Opinion
No. 500 C.D. 2012
05-30-2013
Sharyn L. Williams and Angelo F. Perigo v. Pennsylvania Liquor Control Board, Appellant
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
This appeal involves an application for renewal of Restaurant Liquor License No. R-14384. The Pennsylvania Liquor Control Board (LCB) denied the renewal application of Appellees Sharyn L. Williams and Angelo F. Perigo (Licensees), t/a the Sharwood Lounge (Sharwood). Licensees appealed to the Allegheny County Court of Common Pleas (trial court), which reversed the LCB and granted the renewal of the license. We affirm the trial court.
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. In re License Renewal Application of Quippan Club License #C-4110 LID #1889, 806 A.2d 491 (Pa. Cmwlth. 2002).
The Sharwood is a small bar located at 470 Broadway Avenue, in Pitcairn, Pennsylvania. The Sharwood leases its space in a building that has eight apartments, both directly above and adjacent to the bar; the entrance to the apartments is at 468 Broadway Avenue, adjacent to the bar entrance. Inside the Sharwood, there is a bar with bar stools and a pool table on one end, and on the other end, a small kitchen and dining area and a hallway that leads to the back where the restrooms are located.
Sharyn Williams has owned the Sharwood for 38 years, and typically cooks and bartends there from 11 a.m. until 4 p.m. Angelo Perigo is the bar manager and "part-time owner" of the Sharwood; he began keeping the books and providing maintenance there approximately four years ago, and in the four-month period prior to the administrative hearing, he also served as bartender, typically working from 6 p.m. until closing, three to four days a week. Notably, the Sharwood has received only one citation from the LCB in 38 years, a citation for "after hours," dating back to 1974, the first year Williams owned the business. (November 22, 2011 Opinion of LCB (LCB Opinion), Findings of Fact (F.F.) ¶¶127-130, Reproduced Record (R.R.) at 86a-87a.)
Licensees filed a timely renewal application with the LCB for the renewal period June 1, 2011, through May 31, 2013. The LCB's Bureau of Licensing (Bureau) objected to the renewal under Section 470 of the Liquor Code, 47 P.S. § 4-470, based upon approximately twelve (12) incidents of disturbances at or immediately adjacent to the Sharwood. An administrative hearing was conducted on June 30, 2011 in Pittsburgh. Pitcairn Police Officers Miller, Loalbo, and Panigal testified at the hearing, as well as Pitcairn Police Chief Hockenberry. Also, Detective Flaherty from the Allegheny County District Attorney's Office testified as to his activities as the task force officer on a Narcotics Enforcement Team that conducted an investigation at the Sharwood at the request of Chief Hockenberry. Detective Feeney from the Allegheny County Police Homicide Unit testified regarding the investigation of a shooting incident that occurred in the apartment doorway next door to the Sharwood entrance. The evidence presented at the hearing as to the 12 incidents of disturbances can be summarized as follows:
Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 1-101 - 10-1001.
January 1, 2010 - Officer Miller testified that he was dispatched to the Sharwood on New Year's Eve upon report of a fight and upon arrival, at 1:54 a.m., he observed a woman bleeding from the head, who had reportedly been struck with a chair. (June 30, 2011 Hearing Transcript (H.T.), R.R. at 139a-140a.) No charges were filed in connection with the woman inside the Sharwood, but another woman who was observed coming out of the Sharwood, and then attempting to re-enter to retrieve her purse, was cited for public drunkenness. (H.T., R.R. at 141a.)
March 26, 2010 - At 1:18 a.m., Officer Miller received a call that women were fighting at the Sharwood, and upon arrival, he observed a visibly intoxicated man with a ripped shirt, with a head injury, leaving the bar, barely able to walk, who was with the same woman who had been previously found bleeding inside the Sharwood; both the man and the woman were arrested and charged with public intoxication. (H.T., R.R. at 148a-149a.) Officer Miller did not enter the Sharwood on this occasion. (H.T., R.R. at 150a.)
April 22, 2010 - At 12:39 a.m., two women were observed fighting outside the Sharwood, but no arrests were made or charges filed. (H.T., R.R. at 153a-154a.)
June 16, 2010 - At 11:42 p.m., there was a report of a fight between two men at the Sharwood; the men were gone when the police arrived and no charges were filed, but Officer Miller testified that a bartender named Linda told him that she had called the police, but that she had never seen the men who were fighting inside the Sharwood before; Officer Miller
wrote in his report that "the people in the bar all said they never saw these guys before, and that's how it always goes down there." (H.T., R.R. at 159a-160a.)
June 27, 2010 - Officer Loalbo testified that at 2:15 a.m., the police arrived after a report of an assault inside the Sharwood (man being hit with a pool cue), but the victim of the assault fled when he heard the police sirens. The Sharwood later provided the police with a videotape of the incident but the victim declined to prosecute the individual who struck him, so no charges were filed. (H.T., R.R. at 170a-171a.)
