Opinion
No. 24 C.D. 2012
02-25-2013
Albert Michael Kane t/a Kane's Tavern, Appellant v. PA Liquor Control Board
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Albert Michael Kane t/a Kane's Tavern (Licensee) appeals the order of the Court of Common Pleas of Northumberland County (trial court) affirming the Pennsylvania Liquor Control Board's (LCB) denial of its application to renew its liquor license. We affirm.
Section 470(a.1) of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §4-470(a.1), grants the LCB the authority to refuse to renew a liquor license under the following circumstances:
(1) If the licensee, its shareholders, directors, officers, association members, servants, agents or employes have violated any of the laws of this Commonwealth or any of the regulations of the board;
(2) If the licensee, its shareholders, directors, officers, association members, servants, agents or employes have one or more adjudicated citations under this or any other license issued by the board or were involved in a license whose renewal was objected to by the Bureau of Licensing under this section;
(3) If the licensed premises no longer meets the requirements of this act or the board's regulations; or
(4) Due to the manner in which this or another licensed premises was operated while the licensee, its shareholders, directors, officers, association members, servants, agents or employes were involved with that license. When considering the manner in which this or another licensed premises was being operated, the board may consider activity that occurred on or about the licensed premises or in areas under the licensee's control if the activity occurred when the premises was open for operation and if there was a relationship between the activity outside the premises and the manner in which the licensed premises was operated. The board may take into consideration whether any substantial steps were taken to address the activity occurring on or about the premises.
Licensee is a tavern located at 310 Arch Street, Sunbury, Pennsylvania. On May 15, 2006, the Pennsylvania Attorney General and the Northumberland County District Attorney filed a complaint in the trial court seeking to enjoin Licensee's operation for one year as a common nuisance pursuant to Section 611 of the Liquor Code and the common law based on a number of drug sales on the premises and a number of police calls to the premises relating to other criminal activity. On July 17, 2006, the trial court issued an amended order enjoining Licensee from operating or permitting the operation of Licensee's premises for a one-year period from May 12, 2006, and directing the Northumberland County Sheriff to padlock Licensee's premises by 5:00 p.m. on August 1, 2006.
47 P.S. §6-611. Section 611 of the Liquor Code states, in pertinent part:
(a) Any .... building, ... structure or place, ... where liquor, alcohol or malt or brewed beverages are ... possessed, sold, ... offered for sale, ... or furnished, in violation of this act, and all such liquids, beverages and property kept or used in maintaining the same, are hereby declared to be common nuisances, and any person who maintains such a common nuisance shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to the same penalties provided in section four hundred ninety four of this act.
(b) An action to enjoin any nuisance defined in this act may be brought in the name of the Commonwealth of Pennsylvania by the Attorney General, by the Pennsylvania State Police through its Bureau of Liquor Control Enforcement, by the municipality wherein the establishment is located, by the district attorney of the proper county or by a person who resides or has a place of business within five hundred feet of the location of the alleged nuisance. Such action shall be brought and tried as an action in equity and may be brought in any court having jurisdiction to hear and determine equity cases within the county in which the offense occurs. If it is made to appear, by affidavit or otherwise, to the satisfaction of the court that such nuisance exists, a temporary writ of injunction shall forthwith issue, restraining the defendant from conducting or permitting the continuance of such nuisance until the conclusion of the proceedings. ... It shall not be necessary for the court to find the property involved was being unlawfully used, as aforesaid, at the time of the hearing, but on finding that the material allegations of the petition are true, the court shall order that no liquor, alcohol or malt or brewed beverage shall be ... sold, offered for sale, ... or furnished, in such ... building, structure, ... or place, or any part thereof.
(c) Upon the decree of the court ordering such nuisance to be abated, the court may, upon proper cause shown, order that the ... building, structure, ... or place shall not be occupied or used for one year thereafter....
