In Re: Appeal of Hotel Liquor License H-2892 v. Tabs Entertainment, Inc., T/A Tabs Tavern and Inn , 2015 Pa. Commw. LEXIS 435 ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: :
Appeal of Hotel Liquor License :
#H-2892 :
: No. 411 C.D. 2015
v. :
: Argued: September 14, 2015
Tabs Entertainment, Inc., T/A Tabs :
Tavern and Inn, :
Appellant :
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION BY
JUDGE McCULLOUGH FILED: October 8, 2015
TABS Entertainment, Inc., trading as TABS Tavern and Inn (TABS),
appeals from the December 5, 2014 order of the Court of Common Pleas of Monroe
County (trial court), which affirmed a decision of the Pennsylvania Liquor Control
Board (Board) denying TABS’ application to renew a liquor license.
TABS owns a hotel liquor license for premises it leases at 370 Route
196, Tobyhanna, Monroe County. Robert Mathews is currently the sole shareholder,
president, and manager of TABS. On June 6, 2012, Mathews purchased one hundred
percent of TABS’ shares from Jahan Tabatabaie after the bar had been closed for one
and a half years. On February 4, 2013, the Board approved Mathews’ application for
Notice of Change in Business Structure. Mathews operated the bar and restaurant
under the name “The Doo Wop Lounge,” and changed the atmosphere to attract an
older, more “respectful” clientele. On the official license, Mathews was listed as the
“owner,” the Doo Wop Lounge as the “business name,” and TABS as the “licensee.”
In June 2014, Mathews closed the bar due to ongoing health issues. (Findings of Fact
(F.F.) at Nos. 1-4; Reproduced Record (R.R.) at 99a, 140a, 211a-12a.)
By letter dated September 20, 2013, the Board notified TABS that it
objected to the renewal of its license for the period effective October 1, 2013. The
Board asserted that from October 27, 2008, to February 1, 2010, during Tabatabaie’s
ownership, TABS received seven citations to which it admitted the violations.
Notably, four of the adjudicated citations involved instances where TABS issued
checks to vendors to purchase malt or brewed beverages and had insufficient funds to
cover the payments. The Board also asserted that TABS, under Mathews’ ownership,
violated a Conditional Licensing Agreement (CLA) dated April 20, 2011, and signed
by Tabatabaie. Specifically, the Board alleged that TABS and Mathews breached the
CLA in the following particulars: failure to become compliant with the Responsible
Alcohol Management Program (RAMP); failure to maintain and enforce a written
barred patrons list; failure to employ at least one security guard to work on the
premises on Friday and Saturday nights; and failure to ensure sufficient funds to pay
all vendors. (F.F. at Nos. 7-8, 11.)
With respect to the latest-mentioned violation of the CLA, the Board
sent Mathews and TABS thirty insufficient fund letters from December 19, 2012, to
October 2, 2013, listing instances where TABS issued checks to various distributors
for the purchase of malt or brewed beverages and had insufficient funds for payment.1
1
The reproduced record does not contain all of the letters, but contains a vast majority of
them, and shows that the amounts of the returned checks were as follows: December 10, 2012
($185.98); December 10, 2012 ($230.78); April 26, 2013 ($223.03); May 21, 2013 ($314.08); May
28, 2013 ($277.56); May 28, 2013 ($333.79); May 29, 2013 ($40.70); June 21, 2013 ($331.04);
(Footnote continued on next page…)
2
The letters stated that TABS had ten days to make full payment. In turn, TABS failed
to remedy six of its dishonored checks by the time of the Board’s December 2013
hearing and the matters were referred to the Pennsylvania State Police, Bureau of
Liquor Control Enforcement. (F.F. at No. 18.)
A hearing examiner convened a hearing on December 27, 2013. By
order dated March 19, 2014, the Board denied TABS’ application to renew its liquor
license. When TABS filed an appeal to the trial court, the Board issued an opinion in
support of its order. (R.R. at 153a-83a.)
Before the trial court, the Board introduced into evidence various
documents, including the notes of testimony from the hearing, exhibits submitted to
the hearing examiner, and the Board’s opinion. Mathews testified on behalf of TABS
and introduced into evidence documents and letters that he sent to the Board. (Trial
court op. at 12.)
In a comprehensive opinion, the trial court detailed the evidence
presented in its findings of fact and engaged in a thorough analysis explaining why
denial of TABS’ application for license renewal was warranted. Particularly, the trial
court found as fact that the adjudicated citations, specifically those related to
insufficient funds, were part of TABS’ history as licensee and that Mathews was
bound by this history when he purchased TABS. The trial court further found that
(continued…)
June 25, 2013 ($440.96); June 28, 2013 ($234.63); July 5, 2013 ($294.25); July 5, 2013 ($380.37);
July 11, 2013 ($559.79); July 19, 2013 ($557.76); July 26, 2013 ($362.22); August 6, 2013
($638.97); August 6, 2013 ($811.36); August 19, 2013 ($435.98); August 20, 2013 ($591.23);
August 27, 2013 ($546.20); August 30, 2013 ($468.17); September 4, 2013 ($522.95); September 5,
2013 ($696.84); September 6, 2013 ($460.25). (R.R. at 102a-24a.)
3
Mathews violated the CLA’s requirement that the establishment maintain a barred
patrons list and also its requirement that security personnel wear clothing identifying
them as security. Finally, the trial court found that Mathews violated two other
conditions of the CLA: he failed to obtain proper RAMP certification and failed, on
numerous occasions, to ensure that sufficient funds were available to pay vendors.
(Trial court op. at 16-19.) Based on these findings, the trial court determined that the
above-mentioned adjudicated citations and breaches of the CLA were sufficient to
support nonrenewal and that Mathews failed to take adequate corrective measures.
(Trial court op. at 12-20.)
Upon our independent review, we conclude that the trial court’s findings
are supported by substantial evidence and that its legal conclusion is free from error.
See Section 470(a) of the Liquor Code (Code),2 47 P.S. §4-470(a) (stating that breach
of a CLA “will be sufficient cause. . . for the nonrenewal of the license”); St.
Nicholas Greek Catholic Russian Aid Society v. Pennsylvania Liquor Control Board,
41 A.3d 953, 959-60 (Pa. Cmwlth. 2012) (stating that “even a single past citation or
Code violation is sufficient to support a decision refusing to renew a license.”). See
also Pennsylvania Liquor Control Board v. Bartosh, 730 A.2d 1029, 1033 (Pa.
Cmwlth. 1999) (“This Court has consistently held that regardless of when they occur
the [Board or the trial court] may consider all code violations committed by a licensee
in determining whether to renew a liquor license.”).
Of particular significance are the facts that TABS has four adjudicated
citations for failing to have sufficient funds to pay vendors for malt or brewed
beverages; TABS entered into a CLA, promising to have sufficient funds to pay all
2
Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§1-101—10-1001.
4
vendors; and that TABS, while operating under Mathews’ ownership, violated the
CLA on thirty occasions by having insufficient funds to pay for malt or brewed
beverages. (Trial court op. at 18-19.) See St. Nicholas, 41 A.3d at 956 (stating that a
trial court may consider a licensee’s entire history to determine whether there is a
discernable pattern of violations).
The trial court’s analysis was thorough and legally correct. We discuss
the issues that TABS raises in this appeal.
“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, 41 A.3d at 954 n.1. On appeal to this Court, TABS advances, in a cursory
fashion, six arguments in support of its chief contention that the trial court abused its
discretion in not renewing TABS’ liquor license.
When a party appeals the decision of the Board, the trial court hears the
appeal de novo and makes its own findings of fact and conclusions of law. The trial
court must receive the record of the proceedings before the Board, if it is offered, and
is permitted to take additional evidence. Todd’s By The Bridge, Inc. v. Pennsylvania
Liquor Control Board, 74 A.3d 287, 295-96 (Pa. Cmwlth. 2013). As the ultimate
fact-finder, the trial court is empowered to determine the weight and credibility of the
evidence, resolve conflicts in the evidence, and is free to reject even uncontradicted
testimony. See St. Nicholas, 41 A.3d at 960; Two Sophia’s, Inc. v. Pennsylvania
Liquor Control Board, 799 A.2d 917, 922 (Pa. Cmwlth. 2002).
First, TABS asserts that the trial court erred in considering TABS’ seven
adjudicated citations, contending that “very little, if any, weight should be given to
this history, since ownership of TABS has changed and at the time of the hearing, no
5
citations had been adjudicated against TABS during the period of the new
ownership.” (TABS’ brief at 16-17.)
However, it is well-established that in determining whether to renew a
liquor license, the trial court may consider all citations, regardless of when they
occurred, Bartosh, 730 A.2d at 1033, and the trial court has exclusive authority over
the weight it assigns to the evidence. See St. Nicholas, 41 A.3d at 960; Two Sophia’s,
Inc., 799 A.2d at 922. Because TABS’ argument merely challenges the weight the
trial court provided to evidence which is properly considered in liquor license
renewal matters, it must fail. In any event, it is apparent from the trial court’s opinion
that the trial court placed relatively minor weight on the adjudicated citations and was
predominately concerned with TABS’ violations of the CLA while Mathews was the
owner. (See Trial court op. at 16-19.)
Moreover, as the trial court observed, the transaction between
Tabatabaie and Mathews effectuated a change of ownership only – as opposed to
transferring the license to a new entity and at a new location. Consequently,
Mathews was bound by the terms of the CLA even though it was signed by
Tabatabaie. (Trial court op. at 16-17.) See R.R. at 92a (the CLA) (“Failure to adhere
to this Agreement may result in citation(s) by the Bureau, and/or nonrenewal of this
license by the Board. These terms will remain in effect both on the license and on the
premises unless and until a subsequent agreement is reached with the Board
rescinding these restrictions or until the license is transferred to a new owner for use
at a new location.”); Derry Street Pub, Inc. v. Pennsylvania State Police, 111 A.3d
1240, 1248-49 (Pa. Cmwlth. 2015) (“We interpret the CLA’s express language to
mean that it remains in effect unless and until a subsequent agreement or a grant of
rescission by the Board”); Todd’s By The Bridge, 74 A.3d at 291 (reflecting the
6
Board’s conclusion that a new owner is bound by the terms of a CLA entered into by
a prior owner). Nonetheless, we note, as did the trial court, that Mathews could have
petitioned the Board to alter the terms of the CLA based upon the changes he brought
to the atmosphere and clientele of his bar. (Trial court op. at 17.)
Second, TABS contends that the trial court erred in finding that TABS
contravened the CLA’s requirement that TABS maintain a written barred patrons list.
TABS asserts that Mathews did not have any barred patrons during his ownership
and, thus, there were no names to put on the list. The trial court ably disposed of this
argument:
[TABS] did not meet the CLA’s requirement that the
establishment maintain a barred patrons list. [Mathews]
stated in both the [Board] hearing in December 2013 and in
the hearing in June 2014 that he did not keep a barred
patrons list because his business, “The Doo Wop Lounge,”
did not have any barred patrons. However, [Mathews] did
not ask [Tabatabaie] if there had been a barred patrons list
from the previous business, even though [Mathews] was
“well aware” of the previous business’s reputation and
violent patrons. [Mathews’] problem here is that he did not
technically comply with the CLA. It appears that under his
management, troublesome patrons stayed away, so he had
no one to add to the “barred patrons list.” However, in
compliance with the CLA, he should have maintained such
a list, including people who had been violent on or about
the premises in the past. It was not unreasonable for the
Board to require this safety precaution, considering the
bar’s history and the possibility that violent patrons might
return.
(Trial court op. at 16; see also F.F. at No. 27.)
Given the trial court’s findings and analysis, TABS’ argument merely
seeks to excuse its non-compliance with the CLA and contests the weight to be
afforded to the evidence, which is a matter exclusively reserved to the trial court.
7
Third, TABS argues that it had security personnel at the premises, but
admits that it did not comply with the CLA’s requirement that its security personnel
be identifiable by clothing. TABS maintains that it did not require its security
personnel to wear such attire because it “would scare off the new clientele” and make
them “believe that something was wrong.” (TABS’ brief at 17.) Fourth, TABS
admits that it did not complete the final step of RAMP certification, i.e. the filing of
an affidavit, in violation of the CLA, but maintains that this error could have been
easily corrected. On this basis, TABS contends that these two breaches of the CLA
were de minimis.
Again, TABS’ arguments pertain to the trial court’s determinations
regarding the weight of the evidence. The evidence established that TABS breached
the CLA with respect to security attire and RAMP certification. Accordingly, the
trial court acted within its discretion in affording weight to TABS’ noncompliance
with the CLA in these regards.
Fifth, TABS asserts that the trial court should not have considered the
thirty letters from the Board notifying Mathews that TABS had checks returned for
insufficient funds. TABS claims that this evidence was irrelevant because the letters
did not result in an adjudicated citation.
We disagree. The letters established that TABS breached the CLA’s
requirement that it have sufficient funds to pay all vendors. See Derry Street Pub,
Inc., 111 A.3d at 1255 (reiterating that breach of a CLA “will be sufficient cause . . .
for the nonrenewal of the license”) (quoting section 470(a) of the Code). Once more,
the trial court was free to consider this evidence and afford it evidentiary weight. We
note that Mathews’ repeated failure to issue honorable checks was a predominate
8
factor in the trial court’s decision to uphold the denial of TABS’ renewal application.
As the trial court explained:
Between December 19, 2012, and October 2, 2013, the
Board sent [Mathews] a total of 30 letters concerning
checks returned for insufficient funds. As Licensee had
citations pertaining to insufficient funds in the past, this
issue was detailed in the CLA. These letters were all sent
after [Mathews’] purchase of the shares, and the sheer
number of them indicates that this was a consistent problem
during the entirety of [Mathews’] management.
(Trial court op. at 18-19.)
Sixth, and finally, TABS contends that the trial court “failed to consider
or did not give proper weight to . . . the corrective measures TABS accomplished
after [Mathews] became the owner,” i.e., his change to the bar’s atmosphere and
clientele. (TABS’ brief at 18.)
To the contrary, the trial court expressly acknowledged Mathews’ “good
intentions” and “successful” changes to TABS “to attract a law-abiding crowd,” but
nevertheless found that this evidence was outweighed by TABS’ citations, and, more
importantly, the numerous violations of the CLA that occurred while TABS was
under Mathew’s ownership. (Trial court op. at 19-20.) As the fact-finder, the trial
court acted within its discretion in making this determination.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the exhaustive and well-reasoned opinion of the trial court, we
conclude that there is no merit to TABS’ appellate issues, which simply attack the
trial court’s determinations of evidentiary weight. Accordingly, we affirm.
________________________________
PATRICIA A. McCULLOUGH, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: :
Appeal of Hotel Liquor License :
#H-2892 :
: No. 411 C.D. 2015
v. :
:
Tabs Entertainment, Inc., T/A Tabs :
Tavern and Inn, :
Appellant :
ORDER
AND NOW, this 8th day of October, 2015, the December 5, 2014
order of the Court of Common Pleas of Monroe County is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge