BJJ Enterprises, Inc. v. CommonwealthBJJ Enterprises, Inc. v. Commonwealth
Opinion by
Bеfore us are the consolidated appeals of BJJ Enterprises, Inc. (Appellant) from a decision оf the Court of Common Pleas of Philadelphia County which affirmed the Pennsylvania Liquor Control Board’s (Board) revoсation of Appellant’s liquor license. We shall consider each appeal in turn.
Appellant, the holder of restaurant liquor license No. R-4115, was issued a citation by the Board which alleged that Appellant had served alcoholic beverages from the licensed premises on two occasions while its license wаs suspended. The Board revoked Appellant’s license after considering its past record of violations.
Appellant appealed to the Philadelphia Court of Common Pleas (trial court) which conducted a de novo hearing and subsequently affirmed the Board. On appeal Appellant argues that it was not aware of thе effective license suspension period. This Court’s scope of review in liquor license revocatiоn appeals where there was a de novo proceeding before the trial court, is to determine whether the trial court committed an error of law or an abuse of discretion. James Alston, Inc. v. Pennsylvania Liquor Control Board,
Questions of evidentiary weight and credibility are exclusively within the trial court’s discretion and are not reviewable by this Court absent an abuse of that discretion. In the Matter of Revocation of Restaurant Liquor License No. R-18291 and Amusement Permit No. AP-18291,
Turning to questions of law, Section 471 of the Code does indeed mandate a suspension or revocation upon a third or subsequent violation of the Code within a four year period. The trial court, having not made materially different findings of fact than those of the Board, was prohibited from modifying the Board’s penalty. See, e.g., Allegheny Bеverage Co., Inc. v. Pennsylvania Liquor Control Board,
No. 80 C.D. 1982
No. 81 C.D. 1982
In these appeals Appellant challenges the trial court’s decision affirming thе Board’s revocation of Appellant’s liquor license for permitting lewd, immoral or improper entertainment on the licensed premises. The trial court found that Appellant permitted the performance оf topless dancing girls who wore panties or G-strings which permitted one to see the pubic area and permitted these girls to converse and associate with the patrons of the bar when they were not performing. The court concluded that “the actions of an entertainer at a bar, dancing with no covering whatsoevеr on the upper part of her body and engaging in suggestive banter with the bar’s patrons constituted lewd, immoral or imрroper entertainment within the meaning of the Liquor Code,” in violation, of Section 493(10).
The decision of the trial сourt is in full accord with our decision in Pennsylvania Liquor Control Board v. Tris-Dad, Inc.,
No. 78 CD. 1982
This appeal concerns the trial court’s decision to affirm thе Board’s revocation of Appellant’s liquor license, for Appellant’s failure to maintain local hеalth and sanitation laws. The court found that on January 8, 1980, the City of Philadelphia (City) revoked Appellant’s Prepаring and Food Serving License or Health License for Appellant’s failure to comply with a City tax requirement. Thе court stated that since Appellant’s food preparation license was revoked it could not lawfully prepare or serve food. If the Appellant could not serve food, the court reasoned, thеn it would be in violation of Section 406(a) •of the Code which permits holders of restaurant liquor licenses to sell liquоr “only in that part of the hotel or restaurant habitually used for the serving of food to guests or patrons, . . . .” The Court’s lоgic is inescapable and there being no error of law or abuse of discretion, we affirm.
And Now, October 2, 1984, the decisions of the ■Court of Common Pleas of Philadelphia County in the ■above-oaptioned cases аre affirmed.
Notes
Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§1-101— 9-902.
See also New Sorrento, Ine. t/a Applause v. Pennsylvania Liquor Control Board,