York Best Food, LLC t/a Li's Kitchen v. PLCB ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
York Best Food, LLC :
t/a Li’s Kitchen, :
Appellant :
:
v. :
: No. 1076 C.D. 2017
Pennsylvania Liquor Control Board : Argued: September 14, 2018
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge (P.)
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: October 11, 2018
York Best Food, LLC t/a Li’s Kitchen (Licensee) appeals from the York
County Common Pleas Court’s (trial court) July 11, 2017 order denying Licensee’s
appeal from the Pennsylvania Liquor Control Board’s (PLCB) refusal to renew
Licensee’s Eating Place Retail Dispenser License No. E-12215 (License). The sole
issue for this Court’s review is whether the trial court’s findings of fact were
supported by substantial record evidence.1 Upon review, we affirm.
Licensee operates a small eatery with the privilege of selling malt or
brewed beverages at 287 West Market Street, York, Pennsylvania (Licensed
Premises).2 When Licensee filed an application with the PLCB to renew the License
1
In its Statement of Questions Presented, Licensee also contends that the trial court
committed an error of law by concluding that Licensee was responsible for incidents for which no
citations were issued. See Licensee Br. at 2. Because this second issue is subsumed in the analysis
of the first, we have combined the issues herein.
2
Licensee sells food and beer for on-premises consumption or take-out. According to
Licensee’s sole officer, member and approved manager Zhen Ting Li (Li), Licensee’s sales ratio is
approximately 60% food to 40% alcohol. See Reproduced Record (R.R.) at 243a, 277a. Li
represented that Licensee sells single cans of beer to go, and packages them in brown paper or
plastic shopping bags. See R.R. at 313a.
for the renewal period beginning March 1, 2016 and ending February 28, 2018, the
PLCB’s Bureau of Licensing (Bureau) objected to the renewal pursuant to Section
470 of the Liquor Code.3 Specifically, the Bureau alleged that Licensee
may no longer be eligible to hold a license based upon the
improper conduct of [the Licensed Premises,] as there have
been approximately sixteen (16) incidents of disturbances at
or near [the Licensed Premises] during the time period
March 2014 to present reported to the York City Police
Department. This activity includes, but is not limited to[,]
visibly intoxicated persons, disorderly operations, drugs,
stabbings, open containers, and assaults.
PLCB Notes of Testimony, April 19, 2016 (PLCB N.T.) Ex. B-3 at 1 (Reproduced
Record (R.R.) at 330a). The Bureau also asserted that, based upon those incidents,
Licensee’s sole officer, member and approved manager Zhen Ting Li (Li) “may no
longer be reputable as required under Sections 102 and 470 of the Liquor Code (47
P.S. §§ 1-102 and 4-470).” R.R. at 330a.
On April 19, 2016, a hearing was held before a Hearing Examiner who
recommended that the PLCB deny Licensee’s renewal application or, in the
alternative, grant the renewal subject to an offer-in-compromise agreement. See R.R.
at 398a-468a. The PLCB accepted the Hearing Examiner’s recommendation and, on
December 7, 2016, it refused Licensee’s renewal application. See PLCB Certified
Record, December 7, 2016 Refusal Letter. Licensee appealed to the trial court.4 The
3
Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-470. The Liquor Code
amendments made pursuant to the Act of June 8, 2016, P.L. 273 (effective August 8, 2016) did not
change the relevant provisions of the Liquor Code relied upon herein.
The Bureau’s first objection letter was dated February 17, 2016. See R.R. at 327a. The
Bureau issued an amended objection letter on March 28, 2016. See R.R. at 330a.
4
The PLCB issued its opinion on February 7, 2017. See Licensee Br. App. 1 (PLCB OP.);
see also R.R. at 469a-515a. The PLCB filed a Pre-Trial Statement on March 1, 2017. See R.R. at
516a-522a. Licensee filed a memorandum of law in support of its appeal on April 12, 2017. See
R.R. at 523a-533a.
2
trial court conducted a de novo hearing on May 2, 2017, at which Li testified.5 See
R.R. at 534a-568a. Thereafter, the trial court found in the PLCB’s favor and likewise
denied Licensee’s renewal application.6 See Licensee Br. App. 2 (Trial Ct. Op.); see
also R.R. at 570a-587a. Licensee appealed to this Court.7
Initially, “[i]n Section 104(a) of the Liquor Code, [47 P.S. § 1-104(a)],
the General Assembly has authorized the [PLCB] to exercise broad police powers in
fulfilling its duty to protect the public welfare, health, peace and morals of the
citizens of the Commonwealth.” Philly Int’l Bar, Inc. v. Pa. Liquor Control Bd., 973
A.2d 1, 3 (Pa. Cmwlth. 2008) (footnote omitted). “To be sure that the interests of the
citizens of the Commonwealth are protected, the [PLCB] must closely examine the
operation of an establishment that holds a license to serve alcoholic beverages when
assessing whether to renew its liquor license.” Id. at 4. Accordingly, “[t]he Liquor
Code and our cases are clear that the [P]LCB has discretion in determining whether to
grant or renew a liquor license.” St. Nicholas Greek Catholic Russian Aid Soc’y v.
Pa. Liquor Control Bd., 41 A.3d 953, 959 (Pa. Cmwlth. 2012).
5
A certified Mandarin interpreter was provided for the hearing. See R.R. at 536a.
6
Pursuant to Section 464 of the Liquor Code, 47 P.S. § 4–464, when an
appeal is taken from a [PLCB] decision, the trial court hears the
matter de novo. The trial court must make its own findings of fact
and conclusions of law based upon the record of the proceedings
below, if introduced by the [PLCB], together with any other evidence
that is properly submitted during the de novo hearing. The trial court
may sustain, alter, modify or amend the [PLCB’s] decision, even if it
does not make findings of fact materially different from those made
by the [PLCB].
S & B Rest., Inc. v. Pa. Liquor Control Bd., 114 A.3d 1106, 1111 (Pa. Cmwlth. 2015) (citation
omitted).
7
“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 Greek Catholic Russian Aid Soc’y v. Pa.
Liquor Control Bd., 41 A.3d 953, 954 n.1 (Pa. Cmwlth. 2012).
3
As a guiding principle, Section 470(a.1) of the Liquor Code provides, in
relevant part:
The Director of the [Bureau] may object to and the [PLCB]
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 [PLCB]; [or]
....
