J.W. Troutman, Sr. v. PA LCB ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph W. Troutman, Sr. :
:
v. : No. 1385 C.D. 2017
: Argued: September 12, 2018
Pennsylvania Liquor Control Board, :
:
Appellant :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: January 24, 2019
The Pennsylvania Liquor Control Board (PLCB) appeals from the
August 30, 2017 order of the Court of Common Pleas of McKean County (trial
court), which, following a de novo hearing, sustained the appeal of Joseph W.
Troutman (Licensee) and reversed the PLCB’s denial of the application for
renewal of Hotel Liquor License No. H-6232 (LID No. 63618). In doing so, the
trial court reviewed Licensee’s extensive history of violations but emphasized the
PLCB’s decision to renew the license in 2015 despite that history. The trial court
also emphasized that Licensee’s record after August 1, 2015, was greatly improved
in comparison to that prior history. The PLCB maintains that the trial court erred
and abused its discretion in failing to consider evidence of the citations and
incidents that occurred prior to August 1, 2015, in sustaining Licensee’s appeal.
Facts and Procedural History
Since 2013, Licensee’s history includes 9 adjudicated citations and
about 25 reported disturbances. In May of 2014, during the two-year licensing
period that began August 1, 2013, Licensee entered into a conditional licensing
agreement (CLA). Thereafter, the PLCB conditionally granted the renewal of that
liquor license for the two-year period beginning August 1, 2015, contingent upon
the favorable outcome of two pending citations, which were adjudicated against
Licensee. After an administrative hearing, the PLCB revoked its conditional
approval. Licensee appealed to the trial court, which held a de novo hearing and
reversed the PLCB’s decision and order.
The trial court issued the following Findings of Fact:
1.) Joseph W. Troutman operates an establishment
known as the Hotel Holley located at 153 Main
Street, Bradford, Pennsylvania. . . .
2.) The Hotel Holley is actually comprised of three (3)
areas licensed to sell alcohol. One is the bar or
“back bar” area of the Hotel Holley; the second is
the Holley Express, which is licensed to sell “to-
go” alcoholic beverages but does contain a café
area; and Joe’s Main Street Steakhouse, a full-
service restaurant that also sells alcoholic
beverages. Collectively, these areas shall be
referred to as the “Hotel Holley.” . . .
3.) The Hotel Holley is licensed to sell alcohol under
Hotel Liquor License H-6232. Before the
application of renewal that is the subject of this
matter, the hotel liquor license was set to expire
July 31, 2017.
4.) Renewal had been granted for the subject hotel
liquor license for the period of August 1, 2015 to
July 31, 2017.
2
5.) Renewal was conditioned upon a Conditional
Licensing Agreement (“CLA”) that was
executed May 29, 2014 by Troutman and May
30, 2014 by the PLCB.
6.) The CLA was enacted as part of Troutman
maintaining his hotel liquor license through the
period of August 1, 2013 to July 31, 2015, but it
remained in effect for additional renewals
because it was never terminated.
7.) The important terms of the CLA are quoted below
in relevant part:
***
a. Troutman shall remain compliant with the
responsible alcohol management provisions of
the Liquor Code[1] including, but not limited
to:
i. New employee orientation;
ii. Training for alcohol service personnel;
iii. Manager/owner training;
iv. Displaying of responsible alcohol service
signage; and
v. Certification of compliance by the
Board’s Bureau of Alcohol Education;
b. Troutman shall use a “transaction scan
device,” as that term is defined in the Liquor
Code, to scan the identification of all patrons
entering the premises, notwithstanding the
fact that the patron’s identification was
scanned on a previous occasion. For purposes
1
Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§1-101 – 10-1001.
3
of this section, “occasion” shall mean between
7:00 a.m. and 2:00 a.m. of the following day.
c. Troutman must designate a responsible person
(or persons), who must be present at the
premises and oversee it if the board-approved
manager is not present. This requirement
shall apply between 6:00 p.m. and one-half
(1/2) hour after the time when all patrons are
required to vacate the premises. A record of
the days and hours that the responsible
person(s) is/are overseeing the operation of
the establishment in the absence of the Board-
approved manager shall be maintained as a
business record, subject to section 493(12) of
the Liquor Code, and shall be available upon
request to law enforcement officials, as well
as Board employees and employees at the
Pennsylvania State Police, Bureau of Liquor
Control Enforcement….
***
e. One (1) or more violations of section 493(1)
[of the Liquor Code, which states that it is
unlawful for any licensee or any employee or
agent of such licensee or any other person, to
sell, furnish or give any liquor or malt or
brewed beverages, or to permit any liquor or
malt or brewed beverages to be sold,
furnished or given, to any person visibly
intoxicated, or to any minor], shall be a
violation of this agreement].
f. Troutman shall employ at least two (2)
security guards who will be present and
working at the licensed premises on all
Fridays and Saturdays that the licensed
premises is opened from 8:00 p.m. until one
half-hour after patrons are required to vacate
the premises. Troutman shall also have at
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least two (2) security guards who will be
present and working at the licensed premises
whenever there is live entertainment at the
premises; Live entertainment shall include but
shall not be limited to bands and a disc
jockey. All security personnel shall be
clothed in such a way as to make his/her
status as security personnel readily apparent.
g. Failure to adhere to this agreement may result
in citation(s) by the Bureau and/or non-
renewal of the license by the Board.
8.) Since the effective date of the CLA, Troutman’s
Hotel Liquor License was renewed one (1)
additional time: from August 1, 2015 to July 31,
2017.
9.) From August 1, 2015 to July 31, 2017, there has
been one (1) citation and adjudication known as
No. 15-1595. However, this adjudication regarded
actions that occurred before Troutman’s hotel
liquor license was renewed on August 1, 2015.
10.) Troutman has had nine (9) adjudicated
violations.
11.) Neither one single violation, all occurring
before August 1, 2015, nor their aggregate
prevented Troutman from renewing his hotel
liquor license.
12.) Neither one single violation, all occurring
before August 1, 2015, nor their aggregate
diminished the reputation of Troutman as to
make him an ineligible hotel liquor license
holder as a person of poor or ill repute.
13.) From August 1, 2013 to August 1, 2015 there
were twenty-one (21) disturbances at or near
the Hotel Holley.
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14.) Neither one single disturbance, all occurring
before August 1, 2015, nor their aggregate
prevented Troutman from renewing his hotel
liquor license.
15.) Neither one single disturbance, all occurring
before August 1, 2015, nor their aggregate
diminished the reputation of Troutman as to make
him an ineligible liquor license holder as a person
[of] poor [or] ill repute.
16.) From August 1, 2015 to July 31, 2017, there have
been four (4) disturbances at or near the Hotel
Holley.
17.) The August 2, 2015 incident involved the late
Kimberly Dexter, a homeless woman, who was
intoxicated and drinking a beer on the sidewalk
along Main Street in front of the Hotel Holley. A
Bradford City police officer observed that
Kimberly Dexter was unable to stand and was
sitting in front of the Hotel Holley with scraped
hands and knees, slurring her speech. She was
cited for disorderly conduct and public
drunkenness. No Persons were harmed.
18.) As it relates to the August 2, 2015 incident, there is
no indication that Kimberly Dexter obtained
alcohol from the Hotel Holley. There is no
indication that the Hotel Holley or its employees
served alcohol to a visibly intoxicated person.
19.) The August 8, 2015 incident involved a potential
fight at about 11:30 p.m. in the parking lot across
the street from the Hotel Holley. A Bradford City
police officer on patrol noticed a large crowd
congregating in a parking lot across the street from
the Hotel Holley. The officer heard screaming and
yelling and drove into the parking lot to investigate
what he believed to be a fistfight between two
men. The crowd immediately dispersed including
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the two men suspected of fighting. The only
person who remained was one Louis Colts, who
began yelling at the officer. The officer believed
Louis Colts was intoxicated as he appeared to have
trouble standing and smelled of alcohol. The
officer warned Louis Colts to just leave. Louis
Colts crossed the street and tried to enter the Hotel
Holley through the back entrance (i.e. to the “back
bar”), but was not permitted inside by security.
