Opinion
No. 1104 C.D. 2013
02-26-2014
Rocco Ierino, Inc., Appellant v. Pennsylvania Liquor Control Board
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Rocco Ierino, Inc. (Licensee) appeals from the Lawrence County Common Pleas Court's (trial court) May 29, 2013 order denying Licensee's appeal from the Pennsylvania Liquor Control Board's (Board) refusal to renew Licensee's Restaurant Liquor License No. R-10023 (License). The issues for this Court's review are: (1) whether the trial court failed to make findings of fact and conclusions of law with sufficient specificity to determine the basis for its refusal to renew the License; (2) whether the trial court erred when it opined that Licensee's failure to adhere to a Conditional Licensing Agreement (CLA) requiring the installation of two additional security cameras implied that Licensee failed to read the CLA, that Licensee demonstrated a cavalier attitude toward his obligations under the CLA, and that Licensee disregarded and deliberately breached those obligations; and, (3) whether the trial court failed to give appropriate weight to the measures taken by Licensee to address the problems at its premises. We affirm.
Licensee is the owner of a Board-licensed establishment named My House Bar, located at 403 Lawrence Avenue, Ellwood City, Pennsylvania (Licensed Premises). Licensee filed an application to renew its License for the period beginning July 1, 2012 and ending June 30, 2014. By June 15, 2012 letter, the Board's Bureau of Licensing (Licensing) advised Licensee that pursuant to Section 470 of the Liquor Code it objected to the License renewal based upon Citation Nos. 11-1488 and 11-0280 and 14 police incidents at or immediately adjacent to the Licensed Premises. These incidents occurred between July 28, 2010 and June 15, 2012 and involved fights, assaults, drugs, loud music, loud noise, minors, disorderly operations and after-hours operations. The June 15, 2012 letter also informed Licensee that Licensing also based its objection on Licensee's violation of a CLA, stating:
Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-470.
Section 470(a.1) of the Liquor Code provides:
The Director of the Bureau of Licensing may object to and the board may refuse a properly filed license application:Added by Act of June 18, 1998, P.L. 664, 47 P.S. § 4-470(a.1). Section 470(a) of the Liquor Code also provides in pertinent part:
(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;
(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.
The board may enter into a[] [conditional licensing] agreement with the applicant concerning additional restrictions on the license in question. If the board and the applicant enter into such an agreement, such agreement shall be binding on the applicant. Failure by the applicant to adhere to the agreement will be sufficient cause to form the basis for a citation under section 471 and for the nonrenewal of the license under this section.47 P.S. § 4-470(a) (emphasis added).
In 2008 and 2010, Licensing objected to renewal of the License. Licensing's objections to both licensing terms were resolved when Licensee and the Board entered into a CLA on January 26, 2011.
You have breached the [CLA] approved by the Board on January 26, 2011 signed by Rocco Ierino, President of Rocco Ierino, Inc., and Faith S. Diehl, Chief Counsel, Pennsylvania Liquor Control Board. Specifically, you did not become compliant with the Responsible Alcohol Management Program (RAMP) within ninety (90) days of the approval of the [CLA], you failed to have security cameras to monitor [the] exterior of [the] premises, you failed to use [a] transaction scan device to scan the identification of all patrons purchasing alcoholic beverages, and you failed to maintain the front window of the premises in a transparent and unobscured manner.Reproduced Record (R.R.) at 353a.
On August 24, 2012, the Board held a hearing before a hearing examiner, pursuant to Liquor Code Section 464. On December 5, 2012, the Board refused Licensee's renewal application. Licensee appealed to the trial court which held a de novo hearing on February 22, 2013. At the trial court's de novo hearing, the record made before the Board was admitted. On May 29, 2013, the trial court denied Licensee's appeal. Licensee appealed to this Court.
47 P.S. § 4-464.
A trial court reviewing a Board decision not to renew a liquor license hears the matter de novo, and may sustain, alter, modify or amend the Board's order even when it is based upon the same evidence presented before the Board. Section 464 of the Liquor Code, 47 P.S. § 4-464; U.S.A. Deli, Inc. v. Pennsylvania Liquor Control Bd., 909 A.2d 24 (Pa. Cmwlth. 2006). "Our review in a liquor license renewal case is limited to a determination of whether the trial court's findings of fact are supported by substantial evidence, whether it abused its discretion, or whether it committed an error of law." St. Nicholas Greek Catholic Russian Aid Soc'y v. Pennsylvania Liquor Control Bd., 41 A.3d 953, 954 n.1 (Pa. Cmwlth. 2012).
Licensee first contends that the trial court failed to make factual findings and legal conclusions with sufficient specificity to determine the basis upon which the trial court refused to renew the License. We disagree. While Licensee acknowledges that "the Findings of Fact section [of the trial court's opinion] was extensive," it argues that "the Conclusions of Law contained only eight (8) paragraphs." Licensee Br. at 8. Further, Licensee maintains that although the trial court found Licensee had taken remedial measures, the trial court's Conclusions of Law failed to take those remedial measures into account. Thus, Licensee contends that the trial court erred because "the Conclusions of Law were not been [sic] based on specific, substantial evidence sufficient to render a denial of the application for renewal." Licensee Br. at 9.
In its brief, Licensee attempts to diminish the frequency and severity of the incidents at the licensed premises, stating:
[O]nly eleven (11) [incidents] resulted in any criminal charges, arrests, or citations. . . . [O]ver a span of twenty months, there were only eleven (11) incidents resulting in criminal charges, with only seven (7) incidents occurring after the CLA was put into place in January 2011. Further, Licensee has been issued just two (2) citations, regarding one incident of furnishing alcohol to a minor; and one finding violations of the CLA and serving a visibly intoxicated person. The violations of the CLA were resolved shortly thereafter . . . .Licensee Br. at 8.
According to the Fact Section of the trial court's opinion, the trial court reviewed each of the citations, alleged incidents and Licensee's remedial measures in reaching its decision to deny the License renewal. The Discussion Section of the trial court's opinion also reveals that the trial court considered Licensee's remedial measures, and further explains the trial court's rationale in finding them insufficient:
Licensee's use of a metal detecting wand; maintenance of a barred patrons list; achievement of RAMP certification; regular meetings, communication and cooperation with the Ellwood City Police Department; and installation, although belated, of two additional security surveillance cameras, are recognized. Also, Licensee has been using a transaction scanning device, although not without exception, as witnessed by the charges in Citation No. [sic]. However, Licensee has not taken sufficient steps necessary to remedy the frequent disorderly and assaultive conduct that has resulted in injury to patrons and that has required police intervention. According to Licensee, employees perform a perimeter survey every hour, which, if performed diligently and thoroughly, would be laudable. However, the lack of precision in the log book and the description of the perfunctory nature of the survey causes some doubt as to the efficacy of the surveys, and, in any event, despite the many episodes of disorderly conduct immediately outside the establishment, no Licensee employee seems to have taken any action.
It is significant that Licensee's personnel did not notify the police on any of the occasions when police presence was required, and that there is no evidence that any of Licensee's personnel were present to assist in quelling the outside disturbances.
Although economic reality, of necessity, affects business decisions, Licensee's disregard of the requirements imposed by the CLA cannot be excused. The CLA obligated Licensee to provide security from 9:00 p.m. until closing on Thursday, Friday and Saturday. However, Licensee chose to ignore the requirements of the CLA, and decided to have
security on duty only from 10:00 p.m. In addition, although not required by the CLA, Licensee has not taken any initiative to enhance its security personnel or its patrols.Trial Ct. Op. at 30-32. "Questions of . . . evidentiary weight are for the common pleas court, not this court." Pennsylvania Liquor Control Bd. v. Am. Legion Home Ass'n of Cresson, 474 A.2d 68, 70 (Pa. Cmwlth. 1984). The trial court's factual findings clearly demonstrate that there was substantial evidence to support its decision. The trial court weighed in great detail Licensee's remedial measures, but determined they were insufficient. Given the trial court's thorough explanation for its decision, we find Licensee's argument without merit.
. . . .
The evidence of continuing episodes of assaultive behavior and disorderly conduct inside and later outside the Licensee's establishment, the frequent unruly crowd presence immediately outside the establishment requiring police intervention, evidence of the presence of underage individuals inside the Licensee's establishment, together with the adjudicated citations that included charges of serving a minor, serving a visibly intoxicated person, and violations of the CLA, persuade the Court that renewal of the License should be refused.
Licensee next asserts that the trial court abused its discretion when it denied the License renewal based upon its conclusion that Licensee's failure "to install two additional security cameras implies that the entire CLA was not read and was deliberately disregarded." Licensee Br. at 9. Licensee argues that the trial court's conclusion directly contradicted its findings of fact, and that the trial court's aforementioned assumption tainted its decision. We disagree.
Licensee has mischaracterized the trial court's statement. The trial court actually stated:
[F]ailure to install the additional two surveillance cameras until receiving a citation for the violation, implies, at the least, if the CLA was not read, a cavalier attitude toward
the obligation imposed by the CLA, and, at worst, a disregard and deliberate breach of those obligations.Trial Ct. Op. at 27 (emphasis added). The trial court opined that the failure to install the two surveillance cameras likely resulted from one of two things - either (1) Licensee did not read the CLA which would imply a cavalier attitude towards the duties consented to in the agreement, or (2) that Licensee read the agreement and deliberately breached its obligations. Contrary to Licensee's contention, the trial court's statement is not a conclusion that "the CLA was not read and was deliberately disregarded." Licensee Br. at 9 (emphasis added). Instead, the trial court provided likely explanations for Licensee's failure to adhere to the CLA, derived from the evidence presented. Further, given Licensee's admission that it still knowingly fails to comply with all CLA provisions, Licensee's assertion that "[t]here is no basis for [the trial court's] assumption" is unfounded. Licensee Br. at 10.
Licensee admits in its brief and attempts to rationalize its failure to comply with the CLA, stating:
Licensee employs two security employees on Thursday from 9:00 p.m. until closing, and one security employee on Friday and Saturday from 10:00 p.m. until closing. It is anticipated that the [Board] will argue that Licensee is not complying with [the] CLA because it has security personnel starting at 10:00 p.m. instead of 9:00 p.m. on two days of the week. However, Licensee did testify before the Hearing Examiner that it has complied with the CLA for the establishment's busiest night of the week, Thursday.Licensee Br. at 13 (emphasis added, citations omitted). Importantly, Section 470(a) of the Liquor Code unequivocally states that "[f]ailure by the [Licensee] to adhere to the [CLA] will be sufficient cause . . . for the nonrenewal of the license . . . ." 47 P.S. § 4-470(a). Thus, Licensee's admitted CLA violation, and the citation evidencing Licensee's failure to adhere to the CLA's terms would, alone, be "sufficient cause for . . . the nonrenewal of the license. . . ." Id. --------
In addition, the trial court's statement is not inconsistent with its factual findings. Licensee points to particular factual findings that describe the testimony of various police officers, the Police Chief and the Mayor, each opining that the Licensed Premises' operations have improved since the Licensee entered into the CLA, and one witness' testimony that Licensee has complied with one CLA condition. Notably, the factual findings Licensee relies upon are the trial court's descriptions of individual witness' testimony and opinions regarding Licensee's conduct, but are not the trial court's factual findings about what it found to have actually occurred. More importantly, evidence that operations had, in some ways, improved at the Licensed Premises after the CLA was executed does not contradict the trial court's statement, especially given the citation adjudicated against Licensee explicitly finding Licensee had not complied with the CLA. Accordingly, Licensee's argument fails.
Finally, Licensee maintains that the trial court did not give adequate weight to the corrective measures taken by Licensee in response to the citations it received. We disagree. As previously discussed, the trial court did consider Licensee's actions in attempting to address the operational problems at the Licensed Premises. However, after reviewing the evidence, the trial court concluded that Licensee did "not take[] timely substantial remedial measures to prevent, control and resolve incidents of assaultive, disorderly and unruly conduct associated with operation of the Licensee's establishment, that would justify renewal of the License." Trial Ct. Op. at 33. Although Licensee would have us reweigh the evidence, "[q]uestions of . . . evidentiary weight are for the common pleas court, not this court." Am. Legion Home Ass'n of Cresson, 474 A.2d at 70.
For all of the above reasons, the trial court's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 26th day of February, 2014, the Lawrence County Common Pleas Court's May 29, 2013 order is affirmed.
/s/_________
ANNE E. COVEY, Judge