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HomeMy WebLinkAbout05-3856 HOLLY PIKE TRADING COMPANY, INC. Va MIDWAY INN, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. Appellant v. NO. 2005 - .3 "l5.5 ~ ~...J~ COMMONWEALTH OF PENNSYLVANIA, LIQUOR CONTROL BOARD, CASE NO. 05-903B LICENSE NO. H-4449 LID: 43533 Appellee NOTICE OF APPEAL Holly Pike Trading Company, Inc. Va Midway Inn ("Midway Inn") by and through its counsel, McNees Wallace & Nurick LLC, and pursuant to 47 P.S. S 4-464, appeals from the Order of the Pennsylvania Liquor Control Board (the "PLCB") and avers the following in support thereof: 1. Midway Inn is located at 15B2 Holly Pike, Carlisle, PA 17013-9103. 2. Midway Inn holds a Hotel Restaurant Liquor License, Amusement Permit and Sunday Sales License (collectively referred to as "liquor license") issued by the PLCB. 3. On or about November 1, 2004, Midway Inn applied to renew its liquor license. 4. By letter dated January 20, 2005, Midway Inn was notified by PLCB that PLCB objects to the renewal of its liquor license, which was set to expire at 11 :59 p.m. on January 31, 2005. 5. By correspondence dated January 25, 2005, Midway Inn requested a formal hearing on PLCB's objection to its renewal. 6. Midway Inn was granted temporary authority to operate effective February 1, 2005, and a hearing was scheduled to be held before an Administrative Law Judge on May 18, 2005. 7. Midway Inn presented evidence and testimony at the May 18, 2005, hearing establishing that it had taken substantial affirmative steps to correct the alleged problems complained of by PLCB. 8. By Order entered and mail dated July 26, 2005, PLCB refused Midway Inn's application for renewal. In an accompanying letter, the Director of Licensing advised Midway Inn that the temporary authority to operate Midway Inn during the pendency of the administrative hearing process terminates at 11 :59 p.m. on Thursday, July 28, 2005. A true and correct copy of the Order and correspondence are attached as Exhibit "A." 9. PLCB's refusal of Midway Inn's renewal is improper as Midway Inn established that it had taken substantial affirmative measures to improve its operations and prevent the activity complained of. 10. The Court of Common Pleas review in this matter is de novo. 2 11, Pursuant to 47 P.S. 4-464, the filing of this Appeal acts as an automatic supersedeas. Consequently, PLCB's refusal to renew is stayed and the temporary authority to operate effective February 1, 2005, continues in effect. WHEREFORE, Holly Pike Trading Company, Inc. tJa Midway Inn requests that this Court sustain its appeal and Order the Pennsylvania Liquor Control Board to renew its Hotel Restaurant Liquor License, Amusement Permit and Sunday Sales License. By Attorneys for Appellant, Holly Pike Trading Company, Inc. tJa Midway Inn Dated: July 28,2005 3 ORDERNB MAILING DATE: July 26, 2005 BEFORE THE PENNSYLVANIA LIQUOR CONTROL BOARD HOLLY PIKE TRADING COMPANY INC TIA MIDWAY INN 1582 HOLLY PIKE CARLISLE PA 17013 Appl ication for Renewal of Hotel Liquor License H-4449 Case No. 05-9038 LI 0 No. 43533 The Board, on July 26, 2005, after gtVlng careful consideration to all of the facts established at the hearing, and in the exercise of its discretion, makes the following Order: ORDER AND NOW, Ju I Y 26, 2005, it is ordered and decreed that the app I i cat i on for renew a I of Hotel Liquor License H-4449, for the licensing term effective February 1, 2005 applied for by Holly Pike Trading Company, Inc. tla Midway Inn for the premises located at 1582 Holly Pi ke, Car lis Ie, Pennsy I vani a be and it is hereby refused. I n the event an appea lis fi led, an Opinion wi I I be issued. PENNSYLVANIA LIQUOR CONTROL BOARD ~~ Jonathan H6 Newman BY: Chairman o J1 C){d <I Patrick J Stapleton III Membe r ATTEST: ~~~~.~ ~~~~ Thomas F. 60ldsmlth Acting Secretary Membe r LTRR2 3/05 PENNSYLVANIA LIQUOR CONTROL BOARD HARRISBURG, PENNSYLVANIA 17124-0001 July 26, 2005 IN THE PUBUC INTEREST HOLLY PIKE TRADING COMPANY INC TIA MIDWAY INN 1582 HOLLY PIKE CARLISLE PA 17013-9103 NEXT DAY AIR RE: LICENSE NO. H-4449 LI D NO. 43533 CASE NO. 05-9038 Dear Licensee: After considering the testimony presented at the hearing on your case on May 18, 2005, the Pennsy I vani a liquor Contro I Board at its Ju I Y 26, 2005 Board Session refused your app I i cat i on for renewa I of Hote I liquor license H-4449 for the term effective February 1, 2005. A copy of the Board's Order is attached. The temporary authority to operate granted during the administrative hearing process on the question of renewa I or non-renewa I of the license sha II end at 11: 59 p. m. on July 28, 2005 as the Board's adjudication in this matter shal I be delivered to the office of your attorney of record on July 27, 2005. Since you have been operating the licensed establishment during the licensing period beginning February 1, 2005, you are not entitled to the return of the license and fi ling fees. Therefore, the fees are being retained. Very truly yours, ~ tv. WA (4... he/ry W. Waters, Sr. Director of licensing Refer to: Bureau of licensing (717) 772-3516 Hours: 7:30 AM to 4:00 PM JWW:RlD:kcm cc: Barbara Darkes, Esquire AN EQUAL OPPORTUNITY EMPLOYER PROCEEDS BENEFIT All PENNSYlYANIANS CERTIFICATE OF SERVICE AND NOW, this 28th day of July, 2005, I hereby certify that I have served a true and correct copy of the within document, via hand-delivery, upon the following: Faith Diehl, Chief Counsel Liquor Control Board Office of Chief Counsel 401 Northwest Office Building Capital & Forster Streets Harrisburg, PA 17124-0001 () \"-,'" \ ~ ,:. ::.~ 0 ':::.--:> ~ v-. ~ c.o-! --1'1 ~ \ \ ::;:! ~. ~ ~~ r+;,;9- i":;. ;.~ \~ ,"--'j '- ~ CJ ,i)' " \ ~ - .. --,., -:1 ~ _u. ;, , ~ -'-" ~ .. .-.-) CJ -< "- C.) ...tf iRECEIVED JUL 2 9 20~ HOllY PIKE TRADING COMPANY, INC. Va MIDWAY INN, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. Appellant v. NO. 2005.. fiS-t:. ~ COMMONWEALTH OF PENNSYLVANIA, LIQUOR CONTROL BOARD, CASE NO. 05-9038 LICENSE NO. H-4449 LID: 4353:3 Appellee ORDER AND NOW, this ~day of ~ ' 200S, upon consideration of the Appeal of Holly Pike Trading Company, Inc. Va Midway Inn from the refusal to renew its Liquor License, a de novo hearing is scheduled ~~_7 ,2005, at~o'cIOCk 'i..m. ;" CO"" Room No. .-:L ofth, C"mberta~" 00;":7"'/. /~/ J. b: ~=-; ~~1 ~"~ ': ~.~: ;',!_-' L)~"-~ f~:;~:E ~1.'J iJ...:c ,- ll._ o I..I? :,~ - I ;:..!'J -"..~ ,""'':':'' ~ = C-l ,." ", ..." ,,,,,,,om "",,,,.. . ""y'::a:'{;' _"_""""",~.,~tm '" /':""t,;lm:':!.~,l~\~_. ;~ ,"t""'-'- HOLLY PIKE TRADING COMPANY, me. tJa MIDWAY INN, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA Appellant No. 2005-3856 CIVIL v. PENNSYLVANIA LIQUOR CONTROL BOARD CASE NO. 05-9038 LICENSE NO. H-4449 LID: 43533 Appellee APPELLEE, PENNSYL VANIA LIQUOR CONTROL BOARD'S ANSWER TO APPELLANT'S APPEAL FROM DENIAL, OF APPLICATION FOR RENEWAL OF LIQUOR LICENSE TO THE HONORABLES, THE JUDGES OF SAID COURT: Appellee, Pennsylvania Liquor Control Board (hereinafter "Board"), by and through its attorney, Christopher L. Herrington, Esquire, respectfully answers as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted in part, denied in part. It is admitted that a hearing took place on May 18, 2005 in which evidence and testimony was taken. It is specifically denied that Appellant established that it had taken substantial affirmative steps to correct the alleged problems complained of by the Board. By way of further answer, taking substantial affirmative steps is not a proper defense to Liquor Code violations. 8. Admitted. 9. This averment constitutes a legal conclusion, to which no responsive pleading is required. 10. This averment constitutes a legal conclusion, to which no responsive pleading is required. 11. This averment constitutes a legal conclusion, to which no responsive pleading is required. WHEREFORE, Appellee respectively reqUl~sts this Honorable Court to dismiss Appellant's Notice of Appeal with prejudice.. Respectfully submitted, (~cQ CHRIST PHER L. H' Attorney for Appellee Attorney I.D. 82796 PENNSYLVANIA LIQUOR CONTOL BOARD 401 Northwest Office Building Harrisburg, PA 17124-0001 Telephone: (717) 783-9454 FAX: (717) 787-8820 August 19,2005 HOLLY PIKE TRADING COMPANY, INC. tJa MIDWAY INN, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA Appellant No. 2005-3856 CIVIL v. PENNSYLVANIA LIQUOR CONTROL BOARD CASE NO. 05-9038 LICENSE NO. H-4449 LID: 43533 Appellee APPELLEE, PENNSYLVANIA LIQUOR CONTROL BOARD'S ANSWER TO APPELLANT'S APPEAL FROM DENIAL OF APPLICATION FOR RENEWAL OF LIQUOR LICENSE VERIFICATION I, Christopher L. Herrington, Assistant Counsel for Pennsylvania Liquor Control Board, verify that I am the attorney of record for the Respondent herein, and that the facts and averments set forth in the within pleading are true and correct to the best of my knowledge, information and belief, upon information supplied. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S.A. S 4904 relating to unsworn falsification to authoritie~. " 'I .'~ /')/7 I , , I 1'! / .r /1 // C~!:T LRL~~O~ Assistant Counsel Attorney LD. #82796 PENNSYLVANIA LIQUOR CONTROL BOARD 401 Northwest Office Building Harrisburg, PA 17124-0001 Telephone: (717) 783-9454 FAX: (717) 787-8820 Dated: August 19, 2005 HOLLY PIKE TRADING COMPANY, INC. t/a MIDWAY INN, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA Appellant No. 2005-3856 CIVIL v. PENNSYLVANIA LIQUOR CONTROL BOARD CASE NO. 05-9038 LICENSE NO. H-4449 LID: 43533 Appellee APPELLEE. PENNSYL VANIA LIQUOR CONTROL BOARD'S ANSWER TO APPELLANT'S APPEAL FROM DENIAL OF APPLICATION FOR RENEWAL OF LIQUOR LICENSE CERTIFICATE OF SERVICE I hereby certify that I am this day serving a true and correct copy of the Appellee Pennsylvania Liquor Control Board's Answer to Appellant's Appeal from Denial of Application for Renewal of Liquor License, upon the persons and in the manner indicated below: Barbara A. Darkes, Esq. McNees Wallace & Nurick LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 First Class Mail /, f\ c;Z'2t!~_--- . -:.}.. J CHRIST HER L. HEINGTON Attorney for Appellee Attorney I.D. 82796 ill) PENNSYLVANIA LIQUOR CONTROL BOARD 401 Northwest Office Building Harrisburg, PA 17124-0001 Telephone: (717) 783-9454 FAX: (717)787-8820 August 19,2005 ~ % ~ G") ';:1 q. ~-n ""~ '4)...0 , ~,' \ c;~Cl ~:::."-\ -," "c -T) .'J-...., S;;:~n (:2\ ~?' ~:1 -<:'J ?i; '-? ,)1 -' BEFORE THE PENNSYLVANIA LIQUOR CONTROL BOARD oS- J~a c;.;..J~ IN RE: : Case No. Oi -geJ8 HOllY PIKE TRADING COMPANY, INC. t! a Midway Inn 1582 Holly Pike Carlisle, PA 17013-9103 Application for Renewal of Hotel Liquor license No. H-4449 : (LID 43533) OPINION Holly Pike Trading Company, Inc. t!a Midway Inn ("Licensee") filed an application with the Pennsylvania Liquor Control Board ("Board") for the renewal of its hotel liquor license for premises located at 1582 Holly Pike, Carlisle, Pennsylvania, for the licensing period beginning February 1, 2005 and ending January 31, 2007. The Board's Bureau of licensing ("licensing"), pursuant to the authority granted by section 470 of the Liquor Code [47 P.S. ~ 4-470], advised Licensee that it objected to the renewal of Licensee's liquor license. Pursuant to section 464 of the Liquor Code [47 P.S. ~ 4-464], licensing timely notified Licensee that a hearing would be held on its renewal application. A hearing was held on May 18, 2005 in Harrisburg before a Board hearing examiner. Based upon a review of the record, the Board" by Order dated July 26, 2005, refused Licensee's application for renewal. This Opinion is issued in support of the Board's Order. FINDINGS OF FACT 1. On December 1, 2004, Licensee filed an application for the renewal of Hotel Liquor License No. H-4449 for premises located at 1582 Holly Pike, Carlisle, Pennsylvania, for the period beginning February 1, 2005 and ending January 31, 2007. (N.T. 6-7; Ex. B-1). 2. By letter dated January 3, 2005, Licensing notified Licensee that its history of conduct and/or citation and/or criminal conviction record(s) may have placed it into a group of licensees whose records would undergo intense review and close scrutiny to determine whether or not the abuse of privilege had been of such consequence as to merit refusal of the renewal application. (N.T. 7; Ex. B-2). 3. By letter dated January 20, 2005, Licensing notified Licensee that it objected to the renewal of Licensee's liquor license for the following reason: 2 It is alleged that you have abused your licensing privilege and, pursuant to Section 470 of the Liquor Code (47 P.S. Section 4- 470), you are no longer eligible to hold a license based upon violations of the Liquor Code relative to Citation Numbers 04- 0415, 03-2035 and 02-1976. (N.T. 7; Ex. B-3). 4. By letter dated April 18, 2005, Licensing notified Licensee that a hearing was scheduled for May 18, 2005 in Harrisburg to take testimony on the above-listed objection. (N.T. 9; Ex. B-5). 5. In November 2002, Citation No. 02-1976 was issued against Licensee for violations of section 493(10) of the Liquor Code [47 P.S. ~ 4- 493(10)], in that on July 25, 2002, Licensee permitted lewd, immoral, or improper entertainment, and of section 5.32(c) of the Board's Regulations [40 Pa. Code ~ 5.32(c)], in that on the same date, Licensee permitted entertainers to contact or associate with patrons for a lewd, immoral, improper, or unlawful purpose. (N.T. 8; Ex. B-4). 6. The charges in Citation No. 02-1976, which Licensee admitted, involved male strippers, who imitated having sexual contact, and had multiple real contacts with female patrons, up to and including a patron paying for the privilege of chewing off a dancer's g-string, ultimately exposing his genitals. (Ex. 8-4). 3 7. For Citation No. 02-1976, Licensee was fined one thousand dollars ($1,000.00). (Ex. B-4). 8. In December 2003, Citation No. 03-2035 was issued against Licensee for violation of section 493(1) of the Liquor Code [47 P.S. ~ 4- 493( 1)], in that on May 17, 2003, Licensee sold, furnished, and/or gave or permitted such sale, furnishing, or giving of alcoholic beverages to a visibly- intoxicated male patron. (N.T. 8; Ex. B-4). 9. Licensee admitted the charge in Citation No. 03-2035, which involved a male patron who was served by a bartender named Lori who, based upon comments made by her in front of an enforcement officer from the Pennsylvania State Police, Bureau of Liquor Control Enforcement (UBLCE"), was well-aware of the patron's condition and regardless, served him another alcoholic beverage. (Ex. B-4). 10. For Citation No. 03-2035, Licensee was fined one thousand five hundred dollars ($1,500.00). (Ex. B-4). 11. In March 2004, Citation No. 04-0415 was issued against Licensee for violation of section 493(1) of the Liquor Code [47 P.S. ~ 4- 493( 1)], in that on December 5, 2003, Licensee sold, furnished, and/or 4 gave or permitted such sale, furnishing, or giving of alcoholic beverages to a visibly-intoxicated male patron. (N.T. 8; Ex. 8-4). 12. License again admitted the charge in Citation No. 04-0415, which involved a 8LCE enforcement officer witnessing a patron being served a beer after exhibiting signs of intoxication. (Ex. 8-4). 13. For Citation No. 04-0415, Licensee was fined one thousand five hundred dollars ($ 1,500.00) and its liquor license was suspended for one (t) day. (Ex. 8-4). 14. Peter Them has been the sole officer and shareholder of Licensee since early 1999. (N.T. 10- 12). 15. Mr. Them is president of three (3) separate corporations: a contracting/house-building company, a company which owns the Midway Inn hotel property, and Licensee. (N. T. 11 - 1 2). 16. Although the hotel had operated with a liquor license prior to Mr. Them's purchase, this is his only involvement with a liquor license. (N.T. 12- 13). 1 7. Mr. Them spends four (4) to six (6) hours a day at the hotel. He comes and goes at various times throughout the day. (N.T. 13, 26, 28- 29). 5 18. While at the hotel, Mr. Them does the books, goes to the bank, prepares beer and liquor orders, maintains the building, and resolves any problems that may occur. (N.T. 13). 19. Licensee is open from 8:00 a.m. until 2:00 a.m. Monday through Friday, 10:00 a.m. until 2:00 a.m. on Saturday, and 11 :00 a.m. until midnight or 1 :00 a.m. on Sundays, depending on business. (N.T. 13- 14). 20. Licensee has five (5), six (6), or seven (7) employees. (N.T. 14). 21. Licensee's current manager is Cory O'Neill.! (N.T. 14). 22. Since the three (3) aforementioned citations, Licensee is trying to change its menu to serve more food rather than alcohol. It is advertising itself as a restaurant and is offering complete dinners. (N.T. 15, 17-19; Exs. L-2, L-3, L-4). 23. Since the citations, Licensee is more aware of its customers and their drinking. (N.T. 15). 1 Corrine Lynn O'Neill was approved by the Board as manager on September 24, 2004. (Admin. Notice). 6 24. In August 2004, Licensee was certified as completing the Board's Responsible Alcohol Management Program ("R.A.M.P."). (N.T. 15-16, 22- 25; Ex. L-1). 25. New employees are now required to have "TIPS" certification within weeks of their employment. (N.T. 16). 26. Mr. Them denied knowledge of any additional violations, or notification of such by the BLCE. (N.T. 19).2 27. In March of 2005, the BLCE commended Licensee for refusing service to an undercover underage buyer who had attempted to purchase alcohol there on March 5, 2005. (N.T. 23; Ex. L-5). 28. Mr. Them had attempted to get Licensee R.A.M.P.-certified earlier, but a turnover in bartenders kept making Licensee unable to comply with the ratio of trained staff required by R.A.M.P. (N.T.22-24). 2 To the contrary, Board records indicate that licensee was cited again on August 26, 2004, well in advance of the May 1 B, 2005 hearing herein. Citation No. 04-1445 charged licensee with sales to two (2) visibly- intoxicated female patrons on June 24, 2004. (Coincidentally, one of those patrons is now employed as licensee's manager, and both were then bartenders at the licensed premises.). A hearing on the matter, which Mr. Them attended, was held on February 3, 2005, also well before the hearing herein. On June 9, 2005, the Administrative law Judge ("AlJ") issued an Order, sustaining the charges, fining licensee two thousand dollars ($2,000.00), and suspending its license for three (3) days. licensee appealed to the Board, which on July 26, 2005, affirmed the AlJ and dismissed the appeal. (Admin. Notice). In addition, a fifth citation, No. 05-1289, was issued to licensee on June 30, 2005, after the hearing herein, for sales to a visibly-intoxicated female patron in April 2005. (Admin. Notice). The citation remains unadjudicated at this time, and therefore, was not considered by the Board herein. Further, Citation No. 04-1445 was considered only to the degree that it refuted licem;ee's contention that it was not aware of further violations. 7 29. Mr. Them went to a R.A.M.P. class for owners/managers a few years prior to the hearing. (N.T. 23). 30. Ms. O'Neill is now R.A.M.P.-certified, as are all the bartenders. (N.T. 24-25). 31 . Licensee does not allow adult entertainment on its premises since it was cited for lewd and immoral entertainment. (N.T. 26). 32. Licensee was instructed by R.A.M.P. trainers to complete incident reports when something happens, and to use age-verification cards. (N.T. 29-30). 33. Incident reports of visibly-intoxicated patrons are not kept by Licensee unless the patrons create a scene. (N.T. 30). 34. The bartender involved in the May 2003 service to a visibly- intoxicated patron was Licensee's then-manager, Lori Wiles. Ms. Wiles was not disciplined for the incident because she had health problems and had left Licensee's employment prior to Licensee receiving Citation No. 03-2035. (N.T. 31-32; Admin. Notice). 35. The bartender involved in the December 2004 service to a visibly-intoxicated patron, Jim Carey, was also employed by Licensee as manager. He left Licensee's employment due to this incident and some other 8 problems, including thefts, in August 2004. (N.T. 25, 32-34; Admin. Notice). 36. Mr. Them believed that Mr. Carey was R.AM.P.-certified at the time of the December 2003 hearing. (N.T. 35). 37. Licensee has had signs posted around the premises about age, visible intoxication, drunk-driving, and the like, since before the R.AM.P. training occurred. (N.T. 35). 38. Starting around July 2004, Mr. Them required all employees to become R.AM.P.-certified. (N. T. 36-37). 39. Licensee's staff keeps a register book next to the cash register in which they write notes to each other. The notes may contain names or descriptions of persons that are barred. The information is also communicated verbally. (N.T. 38-39). 40. Once every four (4) to six (6) weeks, Licensee has a mandatory staff meeting, in which problems are discussed. (N.T. 39). 41. Persons are usually barred for thirty (30) days, but sometimes for life. (N.T. 40-41). 42. Licensee has made some physical improvements to enhance the look of the licensed premises. (N.T.44). 9 DISCUSSION At issue in this case is whether the renewal of Licensee's hotel liquor license should be granted. The Legislature of Pennsylvania has granted the Board broad police powers for the protection of the public welfare, health, peace, and morals of the citizens of the Commonwealth. To achieve these purposes, the Liquor Code must be liberally construed pursuant to section 104(a) of the Code. [47 P.S. ~ 1-104(a)]. As stated by the Pennsylvania Supreme Court: There is perhaps no other area of permissible state action within which the exercise of the police powers of a state is more plenary than in the regulation and control of the use and sale of alcoholic beverages. In Re Tahiti Bar, Inc. Liquor License Case, 395 Pa. 355, 150 A.2d 112, 115 (1959). Renewal of a license is not an automatic procedure. Section 470(a.1) of the Liquor Code expressly grants the Board the authority to refuse to renew a liquor license under the following circumstances: (1 ) if the licensee, its shareholders, directors, officers, association members, servants, agents or employes have violated any of the laws of this Commonwealth or any of the regulations of the board; 10 (2) if the licensee, its shareholders, directors, officers, association members, servants, agents or employes have one or more adjudicated citations under this or any other license issued by the board or were involved in a license whose renewal was objected to by the Bureau of Licensing under this section; (3) if the licensed premises no longer meets the requirements of this act or the board's regulations; or ( 4) due to the manner in which this or another licensed premises was operated while the licensee, its shareholders, directors, officers, association members, servants, agents or employes were involved with that license. When considering the manner in which this or another licensed premises was being operated, the board may consider activity that occurred on or about the licensed premises or in areas under the licensee's control if the activity occurred when the premises was open for operation and if there was a relationship between the activity outside the premises and the manner in which the licensed premises was operated. The board may take into consideration whether any substantial steps were taken to address the activity occurring on or about the premises. [47 P.S. ~ 4-470(a.1)]. The Commonwealth Court has upheld the Board's exercise of its discretion under section 470 of the Liquor Code and has stated that even one (1) past citation or violation may be sufficient to support a decision refusing a renewal application. Hyland Enterprises, Inc. v. Pennsylvania Liquor Control Bd., 158 Pa. Cmwlth. 283, 631 A.2d 789 (1983). The Board may also consider the licensee's entire citation history to see' if a pattern of activity has 1 1 emerged which merits the non-renewal of the liquor license. Ball Park's Main Course, Inc. v. Pennsylvania Liquor Control Bd., 163 Pa. Cmwlth. 636, 641 A.2d 713 (1994); Atiyeh v. Pennsylvania Liquor Control Bd., 157 Pa. Cmwlth. 28, 629 A.2d 182 (1993). The reason for Licensing's objection to the renewal of Licensee's liquor license in this case was solely due to its citation history. In the relatively short time Licensee has been operating, it has accrued four (4) serious adjudicated citations, the first three (3) of which were the basis of Licensee's objection. (As noted earlier, the fourth citation was not adjudicated until after the renewal hearing). One (1) of the citations involved permitting lewd and immoral entertainment and allowing contact between patrons and the entertainers for a lewd or immoral purpose. The remaining two (2) citations were both issued for sales to visibly-intoxicated persons. These offenses are considered to be very serious and subject a licensee to enhanced penalties, which is evidenced by the substantial fines and license suspension received by Licensee when these citations were adjudicated. In response to these citations, Licensee's owner indicated that he has discontinued adult entertainment and has required his employees to undergo R.A.M.P. training, plus the staff is "more aware" of its patrons' drinking 12 habits/conditions. While the elimination of adult entertainment has seemingly prevented a reoccurrence of the lewd and immoral activity, the steps taken by Licensee to combat its history of service to visibly intoxicated persons have not been as successful. Apparently, Mr. Them has required his employees to be R.A.M.P.-certified for a number of years, at least since the second citation. While Licensee itself was not certified until August 2004, Mr. Them and the individual employees had completed the training. Even so, the third (and fourth) citation occurred, despite the training received by various staff members and Mr. Them. The bartenders who served the patrons in Citation Nos. 03-2035 and 04-0415 both left Licensee's employ, but for reasons that appear to be more coincidental (health and thefts) than punitive, making the deterrent effect of those terminations on the other bartenders questionable. Further, while R.A.M.P. training is an excellent step for a licensee to take when faced with problems such as service to minors or visibly intoxicated persons, it is ineffective unless those trained apply the knowledge that they have acquired. Just being certified, without implementing the training, is not a guarantee that service to visibly intoxicated persons will be avoided in the future, as evidenced herein. Similarly, "being more aware of the patrons' 13 drinking" does not translate into not serving the patrons after or when they exhibit signs of visible intoxication; nor is posting signs about visibly- intoxicated patrons without following through on not serving them. Maintaining a list of barred patrons is also a good way to remove troublesome patrons or potentially bad situations from occurring. However commendable that step is, there was no indication that Licensee had barred any patrons for visible intoxication or overindulgence, or that the barred list had anything to do with service to visibly intoxicated persons. Similarly, improving the menu and physical appearance of the premises, which may arguably curtail persons prone to overindulging from frequenting the premises, is by no means a sure- fire way to control those patrons or the behavior they exhibit. Taking into consideration the seriousness of the offenses for which Licensee has been cited, the Board concluded that the steps taken by Licensee were not enough to outweigh the citation history that Licensee had already incurred. The Board found that even a conditional renewal of the license, as suggested by the hearing examiner, would not sufficiently guarantee an end to the operational problems exhibited by Licensee. The violations set forth in the adjudicated citations are more than sufficient for the Board to deny renewal of the subject license. See Hyland EnterP.Tises, Inc., 631 A.2d 789. 14 The Board's lack of confidence in licensee's ability or the sincerity of its interest in curbing its sales to visibly intoxicated persons made denial of the license renewal the appropriate remedy at this time. 15 CONCLUSIONS OF LAW 1. Licensee received the requisite notice of Licensing's objections and of the time, place, and date of hearing in this matter. 2. Section 470 of the Liquor Code vests in the Board the authority to refuse renewal of a hotel liquor license. [47 P.S. 9 4-470]. 3. As of the date of the hearing, Licensee had accrued three (3) adjudicated citations since November of 2002, one (1) for lewd and immoral entertainment/contact and two (2) for sales to visibly-intoxicated patrons. 4. Licensee has not taken substantial and/or effective steps to combat the problems with sales to visibly intoxicated persons. 5. Licensee's citation record indicates an abuse of the licensing privilege. 6. Licensee's license was not renewed. PENNSYlVANIA LIQUOR CONTROL BOARD ~)(~ Board Secretary 16 (") ~.::: :~ ....., = .:;:.::J c.n ::0..... C' c=; w o -n :I! ..nil ,- -air ~3~? ---1\..":> ~7; ;:J;:'S ;~)nl ~;::, :u .< \.D HOLLY PIKE TRADING COMPANY, INC., tla MIDWAY INN, APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, LIQUOR CONTROL BOARD, APPELLEE 05-3856 CIVIL TERM IN RE: APPEAL BY LIQUOR LICENSEE FROM REFUSAL TO RENEW LICENSE ORDER OF COURT AND NOW, this -Z-?- day of September, 2005, IT IS ORDERED that the refusal of the Pennsylvania Liquor Control Board to renew the hotel liquor license for 1582 Holly Pike, South Middletown Township, Pennsylvania, for the period beginning February 1,2005 and ending January 31, 2007, is conditionally reversed, in that the Board shall grant a renewal application subject to the specific restriction that within twenty days of the date of this order, the Licensee has entered into a written agreement with the Board that the license when renewed shall thereafter be transferred to a bona fide third party who meets Board requirements, and that the Licensee permanently cease selling alcoholic beverages within five days of the renewal. If the written agreement is not entered into as required, the decision of the Pennsylvania Liquor Control Board is affirmed effective twenty-one days after th~ci~~rder. By the Court,c':" ,/ Edgar B. Bayley, J. ?\'~ o J ~ :::?. 1'-'. l.JJt;~ S2Q u-:L '..i_\---..: 't9 QL_ S"- -LU U-f!= \5 r- '-. 1:- 7:: -J :.-0., .::;. "'!':"'" 0: N N 0.... W VJ ~.., = = "'" "5 U -------------- . - Barbara A. Darkes, Esquire For Appellant Christopher L. Herrington, Esquire For Appellee :sal HOLLY PIKE TRADING COMPANY, INC., tla MIDWAY INN, APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, LIQUOR CONTROL BOARD, APPELLEE 05-3856 CIVIL TERM IN RE: APPEAL BY LIQUOR LICENSEE FROM REFUSAL TO RENEW LICENSE MEMORANDUM OPINION AND ORDER OF COURT Bayley, J., September 22, 2005:-- Holly Pike Trading Company, Inc., filed an appeal from the refusal of the Pennsylvania Liquor Board to renew its hotel liquor license for premises at 1582 Holly Pike, South Middletown Township, Cumberland County, Pennsylvania, for the period beginning February 1,2005, and ending January 31,2007. Pursuant to 47 Pa.C.S. 94-464, the appeal was heard de novo on September 7,2005. In appeals under Section 4-464, a court may make its own findings and reach its own conclusions based on those findings even when the evidence it hears is substantially the same as the evidence presented to the Board. Pennsylvania Liquor Control Board v. Richard E. Craft American Legion Home Corp., 718 A.2d 276 (Pa. 1998); Pennsylvania Liquor Control Board v. Bartosh, 730 A.2d 1029 (Pa. Commw. 1999). The Licensee was cited and adjudicated of permitting lewd entertainment, and on three separate occasions serving alcohol to visibly intoxicated persons. We find, as did the Board, that taking into consideration the seriousness of the offenses, the steps taken by Licensee are not enough to outweigh the citation history incurred. However, while the Board found that a conditional renewal of the license would not sufficiently 05-3856 CIVIL TERM guarantee an end to the operational problems exhibited by Licensee, we conclude otherwise. The hotel license, while transferable for its current location, is not transferable to another location. The hotel at the premises has sixteen rooms, and a high occupancy rate. Licensee seeks to sell its property which is now listed with a realtor. The value of the license will be lost if it is not renewed, which is a harsh result. We will allow the Licensee an opportunity to avoid it. To guarantee an end to the operational problems exhibited by Licensee, we will conditionally reverse the Board, and direct the granting of the renewal application subject to the specific restriction that within twenty days of this date the Licensee enters into a written agreement with the Board that the renewed license shall be transferred to a bona fide third party who meets Board requirements, and that the Licensee permanently cease selling alcoholic beverages as permitted by any renewal license within five days of the renewal. ORDER OF COURT AND NOW, this ---z..Z day of September, 2005, IT IS ORDERED that the refusal of the Pennsylvania Liquor Control Board to renew the hotel liquor license for 1582 Holly Pike, South Middletown Township, Pennsylvania, for the period beginning February 1,2005 and ending January 31,2007, is conditionally reversed, in that the Board shall grant a renewal application subject to the specific restriction that within twenty days of the date of this order, the Licensee has entered into a written agreement with the Board that the license when renewed shall thereafter be transferred to a bona fide third party who meets Board requirements, and that the Licensee permanently cease selling alcoholic beverages within five days of the renewal. If the written -2- 05-3856 CIVIL TERM agreement is not entered into as required, the decision of the Pennsylvania Liquor Control Board is affirmed effective twenty-one days after the date of7's rder. By the Court, / Barbara A. Darkes, Esquire For Appellant Christopher L. Herrington, Esquire For Appellee :sal -3- 10/12/2005 08:34 FAX 717 237 5300 MCNEES WALLACE & NURICK 1m 0021002 HOllY PIKE TRADING COMPANY, INC, tla MIDWAY INN, Appellant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. v. 05-3856 CIVil TERM COMMONWEALTH OF PENNSYLVANIA, LIQUOR CONTROL OOARD, CASE NO. 05-9038 LICENSE NO. H-4449 LID: 43533 Appellee ORDER AND NOW, this II~ day of October, 2005, upon consideration of the Commonwealth of Pennsylvania, Liquor Control Board's request for a ten.dDY extension uf the lwenty-day time perlod for the Board to deliberate and decide whether to accept Holly Pike Trading Company, Inc.'s proposed agreement, and given the fact that Holly Pike Trading Company, Inc. concurs in the request for that extension, the parties shall have an additional ten days, until October 22,2005. to enter into a written agreement as specified in this Court's September 22, 2005, Order. 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