Opinion
March 14, 1966.
March 24, 1966.
Liquor Law — Licenses — Suspension — Appeals — Modification of penalty by court below — Failure to make different findings of fact which are material — Penalty considered too severe — Items corrected by the licensee.
1. On appeal by a restaurant liquor licensee from an order of the Liquor Control Board suspending the license, the court below may not change or modify the penalty imposed by the board unless it finds a different set of facts.
2. On appeal by a liquor licensee from an order of the board suspending the license, in order to warrant a change or modification by the court below of the penalty imposed by the board based upon different findings of facts, the different findings must concern issues which are material.
3. On appeal by a liquor licensee from an order of the board suspending the license, the court below may not reduce the penalty imposed by the board because it is considered too severe.
4. On appeal by a liquor licensee from an order of the board suspending the license, the court below may not capriciously disregard competent evidence of violations by the licensee.
5. In this case, in which it appeared that the hearing judge did not make findings of fact different from those made by the board, nor did he conclude that the testimony failed to support the board's findings, and that his decision, reducing the penalty imposed by the board, was based on the ground "that some of the findings of fact presented by the Board . . . are items which have been corrected by the licensee"; it was Held that the order of the court below should be reversed and the order of the board reinstated.
Appeals — Superior Court — Reversal of court below — Filing of opinion.
6. An order of the Superior Court reversing the court below requires the filing of an opinion.
Before ERVIN, P.J., WRIGHT, WATKINS, MONTGOMERY, JACOBS, HOFFMAN, and SPAULDING, JJ.
Appeal, No. 42, April T., 1966, from order of County Court of Allegheny County, No. C-1962 of 1965, in re appeal of Llewellyn Maple et ux., trading as Bunny's Tavern, from revocation of restaurant liquor license. Order reversed.
Appeal by licensee from decision of Pennsylvania Liquor Control Board suspending restaurant liquor license.
Order entered by court below sustaining appeal and reducing period of suspension, opinion by WALKER, J. Commonwealth appealed.
Thomas J. Shannon, Assistant Attorney General, with him Floyd R. Warren, Special Assistant Attorney General, and Walter E. Alessandroni, Attorney General, for Pennsylvania Liquor Control Board, appellant.
Glenn C. Jones, for appellee.
Argued March 14, 1966.
On June 21, 1965, after hearing, the Pennsylvania Liquor Control Board entered an order suspending for a period of fifty days the restaurant liquor license issued to Llewellyn Maple and Alice L. Maple, his wife, trading as Bunny's Tavern, 1001 Fifth Street, West Elizabeth, Pennsylvania. This order was based upon the following findings of fact: "1. The licensees, their servants, agents or employes maintained gambling devices and/or paraphernalia and permitted gambling on the licensed premises, on September 10, 11, 16, 17, 25, 26, 30 and October 9, 1964. 2. The licensees, their servants, agents or employees sold, furnished and/or gave alcoholic beverages to visibly intoxicated persons, on September 14, 16, 17, 18, 25 and 26, 1964. 3. The licensed establishment operated by the licensees was conducted in a noisy and/or disorderly manner, on September 10, 11, 14, 15, 16, 17, 18, 25, 26 and 30, 1964. 4. The licensed establishment operated by the licensees was not a bona fide restaurant habitually and principally used for the purpose of providing food for the public, in that there were insufficient chairs and tables to accommodate at least 30 persons at one time". The licensees appealed to the County Court of Allegheny County, which reduced the period of suspension to fifteen days. The Board has appealed to this court.
The hearing judge did not make findings of fact different from those made by the Board. Nor did the hearing judge conclude that the testimony failed to support the Board's findings. His decision was based on the ground "that some of the findings of fact presented by the Board and quoted herein are items which have been corrected by the licensee". It is readily apparent that the order of the court below must be reversed. Such action on our part requires the filing of an opinion.
We comply with the direction of the legislature to the Supreme Court. Act of May 11, 1871, P.L. 266, 17 Pa.C.S.A. § 91.
The law is well settled that the court below may not change or modify a penalty imposed by the Board unless it finds a different set of facts: Heights Fire Company Liquor License Case, 181 Pa. Super. 56, 121 A.2d 902. These different findings must concern issues which are material: Italian Citizens National Association of America Liquor License Case, 178 Pa. Super. 213, 115 A.2d 881. The court below may not capriciously disregard competent evidence of violations by the licensee: Lakewood Company Liquor License Case, 198 Pa. Super. 169, 181 A.2d 918. Nor may the court below reduce the penalty imposed by the Board because it is considered too severe: Homestead S. and B. Society Appeal, 169 Pa. Super. 593, 84 A.2d 265.
Our review of the testimony clearly indicates that the licensees were guilty of the charges preferred by the Board. The only decision cited in appellees' brief is Barbato Liquor License Case, 188 Pa. Super. 548, 149 A.2d 539, in which we affirmed an order of the Court of Quarter Sessions of Philadelphia County changing a license revocation to a suspension. However, there was conflicting testimony in that case, and the court below made findings of fact different from those of the Board. In the instant case the action of the court below was entirely unwarranted and cannot be sustained. Cf. Union City Lodge No. 882, Loyal Order of Moose Liquor License Case, 204 Pa. Super. 472, 205 A.2d 438.
The order of the court below is reversed, and the order of the Board is reinstated.