December 11, 2010 - Officer Panigal testified that at 12:34 a.m., he observed a car pull up a few doors down from the Sharwood, and a passenger exited the car and walked into the Sharwood, exited two minutes later, and got back into the car. Officer Panigal subsequently issued a traffic stop on the vehicle and recovered a rock of crack cocaine in the front pocket of the passenger who had gone in and out of the Sharwood. Officer Panigal did not enter the Sharwood on that occasion. (H.T., R.R. at 177a.)
December 20, 2010 - At 10:20 p.m., Officer Panigal was dispatched to the Sharwood for an assault with injuries (H.T. at 185a.) A man was seated at the bar, bleeding, with a visibly broken nose and a large amount of blood on his clothes and on the floor. The man had been unconscious for about five minutes. The bartender told Officer Panigal that someone had hit the man in the face and stolen his money off the bar. Officer Panigal testified that he overheard the bartender telling Angelo Perigo that she did not want to call the police, but had to because the man was not waking up. Officer Panigal obtained a videotape from Angelo Perigo, and the suspect was charged with aggravated assault. (H.T., R.R. at 187a.)
March 26, 2010, March 29, 2010, April 8, 2010, and April 12, 2010 - Detective Flaherty testified that on each of these dates, various confidential informants working with the District Attorney's narcotics task force entered the Sharwood, and made small purchases of crack cocaine from individuals inside the bar. (H.T., R.R. at 202a-220a.) Detective Flaherty stated that he had no evidence that any employee inside the Sharwood was dealing drugs inside the bar, and stated that
most of the drug transactions occurred in the bathroom. (H.T., R.R. at 224a-225a.)
June 18, 2011 - Detective Feeney testified that a shooting incident occurred on the first floor landing of the steps leading into the apartments at 468 Broadway Avenue, next door to the Sharwood. One person involved in the incident, who lives in the apartments, had reportedly exited the Sharwood, followed by another individual, and an altercation in the street ensued and culminated in the shooting. (H.T., R.R. at 233a-234a, 236a.) When police officers requested a videotape from the Sharwood, their request was refused, and they were told that the tape would not be handed over to them because it would be used against them at the license renewal hearing. (H.T., R.R. at 234a.)
Mr. Perigo testified that the police had been told that the video would have nothing to do with the shooting because it didn't happen in the Sharwood, so, in his opinion, there was no reason to provide it. (H.T., R.R. at 261a.) Detective Feeney testified that the police had intended to obtain a search warrant for the video, but subsequently dropped that aspect of the investigation, because additional information was received that obviated the need for the video. (H.T., R.R. at 235a.)
The hearing examiner recommended renewal of the license with the condition that the Sharwood be closed daily no later than 11:30 p.m. (Recommended Opinion of Hearing Examiner, Proposed Conclusions of Law, R.R. at 60a.) Based upon its review of the record from the hearing, the LCB, by Order dated October 12, 2011, refused Licensees' application for renewal. Licensees then appealed to the trial court. In its 36-page opinion, the LCB made 143 findings of fact, and found that Licensees knew or should have known about continuing criminal activity at the establishment, and failed to take substantial, affirmative steps to prevent such activities. (LCB Opinion, R.R. at 98a.) The LCB found especially troubling that Licensees were "consistently less than cooperative with law enforcement in the investigation of the incidents." (LCB Opinion, R.R. at 95a.)
Following a de novo hearing conducted on February 17, 2012, where Licensees again testified, the trial court issued its opinion (Tr. Ct. Op.), finding substantial evidence to warrant the renewal of the license. The trial court adopted all of the LCB's Findings of Fact except those suggesting that Licensees were uncooperative with the police. Upon de novo review, the trial court may exercise its statutory discretion to make findings of fact and conclusions of law, and to sustain, alter, change or modify any action of the LCB, whether or not it makes findings that are materially different from those found by the LCB. Goodfellas, Inc. v. Pennsylvania Liquor Control Board, 921 A.2d 559 (Pa. Cmwlth.), appeal denied, 594 Pa. 700, 934 A.2d 1279 (2007). Our Court has found an abuse of discretion where a trial court ignored "substantial, uncontradicted evidence in the record, and the strong inferences drawn from it...." Commonwealth Dep't. of Transp., Bureau of Motor Vehicles v. Mazzarini, 919 A.2d 295, 302 (Pa. Cmwlth. 2007) (emphasis in original).