After being dismissed from the Hotel Holley,
Louis Colts was arrested and cited with public
drunkenness. No one was significantly harmed.
20.) Nothing in the August 8, 2015 incident exhibits or
demonstrates that Louis Colts had become
intoxicated at the Hotel Holley. In fact, it appears
that the employees of the Hotel Holley acted
responsibly by not admitting a person who
appeared to be visibly intoxicated.
21.) On October 21, 2015, a highly intoxicated man
was outside of the McDonald’s restaurant adjacent
to the Hotel Holley. The police responded to the
incident and, according to officers, the man was of
severely diminished cognitive ability. He was
unable to coherently answer any of their questions
and gave a false address. The police report
indicates that the man told officers that he had
been drinking at the Hotel Holley. After the man’s
daughter refused to retrieve him, he was
transported to the Bradford City police station and
placed in a holding cell. A portable breathalyzer
test was conducted and indicated a blood alcohol
level of .247. Notwithstanding, the police did not
believe the man to be in need of any emergency
medical treatment as they did not transport him to
any hospital. No one was harmed in this incident.
22.) As it related to the October 21, 2015 incident,
there is no suggestion as to how much alcohol the
man had consumed at the Hotel Holley, whether he
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had consumed alcohol at other establishments, etc.
There is also no direct evidence to corroborate the
man’s only coherent statement that he had been
drinking at the Hotel Holley.
23.) On May 6, 2016 Jonathon Lee Yeager (“Yeager”)
drove his truck over his friend and fellow patron
Lori Swanson (“Swanson”) who tried to prevent
Yeager from leaving the Hotel Holley.
24.) This incident is subject to a pending civil lawsuit
in [the] McKean County Court of Common Pleas
and the defendants include Troutman and the Hotel
Holley.
25.) Yeager was not charged with a DUI [driving under
the influence] as a result of this incident.
26.) Yeager pled to [1 count of aggravated assault by
vehicle; 1 count of accident involving death or
personal injury while not properly licensed; 1
count of duty to give information or render aid; 1
count of driving while suspended; and 1 count of
reckless driving].
27.) Swanson was severely injured as a result of being
hit by the truck. These injuries included hip
shattering and a broken back in two places. After
surgery, Swanson has plates and screws in her
right side and is unable to bear weight on her left
leg at this time. She is currently wheelchair
bound.
28.) Upon Yeager’s testimony, after the accident,
Yeager fled and consumed three (3) or four (4)
beers over the course of about three (3) hours.
Yeager then had someone drive him to the police
station and turned himself into authorities.
29.) While Yeager was in the Hotel Holley, there is
disputed testimony regarding how much, if any
alcohol, Yeager had.
8
30.) There are two primary witnesses to this event.
Lorie Gault, a bartender at the Hotel Holley who
was off duty but in the bar as a patron on the day
of the incident; and Lori Swanson, who was struck
by the car and is now seeking damages.
31.) At the hearing before this Court, Lorie Gault
testified that Yeager was not drunk, but he was
tired from being up all night before coming into
the bar in the midday. She also testified that
Yeager stated that he consumed alcohol before
reaching the Hotel Holley, but he did not state a
specific quantity or duration of time. She saw
Yeager with a single beer in his hand at the Hotel
Holley over the course of about four (4) hours.
32.) At the administrative hearing, Swanson testified
that Yeager had shots and beers.
33.) Both witnesses may have ulterior motives for their
testimony. However, Swanson’s ulterior motives
are more acute given the pending civil suit against
Troutman and the Hotel Holley.
34.) Before June of 2016, Troutman has made
improvements to the Hotel Holley clientele and
physical structure.
35.) Troutman has begun to operate a steakhouse
restaurant that attracts families and more
upscale diners to the area.
36.) The Hotel Holley has a back parking lot that it
shares with a barbershop. In addition to the
barbershop, there is a Dollar General store at the
end of the block which also has some parking
around the building and there is only a low bar
creating some separation between parking lots.
37.) Across Main Street from the Hotel Holley is a
grocery store and gas station with a large parking
lot.
