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Home My WebLink About05-2383 . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PENNSYLVANIA STATE POLICE, BUREAU OF LIQUOR CONTROL ENFORCEMENT v. MARSON, mc T/A BLESSED OLIVERPLUNKET 10 N. PITT ST CARLISLE, PA 17013-2944 C. '1 A t' N [0 'J' .) 3 !' J CU~ 7-;vc~. IVl Cion O. j.' CUMBERLAND COUNTY LICENSE NO. R-AP-17096 PETITION FROM ACTION OF LIQUOR CONTROL BOARD TO THE HONORABLE, THE JUDGES OF THE SAID COURT The appeal of Blessed Oliver Plunkett respectfully represents: I. The Petitioner is a corporation duly organized in the Commonwealth of Pennsylvania. 2. The Petitioner conducts a restaurant at 10 North Pitt Street, Carlisle, Pa 17013. 3. On August 12,2004, the Bureau of Liquor Control Enforcement cited Petitioner for a violation of Section 499(a) of the Liquor Code, 47 PS 94-499(a) 4. Based on Stipulations of Fact, the Administrative Law Judge sustained the citation as charged in its Adjudication of January 27, 2005. A true and correct copy of the said Opinion and Order is attached hereto and marked Exhibit A 5. The mailing date on the original adjudication is February I, 2005. .. 6. Petitioner complied with the procedure as established in the adjudication by filing a Motion for Reconsideration and required fee on February 15,2005, from the January 27,2005, Adjudication. A copy of said Motion is attached hereto as Exhibit B and incorporated as if fully set forth herein. 7. The Motion asserted that the enforcement of ~ 4-499, entitled "Premises to be vacated by patrons," constitutes a violation of the U. S. Constitution in that it abridges the rights to free speech and peaceable assembly, as guaranteed by the First Amendment. 8. Due to the fact the original adjudication contained notice regarding the time period in which to file the Motion for Reconsideration, Petitioner was misled into believing that it was taking the necessary next step to effectively appeal the original adjudication by filing such a motion. 9. Petitioner was never notified of the deadline for appealing the adjudication in any manner other than through the Motion for Reconsideration. 10. After the Petitioner received the order denying the Mntion for Reconsideration it filed an Appeal of the Adjudicative Law Judge Adjudication, believing that it was timely appealing the original adjudication by filing the appeal within thirty (30) days of this last order. See Exhibits C and D. 11. Petitioner intended to raise its constitutional issues on appeal. 12. Petitioner proceeded in good faith that the procedures established by the Administrative Law Judge in his Adjudication were in fact the proper manner of preserving the constitutional issues for appeal. . 13. Attorney Pietrzak speculated, in his letter dated March 29,2005, that the ALJ had no choice but to deny the Petitioner's request. 14. The fact that the ALJ denied the request rather than reject it on procedural grounds implies that the constitutional issues were in fact reviewed by the ALJ. 15. The ALJ abused his discretion in reviewing the constitutional issues in Petitioner's Motion for Reconsideration. 16. The ALJ provided a misleading procedure for appealing the adjudication. 17. Petitioner will be prejudiced if the Court denies its appeal of the constitutional issues as being untimely. 18. The Petitioner is informed, believes and, therefore, avers that the Court of Common Pleas is required to hear this Appeal de novo and to determine whether the Board abused its discretion and denied Petitioner due process of law. WHEREFORE, Petitioner files this Appeal and respectfully requests that this Honorable Court enter an Order directing the Board proceed with its appeal and resolve the constitutional issues raised on their merits. Respectfully submitted, ROMlNGER, BAYLEY & WHARE ~E=;:"" J.7.;V&; ) dO, Attorney LD. No. 81924 155 South Hanover Street Carlisle, Pennsylvania 17013 Attorney for Petitioner . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PENNSYLVANIA STATE POLICE, BUREAU OF LIQUOR CONTROL ENFORCEMENT v. MARSON, INC. T/ A BLESSED OLIVER PLUNKET 10 N. PITT ST CARLISLE, P A 17013-2944 Civil Action No. CUMBERLAND COUNTY LICENSE NO. R-AP-17096 CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Mason Inc., T/ A Blessed Oliver Plunkett, do hereby certify that I this day served a copy of the Petition From Action of Liquor Control Board upon the following by depositing same in the United States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows: PLCB-Office of Administrative Law Judge Brandywine Plaza 2221 Paxton Church Road Harrisburg Pa. 17110-9661 John H. Peitrzak, Assistant Counsel Pennsylvania State Police Bureau of Liquor Control Enforcement 3655 Vartan Way Harrisburg,PA 17110 Date.;;: /~/O/- I -----. . ....'.:n" ...;1 kl c) n -2 1.'.1 C V' r"j;:;j 6- ; "I' Cllll] f., ~ ~'1 Jij U v i: :)~;>,J 3Hl :10 GUT!!:! Mailing Date: FEB I an; :"-'19 dlJ/c1 ;- f COMMONWEALTH OF PENNSYLVANIA OFFICE OF ADMINISTRATIVE LAW JUDGE FOR PENNSYLVANIA LIQUOR CONTROL BOARD PENNSYLVANIA STATE POLICE, BUREAU OF LIQUOR CONTROL ENFORCEMENT Citation No. 04-1361 Incident No. W03-295 128 v. LID - 18410 MARSON, INC. T/A BLESSED OLIVER PLUNKET 10 N. PITT ST. CARLISLE, PA 17013-2944 CUMBERLAND COUNTY LICENSE NO. R-AP-17096 ADJUDICATION BEFORE: JUDGE THAU BACKGROUND: This proceeding arises out of a citation that was issued on August 12, 2004, by the Bureau of Liquor Control Enforcement of the Pennsylvania State Police (Bureau) against Marson, Inc., t/a Blessed Oliver Plunket (Licensee), License Number R-AP-17096. The citation charges Licensee with a violation of Section 499(a) of the Liquor Code [47 P.S. ~4-499(a)]. The charge is that Licensee, by servants, agents or employes, failed to require patrons to vacate that part of the premises habitually used for the service of alcoholic beverages not later than one half hour after the required time for the cessation of the service of alcoholic beverages, on July 17, 2004. In lieu of a hearing, the parties entered into a series of Stipulations of Fact. Based on that document, I enter the following Findings of Fact and Conclusions of Law. Exhibit "A" " I MARSON, INC. Citation No. 04-1361 PAGE 2 STIPULATIONS OF FACT: 1. The Bureau began and completed its investigation on July 17, 2004. (Stipulation of Fact No.4) 2. On July 17, 2004, at 2:55 a.m., a Bureau Enforcement Officer along with Carlisle Police Officers conducted an inspection of the premises. Five people were seated around the bar as well as Licensee's Secretary/Manager/Stockholder. None of the six people were engaged in any employment related activities, nor were they cleaning the premises. (Stipulations of Fact Nos. 5, 6 and 7) CONCLUSIONS OF LAW: The citation is sustained as charged. PRIOR RECORD: Licensee has been licensed since August 9, 1972, and has had six prior violation(s) since July I, 1987, the date of establishment of the Office of Administrative Law Judge: Adjudication No. 89-0082. Fine $1,000.00. Sales to a minor. Adjudication No. 92-0683. Fine $2,000.00. 1. Sales to minors. 2. Minors frequenting. Adjudication No. 93-2086. Fine $800.00. Sales to a visibly intoxicated person. September 19,1993. Adjudication No. 95-3073. Fine $50.00 and 1 day suspension. Issued worthless checks in payment for malt or brewed beverages. September 26, 1995. Adjudication No. 97-1892. Fine $100.00. Used loudspeakers or devices whereby music could be heard outside. April 4, 1997. Adjudication No. 99-0544. Fine $1,000.00. Sales to minors. March 4, 1999. ( MARSON, INC. Citation No. 04-1361 PAGE 3 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. I adopt the jointly recommended penalty of a $250.00 fine. ORDER: Imposition of Fine THEREFORE, it is hereby ordered that Licensee pay a fine of $250.00 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. The fine must be paid by Treasurer's Check, Cashier's Check, Certified Check or Money Order. Personal checks, which include business-use personal checks, are not acceptable. Please make your guaranteed check payable to the Commonwealth of Pennsylvania and mail to: PLCB - Office of Administrative Law Judge Brandywine Plaza 2221 Paxton Church Road Harrisburg, Pennsylvania 17110-9661 Retaining Jurisdiction Jurisdiction is retained to ensure compliance with this Adjudication. Dated this ,~r/~~IaY of January, 2005. 74~ Felix Thau, A.L.J. pm,....; MOTIONS FOR RECONSIDERATION MUST BE RECEIVED WITHIN 15 DAYS OF THE MAILING DATE OF THIS ORDER TO 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. COMMONWEALTH OF PENNSYLVANIA OFFICE OF ADMINISTRATIVE LAW JUDGE FOR PENNSYL VANIA LIQUOR CONTROL BOARD PENNSYLVANIA STATE POLICE, BUREAU OF LIQUOR CONTROL ENFORCEMENT ~~ Citation No. 04-1361 Incident No. W03-295128 v. LID- I 8410 MARSON, INC. rIA BLESSED OLIVER PLUNKET 10 N. PITT ST. CARLISLE, PA 17013-2944 CUMBERLAND COUNTY LICENSE NO. R-AP-17096 ORDER OF COURT AND NOW this day of . 2005 the within Motion of Reconsideration is hereby granted. Date: d}/1)60 ..... = c::> U> :::0 ~ ,." C1 n - d 0'\ :=> :0. )> :x r '!? ~ en w ALJ Exhibit "B" ""< ';-'," " COMMONWEALTH OF PENNSYLVANIA OFFICE OF ADMINISTRATIVE LAW JUDGE FOR PENNSYLVANIA LIQUOR CONTROL BOARD PENNSYLVANIA STATE POLICE, BUREAU OF LIQUOR ENFORCEMENT Citation No. 04-1361 v. Incident No. W03-295128 MARSON, INC" T/A BLESSED OLIVER PLUNKETT 10 N. PITT ST., CARLISLE, P A 17013 LID - 18410 CUMBERLAND COUNTY LICENSE NO. R - AP - 17096 MOTION FOR RECONSIDERATION AND NOW COMES the Licensee, by and through its attorneys, ROMINGER, BAYLEY & WHARE, to move this Honorable Court to reconsider its Adjudication of January 27,2005 (02/01/2005 mailing date), and in support thereof avers as follows: 1. As stipulated, on or about July 17, 2004, at 2:55 a.m., a Bureau Enforcement Officer, accompanied by Carlisle Borough police officers, conducted an inspection of the Licensee premises and observed five people seated around the bar with the Licensee's Secretary/ManagerlStockholder. 2. As stipulated, none of said people were engaged in employment-related activities, nor were they cleaning the premises. 3. Licensee was subsequently charged and cited with a violation of ~499( a) of the Liquor Code (47 P.S. ~4-499(a)). 4. Said charge was that the Licensee, by servants, agents, or employees, failed to require patrons to vacate that part of the premises habitually used for the service of alcoholic beverages not later than one half hour after the required time for cessation of the service of alcoholic beverages. 5. Based on Stipulations of Fact, this Honorable Court's Conclusion of Law was to sustain the citation as charged. 6. The enforcement of ~ 4-499, entitled "Premises to be vacated by patrons," constitutes a violation of the U.S. Constitution in that it abridges the rights to free speech and peaceable assembly, as guaranteed by the First Amendment. 7. The abridgment of the rights to free speech and peaceable assembly, as referenced in Paragraph 6, above, serve no compelling state interest. 8. The Commonwealth has at its disposal a less restrictive sanction, to wit the prohibition of the sale of alcohol after a specified hour, rather than completely barring individuals to associate and communicate on a Licensee's premises. 9. As set forth in 44 Liquor Mart. Inc.. v. Racine. 829 F.Supp. 543 (D.RI. 1993), the broad regulatory authority afforded the Commonwealth by virtue of the Twenty-first Amendment to the U.S, Constitution is not absolute and does not override the constitutional guarantees provided by the Bill of Rights. See also Crail! v. Boren. 429 U.S. 190 (1976). 10. The Commonwealth may be constitutionally prescribed from barring multiple individuals merely from assembling together. 11. The Commonwealth has no legitimate interest in inquiring into the actual reason for assemblage, as it may be for political, personal or social purposes, 12. ~4-449 is overbroad and deters privileged activities. 13. ~4-449 is an unreasonable, time, place, and manner restriction and does not serve significant state interests. WHEREFORE, the Defendant requests that this Honorable Court reconsider its original determination in this matter and find in the Licensee's favor. Respectfully submitted, ROMlNGER, BAYLEY & WHARE ()- Karl E. Rominger, Esquire Attorney I.D. No. 81924 155 South Hanover Street Carlisle, Pennsylvania 17013 , Tel: (717) 241-6070 Fax: (717) 241-6878 Attorney for Licensee COMMONWEALTH OF PENNSYLVANIA OFFICE OF ADMINISTRATIVE LAW JUDGE FOR PENNSYLVANIA LIQUOR CONTROL BOARD PENNSYL VANIA STATE POLICE, BUREAU OF LIQUOR CONTROL ENFORCEMENT v. MARSON, INC. T/A BLESSED OLIVER PLUNKET 10 N. PITT ST. CARLISLE, PA 17013-2944 CUMBERLAND COUNTY LICENSE NO. R-AP-17096 Citation No. 04-1361 Incident No. W03-295128 LID-18410 CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Mason Inc., T/A Blessed Oliver Plunkett, do hereby certify that I this day served a copy of the Motion for Reconsideration upon the following by depositing same in the United States Mai~ first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows: PLCB-Office of Administrative Law Judge Brandywine Plaza 2221 Paxton Church Road Harrisburg Pa. 1711 0-966 I Da~e: J! shr; John H. Peitrzak, Assistant Counsel Pennsylvania State Police Bureau of Liquor Control Enforcement 3655 Vartan Way Harrislnlrr, PA 17110 /~, KarlE. Rominger, Esquire AttqrneyI.D. No. 81924 155 South Hanover Street Carlisle, Pa 17013 . Tel. (717) 241-6070 Attorney for Licensee Mailing Date: FEB 2 2 2llE PLEAse YotIfi c;/!:rlJfil( 'HIS A ~Ge Ittl}( l (I . COMMONWEALTH OF PENNSYLVANIA OFFICE OF ADMINISTRATIVE LAW JUDGE FOR PENNSYLVANIA LIQUOR CONTROL BOARD PENNSYL VANIA STATE POLICE, BUREAU OF LIQUOR CONTROL ENFORCEMENT Citation No. 04-1361 Incident No. W03-295128 v. LID - 18410 MARSON, INC. T/A BLESSED OLIVER PLUNKET 10 N. PITT ST. CARLISLE, PA 17013-2944 CUMBERLAND COUNTY LICENSE NO. R-AP- 17096 OPINION AND ORDER UPON LICENSEE'S APPLICATION FOR RECONSIDERATION Opinion: I entered an Order on the 27th day of January, 2005 (mailing date of February 1, 2005), imposing a $250.00 fine. Licensee has submitted a letter which I will treat as an Application for Reconsideration. Said letter was received by this Office on February 16, 2005. Licensee is asking reconsideration of the $250.00 fine. Accordingly, the following Order is entered: Order: NOW THEREFORE, it is ordered that Licensee's Application for Reconsideration is DENIED. IT IS FURTHER ORDERED that the Adjudication dated January 27, 2005 (mailing date OfF~ruary 1, 2005) RE~ F~LL FORCE AND EFFECT. Dated this --L..J:traY of February, 2007~ ~ FeIi Thau, A.L.J. pm Exhibit "e" Office Chief Counsel Fax:717-787-8820 Feb 23 2005 APPEAL OF ADMINISTRATIVE LAW JUDGE ADJUDICATION 16:08 P.UL PLLB-19~S 9.Vl COMMONwEAL.lHOFPENNSV\.VANIA lJ PENNSYl.VANIA UQIJORCON1l\OlBOAl\O OFFICE OF CHIEF COUNS~ (SU1Wn' IN ORIGINAl. OM. Y) INSTRUCTIONS I. Remtt a $35 fee payable to "PA liquor Control Board. aldng with the original of this fully completed Appeal form. 2. Type or print in Blue/Black ink all information except signatures. 3. Attach copy of the Opinion and Adiudication of the AdminlslraWe Law Judge (AW) that is the subject of the Appeal. 4. Appeal must be filed or postmarked within 30 calendar days of the mailing date of the AW's Opinion and Adjudication: untimely filed Appeals 1'111I be dismissed, . 5, Send Appeal 10: Pennsylvania liquor Control Board, AlTN: Office 01 Chief Counsel, Appeal Untt, Room 401, Capttol and Boas Strvets, Northwest Office Building, Hamsburg, PA 17124-0001. 6, Complete the following (as II appears on the AW's 'cation). NAMEOHlCiNSee PLCB LICENse NO, cITATION NO, TRAOf NAME (IF Y) R-AP-17096 04-1361 Blessed Oliver Plunkett ADDRESS OF PREMISES ($TRIi:r.T. RURAl AO\1TE. P.O. BOolC NO.) (POST OfflC~ tsTAT~ CZlp) 1 0 ~. Pitt Street Carlisle PA 17013 NAMEOF~ICIPAUTY ICOUNTY Carlisle Cumber} and 7. This Appeal will be considered solely on the record made before Ihe Administrative Law Judge. In numbered paragraphs, specify how the Administrative Law Judge commllfed an error of law or abused hislher discretion or how hislher decision was not based on substanlial evidence. (Attach add'nional sheeta if necesS8l)'.) See Attached. SIGNATUAeOfuce~sEeOAI\lITHORIZEDOf'FI""RORcO\J~seLFoAUCENSEE . / ./ -......... OAlE ;;._ I. " -0"" #'+--- ,j ~x~iPri t "D" i1" If .. COMMONWEALTH OF PENNSYLVANIA PENNSYLVANIA LIQUOR CONTROL BOARD PENNSYLVANIA STATE POLICE, BUREAU OF LIQUOR CONTROL ENFORCEMENT Citation No. 04-1361 Incident No. W03-295128 v. LID-18410 MARSON, INC. T/A BLESSED OLIVER PLUNKET 10 N. PITT ST, CARLISLE, PA 17013-2944 CUMBERLAND COUNTY LICENSE NO. R-AP-17096 APPEAL FROM ADMINISTRATIVE LAW JUDGE ADJUDICATION 1, On August 12, 2004, the Bureau of Liquor Control Enforcement cited Petitioner for a violation of Section 499(a) of the Liquor Code, 47 P.S. ~4-499(a). 2, The citation alleged that Petitioner "failed to require patrons to vacate that part of the premises habitually used for the service of alcoholic beverages not later than one-half hour after the required time for the cessation of the service of alcoholic beverages" on July 17, 2004. 3. As stipulated, on or about July 17,2004, at 2:55 a.m., a Bureau Enforcement Officer, accompanied by Carlisle Borough police officers, conducted an inspection of the Licensee premises and observed five people seated around the bar with the Licensee's Secretary /Manager/Stockholder. 4. As stipulated prior to the hearing, none of said people were engaged in employment- related activities, nor were they cleaning the premises. ... ~ 5. Based on Stipulations of Fact, the Administrative Law Judge sustained the citation as charged in its Adjudication of January 27, 2005. See attached as Exhibit A. 6. Petitioner filed a Motion for Reconsiderationl on February 15, 2005, from the January 27, 2005, Adjudication. A copy of said Motion is attached hereto as Exhibit Band incorporated as if fully set forth herein. 7. The Motion asserted that the enforcement of !}4-499, entitled "Premises to be vacated by patrons," constitutes a violation of the U.S. Constitution in that it abridges the rights to free speech and peaceable assembly, as guaranteed by the First Amendment. 