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Erie Sports Bar, Inc. v. Pennsylvania State Police

October 21, 2010

ERIE SPORTS BAR, INC. T/A COACH'S SPORTS BAR & GRILL
v.
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

OPINION

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 ...


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