Opinion
No. 349 C.D. 2012
01-03-2013
Commonwealth of Pennsylvania, Liquor Control Board v. Gary McLoota t/a Thee Mirage, Appellant
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Gary McLoota, t/a Thee Mirage, appeals from the January 31, 2012, order of the Court of Common Pleas of Blair County (trial court), affirming the decision of the Pennsylvania Liquor Control Board (LCB) to deny McLoota's application to renew his hotel liquor license. We affirm.
McLoota owns Thee Mirage, an exotic nightclub located at 130 Sixth Avenue in Altoona, and has had a license to sell alcoholic beverages on the premises since December 1996. McLoota filed a license renewal application for the period from February 1, 2011, through January 31, 2013. The LCB objected to the renewal based on McLoota's eight adjudicated citations for violations of the Pennsylvania Liquor Code (Liquor Code), Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§1-101 to 10-1001, and 17 incidents of disturbance on or directly adjacent to the licensed premises. After an evidentiary hearing, the LCB refused to renew McLoota's license under section 470(a.1) of the Liquor Code, 47 P.S. §4-470(a.1).
McLoota was cited for the following violations: permitting entertainers to have lewd contact with patrons; permitting lewd or immoral entertainment; issuing checks with insufficient funds; discounting the price of alcoholic beverages between 12:00 a.m. and 2:00 a.m.; serving alcoholic beverages between 2:00 a.m. and 7:00 a.m.; furnishing alcohol to a minor; failing to maintain coil cleaning records; failing to clean coils, tap rods, and connections; failing to operate as a bona fide hotel; furnishing false information on a renewal application; serving adulterated or contaminated liquor; failing to keep records on the licensed premises; permitting amplified sound to be heard off of the licensed premises; permitting an unlicensed third party to have an unlawful pecuniary interest in the business; paying for malt or brewed beverages with checks other than licensee's own; and failing to maintain truthful and complete records. (Trial Ct. Op., 1/31/12, at 2-3.)
McLoota timely appealed to the trial court. After a de novo review of the administrative record, the trial court affirmed the LCB's decision. McLoota now appeals to this court.
Our scope of review in a liquor license renewal case is limited to determining whether the trial court's factual findings are supported by substantial evidence and whether the trial court committed an error of law or abuse of discretion. Goodfellas, Inc. v. Pennsylvania Liquor Control Board, 921 A.2d 559, 564 n.8 (Pa. Cmwlth. 2007).
Initially, McLoota argues that the LCB failed to prove that he knew or should have known about the illegal activities occurring on or near the licensed premises. We disagree.
The renewal of a liquor license is not automatic. Goodfellas, Inc. v. Pennsylvania Liquor Control Board, 921 A.2d 559, 564 (Pa. Cmwlth. 2007). Under section 470(a.1) of the Liquor Code, the LCB may refuse to renew a liquor license: (1) if the licensee has violated any Pennsylvania law or LCB regulation; (2) if the licensee has had one or more adjudicated citations; (3) if the licensed premises no longer meets the requirements of the Liquor Code or the LCB's regulations; or (4) due to the manner in which the licensed premises is operated. 47 P.S. §4-470(a.1). Even a single violation of the Liquor Code can be sufficient grounds to deny a license renewal. Goodfellas, 921 A.2d at 564-65. Moreover, the LCB may refuse to renew a license if the licensee knew or should have known of a pattern of illegal activity on the licensed premises and failed to take substantial steps to prevent such activity. First Ward Republican Club v. Pennsylvania Liquor Control Board, 11 A.3d 38, 44 (Pa. Cmwlth. 2010), appeal denied, 611 Pa. 647, 24 A.3d 864 (2011); Pennsylvania Liquor Control Board v. TLK, Inc., 518 Pa. 500, 504-05, 544 A.2d 931, 933 (1988).
Here, it is undisputed that McLoota had an extensive citation history dating back to 1997. See Pennsylvania Liquor Control Board v. Bartosh, 730 A.2d 1029, 1033 (Pa. Cmwlth. 1999) (stating that the LCB may consider all Liquor Code violations committed by a licensee, regardless of when they occurred). It is also undisputed that numerous disturbances have occurred outside the licensed premises since 2009, including fights and assaults involving McLoota's own patrons. McLoota claims, however, that he had no knowledge of many of these activities because the police never discussed the incidents with him directly.
The trial court found that even if the police did not inform McLoota about each criminal incident, McLoota should have known about them. Many of the incidents occurred in the parking lot when the nightclub was open for business. These incidents included: a patron receiving a broken nose; a fight involving 20 people; an assault of a man and a woman; and the stabbing of a woman as she was leaving the nightclub. (Trial Ct. Op., 1/31/12, at 3.) The severity of these incidents, which took place immediately outside the nightclub, should have put McLoota on notice. Furthermore, the evidence showed that McLoota knew about incidents of criminal activity inside the premises, including a September 2009 police search that uncovered heroin, marijuana, drug paraphernalia, and weapons inside the nightclub office.
The police had executed the search warrant to investigate an alleged rape of a female patron inside the nightclub.
Next, McLoota argues that the trial court failed to consider the substantial steps he took to remediate the pattern of criminal activity. Specifically, McLoota asserts that he: installed a new security camera and two halogen spotlights outside the building; installed an emergency light system and a panic bar inside the building; bought an identification scanner to ensure that the club's patrons were over age 21; and hired a bouncer and a RAMP-certified bartender.
Responsible Alcohol Management Program, an LCB training program for persons who serve alcohol. --------
The trial court found that the criminal incidents began as early as January 2009. McLoota, however, did not add any additional security measures until March 2010, more than one year later. In any event, the new security measures proved to be ineffective because several of the most serious incidents, including the September 2010 stabbing, occurred after the security measures were implemented. Therefore, the trial court correctly determined that McLoota's remedial efforts were inadequate. See St. Nicholas Greek Catholic Russian Aid Society v. Pennsylvania Liquor Control Board, 41 A.3d 953, 957 (Pa. Cmwlth. 2012) (affirming the denial of a licensee's renewal application where the "[l]icensee's corrective measures failed to adequately address the violence occurring inside the club and in the club's parking lot").
Accordingly, because we conclude that the trial court's factual findings are supported by substantial evidence, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 3rd day of January, 2013, we hereby affirm the January 31, 2012, order of the Court of Common Pleas of Blair County.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge