PA State Police, Bureau of Liquor Control Enforcement v. Big D Restaurants, LLC , 149 A.3d 890 ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania State Police, Bureau of :
Liquor Control Enforcement, :
Appellant :
:
v. :
: No. 2706 C.D. 2015
Big D Restaurants, LLC : Submitted: May 27, 2016
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: September 8, 2016
The Pennsylvania State Police, Bureau of Liquor Control Enforcement
(Bureau) appeals from the Allegheny County Common Pleas Court’s (trial court)
December 3, 2015 order dismissing a citation that charged Big D Restaurants, LLC
(Licensee) with violating the Liquor Code1 by failing to adhere to conditional
licensing agreement (CLA) terms. The Bureau presents three issues for this Court’s
review: (1) whether the trial court erred by sustaining Licensee’s due process
challenge; (2) whether the trial court erred by concluding that the relevant CLA term
was ambiguous and thus, Licensee did not violate the CLA; and, (3) whether the
Bureau presented substantial evidence to the trial court to support Licensee’s CLA
violations.
Licensee holds Restaurant Liquor License No. R-7831 (License). The
License is held subject to a CLA entered into with the Pennsylvania Liquor Control
1
Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 1-101 - 10-1001.
Board (Board) on April 27, 2010 under which Licensee agreed to additional
restrictions on the License and the licensed premises.2
Paragraph 5 of the CLA imposed the following restrictions and
obligations:
a. [Licensee] shall within ninety (90) days of the approval
of this Agreement, become compliant with and remain
compliant with the Responsible Alcohol Management
provisions of the Liquor Code. . . ;
b. [Licensee] shall use a metal detecting wand on all
patrons entering the premises and shall prohibit
patrons from bringing weapons into the premises;
c. [Licensee] shall maintain and enforce a written barred
patrons list on the licensed premises. . . . ;
d. [Licensee] shall maintain adequate security at the
premises, including the employment of one (1) security
guard between the hours of 9:00 p.m. and closing time
on all Monday through Thursday evenings, and two (2)
security guards between the hours of 9:00 p.m. and
closing time on all other evenings that [Licensee] is
operating. At least one (1) security guard shall be
present on the exterior of the premises beginning one
half (1/2) hour prior to closing and remaining until one
half (l/2) hour after closing, to ensure the orderly
departure of patrons and monitor their departure. In
addition, the security guard or another employee at
[Licensee] shall conduct a patrol of the entire exterior of
the premises, including the parking lot, every one half
(1/2) hour, from 9:00 p.m. until closing on all nights of
operation. A record of each patrol, including the date
and time of the patrol and the name of the employee
conducting the patrol, shall be maintained by [Licensee]
as a business record, subject to [S]ection 493(12) of the
Liquor Code;
2
Licensee entered into the CLA to address the Board’s Bureau of Licensing’s (Licensing)
concerns regarding Licensee’s transfer application. Specifically, the Board objected to Licensee’s
sole member’s reputation based on the member’s involvement with another license and a criminal
conviction for workers’ compensation fraud.
2
e. [Licensee] shall maintain regular monthly contact with
local police in order to address any problems. . . . ;
f. [Licensee] shall maintain and monitor the two (2) existing
surveillance cameras. These cameras shall be operational
whenever the premises is open for business. . . . ;
g. [Licensee] shall immediately notify the police upon
becoming aware of any unlawful activity occurring on or
about the licensed premises;
h. [Licensee]’s member or manager will attend monthly
Homewood-Brushton Public Safety Committee meetings. . .
.
Reproduced Record (R.R.) at 182a-184a (emphasis added).
On May 2, 2013, the Bureau notified Licensee that it had received
information pertaining to two alleged violations that may result in a citation:
1. SMOKED AND/OR PERMITTED SMOKING IN A PUBLIC
PLACE WHERE SMOKING IS PROHIBITED. . . .
2. FAILED TO ADHERE TO THE CONDITIONS OF THE
AGREEMENT ENTERED INTO WITH THE BOARD
PLACING ADDITIONAL RESTRICTIONS UPON THE
SUBJECT LICENSE. . . .
R.R. at 175a. On May 24, 2013, the Bureau issued a citation (Citation) which
charged Licensee as follows:
1. On January 28, February 4, 20, and March 13, 2013,
you, by your servants, agents or employees, smoked and/or
permitted smoking in a public place where smoking is
prohibited, in violation of Section 471 of the Liquor Code,
47 P.S. §[ ]4-471 and Section 637.6(a)(2) of the Clean
Indoor Air Act,[3] 35 P.S. § 637.6(a)(2). [(Count One)]
2. On January 28, February 4, 20, and March 13, 2013, you,
by your servants, agents or employees, failed to adhere to
the conditions of the agreement entered into with the Board
placing additional restrictions upon the subject license, in
3
Act of June 13, 2008, P.L. 182, 35 P.S. §§ 637.1-637.11.
3
violation of Section 404 of the Liquor Code, 47 P.S. §[ ]4-
404. [(Count Two)]
R.R. at 176a-177a.
An administrative law judge (ALJ) hearing was held on January 15,
2014. At the hearing, Licensee admitted to the Count One violation.4 See R.R. at
129a. Thereafter, the following exchange occurred:
[BUREAU’S ATTORNEY]: Your Honor, regarding
[C]ount [T]wo, as I understand it, [L]icensee is stipulating
that on the dates charged in the [C]itation that the
[Bureau’s Enforcement O]fficer [Nicole Beswick-
Uzarski (Officer)] was not wanded when she entered the
subject establishment.
[LICENSEE’S ATTORNEY]: Well, Your Honor, the
[O]fficer is going to testify. I just have one or two
questions.
[ALJ]: All right. You want the [O]fficer to testify?
[LICENSEE’S ATTORNEY]: I just - - -.
[ALJ]: This is the type of case where I wasn’t certain if
there was any factual dispute.
[LICENSEE’S ATTORNEY]: However you want to
proceed, Your Honor. We’re not arguing that the
individual was not wanded at the time --- we’re not
arguing that the [O]fficer was not wanded at the time
they [sic] went in.
[ALJ]: Based on your pre-hearing memorandum, you’re
arguing - - -.
[LICENSEE’S ATTORNEY]: Our argument is it wasn’t
required.
4
The trial court stated in its opinion: “The smoking issue seems to have fallen by the way
side for it was not addressed in either the Administrative Appeal or before me . . . .” R.R. at 109a.
However, at the ALJ hearing, the ALJ asked Licensee’s counsel: “[Licensee] is admitting to a
violation of Count [O]ne?” R.R. at 129a. Licensee’s Counsel responded: “Yes, Your Honor. Our
position here is, you know, we are agreeable that [C]ount [O]ne did occur.” Id. Accordingly, the
ALJ upheld the Count One violation.
4
[ALJ]: You raise there’s some ambiguity in the [CLA]?
[LICENSEE’S ATTORNEY]: Correct, Your Honor.
[ALJ]: All right.
[LICENSEE’S ATTORNEY]: We’re arguing it wasn’t
required at the time.
[ALJ]: That’s a matter we’ll have to address as the hearing
progresses. I don’t know that - - -.
[LICENSEE’S ATTORNEY]: My questions for the
[O]fficer are all focused on her interaction with the officer
as a mitigation if Your Honor were to find that - - -.
[ALJ]: That’s fine. The Bureau’s witnesses are here and
they can be sworn and testify. You can cross-examine.
Perhaps we can make it brief. Whatever needs to be done is
fine.
[BUREAU’S ATTORNEY]: Your Honor, excuse me.
Regarding [C]ount [T]wo, to clarify, my understanding is
that [L]icensee’s counsel would like to question my
[O]fficer regarding [Licensee’s] mitigation, but he’s not
requesting that [the Officer] testify. He’s stipulating.
[ALJ]: All right.
[LICENSEE’S ATTORNEY]: That’s correct.
[BUREAU’S ATTORNEY]: [The Officer] is here just to
respond to [Licensee’s] questions that regard mitigation.
[ALJ]: All right. That’s fair enough. So basically this
Court is then - - - the parties are asking that this Court
utilize the facts as presented in the Bureau’s pre-hearing
memorandum as the basis for its findings of fact in lieu
of direct testimony at this hearing?[5]
5
During the hearing, the Bureau’s attorney asked:
[BUREAU’S ATTORNEY]: Judge, just one other question. Would
the Court want my copy of the pre-hearing memorandum or the Court
will use its own?
5
[BUREAU’S ATTORNEY]: That’s correct.
[ALJ]: Is that accurate?
[LICENSEE’S ATTORNEY]: That’s correct, Your Honor.
[ALJ]: This is both for counts one and two; is that correct . .
.?
[BUREAU’S ATTORNEY]: Yes.
[LICENSEE’S ATTORNEY]: Correct, Your Honor. We’re
content with the veracity of the [O]fficer.
R.R. at 130a-133a (emphasis added). The Officer’s testimony did not include
descriptions of her visits to the premises on the dates in question. Instead, she stated
briefly that she was responsible for the investigation that resulted in the subject
Citation and, on cross-examination, she testified regarding the dates and times she
was present in the licensed premises. The Officer admitted that she had not been in
the premises after 9:00 p.m., that she visited in an undercover capacity, and that she
had not spoken with the owner during any visits to the licensed premises.
Licensee’s sole member Derrick L. Hemby (Hemby) described
Licensee’s operation, and explained that, based on his understanding of the CLA,
Licensee was only required to wand customers during the times that security is
present. Licensee’s counsel argued to the ALJ that Licensee had not violated the
[ALJ]: I can take official notice of that. Is there any objection . . .
?
[LICENSEE’S ATTORNEY]: No.
[ALJ]: I have the pre-hearing [memorandum] and I assume there are
no amendments.
[BUREAU’S ATTORNEY]: Yes.
[ALJ]: Thank you.
R.R. at 139a (emphasis added). The Bureau’s pre-hearing memorandum was not offered into
evidence.
6
CLA because the CLA’s wanding provision was ambiguous and should be interpreted
to require wanding only at times when the CLA required security at the premises.
On April 15, 2014, the ALJ issued his adjudication. The ALJ made the
following factual findings regarding Citation Count Two:
3. Licensee entered into a . . . CLA[] with the Board on
April 27, 2010. Provision 5(b) of this [CLA] states as
follows: ‘[Licensee] shall use a metal detecting wand on all
patrons entering the premises and shall prohibit patrons
from bringing weapons into the premises;’ (Stipulated,
N.T. pp. 5, 12)[.]
4. On Monday, January 28, 2013, between 4:03 p.m. and
5:01 p.m., an . . . Officer conducted an undercover visit of
Licensee’s premises and observed a female bartender
rendering service to the patronage. Upon entering, the . . .
Officer, as well as other patrons who entered, were not
scanned with a metal detecting wand. (Stipulated, N.T. pp.
4-5, 18)[.]
5. On Monday, February 4, 2013, between the hours of 5:14
p.m. and 6:00 p.m., an . . . Officer conducted an undercover
visit of Licensee’s premises and observed a female
bartender rendering service to 10 patrons. Upon entering,
the . . . Officer was not scanned with a metal detecting
wand. (Stipulated[,] N.T. pp. 4-5, 18)[.]
6. On Wednesday, February 20, 2013, between the hours of
4:38 p.m and 5:57 p.m., two [e]nforcement [o]fficers
conducted an undercover visit of Licensee’s premises and
observed a female bartender rendering service to
approximately 30 patrons. Upon entering, the
[e]nforcement [o]fficers were not scanned with a metal
detecting wand. (Stipulated, N.T. pp. 4- 5, 18)[.]
7. On Wednesday, March 13, 2013, between the hours of
7:30 p.m. and 8:19 p.m., two [e]nforcement [o]fficers
conducted an undercover visit of Licensee’s premises and
observed a female bartender rendering service to 10
patrons. Upon entering, the [e]nforcement [o]fficers were
not scanned with a metal detecting wand. (Stipulated, N.T.
pp. 4 -5, 18, 32)[.]
7
R.R. at 195a-196a. Based thereon, the ALJ concluded that the Bureau met its
evidentiary burden.6 The ALJ rejected Licensee’s contention that the CLA’s
paragraph 5(b) wanding provision is ambiguous and/or requires wanding only when
security is at the premises. Licensee appealed to the Board which, by July 16, 2014
Opinion (July 16, 2014 Board Decision), affirmed the ALJ’s decision. Licensee
appealed to the trial court.
The trial court held a de novo hearing on September 1, 2015, during
which the Bureau7 introduced the record made before the ALJ, including the Citation
and notes of testimony, but offered no additional evidence.8 Hemby testified on
Licensee’s behalf. On December 3, 2015, the trial court issued its opinion dismissing
the Citation.
The trial court declared that Licensee was denied due process because
the Citation did not identify the CLA’s particular sub-paragraph that Licensee
purportedly violated. Further, the trial court held that the Bureau failed to present
substantial evidence to prove Licensee’s CLA violation. Finally, the trial court
accepted Licensee’s contention that since the CLA’s paragraph 5(b) wanding
provision was ambiguous, it could reasonably be read to only require wanding during
6
The ALJ imposed upon Licensee a $200.00 fine for the Count One violation, and a
$600.00 fine for the Count Two violation.
7
The trial court appears to have confused the Board with the Bureau in this case. The Board
is the Commonwealth agency authorized to issue licenses for the sale of liquor, wine and malt or
brewed beverages. See Section 207 of the Liquor Code, 47 P.S. § 2-207. The Bureau is the branch
of the Pennsylvania State Police that “is responsible for enforcing the Liquor Code.” Pa. State
Police v. Hospitality Invs. of Phila., Inc., 689 A.2d 213, 214 (Pa. 1997). The Board hears appeals
from ALJ citation hearing decisions. See 47 P.S. § 4-471.
8
The trial court incorrectly refers to the ALJ’s adjudication as “the recommended decision
of the ALJ,” and refers to the Board’s July 16, 2014 decision as “the Board’s adoption of that
recommendation.” R.R. at 108a. The ALJ’s adjudication is not a “recommended” adjudication.
Licensee appealed from the ALJ’s decision to the Board. The Board’s disposition of Licensee’s
appeal resulted in the July 16, 2014 Board Decision. See Section 471(b) of the Liquor Code, 47
P.S. § 4-471(b).
8
times when security was required to be at the licensed premises. The Bureau
appealed to this Court.9
The Bureau first argues that the trial court erred by dismissing the
Citation on grounds that Licensee’s due process rights were violated. We agree.
The trial court’s opinion states:
[The Citation] was challenged on the basis of lack of due
process in that the [C]itation does not tell [Licensee] what it
is accused of. It merely says it ‘[f]ailed to adhere to the
condition of an agreement entered with the Board.’ This
cryptic language gives [Licensee] no information about
what it did or is accused of doing. Indeed, it did not even
reference the section or paragraph in the CLA. This strikes
me as a denial of due process. As to the due process issue,
Counsel and the ALJ and the Board place great emphasis on
a certain ‘pre-hearing memorandum’ allegedly filed by the
prosecution. While the same is referenced in the
Administrative Record it was never made an exhibit there
or in front of me. I note in the Administrative Record, at
page 6, in reference to that pre-hearing memorandum,
Counsel for [Licensee] said: ‘It’s not being introduced[.’]
That accounts for it not being in the Administrative Record.
Further, the [Bureau] did not introduce this memorandum
before me. Counsel for [Licensee] . . . argues that due
process, at a minimum, requires a sufficient listing and
explanation of the charges.
Obviously that did not occur here. Further[,] the effort to
cure that error by writing up a ‘pre-hearing memorandum’ -
which was not offered in evidence either before the ALJ or
me - is woefully inadequate. . . .
Finally, [the Bureau’s] Counsel objects to the due process
issue being raised in the de novo trial and again erroneously
cites to Appellate Court Standards, not de novo trials.
9
“This Court’s standard of review in a Liquor Code enforcement appeal is limited to
determining whether the trial court committed an error of law or an abuse of discretion.” Pa. State
Police, Bureau of Liquor Control Enforcement v. Kenrich Athletic Club, License No. C-1297, 49
A.3d 13, 18 n.7 (Pa. Cmwlth. 2012).
9
Counsel for [Licensee] has persuasively argued that the
[C]itation is defective because it gives no notice of the basis
of the [C]itation. It merely cites the CLA but makes no
reference to any subparagraph of it. Thus[,] the Citation
should be dismissed on that ground alone.
R.R at 109a-110a (quotation marks omitted).
This Court has explained that “due process notice requirements are
fulfilled when the licensee is informed of the type and the date of the alleged
violation.” Derry St. Pub, Inc. v. Pa. State Police, Bureau of Liquor Control
Enforcement, 111 A.3d 1240, 1246 (Pa. Cmwlth. 2015) (emphasis added). Further,
“the [Bureau] is given wide latitude in the generality of its charges.” Pa. Liquor
Control Bd. v. Reda, 463 A.2d 108, 109 (Pa. Cmwlth. 1983). Although the Bureau
“is given wide latitude[,]” we agree that, given CLA paragraph 5’s eight separate
conditions, the violation set forth in Citation Count Two was inadequate to inform
Licensee of the specific conduct supporting the charge. Id. However, that is not the
end of our due process inquiry.
In Moore v. Department of Transportation, Bureau of Motor Vehicles,
19 A.3d 1200 (Pa. Cmwlth. 2011), this Court stated:
Due process is a flexible concept and imposes only such
safeguards warranted by the situation. Although notice is
essential to due process, due process notice requirements
are non-technical. Adequate notice for purposes of
procedural due process consists of, at a minimum, a
sufficient listing and explanation of the charges. The
meaningful opportunity to be heard requirement of
procedural due process entails an appropriate hearing. In
assessing an alleged denial of procedural due process,
demonstrable prejudice is a key factor.
Id. at 1204 (citations omitted; emphasis added).
Notwithstanding the Citation’s lack of specificity, it is clear that
Licensee was aware of the basis for the Count Two charge at the time of the ALJ
hearing, and that demonstrable prejudice did not occur. At the ALJ hearing,
10
Licensee’s counsel explained that Licensee was “not arguing that the [O]fficer was
not wanded at the time [she] went in. . . . Our argument is it wasn’t required.” R.R.
at 130a-131a.10 Further, Hemby acknowledged that he understood the basis of the
Citation, and Licensee’s evidence focused almost exclusively on the wanding and
security the CLA required. On direct examination, Hemby testified as follows:
Q. Are you familiar with the conditions that
brought us here today?
A. Yes, I am, sir.
Q. What’s your understanding of the conditions in
question for the [CLA] you signed?
A. I was under the impression that the agreement
stated from the time 9:00 p.m. to 2:00 a.m., Monday
through Thursday that I was supposed to have two security
[guards] from those hours and Friday and Saturday I was
supposed - - - no, excuse me - - - two security [guards]
Friday and Saturday; one Monday through Thursday and
that everybody must be wanded and that was carried
out during those hours.
Q. Okay. So you have security Monday through
Thursday, one; Friday and Saturday, two in conformity with
the agreement?
A. Yes.
Q. Do those security [guards] wand every patron that
comes in after 9:00?
A. Yes, they do.
Q. And that was your interpretation of the [CLA];
correct?
10
Licensee’s counsel’s agreement to stipulate to the facts contained in the Bureau’s pre-
hearing memo further establishes that Licensee had notice of the basis for the charges at the ALJ
hearing. Further, Licensee’s counsel submitted a post-hearing brief to the ALJ that addressed the
wanding condition as the basis for Count Two of the Citation.
11
A. Right. I grouped everything under security’s
responsibility and me overseeing it.
R.R. at 148a-149a (emphasis added). The remainder of Hemby’s testimony focused
almost entirely on these issues. Counsel’s representations and Hemby’s testimony
demonstrate that Licensee was well aware of the basis for the Citation Count Two
and presented evidence accordingly.11 Thus, no prejudice occurred.
Even if we ignored Licensee’s Counsel’s aforementioned statements to
the ALJ and Hemby’s admissions, we still conclude that Licensee was afforded due
process since “a party’s full participation in a trial court’s de novo hearing, as was the
case here, will cure a prior notice deficiency.” Paey Assocs. v. Pa. Liquor Control
Bd., 78 A.3d 1187, 1192 (Pa. Cmwlth. 2013). Any alleged confusion or lack of
clarity regarding the basis for the Citation Count Two was definitively resolved upon
issuance of the ALJ’s decision. Thus, when Licensee appeared before the trial court,
it undoubtedly was aware of the basis for the Citation and presented evidence
accordingly.12 Therefore, we hold that the trial court erred by concluding that
Licensee was denied due process.
11
Notably, Licensee did not raise any objection to the Citation’s specificity at the ALJ
hearing. In fact, Licensee’s Counsel stipulated that the Bureau complied with the Liquor Code’s
notice provisions in issuing the Citation. See R.R. at 139a-140a. While Licensee was permitted to
raise the due process issue at the de novo hearing before the trial court, it stretches credulity to
believe that had Licensee been unaware of the basis for the Citation, its counsel would not have
raised the due process argument before the ALJ; that counsel would have focused Hemby’s
testimony almost exclusively to the wanding issue; or that counsel would have stipulated to the ALJ
that it had received proper notice of the violation.
12
We further reject Licensee’s contention that “[s]ince the record of an administrative
hearing is admissible at the [trial court] level . . . the testimony elicited at the administrative level
would retain such prejudice at the de novo hearing should the administrative record be devoid of a
reference to what is actually being charged.” Licensee’s Br. at 10. The record reflects that
Licensee was aware of the bases for the charges at the administrative hearing. Further, although the
trial court is required to receive the administrative record below, if offered, see Pa. State Police,
Bureau of Liquor Control Enforcement v. Kelly’s Bar, Inc., 639 A.2d 440 (Pa. 1994), it is free to
determine the weight and credibility of the evidence. See In re Hotel Liquor v. TABS Entm’t, Inc.,
125 A.3d 487 (Pa. Cmwlth. 2015); see also CSC Enters. v. Pa. State Police, Bureau of Liquor
12
The Bureau also contends that the trial court erred by holding that the
CLA’s wanding provision was ambiguous and, thus, Licensee did not violate the
CLA. We agree.
The trial court considered Hemby’s testimony, reviewed the CLA and
explained:
Subparagraph [5(]b[) of the CLA] requires [Licensee] to
‘use a metal detecting wand on all patrons entering the
premises . . .’ and subparagraph [5(]d[) of the CLA]
requires that ‘[Licensee] shall maintain adequate security at
the premise, including the employment of one (1) security
guard between the hour of 9:00 p.m. and closing time on
Monday through Thursday evenings and two (2) security
guards between the hour of 9:00 p.m. and closing time on
all other evenings that [Licensee] is operating. . . [.]’
The Board contends that [Licensee] violated subparagraph
[5(]b[)] of the CLA because it did not ‘wand’ prior to 9 p.m.
[Hemby], the proprietor[,] explained that he believed the
wanding was an element of security and that only security
guards should do the wanding. He explained that a
customer would rightly be intimidated and fearful if
approached by a lay person (i.e. not security personnel)
with an object that could easily be interpreted as a weapon.
Thus[,] Hemby did not wand when security was not present
to do it. He asserts an ambiguity in the CLA which justified
his action.
I am inclined to agree with Hemby. The CLA makes no
mention of who shall do the wanding; it makes no reference
in subparagraph [5(]d[) of the CLA] - the security guard
section - back to subpara[graph 5(]b[) of the CLA] - the
wanding.
I[,] therefore[,] find it reasonable that Hemby thought the
wanding was only required after 9[:00] p.m.
R.R. at 112a.
Control Enforcement, 782 A.2d 57 (Pa. Cmwlth. 2001). Accordingly, any such allegations of
prejudice are meritless.
13
“Because a CLA is a voluntary agreement entered into by both the Board
and the licensee, a CLA is a contract between the parties akin to a consent decree.”
Derry St. Pub, 111 A.3d at 1253. Whether written contract terms are ambiguous is
strictly a legal determination. Erie Ins. Co. v. Flood, 649 A.2d 736 (Pa. Cmwlth.
1994). This Court has explained:
A [contract] provision is ambiguous:
[I]f and only if, it is reasonably or fairly
susceptible of different constructions and is
capable of being understood in more senses
than one and is obscure in meaning through
indefiniteness of expression or has a double
meaning. A contract is not ambiguous if the
court can determine its meaning without any
guide other than a knowledge of the simple
facts on which, from the nature of language in
general, its meaning depends; and a contract is
not rendered ambiguous by the mere fact that
the parties do not agree upon the proper
construction.
Commonwealth State Highway [&] Bridge Auth[.] v. E.J.
Albrecht Co[.], . . . 430 A.2d 328, 330 ([Pa. Cmwlth.] 1981)
(quoting 8 P.L.E. Contracts 146 (1971)) (emphasis added).
‘We will not [. . .] distort the meaning of the language, or
resort to a strained contrivance in order to find an
ambiguity.’ Madison Constr[.] Co. v. Harleysville Mut.
Ins. Co., . . . 735 A.2d [100, ] 106 [(Pa. 1999)]. ‘Where,
however, the language of the contract is clear and
unambiguous, a court is required to give effect to that
language.’ Standard Venetian Blind [Co. v. Am. Empire
Ins. Co.], . . . 469 A.2d [563,] 566 [(Pa. 1983)].
TIG Specialty Ins. Co. v. Koken, 855 A.2d 900, 909 (Pa. Cmwlth. 2004) (bold
emphasis added), aff’d 890 A.2d 1045 (Pa. 2005). “The failure of [a party to a
contract] to include a contingency limiting the application of [a] term . . . renders the
term silent, not ambiguous.” Ragnar Benson, Inc. v. Hempfield Twp. Mun. Auth.,
916 A.2d 1183, 1189 (Pa. Super. 2007) (emphasis added).
14
Licensee contends, and the trial court agreed, that when the CLA’s
paragraph 5(b) wanding provision is read in conjunction with the CLA’s paragraph
5(d) security guard provision, there is ambiguity regarding when patrons must be
wanded and who must wand them. However, we find no such ambiguity.
CLA paragraph 5(b)’s plain language requires that Licensee “shall use a
metal detecting wand on all patrons . . . .” R.R. at 182a (emphasis added). The
provision is not ambiguous; it is clear. The paragraph contains no language limiting
the time for wanding, makes no reference to CLA paragraph 5(d),13 and does not
mention security personnel. The absence of a particular time period and the broad
language contained in paragraph 5(b) is an unambiguous requirement that every
patron entering the premises must be wanded whenever the individual enters. “We
will not . . . distort the meaning of the language or resort to a strained contrivance in
order to find an ambiguity.” Madison Constr., 735 A.2d at 106. Accordingly, the
trial court committed an error of law when it concluded that the CLA’s paragraph
5(b) wanding provision was ambiguous.
Lastly, the Bureau argues it presented substantial evidence to the trial
court to support the Count Two violations.14 We agree. The trial court explained:
While counsel for the [Bureau] suggested to me that the
issue involved [Licensee’s] alleged failure to use an
electronic or magnetic wand for security purposes at certain
hours, no evidence of that was offered before me. Indeed,
the [Bureau] relied on the Administrative Record and
offered nothing additional to me.
In the record made at the [ALJ] hearing (received as an
Exhibit)[,] the facts in support of the citation were minimal.
They appear at pages 17 through 19 and simply establish
13
Nor does CLA paragraph 5(d) reference CLA paragraph 5(b).
14
“Substantial evidence is defined as ‘relevant evidence upon which a reasonable mind
could base a conclusion.’” Weaver Hauling & Excavating, LLC v. Dep't of Labor & Indus., 132
A.3d 557 , 566 (Pa. Cmwlth. 2016) (quoting Johnson v. Unemployment Comp. Bd. of Review, 502
A.2d 738, 740 (Pa. Cmwlth. 1986)).
15
that the [Officer] was indeed in [Licensee’s] premises for
30 to 45 minutes on the 4 days in question; she was not
there after 9[:00] p.m. and she did [not] speak to the owner,
[Hemby] or interact with him[;] she was there
‘undercover[.’]
Hemby testified that he had security guards at the bar
between the hours of 9[:00] p.m. and 2[:00] a.m. and they
were to wand all customers who entered. He testified,
however, that for the hours prior to 9[:00] p.m. a wand need
not be used and that other security measures were taken -
like personal pat down or search (Admin. Record 25-27).
As noted above, the de novo trial was held before me on
September 1, 2015. In addition to Counsel for the [Bureau],
the investigator was with counsel but did not testify.
R.R. at 111a (italics added).
The record reflects that the Bureau relied on the parties’ stipulation to
the facts set forth in the Bureau’s pre-hearing memo at the administrative hearing,
and the ALJ’s statement that the ALJ would take official notice of the facts as
represented therein. The ALJ made findings describing the incidents involving
Licensee’s failure to wand that were presumably discussed in the Bureau’s pre-
hearing memo. However, because the pre-hearing memo was not made a part of the
record, the trial court concluded there was no evidence thereof before it.
Notwithstanding, there is record evidence supporting Licensee’s
violations. Count Two of the Citation charged:
On January 28, February 4, 20, and March 13, 2013, you,
by your servants, agents or employees, failed to adhere to
the conditions of the agreement entered into with the Board
placing additional restrictions upon the subject license, in
violation of Section 404 of the Liquor Code, 47, P.S. § 4-
404.
R.R. at 177a. Importantly, an exchange between counsel and the ALJ, including a
representation made by Licensee’s counsel, provides sufficient factual evidence to
support the charge. Licensee’s counsel stipulated and admitted that Licensee was not
16
challenging the Bureau’s allegation that the Bureau’s officers were not wanded when
entering the licensed premises on January 28, February 4, 20, and March 13, 2013 --
the dates charged. Rather, he was arguing that wanding was not required. See R.R.
at 130a-131a. “It is well settled . . . that an admission of an attorney during the
course of a trial is binding upon his client.” Piper Aircraft Corp. v. Workmen’s
Comp. Appeal Bd. (Bibey), 485 A.2d 906, 908 (Pa. Cmwlth. 1985). Further, Hemby
admitted to the trial court that, even before receiving the Citation, Licensee did not
begin wanding patrons until 9:00 p.m. when its security guard was present. See R.R.
at 57a. As previously discussed, the CLA required that at all times, all patrons
entering the premises be wanded. Accordingly, these admissions alone were
substantial evidence to support the Bureau’s charge.
For all of the above reasons, the trial court’s order is reversed.
___________________________
ANNE E. COVEY, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania State Police, Bureau of :
Liquor Control Enforcement, :
Appellant :
:
v. :
: No. 2706 C.D. 2015
Big D Restaurants, LLC :
ORDER
AND NOW, this 8th day of September, 2016, the Allegheny County
Common Pleas Court’s December 3, 2015 order is reversed.
___________________________
ANNE E. COVEY, Judge