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Allegheny County judges side too often with bar owners, LCB's counsel claims

| Saturday, March 29, 2014, 12:01 a.m.

Allegheny County judges too often side with bars that serve alcohol to underage patrons, stay open after 2 a.m. or attract violence when the Pennsylvania Liquor Control Board cancels their licenses, forming a “regrettable” pattern that endangers communities, the state agency claims.

Together, Common Pleas Judges Paul Lutty Jr. and W. Terrence O'Brien and Senior Judge Timothy O'Reilly sided with bar owners 16 out of 17 times since 2012 when they appealed the board's decision not to renew licenses, LCB and court records show. Statewide, LCB won 41 and lost 43 appeals since 2012.

“This lack of success in Allegheny County has consequences,” Faith Diehl, the board's chief legal counsel, wrote on Dec. 20 to more than 30 state legislators, including the chairs of the Senate Law and Justice Committee and the House Liquor Control Committee. “Nonrenewal is often the last line of defense for a community when a licensee has failed to change the (manner) in which it operates.

“As a result, licensees in Allegheny County may engage in activity to the detriment of their local communities, which would place their license in jeopardy, if these licenses were located in other parts of Pennsylvania.”

Diehl's letter drew outrage from Common Pleas President Judge Jeffrey A. Manning, who defended his colleagues. He called the accusations “scurrilous, obnoxious and unfounded.”

“In 25 years on the bench, I have never heard of a more inappropriate, unethical and unwarranted attack by regulatory counsel upon the judge of any court,” Manning wrote on Jan. 21 to LCB Chairman Joseph “Skip” Brion. “Perhaps some introspection would be in order to determine whether your trial counsel is capable of presenting competent, provable cases.”

The LCB appealed to Commonwealth Court nine of 16 decisions by Judges Lutty, O'Brien and O'Reilly. Commonwealth Court judges upheld four of those decisions, the LCB withdrew four, and one case is pending, records show. One case the appellate court upheld is on appeal to the state Supreme Court.

Manning, who acknowledged that he did not review details of the cases, said the judges decided on the facts of the cases, not personal beliefs or vendettas against the agency.

O'Brien said he stands by his decisions, but deferred comment to Manning. Lutty and O'Reilly declined to comment. The three judges were assigned to handle liquor license appeals at various times in 2012 and 2013.

Brion said in a statement emailed to the Tribune-Review that the LCB has the responsibility and authority not to renew a liquor license if a bar fails to meet certain requirements or standards.

There are 18,152 active liquor licenses in Pennsylvania, 2,192 of them in Allegheny County.

“(Not renewing a license) is not a decision I or the other board members take lightly,” Brion said. “As a lawyer myself, I have immense respect for the court in general, and in particular, President Judge Manning. ... I certainly understand his position, and it was not the intention of the board to insult the Court of Common Pleas of Allegheny County or the judges involved.”

Among bars that appealed the LCB's decision not to renew their licenses were Big Pat's in Sharpsburg, Reese's Supper Club in Duquesne, Flamingo Hotel in the Hill District, Kanczes City Saloon in Duquesne and T's Restaurant and Lounge in Swissvale.

The board rejected their renewal applications because police went to each establishment multiple times for staying open after hours, fights, drug use and serving alcohol to minors.

The LCB denied the Shamrock Inn's renewal request in October 2011 because Pittsburgh police were called to the North Side bar three times between June 2009 and November 2012 for violence — an armed robbery, a stabbing and a homicide.

The Shamrock Inn appealed the decision. Lutty reversed it, writing that there was no evidence that the robbery outside the bar was related to the way the bar operated, that police never investigated the stabbing, and that the homicide was part of an argument that had nothing to do with the bar's operation.

The owner took corrective measures to ensure patron safety, adding lighting outside, prohibiting anyone younger than 25 from entering, removing rap music from the jukebox and installing video surveillance cameras, Lutty said.

“While the incident was appalling, I do not find that it was the result of nor related to the manner in which the bar was operated,” he wrote.

Manning called a follow-up letter from Diehl to him a “half-baked apology” that was “neither accepted nor acceptable.”

“The words and actions demonstrate a hubris and arrogance that is unfathomable,” he told the Tribune-Review.

Diehl acknowledged her “inartfully drafted letter” in a separate letter to the local legislative delegation on Feb. 11. She wrote that she hoped to change the way the LCB handles appeals but specified no plan.

Adam Brandolph is a Trib Total Media staff writer. Reach him at 412-391-0927 or abrandolph@tribweb.com.

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