35 A.2d 561 | Pa. Super. Ct. | 1943
Argued December 6, 1943. This is an appeal from the order of the court below reversing the Pennsylvania Liquor Control Board's action in suspending appellee's club liquor license for a period of sixty days.
On February 1, 1942, club liquor license No. C-3891 was issued to the Lehigh Valley Brewery Workers Home Association, Inc., for the year beginning February 1, 1942, and ending January 31, 1943. On November 12, 1942, the Pennsylvania Liquor Control Board in pursuance of the provisions of the Act of Assembly of 1933, Sp. Sess. November 29, P.L. 15, as reenacted by the Act of 1937, June 16, P.L. 1762, § 1, 47 P. S. § 744-410, issued a citation to licensee aforesaid to show cause why its license should not be revoked and bond forfeited for specific violation of the Pennsylvania Liquor Control Act and provisions of the Penal Code relating to gambling. The principal charges were: (1) sales to non-members; (2) sales for consumption off the licensed premises; (3) conducting a place where liquor and malt or brewed beverages were unlawfully sold; and (4) maintaining gambling devices and permitting gambling on the licensed premises.
After a hearing held December 9, 1942, in accordance *143 with section 404, 47 P. S. § 744-404, at which the licensee was represented by counsel but offered no evidence, the board found that all the charges to which we have referred were established. The record also discloses that on January 15, 1942, under a previous citation the board had suspended this license for thirty days on similar charges. That order on appeal to the Court of Quarter Sessions of Northampton County was set aside.
The testimony adduced before the examiner for the board was by agreement of counsel made a part of the record on appeal and it was supplemented by the testimony of Anthony Powell, president of the licensee club. The court made no specific findings of fact, nor did it set aside any of the findings of fact of the board.
Section 411 of the Pennsylvania Liquor Control Act, supra, 47 P. S. § 744-411, prohibits the sale of liquor to non-members by the holders of a club liquor license. Section 412, 47 P. S. § 744-412, prohibits the sale of malt or brewed beverages by the holder of a club liquor license for consumption off the licensed premises. Section 605 of the Act of 1939, June 24, P.L. 872, known as "The Penal Code", 18 Pa.C.S.A. § 4605, prohibits any person from setting up gambling devices and permitting gambling.
The petition for appeal from the board's order of suspension to the court of quarter sessions does not deny the violations charged against the licensee and found by the board to be established by the undisputed evidence, but merely sets forth: "Your petitioner feels that the order of the Pennsylvania Liquor Control Board is oppressive and unjust." Nor did the appellee offer testimony, either before the board or the court, denying the violations charged against it in the citation or question the facts as found by the board. Powell's testimony taken before the court was confined to explaining alleged efforts made by the appellee to comply with the law. *144
In such circumstances was the court below warranted in reversing the order of the board? The charge of selling liquor to non-members, which was proven to have occurred on different occasions, was of itself sufficient to justify the board's order suspending the license: Penelope Club Liquor License Case,
In Pacewicz Liquor License Case,
The learned court below places stress on what we said inCommonwealth v. Mihalow,
The record discloses a clear violation of the law, established by undisputed evidence, and so found by the board. The court was not warranted in reversing the board's action without finding new and different facts.
The order of the court below is reversed and the order of the board reinstated at appellee's costs. *146