(4) due to the manner in which this . . . licensed premises
was operated while the licensee . . . [was] involved with
that license. When considering the manner in which this . .
. licensed premises was being operated, the [PLCB] 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 [PLCB] 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) (emphasis added). Based thereon, this Court has ruled:
The law is well-established that a licensee is strictly liable
for Liquor Code violations, and may also be held
accountable for non-Liquor Code violations, like those
under the Crimes Code,[8] 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.
Paey Assocs., Inc. v. Pa. Liquor Control Bd., 78 A.3d 1187, 1198 (Pa. Cmwlth. 2013)
(emphasis added); see also Pa. Liquor Control Bd. v. TLK, Inc., 544 A.2d 931 (Pa.
1988). “Section 470(a.1)(4) of the Liquor Code makes clear that licensees are not
8
18 Pa.C.S. §§ 101-9183.
4
permitted to push their problems out the front door and disregard them. Rather, they
must monitor what goes on outside and immediately adjacent to their premises as an
extension of their operations.” Paey Assocs., 78 A.3d at 1200.
At the trial court hearing, the trial court accepted the record from the
PLCB (PLCB Record), which included documentation and testimony regarding 14
incidents at or near the Licensed Premises between March 17, 2014 and October 15,
2015. See R.R. at 537a-538a. Because the trial court concluded that there was not
sufficient evidence to link two of the events to the Licensed Premises,9 only the
remaining 12 are at issue on appeal. The trial court made the following findings
about those 12 incidents:
1. On March 17, 2014, at approximately 7:58 p.m.,
officers responded to a call of an individual, William
Sechrist [(Sechrist)], passed out on the floor inside of [the
Licensed Premises]. Officers observed a strong odor of
alcohol on his breath and person. [Sechrist] was later cited
for public drunkenness. ([PLCB N.T. at] 63-68).
2. On May 2, 2014, at approximately 9:38 p.m., officers
responded to a call that an individual, James Kelly
[(Kelly)], was passed out on the sidewalk outside [the
Licensed Premises] with a laceration on his head. It is
alleged that [] Kelly was severely intoxicated when he fell.
([PLCB N.T. at] 68-75).
3. On June 8, 2014, at approximately 11:11 p.m.,
officers responded to a call of a disorderly individual,
Randy Spellman [(Spellman)], who was refusing to leave
[the Licensed Premises] after being told numerous times to
leave. Mr. Spellman showed signs of intoxication and was
removed from the premises. ([PLCB N.T. at] 75-83).
4. On July 2, 2014, at approximately 7:00 p.m., officers
were informed by a confidential informant[10] that an
9
The trial court concluded that the Bureau failed to meet its burden as to the May 27 and
August 27, 2015 incidents. See Trial Ct. Op. at 11.
10
Confidential and reliable informants are those persons deemed reliable by the District
Attorney’s Office after providing consistent, accurate information that has led to past drug arrests,
5
African-American female, 5’8”, 200 lbs.[,] wearing a gray
shirt with a logo on it and blue jeans was selling drugs
inside [the Licensed Premises]. Officers entered the
establishment and discovered a woman, Barbara Chance
[(Chance)], who fit the description, inside the
establishment. Officers discovered three packets of heroin
on her person. ([PLCB N.T. at] 83-95).
5. On July 23, 2014, at approximately 5:30 p.m.,
videotape evidence showed three patrons inside [the
Licensed Premises] engaging in a verbal argument. The
three patrons took their disagreement outside where they
proceeded to punch and push each other. One of the men,
Robert Coleman [(Coleman)], stabbed the victim, Walter
Cole [(Cole)], in the side with a knife and the altercation
ended. Officers responded to treat [] Cole and [] Coleman
was later arrested for the stabbing. ([PLCB N.T. at] 134-
142).
6. On July 30, 2014, at approximately 6:27 p.m.,
officers were informed by a confidential informant that he
would meet David Hairston [(Hairston)] in the parking lot
of [the Licensed Premises] to buy crack cocaine. The
informant purchased the cocaine from a second individual,
Bryan Hillery [(Hillery)]. [] Hillery went inside [the
Licensed Premises] and seemed to make contact with an
unknown bouncer. [] Hillery later left the establishment
through the other entrance/exit to possibly avoid arrest.
Both dealers were later arrested. ([PLCB N.T. at] 12-43,
143-157).
7. On October 11, 2014, at approximately 12:05 a.m.,
officers responded to a call that a man, Raymond Rhoades
[(Rhoades)], was passed out in front of [the Licensed
Premises]. Officers observed that [] Rhoades had a strong
odor of alcohol coming from his person. ([PLCB N.T. at]
108-114).
8. On January 29, 2015, at approximately 2:12 p.m., a
confidential informant informed officers that a drug dealer
named Daryl ‘Supreme’ Allston [(Allston)] was going to
sell him heroin at [the Licensed Premises]. While Allston
and “anything that they see can almost be held at the same level of truthfulness . . . as [witnessing
police officers.]” R.R. at 197a.
6
did not show up, a man named James Greer [(Greer)]
entered the premises for about 5-10 minutes, came outside
to the front stoop, and sold the informant the heroin. []
Greer was later arrested. ([PLCB N.T. at] 44-54, 168-177).
9. On January 30, 2015, at approximately 11:00 a.m.,
[Allston] was inside [the Licensed Premises] and offered to
sell confidential informant heroin. Officers observed []
Allston sitting at the bar and later found heroin inside of his
jacket pocket. [] Allston was placed under arrest. ([PLCB
N.T. at] 177-195).
10. On February 20, 2015, at approximately 11:34 p.m., a
confidential informant informed officers that someone was
selling heroin inside of [the Licensed Premises]. Officers
directed a controlled buy-bust operation and determined
that the security guard at [the Licensed Premises], Louis
Rodrigues [(Rodrigues)], was the individual selling heroin.
Officers arrested [] Rodrigues and discovered 50 bags of
heroin, 22 bags of cocaine, suboxone, and $1100 in cash on
his person. Rodrigues was later fired from his job. ([PLCB
N.T. at] 153-167).
11. On February 26, 2015, at approximately 1:20 p.m.,
officers observed a male, Angel Rivera Rosado [(Rosado)],
sitting outside [the Licensed Premises] between the front
door and the parking lot drinking an open container of
alcohol. Officers cited [Rosado]. ([PLCB N.T. at] 123-
132).
....