8. The Administrative Law Judge issued an Order and Opinion dated February 17,2005. See attached as Exhibit C. 9. "All adjudications of a Commonwealth agency shall be in writing, shall contain findings and the reasons for the adjudication, and shall be served upon all parties..." 2 Pa.C,S.A !}507. 10. The Administrative Law Judge failed to address the constitutional issues presented in Petitioner's Motion for Reconsideration. Respectfully submitted, ROMINGER, BAYLEY & WHARE , "-")~.. ..,-.'...-----. / ,./ Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court 10 # 81924 Attorney for Licensee . I Appellant respectfully points out that, notwithstanding the Administrative Law Judges's characterization of Appellant's Application for Reconsideration as a "letter," Appellant did file a formal Motion for Reconsideration. I.' \ . <I , 3B37 ROMINGER, BAYLEY & WHARE lAW OFFICES 155 SOUTH HANOVER STREET (717) 241-6070 CARLfSLE. PA 17013 DATE 3 -/4-(15 60.1503-313 PAY . TO THE p/ L'QvoJC. CI1,v'rtlJ;,L 6one-'p ORDER OF ,. -rJ,,'d'rhve A.~ OcJ//tJC)' r ~MNK FOR ~t55eJ ahe,.. ?/II/1u/1 fll'l'UVI ~ lI'00383?II'+I:OHH50:U;I: 1.08 1.1.255011' ;~"'" ,"',~'",,,','"," ''''''''~-'=-"'---'1 I $',5?,=:___..__ 1 - DOLLARS &I e= lIP - " . / '-'J ~ LI);li ) I~ 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, !i!i 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. Exhihil- "..... '. . . l " )I Mailing Date: April 20, 2005 PENNSYLVANIA LIQUOR CONTROL BOARD HARRISBURG, PA 17124-0001 PENN5YL V ANIA STATE POLICE, Citation No. 04- 1 361 BUREAU OF LIQUOR CONTROL : ENFORCEMENT : vs. : MARSON, INC. t/a Blessed Oliver Plunket 10 North Pitt Street Carlisle, PA 17013-2944 License No. R- 1 7096 . . : . . Counsel for Bureau: Karl E. Rominger, Esquire Rominger, Bayley & Whare 1 55 South Hanover Street Carlisle, PA 17013 John H. Pietrzak, Esquire PENNSYLVANIA 5T ATE POLICE, Bureau of Liquor Control Enforcement 3655 Vartan Way Harrisburg, P A 17110 Counsel for Licensee: OPINION Marson, Inc. t/a Blessed Oliver Plunket ("Licensee") appealed from the Opinion And Order Upon Licensee's Application For Reconsideration, wherein the Administrative Law Judge Felix Thau ("ALJ") denied Licensee's Application for Reconsideration and sustained the two hundred fifty dollar ($250.00) fine. ')- .. t U ." The citation charged Licensee with violation of section 499(a) of the Liquor Code [47 P.S. 9 4-499(a)] in that, on July 17, 2004, Licensee, by its servants, agents or employees, failed to require patrons to vacate that part of the premises habitually used for the service of alcoholic beverages not later than one-half (1/2) hour after the required time for the cessation of the service of alcoholic beverages. A review of the record in this matter reveals that in lieu of a hearing, the parties stipulated to the relevant facts. Based upon the stipulation of the parties, on February 1, 2005, the AL) mailed an Adjudication and Order sustaining the citation and imposing a two hundred fifty dollar ($250.00) fine. On February 16, 2005, the Office of Administrative Law Judge ("AL]") received a Motion For Reconsideration from Licensee's counsel setting forth constitutional issues. On February 22, 2005, the AL] mailed an Opinion And Order Upon Licensee's Application For Reconsideration, wherein the AL) denied Licensee's application. In response thereto, Licensee filed this appeal with the Board on March 14( 2005. Pursuant to section 471 of the Liquor Code [47 P.S. 9 4-471], the appeal in this case must be based solely on the record before the AL). The 2 , . . 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. "Substantial evidence" has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Johnson v. Pennsylvania Bd. of Probation and Parole, 706 A.2d 903 (Pa. Cmwlth. 1998); Chapman v. Pennsylvania Bd. of Probation and Parole, 86 Pa. Cmwlth. 49, 484 A.2d 413 (1984). Licensee's appeal is designated" Appeal from Administrative Law Judge Adjudication," and specifically addresses the merits of the ALl's Adjudication and Order mailed February 1, 2005, in addition to arguing the constitutionality of Liquor Code section 499(a) [47 P.S. 94-499(a)]. Section 17.21(c) of the Board's Regulations [40 Pa. Code 9 17.21 (c)] sets forth that appeals from decisions of the AL] shall be filed or postmarked within thirty (30) calendar days of the mailing date of the adjudication of the ALJ. Licensee had until March 3, 2005 to file a timely appeal of the ALl's Adjudication and Order with the Board.! 1 Filing a request for reconsideration does not toll the time period from which to file an appeal from the ALl's adjudication. [40 Pa. Code !i 17.21 (c); Monsour Medical Center v. Dep't of Public Welfare, 533 A.2d 1114 (Pa. Cmwlth. 1987)]. 3 '-' .. , .. . Accordingly, Licensee's appeal must be considered untimely as an appeal of the ALl's Adjudication and Order issued on February 1, 2005. However, Licensee appears to have fashioned its appeal as an appeal from the denial of its Motion For Reconsideration. As the ALl's Order denying reconsideration was mailed on February 22, 2005, the Licensee's appeal of that Order is deemed to be timely. Where a licensee appeals an order denying reconsideration, the Board, on review, may consider whether the ALJ abused its discretion in denying the motion, but may not consider a review of the merits of the case. Bd. of School Directors of Avon School v. Com., Dep't of Educ., 375 A.2d 851 (Pa. Cmwlth. 1977), Keith v. Com., Dep't of Public Welfare, 551 A.2d 333 (Pa. Cmwlth. 1988). When filing a request for reconsideration, the licensee is required to state concisely the alleged errors in the adjudication or allege new matters that have arisen since the hearing and adjudication which are grounds for vacating, modifying or reversing the adjudication. [1 Pa. Code 9 35.241]. On appeal, Licensee contends errors on behalf of the ALJ because the , Opinion and Order Upon Licensee's Application For Reconsideration does not contain findings and a reason for denying the motion. Licensee also 4 .00, l' .lo., .. contends error in that the ALJ failed to address the constitutional issues presented in the Motion For Reconsideration. While Licensee contends the ALJ erred by failing to meet the criteria that "[a]1I adjudications of a Commonwealth Agency shall be in writing, shall contain findings and the reasons for the adjudication, and shall be served upon all parties," the Board finds no such error. Inasmuch as the ALJ set forth his findings of fact and conclusions of law in the original adjudication, the ALJ has met the criteria sought by Licensee, and confirmed that decision by stating, lilt is FURTHER ORDERED that the Adjudication dated January 27, 2005 (mailing date of February 1, 2005) REMAINS IN FULL FORCE AND EFFECT." As to Licensee's Constitutional argument, it should be noted that an administrative agency has no authority to rule on the constitutionality of its enabling legislation. Bunch v. Com., Bd. of Auctioneer Examiners, 620 A.2d 578, 581 (Pa. Cmwlth. 1993), citing, Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Beer & Pop Warehouse, Inc., 603 A.2d 284 CPa. Cmwlth. 1992). Therefore, the ALJ had no authority to review Licensee's request. Licensee, instead, should have raised such Constitutional issues in a timely appeal of the Adjudication and Order mailed February 1, 5 . . " ..l . 2005. Notwithstanding that this Board would also have been unable to review a constitutional issue, the matter would nevertheless have been preserved for an appeal to the court of common pleas. Based upon the foregoing, the Board finds that the AL) did not abuse its discretion or commit any errors in denying Licensee's Motion For Reconsideration. As a result, Licensee's appeal is dismissed and the ALl's denial of Licensee's request for reconsideration is affirmed. 6 . '" . .... .. ORDER The decision of the AL) is affirmed. The appeal of Licensee is dismissed. Licensee paid the two hundred fifty dollar ($250.00) fine on February 16, 2005. Licensee must adhere to all conditions as set forth in the ALl's Opinion And Order Upon Licensee's Application For Reconsideration mailed February 22, 2005. c\.<zo"V'-,~. ~-Q-.~ 'Acting Board Secretary , 7 "- ~ <::; n r:-' '" ~" ...... <" "" -<l ~ (" '" ~ , ~-' (-.., ,-...1 c~ ..s. ," '"'\ if V 6 o :~:' ~,> C) => a' ::?: :;;c" -,.;:: () -'\'-1 :-:;:1 Ri fII _~f-n ;~:~\'~~1 1 "C> -(",I r:! o 0:> -" . '.. PENNSYLVANIA STATE POLICE, BUREAU OF LIQUOR CONTROL ENFORCEMENT, Plaintiff/Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LA W vs, MARSON, INC. t/a BLESSED OLIVER PLUNKET, Defendant/Petitioner NO. 05-2383 CIVIL CUMBERLAND COUNTY LICENSE NO. R-AP-17096 ORDER AND NOW, this I;{~ day of May, 2005, upon consideration ofthe foregoing petition, it is hereby ordered that: I. A rule is issued on the respondent to show cause why the petitioner is not entitled to the relief requested; 2. The respondent shall file an answer to the petition within twenty (20) days of service upon the respondent; 3. The petition shall be decided under Pa,R.C.P, 206.7; 4. Depositions, if any, shall be completed within forty-five (45) days of this date; 5. Argument shall be held on Thursday, July 28, 2005, at 9:00 a,m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA; and 6. Notice of the answer to this order shall be provided to all parties by the petitioner. BY THE COURT, rP ,o~ /) O~ ," , 1\ LO :01 21 P,'H ~DGl ;,01/.<', ;,\,j-1!.U:~3d 3:.11 jC ]8L~::O-{EIlI:J ",' ' John H. Pietrzak, Esquire For the Respondent Karl E. Rominger, Esquire For the Petitioner PLCB Office of Administrative Law Judge :r1m PENNSYLVANIA STATE POLICE, BUREAU OF LIQUOR CONTROL ENFORCEMENT, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PlaintifflRespondent CIVIL ACTION - LAW vs. NO. 05-2383 CIVIL MARSON, INC. T/A BLESSED OLIVER PLUNKET, DefendanUPetitioner CUMBERLAND COUNTY LICENSE NO. R-AP-17096 ANSWER TO LICENSEE'S "PETITION FROM ACTION OF LIOUOR CONTROL BOARD" TO THE HONORABLE JUDGES OF THE SAID COURT: The Pennsylvania State Police, Bureau of Liquor Control Enforcement (Commonwealth), by and through its counsel, Thomas M. Ballaron, files the within Answer to the Licensee's Petition and in support thereof, avers as follows: I. Admitted. 2. Admitted; by way of further answer the Petitioner, Marson, Inc., t/a Blessed Oliver Plunket (bar) is the owner and holder of Pennsylvania Liquor License Number R-AP-17096 for the premises located at 10 North Pitt Street, Carlisle, P A 17013-2944, The said license was issued by the Pennsylvania Liquor Control Board (Liquor Board) and is current and active. 3. Admitted. 4. Admitted. 5. Admitted, 6. Admitted insofar as the bar filed a timely Motion for Reconsideration on February 15. It is denied that the said Motion set forth valid grounds for reconsideration because it neither set forth errors in the adjudication nor alleged new matters which had arisen since the filing of the adjudication that would compel the ALl to decide the case differently (l Pa.Code S 35-241), Moreover, neither the Administrative Law Judge (ALl) nor the Liquor Board has the authority to rule on the constitutionality of its enabling legislation. 7, Admitted as to the contents of the Motion which speaks for itself. It is specifically denied that the cited provision of the Liquor Code is constitutionally infirm, By way of further answer, it is specifically asserted that the issue of the constitutionality of S 4-499 of the Liquor Code is not before this Honorable Court for review, The bar failed to preserve this issue by filing a timely appeal to the Liquor Board from the adjudication of the ALl. The only issue properly preserved is whether or not the ALl abused his discretion in denying reconsideration and whether the Liquor Board's affirmation of the ALl's action was in accord with law. 8. It is neither admitted nor denied as to whether the bar was "misled" by way of the notice set forth within the ALl's adjudication informing a licensee as to how to file for reconsideration. The notice set forth in the ALl's adjudication describes only the procedure for reconsideration and is an accurate statement of those requirements. The said notice does not address the issue of taking an appeal to the Liquor Board, By way of further answer, it is specifically asserted that the 2 procedure for filing an appeal is set forth in the Liquor Board Regulations at 40 Pa.Code ~ 17,21 (Appeals) (Attachment 1) and requires an appeal to be filed within 30 days of the mailing date ofthe adjudication, 9. It is neither admitted nor denied as to whether the bar was notified of the appellate procedures necessary for perfecting an appeal to the Liquor Board, because the Commonwealth has no knowledge of this. By way of further answer, as noted in paragraph 8, the requirements perfecting such an appeal are set forth in 40 Pa,Code ~ 17.21 (Appeals). 10. Admitted insofar as the bar filed an Appeal to the Liquor Board on March 14, 2005, the same of which was untimely with respect to the ALl's adjudication, for which the the appeal deadline for perfecting a timely appeal to the Liquor Board was March 3, 200S. It is further averred that the filing of a Motion for Reconsideration does not toll the 30-day statute of limitations for filing an appeal from an agency. 11, The Commonwealth can neither admit nor deny what the bar intended to do had it perfected a timely appeal. By way of further answer, it is averred that the constitutionality of ~ 4-499 of the Liquor Code is not before this Honorable Court (See Answer to paragraph 7). 12. It is neither admitted nor denied whether the bar proceeded in good faith as the issue of good faith has no relevance to whether the bar filed a timely appeal from the ALl's adjudication and preserved its issues for review. 3 13. It is neither admitted nor denied as to what is implied in Attorney Pietrzak's correspondence of March 29,2005, which will speak for itself. (Attachment 2), 14. It is specifically denied that the ALl addressed the constitutional issues in the bar's Motion for Reconsideration. The ALl's Opinion and Order Upon Licensee's "Application for Reconsideration" (Attachment 3) speaks for itself. It is further asserted that the ALl lacks the subject matter jurisdiction to address the issue because neither the ALl nor the Liquor Board can rule on the constitutionality of its enabling legislation, Bunch v. Com., Bd. of Auctioneer Examiners, 620 A.2d 578, 581 (Pa.Cmwlth. 1993), citing Pennsylvania State police, Bureau of Liquor Control Enforcement v. Beer & Pop Warehouse, Inc., 603 A.2d 284 (Pa.Cmwlth. 1992), 15. It is specifically denied that the ALl abused its discretion, The ALl did not review the constitutional issues set forth in the bar's Motion for Reconsideration. 16. It is specifically denied that the ALl provided a misleading procedure for appealing the adjudication insofar as the ALl provided notification as to reconsideration; the notification did not set forth or provide information as to how to appeal to the Liquor Board. See Answer to paragraph 8. 17. It is neither admitted nor denied whether the bar will be prejudiced by this Honorable Court's denial of its appeal. As noted above, the constitutional issues raised in the bar's Motion for Reconsideration are not before this Court for review because the bar filed an untimely appeal to the Liquor Board from the ALl's adjudication. 4 18. The standard of review of the Court of Common Pleas in acting as an appellate court in liquor enforcement cases is restricted to the matters properly preserved on appeal. WHEREFORE, the Commonwealth respectfully requests this Honorable Court to dismiss the bar's Appeal. Respectfully submitted, ~<'~ By: ' THOMAS M. tkLLARON Assistant Counsel PENNSYLVANIA STATE POLICE BUREAU OF LIQUOR CONTROL ENFORCEMENT 3655 Vartan Way Harrisburg, PA 17110 (717) 540-74 II Attorney I.D. #23370 5 ATTACHMENT "1" Ch. 17 SPECIAL RULES OF PRACTICE 40 ~ 17.21 Notes of Decisions Form A party. who failed to taise an issue in its original protest, waived the issue and could not thereaf- ter raise the issue in a supplemental protest well after the 30-day deadline for filing protests. Pitts- burgh Stake oj the Church oj Jesus Christ oj Latter Day Saints v. Liquor Control Board. 617 A.2d 843 (Pa. Cmwlth, 1992), Petition to Intervene It was clear to the Liquor Control Board that this was an application for a person-to-person transfer and not an application "for a new retail liquor license" or "the transfer of" a retail liquor license "to a premises not then licensed." This being so. the protestants under Board rules, which it ignored, were required to petition to intervene consistent with the requisites set forth in ~ 17.13. The record is devoid of any petitions to intervene being filed by these protestors; thus, the participation of the prot- estants in the hearing before the hearing examiner of the Board was not consistent with established published procedures of the Board and they should uot have been permitted to participate as parties, Arrington v, Liquor Control Board, 667 A.2d 439 (Pa, Cmwlth. 1995), Cross References This section cited in 40 Pa. Code ~ 7,63 (relating to municipal standing before the Board); and 40 Pa. Code ~ 17,11 (relating to license application protests). Subchapter C. APPEALS TO BOARD FROM ADMINISTRATIVE LAW JUDGE DECISIONS See, 17,21. Appeals. ~ 17.21. Appeals. (a) Under section 471 of the Liquor Code (47 P. S. ~ 4-471), the Bureau or licensee who feels aggrieved by a decision of the ALJ has the right of appeal to the Board. (b) An appeal to the Board shall be in the form prescribed by the Board, and is subject to the following conditions: (1) The appeal shall be accompanied by a $35 fee payable to the "Penn- sylvania Liquor Control Board." (2) Appeals shall be filed or postmarked within 30 calendar days of the mailing date of the opinion and adjudication of the ALJ; failure to file or have the appeal postmarked within 30 calendar days will result in dismissal of the appeal. (3) A copy of the opinion and adjudication of the ALJ shall be attached to the appeal. (4) The appeal shall include a concise enumeration and explanation, in the numbered paragraphs, as to each finding of fact which the appellant believes is not supported by substantial evidence. 17-9 (307867) No. 362 Jan. 05 40 ~ 17.31 LIQUOR CONTROL BOARD Pt. I (5) The appellee shall have 15 days from the mailing date of the Board's notice that an appeal has been filed to respond in writing to the matters raised on appeal; however, no response is required. (c) The filing of a motion for reconsideration under the rules of the ALJ will stay the processing of an appeal filed with the Board. The filing of a notice for reconsideration will not toll the 30-day time period for the filing of an appeal with the Board. (d) An appeal shall be reviewed solely upon the record made before the ALJ, . (e) The filing of briefs is optional. A brief shall be filed with the appeal, or response to an appeal, and served on the opposing party. to be considered by the Board. Reply briefs shall be filed within 10 days of the filing date of the brief as to which the reply is made. Source The provisions of this ~ 17,21 adopted December 27.1991, effective December 28,1991,21 Pa.B. 5935, Subchapter D. SUPERSEDEAS Sec. 17.31. 17,32, Supersedeas. Hearings, ) ~ 17.31. Supersedeas. (a) An appeal from a decision of an ALJ does not act as an automatic super- sedeas if the licensee has been found to have committed one or more of the spe- cial violations of section 471 of the Liquor Code (47 P. S. ~ 4-471), unless the Board. upon sufficient cause shown, determines otherwise. (b) A completed application for supersedeas in decisions involving special violations shall be filed concurrent with the appeal but the Board will not con- sider an application for supersedeas filed more than 30 days after the mailing date of the opinion and adjudication of the ALl, unless good cause is shown. The application for supersedeas shall be in the form prescribed by the Board and shall list each reason which would demonstrate to the Board that sufficient cause exists for the Board to grant the supersedeas. (c) When a licensee files a timely appeal from a decision of the ALJ wherein the licensee is found to have committed one or more standard violations, penal- ties imposed only for standard violations shall be subject to an automatic super- sedeas pending the Board's determination of the appeal unless, upon sufficient cause shown, the Board determines otherwise. (d) The Bureau may apply to the Board to remove a supersedeas. The Bureau shall set forth in numbered paragraphs reasons which demonstrate that sufficient cause exists to remove the supersedeas. An immediate hearing may be scheduled. 17-10 (307868) No. 362 Jan. 05 CopyriShr 10 2005 Commonwealth of Pennsylvania ATTACHMENT "2" PENNSYLVANIA STATE POlleE OFFICE OF CHIEF COUNSEL BUREAU OF LIQUOR CONTROL ENFORCEMENT 3655 VARTAN WAY HARRISBURG, PA 17110 PHONE: 717'540.7414 PHONE: 717.540.7410 FAX: 717.540.7461 -"~' J>,.::. ..- " "~ "., :...,~:,' "~J(,": ;" ~"'I .: '. - '. r Governor's Office of General Counsel March 29,2005 Faith S. Diehl, Esq. Chief Counsel Pennsylvania Liquor Control Board Room 401 Northwest Office Building Harrisburg, PA 17124-0001 RE: Appeal of: Marson. Ine.. t/a Blessed Oliver Plunket v. P.S.P.. Bureau of Liquor Control Enforcement Citatiou No. 04-1361 Dear Ms. Diehl: This letter will constitute the Bureau's response to the Licensee's appeal filed with the Board on March 14,2005. The citation in this matter alleged that the Licensee failed to require patrons to vacate that part of the premises habitually used for the service of alcoholic beverages not later than one half hour after the required time for the cessation of the service of alcoholic beverages, on July 17, 2004, in violation of Section 499(a) of the Liquor Code, 47 P.S. S4-499(a). The parties entered into stipulations of fact which permitted the ALJ to render a decision but allowed the Licensee to pursue an appeal on a constitutional issue, In its adjudication, the ALJ concluded that the Licensee had violated the Liquor Code in the manner charged. The mailing date of the adjudication was February 1,2005. On February 15, 2005, the Licensee filed a petition for reconsideration, setting forth its constitutional argument. The ALJ denied this request for reconsideration in an Opinion and Order Upon Licensee's Request for Reconsideration, with a mailing date of February 22,2005, An Internationally Accredited Law Enforcement Agency Faith S, Diehl, PLCB, Office of Chief Counsel Appeal of Marson. Ine.. t/a Blessed Oliver Plunket v. P.S.P.. B.L.C.E. Gitation No. 0-1361 Page 2 March 29,2005 The Licensee filed its appeal with the PLCB on March 14,2005, forty-one days after the mailing date of the adjudication. If the Licensee is appealing the AU's February 1, 2005 adjudication, its ,appeal is untimely. The filing of a motion for reconsideration does not toll the thirty day statute of limitation for filing an appeal of the adjudication. 1 Pa. Code S 17.21 ( c). The Licensee appears to have fashioned its appeal as an appeal from the denial of reconsideration. As the ALJ's Order denying reconsideration was mailed on February 22,2005, the Licensee's appeal of this Order would be timely. The Licensee is permitted to appeal an order denying reconsideration, and the PLCB may consider whether the ALJ abused its discretion is denying the motion. Board of School Directors of Avon School v. Department of Education, 375 A.2d 851 (Pa. Cmwlth. 1~77). But where the Licensee did not file a timely appeal of the original adjudication, it is only entitled to review of the denial of reconsideration and is not entitled to a review of the merits of the case. Keith v. Department of Public Welfare, 551 A.2d 333 (Pa Cmwlth. 1988). The Licensee could have raised the constitutional issue in an appeal of the adjudication. Although the PLCB would likely have been unable to review a constitutional issue, the claim would have been preserved for an appeal to the Court of Common Pleas. As it has only appealed the denial of reconsideration, it can now only allege that such a denial was an abuse of discretion. The Licensee cannot raise the constitutional issue before the PLCB, and cannot preserve this issue for later review in this manner. When filing a request for reconsideration, the Licensee is required to specify the errors contained in the adjudication or allege new matters that have arisen since the filing of the adjudication that would require a different result. I Pa. Code S35.241. The Licensee filed a motion for reconsideration on February 15,2005, setting forth its constitutional argument. This motion did not allege any errors contained in the adjudication and did not set forth any new matters. The Licensee, in its letter to the ALJ on January 20, 2005 (enclosed) stated that it was stipulating to the facts of the case in order to raise its constitutional issue on appeal. Therefore, such an issue cannot be considered a new matter which was not known to the Licensee at the time the adjudication was rendered. The ALJ did not abuse its discretion is denying the motion for reconsideration. The ALJ is unable to address issues of constitutional implication and therefore had no choice other than to deny the request. Smolow v. Com.. Dept. of Revenue, 547 A.2d 478 (Pa. Cmwlth. 1988); Feingold v. Cmwlth.. State Board ofChirooractic, 568 A.2d 1365 (Pa. Cmwlth. 1990). Faith S. Diehl, PLCB, Office of Chief Counsel Appeal of Marson. Inc.. t/a Blessed Oliver Plunket v. P.S.P.. B.L.C.E. Citation No. 0-1361 Page 3 March 29,2005 Based on the foregoing, the Commonwealth requests that this Honorable Board affirm the decision of the ALJ in this matter, and dismiss the appeal of the Licensee. Sincerely //L- /Gi:.e? ~~H.Pie7 Assistant Counsel JHP cc: Karl Rominger, Esq. (Counsel for Licensee) District Enforcement Office No.3 Commander Report Examination Unit Supervisor Office of Administration Law Judge ATTACHMENT "3" Mailing Date: FEB 22m r~E liF7'i",. rJtJli eM :~ V/'fI( h. ' ' ~ ,r/ISP,fp,. "C1t1l1t COMMONWEALTH OF PENNSYLVANIA OFFICE OF ADMINISTRATIVE LA WJUDGE FOR PENNSYLVANIA LIQUOR CONTROL BOARD PENNSYLVANIA ST ATE POLICE, BUREAU OF LIQUOR CONTROL ENFORCEMENT .. " Citation No. 04-1361 Incident No. W03-295128 v. LID - 18410 MARSON, INC. T/A BLESSED OLIVER PLUNKET 10 N. PITT ST. CARLISLE, PA 17013-2944 CUMBERLAND COUNTY LICENSE NO. R-AP-17096 OPINION AND ORDER UPON LICENSEE'S APPLICATION FOR RECONSIDERATION Ooinion: I entered an Order on the 27th day of January, 2005 (mailing date ofFebruary 1, 2005), imposing a $250.00 fine. Licensee has submitted a letter which I will treat as an Application for Reconsideration. Said letter was received by this Office on February 16, 2005. Licensee is asking reconsideration of the $250.00 fine. Accordingly, the following Order is entered: Order: NOW THEREFORE, it is ordered that Licensee's Application for Reconsideration is DENIED. IT IS FURTHER ORDERED that the Adjudication dated January 27, 2005 (mailing date OfF:ruary I, 2005) RE~ ~~LL FORCE AND EFFECT. Dated this --L3:~y of February, 2007~ ~-../ Feli Thall, A.L.J. pm CERTIFICATE OF SERVICE I hereby certify that I am this U iday of May, 2005, serving two true and correct copies of the foregoing Answer to Licensee's Petition From Action Of Liquor Control Board," filed by Plaintiff, Pennsylvania State Police, Bureau of Liquor Control Enforcement, upon the person(s) and in the manner indicated below, which service satisfies the requirements of Pa. RAP. 121: Service by First Class mail addressed as follows: Karl E. Rominger, Esq. Rominger, Bayley & Whare 155 South Hanover Street Carlisle, P A 17013 PA Liquor Control Board, Office of Chief Counsel 49 I Northwest Office Building Capital and Forster Streets Harrisburg, PAl 7 I 24-000 I Office of Administrative Law Judge Brandywine Plaza 2221 Paxton Church Rd. Harrisburg, PAl 7110-9661 ><:/~ THOMAS M. BALLARON Assistant Counsel By: PENNSYLVANIA STATE POLICE BUREAU OF LIQUOR CONTROL ENFORCEMENT 3655 Vartan Way Harrisburg, PA 17110 (717) 540-7411 Attorney I.D. #23370 C) .-n -' .~T -~.. ,\ - r _, , .-- -^ - ./1j PENNSYLVANIA STATE POLICE, BUREAU OF LIQUOR CONTROL ENFORCEMENT, Plaintiff/Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs, MARSON, INC" T/A BLESSED OLIVER PLUNKET ION. PITT STREET CARLISLE,PA 17013-2944, Defendant/Petitioner NO. 05-2383 CIVIL CUMBERLAND COUNTY LICENSE NO. R-AP-17096 IN RE: DEFENDANT'S PETITION FROM ACTION OF LIOUOR CONTROL BOARD ORDER AND NOW, this ~/~ ~ day of May, 2005, argument in the above captioned matter set for July 28, 2005, is continued to Thursday, August 4, 2005, at 9:00 a,m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA, BY THE COURT, -1homas Ballaron, Esquire For Plaintiff/Respondent Larl Rominger, Esquire For Defendant/Petitioner '4 :rlm ,'ie: "..'1 20C5 -I it 2: 113 PENNSYLVANIA ST A IE POLICE, BUREAU OF LIQUOR CONTROL ENFORCEMENT, Plaintiff/Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. MARSON, INC., T/A BLESSED OLIVER PLUNKET ION. PITT STREET CARLISLE, PA 17013-2944, DefendantlPetitioner NO. 05-2383 CIVIL CUMBERLAND COUNTY LICENSE NO. R-AP-17096 IN RE: DEFENDANT'S PETITION FROM ACTION OF LIOUOR CONTROL BOARD ORDER AND NOW, this I If ~ day of August, 2005, the eourt being satisfied that the sole issue before the court is whether the Administrative Law Judge, in this case, abused his discretion by denying petitioner's motion for reconsideration, cmd the court finding no such abuse of discretion, and the court being satisfied, further, that no other issues have been preserved for appeal, the petition of the licensee, Marson, Inc., t/a Blessed Oliver Plunket, is DISMISSED. BY THE COURT, ~mas Ballaron, Esquire For PlaintifflRespondent ..1 "xarl Rominger, Esquire For DefendantlPetitioner VN\fti'!ASNN.::d 'IN'I>(''-, ('".. ,~""-,,,~,"'(1" ^ 1 " I..' '. . ; .."'IC'r'n 1<..) 2f; :! I ~~V 61 ~n\f SOOZ AtJlil0NGH.LOUd 3Hl :10 381:JjD-G3l13