The trial court adopted all of the findings of fact in the LCB Opinion except F.F. ¶¶28, 31, 49-50, and 103-105 (Tr. Ct. Op., R.R. at 121a.) --------
The LCB raises two issues on appeal to this Court. First, the LCB argues that the trial court erred by finding that the numerous incidents of fighting and drug sales on the licensed premises were not related to the manner in which the Licensees operated the Sharwood. Under the Liquor Code, renewal of a liquor license is not automatic. Section 470(a.1)(4) of the Code provides that the LCB may, in its discretion, refuse to renew a liquor license:
due to the manner in which this or another licensed premises was operated while the licensee...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. When the conduct under review is not a violation under the Liquor Code and its attendant laws and regulations, a licensee is liable only if he knew or should have known of the illegal activity and if he fails to prove substantial affirmative measures taken to eliminate a known pattern of activity. Pennsylvania Liquor Control Board v. TLK, Inc., 518 Pa. 500, 544 A.2d 931 (1988).
The trial court examined six occasions from January 1, 2010 until December 20, 2010 when Pitcairn Police responded to the Sharwood for incidents and/or fights, noting that none of these incidents involved guns, knives, or similar types of weapons that would have been discovered with a metal detector (a police recommendation that the Sharwood did not implement), and stating that the LCB does not appear to have given any major significance to these incidents. (Tr. Ct. Op., R.R. at 123a.) The trial court stated that the thrust of the rationale for the LCB's denial to renew was the June 18, 2011 shooting and the four drug deals. The trial court noted that there was no evidence that Licensees or employees of Licensees were directly involved in the drug activity, which occurred behind closed bathroom doors. Before both the hearing examiner and the trial court, Mr. Perigo testified that he was unaware of any drug dealing activity until July 2010, when he received a letter from the LCB indicating that the Sharwood was on the nuisance bar list and directing him to a meeting at the District Attorney's office with local law enforcement to discuss necessary steps to correct problems at the bar. (H.T., R.R. at 247a-248a; February 17, 2012 Allegheny Court of Common Pleas Hearing Transcript (Tr. Ct. H.T.), R.R. at 55a.) The trial court discussed the June 18, 2011 shooting incident, and concluded that the record lacks evidence to connect the shooting to the Sharwood or the manner in which the bar was operated. (Tr. Ct. Op., R.R. at 128a.) The trial court's findings that the significant incidents of disturbances were not connected to the operation of the bar and, with regard to the sale of drugs inside the Sharwood, that nothing was occurring in front of Licensees or their employees that would have alerted them to this activity, are supported by substantial evidence.
LCB further argues that the trial court erred by concluding that the Licensees have responded to the pattern of criminal activity in a timely and substantial manner. We disagree. In its opinion, the trial court stated that within one month of Mr. Perigo's meeting with authorities, Licensees began to implement changes to address problems. The LCB found that subsequent to his meeting with the authorities, Mr. Perigo posted a list of names of known drug dealers, supplied by the Pitcairn Police Department, behind the bar and subsequently added more names to the list, and barred all such individuals from the establishment. (LCB Opinion, Findings of Fact (F.F.) ¶¶118-119, R.R. at 85a.) Mr. Perigo stated that he removed the stalls as well as the door to the men's room upon learning of the drug activity. (F.F. ¶123.) Before the trial court, Mr. Perigo testified that he installed a video camera system with four cameras at the Sharwood, and cut back the hours of operation, no longer staying open until 2:30, but instead giving last call at 12:45 so that everything could be wrapped up by 1:00 AM. (Tr. Ct. H.T., R.R. at 354a-355a.) Only one person at a time is permitted in the men's and ladies' rooms, and a written policy on the front door of the Sharwood informs patrons that IDs are required and that Licensees will prosecute; additional signs indicate that anyone starting a fight, or using, buying or selling drugs will be banned for life. (Id.) Mr. Perigo requested that the Pitcairn Police randomly walk through the bar as part of their normal routine. (Tr. Ct. H.T., R.R. at 358a.) Significantly, the trial court stated that as a result of the corrective actions taken by the Licensees, aside from the June 2011 shooting incident that occurred in front of the apartments next door, Licenses have no knowledge of any subsequent arrests in the Sharwood. (Trial Court Opinion, R.R. at 127a.)
The trial court noted various witnesses' testimony elicited during both hearings that in recent years Pitcairn has declined, with empty storefronts, closed businesses, high unemployment, and increased crime; Officer Panigal testified that there was a significant drug problem in Pitcairn, and that it was not limited to any particular location. (Tr. Ct. Op, R.R. at 124a.; H.T. at 184a.) Although a licensee is required to take substantial affirmative measures to prevent misconduct, a licensee is not required to do everything possible to prevent criminal activity on the premises, act as its own police force, or close its business. I.B.P.O.E. of West Mount Vernon Lodge 151 v. Pennsylvania Liquor Control Board, 969 A.2d 642 (Pa. Cmwlth. 2009).
Here, the record contains ample support for the trial court's finding that Licensees took timely, substantial, affirmative steps to remediate a pattern of criminal activity. Accordingly, the order of the trial court is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 30th day of May, 2013, the order of the Allegheny County Court of Common Pleas in the above matter is AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge