Opinion
April 28, 1988.
Pennsylvania Liquor Control Board — Sales to minors — Scope of appellate review — Abuse of discretion — Error of law — Substantial evidence — Liquor Code, Act of April 12, 1951, P.L. 90 — Declaration of age card.
1. In a liquor license suspension matter where the lower court heard the appeal de novo, review by the Commonwealth Court of Pennsylvania is to determine whether the court committed an abuse of discretion or error of law and whether the adjudication and order of the Pennsylvania Liquor Control Board were unsupported by substantial evidence. [492]
2. The only defense available to a licensee for a violation of the Liquor Code, Act of April 12, 1951, P.L. 90, for unlawful sales to minors is to have secured an executed age certification card from the purchaser which was retained by the licensee. [492]
Submitted on briefs March 21, 1988, to Judges BARRY and McGINLEY, and Senior Judge KALISH, sitting as a panel of three.
Appeal, No. 1579 C.D. 1987, from the Order of the Court of Common Pleas of Allegheny County, in the case of Re: Stephen G. Churma Duane Churma t/a Mosside Beverages Company, No. S.A. 455 of 1987.
Licensee's liquor license suspended by the Pennsylvania Liquor Control Board. Licensee appealed to the Court of Common Pleas of Allegheny County. Appeal sustained. DOYLE, J. Board appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
Faith S. Diehl, Assistant Counsel, for appellant.
Brenda B. Betts, Papernick Gefsky, P.C., for appellees.
The Pennsylvania Liquor Control Board (Board) appeals from an order of the Court of Common Pleas of Allegheny County which vacated the penalty imposed by the Board on Stephen G. Churma and Duane Churma, t/a Mosside Beverages Company (licensee). The licensee was cited for selling beer to a minor in violation of Section 493(1) of the Liquor Code (Code), Act of April 12, 1951, P.L. 90, as amended, 47 P. S. § 4-493(1).
Two Board Enforcement Officers observed Robert J. Palumbi enter the licensed premises empty-handed and leave carrying a case of beer. One of the officers approached Mr. Palumbi who revealed that he was fifteen years of age. Upon questioning of an employee of the licensee the officer learned that Mr. Palumbi had produced a Pennsylvania driver's license indicating that he was of legal age. The officer found no such driver's license following a search of Mr. Palumbi.
The licensee was cited and a Board hearing was held following which an order was entered imposing a suspension on the licensee for ten days. The licensee appealed the Board's order to the trial court which held a de novo hearing. The trial court reversed the Board's order and the Board has appealed to this Court.
Our scope of review, where the trial court has heard the appeal de novo, is limited to determining whether the trial court has abused its discretion or committed an error of law and whether the adjudication and order of the Board are supported by substantial evidence. Pennsylvania Liquor Control Board v. S B Restaurants, Inc., 112 Pa. Commw. 382, 535 A.2d 709 (1988). We find that the trial court has committed an error of law and accordingly, reverse its order.
The trial court heard the testimony, inter alia, of the licensee's employee who sold the beer to Mr. Palumbi. He testified that Mr. Palumbi produced a driver's license indicating that he was of legal age. Mr. Palumbi, however, testified that he had purchased the beer without being asked his age and without producing any proof of his age. The trial court found the employee's testimony to be more credible than that of Mr. Palumbi and concluded that a driver's license indicating that Mr. Palumbi was of legal age had been produced. The trial court sustained the licensee's appeal on this basis.
We have repeatedly held that the only defense to a violation of Section 493 of the Code is a demonstration of compliance with all of the statutory requirements of Section 495 of the Code, 47 P. S. § 4-495. GTRT, Inc. Liquor License Case, 78 Pa. Commw. 584, 467 A.2d 1233 (1983), Pennsylvania Liquor Control Board v. Schiaffo, 72 Pa. Commw. 305, 456 A.2d 1120 (1983), LaVerne's Lounge Liquor License Case, 31 Pa. Commw. 638, 377 A.2d 1040 (1977).
Section 495 provides that in cases where a purchaser's age is questioned that the "licensee see the purchaser's LCB identification card or a driver's license with a photograph, that the purchaser sign a statement representing that he or she is of legal age and that the licensee retain the signed statement so that it may be used in the licensee's defense." Schiaffo, 72 Pa. Commw. at 307, 456 A.2d at 1121. Accordingly, "whenever a licensee or a state liquor store employee requires a purchaser to present an acceptable identification card, the licensee or state liquor store employee can only later establish a successful defense against a sales-to-minor allegation if that purchaser who had to show proper identification also executed a declaration of age card." 146, Inc. v. Pennsylvania Liquor Control Board, 107 Pa. Commw. 79, 83, 527 A.2d 1083, 1085 (1987) (emphasis added).
There is no evidence on the record that the required statement was signed or retained by the licensee. Accordingly, it has not made out a defense to the violation of selling liquor to a minor as set forth in Section 495. Therefore, we must reverse the trial court inasmuch as it committed an error of law in sustaining the licensee's appeal.
ORDER
NOW, April 28, 1988, the order of the Court of Common Pleas of Allegheny County at No. 455 of 1987, dated June 17, 1987, is hereby reversed and the penalty imposed by the Pennsylvania Liquor Control Board is reinstated.