Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Big D Restaurants, LLC

149 A.3d 890, 2016 Pa. Commw. LEXIS 469, 2016 WL 6658897
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 8, 2016
Docket2706 C.D. 2015
StatusPublished
Cited by10 cases

This text of 149 A.3d 890 (Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Big D Restaurants, LLC) is published on Counsel Stack Legal Research, covering Commonwealth 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 State Police, Bureau of Liquor Control Enforcement v. Big D Restaurants, LLC, 149 A.3d 890, 2016 Pa. Commw. LEXIS 469, 2016 WL 6658897 (Pa. Ct. App. 2016).

Opinion

OPINION BY

JUDGE COVEY

The Pennsylvania State Police, Bureau of Liquor Control Enforcement (Bureau) appeals from the Allegheny County Common Pleas Court’s (trial court) December 3, 2015 order dismissing a citation that charged Big D Restaurants, LLC (Licensee) with violating the Liquor Code 1 by failing to adhere to conditional licensing agreement (CLA) terms. The Bureau presents three issues for this Court’s review: (1) whether the trial court erred by sustaining Licensee’s due process challenge; (2) whether the trial court erred by concluding that the relevant CLA term was ambiguous and thus, Licensee did not violate the CLA; and, (3) whether the Bureau presented substantial evidence to the trial court to support Licensee’s CLA violations.

Licensee holds Restaurant Liquor License No. R-7831 (License). The License is held subject to a CLA entered into with the Pennsylvania Liquor Control Board (Board) on April 27, 2010 under which Licensee agreed to additional restrictions on the License and the licensed premises. 2

Paragraph 5 of the CLA imposed the following restrictions and obligations:

a. [Licensee] shall within ninety (90) days of the approval of this Agreement, become compliant with and remain compliant with the Responsible Alcohol Management provisions of the Liquor Code... ;
b. [Licensee] shall use a metal detecting wand on all patrons entering the premises and shall prohibit patrons from bringing weapons into the premises;
c. [Licensee] shall maintain and enforce a written barred patrons list on the licensed premises .... ;
d. [Licensee] shall maintain adequate security at the premises, including the employment of one (1) security guard between the hours of 9:00 p.m. and closing time on all Monday through Thursday evenings, and two (2) security guards between the hours of 9:00 p.m. and closing time on all other evenings that [Licensee] is operating. At least one (1) security guard shall be present on the exterior of the premises beginning one half (1/2) hour prior to closing and remaining until one half (1/2) hour after closing, to ensure the orderly departure of patrons and monitor their departure. In addition, the security guard or another employee at [Licensee] shall conduct a patrol of the entire exterior of the premises, including the parking lot, every one half (1/2) hour, from 9:00 p.m. until closing on all nights of operation. A record of each patrol, including the date and time of the patrol and the name of the employee conducting the patrol, shall be main *893 tained by [Licensee] as a business record, subject to [S]ection 493(12) of the Liquor Code;
e. [Licensee] shall maintain regular monthly contact with local police in order to address any problems .... ;
f. [Licensee] shall maintain and monitor the two (2) existing surveillance cameras. These cameras shall be operational whenever the premises is open for business .... ;
g. [Licensee] shall immediately notify the police upon becoming aware of any unlawful activity occurring on or about the licensed premises;
h. [Licensee]’s member or manager will attend monthly Homewood-Brushton Public Safety Committee meetings ....

Reproduced Record (R.R.) at 182a-184a (emphasis added).

On May 2, 2013, the Bureau notified Licensee that it had received information pertaining to two alleged violations .-that may result in a citation:

1. SMOKED AND/OR PERMITTED SMOKING IN A PUBLIC PLACE WHERE SMOKING IS PROHIBITED....
2. FAILED TO ADHERE TO THE CONDITIONS OF' THE AGREEMENT ENTERED INTO WITH THE BOARD PLACING ADDITIONAL RESTRICTIONS UPON THE SUBJECT LICENSE....

R.R. at 175a. On May 24, 2013, the Bureau issued a citation (Citation) which charged Licensee as follows:

1. On January 28, February 4, 20, and March 13, 2013, you, by your servants, agents or employees, smoked and/or permitted smoldng in a public place where smoking is prohibited, in violation of Section 471 of the Liquor Code, 47 P.S. § []4-471 and Section 637.6(a)(2) of the Clean Indoor Air Act,[ 3 ] 35 P.S. § 637.6(a)(2). [ (Count One) ]
2. On January 28, February 4, 20, and March 13, 2013, you, by your servants, agents or employees, failed to adhere to the conditions of the agreement entered into with the Board placing additional restrictions upon the subject license, in violation of Section 404 of the Liquor Code, 47 P.S. § [ ]4-404. [ (Count Two) ]

R.R. at 176a-177a.

An administrative law judge (ALJ) hearing was held On January 15, 2014. At the hearing, Licensee admitted to the Count One violation. 4 See R:R. at 129a. Thereafter, the following exchange occurred:

[BUREAU’S ATTORNEY]: Your Hon- or, regarding [C]ount [T]wo, as I understand it, [Licensee is stipulating that on the dates charged in the [Cjitation that the [Bureau’s Enforcement Officer [Nicole Beswick-Uzarski (Officer)] was not wanded when she entered the subject establishment.
[LICENSEE’S ATTORNEY]: Well, Your Honor, the [0]fficer is going to testify. I just have one or two questions.
[ALJ]: All right. You want the [0]ffieer to testify?
[LICENSEE’S ATTORNEY]: I just—.
*894 [ALJ]: This is the type of case where I wasn’t certain if there was any factual dispute. ■
[LICENSEE’S ATTORNEY]: However you want to proceed, Your Honor. We’re not arguing that the individual was not wanded at the time—we’re not arguing that the [0]fficer was not wanded at the time they [sic] went in.
[ALJ]: Based on your pre-hearing memorandum, you’re arguing—.
[LICENSEE’S ATTORNEY]: Our argument is it wasn’t required.
[ALJ]: You raise there’s some ambiguity in the [CLA]?
[LICENSEE’S ATTORNEY]: Correct, Your Honor.
[ALJ]: All right.
[LICENSEE’S ATTORNEY]: We’re arguing it wasn’t required at the time.
[ALJ]: That’s a matter we’ll have to address as the hearing progresses., I don’t know that—. . .
[LICENSEE’S ATTORNEY]: My questions for the [0]fficer are all focused on her interaction with the officer as a, mitigation if Your Honor were to find that—.
[ALJ]: That’s fine. The Bureau’s witnesses are here and they can be sworn and testify. You can cross-examine. Perhaps we can make it brief. Whatever needs to be done is fine.
[BUREAU’S ATTORNEY]: Your Hon- or, excuse me.

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Bluebook (online)
149 A.3d 890, 2016 Pa. Commw. LEXIS 469, 2016 WL 6658897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennsylvania-state-police-bureau-of-liquor-control-enforcement-v-big-d-pacommwct-2016.