9
38.) Across Davis Street from the Hotel Holley is a
large parking lot as a part of a “mini-mall” or
shopping complex. This parking area is divided
into two separate areas by a brick wall.
39.) Troutman has made improvements to his
parking lot including extra and brighter
lighting.
40.) The City of Bradford Police Department has a
camera installed near the premises that is
capable of observing the back entrance of the
Hotel Holley and part of the parking lot.
41.) Troutman would consider allowing the police to
place additional cameras if cameras were also
placed at other nearby liquor dispensing
establishments.
42.) The Hotel Holley also operates as a hotel. Of
the one hundred (100) rooms, sixty-eight (68)
are rentable as dwelling places. The ones not
rented are used for storage, etc.
43.) Of the rentable rooms, many are rented to
homeless persons referred to the Hotel Holley
by Destinations, Salvation Army, First
Presbyterian Church, and other non-profit
organizations. As of June 2015, Troutman had
housed at least sixty (60) homeless persons so
far that year.
44.) There are fifty-two (52) permanent residents of
the Hotel Holley. About ten (10) or fifteen (15)
residents are senior citizens on fixed incomes.
Many other residents receive Social Security
Disability Benefits and are unable to work.
45.) In addition to homeless persons, Troutman
provides housing for the less fortunate in the
community at the Hotel Holley. In addition to
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providing services to less fortunate individuals,
Troutman houses several less fortunate families.
46.) The monthly rent for permanent residents is about
$480.00 per month. Monthly rent includes utilities
such as gas, electric, garbage collection, water,
sewage, and cable television.
47.) Troutman operates this hotel/residential portion of
the Hotel Holley at a loss. Instead, Troutman uses
revenues from his alcohol sales to defray the costs
of operating the hotel/residential portion of the
Hotel Holley.
48.) Troutman’s operation of the Hotel Holley as a
hotel/residential facility is of great benefit to the
community as it shelters homeless persons and
provides permanent, stable housing for those
who could not otherwise afford it.
49.) No evidence was presented of any acts
committed by Troutman himself to be or
become an ill regarded person in the
community.
50.) Troutman’s employees include security officers,
a manager for times when Troutman is not
there, and Responsible Alcohol Management
Program (“RAMP”) certified bartenders.
51.) There is appropriate signage, scanning devices,
and records maintained by the Hotel Holley in
the course of its operations.
Trial court’s Findings of Fact, Nos. 1-51 (emphasis added).
The trial court considered various factors that may support the
PLCB’s denial of an application to renew a liquor license,2 including: 1) violations
2
In relevant part, Section 470 of the Liquor Code states:
(Footnote continued on next page…)
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(continued…)
(a.1) SHOULD NOT BE BOLDED The Director of the Bureau of
Licensing may object to and the board may refuse a properly filed
license application:
(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.
(a.2) The board shall only refuse to renew a license application if
the bureau of licensing gives the applicant at least ten days’ notice,
stating the basis for the objection; otherwise, the board must renew
the license after receiving a properly filed renewal application.
(a.3) If the objection to the application is based on the reputation,
criminal history, citation history or activity of one or more of the
applicant’s shareholders, directors, officers, association members,
servants, agents or employes and not on the reputation, criminal
history, citation history or activity attributable to the applicant, the
board shall order the divestiture of the shareholders, directors,
(Footnote continued on next page…)
12
of Pennsylvania law by the licensee, its agents or employees; 2) violations of
PLCB regulations; 3) any adjudications to any license or involvement with a
license that was objected to by the PLCB; 4) a failure of the premises to conform
to the Liquor Code; 5) the manner of operation of the premises, including activity
on or about the property, correlations between such activity and operation of the
premises, extent to which the licensee or its agents or employees had control over
such activity, and whether steps were taken to address activity on or about the
premises; and 6) the reputation of the licensee.
In its analysis, the trial court noted that no one of the above factors is
dispositive. The trial court also emphasized that time is an important consideration
when reviewing a licensee’s history. Thus, while a single violation may be
(continued…)
officers, association members, servants, agents or employes in
question, in lieu of refusing the application. If such divestiture does
not occur within thirty (30) days of the board’s order, then the
board may refuse the application.
