Opinion
No. 2061 C.D. 2014
07-07-2015
J, G, & R's, Ltd. on Stage, Appellant v. PA Liquor Control Board
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
This is an appeal from an opinion and order of the Court of Common Pleas of Lebanon County (trial court), which affirmed the decision of the Pennsylvania Liquor Control Board (PLCB) denying the renewal application for Restaurant Liquor License No. R-13824 filed by J, G, & R's, Ltd. on Stage (Licensee), for the premises located at 605 Cumberland Street, Lebanon, Pennsylvania (Licensed Premises).
The Honorable Samuel A. Kline presided.
The establishment is commonly known as "Woofer Magoo's" or "Woofer's."
Based on Licensee's citation history and evidence of twenty-one incidents over a two-year period that involved the police, and Licensee's failure to offer appropriate and timely corrective measures to address operational problems, the trial court concluded that the circumstances warranted non-renewal. Discerning no abuse of discretion or error below, we affirm the trial court.
Our 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. St. Nicholas Greek Catholic Russian Aid Society v. Pennsylvania Liquor Control Board, 41 A.3d 953 (Pa. Cmwlth. 2012).
Background
Licensee filed a timely renewal application with PLCB for a restaurant liquor license for the renewal period beginning March 1, 2014 through February 29, 2016. PLCB's Bureau of Licensing (Bureau) objected to the renewal and ordered a hearing, which was held on April 23, 2014. Based upon its review of the record from the hearing, PLCB refused the renewal application. Licensee then appealed to the trial court. After a de novo hearing held on August 12, 2014, at which PLCB moved the administrative record into evidence, and additional testimony was presented by Licensee, the trial court affirmed the decision of PLCB. The instant appeal followed.
The Bureau alleged that there were four adjudicated citations for violation of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 1-101 - 10-1001: three citations for the sale of alcoholic beverages to a minor (pursuant to Section 493 (1) of the Liquor Code, 47 P.S. § 4-493(1)), and one citation issued after the Licensed Premises were deemed not to be a bona fide restaurant insofar as it was not habitually and principally used for the purpose of providing food for the public (pursuant to Section 102 of the Liquor Code, 47 P.S. § 1-102). The Bureau further alleged that there had been approximately twenty-five (25) incidents of disturbances at or immediately adjacent to the Licensed Premises from March 2012 to March 2014 reported to the police department, which activity included, but was not limited to, stabbings, visibly intoxicated patrons, fights and disorderly operations. (Reproduced Record (R.R.) at 353.)
In its opinion, the trial court made comprehensive findings of fact regarding the incidents of disturbance on or near the Licensed Premises as follows:
5. On March 2, 2012 at approximately 2:27 am, a patron by the name of Jose Pacheco was involved in a violent incident with [Licensee's] security employee at the time. This incident ultimately resulted in the security employee stabbing Pacheco multiple times. The police were not contacted by [Licensee] after Pacheco's initial assault of the employee. The [security employee] was ultimately found guilty by a jury of attempted homicide and aggravated assault.
6. On June 16, 2012 at approximately 11:04 pm, a police officer was dispatched to 246 North Lincoln Avenue for a report of a burglary in progress, but the man was ultimately cited for public drunkenness after admitting that he was taking a shortcut on his way home after leaving [the Licensed Premises]. The man stated that he was riding his bicycle through the property to get home, and he crashed into a metal pillar. This required medical assistance, and the person smelled of alcohol.
7. On July 22, 2012 at approximately 5:52 am, a police officer was dispatched to 264 South 5th Street for a report of an intoxicated individual who was attempting to open doors. The man was under the influence of alcohol and admitted to drinking at [the Licensed Premises], and said he was trying to find his cousin's home. The man was cited for public drunkenness.
8. On October 7, 2012 at approximately 2:09 am, a large group formed outside [the Licensed Premises], and some people started to shove each other. One of the people in the crowd was arrested for disorderly conduct. It appeared from an investigation that the catalyst for the man being upset was an incident that had occurred inside [the Licensed Premises].
9. On November 23, 2012 at approximately 1:15 am, a detective observed an individual leave [the Licensed Premises] and vomit at the curb. Alcohol emanated from the person, and he was cited for disorderly conduct. The officer did not know if the patron consumed alcohol at [the Licensed Premises], but he believed he consumed it recently due to the odor of alcohol emanating from his person.
10. On January 1, 2013 at approximately 2:00 am, a police officer observed patrons leaving [the Licensed Premises] yelling and screaming on the sidewalk in front of the premises. It appeared that
there was a "fight about to brew." The officer was able to disperse the crowd.
11. On February 24, 2013 at approximately 12:20 am, a police officer was dispatched to [the Licensed Premises] concerning an individual causing a disturbance. Upon arrival, the officer observed the individual was intoxicated, and he was yelling, screaming, and acting disorderly. The officer did not know where he had been drinking. The individual was ultimately arrested for public drunkenness.
12. On February 24, 2013 at approximately 2:00 am, a police officer observed a group of boisterous females exit [the Licensed Premises] and observed one of the individuals, upon reaching a neighboring establishment, kneel down, pound on the glass, press her face against the glass, and scream at someone inside in a threatening manner. The woman had an odor of alcohol emanating from her. The woman was cited for disorderly conduct, as well as another member of the group who interfered with the officer's arrest.
13. On May 3, 2013 at approximately 2:08 am, a group of fifteen to twenty people were pushing each other at the opposite end of the block of [the Licensed Premises]. Two of [the Licensed Premises'] security employees at the time, Robert Olan and Anthony Martinez, responded to the scene. The police officer overheard someone discussing a fight and observed that two people received knife injuries. A bartender from another establishment told the officer that he observed Mr. Martinez pick a knife up from the sidewalk after the incident had ended. Mr. Martinez ultimately told the officer that he hid the knife in a flower pot. A police detective ultimately determined that the two victims who were stabbed had both been patrons at [the Licensed Premises] prior to the incident.
14. On June 16, 2013 at approximately 1:56 am, a police officer observed a patron, who was exiting [the Licensed Premises], yelling and screaming obscenities at someone still inside [the Licensed Premises]. The officer did not know if the man was served alcohol while inside, but he did observe the man was intoxicated and subsequently arrested for disorderly conduct.
15. On July 12, 2013 at approximately 2:05 am, a police sergeant observed an individual leave [the Licensed Premises] and stumble and fall. The sergeant approached the individual, who was extremely intoxicated. The sergeant gave the person the opportunity to leave,
but was ultimately cited for public intoxication for failing to leave the area. The sergeant did not observe the individual drink alcohol at [the Licensed Premises].
16. On July 20, 2013 at approximately 2:20 am, a police officer was dispatched to a residence because a man was passed out on the front steps. The man had an odor of alcohol emanating from his body, and he admitted that he had visited [the Licensed Premises] earlier in the evening. The man was cited for public drunkenness.
17. On August 4, 2013 at approximately 1:56 am, a police officer observed an exiting patron yelling obscenities at another exiting patron. The officer observed that the man was intoxicated. The man was ultimately cited for disorderly conduct when the behavior persisted.
18. On August 13, 2013 at approximately 8:40 pm, a man was cited for public intoxication after admitting that he had been drinking at [the Licensed Premises] that night.
19. On August 25, 2013 at approximately 2:00 am, a police officer was observing the vicinity of [the Licensed Premises], and it appeared that there was going to be a fight involving a large crowd in the neighboring area. A number of police officers and one or two of [the Licensed Premises'] security employees attempted to disperse the large crowd of twenty to thirty individuals, and it took approximately forty minutes to disperse the crowd.
20. On October 11, 2013 at approximately 1:58 am, a police officer was dispatched to [the Licensed Premises] due to a group of approximately fifteen people arguing and screaming at each other. Two women had been drinking and were cited for disorderly conduct. One of the officers did not know whether the two women had been served alcohol inside [the Licensed Premises], but an investigation revealed an argument between the two started inside [the Licensed Premises] and continued immediately outside.
21. Police Chief Daniel Wright testified that on October 18, 2013 at 4:16 pm, an individual was charged with disorderly conduct.
22. On December 19, 2013 at approximately 2:25 am, a female was charged with public drunkenness and disorderly conduct after
admitting to walking home from [the Licensed Premises] where she was consuming alcoholic beverages.(Trial Court Opinion (Tr. Ct. Op.) at 4-9, Findings of Fact (F.F.) ¶¶ 5-25 (citations to notes of testimony from 4/23/14 and 8/12/14 hearings omitted).) The trial court further found that although Licensee holds a restaurant liquor license, 99% of its sales come from alcohol. (Id., F.F. ¶ 35 at 11.)
23. On New Year's Eve 2014, a woman was arrested for public drunkenness shortly after exiting [the Licensed Premises] and getting into a fight with her son-in-law across the street from the establishment. The patron admitted to consuming too many drinks of whiskey at [the Licensed Premises], and she was not drinking prior to visiting [the Licensed Premises].
24. On January 12, 2014 at approximately 2:00 am, a police officer observed a large group exit [the Licensed Premises], and one intoxicated man was tased before he could be arrested for disorderly conduct and resisting arrest.
25. On April 18, 2014 at approximately 2:00 am, police officers responded to a physical altercation between two females outside [the Licensed Premises]. One was arrested for disorderly conduct and public drunkenness. The woman was not observed consuming alcohol inside [the Licensed Premises].
Discussion
Before this Court, Licensee argues, first, that the trial court abused its discretion when it considered activity that occurred on or about the Licensed Premises, but failed to analyze whether there was a relationship between the activity and the manner in which the Licensed Premises were operated. We disagree. Section 470(a.1) of the Liquor Code, added by the Act of Dec. 21, 1998, P.L. 1202, provides that PLCB may, in its discretion, refuse to renew a liquor license:
Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 1-101, 10-1001.
47 P.S. §4-470(a.1). A licensee may be held accountable for activity occurring off-premises where there is a causal connection between the licensed premises and the activity. Commonwealth v. Graver, 334 A.2d 667, 669-70 (Pa. 1975). Incidents occurring in an area under a licensee's control, during or shortly after the licensee's hours of operation, involving licensee's patrons who had been drinking inside licensee's establishment, are causally linked to the operation of the licensee's business. St. Nicholas Greek Catholic Russian Aid Society v. PA Liquor Control Board, 41 A.3d 953, 960 (Pa. Cmwlth. 2012). The trial court considered each of twenty-one incidents of disturbances, and clearly distinguished five of the twenty-one incidents wherein individuals who had been cited for either public drunkenness or disorderly conduct had not been stopped at, or immediately outside, the Licensed Premises, but each individual had admitted to a police officer that he or she had been drinking at the Licensed Premises earlier that evening. In six other incidents of public drunkenness considered, the trial court noted that the intoxicated individuals were in fact observed by the police as they left the Licensed Premises. The trial court noted that four other incidents involved fighting just outside the Licensed Premises and that in another incident, where knife injuries occurred, though it took place down the street from Licensed Premises, it was determined that security employees from the Licensed Premises intervened in the altercation, and one security employee admitted that he hid a knife he took from the scene in a flower pot. Here, the trial court provided a thorough analysis of the manner in which the Licensed Premises were operated and arrived at the inexorable conclusion that the incidents of police activity were a direct result of those operations.
...
(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 also contends that the trial court failed to conduct any analysis as to whether the incidents of police activity were known, or should have been known to Licensee. We find no merit in this argument. A licensee may be held strictly liable for violations of the Liquor Code. Pennsylvania Liquor Control Board v. TLK, Inc., 544 A.2d 931, 933 (Pa. 1988). However, when a licensee or patron has committed violations not concerning the Liquor Code, a license is revocable "only if the licensee knew or should have known of the misconduct and if he fails to prove that he took substantial affirmative measures to prevent the misconduct." Id. at 934.
In its opinion, the trial court described in detail each incident of police activity that occurred on and about the Licensed Premises, together with those where individuals admitted previously drinking at the Licensed Premises, and highlighted this Court's recent decision, in Paey Associates, Inc. v. Pennsylvania Liquor Control Board, 78 A.3d 1187, 1198 (Pa. Cmwlth. 2013), and our specific language therein reiterating the well-established law holding a licensee liable for non-Liquor Code violations where a pattern of illegal activity exists about which the licensee knew or should have known. (Tr. Ct. Op. at 13.) In sustaining the decision of the PLCB, the trial court noted its reliance, in part, on the PLCB's "thorough and comprehensive 58 page Opinion" (id.), in which the PLCB found that Licensee was aware that the police had been having problems with intoxicated individuals in front of the Licensed Premises for the past few years, and knew that a police detail had been established outside the premises. (See PLCB Opinion, F.F. ¶158, R.R. at 523.) The trial court heard the testimony of an employee of Licensee who indicated that after the March 2, 2012 incident in which a security employee became involved in a fight with a patron, she began to maintain a logbook to document the time at which the Licensed Premises were cleared of customers each night, and any incidents occurring during the operation of the Licensed Premises. The trial court found that the security log was not accurate, noting that there were five incidents involving the police that were not even reported in the log. (Tr. Ct. Op., F.F. ¶ 31 at 10). In addition, the trial court found that Licensee's employees usually do not call the police unless they believe it to be absolutely necessary, and try to handle everything internally because they believe the incidents will be marked against the PLCB license. (Id.)
Licensee contends that the trial court erred by failing to discuss its remedial measures to correct the incidents raised by the adjudicated citations for service of alcoholic beverages to minors and for failure to be a bona fide restaurant, and further erred in concluding that Licensee failed to take substantial remedial measures to correct its operational deficiencies. We disagree. The trial court discussed the measures taken by Licensee in response to the adjudicated citations, including its use of an identification scanner to check driver's licenses and its policy of requiring a patron to complete a declaration of age card if it is believed that the patron might not be the person matching the identification. The law is clear that the trial court may substitute its discretion for that of the PCLB and find that steps taken by a licensee in response to its adjudicated citations justify the renewal of its license. U.S.A. Deli, Inc. v. Pennsylvania Liquor Control Board, 909 A.2d 24, 28 (Pa. Cmwlth. 2006). Here, the trial court noted Licensee's four adjudicated citations, and the fact that even a single citation can be sufficient to warrant a denial of a renewal. Hyland Enterprises, Inc. v. Pennsylvania Liquor Control Board, 631 A.2d 789, 791 (Pa. Cmwlth. 1993). However, the trial court emphasized that its overwhelming concern was with Licensee's manner of operation, and the evidence of twenty-one incidents involving service to intoxicated patrons, fights, disorderly operations and a stabbing. The trial court concluded that Licensee failed to offer appropriate and timely corrective measures to address its operation problems. It determined that the evidence indicates that notwithstanding the existence of video cameras and security, there has been a lack of constructive change in Licensee's security policy, especially given the hesitancy of its employees to call the police because "it will look bad on their record" and maintenance of a security log book that is "not even accurate." (Tr. Ct. Op. at 14.)
The trial court stated:
It is also interesting to note that this is apparently a restaurant liquor license, yet 99% of sales come from alcohol sales. [Licensee] is of the belief that it sells just enough hot dogs to have a restaurant license. If there is a case that is an abuse of the restaurant concept of a liquor license, it clearly is this one. Based on the overwhelming evidence in the record, the establishment is nothing more than a bar that serves patrons substantial amounts of liquor resulting in a number of disturbances immediately outside or within the immediate environment.
Finally, Licensee argues that the trial court erred in failing to discuss the recommendation of the hearing examiner to renew with an Offer-in-Compromise agreement, and in failing to analyze whether the PLCB abused its discretion when it determined not to enter into an Offer-in-Compromise agreement with Licensee. We disagree. Under the Liquor Code, PLCB is authorized to decide whether or not to renew a liquor license renewal application and is not required to accept the hearing examiner's recommendation. Upon receipt of the hearing examiner's recommendation, PLCB:
The hearing examiner issued a lengthy recommended opinion, in which he described twenty-one incidents over a two-year period that, he noted, "demonstrate in their totality an abuse of the licensing privilege." (R.R. at 476.) He stated that while Licensee has long maintained numerous surveillance cameras and a security force of six or seven on weekend nights, "there was no evidence of a timely or substantial effort being made to curb the over-service of alcoholic beverages." (Id. at 477.) He concluded, however, that "it is hesitantly recommended that the renewal...for the license period...be approved subsequent to a standard Offer-in-Compromise Agreement" and further stated "[t]he terms of this conditional renewal should require the immediate cessation of operations and placement of this license in safekeeping until such time that it expires or is transferred to an unrelated third-party meeting the Board requirements." (Id. at 478-79.) --------
shall thereupon grant or refuse the license, renewal or transfer thereof or the renewal of an amusement permit. If [PLCB] shall refuse such license, renewal or transfer or the renewal of an amusement permit, following such hearing, notice in writing of such refusal shall be mailed to the applicant at the address given in his application. In all such cases, [PLCB] shall file of record at least a brief statement in the form of an opinion of the reasons for the ruling or order and furnish a copy thereof to the
applicant. Any applicant who has appeared at any hearing, as above provided, who is aggrieved by the refusal of [PLCB] to issue any such license or to renew or transfer any such license...may take an appeal limited to the question of such grievance, within twenty days from date of refusal or grant, to the court of common pleas of the county in which the premises or permit applied for is located...The court shall hear the application de novo on questions of fact, administrative discretion and such other matters as are involved, at such time as it shall fix, or which notice shall be given to [PLCB]. The court shall either sustain or over-rule the action of [PLCB] and either order or deny the issuance of a new license or the renewal or transfer of the license...Section 464 of the Liquor Code, 47 P.S. § 4-464. PLCB is further authorized under the Liquor Code to enter into an agreement with a licensee concerning additional restrictions on the license:
[PLCB] may enter into an agreement with the applicant concerning additional restrictions on the license in question. If [PLCB] and the applicant enter into such an agreement, such agreement shall be binding on the applicant.47 P.S. § 4-470(a). There is no express authority in the Liquor Code to permit the trial court to impose conditions upon the renewal of a liquor license or to compel PLCB to enter into an Offer-in-Compromise Agreement with Licensee. 47 P.S. §4-470; Becker's Café, Inc. v. Pennsylvania Liquor Control Board, 67 A.3d 885 (Pa. Cmwlth. 2013).
We see no abuse of the discretion of the trial court in upholding PLCB's denial of renewal here. For all the foregoing reasons, we affirm.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 7th day of July, 2015, the order of the Court of Common Pleas of Lebanon County in the above matter is AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge
(Tr. Ct. Op. at 14-15.)