Opinion
No. 1793 C.D. 2013
07-01-2014
Domenico E. Varrone, t/a Domenico's, Appellant v. Pennsylvania Liquor Control Board
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Domenico E. Varrone, t/a Domenico's (Varrone) appeals from the September 10, 2013, order of the Court of Common Pleas of Washington County (trial court), sustaining the decision of the Pennsylvania Liquor Control Board (PLCB) and denying Varrone's license renewal application (Application). We affirm.
On October 17, 2012, Varrone filed an Application for Restaurant Liquor License No. R-12917 with the PLCB pursuant to section 470(a) of the Liquor Code, for the premises located at 421 Fallowfield Avenue, Charleroi, Pennsylvania, for the period from July 1, 2012, through June 30, 2014. Varrone indicated in section 16 of the Application, under "Late Filing Comments," that the establishment has been "CLOSED SINCE 2010 - NUICNSE [sic] BAR," and, in section 11 of the Application, under "Conviction Record," that he had "NONE." (Trial Ct. Op., 9/10/13, at 1-2; Cmwlth. Ex. B1.)
Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §4-470(a). Section 470(a) of the Liquor Code requires an application for renewal to be filed at least 60 days before the expiration of the same license. 47 P.S. §4-470(a). The PLCB may, at its discretion, accept a renewal application filed within two years after the expiration date of the license. Id.
On November 30, 2012, the PLCB's Bureau of Licensing (Bureau) advised Varrone that it objected to Varrone's Application and a hearing would be held to determine whether Varrone's activities were egregious and warranted non-renewal of his license pursuant to section 470(a.1) of the Liquor Code, 47 P.S. §4-470(a.1).
Section 470(a.1) of the Liquor Code, added by Section 13 of the Act of June 18, 1998, P.L. 664, provides that the Bureau may object to and the PLCB may refuse a liquor license renewal 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 [PLCB];47 P.S. §4-470(a.1).
(2) if the licensee, its . . . servants, agents or employes have one or more adjudicated citations under this or any other license issued by the [PLCB] 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 [PLCB's] regulations; or
(4) due to the manner in which this or another licensed premises was operated while the licensee, its . . . servants, agents or employes were involved with that license. When considering the manner in which this or another licensed premises was being operated, the [PLCB] 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 [PLCB] may take into consideration whether any substantial steps were taken to address the activity occurring on or about the premises.
The Bureau objected to Varrone's Application based upon:
1. . . .[T]he improper conduct of your licensed establishment as there have been approximately nine (9) incidents of disturbances at or immediately adjacent to your licensed establishment during the time period July 2010 to present reported to the Charleroi Police Department. This activity includes, but is not limited to drugs, fights, loitering, loud noise, and disorderly operations.(Cmwlth. Ex. B2.)
2. [Varrone] was convicted on October 3, 2011 on one (1) misdemeanor count of Use/Poss of Drug Paraphernalia and one (1) misdemeanor count of Int. Poss. Of Controlled Substance.
3. It is alleged that [Varrone], may no longer be reputable as required under Sections 102 and 470 of the Liquor Code (47 P.S. §§1-102 and 4-470) based upon the misdemeanor conviction for one (1) count of Use/Poss of Drug Paraphernalia.
4. It is alleged that [Varrone], may no longer be reputable as required under Sections 102 and 470 of the Liquor Code (47 P.S. §§1-102 and 4-470) based upon the misdemeanor conviction for one (1) count of Int. Poss. [o]f Controlled Substance.
5. The [Bureau] has rejected the late-filed renewal application pursuant to Section 470(a) of the Liquor Code (47 P.S. §[4-]470(a)).
On February 21, 2013, a hearing examiner conducted a hearing and concluded that:
3. There have been approximately seven (7) incidents of disturbances at or immediately adjacent to the licensed establishment between July 1, 2010 and the present, including but not limited to drugs, fights, loitering, loud noise and disorderly operations.(Hearing Examiner's Proposed Op., 5/1/13, at 40-41.) The hearing examiner recommended refusal of Varrone's Application. On May 1, 2013, the PLCB reviewed the hearing record and refused Varrone's Application of Restaurant Liquor License No. R-12917 for the licensing term effective July 1, 2012.
4. The renewal application was late-filed pursuant to Section 470(a) of the Liquor Code (47 P.S. §4-470(a)).
5. [Varrone] pled guilty to one (1) count of Use/Possession of Drug Paraphernalia and one (1) count of Intentional Possession of a Controlled Substance.
