HomeMy WebLinkAbout09-5652P. Richard Wagner, Esquire
PA Supreme Court I.D. #23103
Mancke, Wagner, Spreha & McQuillan
2233 North Front Street
Harrisburg, PA 17110
Telephone (717) 234-7051
Fax(717)234-7080
Attorney For Appellant
PENNSYLVANIA STATE POLICE,
BUREAU OF LIQUOR CONTROL
ENFORCEMENT,
Appellee,
V.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO: O q- SL 5?2 l trt? T?
THE MECHANICSBURG CLUB,
333 Heinz Street
Mechanicsburg, PA 17055
Appellant.
NOTICE OF APPEAL
AND NOW, comes the Appellant, The Mechanicsburg Club, by and through their
attorneys, Mancke, Wagner, Spreha & McQuillan, and files the following Appeal from the
decision of the Pennsylvania Liquor Control Board dated July 15, 2009:
1. The Appellant, The Mechanicsburg Club, has an address of 333 Heinz Street,
Mechanicsburg, Cumberland County, Pennsylvania.
2. The Appellee, The Pennsylvania State Police, Bureau of Liquor Control Enforcement,
has an address of 3655 Vartan Way, Harrisburg, Dauphin County, Pennsylvania.
3. At all times pertinent hereto, the Appellant is licensed by the Pennsylvania Liquor
Control Board having a liquor license No. CC-53-54.
4. On or about July 15, 2009, the Pennsylvania Liquor Control Board issued an Order
and Opinion, a copy of which is attached hereto, incorporated herein by reference, made a part
hereof, and marked as Exhibit A.
5. The basis of the Opinion was predicated upon a citation consisting of four (4) counts
issued by the Bureau of Liquor Control Enforcement, with several of the counts alleging a
violation of §315(b) of the Local Options Small Games of Chance, as well as a count having
alleged that the Appellant violated certain provisions of the Crimes Code.
6. The Licensee had imposed upon it a fine of $2,600.00, plus a ten (10) day suspension
of its liquor license.
7. The herein appeal is pursuant to the provisions of the Liquor Code, 47 P.S. §4-471(b).
8. Said appeal of the Licensee is predicated upon a lack of authority of the Bureau of
Liquor Control Enforcement to enforce the Small Games of Chance, which was the primary basis
of the original citations from the Bureau of Liquor Control Enforcement.
9. A review of the Liquor Code, 47 P. S. §1-101, specifically in subsection 2-211, sets
forth the enumerated powers of enforcement of the Bureau of Liquor Control Enforcement.
10. A review of that section reveals that the legislature did not grant authority to the
Bureau of Liquor Control Enforcement to enforce the provisions of the Local Option Small
Games of Chance.
-2-
11. The enforcement of the Local Option Small Games of Chance by statute is vested in
law enforcement officials other than the Liquor Control Board Enforcement Office.
12. The Bureau of Liquor Enforcement, by enforcing the provisions of the Small Games
of Chance, circumvents the statutory protections afforded the Licensee and the enforcement by
the Bureau violates both the Local Option Small Games of Chance as well as the Liquor Code.
WHEREFORE, Licensee/Appellant herein requests the Court to grant its appeal and
overturn the Order of the Pennsylvania Liquor Control Board.
Respectfully Submitted,
Mancke, Wagner, Spreha & McQuillan
Harrisburg, PA 17110
Attorneys For Appellant
Date: Y1-;-k,7
-3-
2233 North Front Street
Mailing Date: July 15, 2009
PENNSYLVANIA LIQUOR CONTROL BOARD
HARRISBURG, PA 17124-0001
PENNSYLVANIA STATE POLICE, Citation No. 06-2592
BUREAU OF LIQUOR CONTROL
ENFORCEMENT
VS.
THE MECHANICSBURG CLUB
33 Heinz Street
Mechanicsburg, PA 17055-3211
License No. CC-5354
Counsel for Licensee: P. Richard Wagner, Esquire
MANCKE WAGNER SPREHA at McQUILLAN
2233 North Front Street
Harrisburg, PA 17110
Counsel for Bureau: Andrew Lovette, Esquire (Hearing)
Thomas M. Ballaron, Esquire (Appeal)
Pennsylvania State Police,
Bureau of Liquor Control Enforcement
3655 Vartan Way
Harrisburg, PA 17110
OPINION
The Mechanicsburg Club ("Licensee") appealed from the Adjudication
and Order of Administrative Law Judge Daniel T. Flaherty ("ALJ"), wherein
the ALJ sustained the citation, and imposed a penalty consisting of a two
thousand six hundred dollar ($2,600.00) fine, and a ten (10)-day
suspension of the license.
The citation consisted of four (4) counts. The first count of the
citation charged that Licensee violated section 471 of the Liquor Code and
sections 5512 and/or 5513 and/or 5514 of the Crimes Code in that on
August 28, September 4, 6, 2006, and divers other occasions over the past
year, Licensee possessed or operated gambling devices or paraphernalia or
permitted gambling or lotteries, poolselling and/or bookmaking on the
licensed premises. [47 P.S. § 4-471; 18 Pa. C.S. §§ 5512, 5513, 5514].
The second count of the citation charged that Licensee violated sections
5.71 and 5.74 of the Liquor Control Board Regulations in that on September
19, 2006, and divers other occasions in the past year, Licensee failed to
maintain records in conformity with Title 40 of the Pennsylvania Code. [40
Pa. Code §§ 5.71, 5.74].
The third count of the citation charged that Licensee violated section
471 of the Liquor Code and section 315(b) of the Local Option Small
Games of Chance Act ("LOSGCA") by offering and/or awarding more than
live thousand dollars ($5,000.00) in cash or merchandise in any seven (7)-
day period, during the periods July 31 through August 61 August 7 through
2
13, August 14 through 20, and August 21 through 27, 2006. [47 P.S. §
4-471; 10 P.S. § 315(b)].
The fourth count charged that Licensee violated section 471 and
493(2) of the Liquor Code, section 311 of the LOSGCA, and section 901
of the Department of Revenue Regulations by failing to maintain complete
` and truthful records covering the operation of the licensed business for a
period of two (2) years immediately preceding September 27, 2006,
concerning the LOSGCA. [47 P.S. §§ 4-471, 4-493(2); 10 P.S. § 311;
61 Pa. Code § 901 ].
Pursuant to section 471 of the Liquor Code [47 P.S. § 4-471], the
appeal in this case must be based solely on the record before the ALJ. The
Board shall only reverse the decision of the AL] if the ALJ committed an
error of law or abused his discretion, or if his decision was not based upon
substantial evidence. The Commonwealth Court defined "substantial
evidence" to be such relevant evidence as a reasonable person might accept as
adequate to support a conclusion. Joy Global, Inc. v. Workers'
Compensation Appeal Bd. (Hogue), 876 A.2d 1098 (Pa. Cmwlth. 2005);
Chapman v. Pennsylvania Bd. of Probation and Parole, 86 Pa. Cmwlth. 49,
484 A.2d 413 (1984).
3
The Board has reviewed the certified record, including the Notes of
Testimony from hearings held on August 23, 2007, and November 17,
2008, as well as the ALI's Adjudication and Order, with Licensee's
contentions in mind and has concluded that the ALI's ruling is without error
and is supported by substantial evidence. Accordingly, we affirm.
Licensee raises five (5) issues on appeal. First, Licensee contends the
AL) committed an error of law in penalizing Licensee for alleged violations of
the LOSGCA, in that the Pennsylvania Liquor Control Board ("Board") does
not have jurisdiction over administration of small games of chance. [10 P.S.
§ 315(b)]. Licensee next avers that the AL] erred since the Board does not
have jurisdiction to enforce the LOSGCA. Licensee's third issue on appeal is
that the ALI erred in penalizing Licensee for any violation of LOSGCA since
enforcement of the act lies with law enforcement officials which do not
-include members of the Pennsylvania State Police, Bureau of Liquor Control
Enforcement ("Bureau"). In its fourth issue, Licensee contends the AL) erred
in his Findings of Fact 8 and 9 (cash box and football pool), in that there was
no testimony that any of the illegal conduct occurred on the licensed
premises. Finally, Licensee maintains that an alleged violation of the
4
LOSGCA constitutes an alleged violation of that Act, and does not constitute
a violation of any gaming statute as suggested by the AL).
As to issues I, 11, 111, and V, Licensee essentially argues that the Board
cannot impose sanctions on a licensee for operating small games of chance
that violate the provisions of the LOSGCA'. The Board rejects this
argument. By citing a licensee for its failure to comply with the LOSGCA,
the Board is not seeking to enforce the LOSGCA; rather it is complying with
the legislative mandate that it enforce the provisions of the Liquor Code. [47
P.S. § 2-2111.
Section 471 of the Liquor Code states, in part, that the Bureau may
issue a citation and order a licensee to appear before an. administrative law
judge "upon any other sufficient cause shown." [47 P.S. § 4-471(a)]. This
catch-all phrase was specifically included in the Liquor Code to provide the
ample powers of enforcement needed to ensure the protection of the public
welfare, health, peace and morals of the people of the Commonwealth. Such
a broad provision is required because "it is almost impossible to anticipate all
of the actions that may justify enforcement." In Re Quaker City
' The Board notes that Licensee does not challenge the sufficiency of the evidence to establish the violations, only
the authority of the Board to act.
5
Development Co., 365 A.2d 683 (Pa. Cmwlth. 1976). Consequently, the
Board has been assigned the task of monitoring all conduct reasonably related
to the sale and use of alcoholic beverages, not just enforcing the laws directly
related to the sales of liquor and malt or brewed beverages.
The courts have held that "other sufficient cause shown" includes a
variety of conduct not expressly prohibited by the statute but related to the
sale and use of alcoholic beverages. Examples of prohibited conduct include
drug trafficking, prostitution, gambling and disorderly conduct. Pennsylvania
Liquor Control Board v. T.L.K., 544 A.2d 931 (Pa. 1988) (drug
trafficking); V.J.R. Bar Corp. V. Pennsylvania Liquor Control Board, 390
A.2d 163 (Pa. 1978) (gambling); Tahiti Bar, Inc. Liquor License Case, 150
A.2d 112 (1959) (prohibiting association between entertainers and
patrons); In re Ciro's Lounge, Inc., 358 A.2d 141 (Pa. Cmwlth. 1976)
(noisy and disorderly conduct); Reiter Liquor License Case, 98 A.2d 465
(Pa. Super. 1953) (presence of prostitutes, lewd acts, obscene language, and
noisy and disorderly conditions on premises). Each of these activities, when
conducted in a licensed establishment, disrupts the orderly and peaceful sales
and use of alcoholic beverages. Thus, because the troublesome conduct
occurs on a licensed premises, the Board has the authority to take action.
6
When small games of chance are conducted in a licensed establishment,
all laws governing their operation must be followed. The LOSGCA governs
the operation of small games of chance. [10 P.S. 311 et seq.]. The
penalties for failure to comply with the LOSGCA include summary and
misdemeanor criminal charges, fines, and forfeiture of the license. [10 P.S. §
327]. When a licensee does not comply with the provisions of the
LOSGCA, unlawful and criminal behavior occurs on a licensed premises. Like
drug trafficking and prostitution, unlawful small games of chance disrupt the
orderly and peaceful sales and use of alcoholic beverages. Therefore, the
Board has the authority to regulate this activity, and is required to do so,
under the legislative mandate found in the Liquor Code.
Licensee argues that the actions of the Board, the Bureau, and the ALI
constitute enforcement of the LOSGCA. This position is incorrect. Each
count of the citation was based on a violation of the Liquor Code or Board
Regulations. Furthermore, the penalties imposed by the AL] were those
dictated by section 471 of the Liquor Code, not the penalties set forth in the
LOSGCA [47 P.S. § 4-471; 10 P.S. § 327]. The Board was enforcing the
Liquor Code and Board Regulations, not the LOSGCA.
7
Licensee does not dispute that there is sufficient substantial evidence to
prove the violations set forth in Counts Three (3) and Four (4) of the
Citation. Therefore, upon a finding that the Board has the authority to
regulate conduct that occurs on a licensed premises as part of its duty to
enforce the Liquor Code, including the operation of small games of chance,
the first three, as well as the fifth issue raised on appeal by Licensee, are
dismissed.
The Board now turns its attention to the fourth issue of Licensee's
appeal. Although it is not clear, it appears that Licensee is arguing there is
insufficient substantial evidence to prove that the illegal gambling referenced
in the AL)'s Finding of Fact 8 and 9 occurred on the licensed premises and
that there is insufficient evidence to establish the use of the cash fund box that
is referenced in those findings.
The record reveals the findings are based on ten (10) pages of
testimony regarding the grey cashbox that was observed by Officer Royer of
the Bureau during a routine club inspection. [N.T. 10 - 20]. Officer Royer
testified about his interview with Charles Sechrist, a club bartender, during
which they discussed the cashbox located in plain view near the cash register
at the bar and the evidence of a football pool contained in the box. [N.T.
8
15 - 18]. Mr. Sechrist stated the football pool belonged to a club member,
Steven Sabochick, and that it was his job to collect ten dollars ($ 10.00) per
week from pool participants. [N.T. 16]. Furthermore, Mr. Sechrist went
into great detail about how the pool operated, when payouts would be made,
and how the payout was calculated. [N.T. 17]. Clearly there is substantial
evidence in the record to support the AL]'s eight and ninth Findings of Fact.
Accordingly, the appeal of Licensee must be dismissed.
9
ORDER
The decision of the AL] is affirmed.
The appeal of Licensee is dismissed.
It is hereby ordered that Licensee pay the fine of two thousand
($2,600.00) dollars within twenty (20) days of the mailing date of this
Order. Failure to do so will result in license suspension and/or revocation.
It is further hereby ordered that Licensee's Catering Club Liquor License
No. CC-5354 be suspended for a period of ten (10) days, beginning at 7:00
a.m. on Monday, August 24, 2009 and ending at 7:00 a.m. on Thursday,
September 3, 2009.
The case is hereby remanded for imposition of the fine and license
suspension.
Licensee must adhere to all other conditions set forth in the AL)'s
Order dated May 28, 2008.
A?. ji??k
i
Board Secretary
10
CERTIFICATE OF SERVICE
I, Debra K. Spinner, secretary in the law firm of Mancke, Wagner & Spreha, do hereby
certify that I am this day serving a copy of the foregoing document upon the following persons
and in the manner indicated below, which service satisfies the requirements of the Pennsylvania
Rules of Appellate Procedure, by first class mail, postage prepaid, and addressed as follows:
Thomas M. Ballaron, Esquire
Office of Chief Counsel
Bureau of Liquor Control Enforcement
3655 Vartan Way
Harrisburg, PA 17110
Office of Administrative Law Judge
Brandywine Plaza.
2221 Paxton Church Road
Harrisburg, PA. 17110
Office of Chief Counsel
Liquor Control Board
401 Northwest Office Bldg.
Harrisburg, PA 17124
BYE'
Debra K. Spinner,'Secretary
Mancke, Wagner, Spreha & McQuillan
2233 North Front Street
Harrisburg, PA 17110
P. Richard Wagner, Esquire
Attorney for Appellant
Date:
OF ??- Q?Tl
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PENNSYLVANIA STATE POLICE,
BUREAU OF LIQUOR CONTROL
ENFORCEMENT,
APPELLEE
V.
THE MECHANICSBURG CLUB,
APPELLANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
09-5652 CIVIL TERM
ORDER OF COURT
AND NOW, this R day of August, 2009, this appeal having been
taken to this court from an order of the Pennsylvania Liquor Control Board, pursuant to
27 P.S. Section 4-471(b), and the'only issue raised therein being an issue of law, IT IS
ORDERED that the record shall be forthwith lodged in the Office of Prothonotary,
appellant shall file a brief in this chambers not later than Monday, September 28, 2009,
appellee shall file a brief in this chambers not later than Friday, October 9, 2009, and
oral argument shall be conducted in Courtroom Number 2, at 11:00 a.m., Monday,
October 12, 2009.'
? Thomas M. Ballaron, Esquire
For Appellee
,/ P. Richard Wagner, Esquire
For Appellant
,::=/'yl :sal
In 1973, while running for District Attorney of Cumberland County, I was on one
occasion a guest of a member in The Mechanicsburg Club. The Club has each
year thereafter sent me a membership card. In the last thirty-six years, I have
never gone to The Mechanicsburg Club or attended any event sponsored by the
Club. From my perspective I am not a member so I feel no need to recuse.
However, I will recuse if either party files a motion.
FILED--O HCE
OF THE RTI Ho }NARY
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PENNSYLVANIA STATE POLICE,
BUREAU OF LIQUOR CONTROL
ENFORCEMENT,
APPELLEE
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
THE MECHANICSBURG CLUB,
APPELLANT
: 09-5652 CIVIL TERM
ORDER OF COURT
AND NOW, this 37 day of September, 2009, upon agreement of
counsel, the hearing is continued for 30 days. The matter to be rescheduled at the
request of any party.
Thomas M. Ballaron, Esquire
For Appellee
ZP. Richard Wagner, Esquire
For Appellant
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OF THE PPOTHI,N TARY
2009 SEP -9 PM I : 12
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
SU5?11-
NO.09-"iWCIVIL TERM
THE MECHANICSBURG CLUB,
Appellant
VS.
PENNSYLVANIA STATE POLICE,
BUREAU OF LIQUOR CONTROL ENFORCEMENT,
Appellee
"CERTIFICATION OF OFFICIAL RECORD"
Appeal from the Order of the Pennsylvania Liquor
Control Board, No. 06-2592 Entered on July 15, 2009
THOMAS M. BALLARON
Assistant Counsel
Pennsylvania State Police
3655 Vartan Way
Harrisburg, PA 17110
(717) 540-7411
Attorney I.D. #23370
.-,.
PENNSYLVANIA LIQUOR CONTROL BOARD
ATTESTATION/CERTIFICATION OF OFFICIAL RECORDS
TO: Thomas M. Ballaron Esquire
PENNSYLVANIA STATE POLICE
Bureau of Liquor Control Enforcement
ATTESTATION
I HEREBY ATTEST that I am the legal custodian (or deputy custodian) of the
official record designated below of which the attached is a true and correct copy.
Attestation from the Pennsylvania Liquor Control Board, Office of Administrative Law
Judge, Certification of Official Record for The Mechanicsburg Club, dated June 24, 2009.
Citation No. 06-2592 issued in the name of:
THE MECHANICSBURG CLUB
333 Heinz Street
Mechanicsburg, PA 17055-3211
and
Citation Hearing Notice dated July 18, 2007, for hearing on August 23, 2007, mailed to The
Mechanicsburg Club, by Certified Mail, Return Receipt Requested.
and
Return Receipt Card signed by The Mechanicsburg Club on July 20, 2007.
and
Testimony taken before the Office of Administrative Law Judge on August 23, 2007, at
Citation No. 06-2592, issued to The Mechanicsburg Club.
and
Citation Hearing Notice dated March 28, 2008, for hearing on May 13, 2008, mailed to The
Mechanicsburg Club, by Certified Mail, Return Receipt Requested.
and
0
Return Receipt Card signed by The Mechanicsburg Club on April 2, 2008.
and
Citation Hearing Notice dated June 20, 2008, for hearing on August 7, 2008, mailed to The
Mechanicsburg Club, by Certified Mail, Return Receipt Requested.
and
Return Receipt Card signed by The Mechanicsburg Club on June 21, 2008.
and
Hearing Cancellation Notice dated July 15, 2008, for hearing scheduled for August 7, 2008,
mailed to The Mechanicsburg Club, by Regular First Class Mail.
and
Citation Hearing Notice dated July 18, 2008, for hearing on September 3, 2008, mailed to
The Mechanicsburg Club, by Certified Mail, Return Receipt Requested.
and
Return Receipt Card signed by The Mechanicsburg Club on July 19, 2008.
and
Hearing Cancellation Notice dated August 8, 2008, for hearing scheduled for September 3,
2008, mailed to The Mechanicsburg Club, by Regular First Class Mail.
and
Citation Hearing Notice dated August 21, 2008, for hearing on October 8, 2008, mailed to
The Mechanicsburg Club, by Certified Mail, Return Receipt Requested.
and
Return Receipt Card signed by The Mechanicsburg Club on August 21, 2008.
and
Hearing Cancellation Notice dated September 17, 2008, for hearing scheduled for October 8,
2008, mailed to The Mechanicsburg Club, by Regular First Class Mail.
and
• •
Citation Hearing Notice dated October 2, 2008, for hearing on November 17, 2008, mailed to
The Mechanicsburg Club, by Certified Mail, Return Receipt Requested.
and
Return Receipt Card signed by The Mechanicsburg Club on October 3, 2008.
and
Testimony taken before the Office of Administrative Law Judge on November 17, 2008, at
Citation No. 06-2592, issued to The Mechanicsburg Club.
and
Letter dated November 25, 2008, from Andrew J. Lovette, Esquire, Assistant Counsel for
Pennsylvania State Police, Bureau of Liquor Control Enforcement, to serve as
Commonwealth's Brief.
and
Brief dated December 2, 2008, from P. Richard Wagner, Esquire, Counsel for The
Mechanicsburg Club.
and
Letter dated December 11, 2008, from P. Richard Wagner, Esquire, Counsel for The
Mechanicsburg Club.
and
Letter dated December 16, 2008, from P. Richard Wagner, Esquire, Counsel for The
Mechanicsburg Club, in response to Commonwealth's Brief.
and
Letter dated December 16, 2008, from Andrew J. Lovette, Esquire, Assistant Counsel for
Pennsylvania State Police, Bureau of Liquor Control Enforcement, in response to Licensee's
brief dated December 16, 2008, from P. Richard Wagner, Esquire.
and
Opinion issued by the Office of Administrative Law Judge dated May 18, 2009, and mailed
May 28, 2009.
and
Pennsylvania Liquor Control Board, Office of Administrative Law Judge citation docket.
and
Appeal of Administrative Law Judge Adjudication filed by P. Richard Wagner, Esquire,
Attorney for The Mechanicsburg Club, received June 17, 2009.
and
Notification of Appeal Letter dated June 17, 2009 from Pennsylvania Liquor Control Board,
Office of Chief Counsel, to Andrew J. Lovette, Esquire, Assistant Counsel for Pennsylvania
State Police, Bureau of Liquor Control Enforcement.
and
Pennsylvania Liquor Control Board's Opinion and Order dated July 15, 2009, including
Notice of Right to Appeal.
Date: September 24, 2009 1? '??0. 4.
LEGAL CUSTODIAN or DEP Y CUSTODIAN
CERTIFICATION
I CERTIFY THAT the officer whose name appears above is the official custodian or
deputy custodian of the attached record.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of
the Pennsylvania Liquor Control Board on the day and date specified.
Date: September 24, 2009
BO SECRETARY
LIQUOR CONTROL BOARD
0 •
PENi*SYLVANIA LIQUOR CONTROL BvARD
OFFICE OF ADMINISTRATIVE LAW JUDGE
ATTESTATION/ CERTIFICATION OF OFFICIAL RECORDS
TO: CHIEF COUNSEL
ATTESTATION
COMMONWEALTH OF PENNSYLVANIA, ss:
I HEREBY ATTEST that I am the legal custodian or deputy custodian of
the official record designated below of which the attached are true and correct
copies.
Citation No. 06-2592, issued in the name of:
THE MECHANICSBURG CLUB
333 HEINZ STREET
MECHANICSBURG, PA 17055-3211
Date: June 24, 2009
CERTIFICATION
Kathy M Schmick
Legal or Deputy Custodian
I CERTIFY THAT the person whose name appears above is the legal
custodian or deputy custodian of the attached record.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed
the seal of the Office of Administrative Law Judge on the day and date specified.
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Qate?June 24, 2009
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""3 J
Eileen S. Maunus
Chief Administrative Law Judge
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COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA STATE POLICE
BUREAU OF LIQUOR CONTROL CITATION NO. 06-2592
ENFORCEMENT
Incident No. W03-337434
V.
THE MECHANICSBURG CLUB
333 HEINZ ST.
MECHANICSBURG, PA 17055-3211
CUMBERLAND COUNTY
License First Issued: September 26, 1952
CITATION
LID - 23110
License No. CC-5354
WHEREAS, the Pennsylvania Liquor Control Board has issued to you the above-referenced
license and related permit(s) for the licensed term ending January 31, 2007; and
WHEREAS, the Bureau of Liquor Control Enforcement is in possession of facts which leads it
to believe that you have violated the Liquor Code, the Act of April 12, 1951, P. L. 90, as reenacted and
amended, 47 P.S. §1-101, et sec, and the rules and regulations adopted pursuant thereto, in the
following manner:
1. On August 28, September 4, 6, 2006, and divers other occasions in the past year, you,
by your servants, agents or employees,. possessed or operated gambling devices or paraphernalia or
permitted gambling or lotteries, poolselling and/or bookmaking on your licensed premises, in violation
of Section 471 of the Liquor Code, 47 P.S. §4-471 and Sections 5512 and/or 5513 and/or 5514 of the
Crimes Code, 18 Pa. C. S. §§5512 and/or 5513 and/off INV 9 E AON NZ
-r'TTO 0.038
•
The Mechanicsburg Club
Citation No. 06-2592
Page 2
•
2. On September 19, 2006, and divers other occasions in the past year, you, by your
servants, agents or employees, failed to maintain records in conformity with Title 40 of the
Pennsylvania Code, in violation of Sections 5.71 and 5.74 of the Liquor Control Board Regulations, 40
Pa. Code §§5.71 and 5.74.
3. During the periods July 31 through August 6, August 7 through 13, August 14 through
20 and August 21 through 27, 2006, you, by your servants, agents or employees, offered and/or
awarded more than $5,000.00 in cash or merchandise in any seven-day period, in violation of Section
471 of the Liquor Code, 47 P.S. §4-471 and Section 3f5(b) of the Local Option Small Games of
Chance Act, 10 P.S. §315(b).
4. On September 27, 2006, an divers other occasions in the past year, you, by your
servants, agents or employees, failed to maintain complete and truthful records covering the operation
of the licensed business for a period of two (2) years concerning the Local Option Small Games of
Chance Act, in violation of Sections 471 and 493(12) of the Liquor Code, 47 P.S. §§4-471 and 4-
493(12), Section 311 of the Local Option Small Games of Chance Act, 10 P.S. §311 and Section 901 of
the Department of Revenue Regulations, 61 Pa. Code §901.
NOW THEREFORE, you are hereby cited to appear before an Administrative Law Judge, on a
date to be scheduled by the Office of Administrative Law Judge, to. show cause why such license should
not be suspended or revoked or a fine imposed.
You have the right to retain legal counsel to represent you. If you do hire an attorney, he or
she must file a Notice of Appearance with the Office of Administrative Law Judge, Brandywine Plaza,
0
The Mechanicsburg Club
Citation No. 06-2592
Page 3
2221 Paxton Church Road, Harrisburg, Pennsylvania 17110-9661, and forward a copy to the Assistant
Counsel at the address listed below in accordance with 1 Pa. Code Subchapter C. Delay in obtaining
counsel is not reason for any continuance.
You have the right to waive your hearing. Such action is an admission to the charges. Should
you choose to waive, the proper form is enclosed for your convenience. Upon receipt, the Office of
Administrative Law Judge will process the forms and issue an adjudication.
BY ORDER
nforcement
Bureau of Liquor Contr ZZ
MAJ JOHN P. L Z
Director
Date: November 16, 2006
Andrew J. Lovette, Assistant Counsel
Pennsylvania State Police
Bureau of Liquor Control Enforcement
3655 Vartan Way
Harrisburg, PA 17110
Telephone: (717) 540-7413
0 •
COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA LIQUOR CONTROL BOARD
OFFICE OF ADMINISTRATIVE LAW JUDGE
BRANDYWINE PLAZA
2221 PAXTON CHURCH ROAD
HARRISBURG, PA 17110-9661
TEL (717)540-7419/FAX (717)657-4032
July 18, 2007
THE MECHANICSBURG CLUB
333 HEINZ ST
MECHANICSBURG PA 17055-3211
CITATION HEARING NOTICE
RE: Case No(s). 06-2592
LID 23110
Dear Licensee:
The hearing on the above citation case (s) to show cause why the license
issued to you by the Pennsylvania Liquor Control Board should not be
suspended or revoked, or a fine imposed, or both has been scheduled for
the time and place hereinafter set forth before Judge FLAHERTY.
DELAY IN OBTAINING LEGAL COUNSEL IS NOT REASON FOR CONTINUANCE.
If you intend to waive your right to the hearing in this citation
matter and if you file the waiver (s) with this office later than the
fifteenth (15th) day prior to the scheduled date contained in this
notice, the hearing may not be cancelled and you may receive minimal or
no consideration with regard to the penalty to be imposed.
DATE & TIME OF HEARING: August 23, 2007 at 09:30 AM
PLACE OF HEARING: Brandywine Plaza
2221 Paxton Church Road
Harrisburg PA 17110-9661
Very truly yours,
EILEEN S. MA S
Chief Administrative Law Judge
CERTIFIED MAIL - FIRST CLASS MAIL
Return Receipt Requested
P RICHARD WAGNER ESQ CC: Administrative Law Judge
2233 N FRONT ST PSP Counsel
HARRISBURG PA 17110 Reporting Agency
File
f ¦ Complete hems 1, 2, and 3. Also complete
item 4 if Restricted Delivery is desired.
¦ Print your name and- address on the reverse
so that we can return the card to you.
¦ Attach this card to the back of the mailpiece,
or on the front If space permits.
1. Article Addressed to:
Meck. PA
A. S re ?
26gent ?
Addressee
. Received by Pt?fnte ame) C ate of Delivery
00-07
D. Is delivery address different from item 1? Q Yes
If YES, enter delivery address below. RrNo
3. '13rpe I
Certified Mail ? Express Mail
? Registered 0 Retum Receipt for Merchandise
C] Insured Mail ? C.O.D.
4. Restrlded Delivery'? (Extra Fee) 17 Yes
a. Mcle Number
{Transfer fromsen 7007 0710 0004 7259 7185
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PS Form.3811, February 2004 _ _ org tum Receipt 1025ss-aMAW (
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COMMONWEALTH OF PENNSYLVANIA
OFFICE OF ADMINISTRATIVE LAW JUDGES
PENNSYLVANIA LIQUOR CONTROL BOARD
* * * * * * * * *
PENNSYLVANIA STATE POLICE,
BUREAU OF LIQUOR CONTROL
ENFORCEMENT
VS. * Citation No. 06-2592
THE MECHANICSBURG CLUB,
333 HEINZ STREET
MECHANICSBURG, PA 17055 * LID No. 23110
*
License No. CC-5354
*
* * * * * * * * *
Verbatim transcript of a hearing held at
2221 Paxton Church Road, Harrisburg
Pennsylvania, on Thursday,
August 23, 2007
9:30 a.m.
* * * * * * * * *
(BEFORE: DANIEL T. FLAHERTY,
Administrative Law Judge
(APPEARANCES:
JANDREW T. LOVETTE, ESQUIRE
3655 Vartan Way
Harrisburg, PA 17110
For the Bureau of Liquor Control Enforcement
P. RICHARD WAGNER, ESQUIRE
2233 North Front Street
Harrisburg, PA 17011
For the Licensee
REPORTER: DANIEL B. URIE
Any reproduction of this transcript is prohibited
without authorization by the certifying agency.
0 0
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License No. CC-5354
Citation No. 06-2592
INDEX TO WITNESSES
FOR THE
COMMONWEALTH
Officer Harry Royer
Charles W. Sechrist
FOR THE
DIRECT CROSS REDIRECT RECROSS
6 46 61 67
70
NONE OFFERED
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License No. CC-5354
Citation No. 06-2592
FOR THE
COMMONWEALTH
INDEX TO EXHIBITS
IDENTIFIED ADMITTED
C-1 Notice of violation letter 5 6
C-2 Receipt of violation letter 5 6
C-3 Citation 5 6
C-4 Certified 5 6
C-5 33 Football Pool 12 --
C-6 Monday night drawing 9/4/06 21 --
C-7 Monday night drawing 8/28/06 22 --
C-8 Drawing 8/28/06 25 --
C-9 Drawing 9/4/06 26 --
C-10 Tickets 28 --
C-11 Tickets 29 --
C-12 Club inspection 33 --
C-13 Minutes 36 --
C-14 Profit loss 38 --
C-15 Notes 44 FOR THE
NONE OFFERED
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P R O C E E D I N G S
JUDGE DANIEL T. FLAHERTY:
The matter before us is found at
citation and docket number 06-2592. Licensee is The
Mechanicsburg Club of Mechanicsburg, Cumberland
County. Counsel for the Bureau of Enforcement ready?
ATTORNEY LOVETTE:
Yes, Your Honor.
JUDGE:
Is Mr. Wagner ready?
ATTORNEY WAGNER:
Yes, he is. Thank you, Judge.
JUDGE:
At this time, I will entertain any
preliminary matters you may have.
ATTORNEY LOVETTE:
The Bureau has none, Your Honor. I
don't know if Mr. Wagner does.
ATTORNEY WAGNER:
I You.
proceed.
At this juncture, we have none. Thank
JUDGE:
Very well. Mr. Lovette, you may
ATTORNEY LOVETTE:
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Thank you, Your Honor. Initially, the
Bureau would submit as C-1, a copy of the Notice of
Violation letter that was sent to the Licensee in
this case, as a result of the conclusion of this
investigation, Your Honor. Second, Your Honor, C-2,
the Bureau would submit the receipt --- it's actually
a single exhibit having two items on it. One is the
receipt for certified mail by the postal form 3800,
and the second is the postal form 3811 signature card
that signifies receipt of the Notice of Violation.
Third, Your Honor, is C-3, the copy of
the actual citation in this case, citation 06-2592,
which was likewise sent to the Licensee. C-4, Your
Honor, again, it's one exhibit having two items on
it; postal form 3800, receipt for certified mail and
the postal form 3811, the signature card domestic
return receipt that was sent out and accompanied and
the citation then was returned to the Bureau.
And at this time, Your Honor, the Bureau
would move for the admission of C-1, the Notice of
Violation letter, C-2, the certified mail receipt and
signature card, and C-3, the citation, and C-4, the
accompanying certified mail documents for the
citation.
ATTORNEY WAGNER:
No objection.
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JUDGE:
C-1 and C-2, C-3, and C-4 are admitted
as notice documents.
ATTORNEY LOVETTE:
Thank you, Your Honor. At this time,
the Bureau would call its first witness, Mr. Royer.
HARRY B. ROYER, HAVING FIRST BEEN DULY SWORN,
TESTIFIED AS FOLLOWS:
Please be seated. Give us your full
name.
A. Harry B. Royer, R-O-Y-E-R.
Thank you. You may proceed, Mr.
ILovette.
ATTORNEY LOVETTE:
Thank you, Your Honor.
DIRECT EXAMINATION
BY ATTORNEY LOVETTE:
Q. Sir, are you employed?
A. Yes, I am.
Q. And how are you so employed?
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A. I'm employed as a liquor enforcement officer with
the Pennsylvania State Police Bureau of Liquor
Control Enforcement.
Q. And which office?
A. I'm currently assigned to the Harrisburg district
office.
Q. How long have you been a liquor enforcement
officer?
A. I'm in my 21st year.
Q. Officer Royer, did you have an occasion to
investigate the Licensee, The Mechanicsburg Club?
A. Yes, I did.
Q. And could you tell the Court, please, on what
date was your investigation assigned to you?
A. It was assigned to me on August 7th, 2006, and
completed on October 5th, 2006.
Q. Could you tell the Court what, if anything, took
place in your investigation on August the 10th, 2006?
A. August 10th was my first date of action in this
investigation and on that date, in the district
office, I reviewed the Licensee's licensing and
enforcement files to prepare for a routine inspection
of the club.
Q. Could you tell the Court, please, what took
place, if anything, in the course of your
investigation on Wednesday, September the 6th, 2006?
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A. On that date, I traveled to The Mechanicsburg
Club for the purpose of completing an inspection. I
entered the club at 10:35 a.m.
ATTORNEY WAGNER:
Excuse me, Your Honor, may I make an
inquiry? It appears as though, there's a ledge here,
is the officer reading from some material to refresh
his recollection?
A. That's correct. It's my investigative report,
sir.
ATTORNEY WAGNER:
May I reserve the right then to see that
when he's done please?
JUDGE:
You may.
ATTORNEY WAGNER:
Thank you.
BY ATTORNEY LOVETTE:
Q. Officer Royer, you said you arrived at the
premises at 10:35 a.m. Was the premises open at that
time?
A. Yes, it was.
Q. Did you gain entry to The Mechanicsburg Club?
A. Yes, I did. I followed an unidentified white
male patron who was also entering, proceeded into the
barroom area.
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Q. Did you. observe whether any employees were
present at that time?
A. Yes, there were; there were several. Six
different bartenders were on duty. I approached the
main bar counter area. I identified myself by
display of badge and credentials to Mr. Charles
Sechrist, one of the six on-duty bartenders.
Q. And what happened after you introduced yourself
to Mr. Sechrist?
A. I asked if I could please --- I stated the
purpose of my being there and I asked if I could ---
if there were any club officers present including the
manager that I would like to speak with.
Q. Did Mr. Sechrist do anything or say anything
after that?
A. The club president, John Renninger, appeared. He
was on the licensed premises at that time, as well as
the club treasurer, Charles Way, and Mr. Mike
Gallagher was the club's manager. He was summoned to
the premises.
Q. Who identified these individuals for you?
A. Mr. Sechrist retrieved them for me, Mr. Renninger
and Mr. Way. I identified myself to all three of the
club officers, stated my purpose to them.
Q. And could you tell the Court, please, what
happened after you met Mr. Renninger and Mr. Way and
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Mr. Gallagher?
A. Well, I informed them I was there to complete
what we call a club routine inspection and that
basically is an all encompassing inspection of the
club. We looked at financial records, administrative
records, membership records, checked that the
licensing permits are in order and active, a lot of
different things to do with club inspection,
including review of small game of chance record
keeping.
Q. Arid did you have an opportunity to begin a
routine inspection?
A. I did. I traveled to the club's office area with
Mr. Renninger and Mr. Way. At that location, I
reviewed the club's charter and bylaws. I also
obtained membership information insofar as classes of
membership and numbers of members.
Q. Did you do anything else in the course of your
routine inspection?
A. I did after I had completed the review of those
documents. I returned to the barroom area to conduct
a physical inspection of the bar counter area and I
initially approached Mr. Sechrist's work station. I
went behind the service side of the bar counter,
immediately took notice on the island behind the bar,
there was a cashbox on top of the countertop there.
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And I took a look inside that cashbox and immediately
became aware that there was an NFL football pool
contained within the cashbox.
Q. And just to back up, Officer Royer, this cashbox,
was it secured in any way?
A. No, it was not.
Q. And where was it located again?
A. On an island behind the bar counter.
Q. Was it out in the open or in a drawer?
A. It was in plain view on the countertop.
Q. And you said it was a cashbox. Could you
describe for the Court what it looked like?
A. A small box, maybe eight, ten inches in length
with a hinge on, a handle on top. I often see
cashboxes within licensed premises. That's what they
store currency in or record keeping.
JUDGE:
What was it made out of?
A. Metal.
BY ATTORNEY LOVETTE:
Q. I'm going to show you, Officer Royer, what the
Bureau would have marked as C-5, and it's a multi-
page document. Officer, could you identify for the
Court what that is? I'm sorry, take each page at a
time.
A. The first page would be, all these items were
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located within the cashbox. I found these items
inside the cashbox. The first item here is a payment
sheet for individuals and groups, pairs of
participants who had entered the NFL football pool in
2006/2007. It was titled a 33 Football Pool. And
this is a payment sheet denoting who had paid to play
in the pool, the first page.
Q. Turning to the second page, could you describe
that for the Court please?
A. The second page is the pool itself, 2006/2007, 33
Football Pool it's titled. On the left column going
down, it's 41 different individuals had signed up.
Again, some were individual participants, others were
in pairs. And on the right side column are the names
of the 32 NFL football teams.
Q. And then turning to the remaining pages, could
you tell the Court what they are?
A. I also found inside the cashbox, 11 small manila
envelopes. They all contained some type of
handwriting, some denoting $170 with individuals'
names or nicknames, also handwritten on the outside
of them. I checked all 11 envelopes and I did locate
$170 in each of these 11 envelopes.
Q. Could you tell the Court is there any similarity
between the three separate items that are represented
by this exhibit?
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A. Any similarity?
Q. Between the items.
A. These were all part of the NFL football pool.
Q. Officer Royer, how long again have you been a
liquor enforcement officer?
A. I'm in my 21st year.
Q. And in the course of your career, 21 years
career, have you been involved in any gambling
investigations?
A. Many.
Q. Could you come up with a number, estimate?
A. Hundreds, most likely well over, in the hundreds.
Q. And are you familiar with the items that are
contained in this exhibit?
A. I am. I've seen this type of pool before, yes.
Q. And after you located this football pool in the
cashbox, what did you do then?
A. I discussed what I found in the cashbox with Mr.
Sechrist and he acknowledged that all these items
were, in fact, an NFL football pool.
ATTORNEY WAGNER:
Excuse me. To the extent that I believe
Mr. Sechrist is here, if he's going to testify, I
don't have a problem, but if he's not going to
testify, then this is going to be hearsay.
A. Your Honor, I'd point out that Mr. Sechrist is
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present.
JUDGE:
That's all right. Go ahead, Mr.
ILovette.
ATTORNEY LOVETTE:
I would respond, Your Honor, that Mr.
Wagner is correct. It is hearsay what Officer Royer
is going to say, to take the out of court statements
of Mr. Sechrist. However, Mr. Sechrist was employed
at the time Officer Royer spoke to him as a bartender
of the licensed premises. Therefore, any statements
he made to Officer Royer, concerning a football pool,
come in within an exception under 803.25(4), I
believe it is, the subsection, statements by parties
according to their age.
Your objection is overruled.
ATTORNEY WAGNER:
I understand, but there's a nexus
between his employment and this pool, and that has to
be established we believe. And if Mr. Sechrist is
going to testify, then obviously it's okay, but if he
doesn't testify, then we have a problem with that
nexus coming in and me not being able to cross
examine on the hearsay.
ATTORNEY LOVETTE:
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I feel, Your Honor, I'll be able to ---
I'll inquire and I'll be able to establish a nexus.
JUDGE:
Very well.
ATTORNEY WAGNER:
Thank you, sir.
BY ATTORNEY LOVETTE:
Q. Just to back up a little bit, Officer. Why was
it you wanted to speak with Mr. Sechrist?
A. In regards to what I found in the cashbox which
was within feet of his cash register at his work
station.
Q. And this cashbox, how many cashboxes did you
observe on the premises; do you recall?
A. I became very involved in just a few matters that
day. I was there for several hours; five, six hours.
I really didn't get to do much more physical
inspection than just at his work station.
Q. Did the other bartenders have cashboxes?
A. I believe it's safe to say they did. I believe
so.
Q. Was this cashbox in Mr. Sechrist's area?
A. Yes, it was, in plain view on the countertop.
Q. And you observed Mr. Sechrist in that area?
A. Yes, I did.
Q. And when you spoke to Mr. Sechrist, where did you
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interview him?
A. We traveled again back to the club's office area.
I explained to Mr. Sechrist I wished to interview him
in person with regards to the contents of the
cashbox, also to obtain a written statement with his
permission. And that was accomplished.
Q. Could you tell the Court please, did Mr. Sechrist
explain anything about the football pool?
A. Yes, he did.
Q. Could you tell the Court what that was?
A. He stated that the pool actually belonged to one
of the club members and he was assisting that club
member, and I'd point out he identified Steven
Sabochick (phonetic). Mr. Sabochick is present here
also, Your Honor, today, in the blue shirt directly
behind Mr. Lovette. Mr. Sechrist stated he was
assisting Mr. Sabochick in operating this pool. And
by assisting, he was accepting payments for persons
wishing to participate in the pool.
For each individual or pair of participants, the
fee would have been $170, for the entire 17-week NFL
season, $10 per week consideration. That was his
involvement, is what he told me, in this pool.
Q. Did Mr. Sechrist explain the operation of the
pool?
A. I'm sorry?
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IQ. Did Mr. Sechrist explain the operation of the
pool to you?
A. Yes, he did.
Q. And what was it he told you?
A. He explained that there were, again, 41
individuals or pairs of players in the pool. It's
titled the 33 Football Pool, and what that signifies
is any of the NFL teams, the 32 teams, who in their
weekly games would score exactly 33 points, that
would constitute the winner of the weekly pool. It
would run from one week to the next during the NFL
season.
The weekly payout would be $320. In the event
none of the 32 NFL teams had scored exactly 33 points
to designate a winner for this pool, that pot of $320
would carry over to the following week in which it
would become $640 at that point available.
Q. When you were speaking to Mr. Sechrist, were you
alone?
A. No, we were not. Club manager Michael Gallagher
did set in on the entire interview and written
statement. As a witness, he also did sign the non-
custodial written statement I obtained from Mr.
Sechrist.
Q. And how long was Mr. Gallagher present during the
interview --- excuse me. How long was Mr. Gallagher
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present during your interview with Mr. Sechrist?
A. For the entire length of the interview.
Q. And did Mr. Gallagher interrupt or dispute
anything that Mr. Sechrist was telling you about the
operation of the pool on the premises?
A. Not that I recall.
ATTORNEY WAGNER:
I object to the characterization of
dispute. Mr. Gallagher is not here --- the inference
trying to be created is attached to the admission and
so to the extent that Mr. Gallagher didn't say
anything, we don't think that's admissible and ask
that it be stricken.
JUDGE:
Mr. Lovette, do you have any response?
ATTORNEY LOVETTE:
I'll withdraw the question.
ATTORNEY WAGNER:
Thank you.
JUDGE:
Very well.
BY ATTORNEY LOVETTE:
Q. And did you discuss --- at the completion of your
interview with Mr. Sechrist, did you discuss the pool
with Mr. Gallagher or anybody else?
A. Yes, I did. I discussed it with Mr. Sechrist, as
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well as Mr. Renninger, Mr. Way and Mr. Gallagher.
Q. And what was it they told you?
A. Well, again, we just went over the information
Mr. Sechrist provided. He described the entire
operation of this pool, how it worked. I did make
Mr. Renninger, Mr. Way, and Mr. Gallagher aware of
what was found in the cashbox and all three denied
having knowledge that this pool was being operated on
the licensed premises.
Q. Did Mr. Renninger explain anything to you
regarding the pool?
A. Yes, he did. And he actually took me out into
the barroom area again. More or less gave me a tour
of the entire area; it's a very large barroom area.
He specifically pointed out postings that they had
throughout the barroom area warning persons not to be
engaging in bookmaking or selling football spread
tickets. I requested from Mr. Renninger that I be
given a copy of one of these to be made an attachment
to my report, which he did.
Q. And did Mr. Renninger explain to you any other
steps that the club had taken to combat pool selling
or gambling?
A. He merely stated that this had been a problem in
past years, past football seasons. And this was the
only means that I recall he pointed out of the club's
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effort to combat this problem, was the postings.
Q. And in the course of your routine after speaking
with Mr. Renninger regarding the football pool, did
you inspect any other areas of the premises?
A. Yes, I did.
Q. And what were they?
A. On the far side from where the office area is
located where you enter into the barroom, the far
side of the room, there is a number of bulletin
boards there, cork bulletin boards. I approached
them and I observed that there were different tickets
posted on that bulletin board.
One thing I located there was the results of the
club's weekly drawing book. There was a
recordkeeping sheet there which contained the results
of a September 4th, 2006 weekly drawing. And I
immediately became aware by looking at this record
that for that date, there were, in fact, seven
different $500 pots available for that weekly
drawing. There was also-an eighth pot which was a
partial.
Q. And were you able to determine if there was any
i
consideration for participating in these weekly
drawings?
A. Yes, there was a $1.00 consideration for the
drawing.
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Q. And I'm going to show you, Officer Royer, what
the Bureau would have marked as C-6. Could you
identify that for the Court, please?
A. Your Honor, C-6 is a photocopy I requested, then
obtained photocopies that date from either Mr.
Renninger or Mr. Gallagher of several of what we're
about to speak of here and this would be the Monday
night weekly drawing book. At the top, Mechanicsburg
Club Monday night drawing tracking, next line down
number of $500 drawings; they have seven. The date
of September 4th, 2006, and the amount of the partial
pot, the eighth pot that was available was $383.
Going down on the list, it lists the member club
number, membership number. Next column is whether or
not each individual member had signed the book. Next
is the member's name, next is a column denoting a
$500 pot or a winner of a $500 pot. Next is the
winner of a $250 pot and next wins a $100
consolation. And if you take note for this
particular record of 9/4/06, it does denote one $500
pot winner on the third pot. Also, it denotes one
$250 winner on the sixth pot.
And I immediately became aware, from my knowledge
of the Small Games Act, that this did constitute a
violation of the Act. There were multiple drawings
taking place on the Monday evening. There can only
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be one drawing per day and there were multiple pots
being offered there with multiple drawings.
Q. I'm going to show you, Officer Royer, what the
Bureau would have marked as Commonwealth C-7. Could
you identify that for the Court please?
A. This would be another record of the weekly
drawing for the prior week drawn on August 28th,
2006. And again, it's the same format for
recordkeeping. It shows that there were eight pots
available on that particular date and also a ninth
partial pot which was worth $70. Going down in the
recordkeeping here, it shows there were two, $250
winners and one $500 winner, and there was a winner
of the partial pot, and a notation that apparently
half of that $70 had been paid out, $35.
This is on C-6 now?
ATTORNEY LOVETTE:
C-7, Your Honor. I believe C-6 is a
Monday night drawing tracking dated 9/4/06.
Where do they show you a partial winner;
is that over in the left hand margin?
A. Right here, Your Honor, (indicating).
JUDGE:
This is on C ---?
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ATTORNEY LOVETTE:
C-7, Your Honor. Monday night drawing
track dated in the upper right hand corner
And there's four stars on that sheet. I
see. All right. Thank you.
A. The winners are denoted by stars in the columns
and how much the amounts would have been that they
were awarded.
BY ATTORNEY LOVETTE:
Q. And those two exhibits are the items that were
posted on the bulletin board?
A. Yes, they are.
Q. And did you discuss those items with anybody?
A. I did. I discussed that with Mr. Renninger and
Mr. Gallagher and explained the one drawing per day
regulation.
Q. Who provided you with the copies of these drawing
records?
A. I think from what I recall, Mr. Gallagher
actually made the copies. Again, I toured the
barroom area with both Mr. Renninger and Mr.
Gallagher at different times. I think Mr. Gallagher
made most of the photocopies from my recollection.
Q. And did you observe anything else on the bulletin
board, Officer Royer?
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A. Yes, I did. My attention was drawn to another
posting on the bulletin board which was titled a
Loser's Drawing; $100 loser holder drawing for the
date of August 28th, 2006. And basically, Your
Honor, the way these operate is the various pull tab
games that are being sold in the club, a member
purchases a ticket that is not a winning ticket.
These loser's drawings are created that any different
pull tab tickets that are losers at the member's
discretion if they want to participate in the loser's
drawing, they'll put their member number, name on the
ticket and throw it into another jar, whatever, for a
chance at another drawing. There is a consideration
involved with that, participating in that loser's
drawing, and it's not an authorized game under the
Small Games Act. They cannot create their own small
games. They're taking a lawful game and creating
their own game, basically is what a loser's drawing
is.
Q. I'll show you, Officer Royer, what the Bureau had
marked as C-8. Could you identify that for the Court
please?
A. Again, it's a recordkeeping for these loser's
drawings that they were holding titled The
Mechanicsburg Club; $100 loser holder drawing, next
line down, number of $100 drawings. Apparently,
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that's what's offered in each drawing is a $100
payout. There were four on this date of August 28th,
2006. There was also a partial, a fifth and a
partial pot available for $23 apparently; it's what's
filled in.
On the left hand column here, they had the actual
winning ticket from a prior pull tab game stapled
fast to the card. Next would the club member's
number followed by the third column, the club
member's name, who had won this particular pot.
Q. And was that the item you observed posted in the
club?
A. Yes, it was. And again, I believe Mr. Gallagher
made this photocopy at my request.
Q. I'm going to show you another exhibit, Officer
Royer. C-9, Your Honor, the Bureau would like to
have
it identified as. And could you identify that for
the
Court please?
A. This would be another posting also for the
loser's drawing for the date of --- apparently, these
are drawn on --- weekly also. This would be for the
date of September 4th, 2006. It denotes there were
two $100 drawings in effect that date, as well as a
partial, a third and a partial pot available for $84.
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And again, it shows winning tickets. These were
attached to the card for these three different
drawings, as well as the winning club number, member
number, and the club member's name to the right of
that. Again, it's an unauthorized game.
Q. And have you observed these drawings in the
course of other investigations?
A. Yes, I have.
Q. Could you tell the Court, please, did you see
anything else in the course of your inspection?
A. Yes, I did. Also, on the bulletin board, they
had 50/50 drawings which were being held weekly on
the licensed premises. They had posted winners
results on the 50/50 drawing. This 50/50 drawing is
held by the sale of double coupon tickets. The large
rolls with double coupons, they're torn off and then
the two --- they're sequentially numbered tickets on
the roll. The ticket is sold to a participant,
customarily tickets are torn in half; they bear the
same number. One is given to the player and the
other is put into the pot for the drawing.
Posted on the bulletin board were the results of
a 50/50 drawing which was held on September 4th,
2006. There were two different $500 pots drawn on
for that date.
Q. I'm going to show you, Officer Royer, what the
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Bureau would have marked as C-10. Could you identify
that for the Court please?
A. This is what I'm referring to 50/50, double
coupon ticket winners worth the two pots for $500.
There was also a partial pot available that date for
$54. Club member numbers for the winners are also
found in handwriting next to these tickets. And
again, this is a photocopy of the actual tickets
which were attached to a card, and the card was
attached to the bulletin board. Again, I believe Mr.
Gallagher most likely made the photocopy of this for
me at my request.
Q. And Officer Royer, you said that there's some
notation on the card to which these tickets were
affixed; is that notations that you made?
A. No, these were on the card on which these tickets
were attached to. Winner number one, $500. Winner
number two, $500. Winner number three, $54 partial.
To the right of the tickets, written on the card,
was the club member's number, the winning member's
number, club number.
How about the single tickets to the
right? There's a line of tickets without
corresponding matching tickets.
A. I'm not sure about that, Your Honor, and I can't
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read the inscriptions to the left of that single row
of tickets. I'm not sure about that, Your Honor.
BY ATTORNEY LOVETTE:
Q. Did you locate anything else in the course of
your inspection, Officer Royer?
A. Yes, I did. I observed another drawing that was
being held for Monday night merchandise raffle is
what it was titled. And this, again, was with the
use of sequentially numbered tickets, the double
coupon tickets. For the date of September 4th, 2006,
they were drawing for the award of a water cooler and
refrigerator.
Q. And I'll show you, Officer Royer, what the Bureau
would have marked as C-11. Could you identify that
for the Court please?
A. This is what I just referred to, the Monday night
raffle item is titled on the card, which the original
tickets were attached to. The date of September 4th,
2006 is also on that card, and below it, it denotes
water cooler/fridge with a winning ticket number
464728 for winner member number 978. And there's a
single ticket there with a different number and they
have next to that, backup. And I think that might
explain the prior attachment also, Your Honor.
Apparently, they drew for a backup winner. I'm not
sure if the rules of these 50/50 drawings were that
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the member must be present or not. That's possibly
why they drew a backup number.
Q. Did you observe anything else on the bulletin
board?
A. That was about it for that date.
Q. Did you bring these items to anybody's attention?
A. Yes, I did. I discussed everything I found on
the bulletin board with Renninger and Gallagher. I
educated them on how these particular drawings were
being conducted not in accordance with the Small
Games of Chance Act.
Q. And did you seize the drawings, make copies of
them or ---?
A. Again, at my request, I believe Mr. Gallagher was
the individual who photocopied all of these items
from the bulletin board.
Q. Did you seize the football pool?
A. That was seized, yes, as well as $170 in each of
the 11 envelopes, which totaled $1,870 U.S. currency
was seized as evidence, as well as all items, these
particular items that were found in the cash box were
seized as evidence. They were labeled and stored in
the Harrisburg district office that same date.
JUDGE:
The items in the cashbox were C-5; is
that correct?
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ATTORNEY LOVETTE:
C-5, yes, Your Honor, it's that
multi-page exhibit with the handwritten first page,
the second page being 33 Football Pool and the
remaining pages being photocopies of 11 envelopes.
Very well.
BY ATTORNEY LOVETTE:
Q. Did you do anything in the course of this routine
inspection on this date?
A. Yes, I did. Again, it took up most of the day,
five, six hours I was in the club. I just scratched
the surface basically on the club routine inspection,
routine inspection report. I knew I had to come back
another day. I made out what we call a club request
for records, itemizing records that I would need to
review on a return visit. And I made arrangements
with Mr. Renninger and Mr. Gallagher to return on
another date.
Q. Would you tell the Court, please, you said that
you had left a records request with the gentlemen at
the club. Could you tell the Court, please, what the
records were that you requested for your return
visit?
A. Well, that would have included all financial
records as required by Title 40, to include itemized
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cash income and expense records, liquor and beer
purchase invoices for the past two years, operating
invoices to include small games of chance. And by
that, we mean not only sales invoices from their
vendor who they're purchasing their games from, but
also income and expense records related to small
games of chance, also bank statements, cancelled
checks, cash register tapes, payroll records.
As far as administrative recordkeeping, I
requested to review their minutes of club meeting
book, and I also requested a listing of current club
officers with full name, address, telephone number.
I also requested small games recordkeeping be
made available to me to include their annual records,
operating week records, itemized records per game,
and records concerning use of proceeds. I also
requested since they are a catering club, I requested
catering records. And again, arrangements were made
to meet with Mr. Renninger and Mr. Gallagher on a
later date.
Q. I'm going to show you what the Bureau had marked
as C-12, Your Honor. Would you identify that for the
Court please?
A. This is the club inspection request for records
that I left with Mr. Renninger after obtaining his
signature on September 6th, 2006, for the initial
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date of my inspection.
Q. Did Mr. Renninger sign that in your presence?
A. Yes, he did. We copied the book.
Q. Could you tell the Court, please, what took place
in your investigation on September the 20th, 2006, if
anything?
A. On Wednesday, September 20th, in Bureau
headquarters, I met with Mr. Steven Sabochick, and
again, Your Honor, Mr. Sabochick is present here
today. He's seated behind Mr. Lovette in the blue
shirt. I met with him in Bureau headquarters to
conduct an in-person interview with him, obtain a
written statement relating to the 33 Football Pool
that was found and seized on September 6th in the
licensed club.
Q. Could you tell the Court, please, what took place
in your investigation on Wednesday, September the
27th, 2006?
A. That was the date that I returned to The
Mechanicsburg Club to meet with Mr. Renninger and Mr.
Gallagher to complete the club routine inspection.
Q. Was the premises open and operating at that time?
A. I believe they were, however, I was ushered into
the club's banquet hall which was vacant that
particular date. The purpose of my visit was
primarily to review the records.
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Q. And who all was present during the course of this
visit?
A. Club president, John Renninger, club manager,
Mike Gallagher. I did speak with Mr. Sabochick
briefly to obtain biographical information from him.
He was also present that day. I'm sorry, Mr.
Charles Sechrist, the bartender. I made a mistake.
I got my names mixed up there.
Q. Was he present in the building?
A. Yes, he was.
JUDGE:
So you met with Mr. Sabochick on that
date?
A. Mr. Sechrist, I'm sorry.
JUDGE:
Sechrist?
A. Yeah, I think I said Sabochick originally, but it
was Mr. Sechrist, the bartender. And again, Mr.
Sechrist was also present.
BY ATTORNEY LOVETTE:
Q. In the course of your return visit on September
27th, you had requested records. Did you have an
opportunity to review the records that you had
requested?
A. Some records that I requested.
Q. And what records were they?
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A. Specifically, I was provided with minutes of club
meetings for The Mechanicsburg Club. I reviewed them
in detail.
Q. Did the club provide you any other records that
you had requested?
A. That was primarily it, the minutes of meetings.
I was provided with another record.
Q. In regard to --- I'm sorry, I interrupted your
answer, so I'll back up. In regards to the
membership records of the club, what exactly did you
review?
A. What I was particularly interested in, due to a
prior Bureau investigation, was whether corrections
had been made to certain items in the minutes of
meetings and I found that they had begun entering a
list of new member applicants' names only in the
minutes. They were attached to the minutes.
However, dates of application did not accompany the
new member applicant's information. They had been
warned in a previous Bureau investigation for this
regulatory requirement in Title 40, and I found that
they were still in violation in regards to that.
Q. I want to show you, Officer Royer, what the
Bureau had marked as C-13. Can you identify that and
describe it for the Court please?
A. These are minutes of the monthly meeting of The
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Mechanicsburg Club for a meeting held September 19th,
2006.
Q. And who provided --- how did you gain access to
this record?
A. It was provided to me by Mr. Renninger and Mr.
Gallagher. And at my request, these photocopies were
made by, I believe Mr. Gallagher once again.
Q. And you had testified that they weren't noting
the dates of application of the members. Was there
any other item of interest in the meeting minutes?
A. Also of interest was whether or not balloting was
taking place, also if they were maintaining an
inactive membership file all in accordance with Title
40, liquor board rules and regulations.
Q. Were they?
A. Yes, they were.
Q. Were they maintaining an inactive membership
file?
A. Yes, they were.
Q. Were they noting in the records whether balloting
was taking place?
A. They demonstrated how that was accomplished, yes.
Q. Did you discuss the club's sales of small games
of chance in the course of this visit?
A. Yes, I did.
Q. Were you provided any opportunity to review the
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club's records regarding small games of chance?
A. I was provided an opportunity to review their
financial record keeping, which there was some
mention of small games of chance sales, income, and
expenditures on small games operations.
Q. Was there any independent form of small games of
chance recordkeeping?
A. What I found, what was provided to me, were they
were maintaining winning tickets only; tickets for
individual prizes awarded in excess of $100. The
Bureau does not consider tickets themselves as
recordkeeping. There should be an independent record
kept of that in particular, any individual prizes
awarded in excess of $100, as well as there should be
annual recordkeeping on gross income, expenditures,
net income, total payouts annually. These also apply
to monthly and weekly recordkeeping, which is
required by the Small Games Act. Also, they must
demonstrate how their use of proceeds, any proceeds
from the sale of small games has been used.
Q. And did Mr. Gallagher or Mr. Renninger provide
you with any of that record?
A. No, they did not. They merely had, again,
winning tickets of prizes awarded in excess of $100.
Q. Did they provide you with any record showing any
small games of chance activity?
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A. I asked them if they could show me anything to
that documentary evidence showing their operation of
small of games of chance on income and expenditures.
At that point, Mr. Gallagher retrieved the profit
loss statement for the club, which I reviewed in
detail.
Q. 'I'm going to show you what, Your Honor, the
Bureau would have marked as C-14, I believe is where
we're at. Could you identify that for the Court
please?
A. Yes, this would be the profit loss statement of
The Mechanicsburg Club for the period of September
2005 through August 2006, which I believe would be
the fiscal year for the club. I was told by Mr.
Gallagher this is prepared by the club's accountant
and in my review on the first page
Q. I'm sorry to interrupt, but just to back up a
moment. Did Mr. Gallagher make any representation to
you regarding the accuracy of this?
A. He stated this is
ATTORNEY WAGNER:
Objection. He's not here to testify.
ATTORNEY LOVETTE:
. Again, Your Honor, this is a statement
being made by the Licensee's manager regarding
something certainly within the scope of his duties.
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The management of the club involves recordkeeping, as
well as the in flow and out flow of cash from
JUDGE:
Objection overruled.
A. He stated this is what the club's financial
record was.
BY ATTORNEY LOVETTE:
Q. And did you have a chance to review this record?
A. Yes, I did.
Q. Could you tell the Court, please, does it note
anywhere in it any small games of chance activity?
A. Yes, it does.
Q. Could you describe for the Court where that's at?
A. Well, on page one towards the bottom, all of
these different categories are of income unless
denoted by an I, and the bottom segment of the first
page is titled I dash entertainment and in
parentheses SGC, standing for small games of chance
income. And then it itemizes different forms of
small games of chance income.
Q. I'm just going to ask you to refer to that
section on the first page, Officer Royer, that's
entitled I dash entertainment. Could you describe
what that first line is after that heading of I dash
entertainment?
A. It's states I dash beef feed dash 50/50.
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Q. And does that entry note anything else?
A. That $796 apparently had been made, income, on
that particular event.
Q. Now, did Mr. Gallagher or Mr. Renninger or
anybody associated with the club offer you any
records to substantiate that ---
A. No, they did not.
Q. --- income number?
A. No, they did not.
Q. And the entry after that, could you describe that
for the Court please?
A. It states I dash beef feed dash tips.
Q. And are you familiar with tips?
A. I believe that tips would be the sale of pull tab
games. They're commonly referred to as tip jar
tickets.
Q. And does that entry detail anything else?
A. $659 income on that particular event.
Q. Did the club or any of its representatives
provide you with any record detailing that income?
A. No, they did not.
Q. And the next entry after that, could you describe
that for the Court please?
A. It states I dash bingo regular SGC, commonly
small games of chance tickets.
Q. Does that line have anything else?
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A. It does. It denotes income of $104,282.
Q. And were you provided with any records by the
club supporting that income number?
A. No, I was not.
Q. Were you provided with any records supporting any
of the other 32 income numbers in that section?
A. No, I was not, not independent recordkeeping.
Q. And was that the only record, the profit and loss
statement, the Exhibit C-14, was that the only record
provided to you that had anything to do with small
games of chance?
A. Yes, it was.
Q. Could you tell the Court, please, what else, if
anything, that took place in the course of your visit
to the premises on that date?
A. Well, I had a discussion with Mr. Gallagher and
Mr. Renninger in regards to small games of chance and
their lack of recordkeeping. I explained to Mr.
Gallagher that I was obligated to identify what their
operating week payouts were on small. games of chance.
Through the course of our discussion, Mr. Gallagher
did state, he made comments to the effect that he
would be able to somehow identify operating week
total payouts on small games of chance.
Q. Did he identify to you how he would be able to do
that?
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A. No, he did not.
Q. Were you able to determine what the Licensee's,
what the club's operating week was?
A. Their fiscal week I believe was Monday to Sunday;
it's their seven-day business week.
Q. Did you provide anything to the club at this
time?
A. Yes, I did. We had, at that point in time, what
we referred to as the Bureau's small games of chance
packet. That contains certain sections of the Small
Games Act relating to prohibited activities, also
penalties for violations of the Act whenever that was
done in detail.
Also part of the packet is what we call our
recommended recordkeeping sheets that the Bureau has
created. They're designed to, for a club licensee to
be able to capture all information that's required as
recordkeeping under the Small Games of Chance Act. I
went through all the schedules, one through five in
detail, giving them a detailed explanation as to what
proper recordkeeping is.
Q. Officer Royer, does the Bureau make licensees use
these forms?
A. No. We provide them customarily within a club
inspection in effort to educate them and basically
make life easier for them.
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Q. And could you tell the Court what time you left
the premises that date?
A. About 1:35 a.m. --- I'm sorry, p.m. 1:35 p.m.
Q. And could you tell the Court, please, what
happened in the course of your investigation on
October the 5th, 2006?
A. On October 5th, I was notified, I was in the
district office that date and I was notified by
personnel in Bureau headquarters to the front of the
building that a gentleman by the name of Gallagher
had appeared at the front desk and there was
something for me up there.
I proceeded up to the front of Bureau
headquarters and I obtained a yellow, a single sheet
from a legal pad with notations on and signed by M.
Gallagher and he had left his work and cell phone
telephone numbers on that.
Q. Did you see Mr. Gallagher at that time?
A. No, I did not. Arrangements had been made for
him to appear in Bureau headquarters. Apparently,
Mr. Gallagher felt he didn't need to meet with me in
person; he merely dropped this sheet off at my
request.
Q. I'm going to show you what the Bureau would ask
to be marked as C-15, Your Honor. Would you identify
that and describe it for the Court please?
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A. This is a photocopy of the yellow legal pad sheet
that was dropped off in Bureau headquarters by Mr.
Gallagher on the date of October 5th.
Q. Directing your attention to the bottom of that --
- well, actually, it's the middle of that, the bottom
of the handwriting, could you identify who signed
that please?
A. Michael Gallagher, M. Gallagher is written on
there.
Q. And Officer Royer, are you familiar with Mr.
Gallagher's signature?
A. Yes, I am.
Q. How are you familiar with his signature?
A. From my initial date of inspection, again, I
already testified to this, Mr. Gallagher was present
as a witness in my interview and statement taking of
Mr. Charles Sechrist, the club's bartender. He did
sign Mr. Sechrist's witness statement form as having
been a witness. That signature does coincide with
the signature on the sheet.
Q. Did Mr. Gallagher sign that statement of
Mr. Sechrist? Did Mr. Gallagher sign that in your
presence?
A. Yes, he did.
Q. Still directing your attention to C-15, Officer
Royer, could you explain to the Court, there seems to
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be two different types of handwriting on this
document; could you explain that for the Court
please?
A. Yes. To the far right, the dates that are
written down and to the right of that average and a
figure, my initials are underneath that, as well as
the date of 10/5/06. That is all my handwriting.
There was some question in my mind as to the dates as
you can see from the left column down, week one, week
two, week three, week four, next to that date is a
date.
The date of 8/1/06 would have been, I believe a
Tuesday, which would not coincide with the club's
fiscal week which runs Monday to Sunday. Therefore,
I contacted Mr. Gallagher by telephone later this
same date of October 5th. He did verify for me to
having dropped this off in Bureau headquarters. This
is the original sheet by the way, Your Honor, that
had been dropped off.
He did verify that he, in fact, had dropped off
this yellow sheet in the Bureau headquarters and I
confirmed with him that the date of 8/1/06 actually
should have been 7/31/06. And that's why I placed to
the right in my own handwriting, I placed for that
week one would have actually been July 31st to August
6th, 2006, for their operating week.
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The figures found in the middle column, Your
Honor, would be what Mr. Gallagher provided as
operating week total payouts on small games of
chance.
Q. And could you tell the Court, please, what the
date ranges are and the amounts?
A. For the first week of July 31st to August 6th,
2006, the total sum provided by Mr. Gallagher is
$61,770. For the next operating week of August 7th
through August 13th, 2006, the figure listed is
$56,454. For the next operating week of August 14th,
2006 through August 20th, 2006, the figure Mr.
Gallagher provided is $58,529. And for the fourth
and final consecutive operating week of August 21st,
2006 through August 27th, 2006, he provided the
figure of $68,925.
Q. And what is it that those figures represent?
A. Total payouts on small games of chance, and he
does have at the top, Mr. Royer, per your request.
This is what I requested he provide.
ATTORNEY LOVETTE:
I have no further questions, Your Honor.
JUDGE:
Cross Examination?
ATTORNEY WAGNER:
Thank you very much.
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CROSS EXAMINATION
BY ATTORNEY WAGNER:
Q. Mr. Royer, you're employed by the Liquor Control
Board Enforcement Bureau?
A. No, that's incorrect.
Q. Who are you employed by?
A. Pennsylvania State Police.
Q. Are you a member of the Pennsylvania State
Police?
A. No, I'm not.
Q. Have you ever been a member of the Pennsylvania
State Police?
A. No.
When you say member, what are you
talking about? Are you talking about a trooper?
BY ATTORNEY WAGNER:
Q. A trooper, a corporal, holding a rank with the
Pennsylvania State Police?
A. No, sir.
Q. Have you ever, in your training to become a
member of the Bureau of Liquor Enforcement, did you
go through any kind of law enforcement education that
a member of the Pennsylvania State Police does?
A. Yes, I did.
Q. What did you do? Did you have Act 120 training?
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A. No, I did not. I was in the last class of
enforcement officers hired by the Liquor Control
Board back in 1986, November 2nd, 1986. Roughly ten
months later, the legislature created the Bureau of
Liquor Control Enforcement within the Pennsylvania
State Police. Enforcement officer-s were given the
choice of continued employment, they could remain
with the liquor board as a licensing analyst or if
they were interested in a law enforcement career,
they could become liquor enforcement officers in the
newly created bureau within the state police. The
majority of us chose that profession.
0. So you were a liquor enforcement officer?
A. That's my current title, yes..
Q. And you are not a member of a municipal police
department or a sheriff or deputy sheriff of any
county?
A. No.
Q. Did you, in performance of your duties and in
anticipation of today, review a memorandum that was
prepared by counsel for the Bureau and a file of
record May 3rd of 2007?
A. Pre hearing?
Q. Yes.
A. No, I do not recall.
Q. Did you supply any information to Counsel for
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purposes of preparing this pre-hearing memorandum?
A. My understanding of how those are prepared is
from our investigative reports. I guess, yes, that
would be yes.
Q. Okay. So your understanding is your
investigative reports are turned over to Counsel;
Counsel then prepares these pre-hearing memorandums
for submission to this Court?
JUDGE:
And to you.
BY ATTORNEY WAGNER:
Q. And me, yes. Is that correct?
A. That's correct.
Q. And did you specifically, in this case, review
this pre-hearing memorandum to determine its accuracy
or authenticity?
A. I don't know that --- I may have. I don't recall
that specifically if I
ATTORNEY WAGNER:
Could I have permission to show him this
please?
JUDGE:
Sure.
ATTORNEY WAGNER:
Thank you.
BY ATTORNEY WAGNER:
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Q. And I've taken the liberty of underlining four
different places on a three-page area. If you would
look at those please, I took the liberty of
underlining routine inspection. Does it appear four
times in this memorandum that your inspection of the
premises at The Mechanicsburg Club was part of a
routine inspection?
A. Well, in liquor law enforcement, that's part of
the jargon for an open investigation where the
officer proceeds onto the licensed premises and not
in an undercover capacity, but in an open capacity,
they identify themselves to whoever is in charge,
state the purpose of why they're there. And it's
more or less
--- well, it is a regulatory inspection. They're
commonly referred to as routine inspections.
Q. And the point is that when that was used by
counsel for the Bureau, it denoted this routine
inspection that you just go in and check out records
among other things?
A. They are very thorough in detailed inspections.
Q. I understand.
A. We pride ourselves on that.
Q. Approach to have it back please. Thank you.
Now, sir, you, on several different occasions,
indicated that you provided packets of information to
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the manager of the club and the president of the
club, which you've said were Bureau prepared forms
that you suggest that small games of chance licensees
should use to make life easier for them. When you
said that and used the phrase Bureau, to what Bureau
were you referring?
A. The Bureau of Liquor Control Enforcement.
Q. Now, we all know that small games of chance fall
under Department of Revenue; is that correct?
A. The promulgation of the rules and regulations do,
yes.
Q. Okay. And in the rules and regulations and the
legislative authority under the small games of
chance, are there any forms that the rules and
regulations indicate should be used by licensed
holders of small games of chance?
A. No, not to my knowledge.
Q. The forms that you are suggesting were not
maintained in the course of business are forms that
the Bureau of Liquor Enforcement have prepared;
correct?
A. In conjunction with the Department of Revenue.
Q. But you conceive there's no regulations from the
Department of Revenue authorizing these forms; is
there?
A. Legal counsel
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Q. I'm asking you if you know from the regulations.
A. To my understanding, liquor enforcement officers
are currently written into the new rules and
regulations as having enforcement authority over the
Small Games of Chance Act.
Q. I understand what you're saying, sir, please.
Does the small games of chance regulations authorized
and promulgated by the Department of Revenue contain
specific records that licensees are to maintain if
they have a small games of chance license?
A. They do.
Q. And where is that in the regulations?
A. Are you speaking of recordkeeping forms?
Q. Yes.
A. I can't quote the exact sections, but I have
often read through them.
Q. And you also said that --- when you said the
Bureau produced forms, you've told us that that was
the Bureau of Liquor Enforcement?
JUDGE:
I think we have to make clear here the
dichotomy between the records that the regulations
require a licensee to keep and the forms on which
they're kept, ---
ATTORNEY WAGNER:
Right.
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JUDGE:
--- those are two different
ATTORNEY WAGNER:
Absolutely. And that's where I'm going
with this.
BY ATTORNEY WAGNER:
Q. I'll clear it up this way. Do the Department of
Revenue rules and regulations have specific forms
that are required to be prepared by and completed by
a licensee under the small games of chance?
A. Not to my knowledge.
Q. The Bureau of Liquor Control Enforcement, does
the liquor code have any rules and regulations that
prescribe forms for persons to maintain under small
games of chance?
A. Specific forms?
Q. Yes.
A. No.
Q. All right. So when you told the Administrative
Law Judge that the forms that the Bureau provided,
those are advisory, if you will, to help a licensee,
they're not required by either liquor or Department
of Revenue to be maintained; are they, the specific
forms?
A. They're not officially authorized forms; that's
correct.
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Q. Now, when you discovered this box that you
referred to that was in an island near Mr. Sechrist's
work station, was the box open or closed?
A. That I don't specifically recall. It was not
locked, though.
Q. But it was closed?
A. I believe so.
Q. And in believing it was closed, did you ask him
permission to open the box?
A. I don't recall.
Q. Okay. Do you have anything in your records, in
your reports indicating you got permission from Mr.
Sechrist to open this box?
A. I have the right of inspection in any licensed
premises.
Answer the question.
BY ATTORNEY WAGNER:
Q. I understand what you're saying. I need the
question answered. Did you ask his permission to
open that box?
A. From what I recollect and this is a year ago, Mr.
Sechrist was within a few feet of me observing what I
was doing.
Q. All right. I understand that. Did you ask his
permission?
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A. I don't specifically recall if I had an exchange
of words with him. I don't recall.
Q. And I'm assuming since it was a routine
inspection to which we've referred, there was no kind
of warrant that you had from any magisterial district
or any court of common pleas?
A. No.
Q. And after you determined that there were these
items which you indicated were, you believe small
games of chance, or excuse me, bookmaking and pool
selling, did you contact the district attorney of the
county for prosecution?
A. At a given point in time I did, yes; not that
particular day.
Q. Was that declined or enforced by the district
attorney?
A. Your question seems a bit vague.
Q. I'm sorry. Did the district attorney indicate
that, in fact, he was going to prosecute this
bookmaking, pool making ---
A. Pool selling.
Q. --- pool selling incident?
A. They declined to prosecute.
Q. And as a result,,the money that you seized is
where?
A. Currently held in evidence.
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Q By?
A. The Pennsylvania State Police Bureau of Liquor
Control Enforcement in the Harrisburg district office
evidence room.
Q. Now, your Bureau is under the auspices of the
state police statutorily; correct?
A. Correct.
Q. And you were created when, if you know?
A. June or July of 1987.
Q. And do we know when the small games of chance
legislation was passed, if you know?
A. That was also in 187. I'm not sure about the
month.
Q. Do you know which came first, whether you went
under the Bureau --- whether the Bureau went under
the state police, then the small games of chance or
vice versa?
A. Interesting question, but no, I don't know.
Q. Now, sir, you've indicated that you have
documents indicating various weekly drawings and
various daily drawings. Do you have documents to
show the amount of money paid by the various members
to participate in a weekly drawing or a daily
drawing?
A. I was told it was a $1.00 consideration, the
weekly drawing.
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Q. Did you determine from the records of membership
how many members there are in this club?
A. Yes, I did.
Q. How many members are there?
A. Well, back on September 6th of 2006, there would
have been 3,057 active members, 43 honorary members,
and 200 life members.
Q. And in looking at these drawings for which you've
provided exhibits, the word on top of the two
exhibits says partial; one of them I believe has $383
next to it, the other one has $70 next to it. What
does the partial mean?
A. It simply signifies that they haven't reached the
$500 mark for that; it's the remaining money which
has gone into a partial pot.
Q. And could it be the remaining money, the source
of
which is the dollar consideration by the various
members?
A. Not to my understanding.
Q. All right. The amount of money that's being paid
out versus the amount of money being taken in, does
it equal?
A. That it was a hundred percent payout?
Q. Yes.
A. I'm unsure as to that.
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Q. And it is an exception to both daily drawings and
weekly drawings that if a hundred percent of the
payout is made of the money brought in, that doesn't
fall within the Department of Revenue guidelines of
small games of chance as a violation; does it?
A. Yes, it does.
What I don't want you to do is have a.
dialogue about what the law is. You can argue to me
what the law is.
ATTORNEY WAGNER:
I understand.
JUDGE:
But you two are not going to argue
ATTORNEY WAGNER:
I understand. I respect that.
point I want to make is I believe his Direct
testimony was it is a violation of the law.
to the extent the Court recognizes that's the
determination of this Honorable Court
That's exactly right.
ATTORNEY WAGNER:
Th•e only
And so
That's fine. Then I will not pursue
that line of questioning.
JUDGE:
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That's for me to decide.
ATTORNEY WAGNER:
I understand. Thank you, sir.
BY ATTORNEY WAGNER:
Q. Now, when you talked with Mr. Sechrist and I'm
terrible at last names, I'm going to call him Steve,
I believe you identified, did either or both of them
indicate that this pool selling and bookmaking 33
Football Pool they had going was done independent of
the club? They told you that; didn't they?
A. Yes, they did.
Q. Okay. So when you talked to each of the two of
them about this information that you found, they both
told you this had nothing to do with The
Mechanicsburg Club; didn't they?
A. There's interesting details that go along with
this.
Q. They told you it was not part of the club; did
they not, sir?
A. Yeah, it was a hundred percent payout of the
pool, actually, I was told. There was no one
profiting from the sale of this pool.
Q. And they both expressly said this has nothing do
with the club; did they not, sir?
A. They said it was for the enjoyment of persons
wishing to participate.
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Q. And what you found was a box that was closed on
the club premises and that was the extent until you
looked in?
A. (Indicates yes).
JUDGE:
Your answer has got to be out loud.
A. Yes.
JUDGE:
Thank you.
BY ATTORNEY WAGNER:
Q. And prior to that, you had no indication that Mr.
Sechrist or anybody else had this 33 pool going; did
you?
A. No.
Q. And when Mr. Gallagher dropped off this C-15 that
talks about per your request payouts, can you tell me
if you ever investigated to determine whether or not
the amount of the payouts were equal to the amount of
the intake, in other words, a hundred percent payouts
of money brought in?
A. No.
Q. So you don't know as we sit here today whether
when you talk about these prizes that are awarded,
whether they represent actual prizes or whether they
represent the payout of all the money brought in; do
you?
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A. That was the understanding of what he was going
to supply.
ATTORNEY WAGNER:
Your Honor, I have no further questions.
Thank you very much.
JUDGE:
Redirect?
ATTORNEY LOVETTE:
Just very briefly, Your Honor.
REDIRECT EXAMINATION
BY ATTORNEY LOVETTE:
Q. I guess we'll start with locks. The cashbox,
Officer Royer, did you observe that being utilized in
any way during your visit?
A. I can't say yes or no to that. I don't know.
You don't remember?
A. I don't remember that, that it was in use.
BY ATTORNEY LOVETTE:
Q. Was it located in a public area of the club?
A. No, it was behind the serving side of the bar
counter on the island, the fixed island behind the
bar counter in plain view.
Q. And who did you observe in this area of the
premises?
A. Mr. Charles Sechrist, the on-duty bartender.
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Q. What category of individuals did you see in that
area?
A. There were patrons on the customer side of the
bar counter in that area. Mr. Sechrist was actively
tending to them, that I did observe.
Q. And in regard to the pool itself, Mr. Wagner
asked you if in the course of interviewing Mr.
Sabochick and Mr. Sechrist they had given you any
information about the personal nature of the football
pool. In the course of talking to Mr. Sechrist, did
he indicate what action took place in regard to the
pool on the premises? What did Mr. Sechrist do in
regard to the pool?
A. He was accepting payments from persons who wished
to participate in the pool and he was accepting
payments on the licensed premises from these
individuals. Whether or not that was openly or not,
I can't say.
Q. And the routine inspection, what I'll term the
routine inspection itself, Officer Royer, you didn't
have a warrant?
A. No, I did not.
Q. Do you customarily have warrants to conduct
routine inspections?
A. No, we do not.
Q. Do you customarily need to get warrants to
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conduct routine inspections?
JUDGE
Now we're starting to get into process
of law.
ATTORNEY LOVETTE:
I withdraw the question, Your Honor.
JUDGE:
He's not an expert with respect to that.
BY ATTORNEY LOVETTE:
Q. With regard to the recordkeeping forms Mr. Wagner
questioned you about on Cross, were you involved in
the formulation of those forms?
A. Yes, I was.
Q. Could you just very briefly explain to the Court
what that process was?
A. In 2005, the Bureau command staff saw fit to
create a committee composed of a small number of
liquor enforcement officers who have knowledge in
conducting small games of chance auditing and who
have prior gambling auditing experience. I was
placed on that committee. We were accompanied by
Attorney John Brinner from the Pennsylvania
Department of Revenue. He specifically deals in small
games of chance for the Department of Revenue. He
also served on that committee.
What the committee was, was an initiative to
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educate the liquor enforcement officer community
statewide within the Bureau on how to successfully
complete small games of chance audits. The
information packet which we customarily give to club.
licensees was an offshoot of that committee and that
was put out in the training to all the liquor
enforcement officers statewide, which I took part in;
I was one of the trainers.
Again, these are merely recommended recordkeeping
sheets. They capture all information that's required
by the act itself and also the rules and regulations
of the Department of Revenue. Obviously, we're
trying to help the eligible organizations keep proper
records that they are not official documents that
have a number from the state police or any other
state government office. They're merely something
that we created as a measure of let's say crime
prevention..
Q. Thank you, Officer Royer. In regard to training
then too, you stated that you have undergone some
form of training as part of your liquor enforcement
officer career?
A. Yes, I have.
Q. Initially?
A. Yes, I did initially have training, I think, but
within the first year of the creation of the Bureau,
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the state police had what they termed transitional
training for enforcement officers who came from the
Liquor Control Board. I participated or completed an
eight-week course in the Northeast training center.
I'm not sure if that was 1987 or 1988. All liquor
enforcement officers were assimilated into that
training, the state police training.
Q. And this training you underwent, Officer Royer,
was it similar to what state troopers undergo?
A. In many respects, yes.
Q. And have you taken part in subsequent trainings
in the course of your career?
A. Often, yes.
Q. Could you give the Court an idea of what types of
trainings you've undergone on say a yearly basis?
A. Yeah, on an annual basis, we do have what's
called a mandatory in-service training period for a
number of days at different locations. All liquor
enforcement officers, as well as all members of the
department, meaning troopers, on up the line in rank,
participate in that mandatory in-service training in
the same classroom.
Q. And Officer Royer, could you tell the Court what
have been the subject of some of your other trainings
that you've undergone in your career? .
A. I have had training outside-of the department,
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most recently financial investigations sponsored by
McLaughlin in Bucks County, Pennsylvania.
Q. Have you had any gambling training?
A. Often, yes, within the Bureau mostly.
Q. Criminal law training?
A. Yes, I do hold a Bachelor of Science degree in
criminal justice also.
Q. And as part of your employment in your position
as a liquor enforcement officer, do you have arrest
powers?
A. Yes, I do.
Q. In general or specific?
A. Specific arrest powers which are enumerated in
section 211 of the Pennsylvania Liquor Code.
ATTORNEY LOVETTE:
I have no further questions, Your Honor.
JUDGE:
Recross?
ATTORNEY WAGNER:
Just briefly.
RECROSS EXAMINATION
BY ATTORNEY WAGNER:
Q. You will agree with me, sir, that those arrest
powers do not include small games of chance; will you
not?
A. No.
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ATTORNEY WAGNER:
May I approach?
JUDGE:
You may. Here we go again.
ATTORNEY WAGNER:
I'll accept the premise. I just want to
show him the section of the act that was amended.
JUDGE:
Which act?
ATTORNEY WAGNER:
I'm sorry, the enforcement capability of
the Liquor Control Board enforcement officer.
JUDGE:
Which is section what?
BY ATTORNEY WAGNER:
Q. Section 211 he just mentioned. Is there any
mention in there of small games of chance, sir?
A. Not specifically.
Q. Thank you.
A. However, small games of chance can come under
section 5513, that's customarily what we charge a
licensee administratively with, is that they
possessed or operated gambling devices or
paraphernalia.
Q. I understand that, sir.
A. Conducted laundries or pool selling or bookmaking
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on the licensed premises.
Q. I understand. Thank you. And I respect your
background and your extensive years of service. You
were a member of a committee to promulgate some
forms. Did that committee ever take its products, the
forms, and go to either the liquor board or to the
Department of Revenue and say please adopt these
forms in some sort of required regulation?
A. To my knowledge, that hasn't been done at this
point, but again, Attorney John Brinner did
participate in the creation of the forms.
Q. I understand that, sir. Thank you.
ATTORNEY WAGNER:
I have no further questions.
ATTORNEY LOVETTE:
Nothing on Re-redirect, Your Honor.
That's good because I don't even know if
I'd allow it. I have one question for you, Officer.
At one point we talked about you asked for records
and they showed you winning tickets; do you remember
saying that?
A. Right. That's correct.
JUDGE:
When they showed you the winning
tickets, did they have the names of the winners in
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conjunction with those tickets?
A. They were either member numbers or names were
actually on the winning tickets and they had them in
bundles more or less with rubber bands, you know,
bundled together.
JUDGE:
How about addresses or anything like
that?
A. No, and that's where they would not be in
conformity with the requirements.
JUDGE:
Any questions as a result of my
question, Mr. Lovette?
ATTORNEY LOVETTE:
No, Your Honor.
Very well. Thank you, Officer Royer,
you may step down.
A. You're welcome.
ATTORNEY LOVETTE:
The Bureau, Your Honor, would call Mr.
Sechrist to the stand. Your Honor, the Bureau would
call him as though on Cross Examination.
Very well.
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CHARLES SECHRIST, HAVING FIRST BEEN DULY SWORN,
TESTIFIED AS FOLLOWS:
JUDGE:
Please be seated, sir, and give us your
full name.
A. Charles William Sechrist.
JUDGE:
Spell your last name please.
A. S-E-C-H-R-I-S-T.
JUDGE:
Thank you. You may proceed, Mr.
ILovette.
ATTORNEY LOVETTE:
Thank you, Your Honor.
CROSS EXAMINATION
BY ATTORNEY LOVETTE:
Q. Are you employed, sir?
A. Yes.
Q. And how are you so employed?
A. Bartender at The Mechanicsburg Club.
Q. Currently?
A. Yes.
Q. How long have you been employed in that capacity
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as a bartender?
A. About ten years.
Q. And you'd agree, sir, wouldn't you, that you were
working on September 6th, 2006, when Officer Royer
made his first visit to The Mechanicsburg Club?
A. Your Honor, under the advice of Counsel, I'd like
to enact my rights under the Fifth Amendment and
refuse to answer.
Well, now, I haven't had this come up in
a long time. Do you feel that you're subject to
criminal prosecution as a result of what went on
here; is that what's going on here?
A. Yes.
JUDGE:
Mr. Lovette?
ATTORNEY LOVETTE:
Your Honor, the Bureau will stipulate to
the fact that Officer Royer did not bring criminal
charges against Mr. Sechrist regarding selling the
football pool. He does not intend to bring any
criminal charges regarding the football pool. In
fact, I contacted the Cumberland County District
Attorney's office who declined prosecution regarding
the football pool in question.
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Well, the problem becomes whether or not
he still has a problem of self-incrimination. And
that's only true if he is a hundred percent
protected, either because he has pleaded guilty, been
tried, found guilty, and paid his fine or there is
some kind of immunity that has actually been granted.
And I don't think that's the case here.
ATTORNEY LOVETTE:
There has not been formal immunity
granted, no, sir.
So that he is still technically
susceptible to prosecution for what could go on here.
And a result of that, he is making a valid claim of
his Fifth Amendment rights. Now, what do you want`to
do about that?
ATTORNEY LOVETTE:
Your Honor, the Bureau would request
that at the close of today's hearing, we keep the
record open so that the Bureau may pursue and obtain
a formal grant of immunity regarding Mr. Sechrist and
the events surrounding the football pool on the
premises. I don't anticipate there being any
difficulty in obtaining that since no one has any
intention whatsoever of bringing any charges.
JUDGE:
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Do you have anything to say, Mr. Wagner?
ATTORNEY WAGNER:
I just want the record to be completely
clear. You sought independent counsel other than
myself?
A. I did.
ATTORNEY WAGNER:
Thank you.
JUDGE:
Very well. Let's get some idea of what
we've got he re. How many more witnesses do you have?
ATTORNEY LOVETTE:
Just one, Your Honor.
JUDGE:
And who is that?
ATTORNEY LOVETTE:
Mr. Sabochick.
JUDGE:
Who may do the same thing.
ATTORNEY LOVETTE:
That is not outside the realm of
possibility, Judge.
JUDGE:
And you, sir, how many witnesses do you
have?
ATTORNEY WAGNER:
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At this juncture, I don't anticipate
any, to be truthful.
JUDGE:
All right. I am going to have to honor
his request not to testify. He's making a valid
claim of Fifth Amendment immunity here under the
present circumstances. Now, I will give you a
reasonable amount of time to get the immunity, if you
can, and to report back to me that you have it so
that we can reset the date to continue this hearing.
And rather than wait until then to let
you know, I'm going to expect briefs out of both of
you on a number of issues here. One of those issues
from your standpoint, sir, is the Chapter 901 of the
Department of Revenue regulations dealing with small
games of chance is a hundred pages long. And in your
citation, all you've said is 901. Well, there are
many, many sections of 901, and I'd like to know
which section you are relying on with respect to each
of the violations which you claim have occurred here
so that I don't have to go through the entire Chapter
901 to find whatever section of those regulations you
mean.
And from your standpoint, sir, you
raised a question in your pre-hearing memorandum
concerning authority of the state police to make
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these investigations and I would like to see
ATTORNEY WAGNER:
Very well.
JUDGE:
And then I will give you both an
opportunity to rebut the other's briefs, but my
inclination at this point, and I'll make a final
ruling on it when we finish this hearing, is that you
both submit your briefs simultaneously, because you
know what the issues are. And I will give you both a
chance to rebut each other's briefs simultaneously.
With that, my inclination at this point,
unless anybody has anything else they want to put
into this record at this time, is to continue this
hearing and it will be called after we hear from Mr.
Lovette within --- Mr. Lovette, you ought to be able
to get that done within how long?
ATTORNEY LOVETTE:
I would not anticipate --- I'll be
honest, Your Honor. I've never actually been
involved in obtaining that, but I would hope it would
not take very long at all to contact
JUDGE:
Suppose we give you 15 days to get ---?
ATTORNEY LOVETTE:
I would hope, Your Honor, that that
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would be plenty of time, and if it turns out that I
run into some roadblock bureaucratically, I will
advise Your Honor and Mr. Wagner of that fact as soon
as it arises.
JUDGE:
Although advising Mr. Wagner the fruits
or lack thereof of your inquiries and then at that
point we'll have a scheduling or set the date for the
continuation of this hearing.
ATTORNEY WAGNER:
Very well.
ATTORNEY LOVETTE:
And Your Honor, I'm sorry, I was taking
notes so I think I may be asking not a stupid
question, but one you've already answered. You will
want briefs in regard to the, just the 901 question
and the Bureau's authority vis-a-vis the small games
of chance?
JUDGE:
That's what I see. You can put anything
.else in you want because the other side is going to
get a chance to rebut it.
ATTORNEY LOVETTE:
And you'll want those, Your Honor, from
close of the next hearing?
JUDGE:
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Yeah, we'll set the times at the close
of the next, but I just thought I'd give you a heads
up now. With that, it is 11:12. This hearing will
be continued to a date which will be established
after Mr. Lovette has had an opportunity to contact
the district attorney's office. Thank you.
ATTORNEY WAGNER:
Judge, thank you very much.
ATTORNEY LOVETTE:
Thank you, Your Honor.
HEARING CONCLUDED AT 11:12 A.M.
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C E R T I F I C A T E
I HEREBY CERTIFY THAT THE FOREGOING PROCEEDING
WAS REPORTED STENOGRAPHICALLY BY ME AND THEREAFTER
REDUCED TO TYPEWRITING, AND THAT THIS TRANSCRIPT IS A
TRUE AND ACCURATE RECORD THEREOF.
SARGENT'S COURT REPORTING SERVICE, INC.
Daniel B. Urie
COURT REPORTER
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COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA LIQUOR CONTROL BOARD
OFFICE OF ADMINISTRATIVE LAW JUDGE
BRANDYWINE PLAZA
2221 PAXTON CHURCH ROAD
HARRISBURG, PA 17110-9661
TEL (717)540-7419/FAX (717)657-4032
March 28, 2008
THE MECHANICSBURG CLUB
333 HEINZ ST
MECHANICSBURG PA 17055-3211
CITATION HEARING NOTICE
RE: Case No(s). 06-2592 07-1537
LID 23110
Dear Licensee:
The hearing on the above citation case(s) to show cause why the license
issued to you by the Pennsylvania Liquor Control Board should not be
suspended or revoked, or a fine imposed, or both has been scheduled for
the time and place hereinafter set forth before Judge FLAHERTY.
DELAY IN OBTAINING LEGAL COUNSEL IS NOT REASON FOR CONTINUANCE.
If you intend to waive your right to the hearing in this citation
matter and if you file the waiver(s) with this office later than the
fifteenth (15th) day prior to the scheduled date contained in this
notice, the hearing may not be cancelled and you may receive minimal or
no consideration with regard to the penalty to be imposed.
DATE & TIME OF HEARING: May 13, 2008 at 09:30 AM
PLACE OF HEARING: Brandywine Plaza
2221 Paxton Church Road
Harrisburg PA 17110-9661
Very truly yours,
EILEEN S. MAZ
Chief Administrative Law Judge
CERTIFIED MAIL -
Return Receipt Requested
FIRST CLASS MAIL
P RICHARD WAGNER ESQ
2233 N FRONT ST
HARRISBURG PA 17110
CC: Administrative Law Judge
PSP Counsel
Reporting Agency
File
m toomprere r[ems i; z, anal-;5. A18O cvmpleie
item d if Restricted Delivery is desired.
¦ Print your name And address on the, reverse
so that we can return the card to you.
¦ Attach this,card to the back of the mailpiece,
or on the front if space oermits.
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USPS
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1
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item 4 it Restricted Delivery is desired.
¦ Print your name and address on the reverse
so that we can return the card to you.
H Attach this card to the back of the mailplece,
or on the front if space permits.
1. Article Addressed to:
The rn ecbcn I (:;Sb-q f l ub
333 J?.?n-z.
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2. Article Number
(Tmnsfer from servke labs)
PS Form 3811, February 2004
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D. Is delivery address different from item 1?; 0 Yes
if YES, eater delivery address below: 1 IN No
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4. - Restricted Delivery? (Edna Fee} ? Yes
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Domestic Return Receipt
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COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA LIQUOR CONTROL BOARD
OFFICE OF ADMINISTRATIVE LAW JUDGE
BRANDYWINE PLAZA
2221 PAXTON CHURCH ROAD
HARRISBURG, PA 17110-9661
TEL (717) 540-5040/FAX (717) 657-4032
July 15, 2008
THE MECHANICSBURG CLUB
333 HEINZ ST
MECHANICSBURG PA 17055-3211
HEARING CANCELLATION NOTICE
RE: CASE NO(S). 06-2592
LID 23110
Dear Licensee:
The hearing on th above case number (s) to show cause why the license
issued to you by he Pennsylvania Liquor Control Board should not be
suspended or revoked, or a fine imposed, or both which was scheduled
for August 07, 20108 at 09:30 AM in Harrisburg has been
cancelled and will be rescheduled at a later date. You will be
notified in writi g as soon as your case can be rescheduled.
If you have not done so, please submit your availability for the next 90 days.
If your intention is to waive your right to the hearing in this
citation matter, lease file the waiver(s) with this office before
another hearing i scheduled. ruly ,? t, / O yours,
EILEEN S. MAUNUS
Chief Administra
P RICHARD WAGNER ESC
2233 N FRONT ST
HARRISBURG PA 17110
Law Judge
cc: Administrative Law Judge
PSP Counsel
File
•
COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA LIQUOR CONTROL BOARD
OFFICE OF ADMINISTRATIVE LAW JUDGE
BRANDYWINE PLAZA
2221 PAXTON CHURCH ROAD
HARRISBURG, PA 17110-9661
TEL (717)540-7419/FAX (717)657-4032
July 18, 2008
THE MECHANICSBURG CLUB
333 HEINZ ST
MECHANICSBURG PA 17055-3211
CITATION HEARING NOTICE
RE: Case No(s). 6-259 07-1537
LID 2311,0
Dear Licensee:
•
The hearing on the above citation case (s) to show cause why the license
issued to you by the Pennsylvania Liquor Control Board should not be
suspended or revoked, or a fine imposed, or both has been scheduled for
the time and place hereinafter set forth before Judge FLAHERTY.
DELAY IN OBTAINING LEGAL COUNSEL IS NOT REASON FOR CONTINUANCE.
if you intend to waive your right to the hearing in this citation
matter and if you file the waiver (s) with this office later than the
fifteenth (15th) day prior-to the scheduled date contained in this
notice, the hearing may not be cancelled and you may receive minimal or
no consideration with regard to the penalty to be imposed.
DATE & TIME OF HEARING: September 03, 2008 at 09:30 AM
PLACE OF HEARING: Brandywine Plaza
2221 Paxton Church Road
Harrisburg PA 17110-9661
Very truly yours,
EILEEN S. MAUNUS
Chief Administrative Law Judge
CERTIFIED MAIL - FIRST CLASS MAIL
Return Receipt Requested
P RICHARD WAGNER ESQ
2233 N FRONT ST
HARRISBURG PA 17110
cc: Administrative Law Judge
PSP Counsel
Reporting Agency
File
¦ Complete items 1, 2, and 3. Also complete
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UNITED STATES POSTAL SERVICE
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Postage & Fees Paid
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COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA LIQUOR CONTROL BOARD
OFFICE OF ADMINISTRATIVE LAW JUDGE
BRANDYWINE PLAZA
2221 PAXTON CHURCH ROAD
HARRISBURG, PA 17110-9661
TEL (717.) 540-5040/FAX (717) 657-4032
August 08, 2008
THE MECHANICSBURG CLUB
333 HEINZ ST
MECHANICSBURG PA 17055.3211
HEARING CANCELLATION NOTICE
RE: CASE NO(S). 06-2592
LID 23110
Dear Licensee:
I
The hearing on the above case number(s) to show cause why the license
issued to you by the Pennsylvania Liquor Control Board should not be
suspended or revoked, or a fine imposed, or both which was scheduled.
for September 03, 2008 at 09:30 AM in Harrisburg has been
cancelled and will be rescheduled at a_later date. You will be
notified in writing as soon as your case can be rescheduled.
If you have not done so, please submit your availability for the next 90 days.
If your intention is to waive your right to the hearing in this
citation matter, please file the waiver(s) with this office before
another hearing is scheduled..
VeW,truly
EILEEN S. MAUNUS
Chief Administrative Law Judge
P RICHARD WAGNER ESQ CC: Administrative Law Judge
2233 N FRONT ST PSP Counsel
HARRISBURG PA 17110
File
•
COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA LIQUOR CONTROL BOARD
OFFICE OF ADMINISTRATIVE LAW JUDGE
BRANDYWINE PLAZA
2221 PAXTON CHURCH ROAD
HARRISBURG, PA 17110-9661
TEL (717)540-7419/FAX (717)657-4032
August 21, 2008
THE MECHANICSBURG CLUB
333 HEINZ ST
MECHANICSBURG PA 17055-3211
CITATION-HEARING NOTICE
RE: Case N F1,L) - Q6-2-?-1537
LID 23110
Dear Licensee:
The hearing on the above citation case(s) to show cause why the license
issued to you by the Pennsylvania Liquor Control Board should not be
suspended or revoked, or a fine imposed, or both has been scheduled for
the time and place hereinafter set forth before Judge FLAHERTY.
DELAY IN OBTAINING LEGAL COUNSEL IS NOT REASON FOR CONTINUANCE.
If you intend to waive your right to the hearing in this citation
matter and if you file the waiver(s) with this office later than the
fifteenth (15th) day prior to the scheduled date contained in this
notice, the hearing may not be cancelled and you may receive minimal or
no consideration with regard to the penalty to be imposed.
DATE & TIME OF HEARING: October 08, 2008 at 10:30 AM
PLACE OF HEARING:
y truly yours,
Brandywine Plaza
2221 Paxton Church Road
Harrisburg PA 17110-9661
EILEEN S. MAUNUS
Chief Administrative Law Judge
CERTIFIED MAIL -
Return Receipt Requested
P RICHARD WAGNER ESQ
2233 N FRONT ST
HARRISBURG PA 17110
FIRST CLASS MAIL
CC: Administrative Law Judge
PSP Counsel
Reporting Agency
File
¦ Complete Items 1, 2, and 3. Also complete
Item 4 N Restricted Delivery is desired.
! a Print your name and address on the reverse
so that we can return the card to you.
x Attach this card to the back of the mailpiece,
or on the front itV Pace permits.
' 1. Article Addressed too
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2. Article Number 700$ 1330 0001 0420 ??511--?
{transfer from service label)
i PS Form 3811, February 2004 Domesttc Return Receipt 102595-02-M-1540
•
UNITED STATES POSTAL SERVICE
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Postage & Fees Paid
USPS
Permit No. G-10
in this box •
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LAW WIJGE
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0
COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA LIQUOR CONTROL BOARD
OFFICE OF ADMINISTRATIVE LAW JUDGE
BRANDYWINE PLAZA
2221 PAXTON CHURCH ROAD
HARRISBURG, PA 17110-9661
TEL (717) 540-5040/FAX (717) 657-4032
September 17, 2008
THE MECHANICSBURG CLUB
333 HEINZ STREET
MECHANICSBURG, PA 17055-3211
HEARING CANCELLATION NOTICE
RE: Case No.: 06-259 7-1537
License No. - 354
LID No.: 23110
Dear Licensee:
The hearing on the above citation cases to show cause why the license issued to you by the
Pennsylvania Liquor Control Board should not be suspended or revoked, or fine imposed, or
both which was scheduled for at October 8, 2008 has been cancelled and will be rescheduled at
a later date. However there will be no more continuances on these cases. You will be
notified in writing as soon as your cases can be resc uled.
If you have not already done so, please submit your availability for the next 90 days.
If your intention is to waive your right to the hearing in this citation matter, please file the
waivers with this office before another hearing date is scheduled.
Very truly yours,
EILEEN S. MAUNUS
Chief Administrative Law Judge
ESM/Imy
P RICHARD WAGNER ESQ
2233 NORTH FRONT STREET
HARRISBURG, PA 17110
) ? ?le_
E
•
COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA LIQUOR CONTROL BOARD
OFFICE OF ADMINISTRATIVE LAW JUDGE
BRANDYWINE PLAZA
2221 PAXTON CHURCH ROAD
HARRISBURG, PA 17110-9661
TEL (717)540-7419/FAX (717)657-4032
October 02, 2008
THE MECHANICSBURG CLUB
333 HEINZ ST
MECHANICSBURG PA 17055-3211
CITATION HEARING NOTICE
RE: Case No(S 06--259
LID 3110
Dear Licensee:
The hearing on the above citation case(s) to show cause why the license
issued to you by the Pennsylvania Liquor Control Board should not be
suspended or revoked, or a fine imposed, or both has been scheduled for
the time and place hereinafter set forth before Judge FLAHERTY.
DELAY IN OBTAINING LEGAL 'COUNSEL IS NOT REASON FOR CONTINUANCE.
If you intend to waive your right to the hearing in this citation
matter and if you file the waiver(s) with this office later than the
fifteenth (15th) day prior to the scheduled date contained in this
notice, the hearing may not be cancelled and you may receive minimal or
no consideration with regard to the penalty to be imposed.
DATE & TIME OF HEARING:
PLACE OF HEARING:
ry truly yours,
November 17, 2008 at 09:30 AM
Brandywine Plaza
2221 Paxton Church Road
Harrisburg PA 17110-9661
EILEEN S. MAUNUS
Chief Administrative Law Judge
CERTIFIED MAIL -
Return Receipt Requested
P RICHARD WAGNER ESQ
2233 N FRONT ST
HARRISBURG PA 17110
FIRST CLASS MAIL
cc: Administrative Law Judge
PSP Counsel
Reporting Agency
¦ Complete items 1, Z and 3. Also complete
item 4 It Restricted Delivery is desired.
¦ Print your name and address on the reverse
so that we can return the card to you.
E ¦ Attach this card to the back of the mallpiece,
or on the front if space permits.
1 2. Article Number
(rmnsfer ft m se?vke label) Q$ 4 d 0004 0219 8881
PS Form 3811, February 2004 Domestic Retum Receipt 102M-02-M-1540
1. ARICTO AGUMS$6U iv:
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UNITED STATES POSTAL SERVV
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and ZIP+4 in this box •
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•
COMMONWEALTH OF PENNSYLVANIA
OFFICE OF ADMINISTRATIVE LAW JUDGES
PENNSYLVANIA LIQUOR CONTROL BOARD
PENNSYLVANIA STATE POLICE,
BUREAU OF LIQUOR CONTROL
ENFORCEMENT
VS. * Citation No.: 06-2592
THE MECHANICSBURG CLUB
333 HEINZ ST.
MECHANICSBURG, PA 17055-3211 * LID No.: 23110
*
License No.: CC-5354
*
* * * * * * * * *
Verbatim transcript of a hearing held at
2221 Paxton Church Road, Harrisburg,
Pennsylvania, on Monday,
November 17, 2008
10:06 a.m.
•
(BEFORE: DANIEL FLAHERTY,
Administrative Law Judge
(APPEARANCES:
ANDREW LOVETTE, ESQUIRE
3655 Vartan Way
Harrisburg, PA 17110
For the Bureau of Liquor Control Enforcement
RICK WAGNER, ESQUIRE
2233 N. Front Street
Harrisburg, PA 17110
For the Licensee 41 '
R. SCOTT CRAMER, ESQUIRE
5 South Market Street
Duncannon, PA 17020
For the Witness
REPORTER: DANIEL URIE
N
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N p.
ro D
N L,;
4i1
Any reproduction of this transcript is prohibited
without authorization by the certifying agency.
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License No.:- CC-5354
Citation No.: 06-2592
INDEX TO WITNESSES
FOR THE
COMMONWEALTH
(Charles W. Sechrist
Stephen Sabotchick
Michael Gallagher
DIRECT
84
88
92
CROSS REDIRECT RECROSS
FOR THE
None
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License No.: CC-5354
Citation No.: 06-2592
INDEX TO EXHIBITS
FOR THE
COMMONWEALTH
IDENTIFIED
ADMITTED
C-5 Names -- 98
C-6 9/4/06 Drawing -- 98*
C-7 8/28/06 Drawing -- 98*
C-8 8/28/08 Drawing -- 98*
C-9 9/4/06 Drawing -" 98*
C-10 Drawing Tickets -- 98*
C-11 Drawing Tickets -- 98*
C-12 Club In spection Form -- 98*
C-13 9/19/06 Minutes -- 98*
C-14 Profit and Loss Statement -- 98*
C-15 Notes -- 98*
C-16 Prior C itation Record 98 99
FOR-THE-
None
*Not Attached
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P R O C E E D I N G S
JUDGE DANIEL FLAHERTY:
This is the continuation of the hearing
at long last for Citation 06-2592. Counsel for the
Bureau of Enforcement ready?
ATTORNEY LOVETTE:
Yes, Your Honor.
JUDGE:
Is Mr. Wagner ready?
ATTORNEY WAGNER:
I am ready, Your Honor. Thank you.
JUDGE:
Very well. I would ask for the court
reporter t'o start this second part of the transcript
with page 78 since we ended with page 77 back in
August of 2007. But what I'd like to ask is you were
given two weeks to find out whether or not there was
going to be any kind of immunity given to these
witnesses. Two weeks has long since gone by. Why
didn't we hear from you, Mr. Lovette?
ATTORNEY LOVETTE:
Your Honor, I believe I did file a letter
indicating that discussions were ongoing. I made my
first contact with the Cumberland County District
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Attorney's office shortly after our hearing in fact
and was unable to get a --- ultimately, Your Honor, I
myself was never able to get a response from the
District Attorney's office despite my having tried to
contact the District Attorney from September through
December of 2007. Ultimately in the spring of this
year he contacted me by others within the Bureau
regarding the issue of immunity. And the Cumberland
County District Attorney's office despite having
declined prosecution has refused to grant immunity to
the witnesses.
JUDGE:
Well, that's where we are, so you're not
going to have any witnesses after all.
ATTORNEY LOVETTE:
Well, I'm going to call them, Your Honor.
I believe when we finished back in August Mr. Sechrist
was actually still on the stand and he had just
asserted his Fifth Amendment privilege. I do have a
few questions. Well, I want to ask him a few
questions, Your Honor, regarding the pool and see if
he still asserts his privilege. And then I do have a
question or two regarding his employment that do not
touch on the pool selling or any criminal ---
potential criminal liability.
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JUDGE:
Very well. You may proceed.
ATTORNEY LOVETTE:
Thank you, Your Honor. And I believe Mr.
Sechrist is still on the stand.
JUDGE:
Mr. Sechrist, I think we will re-swear
him at this point.
CHARLES W. SECHRIST, HAVING BEEN PREVIOUSLY SWORN,
TESTIFIED AS FOLLOWS:
JUDGE:
Please be seated and give us again your
full name, please, sir.
A. Charles Sechrist.
JUDGE:
Spell your last name.
A. S-E-C-H-R-I-S-T.
JUDGE:
Thank you. You may proceed, Mr. Lovette.
ATTORNEY LOVETTE:
Thank you, Your Honor. And Your Honor,
I'd note that just like the last time I called Mr.
Sechrist I will be calling him as though on Cross.
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JUDGE:
Yes.
DIRECT EXAMINATION
BY ATTORNEY LOVETTE:
Q. Mr. Sechrist, the last time we were here back in
August of last year I had inquired as to your
employment. In August of 2007, where were you
employed?
A. In The Mechanicsburg Club.
Q. And in what capacity were you employed in August
of 2007 at the Mechanicsburg Club?
A. Bartender.
JUDGE:
You have to speak up, sir.
A. A bartender.
BY ATTORNEY LOVETTE:
Q. And how long had you been at that point employed
as a bartender by The Mechanicsburg Club?
A. Over ten years.
Q. And sitting here today now in November of 2008,
are you still employed as a bartender at the club?
A. Yes.
Q. And is it true you're head bartender at the club?
A. Yes.
Q. And Mr. Sechrist, to repeat my last question from
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the hearing when we were here in August of 2007, it's
true, is it not, that when Officer Royer conducted his
routine inspection of the club on September the 6th of
2006, you were working at that time; isn't that
correct?
A. Yes.
Q. And it's also correct, isn't it, Mr. Sechrist,
that in the course of Officer Royer's inspection he
discovered a 2006-2007 33 football pool in your cash
box; isn't that also correct?
A. On the advice of Counsel, I invoke my
Constitutional rights under the Fifth Amendment and
Article One, Section Nine of the Pa. Constitution.
Q. Mr. Sechrist, I'm going to show you ---- I'm going
to show you what was previously marked during our last
hearing as Commonwealth Exhibit C-5.
ATTORNEY LOVETTE:
Your Honor, Mr. Wagner has indicated he
still has a copy of it. I have a copy of it for your
convenience.
BY ATTORNEY LOVETTE:
Q. And that, Mr. Sechrist, was identified by Officer
Royer as the football pool he located on the premises.
Directing your attention to the first sheet of that
exhibit, the eighth line down from the top in
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handwriting, it's true that a man named Charlie S.
refers to you?
A. On advice of Counsel I invoke my Constitutional
rights under the Fifth Amendment and the Constitution
in Article One, Section Nine, of the Pa. Constitution.
ATTORNEY LOVETTE:
Your Honor, the question I just asked is
non-criminal liability to this witness's participation
in a football pool in and of itself does not carry any
criminal liability. Criminal liability under the
Crime Code only attaches when you're engaged in the
operation of a football pool. Mere participation
JUDGE:
I'm not going to force him to testify.
BY ATTORNEY LOVETTE:
Q. Directing your attention to the second name on
that first page, it's written, Mike G. Isn't it also
true that that refers to Michael Gallagher, the
manager of the club?
A. On the advice of Counsel, I invoke my
Constitutional rights as guaranteed me by the Fifth
Amendment of the Constitution in Article One, Section
Nine, of the Pa. Constitution.
ATTORNEY LOVETTE:
Your Honor, I don't believe I have any
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more questions for this witness.
JUDGE:
Obviously you don't have any Cross
(Examination?
ATTORNEY WAGNER:
I do not, Your Honor.
JUDGE:
Thank you, Mr. Sechrist. You may step
I down.
ATTORNEY LOVETTE:
The Bureau would next call Mr. Stephen
(Sabotchick.
JUDGE:
Mr. Stephen Sabotchick. Good morning.
MR. SABOTCHICK:
Good morning.
----------------------------------------------------------
STEPHEN SABOTCHICK, HAVING BEEN FIRST DULY SWORN,
TESTIFIED AS FOLLOWS:
------------------------------------------------------
JUDGE:
You may be seated. Give us your full
name.
A. Stephen Sabotchick.
JUDGE:
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Spell your first and last name. S-T-E-V?
A. S-T-E-P-H.
JUDGE.
Thank you. Spell your last name.
A. S-A-B-O-T-C-H-I-C-K.
JUDGE:
Thank you. You may proceed.
ATTORNEY LOVETTE:
Thank you, Your Honor.
DIRECT EXAMINATION
BY ATTORNEY LOVETTE:
Q. Good morning, Mr. Sabotchick. It's true, isn't
it, sir, that you're a member of The Mechanicsburg
Club?
A. That's correct.
Q. And how long have you been a member of The
Mechanicsburg Club?
A. Approximately 20 years.
Q. And you continue to this day to be a member?
A. Correct.
Q. And Mr. Sabotchick, beg your pardon, I'm going to
show you what was previously identified as
Commonwealth Exhibit C-5, the 2006-2007 football pool,
33 football pool that Officer Royer seized in the
course of a routine inspection at the club's premises.
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ATTORNEY WAGNER:
May I object to the form of the question?
I believe the testimony was that he opened a closed
unmarked box and the question is whether he had the
authority to do that, so it was not a routine
inspection from our perspective.
JUDGE
Well,
ATTORNEY LOVETTE:
The testimony was
ATTORNEY WAGNER:
I have no problem during inspection.
ATTORNEY LOVETTE:
The Bureau's perspective of that point
it's not relevant, Your Honor.
JUDGE:
Overruled. They're entitled to look at
anything on the licensed premises if the premises is
open and running by statute. So your objection is
overruled.
ATTORNEY WAGNER:
I understand, and I note it. Thank you.
BY ATTORNEY LOVETTE:
Q. Sir, that was previously identified as a 2006-2007
33 football pool. It's true, isn't it, sir, that you
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discussed that pool with Officer Royer?
A. Your Honor?
JUDGE:
Yes.
A. On advice of my Counsel, I invoke my
Constitutional right as guaranteed me by the Fifth
Amendment of the Constitution in Article One, Section
Nine of the Pa. Constitution.
JUDGE:
Very well. You have not been prosecuted
for gambling for anything resulting from this
incident? At this point you have not been prosecuted?
A. No.
JUDGE:
And you do feel that you could be
prosecuted?
A. Possible.
JUDGE:
Okay. His claim of Fifth Amendment
privilege is valid, and I will not require him to
testify with respect to anything.
ATTORNEY LOVETTE:
Yes, Your Honor. I don't think I have
any questions for him then.
ATTORNEY WAGNER:
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JUDGE:
Thank you, Mr. Sabotchick. You may step
I down.
ATTORNEY LOVETTE:
Your Honor, the Burea.u's next witness is
Michael Gallagher.
JUDGE:
Good morning..
MR. GALLAGHER:
Good morning.
---- --------
MICHAEL GALLAGHER, HAVING BEEN FIRST DULY SWORN,
TESTIFIED AS FOLLOWS:
JUDGE:
Please be seated. Give us your full
name.
A. Michael Gallagher.
JUDGE:
Spell your last name please?
A. G-A-L-L-A-G-H-E-R.
JUDGE:
Thank you. You may proceed, Mr. Lovette.
ATTORNEY LOVETTE:
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Thank you, Your Honor.
DIRECT EXAMINATION
BY ATTORNEY LOVETTE:
Q. Sir, are you employed?
A. Yes.
Q. And can you tell us please where are you employed
at?
A. The Mechanicsburg Club.
Q. And it's true though, isn't it sir, that you're
employed as the manager of The Mechanicsburg Club?
A. On the advice of Counsel, I invoke my
Constitutional rights as guaranteed by the Fifth
Amendment of the Constitution in Article One, Section
Nine of the Pennsylvania Constitution.
ATTORNEY LOVETTE:
Your Honor, that question has absolutely
no criminal
JUDGE:
Yeah, you can't be prosecuted for telling
us where you work. So the Fifth Amendment privilege
does not apply to that. So you are under oath and you
should tell us where you work.
A. The Mechanicsburg Club.
BY ATTORNEY LOVETTE:
Q. And in what capacity are you employed at The
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Mechanicsburg Club?
A. Manager.
Q. And how long have you been employed as the manager
of The Mechanicsburg Club?
A. Twelve (12) years.
JUDGE:
You have to speak up, sir.
A. Twelve (12) years, I'm sorry.
JUDGE:
Thank you.
BY ATTORNEY LOVETTE:
Q. And Mr. Gallagher, I'm going to show you what was
marked in the last hearing as Commonwealth Exhibit C-5
which is a copy of a football pool that Officer Royer
--- that Officer Royer seized in the course of his
inspection of the premises. Directing your attention
to the second line on the first page, it's true, isn't
it, Mr. Gallagher, that the entry there that reads
Mike G. refers to yourself? Isn't that true?
A. On the advice of Counsel I invoke my
Constitutional rights as guaranteed by the Fifth
Amendment of the Constitution in Article One, Section
Nine of the Pennsylvania Constitution.
ATTORNEY LOVETTE:
Your Honor, again, I would submit that
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participation or mere participation in a football pool
carries with it no criminal liability under the Crimes
Code, and that only the operation of the pool that is
a violation of the law. Anyone can participate in a
pool without any
JUDGE
My ruling is the same as it was for Mr.
Sechrist. It comes close enough. I will not require
him to testify --- to give testimony regarding this
matter which I feel is protected by the Pennsylvania
Well, I'm premature. I can't make that ruling
yet. Mr. Gallagher, have you been prosecuted for
anything as a result of this incident?
A. No.
JUDGE:
You have not?
A. No.
JUDGE:
And do you feel that you might?
A. I don't know. It's possible.
JUDGE:
It's a possibility. Very well, on that
basis it is my opinion that Mr. Gallagher is protected
by the Fifth Amendment and I will not require him to
testify.
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ATTORNEY LOVETTE:
Yes, Your Honor.
BY ATTORNEY LOVETTE:
Q. Mr. Gallagher, directing your attention to the
12th line of the first page of that exhibit, the line
that reads John R. and an and sign and Ott, O-T-T.
It's true, sir, isn't it that the John R. referred to
there is John Reninger, former president of The
Mechanicsburg Club?
A. On the advice of Counsel I invoke my
Constitutional rights guaranteed by the Fifth
Amendment of the Constitution in Article One, Section
Nine of the Pennsylvania Constitution.
ATTORNEY LOVETTE:
Your Honor, I have no further questions
for Mr. Gallagher.
ATTORNEY WAGNER:
I have no Cross.
JUDGE:
Thank you, Mr. Gallagher, you may step
I down .
ATTORNEY LOVETTE:
Your Honor, at this time the Bureau has
no further witnesses to present in terms of this
citation. At this time the Bureau would move --- move
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for the admission of those exhibits that were not
previously admitted. During the August 23rd, 2007
hearing,.Your Honor, I believe Exhibits C-1 through
C-4 were admitted. They consisted of the Notice of
Violation letter, the certified mailing documents
regarding the same. C-3 was the citation. C-4 was
the certified mailing documents regarding the
citation.
The exhibits that were not admitted were
Numbers C-5 through I believe C-15. C-5 is the 33
football pool. C-6 is the Monday night drawing for
the date September 4th, 2006. C-7 is a Monday night
drawing for the date August 28th, 2006. C-8 is a
drawing that was held on the premises on 8/28/06. C-9
is a drawing that --- tickets regarding the drawing
held on September 4th, 2006. C-10 are more drawing
tickets. C-11 are more drawing tickets. C-12 is the
--- a copy of the Bureau's club inspection form. C-13
are minutes of the club --- are minutes of the club
regarding
JUDGE:
The September 19th, 2006
ATTORNEY LOVETTE:
Yes, Your Honor, September 19th,, 2006.
C-14 is a copy of the profit and loss statement for I
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believe its fiscal year 2006. And C-15 are the
written notes provided by Mr. Gallagher to Officer
Royer regarding the prize payout amounts for
operations of small games of chance. And those items,
Your Honor, were all testified to and foundation was
properly laid for them during the course of Officer
Royer's testimony and the Bureau would move for their
admission.
JUDGE:
Objections, Mr. Wagner?
ATTORNEY WAGNER:
C-13 we have no objection to. The
balance of them we do. We believe with the utmost
respect to this position that the ALJ does not have
jurisdiction over the local operations of small games
of chance under the Department of Revenue Regulations,
and the statute, they fall within the jurisdiction of
a criminal proceeding to be prosecuted by the District
Attorney and a limited number of law enforcement
officers that are expressly defined under the statute
which does not include --- which does not include
members of the Liquor Control Enforcement Bureau.
ATTORNEY LOVETTE:
The Bureau's response to that, Your
Honor, is those items do fall within the jurisdiction
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of the Bureau of Liquor Control Enforcement for
various reasons. One, some of those items were
gambling paraphernalia. Two, other of those items
relate --- are business records of the --- relate to
the operation of the licensed business. And three,
those items are only to the operation of small games
of chance on the premises were properly investigated
by the Liquor Enforcement Officer on the violation of
the Small Games of Chance Act constitute other
sufficient cause shown under Section 471 of the Liquor
Code and the Bureau may investigate the site for the
same.
JUDGE:
C-5, C-6, C-7, C-8, C-9, C-10 and C-11,
C-12, C-13, C-14 and C-15 are admitted into evidence.
ATTORNEY LOVETTE:
Thank you, Your Honor. The Bureau's last
exhibit is Licensee's --- this should be C-16, Your
Honor, is a copy of Licensee's prior citation record.
JUDGE
Have you seen that, Mr. Wagner?
ATTORNEY WAGNER:
I have, Your Honor.
JUDGE:
Is it accurate?
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ATTORNEY WAGNER:
It is. To the best of my knowledge it's
accurate.
JUDGE:
Very well, C-16's admitted into evidence.
And I'll emphasize for your benefit and the benefit of
your client that I will not use this exhibit unless I
find that a violation has taken place and the Liquor
Code requires that I ---
ATTORNEY WAGNER:
I understand.
JUDGE:
--- take it into consideration.
ATTORNEY LOVETTE:
And Your Honor, with the exception of the
Bureau's penalty recommendations the Bureau would
recommend in this case in terms of count one of the
citation a $500 fine, count two a $250 fine, count
three a $1,000 fine, count four of the citation
another $1,000 fine. And then the Bureau would rest.
JUDGE:
Very well. Mr. Sechrist, it's your turn.
Do you intend to present testimony?
ATTORNEY WAGNER:
Mr. Wagner.
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JUDGE:
I beg your pardon.
ATTORNEY WAGNER:
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I choose not to take the Fifth, Judge.
JUDGE:
I beg your pardon.
ATTORNEY WAGNER:
No, the argument that we raised to the
citation was raised as it related to the admissibility
of the evidence. We would renew that as it relates to
the jurisdiction of the LCE and in due respect the
jurisdiction of this Court because we thank it falls
under the Small Games of Chance authorized by the
Department of Revenue. And that has a completely
different proceeding than in this matter.
JUDGE:
Very well. At this point does anyone
wish to make argument? There was some talk the last
time about filing briefs, and I believe I told you,
Mr. Lovette, that I expect a brief from you for all
matters dealing with the Department of Revenue
regulations pointing out which particular section of
those regulations which are set forth in the citation
only of Section 901 rather than giving us a really
specific section. And I expect you to submit a brief
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showing which section of 901 pertains to each one of
the counts and what evidence applies thereto.
Mr. Wagner, you had indicated that you
wanted to brief this question of whether or not ---
the jurisdictional question I take it?
ATTORNEY WAGNER:
Yes, as well as some of the substantive
issues because some of the regulations we believe
would exonerate the club of some of the charges, Your
Honor.
JUDGE:
Very well.
ATTORNEY LOVETTE:
And Your Honor
JUDGE:
Yes.
ATTORNEY LOVETTE:
I'm sorry. I apologize for interrupting.
And the Bureau too, while it was happy to address the
due process issue in its brief, it also more than
likely than not address --- we can make it more of a
general brief and address of course Mr. Wagner's Small
Game of Chance jurisdictional issue but also any other
matters that the Bureau would like to bring.
JUDGE:
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Right. Given the advanced age of this
case I am going to ask that you all submit your
initial briefs within 15 days of this hearing. And
then I will give each of you 15 days to submit a reply
brief to the other's brief. That way everybody gets
to answer anything that anybody else raises that they
didn't
ATTORNEY WAGNER:
Has the transcript of the first
proceeding been prepared?
JUDGE:
It has.
ATTORNEY WAGNER:
Okay. We were not notified of that.
We'd like a copy if we could.
JUDGE:
You'll have to do that through this
(gentleman.
ATTORNEY WAGNER:
We'll do that, Judge. Thank you.
JUDGE:
Very well. I don't think he took the
first --- I don't think he took the first segment of
lit but the -- The stenographer was a Daniel B.
Urie, U-R-I-E.
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OFF RECORD DISCUSSION
JUDGE:
That's you? Well, then that's working
out. Mr. Wagner, this is the gentleman that took the
first hearing.
ATTORNEY WAGNER:
Oh, okay. All right, thank you.
JUDGE:
You'll have to raise it with him again.
ATTORNEY WAGNER:
Very good. Thank you, Judge.
JUDGE:
And with that, so we have each of you
submitting your initial briefs within 15 days of today
which is early December sometime. I won't attempt to
count it up. And then each of you has 15 days from
that submission date to submit a reply brief. And
with that my watch shows it to be 10:31, and we can
consider this record closed at this time.
HEARING CONCLUDED AT 10:31 A.M.
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C E R-T I F- I C A T .E
I hereby certify that the
foregoing proceeding
was reported by me, that 'I have read this
transcript on and.I attest
that this transcript is a true and
accurate record of the proceeding.
VY??
Court Reporter
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STATE COLLEGE, PA • OIL CITY, PA 210 Slain Strcct GREENSBURG, PA WILKES-BARRE, PA
HOLLIDAYSBURG, PA HARRISBURG, PA Johnstown, PA 15901
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PENNSYLVANIA STATE POLICE
BURFAU OF LIQUOR CONTROL ENFORCEMENT
PRIOR CITATION RECORD
TO: Office of Chief Counsel
FROM: Bureau of Liquor Control
Enforcement
LID-23110 CC-5354
RE: The Mechanicsburg Club
333 Heinz St.
Mechanicsburg, PA 17055-3211
Cumberland County
CITATION NO. 89-1041. (CLUB LIQUOR LICENSE) FINE $900.00. WAIVER OF HEARING.
(JUDGE THAU)
1. POSSESSED OR OPERATED GAMBLING DEVICES OR PARAPHERNALIA OR PERMITTED
. 'GAMBLING OR LOTTERIES ON YOUR LICENSED PREMISES. (LL and CC)
CITATION NO. 05-0611. FINE $250.00. WAIVER OF HEARING. (JUDGE FLAHERTY)
1. OFFERED AND/OR AWARDED MORE THAN $5,000.00 IN CASH OR MERCHANDISE IN
ANY SEVEN-DAY PERIOD. (LL and Small Games of Chance Act)
February 13 through 19, 2005.
MWIN
0
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COMMONWEALTH OF PENNSYLVANIA
GOVERNOR'S OFFICE OF GENERAL COUNSEL
The Honorable Daniel T. Flaherty, Jr.
Administrative Law Judge
Pennsylvania Liquor Control Board
Brandywine Plaza
2221 Paxton Church Road
Harrisburg, PA 17110-9661
November 25, 2008
RE: P 5 P , Bureau of Liquor Control Enforcement vs. The
Mechanicsburg Club.
Citation No. 06-2592
Letter Brief
Dear Judge Flaherty:
SECT O.A.L
2008 NOV 26 PM 1: 11
Please accept this letter as the Commonwealth's brief in this matter which was heard by the
Court on August 23, 2007 and on November 17, 2008.
FACTS:
In this case, the licensee was charged with promoting gambling, not maintaining proper
records regarding its membership and violating various provisions of the Local Option Small Games
of Chance Act (LOSGCA) and its attendant regulations. Specifically, the Bureau charged the
licensee as follows:
1. On August 28, September 4, 6, 2006, and divers other occasions in the past
year, you, by your servants agents or employees, possessed or operated
gambling devices or paraphernalia or permitted gambling or lotteries,
poolselling and/or bookmaking on your licensed premises, in violation of
Section 471 of the Liquor Code, 47 P.S. §4-471 and Sections 5512 and/or
5513 and/or 5514 of the Crimes code, 18'Pa.C.S. §5512 and/or 5513 and/or
5514.
2. On September 19, 2006, and divers other occasions in the past year, you, by
your servants agents or employees, failed to maintain records in conformity
with Title 40 of the Pennsylvania Code, in violation of Sections 5.71 and 5.74
of the Liquor Control Board Regulations, 40 Pa.Code §§5.71 and 5.74.
i
OFFICE OF CHIEF COUNSEL PENNSYLVANIA STATE POLICE Pennsylvania
BUREAU OF LIQUOR CONTROL ENFORCEMENT
3655 VARTAN WAY HARRISBURG, PA 17110 State Police
Ph: 717-540-7414 1 Fx: 717-540-7461 ww w ^sp• a ma.us
P.S.P., B.L.C.E. v. The Mechanicsburg Club
Citation 06-2592
Page 2
November 25, 2008
Letter Brief
3. During the periods July 31 through August 6, August 7 through 13, August 14
through 20 and August 21 through 27, 2006, you, by your servants agents or
employees, offered and/or awarded more than $5,000 in cash or merchandise
in any seven-day period, in violation of Section 471 of the Liquor Code, 47
P.S. §4471 and Section 315(b) of the Local Option Small Games of Chance
Act, 10 P.S. § 315(b).
4. On September 27, 2006, an[d] divers other occasions in the past year, you, by
your servants, agents or employees, failed to maintain complete and truthful
records covering the operation of the licensed business for a period of two (2)
years concerning the Local Option Small games of chance Act, in violation of
Sections 471 and 493(12) of the Liquor Code, 47 P.S. §§4.471 and 4-493(12),
Section 311 of the Local Option Small Games of Chance Act, 10 P.S. §311
and Section 901 of the Department of Revenue Regulations, 61 Pa.Code §901.
At hearing the Commonwealth offered testimony of Liquor Enforcement Officer Harry
Royer that supported each element of the charged offenses.
PRIMARY ISSUE:
The immediate question to be addressed by the Commonwealth is one of due process and the
sufficiency of the language contained in count 4 of the citation. 'This Court directed that the
Commonwealth address the issue of the charging language of the citation's fourth count and whether
or not it comports with due process.
This is issue has been addressed previously by the courts and it is clear that the manner in
which the Bureau charged The Mechanicsburg Club comports with due process.
The essential elements of due process of law are notice and an opportunity to defend.
Parkway Distributing Comnanv Liquor License Case, 205 A.2d 1660, 662 (Pa.Super. 1964).
Furthermore, in determining whether or not due process was denied, it is the substance of the
situation, not mere form, which governs. Id.
1 The Commonwealth would note that at no time prior to, or at, hearing did the licensee assert it was denied due process;
in this case the only issue licensee has raised, other than evidentiary objections, was its assertion that the Bureau and
Office of Administrative Law Judge lacked the jurisdiction to investigate and adjudicate, respectively, issues regarding
the LOSGCA.
P.S.P., B.L.C.E. v. The Mechanicsburg Club
Citation 06-2592
Page 3
November 25, 2008
Letter Brief
0
It is well settled that the Commonwealth has wide latitude in the generality of its charges.
Pennsylvania Liquor Control Board v. Reda, 463 A.2d 10 (Pa.Cmwlth 1963); BLCE v. Steven
Richard Wolf, t/a Herrs Tavern, Adjudication 97-2622. Furthermore, it is the wording of the charge
and not any statutory reference that is controlling. In re: Hankin,195 A.2d 164 (Pa.Super 1963);
BLCE v. The Hershey Overseas Veterans, Inc., Adjudication No. 00-0070. Likewise, it is settled
that when a citation informs the licensee as to the type and date of the alleged violation, it comports
with due process. In re: Concord Ranch, Inc., 578 A.2d 1339 (Pa. Cmwlth. 1990).
The language contained in count 4 of the citation clearly meets this test. It states that:
On September 27, 2006, an[d] divers other occasions in the past year,
you, by your servants, agents or employees, failed to maintain complete
and truthful records covering the operation of the licensed business for a
period of two (2) years concerning the Local Option Small Games of
chance Act, in violation of Sections 471 and 493(12) of the Liquor Code,
47 P.S. §§4471 and 4-493(12), Section 311 of the Local Option Small
Games of Chance Act, 10 P. S. §311 and Section 901 of the Department of
Revenue Regulations, 61 Pa.Code §901. (emphasis added).
This charge clearly identifies the date and likewise identifies the activity alleged to have
violated the law. While the charge does not reference the exact regulatory provisions alleged to have
been violated, it most certainly is in compliance with the criteria set forth by the courts in Reda,
Hankin, and In re: Concord Ranch, Inc..
Furthermore, this very court has previously addressed the issue of the sufficiency of the
Bureau's charging language regarding the LOSGCA and its attendant regulation. In BLCE v. The
Hershey Overseas Veterans, Inc., Adjudication No. 00-0070, (a case in which the licensee was also
charged in a manner identical to count 4 of the instant citation), your Honor held that:
It seems pertinent at this point to note that the Bureau has, in its citation,
mis-cited the [LOSGCA] which is actually found at 10 Pa.C.S. §311 et
seq. The regulations promulgated by the Department o Revenue pursuant
to that act are found at 61 Pa. Code §901.1 et seq. However, lam satisfied
that proceeding to consider the evidence in light of the correct statutory
and regulatory references presents no due process notice problems since
the citation adequately advises Licensee that a particular activity is being
challenged as illegal. It is the wording of the charge and not the statutory
reference that is controlling. In re: Hankin, 195 Ad 164 (Pa. Super
1963); Parkway Distributing Co., 205 A.2d 660 (Pa. Super 1964);
Grimoaldo Castrechini & Rosa Castrechini, Citation No. 87-2864, Sel Op.
Ir •
P.S.P., B.L.C.E. v. The Mechanicsburg Club
Citation 06-2592
Page 4
November 25, 2008
Letter Brief
Vol III, Page 194; Mechanicsburg GF Investors Co., Citation No. 94-
2327FT, Sel Op. Vol 23, page 8.
Id. at 3 (emphasis added).
CONCLUSION:
A review of controlling precedent clearly illustrates that the charging language contained in
all counts of the citation comports with due process; they all set forth the date of alleged violation as
well as give sufficient idea of the conduct alleged. Licensee is clearly directed that the violation
alleged by the Commonwealth deal with the alleged violation of licensee's recordkeeping obligation
under the LOSGCA and its attendant regulations?
The Commonwealth respectfully requests that this court affirm its conclusion first made in
BLCE v. The Hershey Overseas Veterans. Inc. and conclude as matter of law that the charging
language found in count 4 satisfies due process.
Thank you for your time and consideration in this matter.
Sincerely,
"?j , k??
Andrew J. Lovette
Assistant Counsel
cc: P. Richard Wagner, Esq.
2 The Bureau would note that during the time period charged, the Department of Revenue's regulations which detailed
licensee's recordkeeping obligations under the LOSGCA took up an entire page and a half, being found at 61 Pa. Code
§§901.461 - 901.468. While it is true that the Department's regulations set forth ot?cr recordkeeping obligations, it is
imminently clear that they are not recordkeeping requirements imposed on liquor-licensees. These additional
recordkeeping requirements are imposed on Issuing Authorities (i.e. county treasurers), Manufacturers of small games of
chance and Distributors of small games of chance and can be found at § § 901.401- 901.406, §§ 901.421- 901.426 and
§§ 901.441 - 901.445, respectively
12/02/2000 13:30 FAX 711234706 ManckegagnerSprehaMcQuil • la vue/vu(
P. Richard Wapner, Esquire
PA Supreme Cow W# 23103
Maad^ Wes. SP*b& dt MoQUMN
2233 North Fr= Street
Harrisbw& FA 17110
Tckpbmt (717) 234-7051
Fax (717) 234-7080
Akow" for LkwM
PENNSYLVANIA STATE POLICE, : BEFORE THE ADNNISTRATWE LAW
BUREAU OF LIQUOR CONTROL : JL E
ENFORCEMENT
CITATION NO: 06-2592
V.
M
THE MECHANICSBURG CUM
L FAW:
On or about several occasion, as a result of routine iupeefions, the LCB cited The Club
for violations of the Local Options Smail Games of Chance Acct.
IL E&DIAM U.,
A. THE BUREAU OF LIQUOR CONTROL ENFORCEM"a
DOES NOT HAVE AUTHORITY TO DWORCE THE
LOCAL OPTION SMALL GAMES OF CHANCE. 5E 47
P.S. W211.
The legislature has created a Bureau of Liquor Control Enfom.em ent wbich is responsible
for enforcing the Liquor Act and my regdations prorndptcd thereto.
i The Bureau is specifically:
responsibk for enforcing this Act and do regula dow promdgamd ,
pursuant thereto.
47 P.S. §2-211.
12/0212008 15:30 FAH 71723476 ManckelpagnerSprehaMcOull •
10 uua/uur
A =view of §2-211 sets forth the powers of the Bureau which Vcdficdbr PvVidc amain
sections of the Crimes Code as well as certain conduct regarding tho m4ho ty in the Liquor
Coda M 47 P.S. §2^21 I.
Newharc in the enforcmumt section is there mention of the Locai Option Small Games of
Chance. x@.10 P.S. §311, et seg.
The Local Option Small Games of Chance Act was passed December 19,1968, to
become c$ective sixty (60) days thereafter. The enforcema t section of the Liquor Code was
initially passed April 12,195 1, and re-enacted June 29, I997, with the specific provisions
concerning eafoemumt amended October S, 1994, (effective in sixty (60) days), and July 17,
2003, effective September 15, 2003.
Therefore, tbaae were two (2) smaW ments to the cafnrcoment section of the Liquor Code
after passage of the Local Option Small Games of Chance Act.
The legislature saw lit to not include within the enforcement section of the Liquor Code,
enforocment of the Local Option small Oames of Chance. It is wall settled that the legislat=, in
Using cermn sent men and provmons, mss aded every word that is set forth and COUM must so
construe those statmas. SM Ljbw y-WestingbM El%o QMMLM 276 PaSuper. 232,
419 A.2d 431 (1980).
Therefore, it is clear that the Liquor Enforcement Bureau does not have authority to
enforce provisions of the Local Option Small Games of Chance.
-2-
12/02/2008 15:30 FAX 71723470 ManckefagnerSprehaMcQuil •
I ENFORClENIIIM OF THE LOCAL OPTION SMALL
GAMES OF CHANCE IS VESTED WITH T=
DEPARTMENT OF REVENUE OF THE
COMMONWEALTH OF PENN5'YY.VAM& ;E, 10 P.S.
4311, et sm
@ 004/007
The Local 0000 Small Gamcs of Chance Act provides that the Dgwt went of Revemm
shall promuiptc rgpgatious to enforce the p mviaons of the Act. r,10 P.S. 1319. which
includcs licensing, lL 10 P.S. § 320, the issuance of special permits, AM 10 P.S. 6321, as well
as enforcement =10 P.S. §323.
Enforcement of the Local Option Small Gamm of Chance is vested with the District
Attorney of the county in which the small Sames of chance license is held. See 10 P.S. §323.
Subsection (b) of §323 also permits state, county or local law enfot+onwa officials to
conduct investigations and enforce the provisions of the Act.
It is necessary, however, to review ft definition of "law clot t" owls under
§313 of the Act which specifically provides:
Law FarJfortmmmt QOds A mWcipal police q, +rcer, a member
of the Pe na State Police, the shwWof a cowo, or a
deputy sheriff.
x,10 P.S. §313.
Nowhere to that definition dots that definition refer to the Bureau of Liquor Enknement,
nor does the Liquor Code in its enf nemern section tefexenoe the Local Option Small dames of
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12/02/200.8 15:31 FAX 71723470 ManckeVagnerSprehaMcQui1 . N uuaiuur
This distinction is critical since the enforeemaA of the Local Opdon Small Games of
Chance requires a determination of probable cause that a violation of the Act has occutmd. E,
10 P.S. J123(a).
Section 323(a) specifically provides:
if tht District .ltto mwfirnds probabk amass to befiew that a
Wolatlon has occwred he mayffle a eomplalra aga bal At ...........
This distinction is important bocause the enforcement by the Liquor Control Board of the
Small Gamos of Clmnce is founded not on Probable cause, but on routine inspections.
The Adjudication of the Administrative Law Judm on page 2, subparagraph 3, under
counts 1 and 2, conclude:
On Auguir 13, 2007, the offloer retwned to the licensed premises
in order to complete the rotnue Inspeedton ande mmim records.
This rout= inspection does not rise to the level of probable come as required by to Act
for purposes of enforcing its provisions.
It is thcmfom clear that the Local Small Games of Chawo bas a probable cause
roqunrement to be enforced by the District Attorney or law anforcemeat officials which do not
include m nxbers of the Liquor Control Enforcement Bureau.
C. THE POSMON OF THE LIQUOR BOARD IS
UNTENABLE.
The provision that is beft utiliwd by *a Enforcement Bureau to obtain primary
jurisdiction over the Local Small Games of Chancy is contained is 1471 of the Liquor Code.
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12/02/2008 15:31 FAX 71723470 ManckellagnerSprehaMcquil •
That sedion provides tit the Bur= is entitled to discipline 8 licenne for "such odw
cause."
'nm "such other cause" provision is a penalty provision and not a provision for primary
jurisdiction.
1b4 position of ft BUV$w is pntamble in tied it is attgapqug to b P its own
jurisdiction beyond that which was given to it by the lepstatwt utilizing the "other sufficient
cause" WW W to Wmehow &Apn=tcy jurisdiction far eaffozcemment.
The memonmdum from the Bureau relies on a "due pmum wgum nir to justify ldmarY
jurisdiction.
Such a provision is tantamount to lxicmus.
If we swept the Bureau's provision, you, as an administrative law judge. would have
pr en q jurisdiction aver drivers license suspension appals for DUI, provided you had a hearing
that oonsdtated "due process."
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12/02/2000 15:31 FAH 7172347 ManckeWagner8prehaMcQui1 • [a 007/007
The Bureau is MMp ft tD V aad it autl a* *ond that which is given to it by tha
lepslaa m sued cannot be allowed to pcrpeb to the same.
Ro Y anb
Manclao, W praha & MaQiullan
p, . Esquire
I 103
2233 North 1y'md Street
Harrisburg, PA 17110
(717) 234-7051
Atmv,Vys for Licensee
Datc: / LOT LO-9
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,,.i,rrzvvu I0:IJ rAX 7172347 ManckefagnerSprehaMcRuil •
LAW airless
MANCKE, WAGN9R, $PREHA & MGQVIL.LAN
azts NORTH FVCWT 0NL1R
JOH14 W MANCM HARMUUM. PA 17110
P. RICMARu WAGN"
Emmet P. aPREHA, JR.
BRYAN M. MaQUIU AN
December 11, 2008
?? Daudel T. Flehaty, Jr.
Admiaistreltive LAW Judge
pstuWinnia Liquor Control Board
Brandywine Plaza
2221 Paxton church [toad
Harrisburg, pA 17110.9661
19001/001
PHONE r71718sa•7081
RAX M7f S3*7ee0
Re: P.S.P., Donau of Liquor v. The Mechanicsburg Club
Citation Nos: 07-1537 06-2592
Dear Judge Flaherty:
I spoke this date with Andrew Love* coamning the above-oaptioned a far:.
The Machaniaaburg Club filed a Brief to the citation 06-2592, and :fiber review, it was Wood
that the same issues an raised in oiRstion 07-1537, said agreement being reached with Andrew Lovd0i
so that you may consider, if you would, that Brief on behalf of both citations ss it relates to the Legal
issues raised therein.
Mr. L.oveft's Brief o on eiation 07-1537 was received by my office on this date,
December 11, 2008, and per your nQurst, Mr. Lovette and 1 agree that the WMII (15) dys to file a
response to the Bureau's Brief on 07-1537 would therefore be due December 23`d.
To the carat that these dates may have caused codolon with the dates for filing, 4 of Comm,
will waive any tlmi V issue as relator to the filing by the Bureau.
Your attemion to this ratter is deeply appreciated and we apologise collectively if we have
created confusion regsrding the mo&Wology of the briefing schedule that we bave provided.
PRW/dko
cc: Andrew I L.ovette, Esq.
S!
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LAW OFFICES
MANCKE, WAGNER, SPREHA & MCQUILLAN
2233 NORTH FRONT STREET
JOHN B. MANCKE HARRISBURG. PA 17110 PHONE (717) 2347051
FAX (7" 234.7080
P. RICHARD WAGNER
EDWARD F. SPREHA, JR.
BRYAN M. MCQUILLAN
December 16, 2008
rr rrn
n n
The Honorable Daniel T. Flaherty, Jr. Gi
Administrative law Judge
Pennsylvania Liquor Control Board s
Brandywine Plaza N
2221 Paxton Church Road
Harrisburg, PA 17110-9661
Re: P.S.P., BLCE v. The Mechanicsburg Club
Citation Nos• 6-2592 107-1537
Dear Judge Flaherty:
Please accept this letter as the L'icensee's response to the Bureau's Brief.
i
I. FACTS:
A. THE CHARGE OF THE LICENSEE
PROMOTED GAMBLING HAS NOT BEEN
SUPPORTED BY COMPETENT EVIDENCE.
While on routine inspection, a member of the Liquor Control Enforcement Bureau
testified that he saw an unmarked closed box that he opened and found certain documents therein
which he concluded were evidence of a "33 football pool." There was not one scintilla of
evidence indicating that the Club, through its officers, knew or should have known what was in
that unmarked metal box.
Moreover, while neither of the two bartenders testified, (having asserted their 5`'
Amendment Right), statements taken from them at the time of the routine inspection indicated
that the bartenders were personally operating the "33" outside Club premises, not involving the
Club. Therefore, the charge of gambling cannot be sustained based upon the evidence presented.
V
•
0
B. ASSUMING THAT THE BUREAU HAS A
RIGHT TO ENFORCE THE LOCAL OPTION
SMALL GAMES OF CHANCE, THEY
FAILED TO FOLLOW THE REGULATIONS
OF TBE DEPARTMENT OF REVENUE.
, 61 Pa. Code, §901.28.
The Mechanicsburg Club, hereinafter Licensee, has previously argued that §471 of the
Liquor Code is a penalty provision and not a jurisdiction provision.
A review of §2-211 sets forth the enforcement powers of the Bureau which do not contain
a reference to the Local Option Small Games of Chance. See. 47 P&C.S.A. §2-211.
On the other hand, §4-471 of the Code, is a penalty section citing "other sufficient cause"
as the basis to justify imposition of suspensions on liquor licenses. The Bureau has continuously
mixed the two, utilizing §4-471 to justify the enforcement, when in fact, enforcement is not
provided absent express authorization under §2-211 of the Liquor Code.'
It is well settled that the authority of a state agency is only that which is given to them by
the legislature. An agency does not have the self-serving authority to go beyond the power given
to them by the legislature.
Clearly, the legislature made a distinction between those areas of the law in which the
Bureau has the authority to enforce (47 Pa. C.S.A. § 2-211) and that area of the law that
constitutes a penalty. See. 47 Pa.C.S.A. § 471.
Not withstanding the above, even if we were to assume that the Bureau has authority to
enforce the Small Games of Chance, that authority comes with again a price as established by the
'Several statutory construction rules are important in weighing §2-211 and §4-471 of the
Liquor Code. 1 Pa.C.S.A. §§ 1921 and 1922 provide that court cannot ignore the clear language
provided by the legislature. In addition, "when the words of a statute are clear and free from all
ambiguity, the letter of it not to be disregarded under the pretext of pursuing its spirit." See, I
Pa.C.S.A. § 1921(b). In addition, when the legislature saw fit to enumerate the Bureau's powers
under §2-211 after the Local Option Small Games of Chance was passed, 1 Pa.C.S.A. §1933
comes into play which provides that if there is a conflict between two provisions which are
irreconcilable, the special provision shall prevail over the general. Thus, the lack of enforcement
under §2-211 prevails over the general penalty provisions in §4-471.
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•
legislature in delegating the responsibilities to the Department of Revenue. See, 10 P.S. §311-
327.
Even if we were to assume that the Bureau does have enforcement authority under the
Department of Revenue, that enforcement authority comes with the following limitations:
Licensed premises or premises relating to or being
used for activities conducted under the Act ... .
shall be open to inspection by the Department or its
authorized representatives with or without prior
notice about the inspection shall.-
(2)take place only when a reasonable belief exists
that a violation of the Act or this part has occurred
is occurring or will occur.
(3)....
See. 61 Pa. Code, §901.28, subparagraph (2).
The agents who conducted the investigation of the club all, under oath, indicated that the
inspection was routine and there was no reason to believe that the Club was violating any
provisions of the Small Games of Chance that gave them that requisite authority to request the
records.
The Bureau cannot on one hand give itself authority to investigate within the jurisdiction
Department of Revenue and then at the same time, ignore the regulations that are attendant
thereto.
C. DISGORGEMENT IS NOT A REMEDY THAT
IS RECOGNIZED IN THE LAW. SEE, 47
PA.C.S.A, §4471. See, also, 10 Pa.C.S.A. §327.
See, also, 40 Ps.Code?
Z... The Pennsylvania Code, §901.51, under Powers and Duties of the Department of
Revenue, specifically enumerates the authority for administration of the Local Options Small
Games of Chance in subparagraph 10 which does not include the Liquor Control Board.
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• 0
The Bureau artfixlly argues that as long as due process is provided, the Licensee should be
satisfied. The Bureau cites Parkway Distributing; COmvany Liquor License, Pa.Super. ,
205 A.2d 660 (1964), as its authority.
Such argument, when applied to the Club herein, is untenable.
Not only does the Bureau believe it has the power to enforce the Local Option Small
Games of Chance, (although it is not contained within §2-211 of the Liquor Code); not only does
the Bureau believe it can enforce the Small Games of Chance without complying with the rules
and regulations established by the Department of Revenue, see 61 Pa. Code, 901.28(2), but the
Bureau now seeks a penalty that is in direct contravention of either the Liquor Statute, or the
Small Games of Chance Statute.
A review of 47 Pa.C.S.A., §4-471 contains the authority of the administrative law judge
and the Bureau in enforcing penalties. There is no provision regarding "disgorgement" of funds,
nor is there any provision as it relates to suspension of a license pending disgorgement. There is
a specific reference to suspension contained in subsection (c).
Likewise, in §327 of Title 10, there is a provision concerning the penalties for violating
the Local Option Small Games of Chance.
Therein lies no provision for disgorgement, and moreover, an express penalty if found to
have violate the Act.
Nonetheless, once again, the Bureau attempts to circumvent the authority established by
the legislature in the Liquor Code and the Small Games of Chance by developing this theory of
disgorgement.
That theory was first used in Pennsylvania State Police Bureau of Liquor Enforcement v.
Cor?oral Orlando Newcomer, et al., Citation No. 03-2021, in which there was an express finding
that proceeds of the small games of chance were being paid directly to club officers.
The irony of the Bureau's argument of "due process" as set forth in its Memorandum, is
the fact that a review of all the exhibits in the Club matter, including the citations and exhibits
before this administrative law judge contains not one scintilla of notice that they were seeking
disgorgement of all of the Club's assets.
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L
On one hand, the Bureau asserts that it can obtain jurisdiction of a statute over which it
does not have authority by insuring that a licensee has "due process," but on the other hand, fails
to present any notification whatsoever to the licensee that is seeking disgorgement of any, let
alone all of the assets of the Club.
Therefore, what is presented by the Bureau to this Administrative Law Judge is as
follows:
(a) Questionable authority under §2-211 to enforce the Small Games
of Chance.
(b) Non-compliance with Revenue regulations.
(c) Non-compliance with the penalty provisions of either the Liquor
Code or the Local Option Small Games of Chance as it relates to a
penalty.
D. Failure of the Bureau to place a licensee on notice of disgorgement
or penalty while at the same time, arguing that as long as a hearing
is held, that is sufficient due process.
For the above reasons, it is respectfully requested that compliance with the Liquor Code
and the Small Option Games of Chance is a prerequisite before we are going to place licensees in
a position of penalties, particularly penalties that are not authorized by either statute. (It should
be noted that in the Liquor Code, §4471, the penalties that could be imposed by the
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•
•
administrative law judge are expressly set forth statutorily. There is no provision for
disgorgement or penalty beyond that which was authorized the legislature.)
Respectfully submitted,
Mancke, Wagner, Spreha & McQuillan
Date: /A /' G ?
. #23103
2233 North Front Street
Harrisburg, PA 17110
(717) 234-7051
Attorneys for Licensee
-6-
COMMONWEALTH OF PENNSYLVANIA
GOVERNOR'S OFFICE OF GENERAL COUNSEL
December 16, 2008
The Honorable Daniel T. Flaherty, Jr.
Administrative Law Judge
Pennsylvania Liquor Control Board
Brandywine Plaza
2221 Paxton Church Road
Harrisburg, PA 17110-9661
RE: P S P . Bureau of Liquor Control Enforcement vs. The
aniClu.
Citation .06-2592 07-1537
Letter Brief - ONSE
Dear Judge Flaherty:
RECT o.A.L.J.-
2008 DEC 17 PM 1 45
Please accept this letter as the Commonwealth's response to the licensee's brief filed in case
06-2592 as well as in case 07-1537.
INTRODUCTION:
As noted in the Bureau's initial briefs filed in 06-2592 and 07-1537, the Bureau charged
licensee with violating various provisions of the Local Option Small Games of Chance Act
(LOSGCA). ' At hearing the Bureau presented the uncontradicted testimony of two Liquor
Enforcement Officers that substantiated all charges.
In the course of both hearings, and in its brief filed on November 25, 2008, licensee raised an
objection to the charges issued against licensee for violating.the LOSGCA. Licensee's position is
that the Bureau is not specifically listed in the LOSGCA as an entity given the power to enforce the
act. Therefore, according to licensee, the Bureau's investigation of licensee's small games of chance
sales, and subsequent issuance of an administrative citation against a liquor license, is improper.
The Bureau rejects this notion. Licensee participates in one of the most highly regulated
industries in the United States and as such its operations are subject to intense scrutiny. This
licensee made the sale of small games of chance a part of those operations and it must live with the
consequences. Under the doctrine of "other sufficient cause shown", the Bureau is clearly able to
I In 06-2592 licensee was also charged with several other violations not having to do with the LOSGCA; for the
u oses of this brief the Bureau will not address the ch es unrelated to the SGCA.
OFFICE OF CHIEF COUNSEL I PENNSYLVANIA STATE POLICE
BUREAU OF LIQUOR CONTROL ENFORCEMENT Pennsylvania
3655 VARTAN WAY I HARRISBURG, PA 17110 State POlit.e
Ph: 717-540-7414 Fx: 717-540-7461 www.nsu.state.pa.us
CJ
P.S.P., B.L.C.E. v. The Mechanicsburg Club
Citation 06-2592 & 07-1537
Page 2
December 16, 2008
Letter Brief - Response to Licensee
•
investigate and administratively cite the liquor license of an entity holding a small games of chance
permie if that same entity violates the LOSGCA.
JURISDICTION:
Generally speaking, the jurisdictional issue raised by licensee has been addressed by past
decisions of the Pennsylvania Supreme Court, the Commonwealth and Superior Courts, the various
Courts of Common Pleas as well as the Pennsylvania Liquor Control Board and the Office of
Administrative Law Judge.
In Commonwealth v. Lyons, 15 A.2d 851 (Pa.Super. 1940), the Superior Court noted that
violations of the liquor laws, on or off the premises, were not the only grounds upon which
disciplinary action could be initiated. The Superior Court found that the phrase "upon any other
sufficient cause shown" was obviously placed in the statute to provide the Board a "certain
supervisory power over the conduct of a licensee after a license has been granted." Based on this
reasoning, the Superior Court in Lyons affirmed the revocation of a liquor license stemming from the
licensee's criminal conviction of a gambling offense which took place off of the licensed premises.
The doctrine was affirmed in V J R Bar Corp v PLCB 390 A.2d 163 (Pa. 1978). In VLJ--R-,
the licensee was criminally charged with participating in gambling on the licensed premises. The
PLCB initiated an administrative action against the license based on the underlying conduct even
though the criminal charges were dismissed and gambling was not an enumerated offense in the
Liquor Code. In reviewing the question of whether the action could be sustained in the absence of a
criminal conviction, the Supreme Court cited with approval the Superior Court's treatment of this
issue in Lyons. Also see the Anneal of Banks, 467 A.2d 85 (Pa.Cmwlth. 1983) wherein the court
spoke of "other sufficient cause shown" and explained that it "reflects the legislature's recognition
that the remedial purposes of the statute would not best be served by an attempt to catalogue all the
possible grounds for disciplinary actions against licensees." Banks. 467 A.2d 85, 88 (Pa.Cmwlth.
1983).
In 1988, the Pennsylvania Supreme Court revisited the issue of "other sufficient cause
shown" in Pennsylvania Liquor Control Board v. T.L.K., Inc.. t/a Peter P544 A.2d 931(Pa.1988) .
In TLK, the lower court found that the licensee had aided and abetted in drug trafficking based on
evidence that the licensee's doorman had sold narcotics. The licensee was cited for a violation of the
Crimes Code: the Controlled Substance, Drug, Device and Cosmetic Act. As in the present case
involving the LOSGCA, a violation of the Crimes Code did not constitute a distinct violation of the
Liquor Code. Therefore, the licensee in TLK was charged under the concept of "other sufficient
cause." The license was revoked and upon appeal, the Pennsylvania Supreme Court broadly and
clearly affirmed the long standing principle that a violation of the Crimes Code or any penal statute
2 In order to avoid confusion, for the purposes of this brief, the small games of chance license will be referred to as a
"permit".
•
P.S.P., B.L.C.E. v. The Mechanicsburg Club
Citation 06-2592 & 07-1537
Page 3
December 16, 2008
Letter Brief - Response to Licensee
E
would constitute a basis for revoking a liquor license under "other sufficient cause." TLK at 933.
The weight of all this precedent makes clear that violations of criminal laws other than the
Liquor Code constitute sufficient cause to revoke or suspend a liquor license. It is equally clear that
this is principle equally translates to the realm of the LOSGCA. The LOSGCA is a penal statute, as
Section 327 of the LOSGCA imposes criminal liability for any violation of the act. 10 P.S. § 327.
Therefore, it is clear that any violation of the LOSGCA constitutes "other sufficient cause" set forth
in Section 471(a) of the Liquor Code, 47 P.S. §4-471, and is grounds for the Bureau to issue an
administrative citation against licensee's liquor license.
More specifically, the issue of "other sufficient cause shown" and its relationship to
violations of the LOSGCA has been addressed by the Dauphin County Court of Common Pleas in
the case of BLCE v Harrisb= Knight- of Columbus Home Association, NO. 2008 CV 04823 MD
(see attached copy) wherein that court found that violations of the LOSGCA constitute "other
sufficient cause show". Relatively recent decisions of the OALJ have also vindicated the Bureau's
position and found that violations of the LOSGCA constitute "other sufficient cause" under Section
471 of the Liquor Code. See BLCE v Rogers Israel Post No 11, American Legion Dent. of PA,
Adjudication No. 01-0630; BLCE v Social Labor Organization of Hublev Manufacturing Co.,
Adjudication No. 06-1592; BLCE v Loyal Order of Moose Middletown Lodge No. 410,
Adjudication 07-1238.
CONCLUSION:
The Bureau respectfully requests that this court reconfirm the conclusions made in Rogers
Israel Post No. I 1, Social Labor Organization of Hublev and Loyal Order of Moose Middletown, that
violations of the LOSGCA constitute "other sufficient cause" under Section 471 of the Code. Even a
cursory review of the case law leaves no doubt that under the doctrine of "other sufficient cause" the
Bureau had the authority to investigate all aspects of licensee's operation, including anything related
to its sale of small games of chance.
Thank you for your time and consideration in this matter.
Sincerely,
Andrew J. Lovette
Assistant Counsel
cc: P. Richard Wagner, Esq.
0 •
Mailing Date: MAY 0 2001
COMMONWEALTH OF PENNSYLVANIA
OFFICE OF ADMINISTRATIVE LAW JUDGE
FOR
PENNSYLVANIA LIQUOR CONTROL BOARD
PENNSYLVANIA STATE
POLICE, BUREAU OF Citation No. 06-2592
LIQUOR CONTROL ENFORCEMENT Incident No. W03-337434
V. LID - 23110
THE MECHANICSBURG CLUB
333 HEINZ STREET
MECHANICSBURG PA 17055-3211
CUMBERLAND COUNTY
LICENSE NO. CC-5354
BEFORE: JUDGE FLAHERTY
APPEARANCES:
For Bureau of Enforcement For Licensee
Andrew Lovette, Esquire P. Richard Wagner, Esquire
ADJUDICATION
BACKGROUND:
This proceeding arises out of a citation that was issued on November 16, 2006, by the
Bureau of Liquor Control Enforcement of the Pennsylvania State Police (hereinafter "Bureau")
against THE MECHANICSBURG CLUB, License Number CC-5354 (hereinafter "Licensee").
The citation contains four counts.
The first count charges Licensee with violation of Section 471 of the Liquor Code [47
P.S. §4-471] and Sections 5512 and/or 5513 and/or 5514 of the Crimes Code [18 Pa. C.S. §5512
and/or 5513 and/or 5514] in that on August 28, September 4, 6, 2006, and divers other occasions
in the past year, Licensee, by its servants, agents or employes, possessed or operated gambling
devices or paraphernalia or permitted gambling or lotteries, poolselling and/or bookmaking on
the licensed premises.
0 •
THE MECHANICSBURG CLUB
CITATION NO. 06-2592
PAGE 2
The second count charges Licensee with violation of Sections 5.71 and 5.74 of the Liquor
Control Board Regulations [40 Pa. Code §5.71 and 5.74] in that on September 19, 2006, and
divers other occasions in the past year, Licensee, by its servants, agents or employes, failed to
maintain records in conformity with Title 40 of the Pennsylvania Code.
The third count charges Licensee with violation of Section 471 of the Liquor Code [47
P.S. §4-471] and Section 315(b) of the Local Option Small Games of Chance Act [10 P.S.
§315(b)] in that during the periods July 31 through August 6, August 7 through 13, August 14
through 20 and August 21 through 27, 2006, Licensee, by its servants, agents or employes,
offered and/or awarded more than $5,000.00 in cash or merchandise in any seven day period.
The fourth count charges Licensee with violation of Sections.471 and 493(12) of the
Liquor Code [47 P.S. §§4-471 and 4-493(12)], Section 311 of the Local Option Small Games of
Chance Act [10 P.S. §311] and Section 901 of the Department of Revenue Regulations [61 Pa.
Code §901] in that on September 27, 2006, and divers occasions in the past year, Licensee, by its
servants, agents or employes, failed to maintain complete and truthful records covering the
operation of the licensed business for a period of two years concerning the Local Option Small
Games of Chance Act.
The investigation which gave rise to the citation began on August 7, 2006 and was
completed on October 5, 2006; and notice of the violation was sent to Licensee by Certified Mail
on October 26, 2006. The notice of violation was received by Licensee.
An evidentiary hearing was held on this matter on August 23, 2007 in the Office of
Administrative Law Judge, Brandywine Plaza, 2221 Paxton Church Road, Harrisburg,
Pennsylvania. The hearing was continued and finished on November 17, 2008
Upon review of the transcript of this hearing, we make the following Findings of Fact and
reach the following Conclusions of Law:
FINDINGS OF FACT:
COUNTS 1, 2.3 AND 4
1. On September 6, 2006, an officer of the Bureau entered the licensed premises at
10:35 a.m. There were six bartenders on duty at that time (N.T. 8-9).
2. The officer identified himself to one of the bartenders, Mr. Charles Sechrist by
badge and credentials and asked if there were any club officers present (N.T. 9).
3. The club president, John Renninger appeared. The club treasurer, Charles Way
was also present. The club manager, Mike Gallagher was summoned to the premises. The
officer identified himself to these three individuals and told them he was there to conduct a
"routine inspection" of the club (N.T. 9-10).
C?
THE MECHANICSBURG CLUB
CITATION NO. 06-2592
PAGE 3
4. The officer proceeded to the office area of Licensee club where he reviewed the
charter and bylaws for Licensee club. He also obtained membership information concerning the
classes of membership and the number of members (N.T. 10).
5. After completing the review of the aforementioned documents, the officer
returned to the barroom area to conduct a physical inspection of the bar counter area. He initially
approached Mr. Sechrist's work station. He went behind the service side of the bar counter. He
immediately took notice that there was a metal cash box on the island countertop behind the bar
(N.T. 10-11).
6. The officer looked in the cash box and found an NFL football pool (N.T. 11).
7. The officer also found in the cash box the following items:
(a) A payment sheet for individuals and pairs of individuals
who had paid to play in the pool.
(b) The actual pool itself entitled 112006/2007 - 33 Football
pool".
(c) 11 small manila envelopes each containing $170.00 with
names of individuals or nicknames written on the outside.
(N.T. 11-13 and Exhibit C-5).
8. Upon questioning Mr. Sechrist the officer learned that the pool belonged to a club
member named Mr. Sabochik and that Mr. Sechrist was assisting Mr. Sabochik in operating the
pool by accepting payments from persons wishing to participate in the pool. For each individual
or pair of participants, the fee for the entire 17-week NFL season was $170.00 or $10.00 per
week (N.T. 16-17).
9. The officer learned that the weekly payout for the pool would be $320.00. The
pool would run from one week to the next during the NFL season. If, during a particular week a
team would score exactly 33 points, the individual or pair of individuals that had that particular
team in the pool would win $320.00. In the event that none of the NFL teams scored exactly 33
points to designate a winner, the pot of $320.00 would carry over to the next week when the pot
would be $640.00 (N.T. 17).
0
10. The officer observed postings throughout the barroom area of the licensed
premises that warned persons not to engage in bookmaking or selling football spread tickets
(N.T. 19).
0
THE MECHANICSBURG CLUB
CITATION NO. 06-2592
•
PAGE 4
11. The officer discovered a number of cork bulletin boards with tickets posted on
them. On one of these bulletin boards he observed that the results of the drawing book were
posted. There was a record keeping sheet which contained the results of a September 4, 2006
weekly drawing. In looking at the record the officer became aware that for that date there were
seven different $500.00 pots and an eighth partial pot (N.T. 20-21 and Exhibit C-6).
12. The consideration for participants in the weekly drawing was $1.00 (N.T. 21).
13. There were multiple drawings and winners on Monday, September 4, 2006 (N.T.
21-22).
14. The officers also discovered the record of the weekly drawing on August 28,
2006. There were eight pots available and a ninth partial pot. The record shows that there were
two $250.00 winners and one $500.00 winner. There was also a winner of the partial pot, and
$35.00 had been paid out on that (N.T. 62 and Exhibit C-7).
15. The officer's attention was drawn to another posting on the bulletin board entitled
$100.00 loser drawing" for the date of August 26, 2006. When a member purchases a pull tab
ticket which is a loser, the member may put his member number on the ticket and throw the
ticket into a jar for a chance at another drawing. The member pays a consideration for each
ticket he places in the loser drawing jar. There were four $100.00 loser drawings and a fifth
partial for $23.00 on August 28, 2006 (N.T. 24-25 and Exhibit C-8).
16. The officer also found a posting for losers drawings for September 4, 2006. The
posting shows that there were two $100.00 drawing and a partial drawing of $84.00. The
winning tickets were attached to the card as well as the winning member's club number and
name (N.T. 25-26 and Exhibit C-9).
17. The officer found posted on the bulletin board the winners of 50150 drawings.
These drawings involved the sale of double coupon sequentially numbered tickets. The tickets
are torn in half upon sale. Each half bears the same number. One half is given to the player.
The other half is put into the pot for the drawing. The posting found was for drawings held on
September 4, 2006. These were two double coupon tickets for pots worth $500.00 and one ticket
for a partial pot of $54.00 (N.T. 26-28 and Exhibit C-10).
18. The officer also found posted on the bulletin board a winning ticket for a
merchandise raffle for a water cooler/fridge. This raffle again used the double coupon
sequentially numbered tickets. The drawing was held on September 4, 2006 (N.T. 28-29 and
Exhibit C-11).
0 •
THE MECHANICSBURG CLUB
CITATION NO. 06-2592
PAGE 5
19. The officer made a request for records that he would need to review on a return
visit in order to complete the inspection. He also made arrangements with Mr. Renninger and
Mr. Gallagher to return on another date. The specific records that he requested were: all
financial records required by Title 40, to include itemized cash income and expense records;
liquor and beer purchase invoices for the past two years; operating invoices to include small
games of chance including income and expense records related to small games of chance; bank
statements; cancelled checks; cash register tapes and payroll records (N.T. 30-31).
20. The officer also requested: minutes of club meetings; a listing of current club
officers with full name, address and telephone number (N.T. 31).
21. The officer further requested small games of chance recordkeeping be made
available including annual records, operating week records, itemized records per game, and
records concerning use of proceeds. Also requested were catering records (N.T. 31-32).
22. A written request for records was made by the officer which specified all of the
records indicated above. This was presented to Mr. Renninger who signed the request and
retained a copy(N.T. 32 and Exhibit C-12).
23. On September 27, 2006 the officer returned to the licensed premises to complete
the club routine inspection. At that time, he met with Mr. Renninger, Mr. Gallagher and the
bartender, Mr. Sechrist (N.T. 33).
24. In reviewing the minutes of meeting of Licensee club held on September 19, 2006
the officer noted that while a list of names of new member applicants was attached to the
minutes, the dates of application did not accompany the information for the new member
applicants (N.T. 34-35 and Exhibit C-13).
25. With respect to small games of chance the officer found that the only records
being maintained by Licensee were tickets for individual prizes in excess of $100.00 (N.T. 36-
37).
26. The officer asked if there was any documentary evidence of income and
expenditures with respect to the operation of small games of chance. Mr. Gallagher produced
the profit and loss statement for Licensee club for the period from September 2005 through
August, 2006. This statement listed under the general heading, "1 Entertainment (SGC Income)
some 35 different sources of income from small games of chance with a total income shown of
$1,686,829.00. Licensee provided no records detailing the items found in the profit and loss
statements (N, T. 37-40 and Exhibit C-14).
• •
THE MECHANICSBURG CLUB PAGE 6
CITATION NO. 06-2592
27. The officer explained to Mr. Gallagher and Mr. Renninger that he was obligated.
to identify what the operating week payouts on small games of chance were for Licensee. Mr.
Gallagher indicated that he would be able to identify these operating week payouts. On October
5, 2006, Mr. Gallagher delivered a sheet of paper upon which the following total payout figures
on small games of chance made by Licensee during the following seven day periods:
July 31-August 6, 2006 - $61,770.00
August 7-13, 2006 - $56,454.00
August 14-20,2006 - $58,529.00
August 21-27,2006 - $68,925.00
(N.T. 42-46 and Exhibit C-15).
CONCLUSIONS OF LAW:
Counts 1, 2, 3 and 4 of the citation are sustained.
DISCUSSION:
COUNT 1
Licensee held several drawings for different lotteries on each of the days enumerated in
Count No. I of the citation. All but one of these lotteries on each day was not entitled to
exemption under the Local Option Small Games of Chance Act (LOSGCA) [10 P.S. §311 et
seq.], and were therefore illegal lotteries maintained by Licensee which constitutes "other
sufficient cause" as that term is used under Section 471 of the Liquor Code [47 P.S. §4-4711.
Violation of a gambling statute by a liquor licensee is considered "other sufficient cause"
as that term is used in Section 471 of the Liquor Code (supra), thus subjecting the licensee to the
penalties provided by that section. Mar Kodis Diner, Inc. v. Commonwealth of PA Liquor
Control Board, 522 A.2d 940 (Pa. Cmwlth 1987).
Section 5512 of the Crimes Code [18 Pa. C.S. §5512] makes it unlawful to set up or
maintain any unlawful lottery or numbers game. The term "unlawful" as used in this section is
defined to mean, "...not specifically authorized by law."
The LOSGCA (supra) permits organizations holding Local Option Small Games of
Chance licensees to conduct weekly drawings, which are forms of lotteries.
Section 901.791(a) of the Local Option Small Games of Chance Regulations [61 Pa.
Code §901.791(a)) provides in part, as follows:
(a) A licensed eligible organization may sell chances for and
hold only one weekly drawing during an operating week...
• •
THE MECHANICSBURG CLUB PAGE 7
CITATION NO. 06-2592
In this case the record established that Licensee held multiple weekly drawings on the
dates enumerated in Count No. 1 of the Citation (See Findings No. 11-14). All but one of these
drawings on each of these dates was not authorized by the LOSGCA (supra) or its attendant
regulations (supra) and was an unlawful lottery under Section 5512 of the Crimes Code (supra).
In addition the record establishes that Licensee permitted football pools to be conducted
on the licensed premises. Such conduct is in violation of Section 5514 of the Crimes Code [18
Pa. C.S. §5514(5)] and also.subjects Licensee to the penalty provisions of Section 471 of the
Liquor Code (supra).
Section 5514(5) of the Crimes Code (supra) provides that a violation of that Section
occurs when a "person" being the owner, lessee or occupant of any premises, permits the same to
be used, for the purpose of pool selling or bookmaking.
In this case, during an inspection by an officer of the Bureau, the officer found, in plain
sight, on an island behind the bar a cash box which contained an NFL football pool payment
sheet for individuals who had won the pool and manila envelopes containing cash for the
winners of the pools (See Findings 6 and 7).
A bartender named Sechrist maintained that the pool belonged to a club member, and that
he (Mr. Sechrist) accepted payments from persons who wished to participate (See Finding 8).
It is therefore clear that Licensee permitted pool selling on the licensed premises which
also makes Licensee under appropriate circumstances subject to the penalty provisions of Section
471 (supra).
The Supreme Court of Pennsylvania has mandated that when a licensee has been found to
have committed a violation which is classified as "other sufficient cause," some element of
scienter must be present before the penalties set forth in Section 471 of the Liquor Code (supra)
may be applied. The test set forth by the court is as follows:
1. Whether the licensee knew or should have known of the
illegal activities by an employe or patron. If so, the licensee is
liable.
2. A licensee may defend his license by demonstrating he
took substantial, affirmative steps to guard against a known pattern
of illegal activities.
Pa. Liquor Control Board v. TLK, Inc., 544 A.2d 931 (Pa. 1988).
0 •
THE MECHANICSBURG CLUB
CITATION NO. 06-2592 PAGE 8
In this case, it is clear that the officers of Licensee were aware of the multiple weekly
drawings since the results were openly posted on bulletin boards. As to the football pool, I
conclude that if the officers of Licensee were not aware of this activity they should have been
since the cash box was in plain sight behind the bar and the bartenders were actively taking bets.
I do not believe that the presence of signs throughout the bar room area warning persons
not to engage in bookmaking or selling football spread tickets meets the test of "substantial
affirmative steps" under TLK (supra). It appears that these signs represented a token effort
which was largely disregarded by employes and members.
Based upon the foregoing, I conclude that the scienter required under TLK (supra) is
present and the charge in Count No. 1 of the citation is sustained.
COUNT 2
The minutes for the meeting of Licensee club held on September 19, 2006 did not contain
all of the information required by the regulations for applicants for membership.
Section 5.74(2) of the Regulations of the Liquor Control Board [40 Pa. Code §5.74(2)]
requires that club licensees shall maintain minute books which shall contain, among other things:
...(2) The names and dates of applicants for membership and the
dates the members were admitted and whether ballots were taken.
In this case, the officer found that, with respect to the minutes for the meeting held on
September 19, 2006 the names of the new members were attached to the minutes but the dates of
application did not accompany that information (See Finding No. 24). Consequently, Count No.
2 of the citation is sustained.
ISSUE COMMON TO COUNTS 3 AND 4
OTHER SUFFICIENT CAUSE
The Supreme Court of Pennsylvania has held that violation of the criminal laws of the
Commonwealth, where appropriate scienter is present constitutes "other sufficient cause" as that
term is used in Section 471 of the Liquor Code (supra). Pa. Liquor Control Board V. TLS, Ina
(supra).
Section 327 of the LOGSCA [10 Pa. C.S. §327] provides that anyone violating the
LOSGCA is subject to criminal sanctions. Therefore violations of the LOSGCA by liquor
licensees constitute "other sufficient cause" as that term is used in Section 471 of the Liquor
Code (supra) where the appropriate scienter is present.
With the foregoing in mind I will address Counts 3 and 4 of the Citation.
0 •
THE MECHANICSBURG CLUB
CITATION NO. 06-2592
COUNT 3
PAGE 9
The record establishes that Licensee made payouts on small games of chance during the
four weekly periods between July 31, 2006 and August 27, 2006 which significantly exceeded
$5,000.00 in each of these periods. The charge in Count No. 3 is, therefore, sustained.
Section 315(b) of the LOSGCA [10 P.S. §315(b)] provides as follows:
...(b) Weekly limit - No more than $5,000.00 in cash or
merchandise shall be awarded by any eligible organization in any
seven day period.
In this case the record establishes that licensee paid out on small games of chance during
the four 7-day periods between July 31, 2006 and August 27, 2006: $61,770.00, $56,454.00,
$58,529.00 and $68,925.00 consecutively (See Finding No. 27).
Since the violations within this count fall within the "other sufficient cause" language of
Section 471, my comments concerning scienter are incorporated herein by reference.
In light of the above, I conclude that the charge in Count 3 of the citation is sustained.
COUNT 4
Licensee's failure to keep any records with respect to small games of chance except
tickets for individual prizes in excess of $100.00 was in violation of Section 493(12) of the
Liquor Code [47 P.S. §4-493(12)], Section 311 of the SGOCA [10 P.S. §3111 and the Small
Games of Chance Regulations of the Department of Revenue [61 Pa. Code §901.1 et seq.].
Section 493(12) of the Liquor Code (supra) requires licensees to maintain com lete and
accurate records covering the operation of the licensed business for a period of two years.
Section 31.9 of the LOSGCA [10 P.S. §319] authorizes the Department of Revenue to
promulgate regulations to carry out the provisions of the LOSGCA. '
Section 317(f) of the LOSGCA [10 P.S. §317(f)] requires a licensee to make and keep
such records as the Department of Revenue shall prescribe and make such records available as
required by the Department of Revenue pursuant to regulation.
Section 901.461 of the Regulations of the Department of Revenue [61 Pa. Code
§901.461] requires that licensees maintain records regarding small games of chance for a period
of two years. Further, this section also requires eligible organizations keep and maintain annual
records of the activities related to small games of chance with separate totals of activities for
each operating week.
0 •
THE MECHANICSBURG CLUB PAGE 10
CITATION NO. 06-2592
The specific records which an eligible organization is required to keep are found at
Section 901.462 through 901.467 [61 Pa. Code §901.462 through 901.467].
Finally, Section 901.468 of the Regulations of the Department of Revenue [61 Pa. Code
§901.468] again provides that records including invoices shall be maintained for a minimum of
two years.
As previously indicated, the only records being maintained by Licensee with respect to
small games of chance were tickets for individual prizes in excess of $100.00 (See Finding No.
25).
Since the violation in this Count falls partially within the "other sufficient cause"
language of Section 471 of the Liquor Code (supra) my comments regarding scienter as found in
Count No. 1 are incorporate herein by reference. Here, as in Count No. 1, it is obvious that the
officers of Licensee club were aware of what records were not being kept with respect to local
option small games of chance.
Based upon the foregoing, Count No. 4 of the citation is sustained.
PRIOR RECORD:
Licensee has been licensed since September 26, 1952, and has had two prior violation(s)
since July 1, 1987, the date of establishment of the Office of Administrative Law Judge:
Citation No. 89-1041. Fine $900.00.
1. Possessed or operated gambling devices or
paraphernalia or permitted gambling or lotteries on
the licensed premises.
Citation No. 05-0611. Fine $250.00.
1. Offered and/or awarded more than $5,000.00 in
cash or merchandise in any seven day period.
February 13 through 19, 2005.
PENALTY:
Section 471 of the Liquor Code [47 P.S. §4471] prescribes a penalty of license
suspension or revocation or a fine of not less than $50.00 or more than $1,000.00 or both for
violations of the type found in this case.
THE MECHANICSBURG CLUB PAGE 11
CITATION NO. 06-2592
Under the circumstances of this case, the penalty imposed shall be as follows:
Count 1 - $350.00 fine
Count 2 - $250.00 fine
Count 3 - $1,000.00 fine and 10 days suspension
Count 4 - $1,000.00 fine
ORDER
THEREFORE, it is hereby ordered that Licensee THE MECHANICSBURG CLUB, pay
a fine of $2,600.00 within 20 days of the mailing date of this Order. In the event the
aforementioned fine is not paid within 20 days from the mailing date of this Order, Licensee's
license shall be suspended or revoked.
IT IS FURTHER ORDERED that Licensee's liquor license (including all permits)
License No. CC-5354 be suspended for a period often days BEGINNING at 7:00 am,
on Monday, August 17, 2009 and ENDING at 7:00 a.m. on Thursday, August 27, 2009.
Licensee is directed on August 17, 2009 at 7:00 a.m. to place the enclosed placard of
notice of suspension (identified as Form No. PLCB-1925 and as printed with red and black ink)
in a conspicuous place on the outside of the licensed premises or in a window plainly visible
from outside the licensed premises and to remove said license from the wall and place it in a
secure location.
Licensee is advised if replacement placards are needed for any reason they are available
at all Pennsylvania Liquor Stores/Wine & Spirits Shoppes.
The Bureau is directed to visit and monitor the aforementioned licensed premises for
compliance with this Order.
Licensee is authorized on August 27, 2009 at 7:00 a.m. to remove the placard of
suspension and return his license to its original wall location.
Jurisdiction is retained pending final resolution of the penalty in this matter.
Dated this A ay of May, 2009.
Daniel T. Flaherty, Jr., J.
an
0
THE MECHANICSBURG CLUB
CITATION NO. 06-2592
PAGE 12
MOTIONS FOR RECONSIDERATION MUST BE RECEIVED WITHIN 15 DAYS OF
THE MAILING DATE OF THIS ORDER IN THE OFFICE OF ADMINISTRATIVE
LAW JUDGE AND REQUIRE A $25.00 FILING FEE. A WRITTEN REQUEST FOR
RECONSIDERATION MUST BE SUBMITTED WITH THE FILING FEE.
Detach here and submit stub with payment
The fine must be paid by Treasurer's Check, Cashier's Check or certified Check.
Personal checks, which includes business-use personal checks, are not acceptable. Make
check payable to the Commonwealth of Pennsylvania and mail to:
PLCB-Office of Administrative Low Judge
Brandywine Plaza
2221 Paxton Church Road
Harrisburg PA 17110-9661
is
Citation No. 06-2592
The Mechanicsburg Club
OFFICE OF
ADMINISTRATIVE LAW JUDGE
DOCKET ENTRIES
CJ
DOCKET NO. 06-2592 DATE 06/24/09
LID - 23110
THE MECHANICSBURG CLUB
MECHANICSBURG CLUB THE
333 HEINZ ST
MECHANICSBURG PA
11 16 06 DATE OF CITATION
11 16 06 CITATION RECEIVED BY ALJ
11 16 06
AVERMENTS:
1. ON AUGUST 28, SEPTEMBER 4, 6, 2006, AND DIVERS OTHER
OCCASIONS IN THE PAST YEAR, POSSESSED OR OPERATED GAMBLING
DEVICES OR PARAPHERNALIA OR PERMITTED GAMBLING OR LOTTERIES,
POOLSELLING AND/OR BOOKMAKING ON YOUR LICENSED PREMISES, IN
VIOLATION OF SECTION 471 OF THE LIQUOR CODE, 47 P.S. SECTION
4-471 AND SECTIONS 5512 AND/OR 5513 AND/OR 5514 OF THE
CRIMES CODE, 18 PA. C.S. SECTIONS 5512 AND/OR 5513 AND/OR
5514.
2. ON SEPTEMBER 19, 2006, AND DIVERS OTHER OCCASIONS IN
THE PAST YEAR, FAILED TO MAINTAIN RECORDS IN CONFORMITY WITH
TITLE 40 OF PENNSYLVANIA CODE, IN VIOLATION OF SECTIONS 5.71
AND 5.74 OF THE LIQUOR CONTROL BOARD REGULATIONS, 40 PA.
CODE SECTIONS 5.71 AND 5.74.
3. DURING THE PERIODS JULY 31 THROUGH AUGUST 6,
AUGUST 7 THROUGH THROUGH 13, AUGUST 14 THROUGH 20 AND
AUGUST 21 THROUGH 27, 2006, OFFERED AND/OR AWARDED MORE
THAN $5,000.00 IN CASH OR MERCHANDISE IN ANY SEVEN-DAY
PERIOD, IN VIOLATION OF SECTION 471 OF THE LIQUOR CODE,
47 P.S. SECTION 4-471 AND SECTION 315(B) OF THE LOCAL
OPTION SMALL GAMES OF CHANCE ACT, 10 P.S. SECTION 315(B).
4. ON SEPTEMBER 27, 2006, AND DIVERS OTHER OCCASIONS IN
THE PAST YEAR, FAILED TO MAINTAIN COMPLETE AND TRUTHFUL
RECORDS COVERING THE OPERATION OF THE LICENSED BUSINESS
FOR A PERIOD OF TWO (2) YEARS CONCERNING THE LOCAL OPTION
SMALL GAMES OF CHANCE ACT, IN VIOLATION OF SECTIONS 471 AND
493(12) OF THE LIQUOR CODE, 47 P.S. SECTIONS 4-471 AND
4-493(12), SECTION 311 OF THE LOCAL OPTION SMALL GAMES OF
CHANCE ACT, 10 P.S. SECTION 311 AND SECTION 901 OF THE
DEPARTMENT OF REVENUE REGULATIONS, 61 PA. CODE SECTION
901./DB
05 03 07 PRE-HEARING MEMO COMPLETED BY PA STATE POLICE
•
OFFICE OF
ADMINISTRATIVE LAW JUDGE
DOCKET ENTRIES
DOCKET NO. 06-2592
LID - 23110
DATE 06/24/09
05 03 07 PRE-HEARING MEMO RECEIVED BY ALJ FROM PA STATE POLICE
05 04 07 PRE-HEARING MEMO SENT TO LICENSEE
05 24 07 PRE-HEARING MEMO RECEIVED FROM LICENSEE
05 24 07 RECEIVED ENTRY OF APPEARANCE FROM ATTORNEY:
P RICHARD WAGNER ESQ
2233 N FRONT ST
HARRISBURG PA
17110-0000
08 10 07 RECEIVED A SUPPLEMENT THE BUREAU'S PRE-HEARING
MEMORANDUM TO REFLECT THAT THE BUREAU MAY CALL TWO
ADDITIONAL WITNESSES IN THIS CASE. /LMY
08 23 07 HEARING CONTINUED. GRANTED BY JUDGE FLAHERTY AT THE REQUEST OF
FLAHERTY FOR THE FOLLOWING REASON:
WITNESSES NOT AVAILABLE. /LMY
09 11 07 BUREAU COUNSEL SUBMITTED A LETTER INDICATING THAT
THEY NEED ADDITIONAL TIME TO PROVIDE FURTHER INFORMATION
REGARDING THE WITNESSES IN THIS CASE. /AN
03 11 08 HEARING CONTINUED. GRANTED BY JUDGE FLAHERTY AT THE REQUEST OF
LOVETTE FOR THE FOLLOWING REASON:
THE PARTIES MAY READY A GLOBAL SETTLEMENT
05 01 08 HEARING CONTINUED. GRANTED BY JUDGE FLAHERTY AT THE REQUEST OF
LOVETTE FOR THE FOLLOWING REASON:
BUREAU NEED ADDITIONAL TIME TO PREPARE. LMY
07 15 08 HEARING CONTINUED. GRANTED BY JUDGE FLAHERTY AT THE REQUEST OF
WAGNER FOR THE FOLLOWING REASON:
ATTORNEY WAGNER IS NOT AVAIL. /LMY
07 15 08 JUDGE FLAHERTY GRANTED LICENSEE'S COUNSEL'S REQUEST
FOR A CONTINUANCE OF THE HEARINGS SCHEDULED FOR 8/7/08 AT
9:30 A.M. IN HARRISBURG. /CD
08 07 08 HEARING CONTINUED. GRANTED BY JUDGE FLAHERTY AT THE REQUEST OF
WAGNER FOR THE FOLLOWING REASON:
•
•
OFFICE OF
ADMINISTRATIVE LAW JUDGE
DOCKET ENTRIES
0
DOCKET NO. 06-2592 DATE 06/24/09
LID - 23110
08 07 08 ATTORNEY WAGNER IS NOT AVAILABLE. /LMY
09 16 08 HEARING CONTINUED. GRANTED BY JUDGE FLAHERTY AT THE REQUEST OF
WAGNER FOR THE FOLLOWING REASON:
ATTORNEY WAGNER IS NOT AVAILABLE. /LMY
11 17 08 HEARING HELD AT 09:30 AM IN HARRISBURG
11 26 08 RECEIVED LETTER AS THE COMMONWEALTH'S BRIEF IN THIS
MATTER WHICH WAS HEARD BY THE COURT ON AUGUST 23, 2007 AND
ON NOVEMBER 17, 2008. /LMY
12 04 08 RECEIVED LICENSEE'S BRIEF FROM ATTORNEY P. RICHARD
WAGNER. /LMY
12 12 08 RECEIVED LETTER FROM ATTORNEY WAGNER CONCERING
THE DUE DATE OF THE BRIEF. /LMY
12 17 08 RECEIVED COMMONWEALTH'S RESPONSE TO LICENSEE'S
BRIEF FOR THIS CASE. /LMY
12 19 08 RECEIVED A LETTER BRIEF FROM LICENSEE'S ATTORNEY
P. RICHARD WAGNER. /LMY
05 28 09 OPINION AND ADJUDICATION
FINE OF $2600.00 DUE 06/17/09 AND SUSPENSION OF 10 DAYS
EFFECTIVE 08/17/09 END 08/27/09
06 17 09 APPEAL FILED TO BOARD BY LICENSEE
06 17 09 BOARD APPEAL FILING FEE OF $35.00 PAID
06 24 09 FULL FINE UNPAID AT THIS DATE
06 24 09 RECORDS CERTIFIED
Office Chief Counse? Fax:717-787-8820 Jun 15
PLCe-1918 ft2
COMMONWF.ALTNOFPENNSYLVANIA APPEAL OF ADMINISTRATIVE
F LAIN JUDGE ADJUDICATION
ucwgRCONT COUrRaLB ..eoARo
9:43 P.02
OFFICE OF CHIEF COUNSEL
-? INSTRUCTIONS
1. Remit 35 fee payab to "PA Liquor Control Board" along with the original of this fully completed Appeal form. .
2. Type or prin lack ink all information except signatures.
3. Attach Copy of the Opinion and Adjudication of the Administrative Law Judge (AU) that is the subject of the Appeal.
4. Appeal must be fled or postmarked within 30 calendar days of the mailing date of the AU's Opinion and Adjudication; untimely filed
Appeals will be dismissed.
5. Sepd Appeal to_ Pennsylvania Liquor Control Board, ATTN: Office of Chief Counsel, Appeal OW Room 401, Capitol and Boas
Streets, Northwest Office Building, Harrisburg, PA 171240001.
6. Complete the following (as it appears on the ALJ's Opinion and Adjudication).
NAME OF UCENSEE PLCB LlCgNsE N0. CrrAnON NO.
NAME (IF ANY)
062592
ADDRESS OF PREMISES (STREET, RURAL ROUTE, P.O. BOX NO.) (POST OFFl 9) ($TAW ibp!
333 Heinz Street Mechanicsburg, PA 17055-3211
NAME OF
Cumberland
7_ This Appeal will be considered solely on the record made before the Administrative Law Judge.
In numbered paragraphs, specify how the Administrative Law Judge committed an error of law or abused his/her discretion or how
his/her decision was not based on substantial evidence. ' (Attach additional sheets if necessary.)
1. The Administrative Law Judge committed an error of law in penalizing the Licensee for
alleged violations of the Local Option Small Games of Chance Act (10 P.S. §315 (b)) in
that the Liquor Control Board does not have jurisdiction over administration
enforcement of Small Games of Chance.
IL The Administrative Law Judge erred in that the Liquor Control Board enforcement does
not have jurisdiction to enforce the Local Option Small Games of Chance.
M. The Administrative Law Judge erred in penalizing the Licensee as it relates to any
alleged violation of the Local Option Small Games of Chance in that jurisdiction lies
with the Department of Revenue and enforcement lies with law enforcement officials
which do not include by definition members of the Liquor Control Board enforcement.
IV. The Administrative Law Judge erred in the Findings of Fact 8 and 9, in that there was no
J testimony that any of the conduct occurred on the licensed premises. Further, the cash
t•,i box was unmarked, closed and had no indication whatsoever for what use the cash box
cy, was made.
W CO v
An alleged violation of Local Small Games of Chance constitutes an alleged violation of
v J ti that Act, and does not constitute a violation of any gaming statute as suggested by the
"io w ALJ.
.
c-.:) - n
DATE
•
PENNSYLVANIA LIQUOR CONTROL BOARD
Harrisburg, Pennsylvania 17124.0001
1N TIHE BCBLIC 1NTERFT
June 17, 2009
Andrew J. Lovette, Esquire
PENNSYLVANIA STATE POLICE
Bureau of Liquor Control Enforcement
3655 Varian Way
Harrisburg, PA 17110
RE: Appeal of:
The Mechanicsburg Club
333 Heinz Street
Mechanicsburg, PA 17055-3211
Citation No. 06-2592
Dear Mr. Lovette,
Telephone: 717-783-9454
FAX: 717-787-8820
Enclosed please find a copy of an appeal recently filed by Licensee's attorney, P. Richard
Wagner. The filing date of the appeal is June 17, 2009. The Board and its staff are reviewing
the file in an effort to determine whether the decision of the Administrative Law Judge was
supported by substantial evidence. When the Board has decided this appeal, you will be sent a
copy of its decision.
If you wish to respond to the matters raised by the appeal, please feel free to do so within fifteen
(15) days from the date of this letter. No response is necessary; however, if you file a timely
response, the Board will consider it prior to making its decision on the appeal at a formal open
meeting of the Board.
Very truly yours,
FAITH S. DIEHL
Chief Counsel
Enclosures
cc: Connie Davis, BLCE, Chief Counsel Office
P. Richard Wagner, Esquire
State Police Commander, District Office 43
Report Examining Unit, State Police
B. Peifer, Bureau of Licensing
Office of Administrative Law Judge Daniel Flaherty
VAS 1") 1 A! ()I IF( )„[I ml1 FAU'LoYER PROCEEDS BENEFIT ALL PENNSYLVANIANS
NOTICE OF RIGHT TO APPEAL
In the event the Bureau of Liquor Control Enforcement or the licensee shall feel
aggrieved by the decision of the Board, there shall be a right to appeal to the Court of
Common Pleas in the same manner provided by the Liquor Code for appeals from
refusals to grant licenses. Section 471 of the Liquor Code, which sets forth the
provisions for appeal from refusal to grant licenses, permits an appeal within thirty (30)
days of the Mailing Date of the Board's decision to the Court of Common Pleas of the
county in which the premises is located.
If you file a timely appeal to the Common Pleas Court, you may be entitled
automatically to a supersedeas (or stay) of the Order of suspension, revocation or fine
which has been issued in connection with your case. If the appeal to Common Pleas
Court would not operate as an automatic supersedeas, you may appeal to the Court for a
stay.
Section 471 of the Liquor Code sets forth the circumstances under which an
appeal to the Court of Common Pleas (as reviewing authority) shall not act as a
supersedeas, for example:
.. ... if the license has been cited and found to have violated section
493(1) insofar as it relates to sales to minors or sales to a visibly
intoxicated person, section 493(10) insofar as it relates to lewd, immoral
or improper entertainment or section 493(14), (16) or (21), or has been
found to be a public nuisance pursuant to section 611, or if the owner or
operator of the licensed premises or any authorized agent of the owner or
operator has been convicted of any violation of "The Controlled
Substance, Drug, Device and Cosmetic Act," or of 18 Pa. C.S. §§ 5902 or
6301, at or relating to the licensed premises, its appeal shall not act as a
supersedeas unless the reviewing authority determines otherwise upon
sufficient cause shown .....
Notice of the Board's Order has been sent to the Bureau of Liquor Control
Enforcement of the Pennsylvania State Police and the licensee.
If a licensee files an appeal, it is the licensee's responsibility to make certain that
the Bureau of Liquor Control Enforcement of the Pennsylvania State Police, 3655 Vartan
Way, Harrisburg, PA 17110-9758; the Liquor Control Board, Office of Chief Counsel,
401 Northwest Office Building, Capital and Forster Streets, Harrisburg, PA 17124-0001
and the Office of Administrative Law Judge, Brandywine Plaza, 2221 Paxton Church
Road, Harrisburg, Pa 17110-9661, receive notice of the filing of a timely appeal.
0 •
Mailing Date: July 15, 2009
PENNSYLVANIA LIQUOR CONTROL BOARD
HARRISBURG, PA 17124-0001
PENNSYLVANIA STATE POLICE, Citation No. 06-2592
BUREAU OF LIQUOR CONTROL
ENFORCEMENT
VS.
THE MECHANICSBURG CLUB
33 Heinz Street
Mechanicsburg, PA 17055-3211
License No. CC-5354
Counsel for Licensee: P. Richard Wagner, Esquire
MANCKE WAGNER SPREHA & McQUILLAN
2233 North Front Street
Harrisburg, PA 17110
Counsel for Bureau: Andrew Lovette, Esquire (Hearing)
Thomas M. Ballaron, Esquire (Appeal)
Pennsylvania State Police,
Bureau of Liquor Control Enforcement
3655 Vartan Way
Harrisburg, PA 17110
OPINION
The Mechanicsburg Club ("Licensee") appealed from the Adjudication
and Order of Administrative Law Judge Daniel T. Flaherty ("AL)"), wherein
the AL) sustained the citation, and imposed a penalty consisting of a two
• 0
thousand six hundred dollar ($2,600.00) fine, and a ten (10)-day
suspension of the license.
The citation consisted of four (4) counts. The first count of the
citation charged that Licensee violated section 471 of the Liquor Code and
sections 5512 and/or 5513 and/or 5514 of the Crimes Code in that on
August 28, September 4, 6, 2006, and divers other occasions over the past
year, Licensee possessed or operated gambling devices or paraphernalia or
permitted gambling or lotteries, poolselling and/or bookmaking on the
licensed premises. [47 P.S. § 4-471; 18 Pa. C.S. §§ 5512, 5513, 5514].
The second count of the citation charged that Licensee violated sections
5.71 and 5.74 of the Liquor Control Board Regulations in that on September
191 2006, and divers other occasions in the past year, Licensee failed to
maintain records in conformity with Title 40 of the Pennsylvania Code. [40
Pa. Code §§ 5.71, 5.74].
The third count of the citation charged that Licensee violated section
471 of the Liquor Code and section 315(b) of the Local Option Small
Games of Chance Act ("LOSGCA") by offering and/or awarding more than
five thousand dollars ($5,000.00) in cash or merchandise in any seven (7)-
day period, during the periods July 31 through August 6, August 7 through
2
0 0
13, August 14 through 20, and August 21 through 27, 2006. [47 P.S. §
4-471; 10 P.S. § 315(b)].
The fourth count charged that Licensee violated section 471 and
493(2) of the Liquor Code, section 311 of the LOSGCA, and section 901
of the Department of Revenue Regulations by failing to maintain complete
and truthful records covering the operation of the licensed business for a
period of two (2) years immediately preceding September 27, 2006?
concerning the LOSGCA.- [47 P.S. §§ 4-471, 4-493(2); 10 P.S. § 311;
61 Pa. Code § 901 ].
Pursuant to section 471 of the Liquor Code [47 P.S. § 4-471], the
appeal in this case must be based solely on the record before the ALI. The
Board shall only reverse the decision of the AL) if the AL] committed an
error of law or abused his discretion, or if his decision was not based upon
substantial evidence. The Commonwealth Court defined "substantial
evidence" to be such relevant evidence as a reasonable person might accept as
adequate to support a conclusion. joy Global, Inc. v. Workers'
Compensation Appeal Bd. (Hogue), 876 A.2d 1098 (Pa. Cmwlth. 2005);
Chapman v. Pennsylvania Bd. of Probation and Parole, 86 Pa. Cmwlth. 49,
484 A.2d 413 (1984).
3
C-]
J
The Board has reviewed the certified record, including the Notes of
Testimony from hearings held on August 23, 2007, and November 17,
2008, as well as the ALI's Adjudication and Order, with Licensee's
contentions in mind and has concluded that the ALI's ruling is without error
and is supported by substantial evidence. Accordingly, we affirm.
Licensee raises five (5) issues on appeal. First, Licensee contends the
AL] committed an error of law in penalizing Licensee for alleged violations of
the LOSGCA, in that the. Pennsylvania Liquor Control Board ("Board") does
not have jurisdiction over administration of small games of chance. [10 P.S.
§ 315(b)]. Licensee next avers that the ALI erred since the Board does not
have jurisdiction to enforce the LOSGCA. Licensee's third issue on appeal is
that the AL) erred in penalizing Licensee for any violation of LOSGCA since
enforcement of the act lies with law enforcement officials which do not
include members of the Pennsylvania State Police, Bureau of Liquor Control
Enforcement ("Bureau"). In its fourth issue, Licensee contends the AL) erred
in his Findings of Fact 8 and 9 (cash box and football pool), in that there was
no testimony that any of the illegal conduct occurred on the licensed
premises. Finally, Licensee maintains that an alleged violation of the
4
• 0
LOSGCA constitutes an alleged violation of that Act, and does not constitute
a violation of any gaming statute as suggested by the AL].
As to issues I, II, III, and V, Licensee essentially argues that the Board
cannot impose sanctions on a licensee for operating small games of chance
that violate the provisions of the LOSGCA'. The Board rejects this
argument. By citing a licensee for its failure to comply with the LOSGCA,
the Board is not seeking to enforce the LOSGCA; rather it is complying with
the legislative mandate that it enforce the provisions of the Liquor Code. [47
P.S. § 2-2111.
Section 471 of the Liquor Code states, in part, that the Bureau may
issue a citation and order a licensee to appear before an administrative law
judge "upon any other sufficient cause shown." [47 P.S. § 4-471(a)]. This
catch-all phrase was specifically included in the Liquor Code to provide the
ample powers of enforcement needed to ensure the protection of the public
welfare, health, peace and morals of the people of the Commonwealth. Such
a broad provision is required because "it is almost impossible to anticipate all
of the actions that may justify enforcement." In Re Quaker City
1 The Board notes that Licensee does not challenge the sufficiency of the evidence to establish the violations, only
the authoritv of the Board to act.
5
• •
Development Co., 365 A.2d 683 (Pa. Cmwlth. 1976). Consequently, the
Board has been assigned the task of monitoring all conduct reasonably related
to the sale and use of alcoholic beverages, not just enforcing the laws directly
related to the sales of liquor and malt or brewed beverages.
The courts have held that "other sufficient cause shown" includes a
variety of conduct not expressly prohibited by the statute but related to the
sale and use of alcoholic beverages. Examples of prohibited conduct include
drug trafficking, prostitution, gambling and disorderly conduct. Pennsylvania
Liquor Control Board v. T.L.K., 544 A.2d 931 (Pa. 1988) (drug
trafficking); V.Q.R. Bar Corp. v. Pennsylvania Liquor Control Board, 390
A.2d 163 (Pa. 1978) (gambling); Tahiti Bar, Inc. Liquor License Case, 150
A.2d 112 (1959) (prohibiting association between entertainers and
patrons); In re Ciro's Lounge, Inc., 358 A.2d 141 (Pa. Cmwlth. 1976)
(noisy and disorderly conduct); Reiter Liquor License Case, 98 A.2d 465
(Pa. Super. 1953) (presence of prostitutes, lewd acts, obscene language, and
noisy and disorderly conditions on premises). Each of these activities, when
conducted in a licensed establishment, disrupts the orderly and peaceful sales
and use of alcoholic beverages. Thus, because the troublesome conduct
occurs on a licensed premises, the Board has the authority to take action.
6
•
When small games of chance are conducted in a licensed establishment,
all laws governing their operation must be followed. The LOSGCA governs
the operation of small games of chance. [ 10 P. S. 311 et seg.]. The
penalties for failure to comply with the LOSGCA include summary and
misdemeanor criminal charges, fines, and forfeiture of the license. [ 10 P.S. §
327]. When a licensee does not comply with the provisions of the
LOSGCA, unlawful and criminal behavior occurs on a licensed premises. Like
drug trafficking and prostitution, unlawful small games of chance disrupt the
orderly and peaceful sales and use of alcoholic beverages. Therefore, the
Board has the authority to regulate this activity, and is required to do so,
under the legislative mandate found in the Liquor Code.
Licensee argues that the actions of the Board, the Bureau, and the AL]
constitute enforcement of the LOSGCA. This position is incorrect. Each
count of the citation was based on a violation of the Liquor Code or Board
Regulations. Furthermore, the penalties imposed by the AL] were those
dictated by section 471 of the Liquor Code, not the penalties set forth in the
LOSGCA [47 P.S. § 4-471; 10 P.S. § 327.]. The Board was enforcing the
Liquor Code and Board Regulations, not the LOSGCA.
7
0 •
Licensee does not dispute that there is sufficient substantial evidence to
prove the violations set forth in Counts Three (3) and Four (4) of the
Citation. Therefore, upon a finding that the Board has the authority to
regulate conduct that occurs on a licensed premises as part of its duty to
enforce the Liquor Code, including the operation of small games of chance,
the first three, as well as the fifth issue raised on appeal by Licensee, are
dismissed.
The Board now turns its attention to the fourth issue of Licensee's
appeal. Although it is not clear, it appears that Licensee is arguing there is
insufficient substantial evidence to prove that the illegal gambling referenced
in the AL]'s Finding of Fact 8 and 9 occurred on the licensed premises and
that there is insufficient evidence to establish the use of the cash fund box that
is referenced in those findings.
The record reveals the findings are based on ten (10) pages of
testimony regarding the grey cashbox that was observed by Officer Royer of
the Bureau during a routine club inspection. [N.T. 10 - 20]. Officer Royer
testified about his interview with Charles Sechrist, a club bartender, during
which they discussed the cashbox located in plain view near the cash register
at the bar and the evidence of a football pool contained in the box. [N.T.
8
• 0
15 - 18]. Mr. Sechrist stated the football pool belonged to a club member,
Steven Sabochick, and that it was his job to collect ten dollars ($ 10.00) per
week from pool participants. [N.T. 16]. Furthermore, Mr. Sechrist went
into great detail about how the pool operated, when payouts would be made,
and how the payout was calculated. [N.T. 17]. Clearly there is substantial
evidence in the record to support the AL]'s eight and ninth Findings of Fact.
Accordingly, the appeal of Licensee must be dismissed.
9
0
ORDER
The decision of the ALI is affirmed.
The appeal of Licensee is dismissed.
It is hereby ordered that Licensee pay the fine of two thousand
($2,600.00) dollars within twenty (20) days of the mailing date of this
Order. Failure to do so will result in license suspension and/or revocation.
It is further hereby ordered that Licensee's Catering Club Liquor License
No. CC-5354 be suspended for a period of ten (10) days, beginning at 7:00
a.m. on Monday, August 24, 2009 and ending at 7:00 a.m. on Thursday,
September 3, 2009.
The case is hereby remanded for imposition of the fine and license
suspension.
Licensee must adhere to all other conditions set forth in the ALI's
Order dated May 28, 2008.
Board Secretary
10
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Thomas M. Ballaron, Assistant Counsel
PA Supreme Court ID, #23370 F-1 LE_ 0-0 F I'aE
Pennsylvania State Police l N °
Bureau of Liquor Control Enforcement
3655 Vartan Way 2G! 1 JUG! 10 PM 3: 3
Harrisburg, PA 17110
(717) 540-7411 rUMBERLAND
Attorney for Appellee PENN 1 LVA NI
PENNSYLVANIA STATE POLICE, IN THE COURT OF COMMON PLEAS OF
BUREAU OF LIQUOR CONTROL CUMBERLAND COUNTY, PENNSYLVANIA
ENFORCEMENT, ,
Appellee
VS.
DOCKET # CP-21 SA 77-2009 (Criminal)
THE MECHANICSBURG CLUB, ,
Appellant 09-5652 CIVIL TERM
ORDER
AND NOW, this !O` day of June, 2011, the above-captioned matters having been filed
as statutory appeals from the Opinion and Order of Pennsylvania Liquor Control Board and
Magisterial District No. 09-3-05,
Upon joint motion of the Pennsylvania State Police, Bureau of Liquor Control
Enforcement (Commonwealth or Bureau) and the Mechanicsburg Club (Club or Licensee) to
settle and resolve the above-captioned matters through the attached Consent Agreement,
And Upon De Novo review and consideration of the Parties' Consent Agreement,
Stipulations of Fact and Adjudications of the Office of Administrative Law Judge for Citation
Nos. 06-2592, 07-1537 and 09-1679,
The Court Adopts and Incorporates by reference the Stipulations of Fact & Agreement of
Counsel with respect to Administrative Citations 06-2592, 07-1537 and 09-1697, and Summary
Criminal matters, as Findings of Fact in the above-captioned appeals; and concludes as a matter
of law that the Club violated the Local Option Small Games of Chance Act, 10 P.S. § 311, and
Liquor Code, 47 P.S. § 4-471, as alleged in the incorporated administrative citations, non-traffic
citations; and Solicitation of Funds for Charitable Purpose Act (SFCPA), 10 P. S. § 1621.
IT IS THEREFORE ORDERED AS FOLLOWS:
(1) The Club will pay an administrative fine of $2,600 (from Adjudication 06-2592;
docketed above at 09-5652 Civil Term) within 20 days of the mailing date of this Order to the
Office of Administrative Law Judge.'
(2) The Licensee's Club Liquor License No. CC-5354, including all permits, (except
for the LOSGCA Permit issued by the Cumberland County Treasurer) is suspended for a period
of seventy days [20 days with respect to Citation 07-1537; 40 days with respect to Citation 09-
1679 (Count 1: 5 days; Count 2: 5 days; Count 3: 10 days; Count 4: 10 days and Count 5:
10 days); 10 days with respect to Citation 06-2592]. The seventy (70) days suspension is held in
abeyance in favor of a period of probation as set forth below.
(3) The Club will disgorge the amount of $1,000,000.00 to be paid to legitimate
charities of its choosing as follows:
(a) The sum of $750,000 will be paid to the selected charities upon
issuance of the within Order of Court.
(b) Correspondence identifying the selected charities and copies of the
subject checks will be filed by the Club with this Court and with the
Commonwealth within five (5) business days of payment.
(c) The Club will pay the remaining $250,000 within one (1) year of
the execution of the within Order of Court to legitimate charities of its
choosing.
(d) Correspondence identifying the selected charities and copies of the
subject checks will be filed by the Club with this Court and with the
Commonwealth within five (5) business days of payment.
(4) Unless the Club violates the terms of probation, the Commonwealth will not file
or initiate:
(a) Any legal action under the Solicitation of Funds for Charitable
Purposes Act, 10 P.S. § 162.1, or make a referral to any enforcement
agency for this purpose to recover small games proceeds from 2004-2008.
The Club paid the Administrative fine of $7,000.00 ($2,000 from Adjudication 07-1537; $5,000 from
Adjudication 09-1679 - $1,000 per count) on April 25, 2011 to the Office of Administrative Law Judge pursuant to
Consolidated Adjudication 09-1679 & 07-1537 [Mailing Date: March 21, 2011].
2
(b) Any legal action to suspend or revoke the Club's LOSGCA Permit
or make a referral for this purpose to any law enforcement agency based
upon the facts and circumstances of any of the above-noted administrative
or criminal matters. The Club's violation of the LOSGCA will not
constitute a basis for revoking the Club's LOSGCA permit under § 322
(10 P.S. §322) or a conviction under Section 327(a) of the LOSGCA
[10 P.S. § 327(a)] unless the Club violates the terms of probation.
(c) Any criminal actions under the LOSGCA based upon or arising
from any conduct of the Club involving the LOSGCA between 2007 and
2008 or make a referral for this purpose to any law enforcement agency.
(5) The Club is placed on probation as follows:
(a) The term of probation will begin with the issuance of the within
Order and continue for a period of at least one year expiring upon the
expiration of one (1) calendar year from the mailing date of this Order or
as specified in any Supplemental Order of this Court.
(b) The Club will comply with the Liquor Code and the LOSGCA; its
attendant regulations, and the terms and provisions of this Order.
(c) The Club will pay the sum of $1,000,000.00 to legitimate charities
previously selected by the Club as set forth above.
(6) Upon satisfaction of the terms of probation as set forth above, this Court will
mark the aforementioned seventy (70) days suspension as VACATED.
(7) The Club's administrative appeal of Citation 06-2592 docketed above at 09-5652
(Civil Term) and the Club's Summary Criminal Appeals docketed at CP-21 SA 77-2009
(Criminal) are dismissed.
(8) The Club's failure to comply with any of the provisions of this Order will
constitute a violation of probation and may cause the full seventy (70) days of suspension to be
served on dates specified in a Supplemental Order to be issued by this Court.
BY THE COURT:
V B't-,S Ar. A 114,v 1, &.5;
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KEVIN ESS P.J.
3
Thomas M. Ballaron, Assistant Counsel
PA Supreme Court ID #23370
Pennsylvania State Police
Bureau of Liquor Control Enforcement
3655 Vartan Way
Harrisburg, PA 17110
(717) 540-7411
Attorney for Appellee
PENNSYLVANIA STATE POLICE,
BUREAU OF LIQUOR CONTROL
ENFORCEMENT,
Appellee
VS.
THE MECHANICSBURG CLUB,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET # CP-21 SA 77-2009 (Criminal)
09-5652 CIVIL TERM
CONSENT AGREEMENT AND ORDER
The Commonwealth of Pennsylvania, Pennsylvania State Police, Bureau of Liquor
Control Enforcement and The Mechanicsburg Club agree and stipulate as follows in settlement
of the above-captioned cases.
1. STATEMENT OF JURISDICTION:
Jurisdiction in this matter is vested in the Cumberland County Court of Common Pleas
pursuant to the Solicitation of Funds for Charitable Purposes Act (SFCPA), 10 P.S. §§ 162.1
through 162.24, and Section 471 of the Liquor Code, 47 P.S. § 4-471(b).
II. PARTIES:
The Pennsylvania State Police, Bureau of Liquor Control Enforcement (Commonwealth)
is responsible for enforcing the Liquor Code, 47 P.S. § 1-101 et se .'
1 The Bureau of Liquor Control Enforcement Zl lsto enforce the Pennsylvania te Police authorized
Code andsts attendant regulationsursuant
to Section 211 of the Liquor Code, 47 P. §
The Mechanicsburg Club (Club) is the holder of Pennsylvania Liquor License No. CC-
5354, for the premises located at 333 Heinz Street, Mechanicsburg, PA 17055-3211. This
license was issued by the Pennsylvania Liquor Control Board (PLCB) and is current. The Club
holds a Permit issued under the Local Option Small Games of Chance (LOSGCA), 10 P.S.
§ 311, allowing the Club to sell "small games of chance" in order to raise and solicit funds for
charitable and public interest purposes. These Permits are issued by the County Treasurer under
the authority of Section 320 of the LOSGCA (10 P.S. § 320). The Club's sales of small games
of chance constitutes "fundraising" under the SFCPA.
III. STATEMENT OF INTENT:
(a) The parties have seven (7) cases, as more specifically described in the Procedural
History, before the Administrative Law Judge (two Administrative citations) and
before this Court (one Administrative Appeal at 09-5652; four summary criminal
appeals at CP-21 SA 77-2009).
(b) The cases share similar factual and legal issues involving the LOSGCA.
(c) It is the intention of the Parties to amicably resolve the seven (7) cases in a
manner consistent with sound public policy and the interests of both parties. The
Parties believe and therefore aver that the proposal for a global settlement is in the
interest of judicial economy by bringing to conclusion multiple legal actions
without further litigation and appeals. More importantly, the global settlement
will accrue to the public interest by directing $1,000,000 to local charities in a
time of acute need.
IV. PROCEDURAL HISTORY:
(a) CITATION No. 06-2592:
On November 16, 2006, the Commonwealth filed administrative Citation
No. 06-2592 against the Club alleging violations of the LOSGCA and Liquor
Code (Citation No. 06-2592 is incorporated herein and attached as Exhibit 1).
The allegations which are directly relevant to the present agreement involved
unlawful gambling, record keeping violations, and exceeding the payout
2
limitations of the LOSGCA. This case was heard by Administrative Law Judge
Flaherty on August 23, 2007, and November 17, 2008. An Adjudication was
issued (Mailing Date: May 28, 2009) sustaining the Citation. An appeal was filed
by the Club to the Pennsylvania Liquor Control Board (PLCB) and was dismissed
by the Board on July 15, 2009. A second appeal was filed to this Honorable
Court on August 12, 2009; the proceedings on appeal have been stayed pending
the within settlement. (The ALJ's Adjudication and the PLCB's Opinion are
collectively incorporated herein and attached as Exhibit 2.)
(b) CITATION No. 07-1537:
On July 12, 2007, the Commonwealth issued the second administrative
Citation against the Club again alleging violations of the LOSGCA and Liquor
Code (Citation No. 07-1537 is incorporated herein and attached as Exhibit 3).
The allegations which are directly relevant to the present agreement involved
record keeping violations, exceeding the payout limitations and misuse of the
proceeds from the sales of small games. An evidentiary hearing was held on
November 17, 2008, by Administrative Law Judge Flaherty. An Adjudication
and Order was issued on October 15, 2009 sustaining each of the three (3) counts
filed against the Club (The Adjudication is incorporated herein and attached as
Exhibit 4). Upon the joint request of the Parties, the ALJ held his Order in
abeyance pending the within settlement.
(¢) CITATION No. 09-1679:
On July 9, 2009, a third Administrative Citation was issued against the
Club again alleging violations of the LOSGCA and Liquor Code (Citation
No. 09-1679 is incorporated herein and attached as Exhibit 5). The allegations
3
which are directly relevant to the present agreement again involved unlawful
gambling, record keeping violations, exceeding the payout limitations and misuse
of the proceeds from the sales of small games. Upon the joint request of the
Parties, proceedings in this matter were stayed and an evidentiary hearing was
r -ZI if 01
7
not held pending the within settlement. On -, ALJ Flaherty issued his
adjudication in this Citation based upon stipulated facts of counsel and issued a
Consolidated order in which he ordered fines in the amount of $2,000 (Citation
No. 07-1537) and $5,000 (Citation No. 09-1679) paid to the Commonwealth, in
which he ordered the liquor license of the Club suspended for a total of 60 days
(20 days in 07-1537; 40 days in 09-1679) and disgorgement of more than
$800,000 representing proceeds from sales of small games, to be paid to
legitimate charities. Both the suspensions and disgorgement provisions were held
in abeyance in favor of a period of probation to run concurrent with that imposed
as part of the within Consent Agreement (The Consolidated Order is incorporated
herein and attached as Exhibit 6).
(d) NON-TRAFFIC SUMMARY CITATIONS:
On December 17, 2008, three (3) Non-Traffic Summary Citations
(Nos. U0007717-3, U0007717-4 and U0007717-5) alleging violations of the
LOSGCA which mirrored the administrative charges in Administrative Citation
No. 07-1537 were filed against the Club and a single Non-Traffic Citation
(No. U0007717-6) was filed against Michael H. Gallagher, manager of the Club,
alleging record keeping violations under the LOSGCA. These cases were filed in
Magisterial District 09-3-05, 507 North York Street, Mechanicsburg, PA 17055.
4
On March 18, 2009, the summary charges were heard by District Justice
Bria and following the close of the record, the District Justice entered four (4)
guilty verdicts with maximum fines; each was subsequently appealed to this Court
after which the same were continued generally pending the within settlement.
V. STIPULATED FACTS:
(a) CITATION No. 06-2592:
The Parties agree and stipulate to the findings of fact set forth by the ALJ in its
adjudication, which are incorporated herein by reference as if fully set forth. See
Exhibit 2.
(b) CITATION No. 07-1537:
The Parties agree and stipulate to the findings of fact set forth by the ALJ in its
adjudication, which are incorporated herein by reference as if fully set forth. See
Exhibit 4.
(C) CITATION No. 09-1679:
The Parties agree and stipulate to the findings of fact set forth by the ALJ in its
adjudication which are incorporated herein by reference as if fully set forth. See
Exhibit 6.
(d) NON-TRAFFIC SUMMARY CITATIONS:
The Parties agree and stipulate that the facts underlying Administrative Citation
No. 07-1537 constitute the factual basis of the aforementioned non-traffic
summary citations.
VI. SETTLEMENT AGREEMENT:
The Parties agree that the aforementioned cases should be settled as follows:
1. The Parties agree to combine the three (3) administrative cases as
evidenced by the ALJ's Consolidated Order and four (4) non-traffic
summary cases and to request this Court to impose a single integrated
penalty consistent with the described global settlement.
2. The Parties agree that the aforementioned stipulations of fact shall be
offered to this Court in lieu of trial and that the stipulations of fact set
forth violations of the LOSGCA and Liquor Code as alleged in the
respective administrative citations and non-traffic summary citations; and
5
the Solicitation of Funds for Charitable Purposes Act (SFCPA), 10 P.S. §
162.1.
3. The Club will pay the sum of $1,000,000 to legitimate charities of its
choosing as follows:
(a) The sum of $750,000 will be paid to the selected charities
upon issuance of an Order of Court approving of the within Consent
Agreement.
(b) Correspondence identifying the selected charities and
copies of the subject checks will be filed by the Club with this Court and
with the Commonwealth within five (5) business days of payment.
(c) The Club will pay the remaining $250,000 within one (1)
year of the execution of the Consent Agreement to legitimate charities of
its choosing.
(d) Correspondence identifying the selected charities and
copies of the subject checks will be filed by the Club with this Court and
with the Commonwealth within five (5) business days of payment.
4. The Club will withdraw its summary criminal appeals as listed above and
tender payment of the imposed fines to this Court within 20 days of the
approval of the within Consent Agreement.
5. The Commonwealth will not file or initiate any legal action under the
Solicitation of Funds for Charitable Purposes Act, 10 P.S. § 162. 1, or
make a referral to any enforcement agency for this purpose to recover
small games proceeds from 2004-2008.
6. The Commonwealth will not file or initiate any legal action to suspend or
revoke the Club's LOSGCA Permit or make a referral for this purpose to
any law enforcement agency based upon the facts and circumstances of
any of the above-noted administrative or criminal matters.
7. The Commonwealth will not file or initiate any criminal actions under the
LOSGCA based upon or arising from any conduct of the Club involving
the LOSGCA between 2007 and 2008 or make a referral for this purpose
to any law enforcement agency.
8. The Parties request this Court to dismiss the Club's administrative appeal
at 06-2592 and to impose a 10-day suspension as well as a $2,600 fine as
specified in the underlying Adjudication. The Club will pay this fine to
the Office of Administrative Law Judge.
6
9. The Parties request this Court to incorporate the consolidated suspension
imposed by ALJ Flaherty of 60 days (40 days at 09-1679; 20 days at 07-
1537) together with the 10-day suspension at 06-2592, and hold the total
of 70 days suspension of the Club's Liquor License in abeyance in favor
of a period of probation of one (1) year after which the 70-day suspension
will be marked as vacated.
Respectfully submi ted,
THOMAS M. BALLARON, ESQ. DATED
Attorney for Pennsylvania State Police,
Bureau of Liquor Control Enforcement
3655 Vartan Way
Harrisburg, P 17110
(717)540-7
CHA VAGNER, ESQ. DATED
Attorne The Mechanicsburg Club
e, Wagner, Spreha & McQuillan
2233 North Front Street
Harrisburg, PA 17110
(717) 234-7051
7
COMMONWEALTH OF PENNSYLVANIA
OFFICE OF ADMINISTRATIVE LAW JUDGE
FOR
PENNSYLVANIA LIQUOR CONTROL BOARD
PENNSYLVANIA STATE POLICE,
BUREAU OF LIQUOR CONTROL
ENFORCEMENT
VS.
CITATION NO. 07-1537
CITATION NO. 09-1679
THE MECHANICSBURG CLUB LID No. 23110
License No. CC-5354
STIPULATIONS OF FACT & AGREEMENT OF COUNSEL
Counsel for the Bureau of Liquor Control Enforcement (Commonwealth) and for The
Mechanicsburg Club (Club) stipulate and agree that this matter should proceed on the basis of
the following Stipulations:
INTRODUCTORY STIPULATIONS OF FACT:
1. The Bureau of Liquor Control Enforcement is a subdivision of the Pennsylvania State
Police authorized pursuant to Section 211 of the Liquor Code, 47 P. S. §2-211, to enforce the Liquor
Code and its attendant regulations.
2. The Club is a Pennsylvania corporation and is the owner and holder of Pennsylvania
Liquor License No. CC-5354 for the premises located at 333 Heinz St., Mechanicsburg, PA 17055-
3211. The said license was issued by the Pennsylvania Liquor Control Board (PLCB) on
September 26, 1952, and is current.
3. The Club holds a permit issued by the Cumberland County Treasurer pursuant to the
Local Options Small Games of Chance Act (LOSGCA), 10 P. S. § 311 et seq., allowing the Club to
sell small games of chance under the LOSGCA in order to raise and solicit funds for charitable and
public interest purposes. The Club's sale of small games of chance constitutes "fundraising" under
the Solicitation of Funds for Charitable Purposes Act, 10 P.S. § 162.1 et seq.
4. The Parties have negotiated the framework of a "global settlement" of the three (3)
administrative cases and four (4) criminal non-traffic citations which are before this Court and the
Court of Common Pleas of Cumberland County:
(a) Citation No. 06-2592 was sustained by both this Court and the Pennsylvania
Liquor Control Board (PLCB) and is before The Honorable Judge Edgar B. Bailey of
the Cumberland County Court of Common Pleas for de novo appeal.
(b) The remaining citations, 07-1537 and 09-1679, remain before this Court. The
former was adjudicated on October 15, 2009; the latter is awaiting trial.
(c) The four (4) non-traffic criminal citations were sustained at trial by District
Judge Margaret L. Bria and are currently before The Honorable Judge Edgar B.
Bailey for summary criminal trials (Nos. U0007717-3, U0007717-4, U0007717-5 and
No. U0007717-6). The factual basis for the non-traffic criminal citations was
STIPULATIONS OF FACT & AGREEMENT OF COUNSEL
CITATION NO. 07-1537
CITATION NO. 09-1679
PAGE 2
June 21, 2010
identical to the facts underlying Citation 07-1537. Judge Bailey has stayed
proceedings in both the administrative citation and the summary criminal cases
pending the within global settlement.
5. It is the intention of the Parties to amicably resolve these seven (7) cases in a manner
consistent with sound public policy and the interests of both parties. Your Parties believe and
therefore aver that the proposal for a global settlement is in the interest of judicial economy by
bringing to conclusion multiple legal actions without further litigation and appeals. More
importantly, the global settlement will accrue to the public interest by directing $1,000,000 to local
charities in a time of acute need.
6. The global settlement necessarily requires resolution of Citation 09-1679 which has
not been heard by this Court. The Parties propose that 09-1679 be completed by way of Stipulations
of Fact upon which this Court may issue an Adjudication and Order. The Parties propose that this
Court merge its Adjudication at 09-1679 with that issued at 07-1537 and issue a single
comprehensive order.
7. The present agreement and this Court's Order will be incorporated into a Consent
Agreement & Order which will be filed with the Cumberland County Court of Common Pleas, and
then be administered by the Cumberland County Court of Common Pleas pursuant to the Solicitation
of Funds for Charitable Purposes Act, 10 P.S. § 162.1 et seq.
8. The Consent Agreement & Order will merge the three (3) administrative cases and the
criminal case.
9. To that end, the Parties offer the following procedural and substantive stipulations:
PROCEDURAL STIPULATIONS OF FACT:
(a) CITATION No. 07-1537:
10. On July 12, 2007, the Commonwealth issued Citation No. 07-1537. A copy of the
Citation is attached hereto and incorporated herein as if fully set forth. (Attachment A)
11. An evidentiary hearing was held on November 17, 2008.
12. An Adjudication and Order was issued on October 15, 2009 sustaining each of the
three (3) counts. A copy of the Adjudication and Order is attached hereto and its findings of fact and
conclusions of law are incorporated herein as if fully set forth. (Attachment B)
STIPULATIONS OF FACT & AGREEMENT OF COUNSEL
CITATION NO. 07-1537
CITATION NO. 09-1679
PAGE3
June 21, 2010
13. The Adjudication and Order required payment of a $2,000 fine and imposed a
suspension of 20 days upon the liquor license. In addition, this Court required the Club to disgorge
$829,699.25 of LOSGCA proceeds to be paid to a legitimate charity.
14. Upon the joint request of the Parties, this Court held the Order in abeyance pending
the within settlement.
(b) CITATION No. 09-1679:
15. The Commonwealth's investigation was opened on January 5, 2009 and was
completed on June 19, 2009.
16. The Commonwealth's investigation was continuous and ongoing between January 5,
2009 and June 19, 2009.
17. On July 6, 2009, the Commonwealth issued a Notice of Violation letter which was
received by the Club on July 7, 2009.
18. On July 9, 2009, the Commonwealth issued Citation No. 09-1679 which was received
by the Licensee on July 10, 2009. A copy of the Citation is attached hereto and incorporated herein
as if fully set forth. (Attachment C)
SUBSTANTIVE STIPULATIONS OF FACT:
CITATION NO. 07-1537:
19. The Club admits that the findings of fact set forth by this Court in its Adjudication
and Order are based upon substantial evidence of record.
CITATION No. 09-1679:
20. The Club admits that the following stipulations of fact are based upon substantial
evidence and that the said stipulations be accepted by this Court in lieu of trial.
Count 1
21. On January 14, 2009, 259 generic flair cards for pull tab games were possessed by the
Club and seized by the Commonwealth. The flair cards were for unlawful pull tabs which had been
sold by the Club.
22. During the period described in Count 1, the Club operated a "weekly drawing book"
with the drawings being made weekly on Monday and also offered for sale and sold two-part tickets
STIPULATIONS OF FACT & AGREEMENT OF COUNSEL
CITATION NO. 07-1537
CITATION NO. 09-1679
PAGE 4
June 21, 2010
commonly referred to as "50150 tickets", which were offered for sale daily, with the drawing also
made weekly on Mondays.
23. During the period described in Count 1, the Club operated a "losers" drawing in
which individuals paid a consideration and entered expended strip tickets in a drawing for a cash
reward.
24. During the period described in Count 1, the Club sold and conducted "50150" raffles.
These "50150" tickets did not include all information required by the LOSGCA for raffle tickets.'
During the period described in Count 1, the Club did not possess a special raffle permit.
Count 2
25. On January 21, 2009, Liquor Enforcement Officer Harry Royer during the course of a
routine inspection presented a written request for records to Michael Gallagher, Club Manager, said
records to be produced at 9:00 a.m. on January 26, 2009.
26. On January 26, 2009, Liquor Enforcement Officer Harry Royer returned to the
licensed premises. He met with Michael Gallagher.
27. Mr. Gallagher refused to provide the requested records.
Count 3
28. Based upon Mr. Gallagher's refusal to provide records on January 26, 2009, on
February 11, 2009, Liquor Enforcement Officer Harry Royer, along with additional enforcement
officers and a State Police corporal, as well as additional State Police officers entered the licensed
premises and served a search warrant on the Licensee. Club treasurer, Michael Bender, was present.
29. Seized during this visit were three computers and/or computer records, which
contained the Club's small games of chance records.
' The Club's "raffle tickets" failed to set forth the following: The time of drawing, the location of drawing, the
special raffle permit number, the price of the ticket, and the prize or prizes to be awarded, as enumerated under
Section 901.745 of the Department of Revenue Regulations, 61 Pa Code § 901.745.
STIPULATIONS OF FACT & AGREEMENT OF COUNSEL
CITATION NO. 07-1537
CITATION NO. 09-1679
PAGE 5
June 21, 2010
30. Based upon an analysis of those records, the Club paid out cash and/or merchandise
prizes in excess of $5,000.00 at least in the following amounts during the period described in the
Citation:
SEVEN DAY PERIOD TOTAL PAYOUTS
Jul 14 - 20, 2008 $40,974.00
Jul 21 - 26, 2008 $37,234.00
August 4 - 10, 2008 $43,257.00
August 11 - 17, 2008 $41,683.00
September 1 -7, 2008 $52,841.00
September 8 -14, 2008 $39,953.00
November 3 - 9, 2008 $44,808.00
November 10 - 16, 2008 $46,201.70
December 1 - 7, 2008 $47,400.00
Count 4
31. Based upon an analysis of the records seized pursuant to the search warrant, during
the period described in the Citation, 11 entries of LOSGCA payout records were in an unlawful
eight-day format, and one entry of LOSGCA payout records was in an unlawful four-day period.3
32. Based upon an analysis of the records seized pursuant to the search warrant during the
period described in the Citation, the Club failed to list the form and serial numbers for each game,
the specific date in and out of play, the total number of plays per game, or the cost per play, the total
cash value of all prizes per game and the amount over/short .4
33. Based upon an analysis of the records seized pursuant to the search warrant, during
the period described in the Citation, the-Club failed to record winners who received payouts of
$100.00 or mores
2 This is in violation of Section 471 of the Liquor Code, 47 P.S. § 4-471, Section 315(b) of the Local Option Small
Games of Chance Act, 10 P.S. § 315(b), and Section 901.702(b) of the Department of Revenue Regulations, 61 Pa
Code § 901.702(b).
3 This is in violation of Sections 471 and 493(12) of the Liquor Code, 47 P.S. §§ 4-471 and 4-493(12), Section 311
of the Local Option Small Games of Chance Act, 10 P. S. § 311, and Section 901.461 of the Department of Revenue
Regulations, 61 Pa. Code § 901.461.
4 This is in violation of Sections 471 and 493(12) of the Liquor Code, 47 P.S. §§ 4471 and 4-493(12), Section 311
of the Local Option Small Games of Chance Act, 10 P.S. § 311, and Sections 901.464(2-6) and 901.465 of the
Department of Revenue Regulations, 61 Pa. Code §§ 901.464(2-6) and 901.465.
5 This is in violation of Sections 471 and 493(12) of the Liquor Code, 47 P.S. §§ 4-471 and 4493(12), Section 311
of the Local Option Small Games of Chance Act, 10 P.S. § 311, and Sections 901.463(4), 901.464(9), and
901.464a(9) of the Department of Revenue Regulations, 61 Pa. Code §§ 901.463(4), 901.464(9) and 901.464a(9).
STIPULATIONS OF FACT & AGREEMENT OF COUNSEL
CITATION NO. 07-1537
CITATION NO. 09-1679
PAGE 6
June 21, 2010
Count 5
34. Based upon an analysis of the records seized pursuant to the search warrant, during
the two-month period described in the Citation, in excess of $50,000 in LOSGCA revenues earned
by the Club were used for operational expenses.6
SETTLEMENT AGREEMENT:
35. The Club admits that the facts set forth in this Court's Adjudication in 07-1537
violate the Liquor Code as alleged in Counts 1, 2 and 3.
36. The Club will pay the fine of $2,000 imposed in Citation 07-1537 as set forth in
paragraph 42.
37. The Club admits that the facts set forth in paragraphs 20-34 violate the Liquor Code
as alleged in Counts 1 through 5 of Citation 09-1679.
38. The Parties request this Court to issue an Adjudication and Order in Citation 09-1679
based upon the foregoing Stipulations of Fact.
39. The Parties request that in Citation 09-1679 the following sanction be imposed: a
$1,000 fine per count together with a 40-day suspension (Count 1: 5 days; Count 2: 5 days;
Count 3: 10 days; Count 4: 10 days and Count 5: 10 days). The fine will be paid by the Club as set
forth in paragraph 42.
40. The Parties request this Court to issue a Consolidated Order, consolidating the 40-day
suspension at Citation 09-1679 with the 20 days suspension imposed at Citation 07-1537 and holding
the 60-day suspension in abeyance in favor of a period of probation after which the suspensions will
be marked as vacated.
41. The Parties request this Court through its Consolidated Order to hold payment of the
sum of $829,699.25 imposed at Citation 07-1537 in abeyance in favor of a period of probation after
which the same will be marked as "satisfied and paid" upon notification that the Club has paid
$1,000,000 to legitimate charities pursuant to the Consent Order & Agreement filed by the parties
with the Cumberland County Court of Common Pleas.
6 This is in violation of Section 471 of the Liquor Code, 47 P.S. § 4-471, Section 314 of the Local Option Small
Games of Chance Act, 10 P.S. § 314 and Sections 901.701 and 901.701 a of the Department of Revenue Regulations,
61 Pa Code §§ 901.701 and 901.70Ia.
STIPULATIONS OF FACT & AGREEMENT OF COUNSEL
CITATION NO. 07-1537
CITATION NO. 09-1679
PAGE 7
June 2l, 2010
42. The Parties request this Court through its Consolidated Order to order payment of a
fine of $7,000 ($2,000 from 07-1537; $5,000 from 09-1679) within 20 days of the mailing date of its
Adjudication and Order in 09-1679.
43. The Parties request this Court through its Consolidated Order to set forth a period of
probation to begin upon issuance of this Court's consolidated order and continue for a period of at
least one (1) year, the same of which will run concurrent with and terminate with the completion of
the period of probation imposed by the Court of Common Pleas. The Parties request the terms of
probation to include payment of the sum of $1,000,000 to legitimate charities pursuant to the terms
of the Consent Order & Agreement, and compliance with the Liquor Code and LOSGCA for a period
of one (1) year from the execution of the Consent Order & Agreement.
44. The Parties agree that the present Stipulation of Fact and Agreement of Counsel and
this Court's Adjudications and Consolidated Order in 07-1537 and 09-1679 be incorporated into and
made part of the Consent Order & Agreement to be filed with the Cumberland County Court of
Common Pleas.
AGREED TO BY:
Thomas M. Ballaron, Esq. Date
Representing the Pennsylvania State Police
Bureau of Liquor Control Enforcement
3655 Vartan Way
Harrisburg, PA 7110
(717) 540-74
FAX (717 4 -7461
AGREED TO BY:
? - r, Esquire Date
the Mechanicsburg Men's Club
Mancke, Wagner, Spreha & McQuillan
2233 North Front Street
Harrisburg, PA 17110
(717) 234-7051
FAX (717) 234-7080
Mailing Date: MAR 21 2011
COMMONWEALTH OF PENNSYLVANIA
OFFICE OF ADMINISTRATIVE LAW JUDGE
FOR
PENNSYLVANIA LIQUOR CONTROL BOARD
PENNSYLVANIA STATE
POLICE, BUREAU OF Citation No. 09-1679 and
LIQUOR CONTROL ENFORCEMENT 07-1537
(consolidated for
Adjudication purposes only)
Incident No. W3-387026
v. W3-351355
LID - 23110
THE MECHANICSBURG CLUB
333 HEINZ ST.
MECHANICSBURG, PA 17055-3211
CUMBERLAND COUNTY
LICENSE NO. CC-5354 -
rn
BEFORE JUDGE FLAHERTY
BUREAU COUNSEL THOMAS M. BALLARON z
LICENSEE: P. RICHARD WAGNER, ESQ.
CONSOLIDATED ADJUDICATION
BACKGROUND 09-1679:
The proceeding docketed at 09-1679 arises out of a citation that was issued on July 9,
2009, by the Bureau of Liquor Control Enforcement of the Pennsylvania State Police (hereinafter
"Bureau") against The Mechanicsburg Club, License Number CC-5354 (hereinafter "Licensee").
The Citation charged the licensee with the following violations:
1. On January 14 and 26, 2009, and divers occasions in the past year, you, by your
servants, agents or employees, possessed or operated gambling devices or paraphernalia or
permitted gambling or lotteries, poolselling and/or bookmaking on your licensed premises, in
violation of Section 471 of the Liquor Code, 47 P.S. §4-471 and Sections 5512 and/or 5513 of
the Crimes Code, 18 Pa. C.S. §§5512 and/or 5513.
THE MECHANICSBURG CLUB
CITATION NO. 09-1679 and 07-1537
(Consolidated)
PAGE 2
2. On January 26, 2009, you, by your servants, agents or employees, failed to keep
on the licensed premises and/or provide an authorized employee of the Enforcement Bureau
access to, or the opportunity to copy, complete and truthful records covering the operation of the
licensed business, in violation of Section 493(12) of the Liquor Code, 47 P.S. §4-493(12).
3. During the periods July 14 through 20, July 21 through 26, August 4 through 10,
August 11 through 17, September 1 through 7, September 8 through 14, November 3 through 9,
November 10 through 16 and December 1 through 7, 2008, you, by your servants, agents or
employees, offered and/or awarded more than $5,000.00 in cash or merchandise in any seven-
day period, in violation of Section 471 of the Liquor Code, 47 P.S. §4-471 and Section 315(b) of
the Local Option Small Games of Chance Act, 10 P.S. §315(b).
4. You, by your servants, agents or employees, failed to maintain complete and
truthful records covering the operation of the licensed business for a period of two (2) years
immediately preceding February 11, 2009, concerning the Local Option Small Games of Chance
Act, in violation of Sections 471 and 493(12) of the Liquor Code, 47 P.S. §§4-471 and 4-
493(12), Section 311 of the Local Option Small Games of Chance Act, 10 P.S. §311 and Section
901 of the Department of Revenue Regulations, 61 Pa. Code §901.
5. During the period August 1 through September 30, 2008, you violated the Local
Option Small Games of Chance Act, in that funds derived from the operation of games of chance
were used for purposes other than those authorized by law, in violation of Section 471 of the
Liquor Code, 47 P.S. §4-471, Section 314 of the Local Option Small Games of Chance Act, 10
P.S. §314 and Section 901 of the Department of Revenue Regulations, 61 Pa. Code §901.
The parties have submitted Stipulations of Fact in lieu of testimony, and have requested
that the same constitute the factual record upon which this Court may enter Findings of Fact and
Conclusions of Law.
FINDINGS OF FACT 09-1679:
NOTICE:
1. The investigation which gave rise to the citation was opened and assigned on
January 5, 2009 and was completed on June 19, 2009. (Stipulation of Fact No. 15)
2. The Notice of Violation letter was sent to the Licensee by Certified Mail on
July 6, 2009 and received by the Licensee on July 7, 2009. (Stipulation of Fact No. 16)
THE MECHANICSBURG CLUB
CITATION NO. 09-1679 and 07-1537
(Consolidated)
PAGE 3
3. The Citation was issued by the Bureau and sent to the Licensee by Certified Mail
on July 9, 2009. (Stipulation of Fact No. 18)
COUNTI
4. On January 14, 2009, 259 generic flair cards for pull tab games were possessed by
the Club and seized by the Commonwealth. The flair cards were for unlawful pull tabs which
had been sold by the Club. (Stipulation of Fact No. 21)
5. During the period described in Count 1, the Club operated a "weekly drawing
book" with the drawings being made weekly on Monday and also offered for sale and sold two-
part tickets commonly referred to as "50150 tickets", which were offered for sale daily, with the
drawing also made weekly on Mondays. (Stipulation of Fact No. 22)
6. During the period described in Count 1, the Club operated a "losers" drawing in
which individuals paid a consideration and entered expended strip tickets in a drawing for a cash
reward. (Stipulation of Fact No. 23)
7. During the period described in Count 1, the Club sold and conducted "50150"
raffles. These "50150" tickets did not include all information required by the LOSGCA for raffle
tickets.l During the period described in Count 1, the Club did not possess a special raffle permit.
(Stipulation of Fact No. 24)
COUNT2
8. On January 21, 2009, Liquor Enforcement Officer Harry Royer during the course
of a routine inspection presented a written request for records to Michael Gallagher, Club
Manager, said records to be produced at 9:00 a.m. on January 26, 2009. (Stipulation of Fact
No. 25)
9. On January 26, 2009, Liquor Enforcement Officer Harry Royer returned to the
licensed premises. He met with Michael Gallagher. (Stipulation of Fact No. 26)
10. Mr. Gallagher refused to provide the requested records. (Stipulation of Fact
No. 27)
The Club's "raffle tickets" failed to set forth the following: The time of drawing, the location of drawing, the
special raffle permit number, the price of the ticket, and the prize or prizes to be awarded, as enumerated under
Section 901.745 of the Department of Revenue Regulations, 61 Pa Code § 901.745.
THE MECHANICSBURG CLUB
CITATION NO. 09-1679 and 07-1537
(Consolidated)
COUNT3
PAGE 4
11. Based upon Mr. Gallagher's refusal to provide records on January 26, 2009, on
February 11, 2009, Liquor Enforcement Officer Harry Royer, along with additional enforcement
officers and a State Police corporal, as well as additional State Police officers entered the
licensed premises and served a search warrant on the Licensee. Club treasurer, Michael Bender,
was present. (Stipulation of Fact No. 28)
12. Seized during this visit were three computers and/or computer records, which
contained the Club's small games of chance records. (Stipulation of Fact No. 29)
13. Based upon an analysis of those records, the Club paid out cash and/or
merchandise prizes in excess of $5,000.00 at least in the following amounts during the period
described in the Citation:
SEVEN DAY PERIOD TOTAL PAYOUTS
Jul 14 - 20, 2008 $40,974.00
Jul 21 - 26, 2008 $37,234.00
August 4 - 10, 2008 $43,257.00
August 11 - 17, 2008 $41,683.00
September 1 -7, 2008 152,841.00
September 8 - 14, 2008 $39,953.00
November 3 - 9, 2008 $445808.00
November 10 -16, 2008 $46,201.70
December 1 - 7, 2008 $475400.00
(Stipulation of Fact No. 30)
COUNT 4
14. Based upon an analysis of the records seized pursuant to the search warrant,
during the period described in the Citation, 11 entries of LOSGCA payout records were in an
unlawful eight-day format, and one entry of LOSGCA payout records was in an unlawful four-
day period.3 (Stipulation of Fact No. 31)
2 This is in violation of Section 471 of the Liquor Code, 47 P.S. § 4-471, Section 315(b) of the Local Option Small
Games of Chance Act, 10 P.S. § 315(b), and Section 901.702(b) of the Department of Revenue Regulations, 61 Pa
Code § 901.702(b).
3 This is in violation of Sections 471 and 493(12) of the Liquor Code, 47 P.S. §§ 4-471 and 4-493(12), Section 311
of the Local Option Small Games of Chance Act, 10 P.S. § 311, and Section 901.461 of the Department of Revenue
Regulations, 61 Pa. Code § 901.461.
THE MECHANICSBURG CLUB
CITATION NO. 09-1679 and 07-1537
(Consolidated)
PAGE 5
15. Based upon an analysis of the records seized pursuant to the search warrant
during the period described in the Citation, the Club failed to list the form and serial numbers for
each game, the specific date in and out of play, the total number of plays per game, or the cost
per play, the total cash value of all prizes per game and the amount over/short .4 (Stipulation of
Fact No. 32)
16. Based upon an analysis of the records seized pursuant to the search warrant,
during the period described in the Citation, the Club failed to record winners who received
payouts of $100.00 or mores (Stipulation of Fact No. 33)
COUNT 5
17. Based upon an analysis of the records seized pursuant to the search warrant,
during the two-month period described in the Citation, in excess of $50,000 in LOSGCA
revenues earned by the Club were used for operational expenses.6 (Stipulation of Fact No. 34)
CONCLUSIONS OF LAW:
09-1679:
(1) The notice requirements of Liquor Code Section 471 (47 P.S. § 4-471) had been
satisfied.
Count 1:
(2) Sustained as charged.
Count 2•
(3) Sustained as charged.
4 This is in violation of Sections 471 and 493(12) of the Liquor Code, 47 P.S. §§ 4-471 and 4493(12), Section 311
of the Local Option Small Games of Chance Act, 10 P.S. § 311, and Sections 901.464(2-6) and 901.465 of the
Department of Revenue Regulations, 61 Pa. Code §§ 901.464(2-6) and 901.465.
5 This is in violation of Sections 471 and 493(12) of the Liquor Code, 47 P.S. §§ 4-471 and 4-493(12), Section 311
of the Local Option Small Games of Chance Act, 10 P.S. § 311, and Sections 901.463(4), 901.464(9), and
901.464a(9) of the Department of Revenue Regulations, 61 Pa. Code §§ 901.463(4), 901.464(9) and 901.464a(9).
6 This is in violation of Section 471 of the Liquor Code, 47 P.S. § 4-471, Section 314 of the Local Option Small
Games of Chance Act, 10 P.S. § 314 and Sections 901.701 and 901.701 a of the Department of Revenue Regulations,
61 Pa Code §§ 901.701 and 901.701 a.
THE MECHANICSBURG CLUB
CITATION NO. 09-1679 and 07-1537
(Consolidated)
Count 3•
(4) Sustained as charged.
Count 4:
(5) Sustained as charged.
Count 5•
(5) Sustained as charged.
BACKGROUND 07-1537:
PAGE 6
The proceeding docketed at 07-1537 arose from a citation that was issued on July 12,
2007, which was heard by this Court on November 17, 2008, and adjudicated on October 7, 2009
[Mailing Date: October 15, 2009]. At the request of counsel, this Court held the Order in
abeyance pending the within consolidation and settlement.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 07-1537:
The findings of fact and conclusions of law set forth in Adjudication 07-1537 are
incorporated and merged herein and made a part hereof as if fully set forth below.
DISCUSSION:
The Parties have submitted stipulations of fact in lieu of testimony in this case and have
requested this Court to incorporate and merge the adjudication from 07-1537 into the within
Adjudication and Order. The Parties have requested this Court to issue a Consolidated Order in
order to advance what has been described to this Court as a "global settlement" of several legal
actions involving the Bureau and Licensee. These legal actions involve non-traffic citations filed
against the Licensee by the Bureau and currently on appeal in the Cumberland County Court of
Common Pleas; a previous adjudication found at Adjudication 06-2592, also on appeal in the
Court of Common Pleas and the within citations.
This Court has chosen to endorse the same, finding and concluding that the settlement of
this case in the manner specified and approved herein, advances the public interest and is
consistent with the legislative intent of the LOSGCA and Liquor Code, upon which these cases
were based.
THE MECHANICSBURG CLUB
CITATION NO. 09-1679 and 07-1537
(Consolidated)
PAGE 7
The essential element of the settlement agreement is the payment of the sum of
$1,000,000.00 to a group of selected and approved charities from the proceeds earned by the
Licensee from the sale of small games of chance. Payment will be made under the aegis of an
Order to be issued by the Court of Common Pleas of Cumberland County pursuant to a Consent
Agreement settling and resolving four (4) non-traffic criminal citations and three (3)
administrative cases against the Licensee.
The Licensee will pay a fine as set forth in the Order of this Court. Additionally, a period
of suspension will be imposed against the Licensee's liquor license, the same of which will be
held in abeyance pending the Licensee's satisfaction of the terms of probation imposed by this
Court and incorporated into the Court of Common Pleas Order.
PRIOR RECORD:
Licensee has been licensed since September 26, 1952, and has had three (3) prior
violation(s) since July 1, 1987, the date of establishment of the Office of Administrative Law
Judge:
CITATION NO. 89-1041. (CLUB LIQUOR LICENSE) FINE $900.00.
WAIVER OF HEARING. (JUDGE THAU)
1. POSSESSED OR OPERATED GAMBLING DEVICES OR
PARAPHERNALIA OR PERMITTED GAMBLING OR LOTTERIES
ON YOUR LICENSED PREMISES. (LL and CC)
CITATION NO. 05-0611. FINE $250.00. WAIVER OF HEARING. (JUDGE
FLAHERTY)
1. OFFERED AND/OR AWARDED MORE THAN $5,000.00 IN CASH
OR MERCHANDISE IN ANY SEVEN-DAY PERIOD. (LL and Small
Games of Chance Act)
February 13 through 19, 2005.
CITATION NO. 06-2592. FINE $2,600.00 AND 10 DAYS SUSPENSION.
LICENSEE'S APPEAL TO BOARD PENDING. (JUDGE FLAHERTY)
1. POSSESSED OR OPERATED GAMBLING DEVICES OR
PARAPHERNALIA OR PERMITTED GAMBLING OR LOTTERIES,
POOLSELLING AND/OR BOOKMAKING ON YOUR LICENSED
PREMISES (FOOTBALL POOLS, DRAWINGS AND TICKETS). (LL
and CC)
August 28, September 4 and 6, 2006.
THE MECHANICSBURG CLUB
CITATION NO. 09-1679 and 07-1537
(Consolidated)
PAGE 8
2. FAILED TO MAINTAIN RECORDS IN CONFORMITY WITH TITLE
40 OF THE PENNSYLVANIA CODE. (RR)
September 19, 2006.
3. OFFERED AND/OR AWARDED MORE THAN $5,000.00 IN CASH
OR MERCHANDISE IN ANY SEVEN-DAY PERIOD. (LL and Small
Games of Chance Act)
July 31 - August 6, August 7 - 13, August 14 - 20 and August 21 - 27,
2006.
4. FAILED TO MAINTAIN COMPLETE AND TRUTHFUL RECORDS
COVERING THE OPERATION OF YOUR LICENSED BUSINESS
FOR A PERIOD OF 2 YEARS CONCERNING THE LOCAL OPTION
SMALL GAMES OF CHANCE ACT. (LL and Small Games of Chance
Act)
September 27, 2006.
PENALTY:
Section 471 of the Liquor Code [47 P.S. §4-471] prescribes a penalty of license
suspension or revocation or a fine of not less than $50.00 or more than $1,000.00 or both for
violations of the type found in Counts 1, 2, 3, 4 and 5 of Citation No. 09-1679.
Section 471 of the Liquor Code [47 P.S. §4471] prescribes a penalty of license
suspension or revocation or a fine of not less than $50.00 or more than $1,000.00 or both for
violations of the type found in Counts 1, 2 and 3 of Citation No. 07-1537.
ORDER
(A) Consolidation of Citations:
IT IS HEREBY ORDERED that the Adjudication issued by this Court in Citation
07-1537 [Mailing Date: October 15, 2009] the same of which was held in abeyance at the request
of counsel, be merged with and consolidated with the present adjudication. Both cases share
similar facts and legal issues and this Court finds and concludes that it is in the public interest
and in the interest of judicial economy to consolidate and merge these cases for Adjudication
purposes only.
To that end, the Order found at 07-1537 is hereby VACATED and the Adjudications are
hereby consolidated and merged.
THE MECHANICSBURG CLUB
CITATION NO. 09-1679 and 07-1537
(Consolidated) PAGE 9
(B) Imposition of Fine:
THE LICENSEE IS ORDERED to pay the fine of $7,000.00 ($2,000 from Adjudication
07-1537; $5,000 from Adjudication 09-1679 - $1,000 per count) within 20 days of the mailing
date of this Order. In the event the fine is not paid within 20 days from the mailing date of this
Order, the Licensee will be found in violation of the terms of probation as set forth below.
(C) Suspension of Licensee:
IT IS FURTHER ORDERED that the Licensee's club liquor license No. CC-5354,
including all permits, (except for the LOSGCA Permit issued by the Cumberland County
Treasurer) be suspended for a period of sixty days [20 days with respect to Citation 07-1537; 40
days with respect to Citation 09-1679 (Count 1: 5 days; Count 2: 5 days; Count 3: 10 days;
Count 4: 10 days and Count 5: 10 days)]. The sixty days suspension is held in abeyance in favor
of a period of probation as set forth below.
(D) Disgorgement of LOSGCA Proceeds:
IT IS FURTHER ORDERED that pursuant to this Court's Adjudication in 07-1537, the
Licensee is ORDERED to disgorge the amount of $1,000,000.00 to be paid to legitimate
charities, the same of which is held in abeyance pursuant to the terms of probation as set forth
below.
(E) Probation:
IT IS FURTHER ORDERED that the Licensee is to undergo a period of probation as
follows:
1. The Licensee will comply with the Liquor Code and the LOSGCA and its
intended regulations.
2. The term of probation will begin with the issuance of the within Order and
continue for a period of at least one year expiring on either of the expiration of one (1)
calendar year from the mailing date of this adjudication or the expiration of the
consolidated Order and probation agreement issued by the Cumberland County Court of
Common Pleas whichever is later.
3. The Licensee will pay the sum of $1,000,000.00 to legitimate charities
previously selected by the Licensee and approved by this Court. The sum of $750,000.00
will be paid to the selected charities upon issuance of the Order of the Court of Common
Pleas approving of the consent agreement.
THE MECHANICSBURG CLUB
CITATION NO. 09-1679 and 07-1537
(Consolidated)
PAGE 10
4. Correspondence identifying the selected charities and copies of the subject
checks will be filed by the Licensee with the Court of Common Pleas and with the
Bureau within five (5) business days of payment.
5. The Licensee will pay the remaining $250,000.00 within one year of the
execution of the consent agreement to legitimate charities of its own choosing.
6. Correspondence identifying the selected charities and copies of the subject
checks will be filed by the Licensee with the Court and with the Bureau within five (5)
business days of payment.
7. Upon notification by the Court of Common Pleas or the Bureau that the
Licensee has satisfied the terms of probation as set forth above, this Court will mark the
aforementioned sixty days suspension as VACATED.
8. Licensee's failure to comply with any of the provisions of this Order will
constitute a violation of probation and cause the full sixty (60) days to be served on dates
specified in a Supplemental Order of this Court.
(F) Abeyance:
IT IS FURTHER ORDERED that Section (C), (D) and (E) of this Order is held in
abeyance for a period of sixty (60) days in order to facilitate the parties completion of the
Consent Agreement and Order for the Court of Common Pleas
Jurisdiction is retained pending final resolution of these consolidated cases in the
Court of Common Pleas.
Dated this 4TH day of March, 2011.
Daniel T. Flaherty, Jr., J.
cy
THE MECHANICSBURG CLUB
CITATION NO. 09-1679 and 07-1537
(Consolidated)
PAGE 11
MOTIONS FOR RECONSIDERATION CANNOT BE ACTED UPON UNLESS THEY
ARE IN WRITING AND RECEIVED BY THE OFFICE OF ADMINISTRATIVE LAW
JUDGE WITHIN 15 DAYS AFTER THE MAILING DATE OF THIS ORDER,
ACCOMPANIED BY A $25.00 FILING FEE.
Detach here and submit stub with payment
-------------------------------------------------------------------------
The fine must be paid by Cashier's Check, Certified Check or Money Order. Personal
and business checks are not acceptable unless bank certified. Make guaranteed check
payable to the Commonwealth of Pennsylvania and mail to:
PLCB-Office of Administrative Law Judge
Brandywine Plaza
2221 Paxton Church Road
Harrisburg PA 17110-9661
Citation No. 09-1679 and 07-1537
(As Consolidated)
Mailing Date: OCT 15 2009
COMMONWEALTH OF PENNSYLVANIA
OFFICE OF ADMINISTRATIVE LAW JUDGE
FOR
PENNSYLVANIA LIQUOR CONTROL BOARD
PENNSYLVANIA STATE
POLICE, BUREAU OF Citation No. 07-1537
LIQUOR CONTROL ENFORCEMENT
Incident No. W03-351355
V.
THE MECHANICSBURG CLUB LID - 23110
333 HEINZ STREET
MECHANICSBURG PA 17055-3211
CUMBERLAND COUNTY
LICENSE NO. CC-5354
BEFORE JUDGE FLAHERTY
BUREAU COUNSEL LOVETTE
LICENSEE: P. RICHARD WAGNER, ESQUIRE
FOR WITNESSES: SCOTT CRAMER, ESQUIRE
ADJUDICATION
BACKGROUND:
This proceeding arises out of a citation that was issued on July 12, 2007, by the Bureau of
Liquor Control Enforcement of the Pennsylvania State Police (hereinafter "Bureau") against
THE MECHANICSBURG CLUB, License Number CC-5354 (hereinafter "Licensee").
The citation contains three counts.
The first count charges Licensee with violation of Sections 471 and 493(12) of the Liquor
Code [47 P.S. §§4-471 and 4-493(12)], Section 311 of the Local Option Small Games of Chance
Act [10 P.S. §311] and Section 901 of the Department of Revenue Regulations [61 Pa. Code
§901] in that Licensee, by its servants, agents or employes, failed to maintain complete and
truthful records covering the operation of the licensed business for a period of two years
immediately preceding May 3, 2007, concerning the Local Option Small Games of Chance Act.
THE MECHANICSBURG CLUB
CITATION NO. 07-1537 PAGE 2
The second count charges Licensee with violation of Section 471 of the Liquor Code [47
P.S. §4-471] and Section 315(b) of the Local Option Small Games of Chance Act [10 P.S.
§315(b)] in that during the periods January 1 through 7, February 5 through 11, March 5 through
11 and April 2 through 8, 2007, Licensee, by its servants, agents or employes, offered and/or
awarded more than $5,000.00 in cash or merchandise in any seven day period.
The third count charges Licensee with violation of Section 471 of the Liquor Code [47
P.S. §4-471] and Section 901 of the Department of Revenue Regulations [61 Pa. Code §901] in
that during the period September 1, 2006 through April 30, 2007, Licensee violated the Local
Option Small Games of Chance Act, in that funds derived from the operations of games of
chance were used for purposes other than those authorized by law.
The investigation which gave rise to the citation began on April 2, 2007 and was
completed on June 12, 2007; and notice of the violation was sent to Licensee by Certified Mail
on June 19„ 2007. The notice of violation was received by Licensee.
An evidentiary hearing was held on this matter on November 17, 2008 in the Office of
Administrative Law Judge, Brandywine Plaza, 2221 Paxton Church Road, Harrisburg,
Pennsylvania.
Upon review of the transcript of this hearing, we make the following Findings of Fact and
reach the following Conclusions of Law:
FINDINGS OF FACT:
COUNTS 1, 2 AND 3
1. On April 20, 2007 an officer of the Bureau visited the licensed premises. He
introduced himself to the person who answered the door, and asked for a club officer or manager.
He was taken to the bar area where he was introduced to Charles Sechrist, the bartender. Mr.
Sechrist summoned John Reninger, the Club president and Mike Gallagher, the club manager.
The officer identified himself and explained that he was there to conduct a routine inspection
(N.T. 9).
2. The officer questioned Mr. Reninger and Mr. Gallagher about maintenance of
small games of chance records. Mr. Gallagher explained that Licensee was not maintaining
seven day totals of prizes awarded from small games of chance and several other items such as
gross sales per game, number of tickets per game, number of tickets not played, cost per play and
payout totals per game (N.T. 11).
3. Mr. Gallagher explained to the officer that Licensee kept the players cards for
each game and the dates the games were placed into and taken out of service were written on the
player cards (N.T. 12).
THE MECHANICSBURG CLUB
CITATION NO. 07-1537 PAGE 3
4. The officer requested that Mr. Gallagher provided payout totals for prizes
awarded from small games of chance for four separate seven day periods. He also requested a
record of any prizes awarded in excess of $100.00 (N. T. 12).
5. The officer returned to the licensed premises on April 25, 2007 where he met with
Mr. Gallagher to collect the information that he had previously requested. Mr. Gallagher could
provide no records of prizes awarded in excess of $100.00. He also provided numbers for games
that were taken out of play in the seven day periods. The officer requested that the lists be
restricted to games that were placed into play and taken out during the designated seven day
periods. He then made arrangements to return at a later date to review the seven day totals (N.T.
13-14).
6. On May 3, 2007 the officer again returned to the licensed premises to review the
figures for amounts paid out on small games of chance during the designated seven day periods
(N.T. 15).
7. The corrected figures provided by Licensee showed that the following amounts
had been paid out by Licensee during the following seven day periods:
January 1-7, 2007 - $62,150.00
February 5-11, 2007 - $51,525.00
March 5-11, 2007 - $65,575.00
April 2-8, 2007 - $59,500.00
(N.T. 16-18 and Exhibit C-3).
8. On May 3, 2007 Mr. Gallagher admitted to the officer that no records were kept
with respect to the awarding of prizes over $100.00 or the winners of such prizes (N.T. 19).
9. The officer examined the financial statement of Licensee for the period from
September 1, 2006 through April 30, 2007. The officer determined from this document that
gross income from legitimate small games amounted to $1,036,637.00 after the payouts of prizes
won. The statement further indicates that Licensee made charitable donations during the same
period of $32,340.00. The statement also indicates that during this period Licensee purchased
small games of chance in the amount of $174,597.35. When the donations and small games of
chance purchases are deducted from the gross income from small games of chance the net
amount of proceeds from small games of chance is $829,699.75 (N.T. 20-26 and Exhibit C-4).
10. The financial report indicates that during the period in question, Licensee had an
overall operating loss of $6,159.05 (N.T. 26-28 and Exhibit C-4).
CONCLUSIONS OF LAW:
Counts 1, 2 and 3 of the citation are sustained.
THE MECHANICSBURG CLUB
CITATION NO. 07-1537 PAGE 4
DISCUSSION:
ISSUES COMMON TO COUNTS 1 2 AND 3
OTHER SUFFICIENT CAUSE
The Supreme Court of Pennsylvania has held that violations of the criminal laws of the
Commonwealth of Pennsylvania by a liquor licensee, where appropriate scienter is present
constitutes "other sufficient cause" as that term is used in Section 471 of the Liquor Code [47
P. S. §4-471], thus subjecting the licensee to the sanction provided by that section. Pa Liquor
Control Board v TLK, Inc., 544 A.2d 931 (Pa. 1988).
Section 327 of the Local Option Small Games of Chance Act (LOSGCA) [10 Pa. C.S.
§327] provides that anyone violating the LOSGCA is subject to criminal sanctions. Therefore,
violation of the LOSGCA by liquor licensees constitute "other sufficient cause" as that term is
used in Section 471 of the Liquor Code subjecting the licensee to the sanctions provided by that
section where the appropriate scienter is present.
SCIENTER
The Supreme Court of Pennsylvania has mandated that when a liquor licensee has been
found to have committed a violation which is classified as "other sufficient cause" some element
of scienter must be present before the penalties set forth in Section 471 of the Liquor Code
(supra) may be applied. The test set forth by the court is as follows:
1 • Whether the licensee knew or should have known of the
illegal activities by an employe or patron. If so, the licensee is
liable.
2. A licensee may defend his license by demonstrating he
took substantial, affirmative steps to guard against a known pattern
of illegal activities.
Pa. Liquor Control Board v TLK, Inc. (supra).
With the foregoing in mind, I will address Counts 1, 2 and 3 of the citation.
COUNT 1
Licensee's failure to keep records with respect to small games of chance, except for the
player cards for each game upon with the dates each game was put into and taken out of service,
was in violation of Section 493(12) of the Liquor Code [47 P.S. §4-493(12)], Section 311 of the
LOSGCA [10 P. S. §311] and Section 901 of the PA Department of Revenue Regulations [61 Pa.
Code §901 et seq].
THE MECHANICSBURG CLUB
CITATION NO. 07-1537 PAGE 5
Section 493(12) of the Liquor Code (supra) requires liquor licensees to maintain
complete and accurate records covering the operation of the licensed business for a period of two
years.
Section 319 of the LOSGCA [10 P.S. §319] authorizes the Department of Revenue to
promulgate regulations to carry out the provisions of the LOSGCA.
Section 317(f) of the LOSGCA [10 P.S. §317(f)] requires a licensee to make and keep
such records as the Department of Revenue shall prescribe and make such records available as
required by the Department of Revenue pursuant to regulation.
Section 901.461 of the Regulations of the Department of Revenue [61 Pa. Code §901.61]
requires that licensees maintain records regarding small games of chance for a period of two
years. Further, this section also requires eligible organizations to keep and maintain annual
records of the activities related to small games of chance with separate totals of activities for
each operating week.
The specific records which an eligible organization is required to keep are found at
Sections 901.462 through 901.467 [61 Pa. Code §901.462 through 901.467].
Finally, Section 901.468 of the Department of Revenue Regulations [61 Pa. Code
§901.468] again provides that records including invoices shall be maintained for a minimum of
two years.
In this case the only records that Licensee maintained with respect to small games of
chance were player cards for each game upon which were recorded the dates when each game
was put into and taken out of play (See Finding No. 3 and 8).
Since Licensee failed to keep the records required as indicated above, I conclude that
Count No. 1 of the citation is sustained.
COUNT 2
The record establishes that Licensee made payouts on small games of chance during four
seven day periods between January 1, 2007 and April 8, 2007 which significantly exceeded
$5,000.00 in each of these periods. The charge in Count No. 2 is, therefore, sustained.
Section 315(b) of the LOSGCA [10 P.S. §315(b)] provides as follows:
(b) Weekly limit. No more than $5,000.00 in cash or
merchandise shall be awarded by any eligible organization in any
seven day period.
THE MECHANICSBURG CLUB
CITATION NO. 07-1537 PAGE 6
The record in this case establishes that during the four specific seven day periods
examined by the officer, Licensee paid out on small games of chance between $57,525.00 and
$65,575.00 (See Finding No. 4). It is clear, therefore, that Count No. 2 of the citation has been
sustained.
COUNT3
The record in this case establishes that income generated by Licensee from small games
of chance were used to pay operating expenses rather than for public purposes.
Section 314 of the LOSGCA [10 P.S. §3141 as pertinent, provides as follows:
...All proceeds of games of chance shall be used exclusively for
public interest purposes or for the purchase of games of chance as
permitted by this act.
In this case, Licensee, during the period from September 1, 2006 through April 30, 2007
realized income from small games of chance which after deduction of charitable contributions
and purchase of small games of chance amount to $829,699.25. This money was not used for
public purposes but rather applied to operating expenses during a period when licensee had an
operating loss which exceeded $6,000.00 (See Findings No. 9 and 10).
Such use of net proceeds from small games of chance clearly violates Section 314 of the
LOSGCA (supra) and the charge in Count 3 of the citation is sustained.
PRIOR RECORD:
Licensee has been licensed since September 26, 1952, and has had two prior violation(s)
since July 1, 1987, the date of establishment of the Office of Administrative Law Judge:
Citation No. 89-1041. Fine $900.00.
I . Possessed or operated gambling devices or
paraphernalia or permitted gambling or lotteries on
the licensed premises.
Citation No. 05-0611. Fine $250.00.
1. Offered and/or awarded more than $5,000.00 in
cash or merchandise in any seven day period.
February 13 through 19, 2005.
THE MECHANICSBURG CLUB
CITATION NO. 07-1537 PAGE 7
PENALTY:
Section 471 of the Liquor Code [47 P.S. §4-471] prescribes a penalty of license
suspension or revocation or a fine of not less than $50.00 or more than $1,000.00 or both for
violations of the type found in this case.
Under the circumstances of this case, the penalty imposed shall be as follows:
Count 1 - $1,000.00 and 10 days suspension
Count 2 - $1,000.00 and 10 days suspension
Count 3 - one day suspension and continuing thereafter until
Licensee submits written certification verifying that Licensee has
disgorged the net proceeds from small games of chance in the
amount of $829,699.25 and paid said amount to a legitimate
charity or charities registered with the Commonwealth of
Pennsylvania or the United States Government.
ORDER
THEREFORE, it is hereby ordered that Licensee THE MECHANICSBURG CLUB, pay
a fine of $2,000.00 within 20 days of the mailing date of this Order. In the event the
aforementioned fine is not paid within 20 days from the mailing date of this Order, Licensee's
license shall be suspended or revoked.
IT IS FURTHER ORDERED that the catering club license (including all permits) of
THE MECHANICSBURG CLUB, License No. CC-5354 be suspended for a period of 21 day(s)
BEGINNING at 7:00 a.m. on Monday, January 4, 2010, and further that said license remain
suspended until: (1) Licensee has forwarded a certification verifying that Licensee has disgorged
the net proceeds from small games of chance in the amount of $829,699.25 and paid said amount
to a legitimate charity or charities registered with the Commonwealth of Pennsylvania or the
United States Government; and (2) said certification has been approved and the suspension
terminated by further Order. Said certification is to be returned to the Office of Administrative
Law Judge, Pennsylvania Liquor Control Board, Brandywine Plaza, 2221 Paxton Church Road,
Harrisburg, PA 17110-9661. A copy of the Certification is to be sent to Thomas M. Ballaron,
Assistant Counsel, Bureau of Liquor Control Enforcement, Pennsylvania State Police, 3655
Vartan Way, Harrisburg, PA 17110.
Licensee is directed on January 4, 2010 at 7:00 a.m. to place the enclosed placard of
notice of suspension (identified as Form No. PLCB-1925 and as printed with red and black ink)
in a conspicuous place on the outside of the licensed premises or in a window plainly visible
from outside the licensed premises and to remove said license from the wall and place it in a
secure location.
THE MECHANICSBURG CLUB
CITATION NO. 07-1537 PAGE 8
Licensee is advised if replacement placards are needed for any reason they are available
at all Pennsylvania Liquor Stores/Wine & Spirits Shoppes.
The Bureau is directed to visit and monitor the aforementioned licensed premises for
compliance with this Order.
IT IS FURTHER ORDERED that if Licensee submits a certification within 30 days from
the mailing date of this Adjudication and if the certification is found to be acceptable, and if the
Bureau supports the certification, the one day suspension, imposed in Count 3 of the citation,
shall be vacated.
LICENSEE MAY NOT RESUME OPERATION OF THE LICENSED PREMISES
UNTIL FURTHER ORDER BY THE OFFICE OF ADMINISTRATIVE LAW JUDGE.
Jurisdiction is retained pending final resolution of the penalty in this matter.
Dated this 7TH day of October, 2009.
an
Daniel T. Flaherty, Jr., J.
THE MECHANICSBURG CLUB
CITATION NO. 07-1537
PAGE 9
MOTIONS FOR RECONSIDERATION MUST BE RECEIVED WITHIN 15 DAYS OF
THE MAILING DATE OF THIS ORDER IN THE OFFICE OF ADMINISTRATIVE
LAW JUDGE AND REQUIRE A $25.00 FILING FEE. A WRITTEN REQUEST FOR
RECONSIDERATION MUST BE SUBMITTED WITH THE FILING FEE.
------------------------------ Detach here and submit stub with payment
-----------------------------------------------------------------------------
The fine must be paid by Treasurer's Check, Cashier's Check or Certified Check.
Personal checks, which includes business-use personal checks, are not acceptable. Make
check payable to the Commonwealth of Pennsylvania and mail to:
PLCB-Office of Administrative Law Judge
Brandywine Plaza
2221 Paxton Church Road
Harrisburg PA 17110-9661
Citation No. 07-1537
The Mechanicsburg Club
THE MECHANICSBURG CLUB
CITATION NO. 07-1537 PAGE 10
CERTIFICATION
hereby certifies that he/she is the of
Licensee, THE MECHANICSBURG CLUB, 333 Heinz Street, Mechanicsburg, PA 17055-3211;
and
Licensee has paid the following amounts to the following charities:
CHARITY
AMOUNT
I/We, the above Licensee(s) [or authorized officer(s) thereof], under penalty of law [18
Pa.C.S. §4904], relating to unworn falsification to authorities] acknowledge that I/We are
signing and executing this document as the authorized act and deed of the Licensee. I/We certify
that the foregoing is true and correct.
SIGNATURE
DATE
Original to be sent to: Office of Administrative Law Judge, Pennsylvania Liquor Control
Board, Brandywine Plaza, 2221 Paxton Church Road, Harrisburg PA 17110-9661.
One copy of certification to be sent to: Thomas Ballaron, Assistant Counsel, Bureau of
Liquor Control Enforcement, Pennsylvania State Police, 3655 Vartan Way, Harrisburg, PA
17110.
Mailing Date: MAY 28 2009
COMMONWEALTH OF PENNSYLVANIA
OFFICE OF ADMINISTRATIVE LAW JUDGE
FOR
PENNSYLVANIA LIQUOR CONTROL BOARD
PENNSYLVANIA STATE
POLICE, BUREAU OF Citation No. 06-2592
LIQUOR CONTROL ENFORCEMENT
V.
Incident No. W03-337434
THE MECHANICSBURG CLUB
333 HEINZ STREET
MECHANICSBURG PA 17055-3211
CUMBERLAND COUNTY
LICENSE NO. CC-5354
BEFORE: JUDGE FLAHERTY
APPEARANCES
For Bureau of Enforcement
Andrew Lovette, Esquire
ADJUDICATION
BACKGROUND:
For Licensee
P. Richard Wagner, Esquire
This proceeding arises out of a citation that was issued on November 16, 2006, by the
Bureau of Liquor Control Enforcement of the Pennsylvania State Police (hereinafter "Bureau")
against THE MECHANICSBURG CLUB, License Number CC-5354 (hereinafter "Licensee").
The citation contains four counts.
The first count charges Licensee with violation of Section 471 of the Liquor Code [47
P.S. §4-471] and Sections 5512 and/or 5513 and/or 5514 of the Crimes Code [18 Pa. C.S. §5512
and/or 5513 and/or 5514] in that on August 28, September 4, 6, 2006, and divers other occasions
in the past year, Licensee, by its servants, agents or employes, possessed or operated gambling
devices or paraphernalia or permitted gambling or lotteries, poolselling and/or bookmaking on
the licensed premises.
LID - 23110
THE MECHANICSBURG CLUB
CITATION NO. 06-2592 PAGE 2
The second count charges Licensee with violation of Sections 5.71 and 5.74 of the Liquor
Control Board Regulations [40 Pa. Code §5.71 and 5.74] in that on September 19, 2006, and
divers other occasions in the past year, Licensee, by its servants, agents or employes, failed to
maintain records in conformity with Title 40 of the Pennsylvania Code.
The third count charges Licensee with violation of Section 471 of the Liquor Code [47
P.S. §4-471] and Section 315(b) of the Local Option Small Games of Chance Act [10 P.S.
§315(b)] in that during the periods July 31 through August 6, August 7 through 13, August 14
through 20 and August 21 through 27, 2006, Licensee, by its servants, agents or employes,
offered and/or awarded more than $5,000.00 in cash or merchandise in any seven day period.
The fourth count charges Licensee with violation of Sections 471 and 493(12) of the
Liquor Code [47 P.S. §§4-471 and 4-493(12)], Section 311 of the Local Option Small Games of
Chance Act [10 P.S. §311] and Section 901 of the Department of Revenue Regulations [61 Pa.
Code §901] in that on September 27, 2006, and divers occasions in the past year, Licensee, by its
servants, agents or employes, failed to maintain complete and truthful records covering the
operation of the licensed business for a period of two years concerning the Local Option Small
Games of Chance Act.
The investigation which gave rise to the citation began on August 7, 2006 and was
completed on October 5, 2006; and notice of the violation was sent to Licensee by Certified Mail
on October 26, 2006. The notice of violation was received by Licensee.
An evidentiary hearing was held on this matter on August 23, 2007 in the Office of
Administrative Law Judge, Brandywine Plaza, 2221 Paxton Church Road, Harrisburg,
Pennsylvania. The hearing was continued and finished on November 17, 2008
Upon review of the transcript of this hearing, we make the following Findings of Fact and
reach the following Conclusions of Law:
FINDINGS OF FACT:
COUNTS 1, 2, 3 AND 4
1 • On September 6, 2006, an officer of the Bureau entered the licensed premises at
10:35 a.m. There were six bartenders on duty at that time (N.T. 8-9).
2. The officer identified himself to one of the bartenders, Mr. Charles Sechrist by
badge and credentials and asked if there were any club officers present (N.T. 9).
3. The club president, John Renninger appeared. The club treasurer, Charles Way
was also present. The club manager, Mike Gallagher was summoned to the premises. The
officer identified himself to these three individuals and told them he was there to conduct a
"routine inspection" of the club (N.T. 9-10).
THE MECHANICSBURG CLUB
CITATION NO. 06-2592 PAGE 3
4. The officer proceeded to the office area of Licensee club where he reviewed the
charter and bylaws for Licensee club. He also obtained membership information concerning the
classes of membership and the number of members (N.T. 10).
5. After completing the review of the aforementioned documents, the officer
returned to the barroom area to conduct a physical inspection of the bar counter area. He initially
approached Mr. Sechrist's work station. He went behind the service side of the bar counter. He
immediately took notice that there was a metal cash box on the island countertop behind the bar
(N.T. 10-11).
6. The officer looked in the cash box and found an NFL football pool (N.T. 11).
7. The officer also found in the cash box the following items:
(a) A payment sheet for individuals and pairs of individuals
who had paid to play in the pool.
(b) The actual pool itself entitled "2006/2007 - 33 Football
pool".
(c) 11 small manila envelopes each containing $170.00 with
names of individuals or nicknames written on the outside.
(N.T. 11-1.3 and Exhibit C-5).
8. Upon questioning Mr. Sechrist the officer learned that the pool belonged to a club
member named Mr. Sabochik and that Mr. Sechrist was assisting Mr. Sabochik in operating the
pool by accepting payments from persons wishing to participate in the pool. For each individual
or pair of participants, the fee for the entire 17-week NFL season was $170.00 or $10.00 per
week (N.T. 16-17).
9. The officer learned that the weekly payout for the pool would be $320.00. The
pool would run from one week to the next during the NFL season. If, during a particular week a
team would score exactly 33 points, the individual or pair of individuals that had that particular
team in the pool would win $320.00. In the event that none of the NFL teams scored exactly 33
points to designate a winner, the pot of $320.00 would carry over to the next week when the pot
would be $640.00 (N.T. 17).
10. The officer observed postings throughout the barroom area of the licensed
premises that warned persons not to engage in bookmaking or selling football spread tickets
(N.T. 19).
THE MECHANICSBURG CLUB
CITATION NO. 06-2592 PAGE 4
11. The officer discovered a number of cork bulletin boards with tickets posted on
them. On one of these bulletin boards he observed that the results of the drawing book were
posted. There was a record keeping sheet which contained the results of a September 4, 2006
weekly drawing. In looking at the record the officer became aware that for that date there were
seven different $500.00 pots and an eighth partial pot (N.T. 20-21 and Exhibit C-6).
12. The consideration for participants in the weekly drawing was $1.00 (N.T. 21).
21-22)13. There were multiple drawings and winners on Monday, September 4, 2006 (N.T.
.
14,. The officers also discovered the record of the weekly drawing on August 28,
2006. There were eight pots available and a ninth partial pot. The record shows that there were
two $250.00 winners and one $500.00 winner. There was also a winner of the partial pot, and
$35.00 had been paid out on that (N.T. 62 and Exhibit C-7).
15. The officer's attention was drawn to another posting on the bulletin board entitled
$100.00 loser drawing" for the date of August 26, 2006. When a member purchases a pull tab
ticket which is a loser, the member may put his member number on the ticket and throw the
ticket into a jar for a chance at another drawing. The member pays a consideration for each
ticket he places in the loser drawing jar. There were four $100.00 loser drawings and a fifth
partial for $23.00 on August 28, 2006 (N.T. 24-25 and Exhibit C-8).
16. The officer also found a posting for losers drawings for September 4, 2006. The
posting shows that there were two $100.00 drawing and a partial drawing of $84.00. The
winning tickets were attached to the card as well as the winning member's club number and
name (N.T. 25-26 and Exhibit C-9).
17. The officer found posted on the bulletin board the winners of 50150 drawings.
These drawings involved the sale of double coupon sequentially numbered tickets. The tickets
are torn in half upon sale. Each half bears the same number. One half is given to the player.
The other half is put into the pot for the drawing. The posting found was for drawings held on
September 4, 2006. These were two double coupon tickets for pots worth $500.00 and one ticket
for a partial pot of $54.00 (N.T. 26-28 and Exhibit C-10).
18. The officer also found posted on the bulletin board a winning ticket for a
merchandise raffle for a water cooler/fridge. This raffle again used the double coupon
sequentially numbered tickets. The drawing was held on September 4, 2006 (N.T. 28-29 and
Exhibit C-11).
THE MECHANICSBURG CLUB
CITATION NO. 06-2592 PAGE 5
19. The officer made a request for records that he would need to review on a return
visit in order to complete the inspection. He also made arrangements with Mr. Renninger and
Mr. Gallagher to return on another date. The specific records that he requested were: all
financial records required by Title 40, to include itemized cash income and expense records;
liquor and beer purchase invoices for the past two years; operating invoices to include small
games of chance including income and expense records related to small games of chance; bank
statements; cancelled checks; cash register tapes and payroll records (N.T. 30-31).
20. The officer also requested: minutes of club meetings; a listing of current club
officers with full name, address and telephone number (N.T. 31).
21. The officer further requested small games of chance recordkeeping be made
available including annual records, operating week records, itemized records per game, and
records concerning use of proceeds. Also requested were catering records (N.T. 31-32).
22. A written request for records was made by the officer which specified all of the
records indicated above. This was presented to Mr. Renninger who signed the request and
retained a copy (N.T. 32 and Exhibit C-12).
23. On September 27, 2006 the officer returned to the licensed premises to complete
the club routine inspection. At that time, he met with Mr. Renninger, Mr. Gallagher and the
bartender, Mr. Sechrist (N.T. 33).
24. In reviewing the minutes of meeting of Licensee club held on September 19, 2006
the officer noted that while a list of names of new member applicants was attached to the
minutes, the dates of application did not accompany the information for the new member
applicants (N.T. 34-35 and Exhibit C-13).
25. With respect to small games of chance the officer found that the only records
being maintained by Licensee were tickets for individual prizes in excess of $100.00 (N.T. 36-
37).
26. The officer asked if there was any documentary evidence of income and
expenditures with respect to the operation of small games of chance. Mr. Gallagher produced
the profit and loss statement for Licensee club for the period from September 2005 through
August, 2006. This statement listed under the general heading, "1 Entertainment (SGC Income)
some 35 different sources of income from small games of chance with a total income shown of
$1,686,829.00. Licensee provided no records detailing the items found in the profit and loss
statements (N.T. 37-40 and Exhibit C-14).
THE MECHANICSBURG CLUB
CITATION NO. 06-2592
PAGE 6
27. The officer explained to Mr. Gallagher and Mr. Renninger
weha he was obligated
to identify what the operating week payouts on small games of chance
Gallagher indicated that he would be able to identify these
which the following to tal paO uOctober
5, 2006, Mr. Gallagher delivered a sheet of paper upon
on small games of chance made by Licensee during the following seven day periods:
July 31-August 6, 2006 - $61,770.00
August 7-13, 2006 - $56,454.00
August 14-20,2006 - $58,529.00
August 21-27, 2006 - $68,925.00
(N.T. 42-46 and Exhibit C-15).
CONCLUSIONS OF LAW:
Counts 1, 2, 3 and 4 of the citation are sustained.
DISCUSSION:
COUNT 1
Licensee held several drawings for different lotteries on each of the days enumerated in
Count No. 1 of the citation. All but one of these lotteries on each day was not entitled
et
exemption under the Local Option Small Games of Chance Owhich ) 10 constitutes "other
seq.], and were therefore illegal lotteries maintained by Licensee
sufficient cause" as that term is used under Section 471 of the Liquor Code [47 P.S. §4-471].
Violation of a gambling statute by a liquor licensee is considered "other sufficient cause"
as that term is used in Section 471 of the Liquor Code (supra), thus subjecting the licensee to the
penalties provided by that section. Mar-Kodis Diner, Inc. v. Commonwealth of PA Liquor
Control Board, 522 A.2d 940 (Pa. Cmwlth 1987).
Section 5512 of the Crimes Code [18 Pa. C.S. §5512] makes it unlawful to set up or
maintain any unlawful lottery or numbers game. The term "unlawful" as used in this section is
defined to mean, "...not specifically authorized by la
The LOSGCA (supra) permits organizations holding of cal Option Small Games of
Chance licensees to conduct weekly drawings, which are forms lotteries.
Section 901.791(a) of the Local Option Small Games of Chance Regulations [61 Pa.
Code §901.791(a)] provides in part, as follows:
(a) A licensed eligible organization may sell chances for and
hold only one weekly drawing during an operating week...
¦
THE MECHANICSBURG CLUB
CITATION NO. 06-2592 PAGE 7
In this case the record established that Licensee held multiple weekly drawings on the
dates enumerated in Count No. 1 of the Citation (See Findings No. 11-14). All but one of these
drawings on each of these dates was not authorized by the LOSGCA (supra) or its attendant
regulations (supra) and was an unlawful lottery under Section 5512 of the Crimes Code (supra).
In addition the record establishes that Licensee permitted football pools to be conducted
on the licensed premises. Such conduct is in violation of Section 5514 of the Crimes Code [18
Pa. C.S. §5514(5)] and also subjects Licensee to the penalty provisions of Section 471 of the
Liquor Code (supra).
Section 5514(5) of the Crimes Code (supra) provides that a violation of that Section
occurs when a "person" being the owner, lessee or occupant of any premises, permits the same to
be used, for the purpose of pool selling or bookmaking.
In this case, during an inspection by an officer of the Bureau, the officer found, in plain
sight, on. an island behind the bar a cash box which contained an NFL football pool payment
sheet for individuals who had won the pool and manila envelopes containing cash for the
winners of the pools (See Findings 6 and 7).
A bartender named Sechrist maintained that the pool belonged to a club member, and that
he (Mr. Sechrist) accepted payments from persons who wished to participate (See Finding 8).
It is therefore clear that Licensee permitted pool selling on the licensed premises which
also makes Licensee under appropriate circumstances subject to the penalty provisions of Section
471 (supra).
The Supreme Court of Pennsylvania has mandated that when a licensee has been found to
have committed a violation which is classified as "other sufficient cause," some element of
scienter must be present before the penalties set forth in Section 471 of the Liquor Code (supra)
may be applied. The test set forth by the court is as follows:
1. Whether the licensee knew or should have known of the
illegal activities by an employe or patron. If so, the licensee is
liable.
2. A licensee may defend his license by demonstrating he
took substantial, affirmative steps to guard against a known pattern
of illegal activities.
Pa. Liquor Control Board v TLK, Inc., 544 A.2d 931 (Pa. 1988).
THE MECHANICSBURG CLUB
CITATION NO. 06-2592
PAGE 8
In this case, it is clear that the officers of Licensee were aware of the multiple weekly
drawings since the results were openly posted on bulletin boards. As to the football pool, I
conclude that if the officers of Licensee were not aware of this activity they should have been
since the cash box was in plain sight behind the bar and the bartenders were actively taking bets.
I do not believe that the presence of signs throughout the bar room area warning persons
not to engage in bookmaking or selling football spread tickets meets the test of "substantial
affirmative steps" under TLK (supra). It appears that these signs represented a token effort
which was largely disregarded by employes and members.
Based upon the foregoing, I conclude that the scienter required under TLK (supra) is
present and the charge in Count No. 1 of the citation is sustained.
COUNT2
The minutes for the meeting of Licensee club held on September 19, 2006 did not contain
all of the information required by the regulations for applicants for membership.
Section 5.74(2) of the Regulations of the Liquor Control Board [40 Pa. Code §5.74(2)]
requires that club licensees shall maintain minute books which shall contain, among other things:
... (2) The names and dates of applicants for membership and the
dates the members were admitted and whether ballots were taken.
In this case, the officer found that, with respect to the minutes for the meeting held on
September 19, 2006 the names of the new members were attached to the minutes but the dates of
application did not accompany that information (See Finding No. 24). Consequently, Count No.
2 of the citation is sustained.
ISSUE COMMON TO COUNTS 3 AND 4
OTHER SUFFICIENT CAUSE
The Supreme Court of Pennsylvania has held that violation of the criminal laws of the
Commonwealth, where appropriate scienter is present constitutes "other sufficient cause" as that
term is used in Section 471 of the Liquor Code (supra). Pa. Liquor Control Board v TLK, Inc.
(supra).
Section 327 of the LOGSCA [10 Pa. C.S. §327] provides that anyone violating the
LOSGCA is subject to criminal sanctions. Therefore violations of the LOSGCA by liquor
licensees constitute "other sufficient cause" as that term is used in Section 471 of the Liquor
Code (supra) where the appropriate scienter is present.
With the foregoing in mind I will address Counts 3 and 4 of the Citation.
THE MECHANICSBURG CLUB
CITATION NO. 06-2592
PAGE 9
C_
The record establishes that Licensee made payouts on small games of chance during the
four weekly periods between July 31, 2006 and August 27, 2006 which significantly exceeded
$5,000.00 in each of these periods. The charge in Count No. 3 is, therefore, sustained.
Section 315(b) of the LOSGCA [10 P.S. §315(b)] provides as follows:
• • • (b) Weekly limit - No more than $5,000.00 in cash or
merchandise shall be awarded by any eligible organization in any
seven day period.
In this case the record establishes that licensee paid out on small games of chance during
the four 7-day periods between July 31, 2006 and August 27, 2006: $61,770.00, $56,454.00,
$58,529.00 and $68,925.00 consecutively (See Finding No. 27).
Since the violations within this count fall within the "other sufficient cause" language of
Section 471, my comments concerning scienter are incorporated herein by reference.
In light of the above, I conclude that the charge in Count 3 of the citation is sustained.
COUNT 4
Licensee's failure to keep any records with respect to small games of chance except
tickets for individual prizes in excess of $100.00 was in violation of Section 493(12) of the
Liquor Code [47 P.S. §4-493(12)], Section 311 of the SGOCA [10 P.S. §311] and the Small
Games of Chance Regulations of the Department of Revenue [61 Pa. Code §901.1 et seq.].
Section 493(12) of the Liquor Code (supra) requires licensees to maintain complete and
accurate records covering the operation of the licensed business for a period of two years.
Section 319 of the LOSGCA [10 P.S. §319] authorizes the Department of Revenue to
promulgate regulations to carry out the provisions of the LOSGCA.
Section 317(f) of the LOSGCA [10 P.S. §317(f)] requires a licensee to make and keep
such records as the Department of Revenue shall prescribe and make such records available as
required by the Department of Revenue pursuant to regulation.
Section 901.461 of the Regulations of the Department of Revenue [61 Pa. Code
§901.4611 requires that licensees maintain records regarding small games of chance for a period
of two years. Further, this section also requires eligible organizations keep and maintain annual
records of the activities related to small games of chance with separate totals of activities for
each operating week.
THE MECHANICSBURG CLUB
CITATION NO. 06-2592
PAGE 10
The specific records which an eligible organization is required to keep are found at
Section 901.462 through 901.467 [61 Pa. Code §901.462 through 901.467].
Finally, Section 901.468 of the Regulations of the Department of Revenue [61 Pa. Code
§901.468] again provides that records including invoices shall be maintained for a minimum of
two years.
As previously indicated, the only records being maintained by Licensee with respect to
small games of chance were tickets for individual prizes in excess of $100.00 (See Finding No.
25).
Since the violation in this Count falls partially within the "other sufficient cause"
language of Section 471 of the Liquor Code (supra) my comments regarding scienter as found in
Count No. 1 are incorporate herein by reference. Here, as in Count No. 1, it is obvious that the
officers of Licensee club were aware of what records were not being kept with respect to local
option small games of chance.
Based upon the foregoing, Count No. 4 of the citation is sustained.
PRIOR RECORD:
Licensee has been licensed since September 26, 1952, and has had two prior violation(s)
since July 1, 1987, the date of establishment of the Office of Administrative Law Judge:
Citation No. 89-1041. Fine $900.00.
1 • Possessed or operated gambling devices or
paraphernalia or permitted gambling or lotteries on
the licensed premises.
Citation No. 05-0611. Fine $250.00.
1 • Offered and/or awarded more than $5,000.00 in
cash or merchandise in any seven day period.
February 13 through 19, 2005.
PEN- NALTY:
Section 471 of the Liquor Code [47 P.S. §4-4711 prescribes a penalty of license
suspension or revocation or a fine of not less than $50.00 or more than $1,000.00 or both for
violations of the type found in this case.
THE MECHANICSBURG CLUB
CITATION NO. 06-2592
PAGE 11
Under the circumstances of this case, the penalty imposed shall be as follows:
Count 1 - $350.00 fine
Count 2 - $250.00 fine
Count 3 - $1,000.00 fine and 10 days suspension
Count 4 - $1,000.00 fine
ORDER
THEREFORE, it is hereby ordered that Licensee THE MECHANICSBURG CLUB, pay
a fine of $2,600.00 within 20 days of the mailing date of this Order. In the event the
aforementioned fine is not paid within 20 days from the mailing date of this Order, Licensee's
license shall be suspended or revoked.
IT IS FURTHER ORDERED that Licensee's liquor license (including all permits)
License No. CC-5354 be suspended for a period often days BEGINNING at 7:00 a.m.
on Monday, August 17, 2009 and ENDING at 7:00 a.m. on Thursday, August 27, 2009.
Licensee is directed on August 17, 2009 at 7:00 a.m. to place the enclosed placard of
notice of suspension (identified as Form No. PLCB-1925 and as printed with red and black ink)
in a conspicuous place on the outside of the licensed premises or in a window plainly visible
from outside the licensed premises and to remove said license from the wall and place it in a
secure location.
Licensee is advised if replacement placards are needed for any reason they are available
at all Pennsylvania Liquor Stores/Wine & Spirits Shoppes.
The Bureau is directed to visit and monitor the aforementioned licensed premises for
compliance with this Order.
Licensee is authorized on August 27, 2009 at 7:00 a.m. to remove the placard of
suspension and return his license to its original wall location.
Jurisdiction is retained pending final resolution of the penalty in this matter.
Dated this _ 18th day of May, 2009.
an
Daniel T. Flaherty, Jr., J.
THE MECHANICSBURG CLUB
CITATION NO. 06-2592
PAGE 12
MOTIONS FOR RECONSIDERATION MUST BE RECEIVED WITHIN 15 DAYS OF
THE MAILING DATE OF THIS ORDER IN THE OFFICE OF ADMINISTRATIVE
LAW JUDGE AND REQUIRE A $25.00 FILING FEE. A WRITTEN REQUEST FOR
RECONSIDERATION MUST BE SUBMITTED WITH THE FILING FEE.
Detach here and submit stub with payment
-------------------------------------------------------------------------------------------------------------------
The fine must be paid by Treasurer's Check
Cashier's Check or Certified Check.
Personal checks, which includes business-use personal checks, are not acceptable. Make
check payable to the Commonwealth of Pennsylvania and mail to:
PLCB-Office of Administrative Law Judge
Brandywine Plaza
2221 Paxton Church Road
Harrisburg PA 17110-9661
Citation No. 06-2592
The Mechanicsburg Club
Thomas M. Ballaron, Assistant Counsel
PA Supreme Court ID #23370
Pennsylvania State Police
Bureau of Liquor Control Enforcement
3655 Vartan Way
Harrisburg, PA 17110
(717)540-7411
Attorney for Appellee
PENNSYLVANIA STATE POLICE,
BUREAU OF LIQUOR CONTROL
ENFORCEMENT,
Appellee
vs.
THE MECHANICSBURG CLUB,
Appellant
~`~~ ~~~~EI; ROTNOH(~~'ARu
Z~12 NOY 21 AM 9: 04
CUMBERLAND CDi1NTY
PENNSYLYAFdiA
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET # CP-21 SA 77-2009 (Criminal)
09-5652 CIVIL TERM
MOTION TO VACATE LIOUOR LICENSE SUSPENSION
The Parties in the above-captioned matter join in filing the within Motion requesting that
the liquor license suspension imposed by this Honorable Court in the above-captioned matter be
vacated, and in support thereof, respectfully aver as follows:
1. The Pennsylvania State Police, Bureau of Liquor Control Enforcement
(Commonwealth) is responsible for enforcing the Liquor Code, 47 P.S. § 1-101 101 et ~. ~
2. The Mechanicsburg Club (Club) is the holder of Pennsylvania Liquor License
No. CC-5354, for the premises located at 333 Heinz Street, Mechanicsburg, PA 17055-3211.
This license was issued by the Pennsylvania Liquor Control Board (PLCB) and is current. The
Club holds a Permit issued under the Local Option Small Games of Chance (LOSGCA), 10 P.S.
' The Bureau of Liquor Control Enforcement is a subdivision of the Pennsylvania State Police authorized pursuant
to Section 211 of the Liquor Code, 47 P.S. § 2-211, to enforce the Liquor Code and its attendant regulations.
§ 311, allowing the Club to sell "small games of chance" in order to raise and solicit funds for
charitable and public interest purposes. These Permits are issued by the County Treasurer under
the authority of Section 320 of the LOSGCA (10 P.S. § 320).
3. On June 10, 2011, this Honorable Court issued an Order adopting the terms of a
Consent Agreement of the Parties in resolution of criminal and civil violations committed by the
Club involving the LOSGCA. (Attachment A)
4. The Order of this Honorable Court adopting the Parties' Consent Agreement, in
settlement of the multiple cases required the Club to: (1) disgorge the sum of $1,000,000 to be
paid to legitimate charities of its choice within two years of the execution of this Honorable
Court's Order; (2) undergo a suspension of its liquor license for a period of 70 days; and (3) pay
an additional administrative fine to the Office of Administrative Law Judge in the amount of
$2,600.
5. This Court's Order held the 70 day liquor license suspension in abeyance, in favor
of probation, allowing the Club to continue to operate pursuant to its liquor license. Probation
would continue for a period of one year during which the club would continue to comply with
the Liquor Code and LOSGCA, and complete payment of the aforementioned sum of $1,000,000
to charity.
6. The Parties agree that the Club has satisfied the terms of probation; that the sum
of $1,000,000 has been paid to legitimate charities; and the additional administrative fine has
been paid to the Office of Administrative Law Judge.
2
7. WHEREFORE, according to the terms of the Consent Agreement and this Court's
Order of June 10, 2011, the Parties respectfully request this Honorable Court issue a final Order
marking the aforementioned 70 days suspension as Vacated.
Respectfully submitted,
~- ~
// /5~~..
By: THOMAS . BALLARON
Assistant Counsel
Attorney I.D. No. 23370
PENNSYLVANIA STATE POLICE
BUREAU OF LIQUOR CONTROL
ENFORCEMENT
3655 Vartan Way
Harrisburg, PA 17110
(717 540-741~4_~~
B : P ARD WAGNER, ESQ.
ATTORNEY FOR APPELLANT
Attorney I.D. No. 23103
Mancke, Wagner & Spreha
2233 North Front Street
Harrisburg, PA 17110
(717)234-7051
3
i~
~y t
'._
Thonma tVI. $altarOn, ASS181an1 Colnl~0)
PA Supreme Couit ro Na3370
Penneyivanta SIn1e Police
Bureen of Wqua•COnbol BnPorcenient
3635 Yaiian IYay
FTArrkbHig, PA 17110
(717j 310-7d ( I
Attorney for Appellee
P)BNiVSYLYANJA STATB POLlCB,
BUItl$AU OF LIQUOR CONTROL
BiMxOhCEMENr,
Appoltoe
vs.
•TNE NIECHr1NrCSBURG CLUB,
AppelMnl
s 11V THS COURT OF COM'hi 10Tt PLEAS OF
I CUMBERLAND COUiVTY, PENTlSYLYA~VYA
s
s
t
s DOCKJ;T N CP-2t 3A 77.4049 (Crlnstnalj
s
s 09-t1bS2C[YlLTBRNI
AND NO'W, this .~~~c ay of Ju~re, 2011, tt~e above-ca~tiolied mnttars havlug bccn filed
as statutory appeals #i~om the Opinion and Ordar of Pem>syJvanla Liq~ror Control Board and
Jvlagisterial District No, 09.3.05,
Upon Jo1:tt motlou of the Peiulsylvauia Stab Police, bureau of Liquor Control
Bnfol~cer»ent (Co~wnomveetth or Bureau) and the l~ieeiulnlasbnrg Club (Club or Licensee) to
settle and resolve the above-oaptioned matters tturongli the attacltcd Cousent Agreement,
And Upon De Novo ievlew mid .eouslderntion of the Parties' Consent Agree~iient,-
StlpuJatio»s of Fact end Ac~judlcations of the O.f#Ice of Adnilnislrative Law Judge for Citation
Dios. 0G-2S92, 07-1537 and 09.1G79,
The Court Adopts mid Iueorporates by reference the 3llpitlatious of Fact & Agreement of
Counsel wJtlt :ospeot to Administrative Cltativrts Ott-2592, 071537, and 09.1697, and Stwunary
Crlli)11lAi mattel3, as PlndlugS Of FACt lu the above-CaptlOned appeals; And COnGlttdes fl3 a nlaller
of la~v that the Club violated the Loeat Opton Stna110a~nes of Chauee Act, 10 P.S. § ~ 11, and
Liclttor Codo, X17 P.S. § d-471, as alleged in the incorporated adtoLilatrative oltattous, non-traffic
oftations; and Solioltatton of ptntds for Charitable Parpose Act (SFCPA), 10 P.S. § 1 G21.
IT TS THIIR$FO12E ORD$RBl7 AS FOLLOWS:
(1) The Ciub will pay an adrnh~istrative One of.$2,600 (from A~txlication 06-2592;
<laeketed above at 09-5652 Civit Tornt) within 20 days of the ~nailh~g date of this Order to the
Office of Administrative Law Jmlge. ~
(2) The Licensee's Club l;Iquor License No, CC-S3S~i, including all permits, (except
for the LOSt3CA Peinllt issued by the Cumberland County Treasurer) is sttsponded for a period
ofsoventy days [20 days with respeot to Citation 07-1537; 40 days with respect to Citation 09-
1G79 (Count 1: 5 days; Counl 2: 5 days; Count 3:10 days; Count 4: 10 days and Count S;•
10 days); l0 days wltit respect to Citation OG-2592]. The seventy (70) days suspension is held in
abeysuce in favor of a pei9od of probatiati as set forth below.
(3) T1te Ciub tivlll disgorge tits amount of $1,000,000.00 to be paid to legitln~ate
charities of lta choosing as foilotvs;
(a) The sum of $750,000 wlll be paid to the seleoted ollarlties ulwn
lssi~anee of the w1 thin Order of Court,
(b} Correspondence Identifying the selected eharittes and copies of the
sttbJect checks ivlfl be Ofe<t by the Ciub with this Court and wltl~ tiro
Conunonwealth within five (5) business days of payment.
(c} The Clab wlli pay the remainhlg $250,000 within one (1) year of
the exeoattort of the within OtYler of Cotu't to logtiintate oharitles of its
ahoosittg. .
(d} Corresponde~ice ldentilyiilg the seleoied charities anct copies of the
subJect checks will 68 Oled by the Ciub with this Couri and with the
CouunonwcaUli ~vithin flue (S) business days ofpayme~~t,
(~!) U~doss fire Club violates the terms of probation, the Conrinonwealth will not file
or >t>itlate:
(n) Any legal action ender fife Solicitation of plutds for Charitable
Purposes Act, 14 P.t3, § iG2,1, or make a referral to any enforcement
agenoy for tills pu-pose to recover small games proceeds from 200d•2008.
~ 'fho Club paid the Admhtiblmiive 0ae of 57,000.00 (52,000 tiroai AcBudloeiton 07.1537, SS,000• tisom
Ac~tull~ttoa 09.1674 • SI,000 per saws) wt Apra 25, 2011 to the Of[loe of'A~nb~islrsliva 1.mv bulge piaaumit to
Couuotldafed Ac~idlentlon 04-Ib74 dt 07.1337 l1Netllag 13sfo: Arlee~eb 2!, 2011).
2
(b) Atty legal notion to suspend or rovoke ifte Club's LOSt3CA Permit
or make a refet'ml for this purpose to arty law onforcetneut agency based
upon the facts and o{reuntstanoes of any of rite above~ttoted adutinislt~ative
or crhnttutl ntatlers. Tito Club's violation of the )LOSOCA will not
eatstihtte a basis for revoklttg the Club's L(?S4CA pa~mit under § 322
(IO P.3. §322) m~ a conviotion antler Section 327(x) of the LOS(3CA
[IO P.S. § 327(a)] unless fire Club violates the terms of probation.
(o) Any criminal aetiats under the LOSdCA based upon or arising
11<om any concktet of the Chtb involvlag the I.O30CA between 2007 and
2008 or make a referral for tins purpose to any law euforeement ageaacy.
(S) The Club is placed on probatiat as follows:
(a) 'Tire tetyn of pt~obation will begin with the issuance of the tivllhin
Order and eontwue for a period of at least ono year expiring upon the
explratton of etc (1) oafetxlar year front the maiilttg date of this Order or
as speoiged In any Supplatnontal Order of this Court,
(b} The Club wail comply with tlio Ligtror Code and the LOSt:3CA; its
attendant regulations, and the tetytts mut provisions of this Order.
(c) The Club wilt pay lire sutra of $l,boa,000.00 to legitimate charities
prevloasly selected by the Cht6 as set forth above.
(6} .Upon satisfaction of fbc terms of probation as set forth above, this Court wW
nark the afnretnetttioned seventy (70}days suspension its VACATBD,
(7) 7'lte Clttb's adtnlttIstrative appeal of Citation 06.2592 docketed above at 09.5652
(Civil Tetm) and rho Club`s Sunwtaty Crltnhtat Appeals docketed at CP-21 SA 7?-2009
{Crhnhsal) are dismissed.
(~ The Club's failure to comply ~wlth nay of the provisibtts of this Order will
constltnte a violation of probnt[on and tnay cause the fttll seventy {70) days of susltenslou ro be
served on dates spccif'tcd !n a Supplemental Order to be Issued by this Court,
BY TIdB COURTt
1t~Vli`t~1E~38s ~ ` ~ ~~~~
TRUE COPY PROM R~CORp
M TitllmonY whsrod+ I t»n w-to sst my hid
end 1F-s,NSt of Ned ~ ~~+ Pa,
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Thomas M. Ballaron, Assistant Counsel
PA Supreme Court ID #23370
Pennsylvania State Police
Bureau of Liquor Control Enforcement
3655 Vartan Way
Harrisburg, PA 17110
(717)540-7411
Attorney for Appellee
PENNSYLVANIA STATE POLICE,
BUREAU OF LIQUOR CONTROL
ENFORCEMENT,
Appellee
vs.
THE MECHANICSBURG CLUB,
Appellant
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET # CP-21 SA 77-2009 (Criminal)
09-5¢52 CIVIL TERM
ORDER
,~
AND NOW, this ~ day of 13ov++.~' , 2012, upon consideration of the
joint Motion to Vacate Liquor License Suspension of the Mechanicsburg Club and upon
consideration of the Club's satisfactory completion of the terms of Probation imposed by this
Court's Order of June 10, 2011 including its payment of $1,000,000 to charity,
IT IS ORDERED that the 70-day suspension of the Club's liquor license is vacated.
BY THE COURT:
KEVIN A.
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P.J.