Caesar's Tavern, Inc. v. PA LCB ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Caesar’s Tavern, Inc., :
Appellant :
:
v. :
: No. 250 C.D. 2022
Pennsylvania Liquor Control Board : Submitted: February 7, 2023
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: March 3, 2023
Caesar’s Tavern, Inc. (Licensee), appeals from the February 17, 2022
order of the Court of Common Pleas of Allegheny County (trial court) that affirmed
the decision of the Pennsylvania Liquor Control Board (Board) to deny Licensee’s
liquor license renewal application. Upon review, we affirm.
I. Background
The facts underlying this matter are relatively straightforward and are
summarized as follows. Licensee, a bar located in a shopping center in the borough
of Turtle Creek, Allegheny County (the licensed premises), filed an application for
the renewal of its restaurant liquor license for the renewal period beginning June 1,
2019, and ending May 31, 2021 (renewal application). See Board Opinion in Case
No. 19-69289 (Board Op.) at 1-2; see also Trial Court Opinion dated Feb. 17, 2022
(Trial Ct. Op.) at 1. The Board’s Bureau of Licensing objected to the renewal
application pursuant to Section 470 of the Liquor Code,1 47 P.S. § 4-470, and a
hearing was conducted before a Board hearing examiner. See Board Op. at 1; Trial
Ct. Op. at 1.
Allegheny County Police (ACP) Detective Justin Desimone testified at
the renewal application hearing. Detective Desimone2 explained that, between May
2018 and February 2019, he acted in an undercover capacity with other ACP
detectives and a confidential informant (CI) as part of an ongoing drug investigation
that included 16 controlled drug purchases from 10 different sellers inside the
licensed premises as well as the observation of multiple other instances of illicit drug
activity inside the licensed premises. See Board Op. at 6-12; Trial Ct. Op. at 1-5.
On May 17, 2018, an ACP detective and the CI purchased
approximately one gram of crack cocaine valued at approximately $100 from a non-
employee Licensee “regular” (Seller 1) inside the men’s restroom at the licensed
premises. See Board Op. at 7-8; Trial Ct. Op. at 2. Seller 1 eventually pleaded guilty
to drug charges in connection with this incident. See Board Op. at 7-8; Trial Ct. Op.
at 2.
On May 24, 2018, an ACP detective and the CI again purchased drugs
in Licensee’s restroom, this time $80 worth of crack cocaine and 10 stamp bags of
heroin purchased from a different individual (Seller 2) who was inside the licensed
1
Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 1-101 – 10-1001.
2
Detective Desimone has been a police officer for over 18 years and has been a narcotics
detective for the last 5 years. See Notes of Testimony (N.T.) 1/7/2020 at 9. He has attended
numerous drug trainings with the United States Drug Enforcement Administration and the
Pennsylvania Attorney General’s Office, has extensive experience executing narcotics search
warrants, and has conducted numerous undercover drug buys and controlled buys using
confidential informants. See id. at 10.
2
premises when the detective and CI arrived. See Board Op. at 8; Trial Ct. Op. at 2.
Brown tissue paper from a dispenser in the restroom was used to package the drugs
during this transaction. See Board Op. at 8.
On May 30, 2018, an ACP detective and the CI bought $80 worth of
crack cocaine from a third seller (Seller 3) in Licensee’s men’s restroom. See Board
Op. at 8; Trial Ct. Op. at 2. Seller 3 later pleaded guilty to drug offenses stemming
from the May 30, 2018 sale. See Board Op. at 8; Trial Ct. Op. at 2.
On June 7, 2018, Detective Desimone and another ACP detective
purchased crack cocaine, fentanyl, and heroin for a combined price of $150, again
from Seller 1, and again in Licensee’s men’s restroom. See Board Op. at 8; Trial Ct.
Op. at 2-3. Seller 1 used a scale removed from the ceiling in the restroom to measure
the drugs during this transaction. See Board Op. at 8; Trial Ct. Op. at 2.
On August 15, 2018, Detective Desimone contacted a fourth seller
(Seller 4), who directed him to Licensee and sold him crack cocaine for $50 in
Licensee’s restroom. See Board Op. at 9; Trial Ct. Op. at 3. Seller 4 used a digital
scale hidden in Licensee’s restroom ceiling to weigh the crack cocaine and toilet
tissue from the restroom to package the drugs. See Board Op. at 9; Trial Ct. Op. at
3. This sale occurred around 8 p.m. See Trial Ct. Op. at 3.
Following the first August 15, 2018, drug purchase inside Licensee’s
restroom, the CI identified another seller (Seller 5) in the bar. See Board Op. at 9;
Trial Ct. Op. at 3. The CI and Detective Desimone then purchased $60 worth of
crack cocaine from Seller 5 in Licensee’s restroom, again using toilet tissue to
package the delivered drugs. See Board Op. at 9; Trial Ct. Op. at 3.
Two sales occurred the next day, August 16, 2018. See Board Op. at 9;
Trial Ct. Op. at 3. First, watched by Detective Desimone, the CI purchased crack
3
cocaine from yet another seller (Seller 6) inside the main bar area of Licensee around
6:20 p.m. See Board Op. at 10; Trial Ct. Op. at 3. A little later on August 16, 2018,
at around 7 p.m., the CI purchased more crack cocaine from Licensee employee
Shantia Dennis (Seller 7 or Dennis) with $50 supplied by Detective Desimone. See
Board Op. at 9; Trial Ct. Op. at 3. This purchase also took place in Licensee’s bar
area. See Board Op. at 9; Trial Ct. Op. at 3.
On January 8, 2019, Detective Desimone and the CI met another seller
(Seller 8) in the bar area at Licensee and then entered the restroom at Seller 8’s
direction and purchased from Seller 8 two bags of marijuana for $40. See Board Op.
at 10; Trial Ct. Op. at 4. Seller 8 later pleaded guilty to drug charges stemming from
the January 8, 2019 transaction. See Board Op. at 10; Trial Ct. Op. at 4.
On the next day, January 9, 2019, three separate drug sales occurred.
See Board Op. at 10-11; Trial Ct. Op. at 4. First, Detective Desimone bought $20
worth of marijuana from Seller 8 inside Licensee’s restroom. See Board Op. at 10;
Trial Ct. Op. at 4. Seller 8 later pleaded guilty to charges arising from that sale. See
Board Op. at 10; Trial Ct. Op. at 4. Next, Detective Desimone and the CI bought
$44 worth of cocaine and $50 worth of heroin from Seller 1 (the seller from the
transactions on May 17, 2018, and June 7, 2018), again in Licensee’s restroom using
toilet tissue to package the drugs. See Board Op. at 10-11; Trial Ct. Op. at 4. Later,
on January 9, 2019, the CI purchased $80 worth of crack cocaine from William
Gibson (Seller 9 or Gibson), a Licensee bartender, in Licensee’s men’s restroom.
See Board Op. at 11; Trial Ct. Op. at 4. Gibson later pleaded guilty to criminal
charges arising from this sale. See Board Op. at 11; Trial Ct. Op. at 4.
Three more sales occurred on January 18, 2019. See Board Op. at 11;
Trial Ct. Op. at 4. First, Gibson again sold $50 of crack cocaine to the CI in
4
Licensee’s restroom. See Board Op. at 11; Trial Ct. Op. at 4. Next, a tenth seller
(Seller 10), sold the ACP detectives and the CI $80 worth of crack cocaine in
Licensee’s restroom. See Board Op. at 11; Trial Ct. Op. at 4. A third sale of another
$40 worth of crack cocaine also occurred that day in the Licensee’s men’s restroom.
See Board Op. at 11; Trial Ct. Op. at 4.
