Commonwealth, Pennsylvania Liquor Control Board v. Turn-Verein

Opinion by

President Judge Crumlish, Jr.,

The Pennsylvania Liquor Control Board (Board) appeals a Cambria Connty Common Pleas Court order which reversed Johnstown Turn-Verein’s (licensee) liquor license suspension. We reverse.

The licensee, a club, was ¡cited with a violation of the Liquor Code¹ which prohibits the sale of alcoholic beverages to non-members. After two refusals, an agent was served tw¡o drinks on his third visit. Based on this violation, the Board ordered a seven-day license .suspension.

In the trial .court, by agreement, no additional testimony was heard. The licensee argued that the one violation was de minimis and could not sustain the penalty imposed.² The court agreed, but we must reverse.

Our scope of review is limited to a determination of whether this record .supports the Board’s action and whether the trial court abused its discretion or committed an error of law. Pennsylvania Liquor Control Board Appeal, 49 Pa. Commonwealth iCt. 255, 261, 411 A.2d 1258, 1259 (1980). The trial court did abuse its discretion by concluding that, because the proved violation was de minimis, it did not justify this penalty. In jRoad Drivers’ Association of Pennsylvania Liquor License Case, 30 Pa. Commonwealth Ct. 323, 326, 373 A.2d 1161, 1163 (1977), we sustained a license revocation, holding that the .sale of alcoholic beverages to non-club members was indeed a serious offense.

Moreover, it is well settled .that a common pleas court may not change a penalty except when it has made 'significant and materially different findings from the Board. In Re: The Boardwalk, Inc., 70 Pa. Commonwealth Ct. 416, A.2d (1982). Here, the ■trial court made no findings materially different from the Board. A .finding that the severity of the penalty was in issue is error until our Legislature or our Supreme Court orders otherwise. We must hold that this constituted an abuse of discretion.

Reversed.

Order

The order of the Cambria County Common Pleas Court, No. C-Misc. 1981-52, dated 'September 30, 1981, is reversed and the suspension reinstated.

1 Section 406(a) of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §4-406(a) which provides in part:

No club licensee nor its officers, servants, agents or employes, -other than one holding a catering license, shall sell any liquor or mal't -or brewed beverages to any person except a member of the club.

2 Before the trial court, the licensee also argued that the actions of the agent constituted entrapment. However, the trial court rejected this argument and, on appeal to this Court, the licensee has chosen to stand on the lower court’s opinion, thus abandoning this portion of its argument.