Mailing Date: JUL 2 2003 PUBLICATION

COMMONWEALTH OF PENNSYLVANIA
OFFICE OF ADMINISTRATIVE LAW JUDGE
FOR
PENNSYLVANIA LIQUOR CONTROL BOARD


PENNSYLVANIA STATE
POLICE, BUREAU OF
LIQUOR CONTROL ENFORCEMENT

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Citation No. 02-02-2206


 

v.

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Incident No. W04-255929
LID - 43267




S. & O. HARTLAND, INC
T/A ORIGINAL ITALIAN GRILLE
1230 GROVE RD
CASTLE SHANNON
PITTSBURGH PA 15234-2311

ALLEGHENY COUNTY
LICENSE NO. R-SS-8729

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BEFORE:  JUDGE ROBERT F. SKWARYK

APPEARANCES:

For Bureau of Enforcement

For Licensee

Michael C. Nickles, Esquire



Daniel B. Hargrove, Esquire





A D J U D I C A T I O N

BACKGROUND:

This proceeding arises out of a citation that was issued on December 18, 2002, by the Bureau of Liquor Control Enforcement of the Pennsylvania State Police (hereinafter Bureau) against S. & O. Hartland, Inc., t/a Original Italian Grille, License Number R-SS-8729 (hereinafter Licensee).

The citation charges Licensee with violation of Section 499(a) of the Liquor Code [47 P.S. §4-499(a)], in that on May 20, 2002, Licensee, by its servants, agents or employes, failed to require patrons to vacate that part of the premises habitually used for the service of alcoholic beverages not later than one-half hour after the required time for the cessation of the service of alcoholic beverages.

The investigation which gave rise to the citation began on June 16, 2002 and was completed on November 21, 2002; and notice of the violation was sent to Licensee by Certified Mail on December 4, 2002. The notice of violation was received by Licensee on December 5, 2002.

An evidentiary hearing was held on this matter on May 20, 2003 in Pittsburgh, Pennsylvania.

Upon review of the transcript of this hearing, we make the following Findings of Fact and reach the following Conclusions of Law:

FINDINGS OF FACT:

1. Licensee is located in Allegheny County, Pennsylvania and holds Restaurant Liquor License Number R-SS-8729. (N.T. 4)

2. Licensee’s Board-approved corporate set up is as follows: Kathleen J. Schonhardt, President, Stockholder, Director; Salvador T. Orlando, Stockholder, Director, Secretary/Treasurer, Vice President; Anthony J. Orlando, Manager/Steward. (N.T. 39-40, 83)

3. The citation in this case was the result of a complaint from Castle Shannon Police Department and an investigation by the Bureau during which Enforcement Officer Titler visited the licensed premises or conducted interviews on nine separate dates between June 2002 and November 2002. (N.T. 8-17)

4. On Monday, May 20, 2002 at approximately 3:35 a.m., Officer Watkins of the Castle Shannon Police Department was on routine patrol and observed several cars parked outside the premises and a small light inside. (N.T. 20-21, 28, 45-46, 54)

5. The officer stood by the door for approximately one minute, looked through a window and observed four people inside. (N.T. 21, 47)

6. The officer knocked on the locked door, which was opened by Licensee’s bartender, Patricia Pelone. (N.T. 21)

7. Inside the premises, the officers found four adults: Licensee’s bartender, Patricia Pelone, her husband, Thomas Pelone, April Schonhardt, who was the owner’s daughter and an employe, and Brian Zimmer. (N.T. 21-22, 31-32, 53-56)

8. Thomas Pelone and Brian Zimmer were not employees of nor paid by Licensee. (N.T. 93)

9. The officer observed some plastic cups on the table; however, none of the four individuals found inside were sweeping up or cleaning. (N.T. 22-23)

10. At approximately 3:45 a.m., Officer Watkins departed the licensed premises. (N.T. 47, 57)

CONCLUSIONS OF LAW:

Sustained as charged.

DISCUSSION:

At the hearing held on the matter, the enforcement officer testified as to his investigation, which I find was continuous and ongoing. Pa. State Police v. McCabe, 644 a.2D 1270 (Pa. Cmwlth. 1993)

Officer Watkins of the Castle Shannon Police Department testified in detail that he arrived at the licensed premises at 3:35 a.m. and observed four individuals inside. He knocked on the door and was allowed inside where he found the barmaid and her husband and the owner’s daughter and her boyfriend, none of whom were cleaning up.

Licensee’s corporate president, Kathleen Schonhardt, her barmaid and her daughter testified that the time of the officer’s visit was approximately 2:30 a.m. and the two men found inside were there to assist the women in closing the bar.

Section 499 was added by the Legislature to the Liquor Code by Act 160 of December 7, 1990, and provides, in part, as follows:

(a)…all patrons of a licensee shall be required to leave that part of the premises habitually used for the serving of liquor or malt or brewed beverages to guests or patrons not later than one-half hour after the time the licensee is required by this act to cease serving liquor or malt or brewed beverages and shall not be permitted to have any previously served liquor or malt or brewed beverages in their possession, nor shall they be permitted to remove any previously served liquor or malt or brewed beverages from that part of the premises.

Section 102 of the Liquor Code defines “patron” as follows:

“Patron” shall mean an individual who purchases food, nonalcoholic beverages, liquor, alcohol or malt or brewed beverages for a consideration from a licensee or any person on the licensed premises except those actually engaged in an employment related activity. (emphasis added)

Counsel for Licensee argued that Licensee is the victim of a vendetta by Officer Watkins against the husband of Kathleen Schonhardt and that the officer’s testimony is not credible.

As fact-finders, it is our responsibility to resolve conflicts in the evidence and to determine witness credibility and evidentiary weight. Willard Agri-Service, Inc. v. Department of Agriculture, 554 A.2d 596 (Pa. Cmwlth. 1989); Commonwealth of Pa. State Correctional Institute at Dallas v. Robison, 561 A.2d 82 (Pa. Cmwlth. 1989). We may give testimony such consideration as it may deserve, and accept it or reject it in whole or in part. McFarland Landscape Service v. Workmen’s Compensation Board of Appeal, 557 A.2d 816, 817-18 (Pa. Cmwlth. 1989); Hollenbach v. North Wales Foundry Company, 136 A.2d 148, 150 (Pa. Super. 1957); Las Vegas Supper Club, Inc. v. Pa. Liquor Control Board, 237 A.2d 253 (Pa. Super. 1967).

It is proper for fact-finders to consider a witness’ bias in weighing his/her testimony. Kearns by Kearns v. DeHaas, 546 A.2d 1226 (Pa. Super. 1988); Panczak v. Com. Unemployment Compensation Board of Review, 409 A.2d 929, 931 (Pa. Cmwlth. 1980).

I find the testimony of Officer Watkins to be more credible as to the time of day and events. I also fine that Mr. Petrone and Mr. Zimmer were patrons inside the bar area of the premises during prohibited hours. As such, the citation is sustained as charged.

PRIOR RECORD:

Licensee has been licensed since November 25, 1998, and has had one prior violation, to wit:

Citation No. 00-0405. Fine $300.00. Waiver of hearing.

1. Failed to require patrons to vacate the premises not later than one-half hour after the requiredtime. January 23, 2000.

2. Permitted patrons to possess and/or remove alcoholic beverages after 2:30 a.m. January 23, 2000.

PENALTY:

Section 471 of the Liquor Code [47 P.S. §4-471] prescribes a penalty of license suspension or revocation or a fine of not less than $50.00 or more than $1,000.00 or both for violations of the type found in this case.

After due consideration of the circumstances giving rise to the citation, a fine of $500.00 will be imposed.

ORDER:

THEREFORE, it is hereby ordered that Licensee, S. & O. Hartland, Inc., t/a Original Italian Grille, pay a fine of $500.00 within 20 days of the mailing date of this Order. In the event the aforementioned fine is not paid within 20 days from the mailing date of this Order, Licensee’s license shall be suspended or revoked.

The fine must be paid by Treasurer’s Check, Cashier’s Check, Certified Check or Money Order. Personal checks, which include business-use personal checks, are not acceptable. Please make guaranteed check payable to the Commonwealth of Pennsylvania and mail to:

PLCB-Office of Administrative Law Judge
Brandywine Plaza
2221 Paxton Church Road
Harrisburg PA 17110-9661

JURISDICTION IS RETAINED UNTIL CASE IS CLOSED.


Dated this _25th_ day of _June_, 2003.

____________________________________
Robert F. Skwaryk, J.

cbm

NOTICE: MOTIONS FOR RECONSIDERATION CANNOT BE ACTED UPON UNLESS THEY ARE IN WRITING AND RECEIVED BY THE OFFICE OF ADMINISTRATIVE LAW JUDGE WITHIN 15 DAYS AFTER THE MAILING DATE OF THIS ORDER, ACCOMPANIED BY A $25.00 FILING FEE.

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