6. [Varrone] has abused the privilege of holding a license.
7. The application for renewal of Restaurant Liquor License No. R-12917 should be DENIED.
Varrone appealed to the trial court, which held a de novo hearing on July 1, 2013. The trial court accepted into evidence the PLCB's hearing record and took additional testimony. The trial court found that Varrone's license Application was untimely filed with the PLCB, various incidents of disturbance occurred at the premises, and Varrone pled guilty to two violations of The Controlled Substances, Drug, Device and Cosmetic Act. By order of September 10, 2013, the trial court sustained the decision of the PLCB and denied Varrone's Application. Varrone appealed to this court.
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§780-101 - 780-144.
Our review is limited to a determination of whether the trial court's findings are supported by substantial evidence and whether the trial court abused its discretion or committed an error of law. Pennsylvania Liquor Control Board v. Bartosh, 730 A.2d 1029, 1032 n.2 (Pa. Cmwlth. 1999).
Varrone raises numerous issues in his statement of questions involved but fails to address them in the argument section of his brief; thus, they are waived. Purple Orchid, Inc. v. Pennsylvania State Police, 813 A.2d 801, 804 (Pa. 2002).
In the argument section of his brief, Varrone initially contends that the trial court erred in not holding a de novo hearing. Varrone states that the trial court hearing was limited only to Varrone's brief testimony and the PLCB failed to provide any testimony disputing Varrone's case, only improperly introducing the record before the hearing examiner as evidence. We conclude that the trial court conducted a proper de novo hearing pursuant to section 464 of the Liquor Code, 47 P.S. §4-464.
At the trial court hearing, the PLCB introduced, and the trial court admitted, the record before the hearing examiner. In Ball Park's Main Course, Inc. v. Pennsylvania Liquor Control Board, 641 A.2d 713, 718 (Pa. Cmwlth. 1994), this court stated:
[A] rule that the proceedings before the [PLCB] and its examiner are inadmissible, or are not "proper," before the trial court has never been applied by this [c]ourt, because such a rule would simply preclude the trial court from reviewing the propriety of a [PLCB] order, the very task which a licensee appealing that order has asked the trial court to undertake. We, therefore, reject Licensee's arguments that it was denied a hearing de novo in accordance with [s]ection 464 of the [Liquor] Code. 47 P.S. §4-464.The trial court is permitted to admit the prior proceedings into evidence and is not required to rehear the entire case on appeal. See id. at 717-18. Therefore, the trial properly admitted the proceedings before the hearing examiner in accordance with section 464 of the Liquor Code, 47 P.S. §4-464.
Varrone also contends that the trial court erred in finding that he filed the Application late because the PLCB did not show when Varrone's license expired. Section 470(a) of the Liquor Code, provides that "[a]ll applications for renewal of licenses . . . shall be filed . . . at least sixty days before the expiration date of same." 47 P.S. §4-470(a). Therefore, because Varrone sought a renewal effective July 1, 2012, he needed to file the Application by May 2, 2012. The record reflects that Varrone filed the Application on October 17, 2012. (Cmwlth. Ex. B1.) The trial court did not err in determining that the Application was late.
Significantly, Varrone wrote in section 16 of the renewal application, titled "Late Filing Comments," that the establishment was "CLOSED SINCE 2010 - NUICNSE [sic] BAR." (Cmwlth. Ex. B1.) Thus, Varrone admitted to the late filing. --------
Finally, Varrone argues that the trial court erred in denying the transfer and the renewal of the license. Varrone contends the denial of the transfer has caused a hardship for the community. However, Varrone did not raise the license transfer issue before the PLCB or the trial court and, therefore, it is waived. See Russell v. Donnelly, 827 A.2d 535, 536 (Pa. Cmwlth. 2003) (concluding that issues raised for the first time in a party's brief will not be considered).
Regarding the license renewal, Varrone does not address the merits of the refusal by the PLCB or the trial court in his brief to this court. Accordingly, those arguments are waived. See Condemnation ex rel. Commonwealth, Department of Transportation, 76 A.3d 101, 106 n.8 (Pa. Cmwlth. 2013) (stating that issues not developed in the argument section of a brief are waived), appeal denied, 86 A.3d 234 (Pa. 2014).
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 1st day of July, 2014, we hereby affirm the September 10, 2013, order of the Court of Common Pleas of Washington County.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge