Opinion
December 11, 1967.
March 20, 1968.
Liquor Law — Licenses — Suspension — Refilling State Store liquor bottles — Evidence — Sufficiency.
On appeal by the Liquor Control Board from an order of the court below vacating an order of the board suspending a restaurant liquor license, based upon a finding of fact that the licensee by its employes refilled State Store liquor bottles, in which it appeared that the board's examiners removed six State Store liquor bottles from approximately forty open bottles on the bar in the licensed premises; that chemical analysis revealed that all six of these bottles contained liquor other than that indicated on the label; and that there was no evidence presented to refute the presumption that the licensee was responsible for refilling the bottles; it was Held that the record fully supported the board's action, and the order of the court below was reversed, and the order of the board reinstated.
Before ERVIN, P.J., WRIGHT, WATKINS, MONTGOMERY, JACOBS, HOFFMAN, and SPAULDING, JJ.
Appeal, No. 709, Oct. T., 1967, from order of Court of Quarter Sessions of Philadelphia County, Dec. T., 1966, No. 1677, in re revocation of restaurant liquor license No. R-15706 issued to The Clubhouse, Inc. Order reversed.
Appeal by licensee from decision of Pennsylvania Liquor Control Board suspending restaurant liquor license.
Order entered sustaining appeal and vacating suspension order, opinion by GREENBERG, J. Commonwealth appealed.
I. Harry Checchio and James Iannucci, Special Assistant Attorneys General, Thomas J. Shannon, Assistant Attorney General, and William C. Sennett, Attorney General, for Pennsylvania Liquor Control Board, appellant.
Samuel Moonblatt, and Berk, Masino and Moonblatt, for appellee.
Submitted December 11, 1967.
On November 18, 1966, after hearing on Citation No. 400 for 1966, the Pennsylvania Liquor Control Board entered an order suspending for a period of fifteen days the restaurant liquor license issued to The Clubhouse, Incorporated, 1636-38 Wolf Street, in the City of Philadelphia. This order was based upon the following finding of fact: "The licensee, by its servants, agents or employes refilled State Store liquor bottles on December 7, 1965". The licensee appealed to the Court of Quarter Sessions of Philadelphia County which entered an order, May 23, 1967, vacating the suspension. The Board has appealed to this court.
The history of the licensed premises includes a prior suspension. The suspension presently under consideration was based on the testimony of two of the Board's enforcement examiners and its assistant chief chemist. In substance, this testimony established that the examiners removed six State Store liquor bottles from approximately forty open bottles on the bar in the licensed premises. Chemical analysis revealed that all six of these bottles contained liquor other than that indicated on the label. There was no evidence presented to rebut the presumption that the licensee was responsible for refilling the bottles. The proprietor testified as follows: "Q. How do you explain the fact that this agent found six bottles which the chemist testified were altered or refilled . . . ? A. The only way I can see it is maybe the porter or maybe the bartender, when I wasn't there. That is the only way I can say; since then, we have discharged both of them".
In its brief order, without opinion, the court below cites 400 Lounge, Inc. Liquor License Case, 204 Pa. Super. 207, 203 A.2d 362, and Reda Liquor License Case, 205 Pa. Super. 260, 209 A.2d 32. In the 400 Lounge case, six of six hundred bottles were removed from the licensed premises. Analysis disclosed five bottles to be perfect. There was a slight variation in the solid content of the sixth bottle. We affirmed a finding by the court below that the Board had not made out a case. In Reda Liquor License Case, five bottles were removed from a stock of approximately five hundred bottles. Three of the bottles passed all of the comparison tests. Two of the bottles passed as to solids and fixed acids, but there was a minor variance in the voluble acids and percentage of natural color. Pointing out that each case must be determined on its individual facts, we again affirmed a finding by the court below that the Board had not made out a case. The case at bar presents an entirely different factual situation. It is our view that the instant record fully supports the Board's action.
The order of the court below is reversed, and the order of the Board is reinstated.