Opinion
December 11, 1962.
March 19, 1963.
Liquor Law — Licenses — Revocation — Evidence — Burden of proof — Weight and credibility for hearing judge — Scope of appellate review — Penalty — Basic findings affirmed by court below with slight alteration.
1. An appeal from an order of the court below sustaining an order of the Liquor Control Board revoking a liquor license is in the nature of a broad certiorari, and it is the function of the appellate court to determine whether there is evidence to support the order from which the appeal has been taken, and whether the court below committed an error of law or abused its discretion.
2. In a civil proceeding to revoke a license, it is sufficient if the offense be established by a preponderance of the evidence.
3. On appeal by the licensee from an order of the board revoking his license, the weight and credibility of the testimony are for the hearing judge.
4. In this case, in which it appeared that the board found that the licensee (a) on a specified date permitted lewd, immoral and improper entertainment, (b) on specified dates permitted solicitation of the purchase of alcoholic beverages, and (c) on specified dates failed to maintain sufficient illumination, and revoked the license of the licensee; and that on appeal the court below found that the evidence supported the board's findings, excepting only a violation which occurred on one of the dates specified; it was Held that the court below had made no change in the basic findings of the board, that the alteration relative to the alleged violation on the one date did not require a reduction of the penalty, and that the court below properly sustained the order of the board.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 413, Oct. T., 1962, from order of Court of Quarter Sessions of Philadelphia County, May T., 1962, No. 1298, in re revocation of restaurant liquor license of Moravian Bar, Incorporated. Order affirmed.
Appeal by licensee from decision of Pennsylvania Liquor Control Board revoking restaurant liquor license.
Order entered dismissing appeal and affirming decision of board, opinion by SLOANE, P.J. Licensee appealed.
Ronald N. Rutenberg, with him Harry A. Rutenberg, for appellant. Russell C. Wismer, Special Assistant Attorney General, with him George G. Lindsay, Assistant Attorney General, and David Stahl, Attorney General, for Pennsylvania Liquor Control Board, appellee.
Argued December 11, 1962.
On January 8, 1962, the Pennsylvania Liquor Control Board issued a citation to the Moravian Bar, Incorporated, 1507 Moravian Street in the City of Philadelphia, to show cause why its license should not be revoked and the license bond forfeited by reason of certain alleged violations. After hearing, the Board made an order revoking the license effective as of May 16, 1962. An appeal was taken to the Court of Quarter Sessions of Philadelphia County, which tribunal, after hearing de novo, sustained the order of the Board. This appeal to the Superior Court followed. The sole issue before us is the sufficiency of the evidence.
"Mr. Rutenberg: If Your Honor please, I do not represent the Moravian Bar, but I do represent possibly the most substantial creditors of the Moravian Bar . . . I think the Moravian Bar has lost all interest in the endeavor, because the place has been closed for some period of time". No question has been raised as to the right of creditors to prosecute the appeal, and we do not pass upon it.
The violations alleged in the citation were as follows: "1. You, by your servants, agents or employees permitted lewd, immoral and improper entertainment on the licensed premises on November 10, 1961. 2. You, by your servants, agents or employees permitted on the licensed premises solicitation of alcoholic beverages on December 29, 1961; January 3, 1962. 3. You, by your servants, agents or employees failed to maintain sufficient illumination to insure clear visibility within the premises covered by the license during hours when the sale of alcoholic beverages was permitted on December 28, 29, 1961; January 3, 1962". The testimony before the examiner was given by two of the Board's enforcement officers and an officer of the Philadelphia City Police. The Board found that this testimony sustained the charges in the citation. By stipulation of counsel, the case was submitted in the court below on the notes of testimony taken before the Board's examiner "as though the matter had been heard de novo". The hearing judge found that the evidence supported the Board's findings, making the following pertinent statement: "The only alteration of the Board's findings of fact would be for the violation that occurred on January 3, 1962. But considering that the Board has suspended the license of the licensee twice before, and that the findings as made by the Board were changed only slightly, we felt that the action of the Board in revoking the license was warranted".
The present appeal is in the nature of a broad certiorari. It is our function to determine whether there is evidence to support the order from which the appeal has been taken, and whether the court below committed an error of law or abused its discretion: Heights Fire Company Liquor License Case, 181 Pa. Super. 56, 121 A.2d 902. In a civil proceeding to revoke a license, it is sufficient if the offense be established by a preponderance of the evidence: Summit Hill Rod and Gun Club Liquor License Case, 184 Pa. Super. 584, 135 A.2d 781. We do not propose to set forth the testimony in detail. Its weight and credibility were for the hearing judge: Barbato Liquor License Case, 188 Pa. Super. 548, 149 A.2d 539. Our examination of the record leads us to agree with President Judge SLOANE that it supports the findings (a) of lewd, immoral and improper entertainment; (b) of solicitation for the purpose of the purchase of alcoholic beverages; and (c) of failure to maintain sufficient illumination.
The court below made no change in the basic findings of the Board. Cf. East End Social Club Liquor License Case, 193 Pa. Super. 583, 165 A.2d 253. The alteration relative to the alleged violation on January 3, 1962, did not require a reduction of the penalty: Fumea Liquor License Case, 186 Pa. Super. 609, 142 A.2d 326. We perceive no error of law or abuse of discretion.
Order affirmed.