In re Revocation of Restaurant Liquor License No. R-11533

394 A.2d 676, 38 Pa. Commw. 596, 1978 Pa. Commw. LEXIS 1449

• Court: Commonwealth Court of Pennsylvania
• Decided: November 27, 1978
• Docket: Appeal, No. 1029 C.D. 1977
• Status: Published

Opinion

Opinion by

Judge MacPhail,

On June 7, 1976, the Pennsylvania Liquor Control Board (Board) issued an order suspending the restaurant liquor license of Edward J. and Kathryn Griffin (Licensees) for a period of three (3) days, effective July 1, 1976, “and thereafter until the licensees have corrected the unsanitary conditions which caused the citation to be issued.” On July 6, 1976, the Licensees served beer to a Board officer. As of that date, the license .in question had not been restored.¹ Subsequently, a citation was issued against the Licensees for selling alcoholic beverages during a time when the license was suspended. After a hearing, the Board found that the averments in the citation had been sustained and imposed a fine upon the Licensees of $350.00. An appeal was then taken to the Court of Common Pleas of the First Judicial District. After a hearing, that Court vacated the order of the Board. In its memorandum opinion the Court held that the Licensees had fully complied with the Board’s order, i.e., the conditions which caused the license to be suspended had been corrected and the premises had been closed for five (5) days (instead of three).

Even though there is evidence from which the learned trial judge could make the findings upon which he based his order to vacate the order of the Board, the fact remains that the Licensees sold alcoholic beverages at a time when they did not have a license, for whatever reason. Section 492(2) of the Liquor Code (Code), Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §4-492(2), states:

It shall be unlawful—

(2) Sales of Malt or Brewed Beverages for Consumption on the Premises. For any person to sell to another for consumption upon the premises where sold or to permit another to consume upon the premises where sold, any malt or brewed beverages, unless such person holds a valid retail dispenser license or a valid liquor license issued by the board authorizing the sale of malt or brewed beverages for consumption upon such premises.

Hence, whether the alleged unsanitary conditions were corrected or not,² the Licensees could not legally dispense alcoholic beverages until their license was physically restored.

Accordingly, we must reverse.

Order

And Now, this 27th day of November, 1978, the order of the Court of Common Pleas of the First Judicial District of Pennsylvania, Trial Division, dated May 2, 1977, is reversed and the order of the Pennsylvania Liquor Control Board, dated November 22, 1976, is reinstated.

1 It was restored on July 8, 1976.

2 We do note that the Licensees did not have their health certificate reissued until July 7, 1978.