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Pennsylvania State Police v. Legion Post 304 Home Association

Commonwealth Court of Pennsylvania

June 15, 2017

Pennsylvania State Police, Bureau of Liquor Control Enforcement, Appellant
v.
Legion Post 304 Home Association

          Argued: April 20, 2017

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE JOSEPH M. COSGROVE, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge

          OPINION

          MARY HANNAH LEAVITT, President Judge

         The Pennsylvania State Police, Bureau of Liquor Control Enforcement (State Police) appeal an order of the Court of Common Pleas of Carbon County (trial court) holding that Legion Post 304 Home Association (Licensee) conducted games of small chance and bingo after its licenses expired, in violation of the Local Option Small Games of Chance Act[1] and the Bingo Law.[2] In doing so, the trial court affirmed a decision of the Liquor Control Board. The trial court also affirmed the decision of the Board that "Bonanza Bingo, " which was offered two days a week by Licensee, was a lawful form of bingo. The trial court remanded the matter to the Administrative Law Judge (ALJ) to impose penalties on Licensee for its license violations, and the ALJ imposed a penalty of $700. The State Police have appealed the trial court's decision that Licensee's "Bonanza Bingo" is a lawful form of bingo.

         On or about April 28, 2013, State Police Officer William J. Rosenstock, incognito, went to Licensee's premises, where he purchased two Bonanza Bingo tickets. The bartender explained how to play: "[T]here's a master sheet which [is] sitting at the bar. You compare your tickets … to the master sheet … and you win the corresponding … prizes." Notes of Testimony, 6/5/2014, at 33 (N.T., 6/5/2014, __); Reproduced Record at 43a (R.R. __). Officer Rosenstock played his tickets and left without winning a prize.

         On August 26, 2013, Officer Rosenstock returned, this time to conduct a routine inspection. Officer Rosenstock noted that Licensee's small games of chance license, which was displayed on the wall, had expired on April 4, 2013. He also discovered that Licensee's bingo license expired on August 20, 2013. Based on information provided by Licensee, Officer Rosenstock found that Licensee had conducted small games of chance, including the Bonanza Bingo game, from April 5, 2013, through August 26, 2013.

         On January 13, 2014, Officer Rosenstock issued Citation No. 13-2097 to Licensee. Count One charged violations of the Local Option Small Games of Chance Act and the Department of Revenue's implementing regulation during the period from April 5, 2013, through August 17, 2013. Count Two charged violations of the Liquor Code[3] and the Bingo Law for the period from April 28, 2013, to August 26, 2013.

         At the June 5, 2014, hearing, Officer Rosenstock established the above-described narrative of the State Police investigation and citation issued to Licensee. Keith McQuait, commander of Legion Post 304 Home, then testified for Licensee.

         McQuait explained that Licensee offers bingo games on Sundays and Tuesdays. Those who play purchase a "Bonanza Bingo" card for $1.00 each. The player compares the purchased card to the master board to determine whether he has a winning combination.

         The ALJ dismissed the State Police citation in its entirety. The ALJ held that the citation was too poorly drafted to provide adequate notice and, thus, offended due process. The ALJ dismissed Count Two for the additional reason that "Licensee's method of playing bingo, however untraditional, " was a lawful form of bingo. R.R. 127a.

         The State Police appealed to the Liquor Control Board, which reversed the ALJ, in part. The Board concluded that the ALJ erred in dismissing the entire citation on due process grounds because Licensee did not raise that issue; it was error for the ALJ to raise the issue sua sponte. With respect to Count One, the Board found that Licensee had violated the Small Games of Chance Act by offering these games after its license expired. With respect to Count Two, the Board found that Licensee had violated the Bingo Law by offering Bonanza Bingo after its bingo license had expired. Finally, the Board concluded that the definition of the word "bingo" under the Bingo Law was "intentionally broad" and, as such, authorized "Bonanza Bingo." Liquor Control Board Decision, 11/19/2014, at 10. The Liquor Control Board remanded the matter to the ALJ to impose a penalty on Licensee for conducting games after its licenses had expired. The State Police requested reconsideration from the Board, but the request was denied.

         Thereafter, the State Police appealed to the trial court, arguing that the Liquor Control Board erred in holding that "Bonanza Bingo" did not meet the definition of "bingo" in Section 3 of the Bingo Law.[4] The trial court held a hearing.

         The State Police did not offer new evidence; rather, it presented legal arguments on the meaning of "bingo." Licensee presented testimony from McQuait, who explained the mechanics of Bonanza Bingo. A large master board sits at one end of the bar with the word "Bingo" printed at the top. Below each letter are five numbers (with one "free" in the middle) handwritten by the bartender. He writes new numbers daily, which are chosen by patrons from a deck of cards and read to the bartender. Throughout the day patrons can purchase a sealed bingo card for $1.00. Patrons then compare the numbers on their bingo card to those posted on the master board. If their bingo card creates a "bingo" match to the master card, they win a prize.

         The trial court concluded that Bonanza Bingo met the statutory definition of "bingo." It rejected the State Police argument that Bonanza Bingo was more akin to a pull-tab "strip ticket" than a bingo game.[5] The trial court affirmed the Liquor Control Board's decision "in toto[.]" Trial Court op., 12/11/2015, at 14. The trial court remanded the matter to the ALJ for an adjudication on penalties against Licensee for conducting games after its license expired.

         The State Police appealed the trial court's order to this Court. This Court quashed the appeal, for the stated reason that because the trial court had "remanded this matter for further consideration of appropriate penalties, a matter which necessarily requires the exercise of the ALJ's discretion, the notice of appeal is quashed as taken from a non-final interlocutory order." Order, 2/23/2016, at 2 (Quigley, S.J.); R.R. 277a. On remand, the ALJ issued a supplemental order imposing a $350 fine for each count for a total of $700.

         Upon receipt of the ALJ's penalty decision, the State Police appealed to this Court.[6] As it did in its earlier appeal to this Court, the State Police challenged the trial court's holding that Bonanza Bingo is a lawful type of bingo. The State Police contend that the Bingo Act authorizes only traditional call bingo. Licensee argues otherwise.

         On May 26, 2016, this Court ordered the parties to address the issue of whether the State Police appeal could be heard by this Court without it first being presented to the Liquor Control Board. Specifically, the order stated:

[I]t appears that neither party appealed the ALJ's penalty adjudication to the Board and thereafter to the [trial court]. Accordingly, the parties shall address in their principal briefs on the merits whether the ALJ's March 23, 2016[, ] adjudication is immediately appealable directly to the Commonwealth Court or must follow the statutory review process.

Order, 5/26/2016, at 2 (Friedman, S.J.) (internal citation omitted); R.R. 293a.

         We begin with the jurisdictional question. The State Police contend that the trial court's December 11, 2015, order decided all substantive legal issues and remanded the matter to the ALJ solely to perform a ministerial act, i.e., to set penalties. State Police Brief at 17. The State Police contend that an appeal of the ALJ's supplemental order to the Board would be burdensome, fruitless, and not in the interests of judicial economy. The Liquor Control Board has already decided the question of whether Bonanza Bingo is "bingo" under the Bingo Law. In the alternative, the State Police argue that it has a right of appeal under the Pennsylvania Rules of Appellate Procedure.

         We begin with an examination of the statutory review process. Section 471(b) of the Liquor Code states, in relevant part:

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.

47 P.S. §4-471(b) (emphasis added). The trial court hears the appeal of the Liquor Control Board's decision de novo; it makes its own findings of fact and conclusions of law. Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Capek, 657 A.2d 1352, 1353 n.3 (Pa. Cmwlth. 1995). Accordingly, the trial court can "sustain, alter, change, modify or amend the Board's action ...


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