Hyland Enterprises, Inc. v. Pennsylvania Liquor Control Board

FRIEDMAN, Judge,

dissenting.

In this case, the Pennsylvania Liquor Control Board (PLCB) has refused to renew the liquor license originally issued to Hyland Enterprises, Inc. and John Hyland, t/a/d/b/a Mickey’s Lounge (collectively, Licensee). The PLCB informed Licensee that the refusal to renew was based upon two reasons, i.e., Licensee’s six past violations of the Liquor Code, Act of April 12,1951, P.L. 90, as amended, 47 P.S. §§ 1-101— 9-902, and a technical defect in the signing of the surety bond required with the renewal application. 1 Section 470 of the Liquor Code states, inter alia, (1) that the PLCB may consider a licensee’s violation history in deciding whether to renew and (2) that the renewal decision is within the discretion of the PLCB. 47 P.S. § 4-470(a) (Supp.1993-94). Nonetheless, in the forty-two year history of the Liquor Code, I can find no case, nor is any cited by the majority, where the refusal to *290 renew was based upon past violations for which a licensee has been convicted and penalized.

Licensee throughout these proceedings has taken the position that the PLCB here is retroactively applying a “nuisance bar program”, first announced by the PLCB in its publication The Licensee Business Quarterly in early 1990. A portion of that announcement stated:

In January of 1990, the Board announced an initiative, pursuant to authority granted by Section 470(a) and (b) of the Liquor Code, to deny applications for license renewal to establishments who frequently demonstrate a flagrant abuse of the privilege of holding a license issued by the Board____ Licensees who have abused their privilege will be turned down at renewal time.

Plaintiffs exhibit A. The majority states that “it is not clear that the Board acted under the nuisance bar program here----” (Majority opinion, p. 5). I believe this statement ignores reality, given the PLCB’s past history on the renewal of licenses. The majority states that this is “merely a restatement of the broad discretionary powers granted to the Board under Section 470.” Id. Nonetheless, it seems to me that such a drastic change in policy by the PLCB, after forty some years of not exercising its discretion in such a fashion, should not be allowed except in a purely prospective fashion. To do otherwise is a flagrant violation of due process and, in my view, an abuse of the PLCB’s discretion on the facts of this case. 2

I also believe that the majority’s reliance on Slovakr-American Citizens Club v. Pennsylvania Liquor Control Board, 120 Pa.Commonwealth Ct. 528, 549 A.2d 251 (1988), is inappropriate. That case did state that a single violation was sufficient to permit the PLCB to exercise its discretion in deciding to revoke a license. Slovak-American, however, was decided when the PLCB was charged with adjudicatory responsibilities on citations issued against a licensee. With the Legislature’s enactment of the Act of June 29, 1987, P.L. 32, that *291 responsibility was taken from the PLCB and placed in the hands of “an autonomous office to be known as the Office of Administrative Law Judge.” 47 P.S. § 2-212(a) (Supp.1993-94); 47 P.S. § 4-471(a) (Supp.1993-94). Under the 1987 amendments, the PLCB now exercises appellate type review of decisions of administrative law judges, as do the courts of common pleas. Appeal of Iggy, Inc., 140 Pa.Commonwealth Ct. 168, 592 A2d 122 (1991). The PLCB is thus no longer given discretion in citation proceedings and reliance upon prior cases dealing with that discretion is, I submit, inappropriate.

Finally, I do not believe the PLCB was entitled to consider the 1979 and 1983 violations of the Liquor Code. Section 464 provides in pertinent part, “In considering the renewal of a license, the board shall not refuse any such renewal on the basis of the propriety of the original issuance or any prior renewal of such license.” 47 P.S. § 4-464 (Supp.1993-94). In this context, a decision based upon an identical portion of the Liquor Code’s predecessor 3 is relevant. The Superior Court held that where the original issuance of a license was illegal, because such issuance exceeded the quota for the municipality, the PLCB could refuse to renew without violating the mandate of section 464’s identical predecessor. As that court stated:

There is a world of difference between propriety and legality. It is scarcely credible that the legislature would use ‘propriety’ when it meant ‘legality’, for the terms are practically antithetical. Certainly the 1947 legislature knew the difference, and employed the same words in the same sentence____ ‘Legality’ imports conformity to law; in this context, ‘propriety’ connotes conformity to a norm of conduct, or more specifically, it signifies appropriateness, suitability, fitness, correctness.

In re Whitford’s Liquor License, 166 Pa.Superior Ct. 48, 51, 70 A.2d 708, 710 (1950). Most importantly, the court went on to state, “A judicial inquiry as to the propriety of an act of a *292 public authority involves judgment based upon the discretion and wisdom exercised in the circumstances.” Id. (emphasis added). In the present case, the PLCB has exercised its discretion on an annual basis and renewed Licensee’s license after the 1979 and 1983 convictions. To consider those convictions again violates both section 464 and the holding in Whit-ford’s.

Hence, this dissent.

. The defect with the surety bond has been rectified and is no longer relevant to these proceedings.

. I express no opinion of the application of the nuisance bar program in a purely prospective fashion.

. Section 2 of the Quota Law, Act of June 24, 1939, P.L. 806, formerly 47 P.S. § 744-1002.