14. On October 15, 2015, it was reported that an
individual exited [the Licensed Premises], walked to a
window, and raised his middle finger towards his ex-
girlfriend who was inside the establishment. ([PLCB N.T.
at] 212).
Trial Ct. Op. at 2-6.
Licensee argues that the trial court’s findings of fact (FOF) were not
supported by substantial record evidence. A review of the PLCB Record admitted
into evidence, reveals that with respect to FOF 1, York City Police Officer (Officer)
John Huncher (Officer Huncher) testified that he was dispatched to the Licensed
7
Premises on March 17, 2014 at approximately 7:58 p.m. to investigate an ambulance
call and, when he arrived, he observed Sechrist “passed out in the middle of the
establishment,” mumbling under his breath and smelling of an intoxicating beverage.
R.R. at 71a; see also R.R. at 72a-74a. Officer Huncher recalled that Sechrist was
transported to the hospital and he was cited for public drunkenness. See R.R. at 72a.
Officer Huncher acknowledged that he did not know whether Sechrist entered the
premises in that condition, was refused service and/or asked to leave and just passed
out on the floor. See R.R. at 73a-74a.
Regarding FOF 2, Officer Dustin Gehron (Officer Gehron) reported that
he was dispatched to the Licensed Premises on May 2, 2014 at approximately 9:38
p.m. and observed Kelly passed out on the Newberry Street sidewalk to the left of the
Licensed Premises. See R.R. at 76a-82a. Officer Gehron reported that Kelly was
intoxicated, as evidenced by an odor of alcohol, a staggered gait, bloodshot eyes and
slurred speech. See R.R. at 79a. Officer Gehron learned that Kelly lived at the
YMCA located at 90 North Newberry Street and was heading home when he fell.
See R.R. at 77a. Officer Gehron asserted that Kelly was transported to the hospital
and was cited for public drunkenness. See R.R. at 77a. Officer Gehron described
that the area where this incident occurred is a busy public thoroughfare, and
Licensee’s place is “where usually everyone goes to drink.” R.R. at 80a.
Relative to FOF 3, Officer Michael Meeker (Officer Meeker) testified
that he was on patrol on June 8, 2014 at approximately 11:11 p.m., when he was
dispatched to the Licensed Premises due to a disorderly subject. See R.R. at 83a. He
learned that Rodrigues directed patron Spellman to leave the establishment, but he
refused and fell over. See R.R. at 83a-85a. Officer Meeker discovered Spellman
outside either on the sidewalk or in Licensee’s parking lot, and described that he “was
highly intoxicated” and drooling, and a had a strong odor of alcohol on his person,
slurred speech and difficulty standing. R.R. at 84a-85a; see also R.R. at 86a, 89a.
8
Officer Meeker explained that although he did not recall whether Spellman had
consumed alcohol while he was in the Licensed Premises, the next closest bars were
the Waterway Bar approximately 1½ blocks away, and the Lincoln Bar
approximately five blocks away. See R.R. at 87a.
With respect to FOF 4, Officer Christopher Husted (Officer Husted)
reported that, on July 2, 2014 at approximately 7:00 p.m., based on a tip that Chance
was selling drugs outside Licensee’s establishment, he found Chance inside and
asked her to go outside to talk because the music was too loud. See R.R. at 91a-92a,
99a. Once outside, Chance denied that she was selling drugs, but agreed to a search
that revealed she had three packets of heroin in her pocket, for which she was arrested
and charged with misdemeanor drug possession. See R.R. at 92a-95a. Officer
Husted learned that Chance purchased the heroin from a black male inside the
Licensed Premises, but the man was no longer there when Officer Husted checked.
See R.R. at 94a-95a. Officer Husted recalled that there were people inside when he
first entered, who had left while he was with Chance outside. See R.R. at 98a, 100a-
101a. Despite that Officer Husted was in the Licensed Premises twice, and Chance
was arrested outside the front door, Licensee’s employees did not inquire as to why
officers were there. See R.R. at 95a-97a.
Regarding FOF 5, Officer Matthew Irvin (Officer Irvin) testified that, on
July 23, 2014 at approximately 5:30 p.m., he was dispatched to the Licensed
Premises due to a stabbing. See R.R. at 103a. When he arrived, he saw Cole on the
ground immediately outside Licensee’s door being treated by firefighters (whose
station is nearby) for a stab wound in his abdomen. See R.R. at 103a, 108a-109a; see
also PLCB N.T. Ex. B-5 (R.R. at 333a). Officer Irvin recalled viewing Licensee’s
surveillance video which depicted an argument among Cole and two patrons,
including Coleman at the cash register inside; they took their dispute outside where
Cole was stabbed. See R.R. at 103a-110a, 113a. Although the assault occurred just
9
outside the video camera’s range, Officer Irvin learned from Cole that Coleman
stabbed Cole several times. See R.R. at 103a-109a. Officer Irvin stated that
Licensee’s employees did not intervene in the situation. See R.R. at 107a-108a, 113a.
Officer Irvin expressed that Licensee’s employees are always cooperative. See R.R.
at 112a.
Officer Kyle Pitts (Officer Pitts) reported that he assisted Officer Irvin
with the stabbing incident on July 23, 2014, and charged Coleman with felony
aggravated assault as a result thereof. See R.R. at 140a-143a. He reflected that
although some of the incident occurred off-camera, it appeared that Licensee’s
employees were not present. See R.R. at 147a. Officer Pitts’ account was nearly
identical to Officer Irvin’s description, except he added that he and Officer Irvin saw
Coleman walking in the direction of the Licensed Premises approximately 30 minutes
before the stabbing occurred. See R.R. at 149a-153a.
Relative to FOF 6, Officer Daniel Kling (Officer Kling) related that, on
July 30, 2014, he was watching Licensee’s parking lot from across the street from
6:27 p.m. until 8:10 p.m., when he saw Hillery openly hand a confidential informant
crack cocaine in broad daylight. See R.R. at 23a, 44a-46a. Officer Kling recalled
that there were always approximately five people loitering in the parking lot at all
times during that period, but Licensee’s employees did not check the area or move
them along. See R.R. at 40a, 47a-48a. Officer Kling recalled that, after the drug
transaction took place, officers notified Licensee’s counter person of what occurred
and requested the parking lot video surveillance footage, which the employee
cooperatively provided.11 See R.R. at 41a-42a, 46a.
Officer Pitts added relative to the July 30, 2014 drug transaction that the
location was chosen because the confidential informant had purchased drugs in that
11
Officer Kling stated that Licensee has “always been very cooperative with video footage.”
