Opinion
August 30, 1983.
Liquor — Suspension of liquor license — Scope of appellate review — Modification of penalty.
1. In a liquor license suspension case review by the Commonwealth Court of Pennsylvania after a de novo hearing below is to determine whether the order is supported by sufficient evidence and whether the court below committed an error of law or abuse of discretion. [627]
2. A court of common pleas cannot reverse a license suspension order of the Pennsylvania Liquor Control Board when it recognizes that a violation occurred and made no findings differing materially from those of the Board. [628]
Submitted on briefs April 7, 1983, to President Judge CRUMLISH, JR. and Judges WILLIAMS, JR. and BARBIERI, sitting as a panel of three.
Appeal, No. 3060 C.D. 1981, from the Order of the Court of Common Pleas of Philadelphia County in case of Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board v. Eclectic Enterprises, Inc., No. 8107-2476.
Liquor license suspended by Pennsylvania Liquor Control Board. Licensee appealed to the Court of Common Pleas of Philadelphia County. Suspension order reversed. KING, J. Board appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
Gary F. DiVito, Acting Chief Counsel, with him J. Leonard Langan, Chief Counsel, for appellant.
John M. Willmann, for appellee.
The Pennsylvania Liquor Control Board appeals a Philadelphia County Common Pleas Court order reversing a liquor license suspension. We reverse.
The Philadelphia Department of Licenses and Inspections' citation of Eclectic Enterprises for violating the City's Fire Code resulted in a one-week revocation of its health permit. The Board then ordered Eclectic to show cause why its liquor license should not be revoked. A waiver of hearing was executed in which Eclectic admitted the revocation. The Board suspended the license for five days, this being Eclectic's third citation in four years. Following a de novo hearing, the common pleas reversed.
No brief was filed on behalf of Eclectic Enterprises, Inc.
The Board has the authority to suspend a liquor license "upon . . . sufficient cause shown. . . ." Section 471 of the Liquor Code, Act of June 3, 1971, P.L. 143, as amended, 47 P. S. § 4-471.
Our scope of review is limited to a determination of whether the order was supported by sufficient evidence and whether the court below committed an error of law or abused its discretion. Matter of Revocation of Hotel Liquor License, 73 Pa. Commw. 198, 457 A.2d 1035 (1983).
Before the trial Court may modify or set aside Board actions, it must make findings of fact on the material issues different from those made by the Board. Pennsylvania Liquor Control Board v. Brock's Cafe, Inc., 39 Pa. Commw. 597, 598, 396 A.2d 74, 75 (1974). Here, the trial court found that "Eclectic repaired the violation the day after notification of its nonconformity but remained closed for approximately four days until a reinspection by L I could be arranged." (Emphasis added.) The trial court clearly recognized that a violation did occur. That Eclectic expeditiously corrected the violation is of no consequence and does not constitute a materially-different finding. Thus, the trial court committed an error of law by setting aside the Board order without making findings materially different from those of the Board.
The trial court's reasoning that the violation was not "a serious one" and thus should be excused is unsupportable. It is not for the trial court to ascertain whether a violation is severe enough to warrant a penalty.
Since the Board found that this violation was Eclectic's third violation in a four-year period, at least a license suspension was required.
Section 471 of the Liquor Code specifically provides that:
If the violation in question is a third or subsequent violation of this act or . . . [of] "The Penal Code," occurring within a period of four years the board shall impose a suspension or revocation. (Emphasis added.)
Reversed.
ORDER
The Philadelphia County Court of Common Pleas order, No. 8107-2476, dated July 2, 1982, is hereby reversed.