Opinion
January 30, 1986.
Liquor — Revocation of liquor license — Sales to minors — Scope of appellate review — Substantial evidence — Abuse of discretion — Error of law — Liquor Code, Act of April 12, 1951, P.L. 90 — Identification — Good faith — New findings — Modification of penalty.
1. Review by the Commonwealth Court of Pennsylvania of an order of a lower court in a liquor license revocation case where the court conducted a hearing de novo is to determine whether the order of the Pennsylvania Liquor Control Board was supported by substantial evidence and whether the court abused its discretion or committed an error of law. [475]
2. Under provisions of the Liquor Code, Act of April 12, 1951, P.L. 90, the only defense available to a licensee charged with unlawfully permitting sales to minors is reliance upon statements contained in the purchaser's LCB card and the signed record card on file, and the good faith of the licensee is insufficient to avoid the imposition of penalties for permitting such sales when the statutory requirements were not followed. [475-6]
3. A court may modify penalties imposed upon a licensee by the Pennsylvania Liquor Control Board only when findings are made by the court which are substantially and materially different from those of the Board, and, where additional facts found by the court can be interpreted so as not to contradict findings of the Board or are not relevant to a determination of the existence of a violation by the licensee, the order of the Board cannot be modified. [476]
Submitted on briefs December 10, 1985, to Judges ROGERS and MacPHAIL, and Senior Judge BARBIERI, sitting as a panel of three.
Appeal, No. 2490 C.D. 1984, from the Order of the Court of Common Pleas of Bucks County in case of In the matter of Revocation of Restaurant Liquor License No. R-13634, Amusement Permit No. AP-13634 and Sunday Sales Permit No. SS-13634 issued to William Hewitt Edgar Hewitt Corporation, Cherry's I, No. 20 MM 1984.
Restaurant liquor license revoked by Pennsylvania Liquor Control Board. Licensee appealed to the Court of Common Pleas of Bucks County. Revocation modified to suspension. KELSTON, J. Board appealed to the Commonwealth Court of Pennsylvania. Held: Reversed. Board order reinstated.
Felix Thau, Deputy Chief Counsel, with him, Gary F. DiVito, Chief Counsel, for appellant.
Barry H. Denker, for appellee.
The Pennsylvania Liquor Control Board (Board) appeals here from an order of the Court of Common Pleas of Bucks County which modified a penalty imposed by the Board on William Hewitt Edgar W. Hewitt Corporation t/a Cherry's I (Licensee) for violating the sales-to-minors prohibition of the Liquor Code (Code). We reverse.
Section 493(1) of the Act of April 12, 1951, as amended, 47 P. S. § 4-493(1).
The Board found that "[t]he licensee, by its servants, agents or employes sold, furnished and/or gave or permitted such sale, furnishing and/or giving of liquor and/or malt or brewed beverages to minors, on March 13, 14, 1983. . . ." Based on this finding and on a previous citation issued against the licensee, the Board revoked Licensee's license and declared its bond to be forfeited.
In the previous citation, the Board found that Licensee had permitted minors to frequent its premises, furnished liquor to minors and permitted music to be heard outside its premises.
Licensee appealed to the trial court which conducted a hearing de novo. Following the hearing, the Court made the following pertinent findings of fact:
1. On March 13, 1984, before midnight, the appellant permitted the giving of liquor to Sandra Constable, a minor, age 18.
2. On March 13 and 14, 1984 the appellant permitted Lisa Wagner, a minor age 20 to be on its premises during working hours. There is insufficient credible evidence as to whether or not the beverages she consumed before midnight on March 13, were alcoholic. She did consume alcohol between midnight and 2:00 a.m. on March 14, 1984.
. . . .
4. Sandra Constable . . . had with her a "Pennsylvania Identification card" with her picture on it. The birthdate on the card showed a purported age of 23 years. It was not an official identification card approved under 47 P. S. § 4-495 (a) or (a.1). Instead, it was one which she had secured from an authorized agency in the mail. There is insufficient evidence as to whether or not the card was asked for or presented at the time of her entrance.
. . . .
6. From the court's observation of Ms. Constable she is a rather mature young woman who looks older than her years. . . .
. . . .
8. On the evening of March 13, 1983, appellant's procedures required that two bouncers be stationed at the entrance of the building to verify age identifications of the persons seeking entrance. Appellant instructed its employees not to admit persons under 21 and to require identification where age was in question. However, appellant accepted as appropriate identification, college ID cards, Pennsylvania Liquor Control Board Official Cards, Pennsylvania photo driver's licenses and out-of-state driver's licenses.
In deciding to modify the Board's order, the Court noted that
there is no evidence that the Board considered the mature appearance of Sandra Constable; that Ms. Constable appeared at the door with a false ID card; that there was no credible evidence that Lisa Wagner had any alcoholic beverages on March 13 or that Sandra Constable had any such beverages on March 14; and that appellant's procedures for serving minors, although ineffective were apparently established and conducted on these two dates in a good faith attempt to comply with the Code.
The Court decided that, under the circumstances, revocation would be too severe a penalty and, instead, ordered Licensee's liquor license to be suspended for a period of six months.
Our scope of review is limited to determining whether the Board's order is supported by substantial evidence and whether the lower court abused its discretion or committed an error of law. Pennsylvania Liquor Control Board v. Seder, 88 Pa. Commw. 351, 489 A.2d 278 (1985). A trial court cannot modify a Board's order unless its findings are materially and significantly different from those of the Board. Pennsylvania Liquor Control Board v. Dobrinoff, 80 Pa. Commw. 453, 471 A.2d 941 (1984).
Licensee erroneously contends that Pennsylvania Liquor Control Board v. M.S.G., Inc., 7 Pa. Commw. 540, 297 A.2d 556 (1972) stands for the proposition that additional testimony alone permits a trial court to modify a penalty imposed by the Board. In M.S.G. we acknowledged that a trial court may not change or modify a penalty imposed by the Board without making different findings on material issues. Id. at 543-544, 297 A.2d at 558.
Here, the trial court justified its order by stating that it did find facts different from those found by the Board, specifically, that the Board failed to consider the mature appearance of one of the minors, that that minor tendered a false I.D. card, that there was no evidence that both minors were served alcoholic beverages on both dates (March 13 and March 14) and that the licensee had established procedures to exclude minors which indicated his good faith attempt to comply with the Code.
In GTRT, Inc., Liquor License Case, 78 Pa. Commw. 584, 587, 467 A.2d 1233, 1234 (1983), we said
The Liquor Code provides for only one reliance defense against prosecution for sales to minors; that provision, section 495, permits a licensee to rely on statements contained in a purchaser's LCB card and the signed record card to be kept on file by the licensee. (Footnote reference omitted.)
There was no compliance here with Section 495 of the Code. The licensee's good faith is insufficient to satisfy the Code's requirements. Neither are extenuating circumstances a factor when dealing with provisions of the Code. Seder. In summary, we must conclude that the additional facts found by the trial court are not relevant to a determination of whether a violation occurred. Such additional facts, therefore, do not justify the trial court's modification of the Board's order.
47 P. S. § 4-495.
Licensee contends nevertheless that the trial court's order should be affirmed, because its finding that only one minor was served on March 13 and another on March 14 directly contradicts the Board's determination that Licensee served "minors, on March 13, 14, 1983." We disagree. The Board's determination can be construed as meaning either that one minor was served on March 13 and another on March 14, or that two or more minors were served on each day in question. Because the Board's language can be interpreted either way, the trial court's findings cannot be said to involve any real contradiction.
Accordingly, we reverse the trial court and reinstate the order of the Board.
ORDER
The order of the Court of Common Pleas of Bucks County, dated August 10, 1984, is reversed. The June 1, 1984 order of the Pennsylvania Liquor Control Board is reinstated.