On December 7, 2006, Licensee filed an application with the LCB for renewal of its Restaurant Liquor License No. R-17270 for the period beginning April 1, 2007, and ending March 31, 2009. On March 21, 2007, the LCB's Bureau of Licensing (Bureau) informed Licensee that it objected to the renewal of the license based on the trial court's adjudication that Licensee's operation of the licensed premises constitutes a common nuisance under Section 611 of the Liquor Code and the court's order enjoining Licensee from operating or permitting the operation of the establishment for one year from May 12, 2006; three adjudicated violations of the Liquor Code and the LCB's regulations; and 14 incidents at or immediately adjacent to the premises that were reported to the Sunbury Police Department, including drug activity, drug activity involving employees, visibly intoxicated persons, fights and assaults.
Citation No. 94-1056 was issued against Licensee for a violation of Section 493(1) of the Liquor Code, 47 P.S. §4-493(1), based on furnishing alcohol to a 16-year-old female minor on May 31, 1993. (R.R. at 160a-162a.) Licensee admitted the charge and was fined $1,000.00. (Id.) Citation No. 05-0181 was issued against Licensee for another violation of Section 493(1) based on furnishing alcohol to a visibly intoxicated female patron on December 10, 2004. (Id. at 157a-159a.) Licensee admitted the charge and was fined $1,000.00. (Id.) Citation No. 05-1457 was issued against Licensee for a violation of Section 5.32(a) of the LCB's regulations, 40 Pa. Code §5.32(a), based on amplified music that could be heard emanating from the licensed premises at a distance of up to 100 yards. (Id. at 154a-156a.) Licensee admitted the charge and was fined $250.00. (Id.)
Before the LCB Hearing Examiner, Officer Travis Bremigen (Bremigen) of the Sunbury Police Department and the Northumberland Montour County Drug Task Force testified that in April 2004 a confidential informant informed him that illegal drug activity was taking place on Licensee's premises. Bremigen stated that on April 4, 2004, he arranged for a confidential informant and an undercover officer to meet with Zachary Young (Young) on Licensee's premises and make a controlled buy of .9 of a gram of crack cocaine for $120.00. Bremigen testified that on May 8, 2004, an undercover police officer, Sergeant Graham, working with a confidential informant, bought 5.3 grams of marijuana for $60.00 from David Smith inside Licensee's premises. Bremigen stated that on August 20, 2004, a confidential informant and an undercover police officer bought one gram of crack cocaine for $100.00 from Licensee's bartender, Billie Jo Weirick (Weirick), while she was working behind the bar. Bremigen testified that Weirick told the confidential informant to come back later to meet with two males, nicknamed "Drum" and "Murder" who were also dealing drugs in the bar. Bremigen stated that Weirick sold the confidential informant an additional .85 grams of crack cocaine for $100.00. Bremigen stated that on October 18, 2005, a confidential informant bought .2 grams of crack cocaine from Oscar Tiebout on Licensee's premises. Bremigen testified that Young and Weirick were arrested and convicted based on the drug transactions.
Bremigen also testified that on February 5, 2006, he saw Amy Jo Miller exit Licensee's premises and hit another vehicle before attempting to flee the area. Bremigen stated that she was taken into custody and charged with disorderly conduct and careless driving. Bremigen testified that he asked Licensee for video surveillance tapes on several occasions, but Licensee did not provide them stating that the system was broken or the tapes were not available. Bremigen opined that the drug problem in Sunbury was minimized during the year that Licensee's tavern was closed.
Sergeant Rob Graham (Graham) of the Milton Police Department and the Northumberland Montour County Drug Task Force testified that he saw drug sales, other than those in which he was involved, at the bar, in the bathroom and in a small pool table room of Licensee's premises where the dealers generally tended to hang out. Graham stated that he asked bartenders in the past who he could buy drugs from and he was directed to individuals in the back of Licensee's premises in the pool table area. Graham testified that the May 8, 2004 marijuana buy took place while he was seated at the bar; the money was handed in plain view; the exchange was at waist level; he did not attempt to hide what was happening; and anybody could have seen what they were doing if they were paying attention. Graham stated that there were suspected gang members on Licensee's premises and that he did not see any signage prohibiting drug activity.
