Jet-Set Restaurant, LLC v. PA LCB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jet-Set Restaurant, LLC, :
Appellant :
:
v. :
: No. 564 C.D. 2021
Pennsylvania Liquor Control Board : Submitted: June 10, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: August 29, 2022
Jet-Set Restaurant, LLC (Jet-Set) appeals from the Berks County
Common Pleas Court’s (trial court) April 21, 2021 order dismissing its appeal and
affirming the Pennsylvania Liquor Control Board’s (PLCB) order that denied its
application to renew Restaurant Liquor License No. R-9220 (License). Jet-Set
presents three issues for this Court’s review: (1) whether the trial court’s findings of
fact were supported by substantial evidence and/or whether legally sufficient
evidence was presented at the de novo hearing to support the trial court’s order; (2)
whether the trial court abused its discretion and/or committed an error of law by
dismissing Jet-Set’s appeal because the evidence presented merely established
minor, immaterial breaches of the Conditional Licensing Agreement (CLA) and/or
the Liquor Code1 that did not warrant or support the PLCB’s non-renewal of Jet-
Set’s License; and (3) whether the trial court erred and/or committed an abuse of
1
Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 1-XXX-XX-XXXX.
discretion and/or deprived Jet-Set of its right to due process.2 After review, this
Court affirms.
Background
On November 14, 2014, the Pennsylvania State Police’s Bureau of
Liquor Control Enforcement (Enforcement) issued Jet-Set Citation No. 14-15243
containing three counts: (1) on November 17, 2013, Jet-Set refilled liquor bottles;
(2) on January 1, 2014, Jet-Set failed to require patrons to vacate the licensed
premises no later than one-half hour after the service of alcoholic beverages was
required to cease; and (3) on February 22, 2014, Jet-Set permitted smoking in a
public place where it was prohibited. Jet-Set admitted to the violations and, on
May 13, 2015, an Administrative Law Judge (ALJ) sustained the charges and fined
Jet-Set $850.00.
On December 29, 2014, Enforcement issued Jet-Set Citation No. 14-
24894 containing two counts: (1) on November 1, 2014, and on one other occasion
during 2014, Jet-Set permitted four minors 20 years of age to frequent the licensed
premises; and (2) on November 1, 2014, Jet-Set sold, furnished, and/or gave
alcoholic beverages to two minors 20 years of age. On May 13, 2015, an ALJ
2
Jet-Set specifically asserts that the trial court should not have adopted the findings of fact
and conclusions of law in the PLCB’s Recommended Opinion (Opinion) because the PLCB’s
findings of fact were legally insufficient as a matter of law, not supported by substantial evidence,
and based on inadmissible evidence and/or hearsay, and the PLCB’s Opinion improperly relied on
the criminality that allegedly occurred in close proximity to Jet-Set’s establishment that had no
causal or logical connection to Jet-Set’s operations or the conducting of its business on the
premises. Such assertions were rejected by the trial court.
3
Enforcement charged Jet-Set with violating Sections 491(10), 499(a), and 471 of the
Liquor Code, 47 P.S. §§ 4-491(10), 4-499(a), and 4-471, as well as Section 6(a)(2) of the Clean
Indoor Air Act, Act of June 13, 2008, P.L. 182 , as amended, 35 P.S. § 637.6(a)(2).
4
Enforcement charged Jet-Set with violating Section 493(1), (14) of the Liquor Code, 47
P.S. § 4-493(1), (14).
2
dismissed count one, sustained the allegations in count two upon Jet-Set’s
admission, and fined Jet-Set $1,400.00. In addition, the ALJ ordered Jet-Set to
comply with Section 471.1 of the Liquor Code5 pertaining to Responsible Alcohol
Management Program (RAMP) certification within 90 days. On April 29, 2015,
Enforcement issued Jet-Set Citation No. 15-0752,6 alleging that Jet-Set sold,
furnished, and/or gave alcoholic beverages to a minor 19 years of age on March 12,
2015. Jet-Set admitted to the charge and, on November 16, 2018, an ALJ
sustained the charge and fined Jet-Set $1,500.00.
On June 26, 2015, Enforcement issued Jet-Set Citation No. 15-1128,7
alleging that Jet-Set sold, furnished, and/or gave alcoholic beverages to a minor 19
years of age on May 14, 2015. Jet-Set admitted to the charge and, on November
16, 2018, an ALJ sustained the charge and fined Jet-Set $1,500.00. Further, the ALJ
suspended Jet-Set’s licensing privileges for one day. On December 21, 2015,
Enforcement issued Jet-Set Citation No. 15-2203,8 alleging that, from August 18
through October 7, 2015, Jet-Set failed to comply with the ALJ’s May 13, 2015 order
regarding Citation No. 14-2489, which mandated that Jet-Set obtain RAMP
certification by August 17, 2015. Jet-Set admitted to the charge and an ALJ fined
Jet-Set $300.00.
Facts
On January 27, 2016, the PLCB approved a CLA proposed in response
to its Bureau of Licensing’s (Licensing) initial objections to Jet-Set’s 2015 License
renewal. The CLA imposed numerous additional restrictions on Jet-Set to address
concerns arising from its business operations. By April 18, 2017 letter, Licensing
5
Added by the Act of Dec. 20, 2000, P.L. 993, as amended, 47 P.S. § 4-471.1.
6
Enforcement charged Jet-Set with violating Section 493(1) of the Liquor Code.
7
Enforcement charged Jet-Set with violating Section 493(1) of the Liquor Code.
8
Enforcement charged Jet-Set with violating Section 471(d) of the Liquor Code.
3
sent a conditional approval letter to Jet-Set, stating that its renewal application was
conditionally approved, but that its renewal may be revoked if and when an
ALJ sustains Citation Nos. 15-1128 and 15-0752. On February 15, 2019, Jet-Set
applied to renew its License for the renewal period beginning April 1, 2019. On
March 20, 2019, Licensing notified Jet-Set that, because an ALJ sustained the
above-referenced citations, a hearing would be held regarding the Liquor Code
violations relative to Citation Nos. 15-2203, 15-1128, 15-0752, 14-2489, and 14-
1524, for the License period effective April 1, 2017. By March 21, 2019 letter,
Licensing informed Jet-Set that it objected to the renewal of its License for the
License period effective April 1, 2019, based on its previous objection to the renewal
period effective April 1, 2017.
On October 2, 2019, Licensing’s counsel requested Jet-Set to provide
business records maintained in accordance with Paragraph 6 of the CLA.9 The
October 2, 2019 letter stated that, if Jet-Set did not possess the records, it needed to
provide a verified statement to that effect and, if Licensing did not receive a response
by October 11, 2019, it would presume that the records did not exist. By October 4,
2019 letter, Licensing informed Jet-Set that it would hold a hearing in Plymouth
Meeting, Pennsylvania, on October 16, 2019, based on the following amended
9
Specifically, Licensing requested business records mandated by Paragraph 6(d) (relating
to Jet-Set’s mandated use of a transactional scan device), (f) (relating to Jet-Set’s mandated
security employee patrols of the entire exterior of the establishment), (g) (relating to Jet-Set’s
mandated written barred patrons list), and (h) (relating to Jet-Set’s mandated attendance at
quarterly meetings with the Reading Police Department’s Chief of Police). See Reproduced
Record at 257-258.
Jet-Set’s Reproduced Record fails to comply with the Pennsylvania Rules of Appellate
Procedure. See Pa.R.A.P. 2173 (“[T]he pages of . . . the reproduced record . . . shall be numbered
separately in Arabic figures . . . thus 1, 2, 3, etc., followed in the reproduced record by a small a,
thus 1a, 2a, 3a, etc.”). Specifically, Jet-Set failed to include the small “a” with its Reproduced
Record page numbers. However, for consistency of reference, the citations herein are as reflected
in Jet-Set’s Reproduced Record.
4
objections: (1) Jet-Set’s ineligibility to hold a liquor license based on: (a) its
violation of the Liquor Code relative to Citation Nos. 15-2203, 15-1128, 15-0752,
14-2489, and 14-1524; and (b) the improper conduct of Jet-Set, as there have been
approximately five incidents of disturbances on or about the licensed premises or in
areas under Jet-Set’s control during the time period April 1, 2017 to present,
including, but not limited to, assaults and a shooting; (2) Licensing’s rejection of Jet-
Set’s late-filed renewal application for the period effective April 1, 2017; and (3)
Jet-Set’s member, Ana Abreu, and manager, Jonathan Abreu, were not responsible
persons of good repute and/or had become persons of ill repute.
By October 10, 2019 letter, Licensing informed Jet-Set that the October
16, 2019 hearing was postponed. On October 30, 2019, Licensing informed Jet-Set
that a hearing would be held in Plymouth Meeting, Pennsylvania, on November 19,
2019, based on: Citation Nos. 15-2203, 15-1128, 15-0752, 14-2489, and 14-1524;
five incidents of disturbances on or about the licensed premises or in areas under Jet-
Set’s control during the time period April 1, 2017 to present; Jet-Set’s managers and
members had become persons of ill repute; the PLCB’s belief that there are unknown
entities with a pecuniary interest in the License; failure to report a change of officers;
and failure to provide requested records.
On November 19, 2019, a PLCB Hearing Examiner held a hearing. By
August 5, 2020 order, the PLCB denied Jet Set’s License renewal applications. Jet-
Set appealed to the trial court. On November 17, 2020, the trial court held a
hearing.10 On April 21, 2021, the trial court affirmed the PLCB’s order, dismissed
Jet-Set’s appeal, and incorporated by reference the PLCB’s findings of fact,
conclusions of law, and opinion in support of the PLCB’s August 5, 2020 order. Jet-
10
At the trial court hearing, the parties stipulated to the admission of the November 19,
2019 PLCB hearing record.
5
Set appealed to this Court.11 On June 9, 2021, Jet-Set filed its Concise Statement of
Errors Complained of on Appeal pursuant to Pennsylvania Rule of Appellate
Procedure (Rule) 1925(b) (Rule 1925(b) Statement). On August 6, 2021, the trial
court filed its opinion.
Discussion
Preliminarily, the PLCB argues that Jet-Set waived all issues on appeal
because it failed to develop the issues raised in its Rule 1925(b) Statement.12
Specifically, the PLCB contends that Jet-Set waived all three issues for failing to
follow Rule 2119.13, 14
Rule 2119 provides, in relevant part:
(a) General rule. The argument shall be divided into as
many parts as there are questions to be argued; and shall
have at the head of each part—in distinctive type or in type
distinctively displayed—the particular point treated
therein, followed by such discussion and citation of
authorities as are deemed pertinent.
(b) Citations of authorities. Citations of authorities in
briefs shall be in accordance with [Rule] 126 governing
citations of authorities.
(c) Reference to record. If reference is made to the
pleadings, evidence, charge, opinion or order, or any other
matter appearing in the record, the argument must set
forth, in immediate connection therewith, or in a footnote
11
“Where a trial court hears a liquor license matter de novo, our review determines 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.” Myles Dev. Co., LLC v. Pa. Liquor Control
Bd., 224 A.3d 1119, 1124 n.6 (Pa. Cmwlth. 2020).
12
Jet-Set raised the same issues before this Court as it raised in its Rule 1925(b) Statement.
13
In addition, the PLCB asserts that Jet-Set waived its third issue for failing to raise it
before the trial court.
14
Jet-Set did not file a reply brief in response to the PLCB’s waiver argument.
6
thereto, a reference to the place in the record where the
matter referred to appears (see [Rule] 2132).
(d) Synopsis of evidence. When the finding of, or the
refusal to find, a fact is argued, the argument must contain
a synopsis of all the evidence on the point, with a reference
to the place in the record where the evidence may be
found.
(e) Statement of place of raising or preservation of
issues. Where under the applicable law an issue is not
reviewable on appeal unless raised or preserved below, the
argument must set forth, in immediate connection
therewith or in a footnote thereto, either a specific cross-
reference to the page or pages of the statement of the case
which set forth the information relating thereto as required
by [Rule] 2117(c), or substantially the same information.
Pa.R.A.P. 2119 (underline emphasis added).
The Pennsylvania Supreme Court has explained:
[O]ur rules of appellate procedure are explicit that the
argument contained within a brief must contain “such
discussion and citation of authorities as are deemed
pertinent.” Pa.R.A.P. 2119(a). “[W]here an appellate
brief fails to provide any discussion of a claim with
citation to relevant authority or fails to develop the issue
in any other meaningful fashion capable of review, that
claim is waived. It is not the obligation of [an appellate
court . . . ] to formulate [a]ppellant’s arguments for him.”
Commonwealth v. Johnson, . . . 985 A.2d 915, 924 ([Pa.]
2009) (internal citations omitted).
Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014); see also In re Condemnation
ex rel. Dep’t of Transp., 76 A.3d 101, 109 n.8 (Pa. Cmwlth. 2013) (“A party’s failure
to develop an issue in the argument section of its brief constitutes waiver of the
issue.”).
Here, although Jet-Set sets forth three separate arguments in its Rule
1925(b) Statement, and in its “Statement of Questions Involved” and “Summary of
Argument” portions of its brief, the “Argument” section of its brief contains one
7
long argument consisting of a reiteration of its version of the facts. Jet-Set Br. at 3,
9, 11. Thus, Jet-Set’s argument fails to “be divided into as many parts as there are
questions to be argued,” and fails to “have at the head of each part—in distinctive
type or in type distinctively displayed—the particular point treated therein, followed
by such discussion and citation of authorities as are deemed pertinent.” Pa.R.A.P.
2119(a). Further, Jet-Set’s brief “fails to provide any discussion of [specific]
claim[s] with citation to relevant authority [and] fails to develop the [specific] issue[s
raised] in any other meaningful fashion capable of review[.]” Wirth, 95 A.3d at 837.
Notwithstanding that it was not stated in the required format or with the
requisite specificity, Jet-Set clearly asserts in its brief that the evidence presented
before the trial court merely established minor immaterial breaches of the CLA
and/or the Liquor Code that did not warrant or support the PLCB’s non-renewal of
Jet-Set’s License. Accordingly, this Court will address that issue.
The CLA
Section 470(a)(1) of the Liquor Code provides, in relevant part:
The [PLCB] may enter into a[] [CLA] with the applicant
concerning additional restrictions on the license in
question. If the [PLCB] and the applicant enter into such
a[] [CLA], such [CLA] shall be binding on the applicant.
Failure by the applicant to adhere to the [CLA] will be
sufficient cause . . . for the nonrenewal of the license
under this section.
47 P.S. § 4-470(a)(1) (emphasis added). “It is clear, therefore, that a licensee’s
breach of its CLA may establish a basis for non-renewal of a license.” The Gold
Room, Inc. v. Pa. Liquor Control Bd., 245 A.3d 1143, 1157 (Pa. Cmwlth. 2020); see
also WSM, Inc. v. Pa. Liquor Control Bd. (Pa. Cmwlth. No. 90 C.D. 2017, filed Oct.
8
5, 2017), slip op. at 1215 (“The Liquor Code explicitly provides that breach of a CLA
may form the basis for non-renewal.”). Moreover, Paragraph 7 of Jet-Set’s CLA
expressly provided: “Failure to adhere to this [CLA] may result in citation(s) by
[Licensing], and/or non-renewal of this License by the [PLCB].” Reproduced
Record (R.R.) at 363.
Jet-Set does not dispute that it violated the CLA. Rather, it claims only
that its violations were immaterial. However, the trial court properly concluded:
Jet-Set’s failure to provide records, alone, constitutes a
material breach of the CLA. [See The Gold Room, 245
A.3d at 1157-58 (“failure to comply with the terms of a
CLA relating to record retention constitutes a material
breach thereof”)]. Further, Jet-Set failed to provide
adequate evidence of compliance with the requirements of
the CLA regarding the transaction scanner, security
patrols, and/or meetings with designated police officials.
[See Paragraph 6(d), (f), and (h) of the CLA.]
Trial Ct. Op. at 21. Accordingly, the trial court held that the evidence presented
before the trial court established Jet-Set’s material breaches of the CLA that
supported the PLCB’s refusal to renew Jet-Set’s License.
Liquor Code
Section 470(a.1) of the Liquor Code provides, in relevant part:
The Director of [Licensing] 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];
15
Unreported decisions of this Court, while not binding, may be cited for their persuasive
value. Section 414(a) of the Internal Operating Procedures of the Commonwealth Court, 210 Pa.
Code § 69.414(a). WSM is cited for its persuasive value.
9
(2) if the licensee, its shareholders, directors, officers,
association members, servants, agents or employes have
one or more adjudicated citations under this . . . license
issued by the [PLCB] or were involved in a license whose
renewal was objected to by [Licensing] under this section;
(3) if the licensed premises no longer meets the
requirements of [the Liquor Code] or the [PLCB’s]
regulations; or
(4) due to the manner in which this . . . 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 . . . 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).
The [P]LCB may consider the licensee’s record of
violations when it decides whether to renew a liquor
license and even a single violation may be sufficient to
decline to renew a license. The [P]LCB may examine a
pattern of violations for which penalties have already been
paid in deciding whether to renew a license. This Court
has determined that “regardless of when they occur the []
[PLCB] may consider all [Liquor C]ode violations
committed by a licensee in determining whether to renew
a liquor license.” [Pa. Liquor Control Bd. v.] Bartosh, 730
A.2d [1029,] 1033 [(Pa. Cmwlth. 1999)].
Jim Jay Enters. Inc. v. Pa. Liquor Control Bd., 91 A.3d 274, 283 (Pa. Cmwlth. 2014)
(citations omitted; emphasis added).
10
Here, Jet-Set does not dispute that it violated the Liquor Code, but
claims that its Liquor Code violations were not sufficient to warrant non-renewal of
its License. Contrarily, the trial court described:
At the [t]rial [c]ourt [h]earing, the [p]arties offered the
record from the 2019 [PLCB h]earing in lieu of additional
testimony. The 2019 [PLCB h]earing record reveals Jet-
Set’s substantial history of sustained citations (five) dating
back to 2014. Those citations concern numerous
violations of the Liquor Code, including multiple discrete
incidents of furnishing alcohol to minors, failing to make
patrons vacate the [p]remises after closing, and failing to
comply with a prior order entered by an ALJ regarding
RAMP certification.
Trial Ct. Op. at 18. Accordingly, the trial court concluded that Jet-Set’s Liquor Code
violations were sufficient to support non-renewal of its License.
Conclusion
The trial court determined:
After a de novo hearing predicated entirely upon the 2019
[PLCB h]earing record and a copy of the CLA, the [t]rial
[c]ourt found ample evidence supporting the [PLCB’s]
decision not to renew the License.
Although the [t]rial [c]ourt has sympathy for Jet-Set’s
proprietors[,] given that they have invested so much of
their finances and personal lives in this family-owned
business, the record demonstrates: a “troublesome”
citation history; a pattern of non-compliance with the
Liquor Code, [PLCB] regulations and administrative
orders; violence at the [p]remises and in the immediate
vicinity of the [p]remises; an unwillingness to cooperate
with police; lack of appropriate and effective corrective
measures to address its problematic operations; and
multiple material breaches of the CLA. As such, the
[PLCB] acted appropriately when exercising its discretion
to deny renewal of the License.
11
Trial Ct. Op. at 24-25. This Court discerns no error in the trial court’s reasoning.
Upon our independent review, [this Court] conclude[s]
that the trial court’s findings are supported by substantial
evidence and that its legal conclusion is free from error.
See . . . 47 P.S. § 4-470(a) (stating that breach of a CLA
“will be sufficient cause . . . for the nonrenewal of [a]
license”); St. Nicholas Greek Cath[.] Russian Aid Soc[’y]
v. [Pa.] Liquor Control [Bd.], 41 A.3d 953, 959-60 (Pa.
Cmwlth. 2012) (stating that “even a single past citation or
[Liquor] Code violation is sufficient to support a decision
refusing to renew a license[]”)[; s]ee also . . . Bartosh, 730
A.2d [at] 1033 . . . (“This Court has consistently held that
regardless of when they occur the [PLCB or the trial court]
may consider all [Liquor C]ode violations committed by a
licensee in determining whether to renew a liquor
license.”).
In re: Hotel Liquor License #H-2892 v. Tabs Ent., Inc., 125 A.3d 487, 490 (Pa.
Cmwlth. 2015).
For all of the above reasons, the trial court’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jet-Set Restaurant, LLC, :
Appellant :
:
v. :
: No. 564 C.D. 2021
Pennsylvania Liquor Control Board :
ORDER
AND NOW, this 29th day of August, 2022, the Berks County Common
Pleas Court’s April 21, 2021 order is affirmed.
_________________________________
ANNE E. COVEY, Judge