Opinion
Argued December 13, 1982
May 27, 1983.
Liquor licensing — De novo hearing — Remand — Penalty.
1. On an appeal from a decision of the Liquor Control Board, the lower court is required to hold a hearing de novo, make its own findings of fact and conclusions of law and then either sustain, reverse or modify the action of the Board; when the lower court fails to make a completely independent determination of the facts and fails to draw conclusions of law, a remand is required. [516]
2. The lower court may not change or modify a penalty imposed on a liquor licensee by the Liquor Control Board without making specific material changes in the facts as found by the Board. [516]
Argued December 13, 1982, before Judges BLATT, WILLIAMS, JR. and CRAIG, sitting as a panel of three.
Appeal, No. 2208 C.D. 1981, from the Order of the Court of Common Pleas of Philadelphia County in the case of Commonwealth of Pennsylvania v. Flowers Davis Enterprises, Inc., No. 2432 January Term, 1981.
Restaurant liquor license revoked by the Pennsylvania Liquor Control Board. Licensee appealed to the Court of Common Pleas of Philadelphia County. Appeal sustained. BLAKE, J. Board appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.
Gary F. DiVitto, with him, J. Leonard Langan, Chief Counsel, for appellant.
No appearance for appellee.
The Pennsylvania Liquor Control Board (Board) appeals an order of the Court of Common Pleas of Philadelphia County, dated July 29, 1981, reversing the Board's order revoking the restaurant liquor license, No. R-2780, of Flowers and Davis Enterprises, Inc. (Appellee).
On August 20, 1980, the Board issued a citation to show cause why appellee's liquor license should not be revoked. An ex parte hearing was held on November 21, 1980, before a Board Hearing Examiner. The Board issued an opinion and order, dated December 29, 1980, revoking appellee's liquor license and ordering the forfeiture of the bond filed with the license application for the year beginning November 1, 1979 and ending October 31, 1980. The Board's action was based on its sole finding of fact that
Appellee's liquor license was revoked pursuant to Section 471 of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P. S. § 4-471.
[t]he licensee, by its servants, agents or employes possessed controlled substances on the licensed premises or on premises contiguous or adjacent thereto or used in connection therewith, on May 13, 1980 . . . .
Appellee subsequently appealed to the court of common pleas, which in a de novo hearing held on July 29, 1981, reversed the Board's order revoking appellee's license and providing for the bond forfeiture.
Consistent with the language and decisions of the Supreme Court in Noonday Club of Delaware County, Inc. Liquor License Case, 433 Pa. 458, 252 A.2d 568 (1968) and Carver House, Inc. Liquor License Case, 454 Pa. 38, 310 A.2d 81 (1973), this Court has repeatedly adhered to the following:
Pursuant to Section 471 of the Liquor Code, the lower court, on appeal from a decision of the Board is required to hold a hearing de novo, make its own findings of fact and conclusions of law, and then, in the exercise of its own discretion, either sustain, reverse, or modify the action of the Board . . . . The Court below [is] required to make a completely independent determination of all the facts of the case.
Banks Liquor License Case, 67 Pa. Commw. 479, 481-82, 447 A.2d 723, 724 (1982) (emphasis added) (citations omitted); see also, Pennsylvania Liquor Control Board v. Argonne Tavern, Inc., 25 Pa. Commw. 286, 288, 361 A.2d 480, 481 (1976); Pennsylvania Liquor Control Board, v. Latrobe Armed Services Association, 16 Pa. Commw. 199, 201, 329 A.2d 549, 551 (1974). In the case at bar, however, the lower court failed to make the required findings of fact and conclusions of law. We must therefore remand.
In Argonne Tavern, Inc., 25 Pa. Commw. at 288, 361 A.2d at 481, we remanded the matter to the lower court upon that court's failure to make findings of fact and conclusions of law in accordance with Section 471 of the Liquor Code and settled case law. But cf., Harrison City Fire Protective Association Liquor License Case, 37 Pa. Commw. 525, 391 A.2d 1090 (1978), where, for reasons of judicial economy, we did not remand but deemed a statement in the lower court's opinion a "finding" materially at variance with the Board's findings therefore upholding the lower courts reduction of the Board's penalty notwithstanding the Court's failure to make specific findings of fact. In light of over thirty years of well-settled case law requiring lower courts to make specific findings of fact and conclusions of law, however, we shall no longer waive such requirements for reasons of judicial economy.
Furthermore, it is axiomatic that "the lower court may not change or modify a penalty imposed on a licensee by the Board without making specific material changes in the facts as found by the Board." James Alston, Inc. v. Pennsylvania Liquor Control Board, 71 Pa. Commw. 216, 455 A.2d 228, 229 (1983) (quoting Carver House, Inc., 454 Pa. at 41-42, 310 A.2d at 83). Since the lower court, sub judice, failed to make any findings of fact which differed materially or otherwise from the Board's finding, the lower court's order vacating the Board's license revocation order is reversed and the matter remanded to the Court of Common Pleas of Philadelphia County for further proceedings consistent with this opinion.
Absent findings of fact which materially differ from the Board's findings of fact, a lower court is without power to modify or change a Board's order imposing a penalty upon a licensee. See, Pennsylvania Liquor Control Board v. Crossover, Inc., 48 Pa. Commw. 260, 410 A.2d 88 (1980); Pennsylvania Liquor Control Board v. Camac Bar, Inc., 43 Pa. Commw. 349, 403 A.2d 136 (1973).
ORDER
AND NOW, the 27th day of May, 1983, the order of the Court of Common Pleas of Philadelphia County, dated July 29, 1981, is reversed, and the case is remanded to that court for further proceedings consistent with this Opinion.
Jurisdiction relinquished.