(b) In cases where a licensee or its servants, agents or employes
are arrested or charged with violating any of the laws of this
Commonwealth or if a licensee has one or more unadjudicated
citations pending against the licensee at the time a renewal
application for the license is pending before the board, the board
may, in its discretion, renew the license; however, the renewed
license may be subsequently revoked by the board if and when the
licensee or its servants, agents or employes are convicted of the
pending criminal charges or when the citation issued against the
license is adjudicated by the Office of Administrative Law Judge.
In the event the renewal license is revoked by the board, neither
the license fee paid for the license nor any part thereof shall be
returned to the licensee.
47 P.S. §4-470.
13
sufficient to support the non-renewal of a license, typically, non-renewals involve
multiple violations of the Liquor Code and a number of disturbances inside or near
the licensed premises. Allison v. Pennsylvania Liquor Control Board, 131 A.3d
1075, 1081 (Pa. Cmwlth. 2016). Additionally, the trial court observed that
licensees are not required to implement every possible safety measure or do
everything possible to prevent criminal activity on the premises. Todd’s By the
Bridge v. Pennsylvania Liquor Control Board, 74 A.3d 287, 297 (Pa. Cmwlth.
2013); Rosing, Inc. v. Pennsylvania Liquor Control Board, 690 A.2d 758, 762 (Pa.
Cmwlth. 1997).
The trial court set forth a detailed history of Licensee’s citations and
incidents beginning in 2013. The trial court then emphasized that the totality of
Licensee’s record prior to August 1, 2015, was not considered grounds by the
PLCB to outright deny the license renewal. Referencing the factors listed above,
the trial court concluded that Licensee had no violations of Pennsylvania law or
adjudicated violations of the PLCB’s regulations or the CLA during the most
recent licensing period. Additionally, Licensee’s violations of the CLA, related to
scanning of the premises,3 did not prevent renewal of the license for the 2015-17
period. The trial court noted that there were four disturbances on the premises
after August 1, 2015. In one of those instances, Licensee’s employees could have
called police to remove a visibly intoxicated person. However, there was no
evidence of a correlation between the operation of the premises and two other
incidents. The last incident involved serious injury, but it appeared to have been a
dispute between two friends. Licensee has taken steps to improve the premises on
3
Licensee breached the CLA requirement to use a transaction scan device on three
occasions, in February, May, and June of 2015.
14
several fronts, including hiring security, training his bartenders, who are RAMP
certified, adding lighting in the parking lot, opening a restaurant that attracts a
more upscale clientele, and discontinuing live entertainment.
Having set forth the relevant facts in detail, the trial court stated that it
gave little weight to Licensee’s numerous violations and incidents prior to August
1, 2015, because that record did not preclude the PLCB from renewing his license
in 2015. The trial court found that subsequent violations were either de minimis or
not within Licensee’s control. Rather than having ill repute, the trial court found
that Licensee is performing a community service by giving shelter to people who
would otherwise be homeless and subsidizing the cost of housing for seniors and
disabled persons. The trial court stated that Licensee’s service to the community is
a significant factor and proves his character.
Trial court’s authority
In de novo hearings regarding PLCB matters, the trial court must
make its own findings of fact based upon the record below in conjunction with
other properly admitted evidence. Two Sophia’s, Inc. v. Pennsylvania Liquor
Control Board, 799 A.2d 917 (Pa. Cmwlth. 2002). Further,
[w]hether a trial court adopts the [PLCB’s] findings of
fact or makes its own factual findings, it may reach its
own conclusions on the evidence. See I.B.P.O.E. of West
Mount Vernon Lodge 151 v. Pennsylvania Liquor
Control Board, 969 A.2d 642, 647-48 (Pa. Cmwlth.
2009) (holding that Section 464 of the Liquor Code
authorizes the trial court to reach its own conclusions
“even when the evidence it hears is substantially the
same as the evidence presented to the Board.”).
15
Allison, 131 A.3d at 1082. The PLCB does not question the trial court’s authority
to reach a conclusion different from its own.
Issues
On appeal, the PLCB argues that the trial court misunderstood the
conditional renewal of the license for the 2015 period. The PLCB contends that
because of this error, the trial court improperly disregarded Licensee’s history of
violations. More specifically, the PLCB asserts that the trial court’s repeated
references to the PLCB’s approval of Licensee’s renewal application for the 2015-
17 period reflect that the trial court misconstrued the PLCB’s conditional approval
as an outright approval. The PLCB asserts that, based on this mistake, the trial
court erred in failing to consider the evidence of citations and incidents prior to
August 2015. The PLCB maintains that the trial court erred in ordering the
renewal of the license where there were 9 adjudicated citations of the subject hotel
liquor license before the 2015-17 operation period; there were 24 incidents of
disturbance at or near the establishment during that period; Licensee breached the
CLA; and Licensee is not a reputable person.
Licensee responds that the trial court properly considered all of the
evidence. Additionally, Licensee points to evidence that, since he entered into the
CLA, he has taken affirmative steps to become a more responsible operator of the
premises, and he maintains that the violations cited after the CLA were de minimis
in nature and do not outweigh the benefits his business contributes to the
community. Licensee argues that he had no citations in 2016 and did not have any
violations for incidents that occurred after his hotel liquor license was renewed on
August 1, 2015, reflecting his improvement in managing the Hotel Holley.
Licensee contends that the disturbances/incidents that have occurred at the Hotel
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Holley are not related to the operation of the establishment itself, but are isolated
incidents that involve different individuals or operations undertaken by the police
and beyond Licensee’s control. Finally, Licensee argues that in order to be
disreputable, Licensee himself would have had to commit acts to earn such a status
and that the conduct of others does not affect his reputation.
Analysis
Initially, we note that the trial court, in its numerous findings,
addressed every relevant citation, violation, and incident. Moreover, while the
PLCB contends the trial court mistakenly construed the conditional approval as an
outright approval, our review reveals that the trial court characterized the
conditional approval as a failure to outright deny the license renewal for the 2015-
17 licensing period. The trial court’s decision includes various references to
revocation, renewal, and non-renewal of a license. Contrary to the PLCB’s
assertions, the trial court’s language does not demonstrate that its conclusions rest
on a mistaken understanding of the facts or the law.
Of course, “it is not improper for the PLCB to look at a series of
violations of the liquor laws that have already been the subject of a penalty when
deciding whether to renew a license.” I.B.P.O.E. of West Mount Vernon Lodge
151, 969 A.2d at 648. However, “[a]lthough past adjudications may be considered
in a license renewal case, the trial court, reviewing the matter de novo, may make
its own findings concerning the significance of the licensee’s citation history.” Id.Indeed, our Supreme Court has made clear that the trial court is “required to
conduct de novo review and, in the exercise of its statutory discretion, to make its
own findings and conclusions. Based upon its de novo review, it may sustain,
17
alter, change, modify or amend the [PLCB’s] action whether or not it makes
findings [that] are materially different from those found by the [PLCB] . . . .”
Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Cantina
Gloria’s Lounge, Inc., 639 A.2d 14, 19-20 (Pa. 1994).
In Goodfellas, Inc. v. Pennsylvania Liquor Control Board, 921 A.2d
559 (Pa. Cmwlth. 2007), this Court affirmed a trial court’s order reversing the
PLCB’s decision to deny renewal of a liquor license. The licensee in Goodfellas
operated a bar/restaurant in the Borough of Mount Carbon and had a liquor license
and attendant amusement permit. After the Bureau of Licensing objected to the
renewal of the license and amusement permit, a hearing examiner held a hearing
and subsequently recommended renewal of both. The PLCB disagreed and denied
the licensee’s renewal application, noting citations for loud noise and pricing
violations. The PLCB acknowledged that the licensee had solved its noise problem
by constructing a new facility but contended that it took too long to do so. The
PLCB also conceded that the licensee was in compliance with three of the four
terms of the parties’ CLA. Nevertheless, the PLCB noted that the licensee had
accrued ten adjudicated citations; it referred to the licensee’s citation history as
“‘dismal’ and reflecting an ‘utter disregard for the liquor laws.”’ 921 A.2d at 562.
The licensee appealed to the trial court, which accepted into evidence
the record made before the Bureau and received new evidence. In particular, the
licensee’s owner/manager explained her delay in complying with the CLA.
Additionally, the borough’s mayor testified that there had been no formal noise
complaints since the licensee built the new building. He also testified that the
licensee was the primary payer of amusement tax in the borough and an important
source of the income for the borough.
18
The trial court reversed the PLCB’s decision and granted renewal of
the licensee’s liquor license and amusement permit. The trial court determined,
inter alia, that the licensee took reasonable and timely steps to comply with the
terms of the CLA, spent approximately $300,000 to construct a new facility, and
had not had any noise complaints since it was completed.
The PLCB appealed, arguing that the trial court erred by failing to
consider the adjudicated citations pre-dating the CLA. We began our analysis by
setting forth the trial court’s reasoning, which was as follows:
While the Board concluded that the [licensee’s]
corrective measures were insufficient to support renewal
of the Liquor License in light of [the licensee’s] citation
history, the Court does not reach the same conclusion.
The [CLA] had encompassed all but two of the citations
against the [licensee]. The [PLCB] had no qualms about
entering into the [CLA] under those circumstances,
providing the [licensee] complied with the requirements
of the [CLA]. The [licensee] has since complied with all
of the requirements of the [CLA] and has incurred
$300,000 in doing so. As the [licensee] argues, it seems
disingenuous for the [PLCB] to now use those same
citations as reasons for denying renewal of the liquor
license, even though they may be considered by the
[PLCB] under the Liquor Code. Moreover, the noise
complaints were the bases for at least seven (7) of the
citations against the [licensee]. Now that the [licensee]
has taken corrective measures, there have been no further
noise complaints or citations for noise. It seems to the
Court that the [licensee] has been able to correct a
substantial problem and should not now be punished by
the [PLCB’s] refusal to renew the liquor license.
Furthermore, the [mayor of the borough] favors renewal
of [the licensee’s] liquor license and amusement permit
because the business provides substantial revenue for the
[borough]. In summary, it seems to the Court that the
purpose behind the Liquor Code, i.e., the protection of
the public welfare, health, peace and moral[s] of the
citizens, has been accomplished in this case.
19
921 A.2d at 563-64 (footnote omitted).
We then addressed the PLCB’s assertions that the trial court erred and
abused its discretion by refusing to consider adjudicated citations that pre-dated the
CLA. We explained in Goodfellas that the trial court did not fail to consider the
prior citations but, rather, in ordering renewal of the license, simply “made its own
findings and conclusions about the significance of [the l]icensee’s citation history.
As such, the trial court did not commit an error of law or abuse its discretion.” 921
A.2d at 565. Additionally, we clarified that “the trial court is free to substitute its
discretion for that of the [PLCB] and find that the steps taken by a licensee in
response to its adjudicated citations justify the renewal of its license.” 921 A.2d at
566; see also Becker’s Café, Inc. v. Pennsylvania Liquor Control Board, 67 A.3d
885, 893 (Pa. Cmwlth. 2013).
In this case, in holding that occurrences after August 1, 2015, alone or
in combination with Licensee’s past record, together with Licensee’s substantial
improvements, supported sustaining Licensee’s appeal, the trial court properly
considered Licensee’s history of citations and incidents; the prior determinations of
the PLCB, including the CLAs; and the steps Licensee had taken to become a more
responsible operator. We conclude that in doing so, the trial court neither erred nor
abused its discretion. Goodfellas. Finally, we reiterate that the record does not
support the PLCB’s contentions that the trial court misapprehended the facts or the
law.
Accordingly, we affirm.
MICHAEL H. WOJCIK, Judge
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph W. Troutman, Sr. :
:
v. : No. 1385 C.D. 2017
:
Pennsylvania Liquor Control Board, :
:
Appellant :
ORDER
AND NOW, this 24th day of January, 2019, the order of the Court of
Common Pleas of McKean County, dated August 30, 2017, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge