In Re: Appeal of 2856 Yan Corp. From Decision of PA LCB ~ Appeal of: 2856 Yan Corp.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Appeal of 2856 Yan Corp. : : From Decision of Pennsylvania : No. 555 C.D. 2022 Liquor Control Board : Submitted: June 5, 2023 : Appeal of: 2856 Yan Corp. :

BEFORE: HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE WOJCIK FILED: June 26, 2023

Appellant 2856 Yan Corp. (Licensee) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court), which, following a de novo hearing, affirmed the decision of the Pennsylvania Liquor Control Board (PLCB) denying Licensee’s restaurant liquor license renewal under the Liquor Code,1 based on seven prior citations, including three citations for failure to operate as a bona fide restaurant. Licensee contends that the trial court’s findings are not based on substantial evidence; the trial court abused its discretion given the de minimis nature of the violations; and the trial court erred in refusing to find that Licensee had taken affirmative corrective actions. Upon review, we affirm.

1 Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§1-101 – 10-1001.

Licensee filed an application with the PLCB for the renewal of Pennsylvania Restaurant Liquor License No. R-832 (license) for the premises located at 2854-56 North 22nd Street, Philadelphia, Pennsylvania (licensed premises) for the period beginning November 1, 2020, and ending October 31, 2022. Reproduced Record (R.R.) at 29a-32a. The PLCB’s Bureau of Licensing (Bureau), pursuant to Section 470 of the Liquor Code, 47 P.S. §4-470, notified Licensee that it was objecting to the renewal. The Bureau asserted that Licensee abused its licensing privilege based on prior citations and the failure to operate as a bona fide restaurant. In addition, the Bureau asserted that Licensee’s President, Stockholder and Manager, Yan Chen, was not a responsible person of good repute and/or has become a person of ill repute. R.R. at 35a. Pursuant to Section 464 of the Liquor Code, 47 P.S. §4-464, a hearing on the nonrenewal was held on January 11, 2021, before a PLCB hearing examiner. Based upon the testimony and evidence presented, the hearing examiner recommended the denial of the renewal application. R.R. at 200a. Following review of the record and the hearing examiner’s recommendation, by order dated October 27, 2021, the PLCB refused Licensee’s renewal application. Id. at 122a. Licensee appealed to the trial court.2 At the hearing, the PLCB offered into evidence the complete record of the proceedings before the PLCB hearing examiner. The trial court considered the matter de novo based upon consideration of the certified record, including the hearing examiner’s proposed findings of fact and conclusions of law, the PLCB’s opinion, and the parties’ briefs and arguments. By order dated May 4, 2022, the trial court affirmed the PLCB’s decision and denied Licensee’s appeal. R.R. at 235a. Licensee then filed an appeal with this Court.

2 Thereafter, the PLCB issued an opinion in support of its order. See R.R. at 167a-87a.

At the direction of the trial court, Licensee filed a Pa. R.A.P. 1925(b) statement of errors complained of on appeal (1925(b) Statement), asserting the same issues raised herein. On October 7, 2022, the trial court issued a Pa. R.A.P. 1925(a) Opinion setting forth the reasons for its decision.3 R.R. at 269a-82a. The trial court addressed the assignments of error and set forth the various factors that supported affirming the PLCB’s denial of the renewal application. The trial court independently evaluated the evidence that was presented to the PLCB hearing examiner. The trial court reviewed Licensee’s citation history as reflected in the Bureau’s exhibits. Between 2016 and 2019, Licensee received seven citations, which Licensee did not dispute. Two of the citations were for operating the licensed premises without a valid health license; two were for selling alcohol for off-premises consumption; and three were for failing to act as a bona fide restaurant based on insufficient seating. Although Licensee offered evidence regarding corrective measures taken in response to the citations, the trial court found that the steps were not taken in good faith, noting Licensee repeated the violations after undertaking corrective measures. In response to Licensee’s argument that the trial court abused its discretion on the basis that the citations were de minimis in nature, the trial court

3 A trial court reviewing a decision of the PLCB not to renew a liquor license hears the matter de novo and makes its own findings of fact and conclusions of law. Section 464 of the Liquor Code, 47 P.S. §4-464; Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Cantina Gloria’s Lounge, Inc., 639 A.2d 14, 16 (Pa. 1994). Although the trial court did not render its own findings of fact and conclusions of law, or adopt the PLCB’s, the trial court’s opinion thoroughly sets forth the evidence relied upon and the legal basis for its decision to permit meaningful appellate review. See Commonwealth v. Stevenson, 832 A.2d 1123, 1126 (Pa. Super. 2003) (an appellate court “may look at the trial court’s [Pa. R.A.P.] 1925(a) opinion to garner findings of fact and conclusions of law”).

explained that Licensee’s citation history showed that Licensee was incapable of following the most basic requirements.4 On appeal,5 Licensee contends that substantial evidence does not support the refusal to renew Licensee’s license. Although Licensee admits to its citation history and recognizes that a citation for a single violation of the Liquor Code may justify the nonrenewal of a license, Licensee maintains that the de minimis nature of its violations does not support nonrenewal. Most of the violations involved insufficient seating or square footage, which Licensee corrected. When compared to other nonrenewal cases, which typically involve far more egregious violations, the trial court abused its discretion in affirming the nonrenewal. Further, the trial court erred by not giving Licensee credit for taking affirmative steps to correct the violations. By the PLCB’s own admission, Licensee corrected the deficiencies. After reviewing the record, Licensee’s brief, and the relevant law, we conclude that the appellate issues have been ably resolved in the thorough and well- reasoned opinion of the Honorable Anne Marie B. Coyle. Therefore, we affirm the trial court’s order on the basis of her opinion in the matter of In re: Appeal of 2865 Yan Corp. (C.P. Philadelphia, No. 211002399, filed October 7, 2022).

MICHAEL H. WOJCIK, Judge

4 Licensee also sought reconsideration and supersedeas, which the trial court denied. See R.R. at 268a. 5 Our review in a liquor license renewal case is limited to a determination of whether the trial court’s findings of fact are supported by substantial evidence, whether it abused its discretion, or whether it committed an error of law. First Ward Republican Club of Philadelphia v. Pennsylvania Liquor Control Board., 11 A.3d 38, 43 n.9 (Pa. Cmwlth. 2010).

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Appeal of 2856 Yan Corp. : : From Decision of Pennsylvania : No. 555 C.D. 2022 Liquor Control Board : : Appeal of: 2856 Yan Corp. :

ORDER

AND NOW, this 26th day of June, 2023, the order of the Court of Common Pleas of Philadelphia County, dated May 4, 2022, is AFFIRMED.

__________________________________ MICHAEL H. WOJCIK, Judge

COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) D. DRAYTON 10/07/2022