Erie Sports Bar, Inc. v. Pennsylvania State Police, Bureau of Liquor Control Enforcement

6 A.3d 663, 2010 Pa. Commw. LEXIS 563
CourtCommonwealth Court of Pennsylvania
DecidedOctober 21, 2010
StatusPublished
Cited by4 cases

This text of 6 A.3d 663 (Erie Sports Bar, 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
Erie Sports Bar, Inc. v. Pennsylvania State Police, Bureau of Liquor Control Enforcement, 6 A.3d 663, 2010 Pa. Commw. LEXIS 563 (Pa. Ct. App. 2010).

Opinions

OPINION BY

Senior Judge KELLEY.

Appellant Pennsylvania State Police, Bureau of Liquor Control Enforcement (Bureau), appeals from an order of the Court of Common Pleas of Erie County (Trial Court) which granted the appeal of Erie Sports Bar, Inc., t/a Coach’s Sports Bar & Grill (Licensee) from an order and decision of the Liquor Control Board (Board). The Trial Court’s order also dismissed a civil citation against Licensee for a violation of Section 493(1) of the Liquor Code,1 for selling, furnishing, and/or giving an alcoholic beverage to an underage person. We affirm.

On April 9, 2007, an undercover Liquor Enforcement Officer entered Licensee’s premises. Shortly thereafter, as part of the Bureau’s Age Compliance Check Program, a 19-year-old female identified as an Underage Buyer entered Licensee’s premises and approached' the bar. The Underage Buyer then ordered a bottle of beer from Licensee’s bartender, who served the Buyer without questioning her age, and completed the sale. The Underage Buyer then promptly left Licensee’s premises without consuming the beer.

The Bureau subsequently notified Licensee, by certified letter received thereby on May 1, 2007, of the alleged violation of Section 493(1) of the Liquor Code2 resulting from Licensee’s sale of the beer to the Underage Buyer. The Bureau issued a citation dated May 25, 2007, via certified mail, to Licensee for the violation at issue.

A hearing on the citation ensued before a Bureau Administrative Law Judge (ALJ), at which both parties appeared and were represented by counsel. After hearing testimony, and upon review of the evidence presented, the ALJ issued an Adjudication dated December 11, 2007. Following the Adjudication’s Findings of Fact, the ALJ concluded that the Bureau [665]*665had failed to provide immediate notification to Licensee’s Board-approved premises manager, and/or person in charge, once the alleged violation within the premises had been established, in violation of Séction 23.23(1) of Title 37 of the Pennsylvania Code.3 The ALJ’s Adjudication accordingly dismissed the citation.4

The Bureau thereafter appealed the Adjudication to the Board. Following its review of the parties’ arguments, and the record to the matter, the Board issued an Opinion and Order dated April 2, 2008. Therein, the Board concluded, inter alia, that Licensee was strictly liable for the alleged violation of Section 493(1) of the Liquor Code notwithstanding the Bureau’s failure to demonstrate that it had complied with the immediate notification provisions of Section 23.23(1) of Title 37 of the Pennsylvania Code. The Board expressly concluded that Section 23.23(1) did not add to the burden of proof required of the Bureau in civil administrative hearings against licensees for a violation of Section 493(1) of the Liquor Code. The Board further concluded that the ALJ’s dismissal was an error of law, reversed the ALJ’s Adjudication, and granted the Bureau’s appeal.5

Licensee thereafter appealed to the Trial .Court, which heard argument from the parties without receiving additional evidence. By Order dated August 5, 2008,6 the Trial Court concluded that the Bureau’s compliance with the applicable provisions of the Pennsylvania Code, including Section 23.23(1) of Title 37, was mandatory and required for the pursuit of any alleged violations detected under the Bureau’s employment of the Age Compliance Check Program, and that the Pennsylvania Code’s notice requirements provided a licensee with particularly important opportunities regarding both the defense of a subsequent violation proceeding, and the ability to take responsibility and correct any noted problems. Further, the Trial Court emphasized that without any sanction for the Bureau’s notice failure at issue, no incentive would exist for the Bureau to conform their behavior to the clear requirements of the law. Accordingly, the Trial Court granted Licensee’s appeal, overturned the Board’s Decision and Order, and dismissed the citation. The Bureau now appeals from the Trial Court’s order.

[666]*666This Court’s review is limited to determining whether the decision of the trial court is based on substantial evidence, and whether the trial court abused its discretion or committed an error of law. 5708 K & T, Inc. v. Pennsylvania Liquor Control Board, 951 A.2d 1232 (Pa.Cmwlth. 2008).

The Bureau asserts one issue in the instant appeal: whether the Trial Court erred in concluding that the notice provisions of the Age Compliance Program Check applied to a civil proceeding for a licensee violation of Section 498(1) of the Liquor Code.

The Bureau argues that the Trial Court erred in judicially amending the statutory language of the Liquor Code, in that the elements of an offense under Section 498(1) do not require the immediate notification of a licensee for a violation thereof. Under the Bureau’s view, to prove a violation of Section 493(1) the Bureau need only prove that on the date of the violation, the establishment provided alcohol to a minor; the only valid defense to this charge is found in Section 495 of the Liquor Code, 47 P.S. § 4-495,7 which defense is not applicable under the instant facts. The Bureau emphasizes that the Board noted that the Age Compliance Check Program provisions are not implicated in a civil administrative prosecution by the Bureau. R.R. at 153a.

The Bureau further argues that the Underage Buyer herein did not violate Section 6308(a) of the Crimes Code,8 when she [667]*667purchased alcohol, and that nothing in any subsection of Section 6808, and nothing in the attendant regulations promulgated thereunder, alters the elements of a charged offense under the Crimes Code. The Bureau asserts that it only needs to show compliance with Section 6808 requirements in a criminal prosecution against an underage buyer for having made an otherwise unlawful purchase, and that those provisions are relevant only in a Bureau attempt to establish an effective defense for an underage buyer. The Bureau’s position is founded upon its conclusion that the only notification requirement to a licensee relevant to the instant matter is that required upon completion of the Bureau’s investigation. Section 471(b) of the Liquor Code, 47 P.S. § 4-471(b).9 The Bureau asserts, correctly, that there is no dispute herein that the Bureau provided this notification via timely certified letter to Licensee upon the completion of its investigation. R.R. at 122a.

We cannot adopt the Bureau’s preferred interpretation of the statutory and regulatory scheme at issue herein. Section 6308(e)(3) of the Crimes Code mandates that compliance checks conducted under [668]*668the Program shall be conducted in a manner consistent with the regulations promulgated under that Section. In availing itself of the distinct enforcement advantages statutorily provided for in the Age Compliance Check Program, the Bureau must concomitantly submit to the clear statutory and regulatory requirements thereof, including the immediate notice provision at issue.

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Bluebook (online)
6 A.3d 663, 2010 Pa. Commw. LEXIS 563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erie-sports-bar-inc-v-pennsylvania-state-police-bureau-of-liquor-pacommwct-2010.