Opinion
No. 948 C.D. 2012
06-25-2013
Taqueria Chavinda, Inc., Appellant v. Pennsylvania Liquor Control Board
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Taqueria Chavinda, Inc. (Licensee) appeals from the order of the Court of Common Pleas of Montgomery County (trial court) that denied Licensee's appeal from the Pennsylvania Liquor Control Board's (LCB) refusal to renew Licensee's liquor license.
Licensee operates La Michoacana, a restaurant/bar, in Norristown, Pennsylvania. Licensee purchased its liquor license in May of 2000. On May 4, 2010, Licensee filed an untimely application for renewal of its liquor license for the period beginning May 1, 2010, and ending April 30, 2012.
By letter dated May 6, 2010, the LCB's Bureau of Licensing (Bureau) notified Licensee that it objected to the renewal of its application for the following reasons:
1. It is alleged that you abused your licensing privilege, and pursuant to Section 470 of the Liquor Code (47 P.S. Section 4-470), you may no longer be eligible to hold a license based upon violations of the Liquor Code relative to Citation Numbers 09-2635 and 07-2789.Letter from Jane Melchior, Director Bureau of Licensing, May 6. 2010, at 1. The Bureau notified Licensee that a hearing was scheduled for July 26, 2010, for the purpose of taking legally admissible testimony on the objections to the renewal.
2. You have breached the Conditional Licensing Agreement [CLA] approved by the Board on July 1, 2009 signed by Horacio M. Resendiz, President, Taqueria Chavinda, and Faith S. Diehl, Chief Counsel, Pennsylvania Liquor Control Board. Specifically, patron identification was not checked, metal detecting want [sic] was not used, surveillance cameras were not in operation and Norristown Police Department has not been contacted.
3. The Bureau of Licensing has rejected the late-filed renewal application pursuant to Section 470(a) of the Liquor Code (47 P.S. Section 470(a) [sic]).
Act of April 12, 1951, P.L. 90, as amended.
The Bureau presented the late filed renewal application, a copy of its objection letter, and a copy of adjudications and opinions that were issued with respect to Citation Number 07-2789 and Citation Number 09-2635. The Bureau presented no testimonial evidence.
Citation No. 07-2789 was issued on November 28, 2007, and alleged:
Licensee violated §§401(a) and 406(a)(1) of the Liquor Code, 47 P.S. §§ 4-401(a) and 4-406(a)(1) on August 16, 2007, by selling, furnishing or giving liquor for consumption off the premises.Exhibit B-4, Adjudication, January 28, 2008, at 1; Hearing Transcript (H.T.), January 16, 2010, at 5.
The second count alleges that Licensee violated §491(10) of the Liquor Code, 47 P.S. §4-491(10), on June 30 and September 8, 2007, by refilling liquor bottles.
The third count alleges that Licensee violated §467 of the Liquor Code, 47 P.S. §4-467, on June 30, 2007, by failing to constantly and conspicuously expose its Restaurant Liquor License under a transparent substance on the licensed premises.
Citation No. 09-2635 was issued on November 18, 2009:
The citation alleges that Licensee violated §404 of the Liquor Code, 47 P.S. §4-404, on October 1 and 16, 2009, by failing to adhere to the conditions of the agreement entered into with the Board placing additional restrictions upon the subject license.Exhibit B-4, Adjudication, February 9, 2010, at 1; H.T. at 5.
Licensee has executed a Statement of Waiver, Admission and Authorization in which it admits to the violation charged in the citation and that the Bureau complied with the applicable investigatory and notice requirements of the Liquor Code, authorizes the administrative law judge to enter an adjudication without a hearing based on a summary of facts and prior citation history, and waives the right to appeal this adjudication.
Licensee offered testimony from several witnesses in support of its position that it did not abuse its licensing privileges.
Joseph Pembroke (Pembroke), director of security for Employer, testified:
So the first photo you saw would actually be this camera . . . . The camera angle that you're looking [at] here is the camera angle from that previous corner. This is just a shot of the very first camera angle, and this is the opposite corner to the right when you first walk in, and
this is the camera angle that was directly catty-corner. So that's three cameras on the inside of the bar area which covers all four angles.H.T at 12-13; R.R. at 12a-13a.
. . . .
. . . . So there's four cameras total. Three show all four angles of the bar and one actually faces the outside for the people walking in.
. . . .
Pembroke also testified that warning signs were posted inside the bar area indicating "audio video surveillance" and that sign was posted for at least a year. H.T. at 13; R.R at 13 a. Additionally, Pembroke stated:
The first one, . . . says Garrett Name Brand, is a metal wand, which will detect metal on an individual, which the security is instructed to do besides a pat down, a physical pat down. And the second item is the actual ID, identification checker that they use to check everyone's IDs to make sure they're 21.H.T. at 14; R.R. at 14a. Pembroke concluded that pursuant to the CLA security personnel were required on Friday and Saturday evenings and that two security personnel were employed. H.T. at 15-16; R.R. at 15a-16a.
Salvatore D. Gambone (Gambone), a real estate and business broker, testified that he was familiar with Licensee's establishment (La Michoacana) and that "[t]he main focus on the business is food . . . along with a beverage." H.T. at 22; R.R. at 22a. Gambone stated that he dined at La Michoacana "[a]t least once or twice a week." H.T. at 24; R.R. at 24a. Gambone was aware of the CLA:
. . . [W]e went over it and I'm familiar with the cameras and the other items that you showed there and the security and stuff like that. ----I felt as though a lot of that wasn't really necessary because he has such a
beautiful restaurant there, he never had a problem there in 11 years, but the fact that they come up with these conditions, he figured he'd meet them and I think there was a fine of like $100 or something.H.T. at 25; R.R. at 25a. Gambone concluded that he was aware that the Pennsylvania State Police cited Licensee for violation of the CLA and that Licensee filed a waiver and the State Police agreed to that waiver concerning the citation. H.T. at 25; R.R. at 25a. Gambone stated that he was never at La Michoacana beyond midnight. H.T. at 28; R.R. at 28a.
John Stretch (Stretch), a customer, testified that he never experienced any problems while dining at La Michoacana. Stretch stated that security personnel at La Michoacana did not scan for weapons "all the time . . . ." H.T. at 33; R.R. at 33a.
Last, Craig Kellerman (Kellerman), an attorney and customer, testified that he dined at La Michoacana "three to four times a week [and] sometimes I won't be there for a month." H.T. at 35; R.R. at 35a. Kellerman stated "you can finish your dinner at 10:00 or 10:30 and then you can wander in the bar at that time . . .[and] [i]t was never a problem." H.T. at 36; R.R. at 36a.
On November 17, 2010, the LCB refused the application for the renewal license:
After considering the testimony presented on your case on July 26, 2010, the Pennsylvania Liquor Control Board at its November 17, 2010 Board Session refused your application for renewal of Restaurant Liquor License R-13830 for the term effective May 1, 2010 . . . .
The temporary authority to operate granted during the administrative hearing process on the question of renewal or non-renewal of the license shall end at 11:59 p.m. on November 19, 2010 as the Board's adjudication in this matter shall be delivered to the office of your attorney of record and/or the licensed premises on November 18, 2010.LCB's Decision and Order, November 17, 2010, at 1; R.R. at 119a.
Since you have been operating the licenses establishment during the licensing period beginning May 1, 2010, you are not entitled to return of the license and filing fees. Therefore, the fees are being retained.
Licensee appealed to the trial court pursuant to Section 464 of the Liquor Code, 47 P.S. § 4-464, (an appeal may be taken by an aggrieved party to the court of common pleas within twenty days from the date of refusal) and a hearing was held on March 14, 2012. Before the trial court, the LCB asserted that Licensee's "egregious activity warranting non-renewal" was the result of its two prior adjudicated citations, one of which involved the failure to timely come into full compliance with the CLA.
On April 24, 2012, the trial court denied Licensee's appeal. The trial Court made the following pertinent findings of fact:
1. Licensee filed an untimely application for the renewal of restaurant liquor license No. R-13830 . . . for the period beginning May 1, 2010 and ending April 30, 2012.
. . . .
3. Citation No. 07-2789 . . . contained three (3) counts . . . .
4. Citation 09-2635 was issued against Licensee . . . in that . . . Licensee failed to adhere to the conditions of the
agreement entered into with the Board placing restrictions on the liquor license.
5. On June 24, 2009 Licensee entered into a . . . "CLA" as a result of Licensing's objection for the renewal period effective May 1, 2008. [T]he CLA imposed the following restrictions on the Licensee in an effort to address the concerns raised by Licensing and the Board:
a. [Licensee] shall, within ninety days of the approval of this Agreement, become compliant with and remain compliant with the responsible Alcoholic Management provisions of the Liquor Code including, but not limited to:
(1) New employee orientation;
(2) Training for alcohol service personnel;
(3) Manager/owner training;
(4) Displaying of responsible alcohol signage; and
(5) A certification compliance inspection by a representative of the Board's Bureau of Alcohol Education.
For the purpose of this section, days in which the license is in safekeeping shall not be counted against the ninety (90) day deadline;
b. [Licensee] shall employ at least one (1) security guard . . . at the premises from 9:00 p.m. until closing time on all Friday and Saturday nights that the establishment is open . . . .
c. [Licensee] shall check the identification of all patrons entering the premises . . . currently identified as the bar area, using a transaction scan device as that term is identified in the Liquor Code . . . .
d. [Licensee] shall scan all patrons entering . . . the bar area for weaponry, via the use of a metal detecting wand;
e. [Licensee] shall install and utilize a minimum of four (4) security/surveillance cameras to cover the area immediately outside the front entrance of the property and the interior of the licensed premises . . . .
f. [Licensee] shall pose [sic] a minimum of four (4) signs advising patrons of electronic surveillance, and of [Licensee's] zero-tolerance policy concerning disturbances; and
g. [Licensee's] principal shall be required . . . to meet with the chief and another designated officer of the Norristown Police Department on a semi-annual basis to discuss and solicit suggestions concerning the safe operation of the licensed premises.
6. Paragraph 10 of the CLA provides that a failure of the Licensee to adhere to its CLA may result in citations and/or nonrenewal of its license and/or amusement permit by the Board.
7. The Board approved Licensee's CLA on July 1, 2009, and Licensing notified Licensee by letter dated August 4, 2009 of the Board's approval.
8. The Licensee has violated the CLA and the renewal application was not timely filed. (emphasis added).
. . . .
III. Discussion
. . . .
Regarding Citation No. 07-2789, Licensee admitted to providing an alcoholic beverage for off premises consumption, refilling liquor bottles, and not properly displaying its validated license. With regard to Citation No. 09-2635, Licensee admitted to failing to adhere to conditions of its CLA, specifically on October 1, 2009, Licensee was not utilizing its metal detecting wand on patrons entering the premises and not utilizing the surveillance cameras for the exterior of the premises. On October 16, 2009 officers entered the establishment and [were] not required to present identification, no security personnel was identifiable and officers were not scanned with a metal detecting wand. For these violations, Licensee paid a fine of six hundred dollars.
The operation of a licensed premise is a privilege and obligation. The record shows that the Licensee failed to
fulfill its responsibility as a licensee by failing to adhere to the terms of its CLA.Trial Court Opinion, July 12, 2012, Findings of Fact (F.F.) Nos. 1, and 3-8 at 1-4 and at 6-7.
On appeal, Licensee contends: 1) that the trial court's denial of its renewal of a liquor license was not supported by substantial evidence; 2) that the trial court committed an error of law when it failed to consider Licensee's full citation history and the evidence of the corrective measures undertaken by Licensee; and 3) that the trial court's denial of its renewal of a liquor license based on minor remedial problems constituted an abuse of discretion.
This Court's review is limited to a determination of whether the trial court's findings are supported by substantial evidence and whether the trial court abused its discretion or committed an error of law. Pennsylvania Liquor Control Board v. Bartosh, 730 A.2d 1029 (Pa. Cmwlth. 1999).
Under the Liquor Code, the renewal of a liquor license is not automatic. Section 470(a.1) of the Liquor Code, 47 P.S. § 4-470(a.1), provides that the LCB may refuse to renew a liquor license for several reasons. The LCB may consider the licensee's record of violations when it decides whether to renew a liquor license and even a single violation may be sufficient to decline to renew a license. Hyland Enterprises, Inc. v. Pennsylvania Liquor Control Board, 631 A.2d 789 (Pa. Cmwlth. 1993) (emphasis added). The LCB may examine a pattern of violations for which penalties have already been paid in deciding whether to renew a license. Atiyeh v. Pennsylvania Liquor Control Board, 629 A.2d 182 (Pa. Cmwlth. 1993), petition for allowance of appeal denied, 536 Pa. 649, 639 A.2d 35 (1994). This Court has determined that "regardless of when they occur the Board [LCB] may consider all code violations committed by a licensee in determining whether to renew a liquor license." Bartosh, 730 A.2d at 1033.
