Pennsylvania Liquor Control Board v. Kern's

37 Pa. D. & C.3d 631, 1983 Pa. Dist. & Cnty. Dec. LEXIS 52
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedDecember 22, 1983
Docketno. 104
StatusPublished

This text of 37 Pa. D. & C.3d 631 (Pennsylvania Liquor Control Board v. Kern's) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pennsylvania Liquor Control Board v. Kern's, 37 Pa. D. & C.3d 631, 1983 Pa. Dist. & Cnty. Dec. LEXIS 52 (Pa. Super. Ct. 1983).

Opinion

LOWE, P.J.,

Defendant owns and operates the Zieglersville Colonial Inn located in Lower Frederick Township, Montgomery County, and is the holder of Hotel Liquor License no. H-482. On February 9, 1983, the Pennsylvania Liquor Control Board suspended defendant’s license for a period of 30 days. The board found that: “[t]he licensee, by its servants, agents or employes sold liquor and/or malt or brewed beverages during a time when the licensee’s Hotel Liquor License was being held in safekeeping by the Pennsylvania Liquor Control Board, on August 23, Sepember 24, 29, 1982.”

Defendant requested and received a de novo hearing before this court. The facts were stipulated. Defendant admitted to selling liquor on the dates identified by the board, and acknowledged that during the period in question its license was being held in safekeeping pursuant to 40 Pa. Code §7.31(a).

At oral argument; defendant alleged that neither the Liquor Code (47 P.S. §1-101 et seq.) nor the regulations promulgated thereunder (40 Pa. Code § 1.1 et seq.) contain any prohibition against the sale of liquor while a license is being held in safekeeping, and that due process notice requirements were not met in issuing the citation.

[633]*633The board countered defendant’s argument by 'observing that 47 P.S. §4-467 (Display of License) requires that “[e]very license issued under this article shall be constantly and conspicuously exposed under transparent substance on the licensed premises and no license shall authorize sales until this section has been complied with.” Counsel for the board postulated that because defendant’s license was in safekeeping with the board, it could not have been on display and, consequently, the licensee was in violation of 47 P.S. §4-467. He then proceeded to justify the failure to specifically charge defendant with violating 47 P.S. §4-467 by making reference to 47 P.S. § l-104(a). That section requires the court to construe liberally the Liquor Code as an exercise of the Commonwealth’s police power. The board concluded its argument by directing the court’s attention to 47 P.S. §4-4/1 which permits the board to penalize a licensee for “any violation of this act or any laws of this Commonwealth relating to liquor... or of any regulation of the board ... or upon any other sufficient cause shown ...”

On October 4, 1983, this court reversed the determination of the Liquor Control Board for the reason that the board failed to give sufficient notice of the alleged violation. The board now appeals to the Commonwealth Court of Pennsylvania

In its statement pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), the board attempted to defend its action by alleging that under the principles set forth in Commonwealth v. Tony and Delilah Reda, 76 Pa. Commw. 76, 463 A.2d 108 (1983), licensee was accorded sufficient notice. Putting aside the impropriety of the board’s advancing an additional argument in its statement, this court finds the Reda case inapplicable to the question presented herein.

[634]*634In Reda, the Liquor Control Board cited the licensees for maintaining their establishment “in an insanitary condition on or about July 25, 1981, and on divers other occasions within the past year.” Reda, supra, 109. The Commonwealth Court of Pennsylvania held that “[w]here a citation informs the licensee as to the type and date of the alleged violation, it comports with the due process notice requirement” and that “[t]he Liquor Control'Board is given wide latitude in the generality of its charges. ” Id., 109. (Citations omitted.) That is undoubtedly the law, however, in Reda, the licensees defended on the ground that the citation failed to specify the nature of the insanitary condition. They did not challenge the fact that an insanitary condition, if found, would constitute a violation of the act. Indeed, they could not. See, e.g., 40 Pa. Cod,e §§5.41, 5.51, and 5.54.

In the case at bar, defendant’s due process challenge is more subtle. Defendant argues that the board’s citation charges no violation and that the mental gymnastics required to discern the actual basis for the board’s action is so attenuated as to offend due process. This court agrees.

It is well established that “there is perhaps no other area of permissible state action within which the exercise of the police powers of a state is more plenary than' in the regulation and control of the use and sale of alcoholic beverages.” Tahiti Bar, Inc., Liquor License Case, 395 Pa. 355, 360, 143 A.2d 55, 57 (1959). Consequently, obtaining and retaining.a liquor license is not a right — it is a privilege. Pennsylvania Liquor Control Board v. Starr, 13 Pa. Commw. 415, 318 A.2d 763 (1974), aff'd., 462 Pa. 124, 337 A.2d 914 (1975). Furthermore, as the board has correctly observed, this court is obligated [635]*635to interpret liberally the Liquor Code so as to protect “the public welfare, health, peace and morals of the people of the Commonwealth.” 47 P.S: §l-104(a). However, it is equally well established that due process of law is as applicable to administrative agencies as it is to courts. Soja v. Pennsylvania State Police, 500 Pa. 188, 455 A.2d 613 (1982). Dayoub v. State Dental Council and Examining Board, 70 Pa. Commw. 621, 453 A.2d 751 (1982); Bruteyn Appeal, 32 Pa. Commw. 541, 380 A.2d 497 (1977). In this context, the Supreme Court of Pennsylvania recently observed that “a liquor license adds significant use value to a particular premises. Once granted, the license may be arbitrarily revoked.” Redevelopment Authority of the City of Philadelphia v. Lieberman, 461 Pa. 208, 222, 336 A.2d 249, 257 (1975).

Although proceedings under the Liquor Code are technically civil in nature, there can be no doubt that in many respects they resemble criminal actions. In Re: The Keg, 23 D.&C.3d 84 (1981). The code is replete with references to potential criminal penalties, including imprisonment. See, e.g., 47 P.S. §§4-463, 4-494, 5-519, and 7-751. Therefore, due process obligates the board to, at the very least, notify licensee of the date and nature of the alleged violation. Hankin Liquor License Case, 202 Pa. Super. 100, 195 A.2d 164 (1963). In the instant case the board failed to satisfy the latter of those requirements. '

The citation issued to defendant recites that the alleged violation consists of selling alcoholic beverages while defendant’s license was being held in safekeeping. However, the regulation which authorizes the board to hold a license in safekeeping, 40 Pa. Code §7.31(a), makes no mention of any such prohibition. On the contrary, it specifically [636]*636states that “[t]he return [to the board] of such license and card will not invalidate the license ...” Id. It is only after reference is made to the Liquor Code itself, specifically 47 P.S.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Soja v. Pennsylvania State Police
455 A.2d 613 (Supreme Court of Pennsylvania, 1982)
Tahiti Bar, Inc. Liquor License Case
395 Pa. 355 (Supreme Court of Pennsylvania, 1959)
Bruteyn Appeal
32 Pa. Commw. 541 (Commonwealth Court of Pennsylvania, 1977)
Hankin Liquor License Case
195 A.2d 164 (Superior Court of Pennsylvania, 1963)
REDEVELOP. AUTH., PHILA. v. Lieberman
336 A.2d 249 (Supreme Court of Pennsylvania, 1975)
Liquor Control Board v. Camiel's Beverage Co.
300 A.2d 834 (Commonwealth Court of Pennsylvania, 1973)
Commonwealth v. Starr
337 A.2d 914 (Supreme Court of Pennsylvania, 1975)
Commonwealth v. Starr
318 A.2d 763 (Commonwealth Court of Pennsylvania, 1974)
In re the Suspension or Revocation of the License to Practice as a Dentist
380 A.2d 497 (Commonwealth Court of Pennsylvania, 1977)
Dayoub v. Commonwealth
453 A.2d 751 (Commonwealth Court of Pennsylvania, 1982)
Commonwealth, Pennsylvania Liquor Control Board v. Reda
463 A.2d 108 (Commonwealth Court of Pennsylvania, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
37 Pa. D. & C.3d 631, 1983 Pa. Dist. & Cnty. Dec. LEXIS 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennsylvania-liquor-control-board-v-kerns-pactcomplmontgo-1983.