R.R. at 41a-42a.
10
location in the past. See R.R. at 153a-154a, 157a. He confirmed that Licensee’s
employee was cooperative in showing the officers the video surveillance footage that
day. See R.R. at 159a. Officer Pitts declared “that most of [his] drug investigations
in that area are targeted on [the Licensed Premises],” R.R. at 160a, “[i]n the parking
lot or inside the building.” R.R. at 162a. He estimated that he has made at least six
to ten drug arrests at Licensee’s establishment over the past three to four years. See
R.R. at 161a, 163a.
With respect to FOF 7, Officer Irvin recounted that he was patrolling
Licensee’s neighborhood on October 11, 2014 at 12:05 a.m., when he witnessed
Rhoades passed out in front of the Licensed Premises (near the brown door to the
right of Licensee’s entrance).12 See R.R. at 115a-116a; see also PLCB N.T. Ex. B-5
(R.R. at 333a). Officer Irvin recalled that Rhoades was unresponsive, had a strong
odor of alcohol about him, and snot was coming from his nose. See R.R. at 116a-
117a. Rhoades was taken by ambulance to the hospital and was cited for public
drunkenness. See R.R. at 116a-117a. Officer Irvin declared that the Licensed
Premises was open at the time, and the ambulance pulled up out front, but none of
Licensee’s employees came outside to find out what had occurred. See R.R. at 117a.
Officer Irvin described the area of Licensee’s establishment as busy, but only
Licensee is open at that hour of night, and it is popular since “[t]here’s not a lot of
places that are open that make food to order until 2:00 a.m.” R.R. at 112a; see also
R.R. at 118a-120a. Officer Irvin revealed that he was familiar with Rhoades from
prior incidents of public drunkenness. See R.R. at 117a. Officer Irvin acknowledged
that he did not know whether Rhoades was served by Licensee that night, but he had
seen Rhoades patronize Licensee’s bar before and since this incident. See R.R. at
118a-120a. He added that the next closest licensed establishment was the Lincoln
12
The brown door leads into the building where the Licensed Premises is located, but
Officer Irvin was not sure where the door leads once inside the establishment. See R.R. at 116a.
11
Bar approximately four blocks away, and Rhoades lived approximately ten blocks
away from the Licensed Premises. See R.R. at 118a.
Regarding FOF 8, York City Police Detective Scott Nadzom (Detective
Nadzom) testified that, although there are other bars in the area and drugs are
rampant in York City, the Licensed Premises “was the primary place” for drugs on
Newberry and Market Streets. R.R. at 59a. He recollected that he conducted a
surveillance on January 29, 2015 for approximately 40 minutes, during which he
observed three or four people outside when Greer exited the Licensed Premises,
conduct a drug transaction with a confidential informant outside Licensee’s door at
2:12 p.m. and then re-enter the establishment. See R.R. at 51a-61a; see also PLCB
N.T. Ex. B-5 (R.R. at 333a).
Detective Nadzom reported that the investigation was initiated because
there were “lots of complaints about the establishment . . . about drug dealing.” R.R.
at 58a. Detective Nadzom also recounted that Greer was not the original target of the
investigation that day, but rather it was Allston. See R.R. at 58a; see R.R. at 176a.
Detective Nadzom did not witness any of Licensee’s employees check outside or
attempt to disperse the people during the time he conducted the surveillance. See
R.R. at 60a. He also opined that since he could see inside the Licensed Premises
when the drug transaction took place, people inside “could see if they were looking
out the window.” R.R. at 56a-57a.
York City Police Officer Zachary Pelton (Officer Pelton) recalled
relative to the January 29, 2015 drug sale that the confidential informant informed
him about Allston selling drugs at Licensee’s establishment. See R.R. at 176a.
Officer Pelton was familiar with Allston’s drug connection for a few years. See R.R.
at 176a, 183a. The confidential informant called the telephone number Allston
offered for the drug purchase, which Greer answered and directed the confidential
informant to the Licensed Premises where Greer met the confidential informant and
12
the transaction took place. See R.R. at 177a-178a, 181a. Officer Pelton agreed that
none of the officers discussed the incident with Licensee or asked to see Licensee’s
video surveillance footage. See R.R. at 182a. Officer Pelton charged Greer with
felony delivery of a controlled substance (heroin). See R.R. at 179a.
Relative to FOF 9, Officer Pelton also testified that, on January 30,
2015, sometime before 11:00 a.m., the same informant from January 29, 2015 told
Officer Pelton that Allston was again inside the Licensed Premises with heroin he
was willing to sell to the informant. See R.R. at 185a, 195a, 197a-198a. The
informant described where Allston was sitting and what he was wearing. See R.R. at
185a. Officer Pelton stated that he and other officers went into the Licensed Premises
at 11:00 a.m. wearing vests and badges and found Allston in the location and wearing
what the informant had described. See R.R. at 186a, 198a-200a. Officer Pelton
recalled talking to Allston, taking him into custody, removing Allston’s property - a
jacket and $318 in cash - from the counter and escorting him outside. See R.R. at
186a-188a, 190a, 199a-201a. Officer Pelton reported that a glassine packet of heroin
was found in Allston’s watch pocket when he was searched. See R.R. at 187a.
Officer Pelton described:
At first, [Allston] informed me that he snorts it and he uses
one or two bags a day. I then later had a conversation with
him once we got down to central booking. I advised him
that we were going to conduct a second search, and if he
had anything else on him to let me know. [Allston] and I
have a history, so I figured I can reason with him. He can
be pretty honest. But [Allston] did advise me he had further
amount of heroin on him, provided me with a bundle [of ten
glassine baggies of heroin], which he had tucked into his
pants. And he was actually going to try to hide in my car, a
bundle of heroin, just to be clear there.
....
That was in his pants. He had it tucked back in behind his
butt crack.
13
....
He said about $100 worth of [the $318] was from selling
drugs.
R.R. at 188a-189a. Officer Pelton clarified that Allston did not have the drugs out in
the open inside Licensee’s premises,13 and he was not informed that Allston
conducted any drug sales therein. See R.R. at 191a-192a. Officer Pelton filed felony
drug possession charges against Allston for this incident. See R.R. at 189a-190a.
With respect to FOF 10, Officer Pitts stated that, on February 20, 2015,
at approximately 11:00 p.m., he received a report from a reliable informant that
heroin was being offered for sale by an individual inside the Licensed Premises. See
R.R. at 164a. Officer Pitts arranged for the informant to conduct a drug purchase that
took place at approximately 11:30 p.m. as follows:
The informant went inside, came back out and met back up
with me . . . --- . . . turned over two bags of heroin that . . .
[the informant] . . . purchased from inside [the Licensed
Premises.]
....
The informant advised that a heavyset Hispanic male, who
was later identified as [Rodrigues], . . . the security guard of
[the Licensed Premises], had provided that heroin and was
in possession of additional narcotics.
Based on that information, we responded to [the Licensed
Premises], located [] Rodrigues inside seated at the counter,
took him into custody based on the reliable information,
found him to be in possession of --- I think it was 50 bags of
heroin, 22 [Ziploc] bags of powdered cocaine and $1,200 in
cash --- or $1,100 in cash.
R.R. at 165a; see also R.R. at 164a, 166a-168a. Officer Pitts added that Rodrigues
also possessed the $20.00 of official funds he gave the confidential informant to use
13
Officer Pelton agreed that drug dealers do not keep their contraband in the open, for fear
of being caught. See R.R. at 193a-194a.
14
for the transaction,14 and a pack of Suboxone, which he described as a controlled
substance “used by people addicted to opiates as part of their recovery.” R.R. at
166a. He recalled Rodrigues admitting to him that “[he] got the stuff . . . to make an
extra buck[.]” R.R. at 169a. Rodrigues was arrested onsite and charged with felony
drug possession with the intent to deliver.15 See R.R. at 169a, 171a. Officer Pitts
acknowledged that he did not know if Licensee or its employees were aware of
Rodrigues’ drug sales. See R.R. at 170a-172a.
Regarding FOF 11, Officer Dean Woodring (Officer Woodring) testified
that on February 26, 2015, at approximately 1:20 p.m., he went to the Licensed
Premises based upon a report from an off-duty officer that a male wearing a
camouflage jacket was drinking outside. See R.R. at 130a, 134a. Upon his arrival,
Officer Woodring observed Rosado, who matched the off-duty officer’s description,
intoxicated and consuming alcohol from a can in a brown paper bag in the parking lot
near Licensee’s side door and he cited Rosado. See R.R. at 132a, 135a; see also
PLCB N.T. Ex B-6 (R.R. at 334a). He admitted that Rosado did not state where he
purchased the alcohol, and Officer Woodring did not speak to Licensee’s employees
about the incident, nor was he aware of any of Licensee’s employees being outside at
any point while he was there. See R.R. at 133a, 135a-136a. He agreed that the
interaction would have been visible to anyone watching Licensee’s video feed, and
stated that Licensee sells single beers to go. See R.R. at 137a, 139a. Officer
Woodring acknowledged that the Waterway Bar is up the street and to the east one
street over. See R.R. at 135a.
Finally, relative to FOF 14, Officer Stephen Aderhold (Officer
Aderhold), who is the York City Police Department’s records custodian and works as
14
The $20.00 bill was photocopied prior to the transaction. See R.R. at 166a-167a, 173a.
15
Because the confidential informant was not at all times within Officer Pitts’ sight while
inside the establishment, Rodrigues was not charged with delivery. See R.R. at 173a.
15
part of the detective bureau’s Nuisance Abatement division, described how police
reports are prepared, checked and maintained as business records. See R.R. at 203a-
219a, 225a. The PLCB Hearing Examiner admitted into evidence over Licensee’s
objection, a police report for an incident that occurred on October 15, 2015 at
approximately 5:35 p.m. at the Licensed Premises, wherein an officer cited Samuel
Trice for disorderly conduct after he exited the establishment and made an obscene
gesture through the window to his ex-girlfriend inside. See R.R. at 206a-209a, 219a,
235a-236a; see also PLCB N.T. Ex. 7 (R.R. at 335a-336a).
Officer Aderhold recounted that he contacted the PLCB in May 2015
about Licensee’s operation due to “a rash of complaints and problems with that
establishment, [that] actually came from citizens, businesses that surround the
establishment, and I believe, also through the mayor’s office and that chief’s office . .
. .” R.R. at 205a; see also R.R. at 202a, 209a, 211a, 219a, 237a-239a. He stated that
relative to police resources and criminal/nuisance activity, particularly in 2014 and
2015, “[the Licensed Premises is] one of the top concerns as far as bars in the City of
York,” R.R. at 220a, due to public drinking, drug transactions and littering, noise and
other problems. See R.R. at 225a, 227a. Officer Aderhold explained that he pulled
all of the police records for incidents reported at 287 West Market Street. See R.R. at
205a-206a. He articulated that if an incident had nothing to do with the Licensed
Premises, the police reports would designate the intersecting streets rather than
Licensee’s specific address. See R.R. at 225a-226a.
Officer Aderhold asserted that he is not aware of Licensee doing
anything to prevent illegal and/or nuisance activity. See R.R. at 223a. Rather, when
asked whether things have improved at the Licensed Premises, Officer Aderhold
related that, between October 2015 and the April 2016 PLCB hearing, there have
been nine additional police incidents, two of which Licensee reported. See R.R. at
220a-223a, 234a-235a. Officer Aderhold acknowledged that he was not specifically
16
aware of anyone contacting Licensee regarding the issues with the Licensed
Premises, but offered that they could have. See R.R. at 227a-228a, 238a. He also
testified that he was not aware of Licensee reaching out to the York City Police
Department about the incidents occurring in and around the establishment. See R.R.
at 228a-229a.
Li testified at the PLCB hearing, see R.R. at 240a-317a, and also before
the trial court. See R.R. at 538a-558a. At the trial court hearing, Li explained that he
has operated the Licensed Premises since 2011, it is open seven days per week from
7:00 a.m. to 2:00 a.m.,16 and he is at the Licensed Premises “almost . . . all the time,
except when [he] ha[s] to go out to get merchandise.” R.R. at 542a; see also R.R. at
241a-243a, 548a-549a. He stated that Licensee employs nine people, including
himself and one security person. See R.R. at 276a, 541a. He added that Licensee’s
driving patrons use an eight-space parking lot abutting the Licensed Premises. See
PLCB Record Exs. B-4 – B-6 (R.R. at 332a, 334a).
Li described that one of buildings in the Licensed Premises’ immediate
vicinity is a YMCA; another is a place where “a lot of people go . . . to eat lunch, it
seems like . . . the lunch [is] free”; a different building houses a place where “people,
when they go in, they have to report the time that they go in. . . . [T]here is a certain
time that [they] have to return back to that building”; and, in other buildings, old tools
and clothes are sold. R.R. at 544a; see also PLCB Record Exs. B-4 – B-6 (R.R. at
255a, 332a, 334a).
Li acknowledged that there is a problem with drugs in the neighborhood.
See R.R. at 545a. He articulated that he reports drug or other criminal activity to the
police when he is aware of it, and he met with the police in 201417 and again in 2015,
16
The Licensed Premises is open Sundays from 9:00 a.m. to 2:00 a.m. See R.R. at 242a.
17
Although Li could not recall exactly when the 2014 meeting occurred, he testified that it
took place after the July 23, 2014 stabbing incident occurred. See R.R.at 280a.
17
at the police department’s request, and discussed concerns. See R.R. at 255a-256a,
278a-281a, 299a, 545a, 550a. In addition, Li recalled the police on two occasions
telling him about incidents at the Licensed Premises after they occurred and, in 2014,
informing him of neighbor complaints about Licensee’s customers “doing things that
. . . affect[ed] [the neighbors’] daily living.” R.R. at 547a; see also R.R. at 248a-
249a, 256a. Li claimed he took steps to correct the problems. R.R. at 551a.
Specifically, Li stated that Licensee hired two part-time security
personnel in 2014, including Rodrigues, whose duties were not dedicated solely to
security; rather, they “also [did] odd jobs in the restaurant.” R.R. at 256a; see also
R.R. at 257a, 277a, 281a-282a, 300a, 304a-305a, 307a-308a, 311a, 315a-316a. He
recounted that the men worked either 4:00 p.m. or 5:00 p.m. to 8:00 p.m. or 9:00
p.m., or 8:00 p.m. or 9:00 p.m. to 2:00 a.m., and added that his counter personnel
“can also do some sort of security.” R.R. at 282a. Li recalled that those individuals
wore jackets labeled “Li’s Kitchen Security” and, in addition to watching people
enter and exit the establishment, they were required to clean areas in the restaurant
and in the parking lot as necessary. See R.R. at 257a-259a, 282a. He asserted that if
a patron makes trouble inside the Licensed Premises, he/she is asked to leave and, if
he/she does not leave, Li will call the police. See R.R. at 296a. When asked whether
security personnel patrolled the parking lot, Li responded: “Well, he doesn’t sit out
there all the time. Sometimes he goes out there and then sometimes he comes in.”
R.R. at 257a. Li clarified at the trial court hearing that Licensee’s security was
required to monitor the inside and outside of the Licensed Premises in January 2015.
See R.R. at 306a, 552a-553a. In order to prevent loitering, Li asserted that he will
stand outside the Licensed Premises if there are people out there and will tell them to
leave. See R.R. at 300a-301a.
Li described additional changes he made after the 2015 meeting with
police, including removing three televisions and the jukebox from the Licensed
18
Premises,18 raising alcohol prices and limiting total beer purchases to four per patron.
See R.R. at 551a-552a; see also R.R. at 273a-275a, 291a-292a, 300a, 304a, 307a,
309a, 311a. He admitted that he does not check identifications of patrons he knows,
or who look “pretty old aged.” R.R. at 287a; see also R.R. at 292a. Li testified that
the outside of the Licensed Premises has been well lit since 2011, with a street light
and an additional, installed lighting at the exit. See R.R. at 272a-273a, 291a; PLCB
Record Ex. L-8 (R.R. at 393a-397a). He also stated that Licensee checks patron
identifications with a scanner.19 See R.R. at 286a.
Li explained that Licensee has had security cameras on the Licensed
Premises in the same place since it opened in 2011, but they were upgraded in 2015.
See R.R. at 283a-284a, 296a-297a, 307a. He described that there are two security
cameras in Licensee’s parking lot, two outside the Licensed Premises (one in front
and one in back), plus five or six cameras inside the Licensed Premises, all of which
can be viewed on his computer at home, on a monitor inside the Licensed Premises
visible to patrons, and on Li’s cell phone. See R.R. at 542a-543a; see also R.R. at
261a-266a, 286a, 301a; PLCB Record Exs. L-4, L-5 (R.R. at 363a-382a). He
described that one of the cameras shows the parking lot and Newberry Street to the
left of the Licensed Premises. See R.R. at 299a, 301a. Li admitted at the PLCB
hearing:
Q. And is there somebody always viewing the computers?
A. No.
Q. How often would you say that the computers are being
watched?
18
Li represented that he removed the entertainment late in 2015 or early in 2016. See R.R.
at 275a.
19
Li described Licensee’s two scanning devices – one built into the cash register, and a
stand-alone device. See R.R. at 286a.
19
A. Usually only when something happens that I will go see.
Normally there’s --- nothing happened, everything’s good,
we don’t watch it.
Q. So why did you put the security cameras up in the
restaurant and outside?
A. I’m having to prevent criminals doing bad things in my
place.
R.R. at 266a-267a; see also R.R. at 306a-307a. Li admitted that if he goes to the
front window, he can see outside the front of the establishment. See R.R. at 301a.
Li asserted at the PLCB hearing that if he knows that a patron has
committed a crime at or near the Licensed Premises, he makes the patron leave and,
“if [the offense is] serious enough,” he refuses to serve him/her. R.R. at 267a; see
also R.R. at 314a. He further explained: “I usually have a photograph of the
criminals. And then for those ones that I have photographs of, I leave the photos at
my counter and then I would not allow these people to enter my place.” R.R. at 267a;
see also R.R. at 268a; PLCB Record Ex. L-6 (R.R. at 383a-390a). Li could not name
the people in the photographs, but claimed he and the staff would recognize them if
he saw them. See R.R. at 268a, 287a-290a, 298a.
In addition, Li represented that he and his son prepared, based upon
information his son obtained from the police department in 2015, a list of “people
who had committed crimes,” and are not to be served at the Licensed Premises and on
whom the police will be called if they refuse to leave.20 R.R. at 268a; see also R.R. at
270a-272a, 290a-291a, 309a-310a, 314a; PLCB Record Ex. L-7 (R.R. at 391a-392a).
He pronounced that he instructed the staff to refer to the photographs and the barred
persons list before serving patrons. See R.R. at 272a, 301a-302a. Li did not
recognize Rhoades’ name on the list, nor could he explain why Rhoades was
20
According to the list, Sechrist, Kelly, Spellman, Chance, Coleman, Hairston, Rhoades,
Allston and Rosado have been permanently banned. See R.R. at 391a-392a.
20
permanently banned in 2014 and again in 2015. See R.R. at 293a-294a, 391a. Li did
not know whether the list has been updated since 2015. See R.R. at 310a.
Li offered at the PLCB hearing that Licensee has had various
informational signs posted on the Licensed Premises since it opened in 2011, but it
has continued to post more in an effort “to prevent the . . . illegal activities happening
at [his] place.” R.R. at 261a; see also R.R. at 282a, 291a, 295a-296a. Li recalled:
I have many signs. On the outside on the wall, I have a
poster sign saying that this place is under 24 hours of video
supervision. And then inside of the door, I have a poster
saying that you are not allowed to have guns inside. [I] also
ha[ve] a sign stating if you are not my customer, you are not
allowed to stand in front of my door.
R.R. at 259a; see also R.R. at 261a; PLCB Record Ex. L-3 (R.R. at 337a-362a). At
the trial court hearing, he added:
The outside signs that no drinking liquor outside and no
bringing food inside the restaurant. And the inside signs
that if you do not purchase merchandise from our
restaurant, you cannot sit here and no illegal activities in
here, okay. And you are not allowed to purchase any
alcoholic drink, if you are not 21 years old. And no fighting
inside the restaurant.
R.R. at 543a. Li asserted that Licensee’s staff is tasked with enforcing the no
loitering policy. See R.R. at 283a.
Li claimed that he was unaware of the July 30, 2014, January 29, 2015
and February 20, 2015 drug transactions at the Licensed Premises until the PLCB
hearings. See R.R. at 311a-313a, 550a, 554a, 556a. Although he recalled Greer’s
arrest inside on January 29, 2015, he claims he was never informed why Greer was
arrested. See R.R. at 556a. Li reported that although he was aware that Rodrigues
was arrested at the Licensed Premises on February 20, 2015, he was not aware that
Rodrigues was selling drugs inside until he heard about it at the PLCB hearing. See
21
R.R. at 546a. He clarified that Rodrigues has not worked at the Licensed Premises
since that day, and that a professional security company now provides security at the
Licensed Premises. See R.R. at 310a, 546a. Li testified that Licensee also requires
employee drug testing, and employees who test positive are fired. See R.R. at 547a.
Li represented at the PLCB hearing that following the rules is very
important to him. See R.R. at 275a, 304a. He stated that he lives approximately 10
or 15 minutes from the Licensed Premises and, when he is not there, Licensee’s entire
staff is responsible for operations, rather than a single person. See R.R. at 276a,
310a. Li testified that no police officer or PLCB representative has ever approached
him and suggested that Licensee’s security employees used metal detection wands on
patrons, nor have they ever asked him to submit activity logs. See R.R. at 555a. He
claimed that the changes Licensee has made have decreased business. See R.R. at
304a.
“[T]he trial court has the same level of discretion as the [PLCB] in liquor
license renewal cases[.]” BCLT, Inc. v. Pa. Liquor Control Bd., 120 A.3d 1069, 1076
(Pa. Cmwlth. 2015). Here, based on the PLCB Record and Li’s additional trial court
testimony, the trial court concluded:
2) The [PLCB] met its burden of proof that Licensee knew
about or should have known about nine out of the fourteen
incidents that took place in 2014 and 2015. Licensee’s
actions contributed or furthered the sale of drugs or
presence of intoxicated individuals inside the premises and
in the area around the premises. Licensee is responsible,
without scienter, for the four incidents where intoxicated
individuals were found causing problems on [the Licensed
Premises]. Licensee knew or should have known that drugs
were being sold inside the [Licensed Premises] and in the
parking lot.
3) [Relative] to the ‘[Rodrigues] Incident[,]’ we conclude
that this incident can be directly linked to [Licensee]. The
[PLCB] provided by a preponderance of the evidence that
[Rodrigues], a security guard and employee of [Licensee],
22
did sell narcotics on the premises. The record is silent as to
whether [Licensee] conducted background checks or
received personal references before hiring [] Rodrigues.
Licensee knew or should have known that [] Rodrigues was
engaged in illegal activities on the premises and did not take
any remedial measures until after [] Rodrigues sold drugs
on the [Licensed Premises] and was arrested.
4) We conclude that [based on] the manner in which [the
Licensed Premises] was operated while [Licensee and its]
servants, agents, or employees were involved with that
[L]icense, activity occurred on or about the [L]icensed
[P]remises or in areas under [Licensee’s] control when the
[Licensed Premises] was open for operation and that there
was a relationship between the activity outside the premises
and the manner in which the [Licensed Premises] was
operated, such that the [PLCB’s] decision to not renew the
[L]icense is well supported.
5) Finally, we conclude that Licensee did not take enough
affirmative measures or substantial steps to prevent future
incidents from happening on its [Licensed Premises]. In
particular, Licensee’s hiring of the security guards was not
effective because no background checks or personal
references were obtained. The [trial c]ourt finds the
measures taken by Licensee are not enough to allow the
renewal of [its License].
Trial Ct. Op. at 17-18.
All of the incidents the Bureau presented were reported to have occurred
at Licensee’s record address during its operating hours, either inside the
establishment, outside in its immediate proximity or in Licensee’s parking lot.
Moreover, in all of the instances, the police officers testified to some connection
between the incidents and the Licensed Premises.
Specifically, on March 17 and June 8, 2014, patrons were drunk inside
the Licensed Premises – one to the point of being unresponsive, and the other unable
to walk under his own power.21 On May 2 and October 11, 2014, men were
21
Licensee’s counsel (Counsel) argued before this Court that Licensee should not be
punished for proactively reporting issues occurring at its premises in an effort to reduce them.
23
discovered outside Licensee’s restaurant inebriated to the point that one fell and
struck his head when he tried to walk, and the other was found unresponsive by
officers who feared he was dead. All four of these individuals were cited for public
drunkenness. In addition, on February 26, 2015, an intoxicated man was cited for
drinking beer from a can in a brown paper bag outside Licensee’s parking lot
entrance. On October 15, 2015, an intoxicated man exited the Licensed Premises and
was cited for disorderly conduct for his behavior immediately outside Licensee’s
window. On July 23, 2014, a disagreement that began inside the premises among
three patrons continued outside and resulted in one of them being stabbed outside
Licensee’s front door. Licensee offered no evidence that the adjacent sidewalk or the
parking lot were outside its control. Despite police (and, in some cases, ambulance)
activity outside Licensee’s establishment during these latter five incidents, and police
request for Licensee’s video of the stabbing, neither Li nor Licensee’s other
employees were seen outside or asked what was happening.
There were also five drug arrests in a six-month period that the Bureau
tied to Licensee’s operations. Acting on July 2, 2014 and January 29 and January 30,
2015 reports that patrons were offering drugs for sale inside Licensee’s
establishment, and a February 20, 2015 report that Licensee’s employee (Rodrigues)
was also doing so, police made drug arrests.22 Although the July 30, 2014 drug sale
occurred in Licensee’s parking lot, the seller entered the Licensed Premises and met
with Rodrigues immediately thereafter. And, despite that the January 29, 2015 drug
Under conditions in which it is clear that Licensee did not create the underlying situation, this Court
may agree. However, there is no record evidence to support Counsel’s representations that the
March 17 and June 8, 2014 incidents were self-reported, and Counsel’s claims do not suffice as
such. See Brady v. Workers’ Comp. Appeal Bd. (Morgan Drive Away, Inc.), 923 A.2d 529 (Pa.
Cmwlth. 2007) (counsel’s statements are not evidence).
22
In each of these instances, the officers learned that drugs were offered to the informants
inside Licensed Premises. Upon investigation, the officers arrested persons who were in possession
of drugs inside the Licensed Premises. This Court acknowledges that the officers did not witness
drug sales inside the Licensed Premises on those occasions.
24
transaction occurred outside, the seller exited the Licensed Premises, made the sale
on the sidewalk just outside the Licensed Premises and immediately returned inside
the Licensed Premises. Notably, the latter two outside sales occurred in broad
daylight. Again, notwithstanding the police activity and/or arrests at or immediately
outside the Licensed Premises, and at least one police request to view video footage,
neither Li nor any other of Licensee’s employees inquired about what was going on.
This Court rejected a corporate licensee’s argument that his “limited
worldliness and [] blissful ignorance” relieves a licensee of responsibility for
unlawful activity on or near its premises, even clandestine drug deals, when such
activity is pervasive. Pa. State Police, Bureau of Liquor Control Enforcement v. Can,
Inc., 651 A.2d 1160, 1165 (Pa. Cmwlth. 1994). Moreover, “licensees are not
permitted to push their problems out the front door and disregard them. Rather, they
must monitor what goes on outside and immediately adjacent to their premises as an
extension of their operations.” Paey Assocs., 78 A.3d at 1200. Based on this Court’s
review of the instant matter, there was substantial evidence presented to support the
trial court’s conclusion that Licensee’s business was operated such that, in particular,
drug activity and public drunkenness were permitted inside or immediately outside in
areas under Licensee’s control, and was so pervasive that Licensee’s principals or
employees should have known thereof.
“The [PLCB and/or the trial court] 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)(4). This Court acknowledges that “[l]icensees are
‘not required to do everything possible to prevent criminal activity on the premises,
act as their own police force, or close their business.’” Allison v. Pa. Liquor Control
Bd., 131 A.3d 1075, 1081 (Pa. Cmwlth. 2016) (quoting Rosing, Inc. v. Pa. Liquor
Control Bd., 690 A.2d 758, 762 (Pa. Cmwlth. 1997)). However, substantial
affirmative measures should be designed to prevent illegal activity. See St. Nicholas.
25
Moreover, “[r]emedial measures must be taken at a time when the licensed
establishment knows or should know that illicit activity is occurring on the premises.”
I.B.P.O.E. of W. Mount Vernon Lodge 151 v. Pa. Liquor Control Bd., 969 A.2d 642,
649 (Pa. Cmwlth. 2009).
Here, despite Licensee’s knowledge of the drug activity in the area and
discussions with police about the problems stemming from Licensee’s operation as
early as 2014, public drunkenness and drug activity continued in and around
Licensee’s establishment. Li testified regarding Licensee’s measures to combat the
problems as of 2014. Specifically, Licensee’s signs warned that such activity would
not be tolerated, Licensee hired security, Licensee employed a fairly extensive
surveillance and monitoring system, and the area was well-lit. Some time in 2015,
Licensee also began using a barred patron list/photos, raised prices, limited purchases
and removed the entertainment equipment. Notwithstanding, loitering, public
drunkenness and drug activity, even by an employee, continued to occur.
It is apparent based on Li’s testimony that although he was apprised of
neighborhood complaints about Licensee’s operation, and of the neighborhood drug
problems, he made only a cursory effort to improve conditions, mostly kept himself
in the dark about what was happening, and failed to take even the slightest proactive
steps such as inquiring into known illegal activities on or within areas over which he
had control. At the Licensed Premises, security doubled as wait-staff and were not
dedicated to monitoring the inside and outside of the establishment. When events
occurred both inside and outside, neither Li nor Licensee’s staff made any effort to
find out what happened or who was involved. The mere fact that police regularly
entered the premises and removed patrons and, on one occasion, removed and
arrested an employee should, at the very least, have triggered Licensee’s curiosity,
and put Li on notice. In addition, while Licensee’s technology allowed Li to monitor
the premises at all times, he did not check the cameras unless he was asked to do so.
26
Li also acknowledged that he and the other employees can see outside the Licensed
Premises, yet was unaware of most of the incidents about which the Bureau presented
evidence.
There is no magic number or type of incident or span of
time that constitutes a pattern of conduct to require the
PLCB to refuse to renew a liquor license. . . . [T]he trial
court was [] presented with uncontradicted evidence that at
least [12] police incidents took place at or near [the
Licensed Premises]. Because there was substantial
evidence to support the trial court’s determination that there
was a pattern of illegal conduct at [or near] Licensee’s
premises sufficient for the PLCB to refuse to renew the
License, and there being no abuse of discretion, this Court
will not disturb the trial court’s order.
Paey Assocs., Inc., 78 A.3d at 1199.
Based on the foregoing, the trial court’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
27
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
York Best Food, LLC :
t/a Li’s Kitchen, :
Appellant :
:
v. :
: No. 1076 C.D. 2017
Pennsylvania Liquor Control Board :
ORDER
AND NOW, this 11th day of October, 2018, the York County Common
Pleas Court’s July 11, 2017 order is affirmed.
___________________________
ANNE E. COVEY, Judge