Derry Street Pub, Inc. v. Pennsylvania State Police, Bureau of Liquor Control Enforcement

111 A.3d 1240, 2015 Pa. Commw. LEXIS 117
CourtCommonwealth Court of Pennsylvania
DecidedMarch 24, 2015
StatusPublished
Cited by5 cases

This text of 111 A.3d 1240 (Derry Street Pub, Inc. v. Pennsylvania State Police, Bureau of Liquor Control Enforcement) 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
Derry Street Pub, Inc. v. Pennsylvania State Police, Bureau of Liquor Control Enforcement, 111 A.3d 1240, 2015 Pa. Commw. LEXIS 117 (Pa. Ct. App. 2015).

Opinion

OPINION BY

Judge McCULLOUGH.

Derry Street Pub, Inc. (Licensee) appeals from the February 5, 2014 order of the Court of Common Pleas of Dauphin County (trial court) that dismissed Licensee’s appeal from the July 24, 2013 order and decision of the Pennsylvania Liquor Control Board (Board). The Board’s order reversed the decision and order of an administrative law judge (ALJ) insofar as it held that a conditional licensing agreement (CLA) was no longer in effect at the time of Licensee’s alleged violation of its provisions.

Facts and Procedural History

Licensee is a restaurant and pub located at 2312 Derry Street, Harrisburg, Pennsylvania, and is the holder of a restaurant liquor license number R-12671. By letter dated February 18, 2010, the Board’s Bureau of Licensing objected to the renewal of Licensee’s liquor license for the licensing term effective March 1, 2010, due to violations of the Liquor Code,1 improper conduct, and the late filing of Licensee’s renewal application. (Reproduced Record (R.R.) at 4a-5a.) The CLA describes the Bureau of Licensing’s reasoning as follows:

By letter dated February 18, 2010, [Bureau of] Licensing objected to the renewal of the liquor license for the licensing term effective March 1, 2010 based upon approximately forty-five (45) incidents of disturbance at or immediately adjacent to the licensed premises, one (1) adjudicated citation, and because the application was late-filed. The incidents included, but were not limited to shootings, fights, assaults, disorderly op[1242]*1242erations, drugs and loud music. In addition, [Bureau of] Licensing objected to the renewal of the amusement permit based upon approximately twenty-five (25) incidents of loud music, and the aforementioned adjudicated citation.

(R.R. at 16a.) The February 18, 2010 letter also provided that a hearing would be held to determine whether the violations and improper conduct warranted non-renewal of Licensee’s liquor license. (R.R. at 4a.)

After a hearing, the Board denied renewal of the liquor license. Licensee appealed to the trial court. Subsequently, in order to secure its liquor license renewal, Licensee entered into a CLA with the Board, effective December 6, 2011, under which the parties agreed to additional restrictions on the license and the premises as set forth therein, and the Board approved the renewal of Licensee’s liquor license for the two-year licensing period beginning March 1, 2010. (ALJ’s Finding of Fact No. 3; Board’s op. at 2-3; R.R. at 9a-10a, 15a-23a.)

Generally, the CLA’s restrictions require Licensee to comply with the Responsible Alcohol Management provisions in the Liquor Code; employ one security guard on Sunday through Thursday nights and two security guards on Friday and Saturday nights; patrol the exterior premises at night; initiate and attend semiannual meetings with the Harrisburg Police Department; maintain and enforce a written barred patrons list; maintain surveillance cameras on the premises; use transaction scan devices; prohibit patrons from entering the premises with weapons; and prohibit amplified music after 11:30 p.m. on Friday and Saturday nights and after 10:00 p.m. on all other nights. (R.R. at 17a-20a.) Paragraph 10 of the CLA states as follows:

These terms shall remain in effect both on the license and on the premises unless and until a subsequent agreement is reached with the Board rescinding these restrictions. [Licensee] shall not be prohibited from seeking modification or rescission of this Agreement, but any such modification or rescission shall be at the sole discretion of. the Board.

(R.R. at 22a) (emphasis added). The Bureau of Licensing confirmed this language in its December 8, 2011 letter to Licensee notifying Licensee that the Board approved the CLA as follows: “It is further understood that the conditions outlined in the [CLA] will remain in effect both on the license and on the location unless and until a subsequent agreement is reached with the [Board] rescinding the restrictions.” (R.R. at 26a.) Licensee withdrew its appeal to the trial court. (Board’s op. at 3)

Subsequently, on February 13, 2012, the Board notified Licensee by letter and corresponding order that it objected to the renewal of Licensee’s liquor license for the licensing period beginning March 1, 2012, based upon violations of the Liquor Code relative to two separate citations and improper conduct related to seventeen instances of disturbance from June 2010 until February 2012 that included homicide, assaults, loud music, and disorderly conduct. The Board granted temporary authority for Licensee to continue operating prior to the scheduling of a hearing.

On March 30, 2012, a hearing examiner held a hearing on the issue of Licensee’s license renewal. By order dated June 13, 2012, the Board refused to renew Licensee’s liquor license for the licensing period beginning March 1, 2012, and rescinded Licensee’s temporary authority. Licensee appealed to the trial court. By opinion and order dated January 8, 2013, the trial court reversed the Board’s June 13, 2012 order, and granted the liquor license re[1243]*1243newal. (Trial court op. at 1-2; R.R. at 28a.) No appeal was taken.

In a separate matter, the Pennsylvania State Police, Bureau of Liquor Control Enforcement (Bureau) commenced an investigation of Licensee regarding new violations on December 19, 2011. During the investigation, the Bureau conducted twelve visits to the licensed premises. On ten of those visits, no violations were found. However, on February 17, 2012, an undercover Bureau enforcement officer entered the Licensee’s premises at 11:00 p.m. without being required to show any identification. The enforcement officer purchased an alcoholic beverage. On July 15, 2012, an undercover Bureau enforcement officer entered the premises at 10:40 p.m. without being questioned as to age and without undergoing a metal detection device search. The enforcement officer purchased an alcoholic beverage. The enforcement officer remained at the premises from 10:40 p.m. to 11:50 p.m., and Licensee provided amplified music the entire time. The Bureau completed its investigation of Licensee on August 17, 2012, and sent a notice to Licensee at the Licensee’s premises by certified mail, return receipt requested, on August 28, 2012, that Licensee had violated the CLA by failing to adhere to the agreed upon additional restrictions. (ALJ’s Findings of Fact Nos. 1-2, 4-6a, 6c; R.R. at 34a.)

On September 13, 2012, the Board issued a citation against Licensee that contained one count as follows:

On February 17 and July 15, 2012, you, by your servants, agents or employees, failed to adhere to the conditions of the agreement entered into with the Board placing additional restrictions upon the subject license, in violation of Section 404 of the Liquor Code, 47 P.S. § 4-404.[2]

(R.R. at 35a.) The citation stated Licensee would be scheduled to appear before an ALJ, unless Licensee waived the hearing. (R.R. at 36a.) After a hearing on February 27, 2013, regarding the Board’s September 13, 2012 citation, the ALJ concluded as follows:

3. The three legal conclusions which follow independently mandate dismissal.
a. The CLA’s effective term ended on February 29, 2012, by agreement of the parties [in the CLA].
b. Alternatively, the statutory super-sedeas

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111 A.3d 1240, 2015 Pa. Commw. LEXIS 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/derry-street-pub-inc-v-pennsylvania-state-police-bureau-of-liquor-pacommwct-2015.