Pennsylvania Liquor Control Board v. Washington Sporting Club

320 A.2d 851, 13 Pa. Commw. 257, 1974 Pa. Commw. LEXIS 926

• Court: Commonwealth Court of Pennsylvania
• Decided: June 10, 1974
• Docket: Appeals, Nos. 954 and 987 C.D. 1973
• Status: Published

Opinion

Opinion by

Judge Mencer,

On March 26, 1973, after hearing following a citation, the Pennsylvania Liquor Control Board (Board) entered an order revoking the club liquor license of the Washington Sporting Club. This order was based upon the following finding of fact: “The licensed organization, by its servants, agents or employes sold liquor and/or malt or brewed beverages on tbe licensed premises to non-members, on October 22, November 5, 1972.” This was the licensee’s seventh violation since receiving its license in 1934.

Tbe licensee appealed to tbe Court of Common Pleas of Philadelphia County and that tribunal entered an order June 22, 1973, denying tbe appeal and modifying tbe Board’s order by substituting a 30-day suspension of tbe club license for tbe Board’s revocation of that license. Both tbe Board and tbe licensee have appealed to this Court.

Tbe court below found, after bearing, that “on October 22, November 5, 1972 tbe [Washington Sporting Club] sold liquor and/or malt beverages on its premises to non-members” and “[t]hese acts were in violation of tbe applicable provisions of tbe Pennsylvania Liquor Code.” In view of this finding, there was no justification for a modification of tbe order of tbe Board. Tbe court of common pleas may change tbe penalty imposed by tbe Board “only when it has made significant and material changes in tbe findings of tbe Board.” Noonday Club of Delaware County, Inc. Liquor License Case, 433 Pa. 458, 464, 252 A. 2d 568, 572 (1968).

It is now firmly established that tbe lower court must make findings of fact on tbe material issues different from those made by tbe Board before tbe action taken by tbe Board can be reversed or changed. Unless tbe lower court’s change or modification is so grounded, it cannot stand. Carver House, Inc. Liquor License Case, 454 Pa. 38, 310 A. 2d 81 (1973).

Here there are no findings of fact on material issues made by tbe lower court which are different from those made by tbe Board. Therefore, this case can be distinguished from Commonwealth v. M.S.G., Inc., 7 Pa. Commonwealth Ct. 540, 297 A. 2d 556 (1972), wherein we approved a lower court modification of a Board-imposed penalty. Tbe court below may not reduce tbe penalty imposed by the Board because it is considered too severe. Pace Liquor License Case, 218 Pa. Superior Ct. 300, 280 A. 2d 642 (1971).

Washington Sporting Club contends in this appeal that the evidence presented by the Board was procured by entrapment. It was not entrapment for the officer to attempt to secure evidence of violations of the liquor laws after gaining entrance to the club by walking past the door attendant or by paying money on the attendant’s demand. See Reiter Liquor License Case, 173 Pa. Superior Ct. 552, 98 A. 2d 465 (1953). Further, this issue, not having been presented to the court below, is not properly before us. Bechler v. Oliva, 400 Pa. 299, 161 A. 2d 156 (1960).

The order of the Court of Common Pleas of Philadelphia County is vacated, and the order of the Pennsylvania Liquor Control Board revoking the club liquor license of the Washington Sporting Club is reinstated.