Hyland Enterprises, Inc. v. Pennsylvania Liquor Control Board

631 A.2d 789, 158 Pa. Commw. 283, 1993 Pa. Commw. LEXIS 550

• Court: Commonwealth Court of Pennsylvania
• Decided: September 1, 1993
• Docket: 2409 C.D. 1991
• Status: Published

Opinions

SMITH, Judge.

John D. Hyland and Hyland Enterprises, Inc., trading as Mickey’s Lounge (collectively, Licensee), appeal from an order of the Court of Common Pleas of Crawford County affirming a decision of the Pennsylvania Liquor Control Board (Board) to deny Licensee’s application for renewal of a restaurant liquor license. The issue presented to this Court is whether the trial court committed an error of law or abused its discretion in denying Licensee’s application.¹

Licensee was issued citations for furnishing liquor to minors under Section 493(1) of the Liquor Code (Code), Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-493(1), on May 21,1988, April 12, 1989, September 15,1989, and October 25, 1989.² Licensee’s restaurant liquor license was due to expire on July 31, 1990, and he submitted an application for renewal. On May 22, 1990, the Board sent Licensee a letter stating that because of his record of Code violations, his application would be subject to special “intense review and close scrutiny” to determine whether he had abused the privilege of holding a liquor license. Although there were four pending citations against Licensee when he filed his application for renewal, he was ordered to pay the fines associated with those citations and undergo a three-day suspension of his business operations before the Board’s decision on July 11, 1990 denying Licensee’s application for renewal.

Licensee appealed and was granted a hearing before a hearing examiner who recommended that the Board deny Licensee’s application for renewal. The Board accepted the hearing examiner’s recommendation, and Licensee further appealed to the trial court, which conducted a hearing de novo and affirmed the Board’s decision. Licensee appeals to this Court.³

Section 470(a) of the Code, 47 P.S. § 4-470(a), provides in pertinent part:

Unless the Board shall have given ten days’ previous notice to the applicant of objections to the renewal of his license, based upon violation by the licensee or his servants, agents or employees of any of the laws of the Commonwealth or regulations of the board relating to the manufacture, transportation, use, storage, importation, possession or sale of liquors, alcohol or malt or brewed beverages, or the conduct of a licensed establishment, or unless the applicant has by his own act become a person of ill repute, or unless the premises do not meet the requirements of this act or the regulations of the board, the license of a licensee shall be renewed.

The Pennsylvania Supreme Court has stated that there is perhaps no other area of permissible state action within which the exercise of the police power of a state is more plenary than the regulation and control of the use and sale of alcoholic beverages. Tahiti Bar, Inc., Liquor License Case, 395 Pa. 355, 150 A.2d 112, appeal dismissed, 361 U.S. 85, 80 S.Ct. 159, 4 L.Ed.2d 116 (1959).

The state may absolutely forbid or may license the sale of intoxicating liquors and it may impose such conditions upon the granting of licenses as it sees fit. Replogle v. Pennsylvania Liquor Control Board, 514 Pa. 209, 523 A.2d 327 (1987). One who accepts such license must be deemed to consent to all proper conditions and restrictions which have been or may be imposed by the legislature in the interest of public morals or safety. Id. This Court has held that even a single Code violation can be sufficient grounds to revoke a license. Slovak-American Citizens Club v. Pennsylvania Liquor Control Board, 120 Pa.Commonwealth Ct. 528, 549 A.2d 251 (1988). Although Slovak-American Citizens Club involved revocation proceedings under Section 471 of the Code, 47 P.S. § 4-471, rather than Section 470 of the Code, the Board’s discretion is nonetheless similar under those two sections.⁴ Thus, based upon Licensee’s record of Code violations, the trial court did not abuse its discretion in denying renewal of Licensee’s license.

Licensee maintains that the trial court committed an error of law and abused its discretion in upholding the enforcement of a “nuisance bar program” against Licensee. In support of this claim, Licensee introduced a copy of The Licensee Business Quarterly, a publication of the Board, which included an announcement containing the following information:

In January, 1990, the Board announced an initiative, pursuant to authority granted by Section 470(a) and (b) of the Liquor Code, to deny applications for license renewal to establishments who frequently demonstrate a flagrant abuse of the privilege of holding a license issued by this Board____ Licensees who have abused their privilege will be turned down at renewal time.

Plaintiffs Exhibit A, p. 1. Licensee contends that the Board’s application of said policy was arbitrary and capricious because the program took effect in January, 1990, yet he was penalized for Code violations which occurred before 1990. This Court has held that the Board can consider all of a licensee’s past Code violations regardless of when the violations occurred. Slovalc-American Citizens Club. It is not clear from the record that the Board acted under a nuisance bar program here; however, even if it had, the announcement of this policy is merely a restatement of the broad discretionary powers granted to the Board under Section 470.

The construction given a statute by those charged with its execution and application is entitled to great weight and should only be disregarded or overturned for cogent reasons and if clearly erroneous. Pennsylvania Liquor Control Board v. Burrell Food Systems, Inc., 97 Pa.Commonwealth Ct. 101, 508 A,2d 1308 (1986), appeal denied, 513 Pa. 636, 520 A.2d 1386 (1987). As remedial civil legislation, the Code is to be liberally construed to effectuate its purpose to protect the public health, welfare, peace and morals. Quaker City Development Co., Inc. Appeal, 27 Pa.Commonwealth Ct. 13, 365 A,2d 683 (1976). This Court has stated that the purpose of the Code, as enforced by the Board, is to regulate and restrain the sale of liquor, not to promote it. Burrell Food Systems.

Because Section 470(a) of the Code provides that violations of the Code are grounds to deny license renewal, the Board’s denial of the renewal application was appropriate. Thus, the trial court properly determined that the Board acted within its discretion in basing the denial upon Licensee’s record of Code violations. Accordingly, the order of the trial court is affirmed.

ORDER

AND NOW, this 1st day of September, 1993, the order of the Court of Common Pleas of Crawford County is affirmed.

1 . By order dated October 19, 1992, the Board was precluded from filing a brief in this matter.

2 . Additionally, Licensee was cited in 1979 for furnishing liquor to minors, and also in 1983 for furnishing liquor to minors and for sale of malt or brewed beverage in excess of 144 fluid ounces for consumption off the premises in violation of former Section 442 of the Code, 47 P.S. § 4 — 442 (amended in 1987 to increase the maximum quantity to 192 fluid ounces). Licensee paid the fines associated with these citations.

3 . This Court’s scope of review in a liquor license renewal case is limited to determining whether there is substantial evidence to support the trial court’s determination and whether the trial court committed an error of law or an abuse of discretion. 4828 Pace's Lounge v. Pennsylvania Liquor Control Board, 144 Pa.Commonwealth Ct. 155, 601 A.2d 408 (1991).

4 . Section 471 of the Code provides in pertinent part:

(a) Upon learning of any violation of this act or any laws of this Commonwealth relating to liquor, alcohol, or malt or brewed beverages, or of any regulations of the board adopted pursuant to such laws, or any violation of the laws of this Commonwealth ... by any licensee within the scope of this article, his officers, servants, agents or employes, or upon any other sufficient cause shown, the enforcement bureau may, within one year from the date of such violation or cause appearing, cite such licensee to appear before an administrative law judge ... to show cause why such license should not be suspended or revoked or a fine imposed, or both____