Finally, on February 1, 2019, Detective Desimone and the CI again
purchased $60 worth of crack cocaine in the Licensee’s restroom, again packaging
the drugs in toilet tissue. See Board Op. at 12; Trial Ct. Op. at 4.
In addition to these specific controlled drug purchases, throughout the
course of their investigation, ACP personnel witnessed drug transactions occurring
out in the open and in plain view inside Licensee but did not effect arrests in response
to those drug sales so as not to compromise their investigation.3 See Board Op. at
12; Trial Ct. Op. at 5.
Licensee’s owner and manager John Biros4 also testified before the
hearing examiner and the trial court. See Board Op. at 12-15; Trial Ct. Op at 5-6.5
Biros testified that he was not at the licensed premises during any of the drug sales
and never witnessed any such activity. See Board Op. at 12 & 13; Trial Ct. Op. at
5. Instead, Biros explained that he is present at the licensed premises daily only from
3
For instance, on February 1, 2019, when police and Board personnel entered the licensed
premises sometime after the $60 sale of crack cocaine that occurred in the restroom, Detective
Desimone witnessed an off-duty Licensee employee discard crack cocaine. See Board Op. at 12;
Trial Ct. Op. at 5.
Biros is Licensee’s sole shareholder, director, officer, and Board-approved manager. See
4
Board Op. at 12.
5
See also N.T. 1/7/2020 at 121-166; N.T. 2/17/2021 at 20-29; N.T. 1/4/2022 at 5-35.
5
5 a.m. until 11 a.m., and that the bartender on duty6 is left in charge of the licensed
premises when he leaves and is instructed to write a report if any problems arise.
See Board Op. at 12; Trial Ct. Op. at 5. Biros testified that he was not made aware
of the drug sales at Licensee until a meeting with the Pennsylvania State Police,
Bureau of Liquor Control Enforcement (BLCE), on February 4, 2019, and that even
then he was not given any details of the drug sales or told that Licensee’s employees
were involved. See Board Op. at 12-13; Trial Ct. Op. at 5. Instead, the BLCE simply
gave suggestions as to how to alleviate the drug sale concerns, such as locking
Licensee’s restrooms and requiring patrons to obtain a key from the bartender on
duty in order to use the facilities. See Board Op. at 12-13; Trial Ct. Op. at 5-6. Biros
explained that he complied with the BLCE’s suggested actions to cut down on drug
activity within the licensed premises by locking the bathrooms and changing
Licensee’s policy to allow only patrons to use the restrooms.7 See Board Op. at 13;
Trial Ct. Op. at 6.
Biros also testified that neither of the two employees involved in the
criminal activity – Dennis and Gibson – was employed in a managerial role. See
Board Op. at 14; Trial Ct. Op. at 5. Further, Biros explained that both Gibson and
Dennis had been terminated prior to when he became aware of the drug activities
6
Biros testified that all Licensee bartenders receive Responsible Alcohol Management
Program (RAMP) training. See Board Op. at 12.
7
Biros also testified that there are signs posted inside Licensee explaining that only patrons
may use the restrooms, although he was not certain whether those signs were put up before or after
his meeting with the BLCE. See Board Op. at 13; Trial Ct. Op. at 6.
6
occurring at Licensee or the criminal charges against those employees.8 See Board
Op. at 14; Trial Ct. Op. at 5.
Biros also testified that Licensee had twelve surveillance cameras on
the licensed premises prior to the meeting with the BLCE, and that all but one now
function. See Board Op. at 14; Trial Ct. Op. at 6. Biros explained that Licensee’s
video recording system is capable of retaining up to 30 days’ worth of recordings,
and that he has complied with past requests from local police to turn over video
recordings, but that no request was made for video footage of the incidents described
by Detective Desimone. See Board Op. at 14; Trial Ct. Op. at 6. Biros further
explained that he installed a metal detector at Licensee in 2014, but that it suffered
water damage and was removed during the time of the ACP’s investigation. See
Board Op. at 14; Trial Ct. Op. at 6.
