80 Pa. Commw. 453 | Pa. Commw. Ct. | 1984
■Opinion by
The Pennsylvania Liquor Control Board has appealed from the Court of Common Pleas of Dauphin County which, after receiving additional evidence in a court hearing, vacated a ten-day suspension which the
The elements of the statutory framework for the suspension were threefold, as follows:
1. Sex Discrimination: The bar, as a “place of public accommodation, resort or amusement,” discriminated on the basis of sex, contrary to the Pennsylvania Human Relations Act, 43 P.iS. §955 (i) (1) — a violation of any Pennsylvania law being a basis for suspension under section 471 of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.'S. §4-471;
2. Food Service Failure: The bar breached the requirement that, to hold a restaurant liquor ■license, licensee shall conduct a “restaurant,” meaning a reputable “place . . . habitually and principally used for the purpose of providing food for the public. ...” Sections 102, 404 of the Liquor Code, 47 P.S. §§1-102, 1-104; and
3. Tap Mislabeling: The bar violated 'the prohibition against a licensee serving “malt or brewed beverages from any faucet, spigot or other dispensing apparatus, unless the trade name or .brand of the product shall appear . . . upon such faucet, spigot or dispensing apparatus.” Section 493(6) of the Liquor Code, 47 P,S. §4-493(6).
In view of the Lin’s record of previous citations, the board deemed the suspension to be mandatory, under Section 471 of the Code.
As to the facts of the discrimination charge, the trial court’s opinion stated “the fact” that “on two occasions, when go-go girls were the ‘entree’ of the
With respect to the matter of food service, the board’s finding was that the establishment was “not a bona fide restaurant habitually and principally used for the purpose of providing food for the public,” in that there was “an insufficient quantity of food, dishes, silverware and cooking utensils” on the June dates. The trial court’s finding was as follows:
2. While the evidence establishes that ion three dates in June of 1982 the premises were not principally used for providing food, this condition was only temporary; hence, not a violation.
With respect to the mislabeling charge, the board found 'that the licensees “failed to label beer taps properly” on June 30, 1982. The trial court finding, apparently accepting that factual determination, expressed a conclusion of law, as follows:
3. The inadvertent mislabeling of a quarter keg of be.er is a de minimis violation and too trivial to warrant sanction.
As demonstrated above, the facts, as seen by both the board and the court, are not substantially disputed. The trial court vacated the suspension on the grounds that the charged actions were de minimi a and committed without intent to violate: The trial court’s opinion characterized the nature of some of the charges as “nit-picking,” quoted a previous opinion criticizing the board for failure to take enforcement action against more substantial offenses, and then concluded that the board’s charges, against the “triv
However justified the trial court’s criticism might be as a matter of a .concerned personal view, the legislature nevertheless has mandated that certain minor matters, as well as major breaches of law, be treated as statutory violations. A court cannot reverse Liquor Code charges by declaring the violations to be de minimis. Pennsylvania Liquor Control Board v. Johnstown Turn-Verein, 71 Pa. Commonwealth Ct. 451, 454 A.2d 1195 (1983). N;or is proof of intent to violate required under the Liquor Code. Allegheny Beverage Co. v. Pennsylvania Liquor Control Board, 67 Pa. Commonwealth Ct. 487, 492, 447 A.2d 725, 727 (1982).
The cover charge distinction was apparently temporary, and may well have been intended for purposes other than a desire to oppress male customers (the trial court opinion suggests “chivalry and courtesy to the fair sex” as a possible purpose). However, when a place of public accommodation has in fact baaed the collection or exemption of an admission charge solely upon a difference in gender, having no legitimate relevance in the icircumstanceis, then as a matter of law there is a violation of the Human Relations Act’s prohibition against discrimination on the basis of sex.
As to the absence of food service, the trial court found that matter to be insubstantial, because a small amount of food items were on the premises,
The beertap mislabeling, even though unintentional and shortlived, was nevertheless a violation, according to the authorities cited above.
A common pleas court may effect a change in penalty only when its factual findings have departed materially and significantly from those of the board. Pennsylvania Liquor Control Board v. Latrobe Armed Services Association, 16 Pa. Commonwealth Ct. 199, 329 A.2d 549 (1974). Under the applicable rule as to scope of review, an order of a trial court is subject to reversal, even where the court held its own hearing, when there is error of law or abuse of discretion. Pennsylvania Liquor Control Board v. Camac Bar, Inc., 43 Pa. Commonwealth Ct. 349, 403 A.2d 136 (1979).
Here, where the trial court itself confirmed the factual aspect of the violations, but vacated the pen
Obdeb
Now, February 27, 1984, the order of the Court of Common Pleas of Dauphin County, dated April 26, 1983, is reversed, and the suspension imposed by the Pennsylvania Liquor Control Board, iat Citation No. 1746 of 1982, is reinstated.
The court's opinion record® that the food supply on hand consisted of two pounds of chicken necks, a half pound of cheese, a gallon of pickles, and three cans, each, -of sauerkraut and tomato sauce.