October 21, 2010
ERIE SPORTS BAR, INC. T/A COACH'S SPORTS BAR & GRILL
PENNSYLVANIA STATE POLICE, BUREAU OF LIQUOR CONTROL ENFORCEMENT, APPELLANT
The opinion of the court was delivered by: Senior Judge Kelley
Argued: April 19, 2010
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE JOHNNY J. BUTLER, Judge HONORABLE JAMES R. KELLEY, Senior Judge
Appellant Pennsylvania State Police, Bureau of Liquor Control Enforcement (Bureau), appeals from an order of the Court of Common Pleas of Erie County (Trial Court) which granted the appeal of Erie Sports Bar, Inc., t/a Coach's Sports Bar & Grill (Licensee) from an order and decision of the Liquor Control Board (Board). The Trial Court's order also dismissed a civil citation against Licensee for a violation of Section 493(1) of the Liquor Code,*fn1 for selling, furnishing, and/or giving an alcoholic beverage to an underage person. We affirm.
On April 9, 2007, an undercover Liquor Enforcement Officer entered Licensee's premises. Shortly thereafter, as part of the Bureau's Age Compliance Check Program, a 19-year-old female identified as an Underage Buyer entered Licensee's premises and approached the bar. The Underage Buyer then ordered a bottle of beer from Licensee's bartender, who served the Buyer without questioning her age, and completed the sale. The Underage Buyer then promptly left Licensee's premises without consuming the beer.
The Bureau subsequently notified Licensee, by certified letter received thereby on May 1, 2007, of the alleged violation of Section 493(1) of the Liquor Code*fn2 resulting from Licensee's sale of the beer to the Underage Buyer.
The Bureau issued a citation dated May 25, 2007, via certified mail, to Licensee for the violation at issue.
A hearing on the citation ensued before a Bureau Administrative Law Judge (ALJ), at which both parties appeared and were represented by counsel. After hearing testimony, and upon review of the evidence presented, the ALJ issued an Adjudication dated December 11, 2007. Following the Adjudication's Findings of Fact, the ALJ concluded that the Bureau had failed to provide immediate notification to Licensee's Board-approved premises manager, and/or person in charge, once the alleged violation within the premises had been established, in violation of Section 23.23(1) of Title 37 of the Pennsylvania Code.*fn3
The ALJ's Adjudication accordingly dismissed the citation.*fn4
The Bureau thereafter appealed the Adjudication to the Board. Following its review of the parties' arguments, and the record to the matter, the Board issued an Opinion and Order dated April 2, 2008. Therein, the Board concluded, inter alia, that Licensee was strictly liable for the alleged violation of Section 493(1) of the Liquor Code notwithstanding the Bureau's failure to demonstrate that it had complied with the immediate notification provisions of Section 23.23(1) of Title 37 of the Pennsylvania Code. The Board expressly concluded that Section 23.23(1) did not add to the burden of proof required of the Bureau in civil administrative hearings against licensees for a violation of Section 493(1) of the Liquor Code. The Board further concluded that the ALJ's dismissal was an error of law, reversed the ALJ's Adjudication, and granted the Bureau's appeal.*fn5
Licensee thereafter appealed to the Trial Court, which heard argument from the parties without receiving additional evidence. By Order dated August 5, 2008,*fn6 the Trial Court concluded that the Bureau's compliance with the applicable provisions of the Pennsylvania Code, including Section 23.23(1) of Title 37, was mandatory and required for the pursuit of any alleged violations detected under the Bureau's employment of the Age Compliance Check Program, and that the Pennsylvania Code's notice requirements provided a licensee with particularly important opportunities regarding both the defense of a subsequent violation proceeding, and the ability to take responsibility and correct any noted problems. Further, the Trial Court emphasized that without any sanction for the Bureau's notice failure at issue, no incentive would exist for the Bureau to conform their behavior to the clear requirements of the law. Accordingly, the Trial Court granted Licensee's appeal, overturned the Board's Decision and Order, and dismissed the citation. The Bureau now appeals from the Trial Court's order.
This Court's review is limited to determining whether the decision of the trial court is based on substantial evidence, and whether the trial court abused its discretion or committed an error of law. 5708 K&T, Inc. v. Pennsylvania Liquor Control Board, 951 A.2d 1232 (Pa. Cmwlth. 2008).
The Bureau asserts one issue in the instant appeal: whether the Trial Court erred in concluding that the notice provisions of the Age Compliance Program Check applied to a civil proceeding for a licensee violation of Section 493(1) of the Liquor Code.
The Bureau argues that the Trial Court erred in judicially amending the statutory language of the Liquor Code, in that the elements of an offense under Section 493(1) do not require the immediate notification of a licensee for a violation thereof. Under the Bureau's view, to prove a violation of Section 493(1) the Bureau need only prove that on the date of the violation, the establishment provided alcohol to a minor; the only valid defense to this charge is found in Section 495 of the Liquor Code, 47 P.S. §4-495,*fn7 which defense is not applicable under the instant facts. The Bureau emphasizes that the Board noted that the Age Compliance Check Program provisions are not implicated in a civil administrative prosecution by the Bureau. R.R. at 153a.
The Bureau further argues that the Underage Buyer herein did not violate Section 6308(a) of the Crimes Code,*fn8 when she purchased alcohol, and that nothing in any subsection of Section 6308, and nothing in the attendant regulations promulgated thereunder, alters the elements of a charged offense under the Crimes Code. The Bureau asserts that it only needs to show compliance with Section 6308 requirements in a criminal prosecution against an underage buyer for having made an otherwise unlawful purchase, and that those provisions are relevant only in a Bureau attempt to establish an effective defense for an underage buyer. The Bureau's position is founded upon its conclusion that the only notification requirement to a licensee relevant to the instant matter is that required upon completion of the Bureau's investigation. Section 471(b) of the Liquor Code, 47 P.S. §4-471(b).*fn9
The Bureau asserts, correctly, that there is no dispute herein that the Bureau provided this notification via timely certified letter to Licensee upon the completion of its investigation. R.R. at 122a.
We cannot adopt the Bureau's preferred interpretation of the statutory and regulatory scheme at issue herein. Section 6308(e)(3) of the Crimes Code mandates that compliance checks conducted under the Program shall be conducted in a manner consistent with the regulations promulgated under that Section. In availing itself of the distinct enforcement advantages statutorily provided for in the Age Compliance Check Program, the Bureau must concomitantly submit to the clear statutory and regulatory requirements thereof, including the immediate notice provision at issue. Following the mandate for regulatory promulgation under Section 6308, the language of Section 23.23(1) of Title 37 of the Pennsylvania Codeis clear and unambiguous, and requires without exception that immediate verbal notification will be provided as a mandated part of the Age Compliance Check Program. There is no provision anywhere within the applicable regulations to the Age Compliance Check Program that supports the Bureau's theory that the notification provision at issue herein is only applicable for purposes of providing a defense to a minor or the Bureau if either were to be prosecuted with a violation of Section 6308; there is only a mandate for immediate verbal notice in the face of a violation, without exception thereto or qualification thereof. It is undisputed that immediate notification was not provided by the Bureau in this case.
Further, due process implications attach to the notice provisions of the statute at issue, and to the regulations promulgated thereunder. Section 23.23(1) of Title 37 of the Pennsylvania Code requires immediate verbal notification to be provided to the in-charge personnel of the premises at which the enforcement action has been undertaken, if a violation is found. It is axiomatic that due process rights encompass rights to both notice, and to an opportunity to be heard. See, e.g., DeMarco v. Pennsylvania Liquor Control Board, 657 A.2d 1359 (Pa. Cmwlth. 1995). To the extent that particular forms of notice have been mandated by the General Assembly via statute, or via regulation properly promulgated thereunder, due process protections are implicated. Given that the notice provision required by Section 23.23(1) is directed solely at the premises at which the Bureau has undertaken an action (and found a violation) under the Age Compliance Check Program, due process demands that such an action (when a violation has been found) include the mandated immediate notice to those premises.*fn10 Where specifically provided for and expressly mandated without exception, due process protections are not optional.
Additionally, as Licensee has argued, any lack of the notice plainly mandated in Section 23.23(1) prejudices the owner, operator, or possessor of the premises subject to the Age Compliance Check Program by removing the opportunity to observe, document, and/or preserve any evidence, witnesses, or surveillance of the incident at issue, as well as depriving the premises of any opportunity to immediately correct any problem perceived with procedures, or with the employees responsible for any found violation.
In summation, we hold that if the Bureau avails itself of the Age Compliance Check Program, it must abide by the mandates of that program, including the notice provisions promulgated thereunder, notwithstanding the subsequent criminal burden the Bureau may face in its subsequent criminal prosecution of the premises targeted by the Program under a section of the Crimes Code. Where the General Assembly, or an administrative body under its own regulations promulgated pursuant to statute, expressly provides for mandated notice, due process protections attach to that notice.
Accordingly, we affirm.
AND NOW, this 21st day of October, 2010, the order of the Court of Common Pleas of Erie County, dated August 5, 2008, at No. MD-208-2008, is affirmed.
JAMES R. KELLEY, Senior Judge
CONCURRING OPINION BY JUDGE SIMPSON
Although I agree with the result reached by the majority, I write separately to offer a refined analysis of the procedural due process issue resulting from the failure of the Bureau to provide immediate notification of the age compliance check, as required by regulation.
The majority writer states: "Where specifically provided for and expressly mandated without exception, due process protections are not optional." Majority Slip Op. at 11. While this statement is true, it is not the end of the analysis. To support a remedy, the petitioner must also demonstrate prejudice. State Dental Council & Examining Bd. v. Pollock, 457 Pa. 264, 318 A.2d 910 (1974) (demonstrable prejudice is a key factor in assessing whether procedural due process was denied).
When confronted with a claim of procedural due process deprivation, this Court undertakes a Mathews analysis, following the guidance of the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319 (1976). This approach was recently applied in In re McGlynn, 974 A.2d 525 (Pa. Cmwlth. 2009), Pennsylvania Bankers Association v. Department of Banking, 981 A.2d 975 (Pa. Cmwlth. 2009), and Messina v. East Penn Township, 995 A.2d 517 (Pa. Cmwlth. 2010) (en banc). Essential to the analysis is whether the process afforded was such as to create a risk of erroneous deprivation of a protected interest.
Undertaking a Mathews analysis here, I conclude that the lack of immediate notice created a risk of erroneous deprivation of Licensee's interest in keeping its liquor license. In particular, the lack of immediate notice interfered with Licensee's ability to preserve evidence relating to the age violation. The risk of erroneous deprivation of a protected interest outweighs any burden on the Bureau associated with giving immediate notice. In short, after a Mathews analysis, I concur with the result.
ROBERT SIMPSON, Judge