Opinion
January 28, 1983.
Liquor licensing — Scope of appellate review — Abuse of discretion — Penalty.
1. The scope of review of the Commonwealth Court of Pennsylvania in a liquor licensing case is limited to a determination of whether the record supports the action of the Pennsylvania Liquor Control Board and whether the trial court abused its discretion or committed an error of law. [453]
2. It is an abuse of discretion for the trial court in a liquor licensing case to conclude that, because a proved violation is de minimis, it does not justify the penalty imposed by the Pennsylvania Liquor Control Board. [453]
3. A common pleas court may not change a penalty imposed by the Pennsylvania Liquor Control Board except when it has made significant and materially different findings from the Board. [453]
Submitted on briefs October 6, 1982, to President Judge CRUMLISH, JR. and Judges MacPHAIL and DOYLE, sitting as a panel of three.
Appeal, No. 2968 C.D. 1981, from the Order of the Court of Common Pleas of Cambria County in the case of In the Matter of Revocation of Club Liquor License No. C-411, issued to Johnstown Turn-Verein, 632 Railroad Street, Johnstown, Pa. 15901, No. C-Misc. 1981-52.
Club liquor license suspended by the Pennsylvania Liquor Control Board. Licensee appealed to the Court of Common Pleas of Cambria County. Appeal sustained. CREANY, J. Board appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
J. Leonard Langan, Chief Counsel, for appellant.
No appearance for appellee.
The Pennsylvania Liquor Control Board (Board) appeals a Cambria County Common Pleas Court order which reversed Johnstown Turn-Verein's (licensee) liquor license suspension. We reverse.
The licensee, a club, was cited with a violation of the Liquor Code which prohibits the sale of alcoholic beverages to non-members. After two refusals, an agent was served two drinks on his third visit. Based on this violation, the Board ordered a seven-day license suspension.
Section 406(a) of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P. S. § 4-406(a) which provides in part:
No club licensee nor its officers, servants, agents or employes, other than one holding a catering license, shall sell any liquor or malt or brewed beverages to any person except a member of the club.
In the trial court, by agreement, no additional testimony was heard. The licensee argued that the one violation was de minimis and could not sustain the penalty imposed. The court agreed, but we must reverse.
Before the trial court, the licensee also argued that the actions of the agent constituted entrapment. However, the trial court rejected this argument and, on appeal to this Court, the licensee has chosen to stand on the lower court's opinion, thus abandoning this portion of its argument.
Our scope of review is limited to a determination of whether this record supports the Board's action and whether the trial court abused its discretion or committed an error of law. Pennsylvania Liquor Control Board Appeal, 49 Pa. Commw. 255, 261, 411 A.2d 1258, 1259 (1980). The trial court did abuse its discretion by concluding that, because the proved violation was de minimis, it did not justify this penalty. In Road Drivers' Association of Pennsylvania Liquor License Case, 30 Pa. Commw. 323, 326, 373 A.2d 1161, 1163 (1977), we sustained a license revocation, holding that the sale of alcoholic beverages to non-club members was indeed a serious offense.
Moreover, it is well settled that a common pleas court may not change a penalty except when it has made significant and materially different findings from the Board. In Re: The Boardwalk, Inc., 70 Pa. Commw. 416, ___ A.2d ___ (1982). Here, the trial court made no findings materially different from the Board. A finding that the severity of the penalty was in issue is error until our Legislature or our Supreme Court orders otherwise. We must hold that this constituted an abuse of discretion.
Reversed.
ORDER
The order of the Cambria County Common Pleas Court, No. C-Misc. 1981-52, dated September 30, 1981, is reversed and the suspension reinstated.