Mailing Date: APR 20 2004 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. 03-1176



v.

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Incident No. W04-272789
LID - 4029

PENN PLUM VFW POST 6836
160 MILLTOWN RD
PENN HILLS TWP
VERONA, PA 15147-3717

ALLEGHENY COUNTY
LICENSE NO. C-5659

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BEFORE: JUDGE ROBERT F. SKWARYK

APPEARANCES:

For Bureau of Enforcement

For Licensee

Richard G. Parker, Esq.

Edward F. Wood,
Club Quartermaster, Pro se

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

BACKGROUND:

This proceeding arises out of a citation that was issued on July 15, 2003, by the Bureau of Liquor Control Enforcement of the Pennsylvania State Police (hereinafter Bureau) against Penn Plum VFW Post 6836, License Number C-5659 (hereinafter Licensee).

The citation charges Licensee with violation of Section 471 of the Liquor Code [47 P.S. §4-471], and Section 5513 of the Crimes Code [18 Pa. C.S. §5513], in that on May 23, and June 10, 2003, Licensee, by its servants, agents or employees, possessed or operated gambling devices or paraphernalia or permitted gambling or lotteries, poolselling and/or bookmaking on the licensed premises.

The investigation which gave rise to the citation began on May 23, 2003, and was completed on June 19, 2003. The notice of violation letter was mailed to Licensee on June 30, 2003.

An evidentiary hearing was held on this matter on March 16, 2004, in Pittsburgh, Pennsylvania.

Upon review of the transcript of the 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 Club Liquor License Number C-5659. (N.T. 4)

2. On Friday, May 23, 2003, at 8:10 p.m., an enforcement officer entered the licensed premises as a patron departed and purchased a Budweiser draft beer from a female bartender who had him sign two log books. (N.T. 7-8)

3. The officer observed four video gambling machines set up inside the club and operational. (N. T. 8)

4. The officer observed two female patrons begin to play one of the machines by inserting $5.00, and they subsequently accrued 2,300 points. (N.T. 9-11)

5. The bartender recorded the transaction on a slip of paper, paid $115.00 to the patrons, taken from a drawer next to the cash register, and then knocked off the 2,300 points from the machine by pushing a series of buttons on its left side. (N.T. 9-11)

6. On Tuesday, June 10, 2003, at 2:35 p.m., a detail of enforcement officers arrived at the licensed premises to serve a search warrant for gambling devices and found a female bartender rendering service of alcoholic beverages to five patrons. (N. T. 11)

7. The officers seized four video slot machines as suspected gambling devices per se, after each accepted U.S. currency to play, and the accrued points could be knocked-off. (N.T. 12-13)

8. On June 19, 2003, the seized gambling machines were examined and found to accept U.S. currency to play, had knock-off devices, video accounting, and required no skill to play. (N.T. 14-18)

CONCLUSIONS OF LAW:

Sustained as charged.

DISCUSSION:

At the hearing held on the matter, the enforcement officer testified in detail that on Friday, May 23, 2003, he observed licensee's bartender pay $115.00 to two patrons for winnings on a video gambling machine, and that the bartender knocked off points and reset the machines.

On Tuesday, June 10, 2003, enforcement officers returned to the club and seized four video slot machines as suspected gambling devices per se. On June 19, 2003, the seized machines were examined and each found to accept U.S. currency to play, required no skill to play, and accumulated credits which could be erased or knocked-off via pushing a series of buttons on the machine, and each contained video accounting for the number of credits erased.

The Club Quartermaster testified that the four video machines seized on June 10, 2003 were different from the machines in place on May 23, 2003. In rebuttal, the officer testified that the machine observed on Friday, May 23, 2003 had unique markings and was one of the machines seized on Tuesday, June 10, 2003.

The Pennsylvania Supreme Court has held that when violations of the Liquor Code and its attendant laws and regulations are not the conduct in review, a licensee is liable only if it knew or should have known of the illegal activity and if it fails to prove substantial measures taken to eliminate a known pattern of illegal activity Pa. Liquor Control Bd. v. TLK, Inc. , 544 A.2d 931 (Pa. 1988); I find that licensee knew that illegal gambling payoffs were being made on the video machines and that the TLK element of this case has been met.

I also find that an illegal gambling payoff was made by the bartender on May 23, 2003, and the four video machines seized from the club on June 10, 2003 were gambling devices per se, see Commonwealth of Pennsylvania v. Two Electronic Poker Game Machines, 465 A.2d 973 (Pa. 1983). The club's argument that they are not the same machines is immaterial and not a defense in this case.

PRIOR RECORD:

Licensee has been licensed since April 19, 1984, and has had two prior violations since July 1, 1987, the date of establishment of the Office of Administrative Law Judge, to wit:

Citation No. 96-1140. Fine $700.00. Waiver of hearing.

1. Possessed or operated gambling devices or paraphernalia or permitted gambling or lotteries on a licensed premises (machines).

2. Sales to nonmembers.

Citation No. 99-1433. Fine $250.00. Waiver of hearing.

1. Sales to nonmembers. July 31, 1999.

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 and the Licensee's citation history, a fine of $750.00 will be imposed as the penalty in this case.

ORDER:

THEREFORE, it is hereby ordered that Penn Plum VFW Post 6836, License Number C-5659 pay a fine of $750.00 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, Licensees' 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 your 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 14th day of April, 2004

____________________________________
Robert F. Skwaryk, J.

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MOTIONS FOR RECONSIDERATION MUST BE RECEIVED WITHIN 15 DAYS OF THE MAILING DATE OF THIS ORDER IN THE OFFICE OF ADMINISTRATIVE LAW JUDGE AND REQUIRE A $25.00 FILING FEE. A WRITTEN REQUEST FOR RECONSIDERATION MUST BE SUBMITTED WITH THE FILING FEE

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