waiver because it did not cite any authority in support of that proposition. However, despite its conclusion that the issue was waived, the Board addressed the jurisdictional issue and concluded that the Bureau did have jurisdiction in matters concerning LOSGCA because of the authority conferred on it by the language "other sufficient cause shown" as set forth in Section 471 of the Liquor Code. The Board noted that said language had been ...


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