In re Appeal of R&R Lounge, Inc.

37 Pa. D. & C.3d 452, 1985 Pa. Dist. & Cnty. Dec. LEXIS 298
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedMarch 13, 1985
Docketno. 74-M/1984
StatusPublished
Cited by1 cases

This text of 37 Pa. D. & C.3d 452 (In re Appeal of R&R Lounge, Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Appeal of R&R Lounge, Inc., 37 Pa. D. & C.3d 452, 1985 Pa. Dist. & Cnty. Dec. LEXIS 298 (Pa. Super. Ct. 1985).

Opinion

DAVISON, J.,

This is an appeal from an order of the Pennsylvania Liquor Control Board (board) revoking Restaurant Liquor License no. TR-9302 and Amusement Permit no. TAP-9302 for premises known as Freddie’s (Licensee), 222-224 East Hamilton Street, in the City of Allentown, County of Lehigh, and Commonwealth of Pennsylvania.

On November 22, 1983, the board cited licensee for permitting solicitation of patrons' for immoral purposes upon the licensed premises on October 5, 6, 7 and 18, 1983. A hearing was held thereafter and, on September 18, 1984, the board concluded that the evidence established that licensee- had in fact violated the provisions of the Liquor Code in such fashion and on such dates and revoked the license.

On January 7, 1985, a hearing de novo, as required by the Liquor Code, Act of April 12, 1951, P.L. 90, Art. IV, as amended, 47 P.S. §4-471, was held before this court, at which time an enforcement officer testified for the board and a representative and employee of licensee testified on behalf of petitioner. The scope of the court’s authority on appeals from the board is clearly delineated in Carver House, Inc. Liquor License Case, 454 Pa. 38, 310 A.2d 81 (1973):

[454]*454“[T]he court on appeal from a suspension . . . ‘shall, in the exercise of its discretion, sustain, reject, alter or modify the findings, conclusions and penalties of the board, based on the findings of fact and conclusions of law as found by the court.’ . . . [Ift is by now well established that on such appeal the lower court must make findings of fact on the material issues different from those as found by the. board before the action taken by the board can be reversed or changed. Unless the. lower court’s change or modification is so grounded, it cannot stand.” (Citations omitted.)

It is the court’s duty' to evaluate the credibility of the witnesses, weigh the testimony and, as this is a civil proceeding, determine whether or not the violations charged have been established by a preponderance of the evidence, in re Moravian Bar, Inc., 200 Pa. Super. 231, 188 A.2d 805 (1963); Smart, Inc. v. Pennsylvania Liquor Control Board, 35 Leh.L.J. 346 (1973), aff'd 16 Pa. Commw. 37, 328 A.2d 923 (1974). Where such charges have been so established by competent evidence, the court, even where it considers the penalty too severe, in the absence of finding different facts, is powerless to reduce the penalty imposed by the board. Pennsylvania Liquor Control Board v. Pace, 218 Pa. Super. 300, 280 A.2d 642 (1971); Pennsylvania Liquor Control Board v. Washington Sporting Club, 13 Pa. Commw. 257, 320 A.2d 851 (1974).

Board enforcement officer James Vitatelli (Vitatelli) testified that on October 5, 1983, at approximately 10:00 p.m., he entered the licensed premises and observed a male bartender on duty, later identified as Mark, and approximately 15 to 20 patrons. He saw three female patrons conversing with several of the male patrons. A Caucasian female patron, later identified as Tina, engaged the of[455]*455ficer in conversation, asking what he was looking for. He told her that he was looking for a girl to engage in sex at a bachelor party and asked what she would charge to engage in sexual relations with the guests at the proposed party. She responded $20 per person for oral sex, $25 for sexual intercourse, and $30 for a combination of those activities. She obtained a pen and paper from the bartender and wrote down her name, address, and telephone number. She then gave it to the officer and started talking with another male patron. Jhe officer then asked Mark, the bartender, if she was satisfactory. Mark said that he didn’t know from experience, but that he had heard that she was “all right.”

On October 6, 1983 at 11:45 p.m., the officer returned to the premises and observed that Mark was present as the bartender. Vitatelli then again engaged in conversation with Tina, discussing the possibility of sexual relations with her- on a later date. Upon the officer’s request, she expressed a willingness to have a black female, whom she identified as Frankie, available for $30 for the “best” sexual relations of his fife. After Vitatelli inquired how he could reach Frankie about the party arrangements, she wrote Frankie’s name and telephone number on a sheet of paper she had gotten from Mark and handed the paper over to the officer. Vitatelli then observed Tina proceed to another patron, engage him in conversation and exit the premises with that other patron. The officer then asked Mark about Frankie and was told that she was “supposed to be all right”"and thát she was “cool.” The officer departed from the premises at 1:10 a.m. on October 7, 1983.

On October 18, 1983 at approximately 8:30 p.m., the officer returned to. the subject premises. Upon entering the bar, he observed a female barmaid, [456]*456later identified as Diane, and eight patrons present. He noticed what he learned to be the female named Frankie seated at the bar. The female sat next to him and, in the course of the conversation with her, told her that he knew Tina. They discussed prices for various services available. When she finished telling the officer what her charges were for sexual intercourse and varied other relations, the officer turned to the barmaid and inquired as to her opinion of the female’s abilities. The barmaid said she really did not know anything about the quality of that female’s work.

Rebecca Smalley, who, with her husband, owns all of the outstanding stock of corporate licensee, was present at the licensed premises on October 6 and 7, 1983; the officer did not engage in any conversation with her.

Counsel for petitioner contends: (1) that the board’s findings of fact and conclusions of law are inadequate as a matter of law; and (2) that the revocation penalties are too harsh in view of the lack of any prior citations.

Addressing petitioner’s first argument, we regard as well established that basic findings of facts are essential to the validity of the decision of administrative agencies and such findings must be sufficiently specific to enable the reviewing court to pass upon questions of law. See Bell v. Commonwealth of Pennsylvania, Bureau of Vocational Rehabilitation, 62 Pa. Commw. 388, 436 A.2d 1072 (1981); Begis v. Industrial Board of the Department of Labor and Industry, 9 Pa. Commw. 558, 308 A.2d 643 (1973); McKinley v. State Board of Funeral Directors, 5 Pa. Commw. 42, 288 A.2d. 840 (1972); 2 Pa.C.S. §507.

Counsel for petitioner contends that the Liquor Control Board “in effect, made no independent find[457]*457ings of fact or conclusions of law.” However, the only obligation of the board is to explain its reasons for ordering the license revocation and bond forfeiture. See 47 P.S. §4-471; Liquor Control Board v. Camiel’s Beverage Co., 7 Pa. Commw.

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Related

R & R Lounge, Inc. v. Commonwealth, Pennsylvania Liquor Control Board
506 A.2d 526 (Commonwealth Court of Pennsylvania, 1986)

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37 Pa. D. & C.3d 452, 1985 Pa. Dist. & Cnty. Dec. LEXIS 298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-appeal-of-rr-lounge-inc-pactcompllehigh-1985.