Pennsylvania Liquor Control Board v. TLK, Inc.

544 A.2d 931, 518 Pa. 500, 1988 Pa. LEXIS 201
CourtSupreme Court of Pennsylvania
DecidedJuly 27, 1988
Docket46 M.D. Appeal Docket 1987
StatusPublished
Cited by34 cases

This text of 544 A.2d 931 (Pennsylvania Liquor Control Board v. TLK, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania 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. TLK, Inc., 544 A.2d 931, 518 Pa. 500, 1988 Pa. LEXIS 201 (Pa. 1988).

Opinions

[502]*502OPINION OF THE COURT

FLAHERTY, Justice.

This appeal from the revocation of a restaurant liquor license presents a question never before addressed by this Court: the extent to which a licensee may be liable for illicit drug transactions by an employee. We hold that a strict liability standard is inappropriate and that at least some degree of scienter is required. When violations of the Liquor Code and its attendant laws and regulations are not the conduct under review, a licensee is liable only if he knew or should have known of the illegal activity and if he fails to prove substantial affirmative measures taken to eliminate a known pattern of illegal activity.

The facts of the case are as follows. In January, 1984, Ron Jacobs was employed as a doorman at Peter P’s, the licensed premises. On January 25, inside the restaurant, an informant and an undercover agent arranged to purchase heroin from Jacobs for $30. Jacobs refused to deliver the heroin in the restaurant, so the parties left and the exchange was made off the premises.

Following a hearing, the Pennsylvania Liquor Control Board (PLCB) revoked Peter P’s liquor license due to the sale of heroin by Jacobs. The PLCB found: “The licensee, by its servants, agents or employes permitted the use of its licensed premises in the furtherance of the traffic in or use of a controlled substance, on January 25, 1984____” On appeal, a de novo hearing was held, and the court of common pleas sustained the license revocation. The Commonwealth Court, in an unreported opinion, affirmed the order of the common pleas court, reasoning that the violation occurred on the licensed premises. The court relied on its decision in Bates v. Commonwealth, 40 Pa.Cmwlth. 426, 397 A.2d 851 (1979). Bates, where the violation occurred on the licensed premises, held that “violation of the laws regarding the use or sale of controlled substances by an employee, regardless of whether the licensee had knowledge of the conduct, constitutes proper grounds for license suspension,” citing Sobel Liquor License Case, 211 Pa.Su[503]*503per. 129, 235 A.2d 623 (1967). We allowed this appeal to address the question whether a liquor license may be suspended or revoked due to illegal activity which is unknown to the licensee or whether the licensee must have knowledge of the misconduct.

A violation of the Liquor Code or its attendant laws and regulations places a liquor license in jeopardy on a basis of strict liability — that is, a license may be suspended or revoked for such a violation regardless of whether the licensee knew or should have known of the misconduct. This is due to the legislative mandate in the Liquor Code:

§ 4-471. Revocation and suspension of licenses; fines
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, of any violation of any laws of this Commonwealth or of the United States of America relating to the tax-payment of liquor or malt or brewed beverages by any licensee within the scope of this article, his officers, servants, agents or employes, or upon any other sufficient cause shown, the board may, within one year from the date of such violation or cause appearing, cite such licensee ... to show cause why such license should not be suspended or revoked or a fine imposed____

47 P.S. § 4-471 (emphasis added). This statute has been interpreted as authorizing license suspension or revocation regardless of a licensee’s ignorance of his employee’s misconduct. See, e.g., Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959); PLCB v. Dobrinoff, 80 Pa.Cmwlth. 453, 457, 471 A.2d 941, 943 (1984); Allegheny Beverage Co. v. PLCB, 67 Pa.Cmwlth. 487, 492, 447 A.2d 725, 727 (1982). Koczwara reasoned 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 in the regulation and control of the use and sale of alcoholic beverages.” ... Individuals who embark on such an enterprise do so with knowledge [504]*504of considerable peril, since their actions are rigidly circumscribed by the Liquor Code.

Koczwara, 397 Pa. at 580-81, 155 A.2d at 828. The Court held that “the legislature intended to impose vicarious criminal liability on the licensee-principal for acts committed on his premises without his presence, participation or knowledge.” Id., 397 Pa. at 582, 155 A.2d at 528 (emphasis in original). Thus we interpret the emphasized language of section 4-471 to make a licensee strictly liable for violations of the liquor laws and regulations.

In addition to strict liability for adherence to the liquor laws and regulations, section 4-471 permits revocation or suspension of a liquor license “upon other sufficient cause shown.” It is well established that violations of criminal laws other than the Liquor Code may constitute sufficient cause for revocation or suspension of a liquor license. See, e.g., I.B.P.O.E. Liquor License Case, 163 Pa.Super. 395, 397, 62 A.2d 68, 69 (1948); PLCB v. Althouse, 94 Pa.Cmwlth. 141, 143, 503 A.2d 90, 91 (1986); Primo’s Bar, Inc. Liquor License Case, 48 Pa.Cmwlth. 188, 191, 409 A.2d 1369, 1371 (1979); Quaker City Development Co. Appeal, 27 Pa.Cmwlth. 13, 15, 365 A.2d 683, 684 (1976). We decline, however, to apply the rigid standard of strict liability when the subject conduct does not violate the liquor laws, but instead involves conduct prohibited by the Crimes Code, the Controlled Substance, Drug, Device and Cosmetic Act, or other penal legislation. In the latter cases, some element of scienter on the part of the licensee is required to endanger the liquor license.

As to what quantum of guilty knowledge or intent will justify proceedings against a liquor license, the caselaw developed by the Commonwealth Court provides some guidance. Two principles in particular are expressly approved. The first is that if a licensee knew or should have known of illegal activities by an employee or patron, the licensee is liable. The second principle is that a licensee may defend his license by demonstrating that he took substantial affirmative steps to guard against a known pattern of illegal [505]*505activities. The two principles go hand in hand, for when it is determined that a licensee did not but should have known of covert illegal activities by an employee or patron, the case is likely to involve a discernible pattern of illegal activity.

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Bluebook (online)
544 A.2d 931, 518 Pa. 500, 1988 Pa. LEXIS 201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennsylvania-liquor-control-board-v-tlk-inc-pa-1988.