Opinion
Argued May 5, 1978
June 23, 1978.
Liquor — Revocation of hotel liquor license — Scope of appellate review — Error of law — Abuse of discretion — Liquor Code, Act 1951, April 12, P.L. 90 — Dining room — Unsanitary conditions — Unnecessary determination — Severity of penalty.
1. In a liquor license revocation case review by the Commonwealth Court of Pennsylvania is to determine whether the court below committed an error of law or abused its discretion. [290]
2. A hotel liquor license is properly revoked under the Liquor Code, Act 1951, April 12, P.L. 90, upon a showing that the requirement that a dining room seating thirty persons be located on the premises had not been met and that the establishment was maintained in an extremely unsanitary condition. [290-1]
3. When findings of two violations of the Liquor Code, Act 1951, April 12, P.L. 90, justifying a revocation of a hotel liquor license are supported by substantial evidence, a reviewing court need not decide whether findings are proper which relate to two other claimed violations. [291-2]
4. Revocation of a liquor license is not an inappropriate penalty to be imposed for two serious license violations, particularly when the licensee had been cited five times for violations in the preceding two years. [292]
Argued May 5, 1978, before Judges MENCER, ROGERS and DiSALLE, sitting as a panel of three.
Appeal, No. 1487 C.D. 1977, from the Order of the Court of Common Pleas of Jefferson County in case of In the Matter of Revocation of Hotel Liquor License No. H-322, Amusement Permit No. AP-17442 and Sunday Sales Permit No. SS-3743, issued to Raymond Earl Mooney, New National Hotel, 118 South Gilpin Street, Punxsutawney, Pa. 15767, No. 226-1976 M.D.
Revocation of hotel liquor license and bond forfeiture ordered by the Pennsylvania Liquor Control Board. Licensee appealed to the Court of Common Pleas of Jefferson County. Revocation order affirmed. Bond forfeiture order vacated. SNYDER, P.J. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
David L. Young, with him R. Edward Ferraro, for appellant.
James P. Deeley, with him J. Leonard Langan, Assistant Attorney General, Kenneth W. Makowski, Acting Chief Counsel, and Robert P. Kane, Attorney General, for appellee.
This is an appeal from an order of the Court of Common Pleas of Jefferson County, dated June 27, 1977, sustaining the order of the Pennsylvania Liquor Control Board (Board) which revoked the Hotel Liquor License issued to Raymond E. Mooney (Mooney). The lower court also vacated that part of the Board's order which forfeited the bond which Mooney had filed with his license applications in 1974 and 1975. This part of the court's order is not in dispute.
The four findings of fact made by the lower court which we have been asked to review are: (1) that the licensed establishment was maintained in an unsanitary condition; (2) that other persons were permitted to operate other businesses on the licensed premises; (3) that the licensed establishment was not a bona fide hotel in that there was no public dining room or rooms accommodating at least thirty persons at one time on the licensed premises; and, (4) that the licensed establishment was not a bona fide hotel in that there was no kitchen apart from the public dining room or rooms.
The parties stipulated that the court below consider the matter de novo based upon the transcript of the record made before the Board.
Our scope of review in liquor license revocation cases is limited to a determination of whether the court below committed an error of law or abused its discretion. Pennsylvania Liquor Control Board v. Latrobe Armed Services Association, 16 Pa. Commw. 199, 329 A.2d 549 (1974).
Section 102 of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P. S. § 1-102 defines hotel as:
'Hotel' shall mean any reputable place operated by responsible persons of good reputation where the public may, for a consideration, obtain sleeping accommodations and meals and which, in a city, has at least ten, and in any other place at least six, permanent bedrooms for the use of guests, a public dining room or rooms operated by the same management accommodating at least thirty persons at one time, and a kitchen, apart from the public dining room or rooms, in which food is regularly prepared for the public.
The Board Officer who inspected the licensed premises on March 2, 1976, testified that there were only thirteen chairs at the tables in the dining area for use by patrons. Clearly, this does not comply with the requirements that a dining room or rooms accommodate at least thirty persons. An employe of the Department of Environmental Resources accompanied the Board officer in the inspection of Mooney's premises. He testified at length concerning the unsanitary conditions which existed on the premises. His testimony was both competent and credible and was sufficient to support the conclusion that the licensed establishment was maintained in an extremely unsanitary condition. We conclude, therefore, that the lower court did not abuse its discretion in finding that these two violations did occur.
Mooney argues that the court below committed an error of law when it found that other businesses were being operated on the licensed premises and that there was no kitchen separate from the dining area. He contends that Section 471 of the Liquor Code, 47 P. S. § 4-471, precludes the issuance of a citation when a Board Officer has knowledge of the continuing existence of conditions which violate the Liquor Code for over a year's duration, but fails within that period to cite the offending licensee for those violations. This was the situation in the instant case. In light of our determination that Mooney committed two violations of the Liquor Code in maintaining inadequate dining facilities and permitting unsanitary conditions to prevail, we need not decide this question. See generally, Silva Liquor License Case, 219 Pa. Super. 31, 275 A.2d 871 (1971); Lakewood Company Liquor License Case, 198 Pa. Super. 169, 181 A.2d 918 (1962); Panichi's License, 41 Pa. D. C. 256 (1941).
Finally, Mooney claims that revocation of his liquor license is too harsh a penalty under the facts of this case. We do not agree. Mooney previously had been cited five times for violations during 1975 and 1976. This fact, when coupled with the instant violations, makes revocation of his hotel liquor license an appropriate penalty.
We affirm.
ORDER
AND NOW, this 23rd day of June, 1978, the order of the Court of Common Pleas of Jefferson County, dated June 27, 1977, is hereby affirmed.