Mailing Date: JAN 26 2005
COMMONWEALTH OF PENNSYLVANIA
OFFICE OF ADMINISTRATIVE LAW JUDGE
PENNSYLVANIA LIQUOR CONTROL BOARD
POLICE, BUREAU OF
LIQUOR CONTROL ENFORCEMENT
Citation No. 03-1283
Incident No. W01-269193
802-804 LANCASTER AVE.
BERWYN PA 19312-1709
LICENSE NO. R-SS-19399
LID - 47234
FOR THE BUREAU OF ENFORCEMENT:
JAMES E. DAILEY, ESQ.
FOR THE LICENSEE:
BEFORE: JUDGE WRIGHT
This proceeding arises out of a citation that was issued on July 29, 2003, by the Bureau of Liquor Control Enforcement of the Pennsylvania State Police (hereinafter “Bureau”) against Sleiman, Inc., License Number R-SS-19399 (hereinafter “Licensee”).
An Administrative hearing was held on Tuesday, February 10, 2004, pursuant to requisite and appropriate hearing notice. The parties stipulated to the service and receipt of the notice letter and the citation.
The citation charges Licensee with violation of Section 493(1) of the Liquor Code, 47 P.S. Section 4-493(1), in that on July 2, 2003, Licensee, by its servants, agents or employes, sold, furnished and/or gave or permitted such sale, furnishing or giving of alcoholic beverages to one (1) visibly intoxicated male patron.
FINDINGS OF FACT:
1. Officer Gina Kepler is employed by the Bureau of Enforcement and on July 2, 2003, she was assigned to the Philadelphia office. At approximately 7:50 p.m. on that evening, she visited the licensed premises for the purpose of assisting another officer in determining whether the Licensee had a policy of discrimination, i.e. with regard to holding Ladies Night (N.T. 7-8).
2. At approximately 7:50 p.m., Officer Kepler entered the premises. Officer Graham had entered the premises at approximately 7:40 p.m. Officer Kepler noted that there was a bar with tables in the back and that the premises served food. The officer proceeded to the left side of the bar in front of the jukebox. There were five patrons at this time and one bartender. The bartender introduced himself to Officer Kepler. The bartender was a white male, approximately 5’11” tall, weighing 180 lbs. with long brown hair, which he wore in a long ponytail (N.T. 7-9).
3. There were approximately five patrons on the premises. During Officer Kepler visit to the premises, she came into contact with an individual named Lenny. Lenny was sitting directly across from her. There was approximately eight feet between. Lenny struck up a conversation with the officer (N.T. 9-10).
4. Officer Kepler ordered a twelve-ounce bottle of Coors Lite beer. She first observed Lenny in possession of and consuming a pint glass of unknown beer. Lenny was on the premises for approximately fifteen to twenty minutes. Lenny was wearing a straw hat, a striped shirt and gray trousers and had a bag in front of him. He indicated that the bag contained something that he had purchased for his wife. Officer Kepler made a comment about the straw hat and how much she liked it. At that time, Lenny’s speech was somewhat slurred, but she could still understand him (N.T. 11).
5. At approximately 8:05 p.m., Lenny departed the premises. Officer Kepler asked the bartender if Lenny was okay to drive. The bartender stated that it was normal for Lenny and that he had been drinking in there for hours, but was walking home. The bartender further indicated that Lenny stays there for hours and doesn’t leave a tip. The other customers all joined in the conversation stating that Lenny’s wife was going to get mad and that he needed to go home. Patrons and bartenders kept encouraging him to go home because his wife was going to be upset (N.T. 11-13).
6. Lenny exited the premises, turning left. As he departed, he swayed from side to side. He was holding onto the sides of the door for balance. He had no walking devices, for instance a cane or crutches (N.T. 13-14).
7. Approximately twenty-five minutes later as Officer Kepler was preparing to depart the premises, Lenny reentered again swaying from side to side. The customers began joking that Lenny was back and his wife was pretty upset and apparently kicked him out. The bartender asked Lenny if he wanted a beer. The bartender gave him a pint of beer with an emblem on it and then served a round of drinks to everyone seated at the bar. Upon Lenny’s return visit, he sat directly across from Officer Kepler. Lenny immediately purchased a drink for everyone and walked towards her to the jukebox, which was located behind her. He ran into two barstools in the process of getting there. It appeared to be an ongoing joke about Lenny being in the premises for hours and about him being drunk. The patrons even handed the officer a photo album with Lenny in it. The bartender specifically asked her if she wanted to see some “drunken pictures of Lenny” (N.T. 14-16).
8. Officer Kepler remained on the premises for approximately fifteen minutes after Lenny reentered. Again, he went to play some music on the jukebox, which was located behind her (N.T. 16-17).
9. Officer Kepler remained on the premises for a total of one hour (N.T. 19).
10. Michael Sleiman is an officer and president of the licensed corporation (N.T. 20).
11. He explained that the photo album was not for drunk individuals, but that he personally takes everybody’s picture (N.T. 20).
12. Leonard Knight retired in 1992. He stated that he suffered a stroke in March of 1992 and sometimes walks with a cane (N.T. 22-23 and 27-28 and Exhibit L-1).
13. He claims to slur his speech, because of the stroke (N.T. 28).
14. Leonard Knight believes that he is the individual to whom the officer was referring, but does not believe he was intoxicated on that evening (N.T. 36-37).
15. Mr. Knight has been going to that bar since about a year after it opened. He is familiar with the bartenders there (N.T. 41).
CONCLUSIONS OF LAW:
On July 2, 2003, Licensee, by its servants, agents or employes, sold, furnished and/or gave or permitted such sale, furnishing or giving of alcoholic beverages to one (1) visibly intoxicated male patron, in violation of Section 493(1) of the Liquor Code, 47 P.S. Section 4-493(1).
Licensee has been licensed since April 25, 2001, and has no record of prior violations.
Mr. Sleiman denied that Scott, the bartender, would have been working on that particular day. Regardless of who the bartender was, Officer Kepler testified very credibly and noted significant conversations and incidences, which would point to the individual called “Lenny” being visibly intoxicated. It is understood that Lenny is a regular at the bar and that he lives nearby. Often when this is the case, bartenders and bar personnel will make exceptions to the rule because they become accustomed to the person and does not believe that the person is harmful or will be harmed. Nevertheless, it is a violation of the law to serve someone when they are visibly intoxicated. When “Lenny” returned to the premises, he should not have been served alcoholic beverages. Notwithstanding his medical condition, the officer’s testimony and conversation of the patrons and bartender clearly indicate their belief that Lenny was often intoxicated. And, the officer was of the same opinion. Therefore, he should not have been served alcoholic beverages.
Mr. Sleiman also attacks the officer’s credibility saying that she could not have drank or been served the type of beer that she claims to have been served. Clearly, the officer was at the premises and there is nothing which led this Court to believe that the officer’s testimony was anything but truthful. The Licensee has no prior history; therefore, the minimum monetary penalty of $1,000.00 shall be imposed.
Section 471 of the Liquor Code, 47 P.S. Section 4-471, prescribes a penalty of suspension or revocation of license or imposition of a fine of not less than $1,000.00 or more than $5,000.00, or both, for violations of the type found in this case.
Accordingly, we issue the following
THEREFORE, it is hereby Ordered that Licensee, Sleiman, Inc., License Number R-SS-19399, pay a fine of One Thousand Dollars ($1,000.00) within twenty (20) days of the mailing date of this Order. In the event the aforementioned fine is not paid within twenty (20) days from the mailing date of this Order, licensee’s license shall be suspended or revoked.
In order to insure compliance with this Order, jurisdiction of this matter is retained.
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, along with any required documentation, to:
PLCB - Office of Administrative Law Judge
2221 Paxton Church Road
Harrisburg, PA 17110-9661
Dated this __20th_ day of __January_, 2005.
Tania E. Wright, J.
NOTE: MOTIONS FOR RECONSIDERATION MUST BE RECEIVED WITHIN 15 DAYS OF THE MAILING DATE OF THIS ORDER TO 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.