Mailing Date:  June 11, 2003

 
PENNSYLVANIA LIQUOR CONTROL BOARD
HARRISBURG, PA    17124-0001
 
PENNSYLVANIA STATE POLICE,
BUREAU OF LIQUOR CONTROL
ENFORCEMENT
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Citation No. 02-1084

vs.

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OAKTON STRIP, INC.
t/a Oakton Hotel
351 Golf Course Road
Stoystown, PA  15563-9801
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License No. H-5563
 
Counsel for Licensee:
Ex-Parte  (before ALJ)
 
Joseph B. Policicchio, Esquire (on appeal)
Ogle, Policicchio & Frantz
118 West Main Street
Suite 301
Somerset, PA  15501-0026
 
Counsel for Bureau:
Nadia L. Vargo, Esquire
PENNSYLVANIA STATE
POLICE,
Bureau of Liquor Control Enforcement
One Parkway Center
, Suite 100
875 Greentree Road
Pittsburgh, PA  15220-3603
 
O P I N I O N
        Oakton Strip, Inc. t/a Oakton Hotel (“Licensee”) appealed from the Adjudication and Order of Administrative Law Judge Felix Thau (“ALJ”), wherein the ALJ sustained the citation and imposed a fine of one thousand dollars ($1,000.00) and a three (3)-day license suspension.
        The citation charged Licensee with a violation of section 493(28) of the Liquor Code [47 P.S. § 4-493(28)], in that Theodore C. Moskey, Licensee’s president, consumed alcoholic beverages while tending bar or otherwise serving alcoholic beverages, on December 13, 2001 and February 28, 2002.
        Pursuant to section 471 of the Liquor Code [47 P.S. § 4-471], the appeal in this case must be based solely on the record before the ALJ.  The Board shall only reverse the decision of the ALJ if the ALJ committed an error of law or abused his discretion, or if the decision was not based upon substantial evidence.
        The Commonwealth Court defined “substantial evidence” to be such relevant evidence as a reasonable person might accept as adequate to support a conclusion requiring something more than a scintilla creating mere suspicion of the fact to be established.  Johnson v. Pennsylvania Board of Probation and Parole, 706 A.2d 903 (Pa. Cmwlth. 1998); Chapman v. Pennsylvania Board of Probation and Parole, 86 Pa. Cmwlth. 49, 484 A.2d 413 (1984).
        Licensee contends on appeal that the ALJ’s findings of fact that Licensee’s president served a can of beer on December 13, 2001, and that he served a mixed drink on February 28, 2002, were not supported by substantial evidence.  Licensee further contends that the ALJ’s penalty was too severe under the circumstances, especially in light of the fact that Licensee’s counsel notified the Office of the Administrative Law Judge that Licensee would not attend the hearing.
        A hearing was scheduled in this matter before the ALJ on February 21, 2003.  Proper notice of the hearing was given.  (N.T. 4).  A review of the record from the hearing revealed that Tom Quinn, a former officer with the Pennsylvania State Police, Bureau of Liquor Control Enforcement (“Bureau”), visited the licensed premises on December 13, 2001, at 9:45 p.m., and observed Licensee’s corporate president, Theodore Moskey, consuming a Bud Light beer while he was seated on the patron side of the bar.  (N.T. 5-6, 8-10, 15).  Officer Quinn approached the bar and he ordered a twelve (12) ounce bottle of Miller Light beer, whereupon Mr. Moskey went behind the bar and served him.  (N.T. 10).  Officer Quinn observed Mr. Moskey serving other patrons beer and mixed drinks.  (N.T. 10).  Officer Quinn observed Mr. Moskey still standing behind the bar at 10:21 p.m., consuming a twelve (12) ounce can of Bud Light beer.  (N.T. 10)  Mr. Moskey was observed to be the only employee rendering service to ten (10) patrons on the evening in question.  (N.T. 10, 15).
        Bureau Officer Steven Siko visited the licensed premises on February 28, 2002 at approximately 10:20 p.m.  (N.T. 14, 16).  He observed seven (7) patrons in the bar area, but he saw no one behind the bar.  (N.T. 16).  Officer Siko observed Mr. Moskey sitting at a table watching a game of pool and holding what appeared to be a can of Bud Light beer.  (N.T. 16-17).  Following his return from a trip to the bathroom, Officer Siko noticed Mr. Moskey had gone behind the bar.  (N.T. 17).  Officer Siko ordered a mixed drink which Mr. Moskey served to him.  (N.T. 17).  He observed Mr. Moskey render service, thereafter, of alcoholic beverages to three (3) other patrons.  (N.T. 18).
        It is well settled that licensees are subject to strict liability for violations of the Liquor Code.  Pennsylvania Liquor Control Board v. TLK, Inc., 518 Pa. 500, 544 A.2d 931 (1988).  Section 493(28) of the Liquor Code [47 P.S. § 4-493(28)] specifically prohibits any licensee, or its servants, agents or employees, from consuming liquor or malt or brewed beverages while tending bar or otherwise serving liquor or malt or brewed beverages.  The facts of record clearly establish that the totality of Mr. Moskey’s actions constituted self-service and consumption of beer at a time when he was responsible for service of alcohol to Licensee’s patrons during regular business hours.  The testimony of the Bureau officers supports the ALJ’s finding that Licensee was acting in violation of section 493(28) of the Liquor Code on December 13, 2001 and February 28, 2002.
        Licensee finally asserts on appeal that the penalty imposed by the ALJ was excessive and not based on the evidence.  Section 471(b) of the Liquor Code provides for a penalty of a license suspension or revocation, or a fine in the range of fifty dollars ($50.00) to one thousand dollars ($1,000.00), or both, for violations such as the one that occurred in the instant matter.  [47 P.S. § 4-471(b)].  The penalty imposed by the ALJ falls within the parameters of section 471.  Because the Board is without authority to disturb the penalties that are within the parameters set forth in the Liquor Code, the penalty imposed by the ALJ will stand.
        Because the decision of the ALJ was based on substantial evidence, it is affirmed.

 
 
O R D E R
 
The decision of the ALJ is affirmed.
The appeal of Licensee is dismissed.
        It is hereby ordered that Licensee pay a fine of one thousand dollars ($1,000.00) within twenty (20) days of the mailing date of this Order.  Failure to do so will result in license suspension and/or revocation.
        It is further ordered that Licensee’s Hotel Liquor License No. H-5563 be suspended for a period of three (3) days, beginning at 7:00 a.m. on Monday, July 14, 2003, and ending at 7:00 a.m. on Thursday, July 17, 2003.
        Licensee is directed on Monday, July 14, 2003, at 7:00 a.m. to place a Notice of Suspension placard (Form No. PLCB-1925) in a conspicuous place on the outside of the licensed premises or in a window plainly visible from outside the licensed premises and to remove said license from the wall and place it in a secure location.
        Licensee is authorized on Thursday, July 17, 2003, at 7:00 a.m., to remove the Notice of Suspension placard and return its license to its original location.
        Licensee must adhere to all other conditions set forth in the ALJ’s Order of March 21, 2003.
 
___________________________________
Board Secretary                 
 


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