Additionally, Biros testified that Licensee maintains a banned patrons
list on which patrons are placed for misconduct such as fighting and selling drugs.
See Board Op. at 14-15; Trial Ct. Op. at 6. Patrons placed on the list are permanently
barred from Licensee. See Board Op. at 14; Trial Ct. Op. at 6. The list currently
consists of around 80 names,9 approximately 12 of which are barred from Licensee
for selling drugs. See Board Op. at 14-15; Trial Ct. Op. at 6.
Further, Biros testified that Licensee’s men’s restroom does not have a
drop ceiling. See Board Op. at 15. Instead, he explained that the ceiling is made of
solid plaster, with only a light fixture above the toilet. See Board Op. at 15; see also
8
Biros testified that his sister fired both employees for reasons unknown to him. See Board
Op. at 14; Trial Ct. Op. at 5. The testimony did not explain or expand on Biros’s sister’s role at
Licensee.
9
Biros explained that some of the individuals on the barred list are holdovers from the list
maintained by Licensee’s previous owner. See Board Op. at 15.
7
N.T. 1/7/2020 at 156-57; N.T. 2/17/2021 at 27; N.T. 1/4/2022 at 17. Biros compared
the light fixture to an overturned shoe box, with straight sides hanging down to the
ground and no ledges on which to store or hide a scale. See N.T. 2/17/2021 at 27-
28; N.T. 1/4/2022 at 17.
By order dated August 5, 2020, the Board refused the renewal
application. See Board Op. at 1-2. Licensee appealed to the trial court, which
conducted a de novo hearing on the matter during which the Board entered the notes
of testimony and exhibits from the license renewal hearing into evidence and at
which hearing Biros further testified.10 See Board Op. at 1-2. On February 17, 2022,
the trial court affirmed the Board’s denial of the renewal application. See Trial Court
Order dated February 17, 2022. Licensee timely appealed to this Court.11
II. Issues
On appeal, Licensee claims that the trial court erred by affirming the
Board’s decision to deny the license renewal application because the trial court’s
10
As noted above, Biros had also previously testified before the hearing examiner at the
renewal application hearing. See N.T. 1/7/2020 at 121-67.
11
A trial court reviewing a Board decision not to renew a liquor license hears the matter de
novo, and may sustain, alter, modify, or amend the Board’s order even when it is based upon the
same evidence presented before the Board. See Section 464 of the Liquor Code, 47 P.S. § 4-
464; U.S.A. Deli, Inc. v. Pa. Liquor Control Bd., 909 A.2d 24 (Pa. Cmwlth. 2006). “[This Court’s]
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 Greek Catholic Russian Aid Soc’y v. Pa. Liquor,
Control Bd., 41 A.3d 953, 954 n.1 (Pa. Cmwlth. 2012); see also Domusimplicis, LLC v. Pa. Liquor
Control Bd., 202 A.3d 836, 840 n.7 (Pa. Cmwlth. 2019) (“Where a trial court heard a liquor license
matter de novo, our review is limited to determining whether there is substantial evidence to
support the trial court’s findings or whether the trial court committed an error of law or abused its
discretion.”). Substantial evidence is such relevant evidence that a reasonable mind might accept
as supporting a conclusion. See Rosing, Inc. v. Pa. Liquor Control Bd., 690 A.2d 758, 760 (Pa.
Cmwlth. 1997), overruled on other grounds, Pa. Liquor Control Bd. v. Richard E. Craft Am.
Legion Home Corp., 718 A.2d 276, 278 (Pa. 1998).
8
findings of fact were not supported by substantial evidence. See Licensee’s Br. at 6,
27-54. Specifically, Licensee argues the trial court lacked substantial evidence to
determine: (1) that Biros knew or reasonably should have known of the illegal
activity occurring within Licensee;12 (2) that the affirmative measures taken by
Licensee after learning of the criminal activity were not sufficiently substantial to
warrant the renewal of Licensee’s liquor license;13 (3) that a pattern of unlawful
conduct that occurred within the licensed premises was causally related to the way
in which Licensee ran its business;14 and (4) that Biros had become a person of ill
repute pursuant to the Liquor Code.15
III. Discussion
Restaurant liquor licenses are valid for two years. See 40 Pa. Code
§ 3.2(a). Accordingly, holders of such licenses must file renewal applications every
two years. See 47 P.S. § 4-470. The renewal of a liquor license is discretionary. S
& B Rest., Inc. v. Pa. Liquor Control Bd., 114 A.3d 1106, 1110 (Pa. Cmwlth. 2015).
The Liquor Code sets forth the standards and procedures for the liquor license
renewals and non-renewals. Section 470(a.1) of the Liquor Code provides, in
relevant part:
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
12
See Licensee’s Br. at 6, 27-34.
13
See Licensee’s Br. at 6, 34-39.
14
See Licensee’s Br. at 6, 39-52.
15
See Licensee’s Br. at 6, 53-54.
9
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.
47 P.S. § 4-470(a.1).16
Licensees are strictly liable for violations of the Liquor Code and the
Board’s regulations that occur on a licensed premises. See Pa. Liquor Control Bd.
v. TLK, Inc., 544 A.2d 931, 932-33 (Pa. 1988). “A licensee may also, however, be
held accountable for non-Liquor Code violations (like those under the Crimes
16
Section 470(a.1) was added by the Act of December 21, 1998, P.L. 1202.
10
Code[17] [or the Controlled Substance, Drug, Device and Cosmetic Act18]), if it can
be established that there was a pattern of illegal activity on the licensed premises
about which the licensee knew or should have known, and the licensee failed to take
substantial steps to prevent such activity.” Philly Int’l Bar, Inc. v. Pa. Liquor
Control Bd., 973 A.2d 1, 3 (Pa. Cmwlth. 2008). Thus, the Board may refuse to
renew a liquor license where a licensee (1) knew, or should have known, of illegal
activities by an employee or patron, and (2) failed to take substantial affirmative
measures to prevent the misconduct. See TLK, 544 A.2d at 933.
Pennsylvania courts have long held that pervasive drug activity on a
licensed premises may present a pattern of illegal activity sufficient to endanger a
liquor license. See TLK, supra; Bates v. Commonwealth, 397 A.2d 851 (Pa. Cmwlth.
1979). In Philly International Bar, this Court agreed with the Board that
uncontradicted testimony regarding 15 controlled buys of cocaine by a CI within a
licensed premises from a regular patron of the licensed establishment represented
“drug activity [] so pervasive that [the l]icensee’s principals or employees should
have known of the activity and taken steps to prevent it.” 973 A.2d at 4. Similarly,
TLK involved a pattern of drug trafficking at a licensed premises that included a 6-
month investigation during which an undercover narcotics agent was able to
purchase drugs from a patron of the licensed establishment and observed drug sales
between patrons and employees and drug use in the licensed establishment’s
restroom. See TLK, 544 A.2d at 934. Our Supreme Court found the nature of this
illicit activity to be pervasive enough to deem the licensee to have permitted or
17
1 Pa. C.S. §§ 101-9546.
18
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101-780-144.
11
acquiesced in the misconduct unless the licensee was able to provide proof that it
took substantial affirmative measures to prevent the activity. See id. Additionally,
in the face of such an obvious pattern of misconduct under the Commonwealth’s
drug laws such that a licensee should have known of the illicit conduct, our Supreme
Court has found the mere posting of signs and telling employees to be wary of drug
activities insufficient to constitute the substantial measures required to prevent
criminal conduct about which a licensee should have known. See TLK, 544 A.2d at
934; see also Philly Int’l. Bar (no measures taken); but see Rosing, Inc. v. Pa. Liquor
Control Bd., 690 A.2d 758, 762-63 (Pa. Cmwlth. 1997), overruled on other
grounds, Pa. Liquor Control Bd. v. Richard E. Craft Am. Legion Home Corp., 718
A.2d 276 (Pa. 1998) (substantial affirmative measures to prevent misconduct
standard satisfied where licensee “made a zealous effort and incurred a financial
burden to prevent drug-related activities on the premises while maintaining a
reasonable zone of safety for themselves and their personnel” by installing exterior
spotlights which were kept on all night; hiring a doorman to patrol the entrance,
assess the patrons, and use a metal detector to inspect for weapons; hiring an armed
security guard to assist; keeping all entrances locked and installing a buzzer at front
entrance; by posting signs in and around the premises prohibiting the sale of drugs
anywhere near the premises; and by disseminating letters to patrons indicating that
suspicious or non-spending patrons would be removed).
In the instant matter, the trial court found that
[f]rom mid-May 2018 to early February 2019, there was a
pattern of drug sales (no fewer than sixteen transactions)
from at least ten different drug sellers inside [Licensee].
Two of the sellers were [Licensee] employees. The drug
transactions involved crack cocaine, fentanyl, heroin, and
marijuana. Sales were made to a CI and directly to
12
multiple police officers. Some of the sales took place in
the tavern restroom and some took place in the open area
of the bar. Sales occurred in the afternoon and evening.
These facts . . . lead the [trial] court to conclude that, in the
time relevant to this case, [Licensee] had become a
location where drug dealers could and did easily engage in
their criminal conduct in violation of the laws of the
Commonwealth.
Trial Ct. Op. at 7-8. The trial court determined that Biros should have known about
the illegal drug transactions occurring within the licensed premises, and that his lack
of knowledge resulted from inadequate oversight of the premises either by himself
or by responsible managerial employees. See id. at 8. The trial court further
determined that the evidence of record failed to demonstrate that Licensee took
substantial affirmative measures to prevent criminal conduct. See id. Specifically,
the trial court determined that Biros’s “testimony about signs, a metal detector,
cameras, and written reports from bartenders did not describe any effort [the trial]
court would regard as a sufficiently substantial effort to detect and guard against
criminal behavior.” Id. at 8-9. Ultimately, the trial court concluded that Licensee
knew or should have known about the drug activities occurring in the licensed
premises and that Licensee failed to prove that it took substantial affirmative
measures to prevent such criminal activities. See id. at 9. Based on these
conclusions, the trial court affirmed the Board’s refusal of the renewal application.
See id. at 10.
We find no error in the trial court’s determination. The uncontested
evidence illustrates that, from May 2018 to February 2019, the ACP conducted a
lengthy drug investigation that involved no less than 16 controlled drug buys from
10 different sellers inside Licensee. The police and their CI were able to purchase
13
crack cocaine, heroin, fentanyl, and marijuana of varying amounts. Multiple
controlled buys occurred in License’s restroom, where the drug dealers kept a scale
in the ceiling to weigh and portion the drugs19 and employed paper products available
in the restroom to package and deliver the drugs for sale. Other drug sales simply
occurred in the open areas of the bar. Two of Licensee’s employees acted as the
sellers in multiple controlled buys. Detective Desimone also testified to observing
other drug sales unrelated to the ACP investigation regularly occurring in plain view
within the licensed premises. The drug activity was pervasive to such an extent that
Licensee knew or should have known that it was occurring. Further, the maintenance
of a barred patrons list and the existence of signs inside Licensee indicating that the
restrooms were reserved for the use of patrons, the non-functioning metal detector,
and the pre-existing video cameras do not represent substantial affirmative measures
taken to prevent the considerable amount of drug activities that regularly occurred
within Licensee. Thus, we find that the trial court’s findings and conclusions that
Licensee knew or should have known about the drug activities occurring within its
premises and regarding the insufficiency of the affirmative measures it purportedly
took to prevent such activities are supported by substantial evidence and represent
neither abuses of discretion nor errors of law.
To the extent Licensee argues that the trial court based its determination
on inadmissible hearsay pertaining to Detective Desimone’s testimony, portions of
which Licensee argues he lacked first-hand knowledge, we disagree.20 “The
19
We acknowledge that Biros’s testimony regarding the restroom ceiling conflicts with
that of Detective Desimone, but observe that the trial court expressly stated that, “to whatever
extent testimony from John Biros conflicted with testimony presented by the [Board] . . . the [trial]
court finds credibility in favor of the witnesses from the [Board].” Trial Ct. Op. at 9.
20
See Licensee’s Br. at 39-52.
14
admission of evidence is solely within the discretion of the trial court, and a trial
court’s evidentiary rulings will be reversed on appeal only upon an abuse of that
discretion.” Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (quoting
Commonwealth v. Reid, 99 A.3d 470, 493 (Pa. 2014)). Here, as part of the
proceedings, the trial court allowed Licensee to submit objections regarding certain
portions of the transcript of the proceedings before the hearing examiner that were
alleged to be inadmissible hearsay. See Hearsay Objections; Reproduced Record
(R.R.) at 249a-255a. The trial court reviewed the multiple filings related to
Licensee’s hearsay objections,21 granting one and overruling the others. See Trial
Court Order executed June 14, 2021; R.R. at 275a-76a. We find no abuse of
discretion in these evidentiary determinations. Detective Desimone’s testimony
concerned incidents that occurred as part of a months-long undercover police
investigation in which Detective Desimone participated and had intimate
knowledge. His testimony pertained to descriptions of his participation in and the
mechanics and results of controlled buys that occurred as part of that undercover
investigation. Detective Desimone’s testimony offered no third-party statements
offered to prove the truth of the matter asserted. See Pa.R.E. 801. Further, even if
we accept, as Licensee suggests,22 that Detective Desimone did not have “first-hand
knowledge” of 5 of the 16 controlled buys about which he testified, 11 controlled
buys remain about which he did have personal, first-hand knowledge and testified,
which alone would suffice as evidence of illegal behavior adequate for the Board to
deny the renewal application. See TLK; Bates. Accordingly, we agree with the trial
21
The Board filed a Response to Hearsay Objections, to which Licensee filed its Response
to Pennsylvania Liquor Control Board’s Response to Hearsay Objections. See R.R. at 256a-271a.
The Board thereafter filed its Surreply to Hearsay Objections. See R.R. at 272a-74a.
22
See Licensee’s Br. at 46.
15
court’s conclusion that, “even if [the trial] court had granted [Licensee’s
outstanding] hearsay objections[], and stricken the corresponding parts of the
testimony, there would remain in the record sufficient testimony of other drug
transactions such that this court’s ruling affirming the [Board’s] decision would not
change.” Trial Ct. Op. at 10-11.
Finally, to the extent Licensee argues that the trial court erred because
the Board Opinion makes a finding that Biros was no longer a reputable person as
required by Sections 102 and 470 of the Liquor Code, 47 P.S. §§ 1-102 and 4-470,23
Licensee is not entitled to relief. Firstly, the trial court did not in any way rely on
Biros’s status as a person of either good or ill repute as determinative of whether to
affirm the Board’s refusal of the renewal application. See generally Trial Ct. Op.
Further, even assuming the trial court did so rely, the trial court properly affirmed
the Board’s denial of the renewal application for the independent reasons set forth
above. Accordingly, error resulting from the Board’s characterization of Biros as a
person of ill repute, or the trial court’s reliance thereon, if any, was harmless.
IV. Conclusion
For the reasons stated herein, we affirm the trial court order.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
23
See Licensee’s Br. at 53-54.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Caesar’s Tavern, Inc., :
Appellant :
:
v. :
: No. 250 C.D. 2022
Pennsylvania Liquor Control Board :
ORDER
AND NOW, this 3rd day of March, 2023, the February 17, 2022 order
of the Court of Common Pleas of Allegheny County is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge