Jim Jay Enterprises, Inc. t/a Thunder Rolls
Pennsylvania Liquor Control Board, Appellant
Submitted November 14, 2013
Appealed from No. 820 MD 2012. Common Pleas Court of the County of Westmoreland. Caruso, President Judge.
Peter J. Yoon, Assistant Counsel, Harrisburg, for appellant.
Gregory T. Nichols, Greensburg, for appellee.
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge. OPINION BY JUDGE McGINLEY. DISSENTING OPINION BY JUDGE COHN JUBELIRER.
BERNARD L. McGINLEY, Judge
The Pennsylvania Liquor Control Board (LCB) appeals the order of the Court of Common Pleas of Westmoreland County (trial court) that overruled the LCB's refusal to renew the restaurant liquor license of Jim Jay, Inc. (Jim Jay) and ordered that Jim Jay's license be renewed subject to certain conditions.
Jim Jay owned a restaurant liquor license for a bar known as " Thunder Rolls"
located at 312 Clay Avenue, Jeannette, Pennsylvania (Licensed Premises). On March 27, 2012, Jim Jay applied to renew its license for the period beginning July 1, 2012, and ending on June 30, 2014. By letter dated June 15, 2012, the LCB's Bureau of Licensing (Bureau) notified Jim Jay that it objected to the renewal of its license pursuant to Section 470 of the Liquor Code (Code) 47 P.S. § 4-470. The Bureau ordered that a hearing be held with respect to the renewal application. The Bureau of Licensing's objection was based on a violation of the Code relative to Citation Number 10-0347 and the improper conduct of the Licensed Premises as there were approximately fifteen incidents at or immediately adjacent to the Licensed Premises reported to the Jeannette City Police Department (Department) during the time period from July 2010, until the renewal request. The activity included but was not limited to a shooting, robbery, fights, assaults, a minor entering the bar, and disorderly operations.
A hearing was held on July 18, 2012, before the hearing examiner. The Bureau presented the renewal application, a copy of its objection letter dated June 15, 2012, and a copy of the adjudication issued with respect to the citation.
Officer James Joseph Phillips (Officer Phillips) of the Department testified that he was patrolling on August 18, 2011, at 12:57 a.m. when he observed two people arguing on the sidewalk in front of the Licensed Premises. Officer Phillips warned William Gavidia (Gavidia) and Jesse Loughner that they would be cited for disorderly conduct if the disturbance continued. They reentered the Licensed Premises. Approximately an hour later, Officer Phillips received a call about another disturbance at the Licensed Premises. He arrived and found Gavidia causing another disturbance that could be heard two blocks away. Notes of Testimony, July 18, 2012, (N.T.) at 8-9; Reproduced Record (R.R.) at 22a-23a. Gavidia was " screaming profanities and facing them towards the police." N.T. at 9; R.R. at 23a. Officer Phillips then observed Gavidia punch the front of a nearby storefront. Gavidia was taken into custody and charged with public drunkenness and disorderly conduct. N.T. at 9; R.R. at 23a. On cross-examination, Officer Phillips testified that the personnel at the Licensed Premises were never uncooperative with him during the course of any investigation. N.T. at 11; R.R. at 25a.
Officer Dennis Pape (Officer Pape) of the Department testified that on March 7, 2012, he was dispatched to the Licensed Premises based on a report of a fight. He observed a woman outside who sad that she had been punched in the face by another patron, Melissa Maloy (Maloy), inside the Licensed Premises. When Maloy exited, she smelled like alcohol, staggered, and could not speak clearly. Maloy was charged with simple assault, criminal mischief, and public drunkenness. N.T. at 15-16; R.R. at 29a-30a. On cross-examination, Officer Pape acknowledged that Jim
Jay and its employees were always cooperative with him. N.T. at 17; R.R. at 31a.
Corporal Shannon Binda (Corporal Binda) of the Department testified that on February 4, 2011, she was dispatched to the Licensed Premises after a report was received that an individual had just been assaulted and was outside the Licensed Premises on the sidewalk. Corporal Binda found Michael Taylor (Taylor) lying on the ground bleeding. Taylor was in the Licensed Premises and left to talk to a woman when he was hit in the side of the face. Taylor suffered a fractured left cheek, a concussion, and the possible loss of sight in his left eye. Corporal Binda did not know if the assailant had been inside the Licensed Premises. Corporal Binda said that the assault took place " three, four feet" from the entrance to the Licensed Premises. N.T. at 21-23; R.R. at 35a-37a. On cross-examination, Corporal Binda stated that she had always found Jim Jay employees cooperative. N.T. at 24; R.R. at 38a.
Officer Richard O'Neal (Officer O'Neal) of the Department testified that on January 30, 2011, he was dispatched to the Licensed Premises after a report of a fight. The fight ended by the time he arrived. While Officer O'Neal was speaking with the instigator of the fight, Tiffany Grogan (Grogan), she threatened a female. Grogan was cited for disorderly contact. N.T. at 28-29; R.R. at 42a-43a. Officer O'Neal stated that the Licensed Premises was not the worst bar with which the Department dealt but was a " [t]ypical bar." N.T. at 32-33; R.R. at 46a-47a. On May 3, 2011, Officer O'Neal was dispatched to the Licensed Premises due to a report of a fight. One of the participants was outside the Licensed Premises when he arrived and said that he was accosted inside. N.T. at 33-34; R.R. at 47a-48a. On September 10, 2011, Officer O'Neal and another officer were dispatched to the Licensed Premises after a report of a fight involving a group of women. The police officers found a woman outside who was bleeding from her face after she was struck with a beer bottle. The investigation revealed that two women were playing pool when a third woman entered the bar and started fighting with one of the pool players. Officer O'Neal stated that two of them appeared to be intoxicated and would not comply with his request to stop screaming. They were both cited for public drunkenness and disorderly conduct. N.T. at 37-39; R.R. at 51a-53a.
Paul Jones (Jones), a patron of the Licensed Premises, testified that he was a participant in the fight on May 3, 2011, which prompted the call. Jones was sitting in the bar when a man and woman entered. Jones knew the woman. He had a prior non-violent incident with the man. The man started arguing with Jones and eventually the two started fighting. N.T. at 46-47; R.R. at 60a-61a.
Sergeant Jose A. Gonzales (Sgt. Gonzales) of the Department testified that on April 9, 2012, he was dispatched to the Licensed Premises in response to a reported shooting. The investigation revealed that a patron at the Licensed Premises, Thomas R. Milliron (Milliron), was shot three times in the parking lot during an attempted robbery by another patron. When Milliron left the bar, he was approached by two people. When one of them pulled a gun, Milliron attempted to run away but was shot three times: in his leg, back, and buttocks. N.T. at 54-58; R.R. at 68a-72a. Sgt. Gonzales testified that the Licensed Premises was one of the four bars out of twenty or twenty-five that he dealt with the most. N.T. at 67; R.R.
Frank Henry Adar (Adar) testified that he shot pool on a regular basis at the Licensed Premises. On August 14, 2010, he was shooting pool with the bartender's son who did not pay off on a previous $10 bet, so the two started fighting. N.T. at 77; R.R. at 91a.
Sergeant Donald Joseph Johnston, Jr. (Sgt. Johnston) of the Department testified that he observed a disturbance on August 14, 2010, outside the Licensed Premises that involved several people pushing and shoving each other. When Sgt. Johnston approached, two males went back inside the Licensed Premises. When Sgt. Johnston entered, he saw a female patron crying and bleeding from the nose. The owner of the Licensed Premises stated that the victim had been arguing with Robert Myers (Myers) which led Myers to punch the victim. N.T. at 88; R.R. at 102a. On cross-examination, Sgt. Johnston testified that Jim Jay employees always cooperated with him with regard to incidents at the Licensed Premises. N.T. at 90-91; R.R. at 104a-105a.
On September 1, 2010, Sgt. Johnston saw a minor enter the Licensed Premises. Sgt. Johnston followed him in and arrested the minor and took him into custody for a curfew violation. N.T. at 92-93; R.R. at 106a-107a.
On February 6, 2011, Sgt. Johnston observed a crowd screaming and yelling just outside the Licensed Premises. One of the individuals yelling was Frank Kozinko (Kozinko) who was screaming obscenities. Sgt. Johnston followed him back into the Licensed Premises. Kozinko was intoxicated and would not comply with Sgt. Johnston's request to leave. He was arrested and in subsequent searches was found to possess cocaine and marijuana. N.T. at 97-100; R.R. at 111a-114a.
On September 1, 2011, Sgt. Johnston was dispatched to the Licensed Premises in response to a reported fight. Sara Chew, one of the participants in the fight, told Sgt. Johnson that she had been assaulted by Nicole Devosky, a former employee of Jim Jay, and was struck several times. N.T. at 102-103; R.R. at 116a-117a.
On March 14, 2012, Sgt. Johnston was dispatched to the Licensed Premises in response to a reported fight. The bartender told Sgt. Johnston that Amber Hall (Hall) punched a patron several times and bit the victim in the face outside the Licensed Premises. Sgt. Johnston observed abrasions on the victim's neck and a bite impression on her left cheek, and subsequently arrested Hall. N.T. at 106-108; R.R. at 120a-122a. On cross-examination, when asked whether there were an inordinate ...