Commonwealth v. Berresford

590 A.2d 1379, 139 Pa. Commw. 556, 1991 Pa. Commw. LEXIS 259
CourtCommonwealth Court of Pennsylvania
DecidedMay 8, 1991
DocketNo. 1355 C.D. 1990
StatusPublished
Cited by4 cases

This text of 590 A.2d 1379 (Commonwealth v. Berresford) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Berresford, 590 A.2d 1379, 139 Pa. Commw. 556, 1991 Pa. Commw. LEXIS 259 (Pa. Ct. App. 1991).

Opinion

COLINS, Judge.

The Bureau of Liquor Control Enforcement of the Pennsylvania State Police (Bureau) appeals a decision of the Court of Common Pleas of Beaver County (trial court), ordering the forfeiture and destruction of two cases of beer [558]*558purchased by an enforcement officer on November 1, 1989 and November 7, 1989, and the dismissal of the Bureau’s petition for forfeiture of all other property in this matter.

Michael Berresford (Berresford) is the owner of the Darlington Distributing Co. of Beaver County, Pennsylvania, a licensed beer distributorship. On October 17, 1989, the Sheriff of Beaver County, pursuant to a writ of execution on a money judgment, seized Berresford’s license and physically removed it from the licensed premises. ' The record indicates that the license was not returned to Berresford’s premises and that it was delivered to the Pennsylvania Liquor Control Board (Board) for safekeeping by the Sheriff of Beaver County.

This case arises out of an undercover investigation made by the Bureau pertaining to allegations that Berresford continued to sell beer and other malt beverages without a license. On November 1, 1989, Bureau Agent Johnson made an undercover visit to the premises and purchased one case of Iron City Beer from stock which was apparently to be sold to the public and paid $10.50 cash, which was stored in a cash box after the transaction. On November 7, 1989, a second undercover visit was made and a second case of beer was purchased for $10.50. On November 8, 1989, Agent Johnson executed a search warrant and seized all of the beer on the premises, including 8 kegs and 112 cases of beer and $57.46 cash.

Terry L. Berresford (employee) an employee of the distributing company was arrested and charged with violating Section 492(3) of the Liquor Code (Code), Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-492(3), which prohibits the sale of malt or brewed beverages upon a premises without a license. The employee was found not guilty on both counts pertaining to the November 1,1989 and November 7,1989 sales, and his counsel made a motion seeking the return of all the goods seized as a result of the not guilty verdict.

[559]*559The trial court issued an order requiring the return of the items seized; however, this order was stayed pending an administrative hearing before the Board. The day before the hearing before the Board, which was scheduled for April 26,1990, counsel for the Bureau requested of the trial court a forfeiture and condemnation of the 8 kegs and 112 cases of beer and the $57.46. Preliminarily, we note that the trial court, not the Board, had original jurisdiction over the forfeiture proceeding, pursuant to Section 602 of the Code,1 which states: “The proceedings for forfeiture or condemnation of all property shall be in rem, in which the Commonwealth shall be the plaintiff and the property the defendant. A petition shall be filed in the court of common pleas, verified by oath or affirmation of any officer or citizen----”2 The trial court based its decision solely upon legal conclusions as to the facts before it which were essentially uncontested regarding the situs and storage of the property in question. The trial court ordered the forfeiture of the two cases of beer pertaining to the November 1, 1989 and November 7,1989 sales; however, it dismissed the Bureau’s petition for forfeiture of all other property and money.

The issue to be decided is whether the 8 kegs and 112 cases of beer and the $57.46 were subject to forfeiture. The Bureau argues that the inventory and money seized were unlawfully possessed for the purpose of engaging in the illegal sale of alcohol. Therefore, because the beer and money were integral ingredients necessary to conduct the illegal operation, they are subject to forfeiture according to Section 601 of the Code, which provides for the forfeiture of property that is unlawfully used or possessed.3

We begin our analysis by examining Section 492(3) of the Code which states, in pertinent part: “It shall be unlawful ... [f]or any person, to sell to another any malt or brewed beverages not for consumption upon the premises where [560]*560sold, unless such person holds a valid license permitting such sale.”4 Section 441(c) of the Code is also relevant in this case and states: “No distributor or importing distributor shall maintain or operate any place where sales are made other than that for which the license is granted.”5

When read together, the obvious intent of both of these sections is that, in order to operate a beer distributorship, (a place where sales are made), the distributor must have a license. Section 467 of the Code6 further requires that “every license issued under this article shall be constantly and conspicuously exposed under transparent substance on the licensed premises and no license shall authorize sales until this section has been complied with.” Id. Hence, the Code makes it clear that a licensee must physically possess and display his or her license. See also Griffin Liquor License Case, 38 Pa.Commonwealth Ct. 596, 394 A.2d 676 (1978).

The facts of this case indicate that Berresford violated all three of the above-cited sections of the Code. On November 1, 1989 and November 7, 1989, he sold beer to Agent Johnson without the physical possession and display of his liquor license, which had been seized to satisfy a money judgment in another case. Without a license, Berresford’s entire operation of his distributorship was in violation of the Code. His inventory, some of which, according to testimony in the record, was located on display for public consumption and some of which was stored in coolers because people like to buy cold beers, was an integral part of this operation. Therefore, it was illegally used and illegally possessed for the purpose of operating a beer distributorship without a license. As a result, this beer is subject to forfeiture according to Section 601 of the Code, which provides in relevant part: “No property right shall exist in any ... malt or brewed beverage illegally manufactured or possessed ..., and the same shall be deemed contraband [561]*561and the proceedings for its forfeiture to the Commonwealth may be instituted in the manner herein provided.”7

We note that it would defeat the purpose of this Code (which is to prevent the sale of alcohol and brewed beverages without license) to allow Berresford to keep the majority of his inventory and continue to maintain his distributorship business without a license.

We reiterate and emphasize that the inventory, including the 8 kegs and 112 cases of beer and the $57.46 in cash, were integral parts of Berresford’s operation of his distributorship without a license, in clear violation of Section 441, which prohibits the maintenance or operation of a distributorship, without a license. Our analysis here is similar to that used by this Court in gambling cases, where we have held that forfeiture is proper when a judge can reasonably infer that the seized property was an integral part of gambling activities. Commonwealth v. McDermond, 127 Pa.Commonwealth Ct. 17, 560 A.2d 901

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Bluebook (online)
590 A.2d 1379, 139 Pa. Commw. 556, 1991 Pa. Commw. LEXIS 259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-berresford-pacommwct-1991.