Section 470(a.1) of the Liquor Code provides:
The Director of the Bureau of Licensing may object to and the board may refuse a properly filed license application:
(1) if the licensee, its shareholders, directors, officers, association members, servants, agents or employes have violated any of the laws of this Commonwealth or any of the regulations of the board;
(2) if the licensee, its shareholders, directors, officers, association members, servants, agents or employes have one or more adjudicated citations under this or any other license issued by the board or were involved in a license whose removal was objected to by the Bureau of Licensing under this section;
(3) if the licensed premises no longer meets the requirements of this act or the board's regulations; or
(4) due to the manner in which this or another licensed premises was operated while the licensee, its shareholders, directors, officers, association members, servants, agents or employes were involved with that license. When considering the manner in which this or another licensed premises was being operated, the board may consider activity that occurred on or about the licensed premises or in areas under the licensee's control if the activity occurred when the premises was open for operation and if there was a relationship between the activity outside the premises and the manner in which the licensed premises was operated. The board may take into consideration whether any substantial steps were taken to address the activity occurring on or about the premises.
When a party appeals a LCB decision, the trial court hears the appeal de novo and makes its own findings of fact and conclusions of law. The trial court must receive the record of the proceedings before the LCB, if it is offered, and is permitted to take additional evidence. The trial court may sustain, alter, change, modify or amend a decision by the LCB, even if the trial court does not make findings of fact that are materially different from those found by the LCB. Two Sophia's Inc. v. Pennsylvania Liquor Control Board, 799 A.2d 917 (Pa. Cmwlth. 2002).
Initially, Licensee contends that the trial court's denial of its renewal of a liquor license was not supported by substantial evidence. Specifically, Licensee asserts that there was no evidence of record of "egregious activity" or an abuse of the license privileges by Licensee.
Licensee states that it was issued only two minor citations within its twelve-year license history.
The LCB raised three objections to Licensee's renewal of a liquor license: 1) Licensee's two adjudicated citations; 2) Licensee's breach of the CLA; and 3) Licensee's late filing of its application for liquor license renewal.
A review of the record established that the trial court's decision was supported by substantial evidence.
Substantial evidence is defined as that relevant evidence which a reasonable mind would accept as adequate to support the conclusion reached. Borough of Fleetwood v. Zoning Hearing Board of Borough of Fleetwood, 538 Pa. 536, 540, 649 A.2d 651, 653 (1994).
A. Two Adjudicated Citations.
Licensee was issued citation number 07-2789 and charged with one count of violating Section 401(a) of the Liquor Code, 47 P.S. § 4-401(a) and Section 406(a)(1) of the Liquor Code, 47 P.S. § 4-406(a)(1), when it sold, furnished or gave liquor for consumption off premises. At count two, Licensee was charged with violating Section 491(10) of the Liquor Code, 47 P.S. § 4-491(10), when it refilled liquor bottles. At count three, Licensee was charged with violating Section 467 of the Liquor Code, 47 P.S. § 4-467, when it failed to expose its restaurant liquor license under a transparent substance on the licensed premises.
At citation number 09-2635, Licensee was charged with one count of violating Section 404 of the Liquor Code, 47 P.S. § 4-404, when it failed to adhere to the conditions agreed upon in the CLA. Licensee admitted to the citation violations and was fined $500.00 and $100.00 respectively.
Because Licensee admitted to the above-mentioned charges, the LCB concluded that it was not necessary to present testimony concerning this issue.
B. Licensee's Breach Of The CLA.
The LCB objected to Licensee's renewal of a liquor license based on citation number 07-2789 because there were five incidents of disturbance that occurred at or near the licensed premises. As a result, Licensee elected not to appeal the refusal before the trial court. Instead Licensee agreed to enter into the CLA with the LCB in order to correct these cited problems. The new conditions agreed to by both parties in the CLA included the use of a transaction scan device to check the identification of patrons and the use of a metal detecting wand to search for weapons on patrons entering the bar portion of the restaurant.
These incidents included fights, assaults, visibly intoxicated patrons, sales to a minor, and disorderly operations. See LCB's Brief at 14.
Here, Pembroke and Stretch, Licensee's own witnesses, testified that Licensee breached the conditions of the CLA. Specifically, Stretch testified that he was not regularly scanned for identification but was only scanned from time to time when he frequented Licensee's establishment. N.T. at 32; R.R. at 32a. Pembroke, director of security, testified that Licensee utilized the metal detecting wand every day from 9:00 P.M. to closing and the transaction scan device after 9:00 P.M. N.T. 15-16; R.R. at 15a-16a. Pembroke's testimony clearly established that Licensee breached Paragraph 7(d) (all patrons are to be scanned when entering the bar area for weaponry) and Paragraph 7(c) (all patrons shall be checked for identification when entering the bar area "notwithstanding the fact that the patron's identification was scanned on a previous visit") of the CLA. See Trial Court's F.F. No. 5 at 3-4.
C. Late Filing Of The Renewal Application.
Section 470(a) of the Liquor Code, 47 P.S. § 4-470(a), provides that "all applications for renewal of licenses under the provisions of this article shall be filed . . . at least sixty days before the expiration date of the same . . . ." Here the record established that Licensee admitted to the late-filing of the renewal application. See "Attestation," dated June 7, 2010, of the certified copy of the renewal application at 1; R.R. at 40a. Licensee's liquor license was scheduled to expire on April 30, 2010. In order to be timely, Licensee was required to file the application no later than March 1, 2010. The application was filed on May 4, 2010, more than two months late. See Retail Sales of Liquor and Malt Beverages Amusement and Sunday Sales Permit at 1; R.R. at 41a. The trial court's decision was supported by substantial evidence.
Licensee next contends that the trial court erred when it failed to consider the full citation history and the evidence of corrective measures taken by Licensee. Specifically, Licensee alleged that the trial court "erred in failing to go further by considering the full approximately twelve (12) year citation history, corrective measures taken to address the purported problems, disturbances or violations of a similar type occurred thereafter." Appellant's Brief at 21.
In determining whether to renew a license on appeal, the trial court is permitted to consider substantial steps taken by a licensee to remediate the violations. U.S.A. Deli, Inc. v. Pennsylvania Liquor Control Board, 909 A.2d 24 (Pa. Cmwlth. 2006). Here, the trial court specifically found that Licensee failed to consistently apply the corrected measures agreed to by the parties in the CLA. See Trial Court's F.F. Nos. 5(c) and (d) and 8.
"[I]n determining whether the Board properly denied renewal of a license, the trial court may examine all circumstances that the Board considered when it issued its decision not to renew a license, including past adjudicated Liquor Code violations." First Ward Republican Club of Philadelphia v. Pennsylvania Liquor Control Board, 11 A.3d 38, 47 (Pa. Cmwlth. 2010). This is exactly to which the trial court confined its review.
Again, prior case law establishes that a single citation is sufficient to form the basis for the non-renewal of a license. Hyland Enterprises, Inc. Additionally, the breach of the CLA may also establish a basis for non-renewal of a license. Section 470(a) of the Liquor Code, 47 P.S. § 4-470(a) provides:
The board may enter into an agreement with the applicant concerning additional restrictions on the license in question. If the board and the applicant enter into such an agreement, such agreement shall be binding on the applicant. Failure by the applicant to adhere to the agreement will be sufficient cause to form the basis for a citation under section 471 and for the nonrenewal of the license under this section. (emphasis added).
The trial court did not commit an error of law based upon Licensee's prior citations and the violation of the CLA.
Last, Licensee contends that the trial court's denial of its renewal application was an abuse of discretion because there was no clear and persistent pattern of misconduct or any serious violations of the Liquor Code.
In Gillespie v. Pennsylvania Department of Transportation, Bureau of Driver Licensing, 886 A.2d 317, 319 (Pa. Cmwlth. 2005), this Court defined the term "abuse of discretion:"
Abuse of discretion is not merely an error of judgment; however, if, in reaching a conclusion, the law is overridden or misapplied, or the judgment exercise is manifestly unreasonable or the result of partially, prejudice, bias, or ill will, as shown by the evidence of the record, discretion is abused.--------
Here, this Court agrees with the LCB that the trial court did not abuse its discretion when it denied Licensee's renewal of a liquor license because the record established that Licensee had a history of misconduct that included a citation listing five incidents of disturbances. In order to address these incidents, Licensee entered into the CLA with the LCB to ensure renewal of its liquor license. Pursuant to the CLA, additional conditions were imposed that included security cameras, identification scans, and a metal detecting wand. Licensee's failure to adhere to the conditions imposed under the CLA, which was corroborated by Licensee's witnesses, supported the LCB's decision to deny Licensee's renewal of a liquor license.
Accordingly, this Court affirms the trial court's denial of Licensee's appeal.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 25th day of June, 2013, the order of the Court of Common Pleas of Montgomery County in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge