Petty Liquor License Case

258 A.2d 874, 216 Pa. Super. 55, 1969 Pa. Super. LEXIS 859

• Court: Superior Court of Pennsylvania
• Decided: November 12, 1969
• Docket: Appeal, 1008
• Status: Published

Opinions

Opinion by

Wright, P. J.,

On October 29, 1968, after hearing on Citation No. 1098 for 1968, the Pennsylvania Liquor Control Board entered an order suspending for a period of sixty days the restaurant liquor license issued to Douglas and Gretchen Petty for premises known as “The Cottage” in the Borough of Emporium. This order was based upon four findings of fact set forth in the footnote.¹ The licensees appealed to the Court of Common Pleas of Cameron County — Criminal, which tribunal entered an order, June 27, 1969, reducing the period of suspension from sixty to thirty days. The Board has appealed to this court.

The history of the licensed premises includes four prior citations which resulted in suspension or fine. The present citation was based upon an investigation during the months of April and May 1968. In reducing the period of suspension, the court below sustained the Board’s findings (Nos. 3 and 4) as to sales and dancing after hours, but ruled as a matter of law that the Board was without authority to suspend the license on a finding (No. 2) of conducting the establishment “in a noisy and/or disorderly manner”. With regard to the Board’s finding (No. 1) concerning sales to visibly intoxicated persons, the court below concluded that the evidence “was circumstantial and fell far short of sustaining the charge”.

Section 471 of the Liquor Code, Act of April 12, 1951, P. L. 90, as amended, 47 P.S. 4-471, reads in pertinent part as follows (italics supplied) : “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 ... or upon any other sufficient cause shown> the board may . . . cite such licensee to appear before it . . . Upon such hearing, if satisfied that any such violation has occurred or for other such sufficient cause, the board shall immediately suspend or revoke the license . . The court below reasoned that there is no section in the Liquor Code which specifically relates to the conduct of an establishment “in a noisy and/or disorderly manner”, nor is there any regulation of the Board in that regard. It is important to note that the court below did not find that the premises were not conducted in a noisy and/or disorderly manner.

In Reiter Liquor License Case, 173 Pa. Superior Ct. 552, 98 A. 2d 465, this Court expressly stated that conducting the licensed premises in a noisy and disorderly manner was one of the conditions which constitute “other sufficient cause” for which a license may be revoked.

In Maple Liquor License Case, 207 Pa. Superior Ct. 237, 217 A. 2d 859, the Board’s order of suspension was based upon four findings of fact, the third of which was that the licensed establishment “was conducted in a noisy and/or disorderly manner”. We sustained an appeal by the Board from an order of the County Court of Allegheny County reducing the period of suspension.

In Freedman Liquor License Case, 211 Pa. Superior Ct. 132, 235 A. 2d 624, the Board’s order of suspension was based on three findings of fact, the first of which was that the licensees “permitted disorderly or improper conduct on the premises”. The Court of Quarter Sessions of Philadelphia County sustained an appeal by the licensees as to this finding on the ground that public disturbance was not involved, and that the terms employed were too vague to satisfy due process requirements. We reversed the action of the lower court, and our Supreme Court refused allocatur. 211 Pa. Superior Ct. xxxvii.

In the case at bar, we expressly reiterate that the conduct of a licensed establishment in a noisy and/or disorderly manner is sufficient cause for suspension of the license, and that the Board has power and authority under Section 471 to enter an order of suspension on that ground. Broadly viewed, this accords with the legislative mandate in Section 104(a) of the Liquor Code (47 P.S. 1-104) which provides: “This act shall be deemed an exercise of the police power of the Commonwealth for the protection of the public welfare, health, peace and morals of the people of the Commonwealth . . . and all of the provisions of this act shall be liberally construed for tbe accomplishment of this purpose”.

Turning now to the second ground relied upon by the court below in reducing the period of suspension, it is to be noted that the uncontradicted testimony of the enforcement officers was not found to be incompetent or incredible. It was merely characterized as circumstantial and falling short of sustaining the charge. Although the imposition of a less severe penalty is warranted if different findings of fact are made, Delpark Athletic Club Liquor License Case, 215 Pa. Superior Ct. 1, 257 A. 2d 600, we have repeatedly stated that the court below may not capriciously disregard competent evidence of violations: 35th Ward Democratic Club, Inc., Liquor License Case, 213 Pa. Superior Ct. 13, 245 A. 2d 713; Alston Beer Distributor Liquor License Case, 214 Pa. Superior Ct. 32, 251 A. 2d 808. Without setting it forth in detail, the testimony of the officers with regard to the symptoms, conduct and actions on the part of two of the persons in the licensed premises clearly establishes that these patrons were visibly intoxicated, and that alcoholic beverages were served to them while they were in that condition. A proceeding to suspend or revoke a license is civil in nature, and it is sufficient if the offense charged be established by a preponderance of the evidence : Summit Hill Rod and Gun Club Liquor License Case, 184 Pa. Superior Ct. 584, 135 A. 2d 781. Cf. Bayer Liquor License Case, 200 Pa. Superior Ct. 210, 188 A. 2d 819.

The order of the court below is reversed, and the order of the Board is reinstated.

1 “1. The licensees, their servants, agents or employes sold, furnished and/or gave liquor and/or malt or brewed beverages to visibly intoxicated persons, on May 4, 1968.

“2. The licensed establishment operated by the licensees was conducted in a noisy and/or disorderly manner, on May 4, 1968.

“3. The licensees, their servants, agents or employes sold, furnished and/or gave liquor and/or malt or brewed beverages between the hours of two o’clock ante meridian and seven o’clock ante meridian, on May 4 and 11, 1968.

“4. The licensees, their servants, agents or employes permitted dancing on the licensed premises during hours when the sale of liquor and/or malt or brewed beverages was prohibited, on May 11, 1968”.