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Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Kenrich Athletic Club

July 19, 2012

PENNSYLVANIA STATE POLICE, BUREAU OF LIQUOR CONTROL ENFORCEMENT
v.
KENRICH ATHLETIC CLUB, LICENSE NO. C-1927, APPELLANT



The opinion of the court was delivered by: P. Kevin Brobson, Judge

Argued: February 14, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE BROBSON

In this appeal from an April 6, 2011 Order of the Court of Common Pleas of Philadelphia County (trial court), we must construe Section 471 of the Liquor Code,*fn1 which sets forth administrative remedies for those aggrieved by the adjudication by administrative law judges of Liquor Code violation citations issued by the Pennsylvania State Police Bureau of Enforcement (Bureau). In this case, the trial court vacated for lack of jurisdiction an order of the Pennsylvania Liquor Control Board (Board), dated May 12, 2010, and validated suspension dates imposed by an administrative law judge on Appellant Kenrich Athletic Club (Licensee). We now affirm.

Section 471 of the Liquor Code provides, in relevant part: (a) Upon learning of any violation . . . by any licensee within the scope of this article . . . or upon any other sufficient cause shown, the enforcement bureau may, within one year from the date of such violation or cause appearing, cite such licensee to appear before an administrative law judge . . . to show cause why such license should not be suspended or revoked or a fine imposed, or both. . . .

(b) Hearing on such citations shall be held in the same manner as provided herein for hearings on applications for license. Upon such hearing, if satisfied that any such violation has occurred or for other sufficient cause, the administrative law judge shall immediately suspend or revoke the license, or impose a fine . . . . The administrative law judge shall notify the licensee by registered mail, addressed to the licensed premises, of such suspension, revocation or fine. Suspensions and revocations shall not go into effect until thirty days have elapsed from the date of the adjudication during which time the licensee may take an appeal as provided for in this act, except that revocations mandated in section 481(c) shall go into effect immediately . . . . In the event the bureau or the person who was fined or whose license was suspended or revoked shall feel aggrieved by the adjudication of the administrative law judge, there shall be a right to appeal to the board. The appeal shall be based solely on the record before the administrative law judge. The board shall only reverse the decision of the administrative law judge if the administrative law judge committed an error of law, abused its discretion or if its decision is not based on substantial evidence. In the event the bureau or the person who was fined or whose license was suspended or revoked shall feel aggrieved by the decision of the board, there shall be a right to appeal to the court of common pleas in the same manner as herein provided for appeals from refusals to grant licenses. Each of the appeals shall act as a supersedeas unless, upon sufficient cause shown, the reviewing authority shall determine otherwise; however, [under certain enumerated circumstances, the licensee's] appeal shall not act as a supersedeas unless the reviewing authority determines otherwise upon sufficient cause shown. . . . (Emphasis added.) Our task here is to construe and apply this language to a procedural history that involves multiple administrative appeals and remands.

The origin of this convoluted matter dates back to April 29, 2008, the date of the Bureau's Citation No. 08-0930 (Citation) directed to Licensee. Therein, the Bureau levied its charges against Licensee. The matter proceeded to a hearing before Administrative Law Judge Tania Wright (ALJ Wright) on December 17, 2008. ALJ Wright issued her adjudication on the merits of the Citation on February 17, 2009 (Adjudication), concluding that the Licensee did violate the law as charged in the Citation. The ALJ imposed a fine and a license suspension of fourteen (14) days. The ALJ, however, deferred setting the period of suspension for a later order. Licensee did not appeal the Adjudication to the Board.

Thereafter, on March 10, 2009, ALJ Wright issued a Supplemental Order, setting the period of suspension beginning on Monday, March 30, 2009, and ending on Monday, April 13, 2009 (First Suspension Order). Licensee did not appeal the First Suspension Order to the Board.

On April 1, 2009, at Licensee's request, ALJ Wright issued a Second Supplemental Order (Second Suspension Order). In that order, ALJ Wright noted that though Licensee had begun serving its suspension as of March 30, 2009, Licensee requested an accommodation, because it had a major event scheduled at its facility for April 4, 2009. ALJ Wright noted that by that date, Licensee will have served four (4) days of the fourteen (14) day suspension. The Second Suspension Order allowed Licensee to reopen on Friday morning, April 3, 2009, and imposed a ten (10) day suspension (i.e., the balance of the original suspension), beginning on April 17, 2009 and ending on April 27, 2009.

On or about April 9, 2009, Licensee appealed the Second Suspension Order to the Board, triggering the automatic supersedeas provision in Section 471(b) of the Liquor Code. Licensee did not dispute the underlying violations. Its appeal focused solely on the ten (10) day suspension period set forth in the Second Suspension Order. Licensee claimed that the ALJ erred by not honoring an agreement to provide Licensee with forty-five (45) days advance notice of the suspension period. Licensee asked that the Board set the period of suspension to begin forty-five (45) days from the date he signed his appeal document (not the date of filing). If granted by the Board, the suspension would begin on May 23, 2009, and end on June 1, 2009. The Board affirmed the suspension dates on May 20, 2009 (First Board Decision). In so doing, the Board noted that Section 471(b) of the law provides that a suspension should not go into effect until thirty (30) days after the adjudication and order are mailed. The ALJ's Second Suspension Order, setting the ten (10) day suspension was issued on April 1, 2009, well-beyond thirty (30) days from the date of the Adjudication. Accordingly, the Board held that the ALJ did not err in the Second Suspension Order. Because of the automatic supersedeas, however, the Board remanded the matter to impose a new suspension period.

Dissatisfied with the Board's disposition, Licensee appealed to the trial court.*fn2 Based on our review of the transcript of the January 13, 2010 proceeding before the trial court and the trial court's March 18, 2010 Order, the trial court denied Licensee's appeal of the First Board Decision and remanded the matter only to set new suspension dates for the unexpired period of the original suspension.*fn3

ALJ Wright issued her Order Upon Remand from the Court of Common Pleas of Philadelphia County, with a mailing date of April 7, 2010 (Order on Remand). ALJ Wright ordered that the unexpired ten-day suspension period begin on April 30, 2010 and end on May 10, 2010. License appealed the Order on Remand to the Board, arguing that Section 471(b) of the Liquor Code required the ALJ to set the suspension to begin more than thirty (30) days in the future. In a May 12, 2010 decision (Second Board Decision), the Board accepted Licensee's interpretation of Section 471(b) of the Code and remanded the matter yet again for a new period of suspension. By order dated May 19, 2010 (but mailed May 24, 2010), ALJ Wright set new suspension dates in compliance with the Second Board Decision.*fn4 Of note on that order, however, is ALJ Wright's reaction to the Board's interpretation of Section 471(b):

The Board's acceptance of this appeal and the decision to apply the thirty day rule governing implementation of suspension decisions following Adjudications by the Office of Administrative Law Judge as set forth in 47 P.S. Section 471(b), to an Order of Suspension issued by this office in response to a decision and directive in a matter before the Court of Common Pleas, and not from an adjudication of the Office of Administrative Law Judge, is legally perplexing.

In the meantime, however, the Bureau disagreed with the Board's most recent interpretation of Section 471(b) of the Liquor Code and appealed the Second Board Decision to the trial court. Under Section 471(b) of the Liquor Code, ...


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