Opinion
Argued September 25, 1978
November 27, 1978.
Liquor — Suspension of liquor license — Liquor Code, Act 1951, April 12, P.L. 90 — Selling alcoholic beverages without a license.
1. Under the Liquor Code, Act 1951, April 12, P.L. 90, a licensee is properly fined for selling alcoholic beverages while under suspension, when the conditions for reinstatement of the previously suspended license had been fulfilled at the time of such sales but the license had not been physically restored to the licensee. [598]
Argued September 25, 1978, before Judges CRUMLISH, JR., WILKINSON, JR., and MacPHAIL, sitting as a panel of three.
Appeal, No. 1029 C.D. 1977, from the Order of the Court of Common Pleas of Philadelphia County in case of Pennsylvania Liquor Control Board v. Edward and Kathryn Griffin, t/a Magoo's, Misc. No. 76-12-2196.
Licensees fined by Pennsylvania Liquor Control Board. Licensees appealed to the Court of Common Pleas of Philadelphia County. Appeal sustained. MIRARCHI, JR., A.J. Board appealed to the Commonwealth Court of Pennsylvania. Held: Reversed. Order of Board reinstated.
J. Leonard Langan, Assistant Attorney General, with him Harry Bowytz, Chief Counsel, for appellant.
No appearance for appellee.
On June 7, 1976, the Pennsylvania Liquor Control Board (Board) issued an order suspending the restaurant liquor license of Edward J. and Kathryn Griffin (Licensees) for a period of three (3) days, effective July 1, 1976, "and thereafter until the licensees have corrected the unsanitary conditions which caused the citation to be issued." On July 6, 1976, the Licensees served beer to a Board officer. As of that date, the license in question had not been restored. Subsequently, a citation was issued against the Licensees for selling alcoholic beverages during a time when the license was suspended. After a hearing, the Board found that the averments in the citation had been sustained and imposed a fine upon the Licensees of $350.00. An appeal was then taken to the Court of Common Pleas of the First Judicial District. After a hearing, that Court vacated the order of the Board. In its memorandum opinion the Court held that the Licensees had fully complied with the Board's order, i.e., the conditions which caused the license to be suspended had been corrected and the premises had been closed for five (5) days (instead of three).
It was restored on July 8, 1976.
Even though there is evidence from which the learned trial judge could make the findings upon which he based his order to vacate the order of the Board, the fact remains that the Licensees sold alcoholic beverages at a time when they did not have a license, for whatever reason. Section 492(2) of the Liquor Code (Code), Act of April 12, 1951, P.L. 90, as amended, 47 P. S. § 4-492(2), states:
It shall be unlawful —
. . . .
(2) Sales of Malt or Brewed Beverages for Consumption on the Premises. For any person to sell to another for consumption upon the premises where sold or to permit another to consume upon the premises where sold, any malt or brewed beverages, unless such person holds a valid retail dispenser license or a valid liquor license issued by the board authorizing the sale of malt or brewed beverages for consumption upon such premises.
Hence, whether the alleged unsanitary conditions were corrected or not, the Licensees could not legally dispense alcoholic beverages until their license was physically restored.
We do note that the Licensees did not have their health certificate reissued until July 7, 1978.
Accordingly, we must reverse.
ORDER
AND NOW, this 27th day of November, 1978, the order of the Court of Common Pleas of the First Judicial District of Pennsylvania, Trial Division, dated May 2, 1977, is reversed and the order of the Pennsylvania Liquor Control Board, dated November 22, 1976, is reinstated.