D. Weaver Corporation, t/d/b/a Airways Lounge v. PLCB ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
D. Weaver Corporation, t/d/b/a :
Airways Lounge, :
Appellant :
:
v. : No. 1863 C.D. 2014
: SUBMITTED: August 14, 2015
Pennsylvania Liquor Control Board :
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE LEADBETTER FILED: April 18, 2016
D. Weaver Corporation, t/b/d/a Airways Lounge (Weaver), appeals from the
September 16, 2014 Order of the Court of Common Pleas of Venango County
(common pleas) that sustained the decision of the Pennsylvania Liquor Control
Board (PLCB) not to renew Weaver’s liquor license. On appeal here, Weaver
contends that common pleas erred when it: “plac[ed] too much emphasis on old
citations for which punishments have already been carried out”; “failed to consider
extensive remedial measures taken by [Weaver]”; and, “failed to consider that
1
This case was assigned to the opinion writer on or before January 31, 2016, when Judge
Leadbetter assumed the status of senior judge.
none of the violations . . . cited involved any assaultive behavior, drug activity,
criminal activity and/or any bodily injury.” (Weaver’s Br. at 4).
Weaver applied to the PLCB for the renewal of its liquor license for
Weaver’s restaurant/lounge for the period of August 1, 2013 through July 31,
2015. PLCB advised Weaver that it objected to the renewal and ordered a hearing
on the application in order to determine if eighteen prior citations detailing twenty-
one Liquor Code2 violations constituted activity egregious enough to warrant non-
renewal. After a hearing before a PLCB hearing examiner, the PLCB denied
Weaver’s renewal application. Weaver appealed to common pleas which held a de
novo hearing. At the hearing, Weaver offered additional evidence beyond that
adduced before the PLCB hearing examiner including Weaver’s support for youth
sports groups. After reviewing the evidence presented by Weaver both before
common pleas and before the PLCB hearing examiner, as well as all prior
citations, adjudications and sanctions, common pleas adopted the PLCB’s findings
of fact and sustained the PLCB’s denial of Weaver’s liquor license renewal
application. Weaver filed a notice of appeal to this Court and filed a Statement of
Errors Complained of on Appeal with common pleas, which on December 31,
2014, duly issued an opinion in support of its September 16, 2014 Order.
Initially, we note that Weaver has admitted to the violations alleged in all
eighteen citations cited by PLCB as the basis for the non-renewal of Weaver’s
2
Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 1-101 - 10-101.
2
license. (Weaver’s Br. at 9 and Appx. A; Ex. B-5).3 The five most recent citations
included two for serving alcohol to minors, two for serving alcohol to visibly
intoxicated persons, and one for selling alcohol during a license suspension. (Ex.
B-5). The thirteen previous citations included violations for serving alcohol to
visibly intoxicated persons, selling alcohol without a license, permitting patrons to
remain on the premises after hours, offering illegal promotional contests, operating
in a noisy or disorderly manner, and over one hundred separate instances of
permitting loud music to be heard off the licensed premises. Id.
We outlined above Weaver’s arguments to this Court on appeal.4 The gist of
the arguments is that as common pleas hears the appeal from PLCB’s hearing
examiner de novo, common pleas must give less weight to Weaver’s citation
history than did the PLCB. This argument turns common pleas’ review function on
its head. We have held that common pleas may substitute its discretion for that of
the PLCB when it hears an appeal de novo of the non-renewal of a liquor license,
even where common pleas makes the same findings of fact. I.B.P.O.E. of West
Mount Vernon Lodge 151 v. Pa. Liquor Control Bd., 969 A.2d 642, 647 (Pa.
Cmwlth. 2009); Pa. Liquor Control Bd. v. Bartosh, 730 A.2d 1029, 1032 (Pa.
Cmwlth. 1999). Essentially, Weaver argues that because common pleas may
substitute its discretion, it must do so. This is contrary to our holdings and has no
support in the Liquor Code.
3
Weaver’s Reproduced Record does not contain any of the documents from the
administrative proceedings before the PLCB. Those items are however included in the record
certified to this Court by common pleas. Hence where necessary we cite to the exhibits from the
October 8, 2013 hearing before the PLCB hearing examiner.
4
Based on the issues raised our review of common pleas’ decision is limited to determining
if common pleas abused its discretion.
3
With that said, we will affirm on the basis of the thorough and well-
supported Opinion issued on December 31, 2014 by the Honorable Robert L.
Boyer of the Court of Common Pleas of Venango County. Weaver’s arguments to
this Court are asserted in the Statement of Errors Complained of on Appeal and are
well-answered by Judge Boyer’s Opinion.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Judge
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
D. Weaver Corporation, t/d/b/a :
Airways Lounge, :
Appellant :
:
v. : No. 1863 C.D. 2014
:
Pennsylvania Liquor Control Board :
ORDER
AND NOW, this 18th day of April, 2016, the September 16, 2014
Order of the Court of Common Pleas of Venango County is AFFIRMED on the
basis of the thorough and well-supported Opinion issued on December 31, 2014 by
the Honorable Robert L. Boyer.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Judge