Teazers, Inc. v. Pennsylvania Liquor Control Board

661 A.2d 455, 1995 Pa. Commw. LEXIS 307
CourtCommonwealth Court of Pennsylvania
DecidedJune 27, 1995
StatusPublished
Cited by2 cases

This text of 661 A.2d 455 (Teazers, Inc. v. Pennsylvania Liquor Control Board) 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
Teazers, Inc. v. Pennsylvania Liquor Control Board, 661 A.2d 455, 1995 Pa. Commw. LEXIS 307 (Pa. Ct. App. 1995).

Opinion

SMITH, Judge.

Teazers, Inc. (Licensee) appeals from an order of the Pennsylvania Liquor Control Board (PLCB) which denied Licensee’s application for renewal of an amusement permit. Licensee’s appeal was originally filed in the Court of Common Pleas of Philadelphia County which transferred the matter to this Court by order dated June 2, 1994. The issues raised by Licensee include, among others, whether the PLCB lacked statutory authority, committed an error of law or abused its discretion in refusing to renew Licensee’s amusement permit; and whether the PLCB denied Licensee procedural due process by failing to provide it with an evidentiary hearing before refusing to renew its amusement permit.

I.

The Bureau of Liquor Control Enforcement conducted investigations of the licensed premises and issued two citations to Licensee for permitting lewd, immoral or improper entertainment in the licensed premises in violation of Section 493(10) of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-493(10), and for permitting an entertainer to have contact or associate with patrons in violation of PLCB regulations.1 A hearing was conducted before an administrative law judge who determined that Licensee committed the aforementioned violations and imposed fines. By letter dated October 1, 1993, the Director of the Bureau of Licensing (Director of Licensing) warned Licensee that due to its citation record, its next application for renewal would “undergo further intense review and close scrutiny” to determine whether Licensee had abused the privilege of holding a liquor license.

On or after August 31, 1993, Licensee submitted an application for renewal of its restaurant liquor license and amusement permit for the one-year period beginning November 1, 1993. By letter dated October 20, 1993, the Director of Licensing notified Licensee that the PLCB objected to the renewal of its “license and any other permits” pending tax clearance from the Departments of Revenue and Labor and Industry, and that it specifically objected to the renewal of the amusement permit due to Licensee’s citation record. The letter further provided that Licensee could request a formal hearing within twenty days pursuant to Section 464 of the Liquor Code, 47 P.S. § 4-464 and 40 Pa.Code § 3.41 (both governing appeals from refusals of liquor license renewals.)

By letter dated October 28, 1993, the Director of Licensing informed Licensee that the restaurant liquor license would be renewed on the condition that Licensee obtained the appropriate tax clearance, but that due to Licensee’s citation record, the amuse[457]*457ment permit would not be renewed. The letter also acknowledged receipt of Licensee’s request for a formal hearing before the PLCB. The hearing was conducted before a hearing examiner who recommended renewal of the amusement permit, concluding that Licensee would otherwise suffer a significant loss of business and financial harm. The PLCB determined, however, that Licensee’s amusement permit should not be renewed.

Licensee appealed to the Court of Common Pleas of Philadelphia County, which transferred the case to this Court stating that because the Liquor Code did not expressly provide a statutory appeal for the refusal to renew an amusement permit, jurisdiction lies in the Commonwealth Court under the Administrative Agency Law, citing Maritime Management, Inc. v. Pennsylvania Liquor Control Board, 531 Pa. 95, 611 A.2d 202 (1992). The trial court noted, however, that Pennsylvania Liquor Control Board v. Sherman, 129 Pa.Commonwealth Ct. 523, 566 A.2d 362 (1989), appeal denied, 526 Pa. 643, 584 A.2d 324 (1990), contained a contrary proposition and would permit the court of common pleas to hear the appeal. The merits of Licensee’s appeal cannot be addressed because of this Court’s disposition of the jurisdictional question involved.

II.

Section 702 of the Administrative Agency Law, 2 Pa.C.S. § 702 provides that “[a]ny person aggrieved by an adjudication of a Commonwealth agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals by or pursuant to Title 42 [the Judicial Code].” Section 763 of the Judicial Code, 42 Pa.C.S. § 763, provides that the Commonwealth Court has exclusive jurisdiction for direct appeals from final orders of government agencies except for appeals under Section 933 of the Judicial Code, 42 Pa.C.S. § 933. Section 933 generally provides that appeals from PLCB determinations pursuant to the Liquor Code shall be made to the courts of common pleas with venue. 42 Pa.C.S. § 933(a)(l)(v).2

Where an appeal cannot be taken pursuant to the Liquor Code, such as where the appeals are expressly precluded3 or where the person aggrieved by the decision has no right to appeal under the Liquor Code, the Pennsylvania Supreme Court has held that an appeal may be taken pursuant to Sections 701 and 702 of the Administrative Agency Law, 2 Pa.C.S. §§ 701 and 702, and jurisdiction would accordingly rest in the Commonwealth Court. Maritime Management, Inc.; See also Application of El Rancho Grande, Inc., 496 Pa. 496, 437 A.2d 1150 (1981) (where individual tavern owners in the community were permitted to appeal the PLCB’s decision to the Commonwealth Court under Administrative Agency Law because they were not among the class of individuals with a statutory right of appeal under the Liquor Code).

Clearly, the Liquor Code provides that jurisdiction for an appeal from the refusal of a restaurant liquor license renewal lies in the court of common pleas. Section 464 of the Liquor Code, 47 P.S. § 4-464. At the time of the present appeal, the Liquor Code did not expressly set forth a procedure for appealing from the refusal of an amusement permit renewal.4 A determination must therefore be made as to whether an appeal from a refusal of an amusement permit is an appeal pursuant to the Liquor Code. In other words, whether the amusement permit is separate from or ancillary to a liquor license. If the present appeal is one pursuant to the Liquor Code, then jurisdiction lies [458]*458in the court of common pleas under Section 933(a)(l)(v) of the Judicial Code; if there is no right to appeal pursuant to the Liquor Code, then jurisdiction lies in this Court under the Administrative Agency Law.

III.

The Liquor Code was enacted for the protection of the public welfare, health, peace and morals of Commonwealth residents. Tahiti Bar, Inc., 395 Pa. 355, 150 A.2d 112, appeal dismissed, 361 U.S. 85, 80 S.Ct. 159, 160, 4 L.Ed.2d 116 (1959). The PLCB is specifically empowered to grant, issue, suspend and revoke all licenses and permits authorized by the Liquor Code. 47 P.S. § 2 — 207(d); Alfred M. Lutheran Distribs., Inc. v. A.P. Weilersbacher, Inc., 437 Pa.Superior Ct. 391, 650 A.2d 83 (1994). “One who accepts such license must be deemed to consent to all proper conditions and restrictions which have been or may be imposed by the legislature in the interest of public morals or safety.”

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Bluebook (online)
661 A.2d 455, 1995 Pa. Commw. LEXIS 307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/teazers-inc-v-pennsylvania-liquor-control-board-pacommwct-1995.