Officer Bernard Petty (Petty) of the Sunbury Police Department testified that on August 23, 2004, he observed the confidential informant enter and exit Licensee's premises and that she handed him two rocks of cocaine that she had purchased for $100.00. Petty stated that on January 7, 2006, he was dispatched to Licensee's premises for a fight inside the bar. Petty testified that upon arrival, Licensee directed him to a man in the bar area with a severe cut to the throat by a beer bottle and the injured man was taken away by ambulance. Petty stated that on March 18, 2006, he passed Licensee's parking lot in a marked patrol vehicle and saw two people in a car engaged in a struggle. Petty testified that he could hear a female, Debra Lindauer (Lindauer), screaming and that she and a male exited the vehicle showing signs of intoxication and that the male was charged with disorderly conduct. Lindauer testified and corroborated the officer's version of the altercation that occurred in Licensee's parking lot.
Officer Douglas VanDerPool (VanDerPool) of the Point Township Police Department testified that on October 4, 2004, he responded to an incident in Licensee's parking lot in which a male and a female were injured when struck by a sock full of tools wielded by one of three males. VanDerPool stated that another one of the males lifted up his shirt and exposed a revolver but all three fled the scene prior to his arrival. VanDerPool testified that on August 21, 2005, he was dispatched to Licensee's premises because a highly intoxicated female, Crystal Kresge (Kresge), drove her car from the parking lot and struck a pole. VanDerPool stated that he apprehended Kresge nearby and charged her with driving while intoxicated after she failed to complete field sobriety tests. VanDerPool testified that while he did not see Kresge exit Licensee's premises, he knows that she is one of Licensee's employees and believed that she lived in an apartment there.
Licensee testified that his father ran the tavern for 38 years and that he has been in business for 30 years. He stated that the service bar is U-shaped and everything is visible and that there is a round mirror at the bar so that one can see the pool table room from the bar. He testified that he was aware of a drug problem in Sunbury, but that he knew what drug activity looked like and never noticed anything like that in his tavern. However, he conceded that he knew that there was an awful lot of drug activity in the alley behind his barroom and an awful lot of arrests made by the police back there. Licensee stated that he did not know that there was an undercover drug operation going on in his tavern and he was not aware of the drug activity on the premises until he was served with the complaint seeking an injunction. He testified that prior to closing, there was signage prohibiting drug activity and he lectured his employees once a week to be on the lookout for drug activity and to report it to him or the police. Licensee stated that the surveillance system was the same prior to closing; there are 12 cameras on the premises with two on the exterior of the building, that the only one that recorded is directed at the cash register, and that he can monitor all of the cameras in his office above the barroom. He testified that he was present for the January 7, 2006 assault and heard the argument, and that he was probably upstairs when the drug sales occurred in April, May and August 2004, but that he didn't see anything suspicious on the monitor and that he wasn't present during any of the other sales.
Licensee stated that since reopening in September 2007, he has gotten rid of the pool table and made that area a dining room; increased the lighting in the parking lot and the entrances; fired his old staff, with the exception of his girlfriend, Crystal Kresge, and hired all new employees; adopted an application form that provides for drug testing; required all female employees to use clear handbags; locked the back dining room door that opens to an alley at dusk; and maintained a barred patron list. He testified that since reopening, he has not had any police-related problems and the police have not asked him to make any further changes.
Crystal Kresge, Licensee's girlfriend, testified regarding the circumstances surrounding her August 15, 2005 driving while intoxicated arrest by VanDerPool and stated that she was not drinking at Licensee's tavern that night. Kresge stated that she manages the tavern in the daytime, she did not serve a visibly intoxicated patron in December 2004, and she was unaware of the drug activity that took place on the premises in 2004 and 2005.
On April 2, 2008, the LCB refused to renew Licensee's Restaurant License. In the opinion filed in support of its order, the LCB explained that the renewal was refused due to the trial court's order enjoining Licensee from operating or permitting the operation of the establishment for one year from May 12, 2006, as a common nuisance under Section 611 of the Liquor Code; the three adjudicated violations of the Liquor Code and the LCB's regulations; the 11 incidents at or about the licensed premises that were reported to the Sunbury Police Department, including drug transactions, assaultive behavior and parking lot disturbances with intoxicated individuals; and because Licensee failed to implement timely or substantial preventative measures with respect to the unlawful activity that he knew or should have known was occurring on the licensed premises. (LCB's April 18, 2007 Opinion at 37-40, 41-42.)
On April 4, 2008, Licensee appealed the LCB's order to the trial court. At the February 9, 2009 hearing, the LCB presented the administrative record; Licensee again testified regarding his lack of knowledge of criminal activity and the preventative measures that he implemented following his reopening in September 2007. On July 15, 2011, the trial court issued an order affirming the LCB's decision and denying Licensee's appeal and Licensee filed the instant appeal to this Court.,
It is undisputed that the trial court's July 15, 2011 order was not received by either of the parties until December 14, 2011. While an appeal filed beyond the 30-day deadline of Pa. R.A.P. 903(a) is only permitted in extraordinary circumstances, it is well established that a breakdown in the court's operations constitutes such extraordinary circumstances warranting leave to file an appeal nunc pro tunc. Union Electric Corporation v. Board of Property Assessment, Appeals & Review of Allegheny County, 560 Pa. 481, 486-87, 746 A.2d 581, 584 (2000); Weiman v. City of Philadelphia, 564 A.2d 557, 559 (Pa. Cmwlth. 1989). A prothonotary's failure to provide written notice of the entry of an order to a party or his counsel of record as required by Pa. R.C.P. No. 236(a)(2) is a breakdown in the court's operations that entitles that party to a nunc pro tunc appeal. Nixon v. Nixon, 329 Pa. 256, 260-62, 198 A. 154, 156-58 (1938); Weiman, 564 A.2d at 559-60. This Court has jurisdiction to entertain a nunc pro tunc appeal where, as here, the facts surrounding the filing of the untimely appeal are undisputed. Id. at 559. Accordingly, the instant appeal will not be quashed and it will be disposed of on the merits because Licensee's notice of appeal was filed within 30 days of the parties' first receipt of the trial court's July 15, 2011 order.
On January 3, 2012, Licensee filed an Application for Supersedeas in the trial court pursuant to Pa. R.A.P. 1732(a) seeking to continue operating his tavern during the pendency of this appeal. By order dated January 27, 2012, the trial court granted Licensee's application and directed that Licensee may continue to operate his tavern until final disposition of the appeal by this Court. The trial court's grant of Licensee's application is not at issue in this appeal.
In this appeal, Licensee claims that the trial court erred in finding that he knew or should have known of the drug activity on the premises prior to the issuance of the injunction under Section 611 of the Liquor Code and that he did not take substantial affirmative measures to eliminate the drug activity.
Our scope of review in a liquor license renewal case is limited to a determination of whether the trial court's findings of fact are supported by substantial evidence, whether it abused its discretion, or whether it committed an error of law. In re License Renewal Application of the Quippan Club, 806 A.2d 491, 493-94 (Pa. Cmwlth. 2002). --------
Renewal of a liquor license is not an automatic procedure. Generally, in the context of a non-renewal action, the finder of fact may consider all past adjudicated Liquor Code violations no matter when they occurred. First Ward Republican Club of Philadelphia v. Pennsylvania Liquor Control Board, 11 A.3d 38, 47 (Pa Cmwlth. 2010), appeal denied, 611 Pa. 647, 24 A.3d 864 (2011). See also I.B.P.O.E. of West Mount Vernon Lodge 151 v. Pennsylvania Liquor Control Board, 969 A.2d 642, 648 (Pa. Cmwlth. 2009) ("It is not improper for the [LCB] to look at a series of violations of the liquor laws that have already been the subject of a penalty when deciding whether to renew a license."). Even a single past citation or Liquor Code violation is sufficient to support a decision refusing to renew a license. St. Nicholas Greek Catholic Russian Aid Society v. Pennsylvania Liquor Control Board, 41 A.3d 953, 959 (Pa. Cmwlth. 2012). Additionally, a licensee may be held accountable for non-Liquor Code violations, such as those under the Crimes Code, if it can be established that there was a pattern of illegal activity on the licensed premises about which the licensee knew or should have known, and the licensee failed to take substantial steps to prevent such activity. Philly International Bar, Inc. v. Pennsylvania Liquor Control Board, 973 A.2d 1, 3 (Pa. Cmwlth. 2008), appeal denied, 602 Pa. 668, 980 A.2d 609 (2009). While a licensee may defend against non-renewal by showing he implemented substantial affirmative steps to guard against known pervasive illegal activities, the remedial measures must be taken at a time when the licensed establishment knows or should have known that the illicit activity is occurring on the premises. I.B.P.O.E. of West Mount Vernon Lodge 151, 969 A.2d at 649.
As noted above, Bremigen, Graham and Petty presented uncontradicted testimony regarding the six direct drug sales that took place on Licensee's premises including sales by one of Licensee's employees. In addition, Graham testified that he saw drug sales, other than those in which he was involved, at the bar, in the bathroom and in the pool table room, and that he asked bartenders in the past who he could buy drugs from and he was directed to individuals in the pool table area. While he asserted that he was unaware of any drug activity on his premises, Licensee conceded that he was aware of an awful lot of drug activity in the alley behind his barroom and of a number of arrests made by the police back there prior to the issuance of the injunction. Licensee also testified that he did not implement the remedial measures, including locking the back door that opens to the alley at dusk, until after he reopened the tavern in September 2007 following the injunction. Such evidence clearly supports the trial court's determination that Licensee knew or should have known of the drug activity prior to the injunction and that he failed to take timely remedial steps to guard against these known illegal activities. See Philly International Bar, Inc., 973 A.2d at 4 ("[I]n this case, the Board found that Licensee's business operation was such that drug activity was permitted to take place on the premises. The drug activity was so pervasive that Licensee's principals or employees should have known of the activity and taken steps to prevent it. In fact, Licensee's president admitted he was aware of 'light incidents' at the premises prior to the undercover drug purchases...."); Pennsylvania State Police v. Can, Inc., 651 A.2d 1160, 1166 (Pa. Cmwlth. 1994), appeal denied, 541 Pa. 655, 664 A.2d 544 (1995) ("[A] licensee is required to take affirmative steps once it becomes apparent that he should have known of the illegal activity, not when it can be said that he actually knows of the activity. For those reasons, we conclude that it was no error to find that [the licensee] should have instituted substantial affirmative measures at the same time he should have been aware of the pervasive drug-related activity on his licensed premises.") (emphasis in original).
In sum, the trial court did not err because the LCB properly denied Licensee's renewal application on the basis that the operation of the tavern was enjoined for a year because it constituted a common nuisance under Section 611 of the Liquor Code; the three adjudicated violations of the Liquor Code and the LCB's regulations; the 11 incidents at or about the premises requiring police intervention; and because Licensee failed to implement timely or substantial preventative measures with respect to the unlawful activity that he knew or should have known was occurring. Accordingly, the trial court's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 25th day of February, 2013, the order of the Court of Common Pleas of Northumberland County, dated July 15, 2011, at No. CV-08-750, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge