82 Pa. Commw. 344 | Pa. Commw. Ct. | 1984
Opinion by
Willie Mitchell (licensee), the holder of a Retail Dispenser Eating Place and a Sunday Sales Permit has appealed from an order of the Court of Common Pleas of Philadelphia County denying his appeal from an order of the Pennsylvania Liquor Control Board (board) imposing a $200 fine.
The board issued a citation charging the licensee with violations of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §1-101, and rules and regulations of the board. The citation alleged that the licensed establishment operated by the licensee “is not a bona fide eating place in that food is not regularly and customarily prepared and sold, on or about March 13, April 19, 21, 1981. ...”
Section 102 of the Code, 47 P.S. §1-102 defines an eating place as “a premise where food is regularly and customarily prepared and sold. ...”
The licensee appealed and the court of common pleas held a hearing at which a board enforcement officer, the licensee and three of his patrons testified.
The court stated that it “without hesitation chose to believe the testimony of Agent Hood [the officer] that on the dates and times described, food was not available on the licensed premises.” It held that “food, was not regularly and customarily prepared and sold on the licensed premises, and that sufficient evidence was adduced to sustain the Board’s finding that the licensed establishment operated by the licensee was not a ‘bona fide eating place’ as required by the Liquor Code.”
The licensee argues that in order to prove noneompliance with Section 102 of the Code, the Liquor Control Board must show that food is neither regularly nor customarily prepared and sold, and that the officer’s testimony supports only a finding that food was not regularly prepared, and sold on the licensee’s premises. The licensee miscontrues Section 102. It requires the licensee to prepare and sell food both regularly and customarily. Therefore evidence showing that food either was not regularly or not custom
The licensee also argues that the court erred by not applying Section 312 of the Crimes Code, 18 Pa. C. S. §312, which provides that:
The court shall dismiss a prosecution if having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the conduct of the defendant:
(1) was within a customary license or tolerance, neither expressly negatived by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense;
(2) did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or
(3) presents such other extenuations that it cannot reasonably be regarded as envisaged by the General Assembly or other authority in forbidding the offense.
A Liquor Code citation proceeding is a civil case and therefore Section 312, concerning dismissals of criminal prosecutions, has no application.
Order affirmed.
Order
And Now, this 10th day of May, 1984, the order of tiie Court of Common Pleas of Philadelphia County dated May 24, 1982 is hereby affirmed.