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Pennsylvania State Police, Bureau of Liquor Control Enforcement v. S&B Restaurant

July 26, 2012

PENNSYLVANIA STATE POLICE, BUREAU OF LIQUOR CONTROL ENFORCEMENT
v.
S&B RESTAURANT, INC., T/A, THE WOODLANDS, AN INN, APPELLANT



The opinion of the court was delivered by: Renee Cohn Jubelirer, Judge

Submitted: April 13, 2012

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE COHN JUBELIRER

S&B Restaurant, Inc., t/a, The Woodlands, An Inn (Licensee), appeals from an Order of the Court of Common Pleas of Luzerne County (trial court) dismissing Licensee's appeal and affirming the opinion and order of the Pennsylvania Liquor Control Board (PLCB). The PLCB suspended Licensee's liquor license for three days and imposed a penalty of $2,000.00 after sustaining the charge in a citation issued to Licensee by the Pennsylvania State Police, Bureau of Liquor Control Enforcement (Bureau) for violating Section 493(1) of the Liquor Code*fn1 by furnishing and/or selling liquor or malt or brewed beverages to a minor.*fn2 Licensee argues that the trial court abused its discretion and committed several errors of law when it upheld Licensee's violation of Section 493(1) of the Liquor Code.

Licensee is the owner and holder of a Pennsylvania liquor license. In 2009, Licensee hosted special underage events on Thursday evenings in the "Evolution" portion of its establishment. During these underage events, Licensee restricted patrons aged 18 to 20 years to the "Evolution" portion of the premises and only permitted patrons aged 21 years or older to purchase or consume alcoholic beverages on the premises. Licensee provided wristbands to be worn by patrons aged 21 years or older in order to identify these patrons while they were in Licensee's establishment. Licensee did not require patrons to remove their wristbands when they exited Licensee's premises and it was Licensee's policy not to recheck a patron's identification upon re-entry to Licensee's establishment if the patron was wearing an intact wristband. (Trial Ct. June 30, 2011 Op. at 1-3.)

On July 9, 2009, J.S., aged 19 and, therefore, a minor,*fn3 arrived at Licensee's establishment to attend a special underage event. Prior to entering Licensee's establishment, J.S. and some of her friends encountered a group of male patrons in the parking lot who were leaving the premises. These male patrons were wearing wristbands and J.S. asked if she and her friends could have their wristbands. The male patrons agreed to the request and J.S. and her friends then placed the wristbands on their own wrists using the adhesive that was already on the wristbands. When J.S. entered through the main entrance of Licensee's establishment with the wristband, she was not asked to produce any identification to verify her age. J.S. and her friends walked into the bar area where the bouncer shined a flashlight on their wrists to see if they were wearing wristbands. After the bouncer saw their wristbands, they were permitted to enter the bar area. J.S. proceeded to order three alcoholic beverages because there were only fifteen minutes remaining during "happy hour." J.S. was not asked to provide identification at the bar when she ordered the beverages. (Trial Ct. June 30, 2011 Op. at 1-3.)

J.S. and her friends initially left Licensee's establishment around midnight when they had finished their beverages. They went to a nearby restaurant for pizza and then returned to Licensee's establishment still wearing the wristbands. J.S. and her friends reentered Licensee's bar area as they did earlier, without being asked to produce any identification, went to the bar, and ordered beer. Only once during the evening did Licensee's security shine a flashlight on J.S.'s wrist. (Trial Ct. June 30, 2011 Op. at 3.)

When J.S. was leaving Licensee's establishment the second time, she became involved in a physical altercation with another patron. It was not until the local police arrived and requested that J.S. produce identification that Licensee learned that J.S. was a minor. J.S. was charged, inter alia, with underage drinking. J.S. later entered a plea bargain and paid a fine. (Trial Ct. June 30, 2011 Op. at 3.)

On December 29, 2009, the Bureau issued a Notice of Violation letter to Licensee which was followed by a citation issued on January 15, 2010. The citation charged Licensee with violating Section 493(1) of the Liquor Code on July 9 and 10, 2009, by selling, furnishing or giving of alcoholic beverages or permitting alcoholic beverages to be sold, furnished or given to a female minor, age 19. The citation further directed Licensee to appear at a hearing before an Administrative Law Judge (ALJ) to show cause why its liquor license should not be suspended or revoked and/or a fine imposed. (Citation, R.R. at 3a; Trial Ct. June 30, 2011 Op. at 1.)

An evidentiary hearing was held on July 7, 2010, at which the Bureau presented the testimony of J.S. and Pennsylvania State Police Officer William Rosenstock, who investigated the complaint that was filed by the local police department, regarding this incident. Licensee presented the testimony of its director of security, Catherine Kaminski. The ALJ sustained the citation by adjudication rendered on October 28, 2010, and the PLCB denied Licensee's appeal by opinion and order mailed December 15, 2010. Licensee timely appealed to the trial court, which heard the matter de novo. At the March 21, 2011 de novo hearing, the trial court received the record of the administrative proceedings before the ALJ. Licensee also offered the additional testimony of its owner, Eric Kornfield. By Order of June 30, 2011, the trial court affirmed the PLCB's order and dismissed Licensee's appeal.

Licensee timely appealed the trial court's June 30, 2011 Order to this Court.*fn4

Thereafter, the trial court directed Licensee to file a Concise Statement of Matters Complained of on Appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). (Trial Ct. August 3, 2011 Order.) Licensee complied and the trial court issued an Opinion pursuant to Rule 1925 on November 15, 2011.*fn5 Therein, the trial court thoroughly addressed the evidence and issues presented. (Trial Ct. November 15, 2011 Op.) The trial court found that because Licensee did not request that the minor J.S. produce any identification upon her entry into Licensee's establishment, Licensee could not satisfy the conditions required by Section 495 of the Liquor Code, 47 P.S. § 4-495,*fn6 in order to avoid the imposition of penalties for violating Section 493(1); therefore, Licensee could not show that it acted in good faith. (Trial Ct. November 15, 2011 Op. at 5-8.) The trial court rejected Licensee's reliance on this Court's decisions in Skoritowski v. Pennsylvania State Police, Bureau of Liquor Control Enforcement, 742 A.2d 704 (Pa. Cmwlth. 1999), and CSC Enterprises, Inc. v. Pennsylvania State Police, Bureau of Liquor Control Enforcement, 782 A.2d 57 (Pa. Cmwlth. 2001), for the proposition that a showing of good faith alone is sufficient to avoid a penalty for furnishing alcohol to a minor. (Trial Ct. November 15, 2011 Op. at 5-8.) Instead, the trial court relied upon this Court's more recent decision in Timmy's Corporation v. Pennsylvania State Police, Bureau of Liquor Control Enforcement, 997 A.2d 419, 421-22 (Pa. Cmwlth. 2010), wherein we affirmed the trial court's decision that a licensee may only employ the affirmative defense of good faith under Section 495 if the licensee required the minor to provide a valid identification card. (Trial Ct. November 15, 2011 Op. at 9.) Finally, the trial court rejected Licensee's arguments that the trial court should have employed the "beyond a reasonable doubt" standard in this matter and that the Liquor Code violates the United States and Pennsylvania Constitutions. (Trial Ct. November 15, 2011 Op. at 10-12.)

Licensee raises the following issues in its appeal to this Court: (1) whether the trial court erred and abused its discretion in determining that a common law, good faith defense to an allegation of a violation of Section 493(1) of the Liquor Code does not exist; (2) whether the trial court erred and abused its discretion in determining that Licensee did not establish good faith and, thus, did not violate Section 493(1); and (3) whether the trial court erred, as a matter of law, in failing to determine that a violation of Section 493(1) constitutes a misdemeanor and that application of Section 493(1), in light of Section 494 of the Liquor Code,*fn7 violates the United States and Pennsylvania Constitutions.

Licensee first argues that the trial court erred, as a matter of law, in its: (1) interpretation of Section 495 of the Liquor Code; (2) determination that there is no common law defense of good faith to a violation of Section 493(1); (3) rejection of this Court's decisions in Skoritowski and CSC; and (4) determination that the facts of this case do ...


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