Schalles v. Pennsylvania Liquor Control Board

43 Pa. D. & C.5th 145
CourtPennsylvania Court of Common Pleas, Alleghany County
DecidedNovember 10, 2014
DocketNo. SA 13-001147
StatusPublished

This text of 43 Pa. D. & C.5th 145 (Schalles v. Pennsylvania Liquor Control Board) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schalles v. Pennsylvania Liquor Control Board, 43 Pa. D. & C.5th 145 (Pa. Super. Ct. 2014).

Opinion

O’REILLY, J.,

I.Preliminary Matters

This matter involves the appeal by Vem M. Schalles t/a T’s Circus Bar (Licensee or the “Bar”) of the action taken by the Pennsylvania Liquor Control Board (“Board”) in denying renewal of Licensee’s Liquor License on November 6,2013.

Licensee’s appeal was filed on November 8, 2013. I conducted a de novo trial on March 26, 2014. At that trial the complete record of testimony and exhibits were submitted as respondent Exhibit 4. No other evidence was submitted to me. Thereafter, the record of that trial was transcribed and counsel filed excellent and able briefs in support of their contending positions.

The facts show that on November 6, 2013 the Board denied renewal of the Bar’s license and that an opinion in support of the renewal would be issued if an appeal was filed. An appeal was filed and a 52 page, undated opinion was issued with Conclusions of Law wherein the Board said:

1. Licensee received the requisite notice of Licensing’s objections to its renewal application and of the date, time, and place of the hearing held in this matter.
2. Section 470 of the Liquor Code [47 P.S. § 4-470] vests in the Board the authority to refuse renewal of a restaurant liquor license.
3. As of the date of the hearing, Licensee had accrued [148]*148fifteen (15) adjudicated citations.
4. Testimony and police reports were provided for nine (9) police incidents since June 2011, involving fights, drugs, and disorderly operations.
5. Licensee failed to provide sufficient timely corrective measures to address all its citations and incidents at the hearing.
6. Licensee breached his CLA with the Board.
7. Licensee filed a late renewal application.
8. Licensee has abused the privilege of holding a license.
9. Restaurant Liquor License No. R-9633 was not renewed effective June 1, 2013.

In his brief, counsel for the Board and the Board in its findings, asserts that there are approximately 14 adjudicated citations, approximately seven incidents of disturbances at or immediately adjacent to the Bar that warrant the non-renewal. Testimony and police reports were provided for several of the police incidents involving fights, drugs, and disorderly operations. In addition, the Board claims that Licensee failed to provide sufficient timely corrective measures to address all of its citations and incidents at the hearing, breached his CLA with the Board, filed a late renewal application and has abused the privilege of holding a license.

Upon de novo review, the Court of Common Pleas may exercise its statutory discretion to make findings of fact and conclusions of law, and to sustain, alter, change or modify any action of the PLCB, whether or not it makes findings which are materially different from those found by the [149]*149Board. Goodfellas, Inc. v. Pennsylvania Liquor Control Board, 921 A.2d 559 (Pa. Cmwlth. 2007). A trial court may issue a ruling different from that issued by the PLCB, even if the court’s findings of fact are identical to those issued by the PLCB, as long as the trial court’s decision is supported by substantial evidence. Pennsylvania Liquor Control Board v. Bartosh, 730 A.2d 1029 (Pa. Cmwlth. 1999).

II. FACTS

By way of background, the Bar has been owned and operated by Licensee Vem Schalles for about thirty years. He is a life-long resident of Swissvale, lives two blocks from the bar, and has owned various area businesses. Licensee has been involved in the community for many years. He takes senior citizens on trips and is involved with local baseball teams. The Licensee caters events for the senior group in Swissvale, area churches, baby showers and funeral homes. The Bar has been RAMP certified since 2002. Licensee had a partner in the business for several years but Licensee took over all operations about 12 years ago. Except for the most recent ones, there have been no citations since 2003. The Bar is located at 7526 Center Street, Swissvale, Pittsburgh Pennsylvania.

Renewal of a liquor license is not automatic and the Board has the authority to refuse to renew a license for any of the reasons set forth in 47 P.S. §4-470 (a.l). U.S.A. Deli, Inc. v. Pennsylvania Liquor Control Board, 909 A.2d 24 (Pa. Cmwlth. 2006), appeal denied, 929 A.2d 647 (Pa. 2007) (TABLE). However, when considering the manner in which the licensed premises is being operated, and any activity occurring off-premises, the Board may consider “whether any substantial steps were taken to address the activity occurring on or about the premises.” 47 P.S. [150]*150§4-470(a.l). Although the licensee is required to take substantial affirmative measures to prevent misconduct, a licensee is not required to do everything possible to prevent criminal activity on the premises, act as its own police force or close its business. I.B.P O.E. of West Mount Vernon Lodge 151 v. Pennsylvania Liquor Control Board, 969 A.2d 642, 651 (Pa. Cmwlth. 2009).

The Board has concluded that the shuttering of the Bar is warranted. However, the evidence does not prove that the Bar is a nuisance bar or a problem establishment that needs to be closed to protect the community. The following incidents do not warrant the non-renewal of the Bar’s liquor license.

On June 4,2011, Officer Justin Keenan of the S wissvale Police Department issued a citation for public intoxication to an intoxicated individual that he observed exiting the Bar and walking to the municipal parking lot. However, Officer Kennan did not see this individual enter the Bar or see him consuming alcoholic beverages at the Bar. In fact, the testimony established that the Bar’s doorman refused to permit the individual to enter the Bar because he was visibly intoxicated.

The incident on March 16,2011, involved a tip given to the Swissvale Police that an individual with an outstanding warrant for arrest was at the Bar. After being arrested and searched, an officer found small amounts of marijuana and cocaine and the individual was charged with possession. However, the officer testified that he had no evidence that the individual obtained the drugs in the Bar or that he sold drugs in the Bar. The licensee testified that he did not know the individual and had never seen him in the Bar. This incident provides no support for the action of the Board in not renewing the license.

[151]*151On September 20, 2011, a woman reported that she had been hit by a beer bottle in the Bar. The woman presented at the police station with a bloody nose covered in a substance later determined to be potpourri. After investigating, Lt. Matthew Lisovich determined that the woman had been struck with a bucket of potpourri at the Bar.

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Pennsylvania Liquor Control Board v. Bartosh
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Goodfellas, Inc. v. Pennsylvania Liquor Control Board
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Bluebook (online)
43 Pa. D. & C.5th 145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schalles-v-pennsylvania-liquor-control-board-pactcomplallegh-2014.