1400 NORTH THIRD STREET = IN THE COURT OF COMMON PLEAS ENTERPRISES, INC., - DAUPHIN COUNTY, PENNSYLVANIA Appellant : No: 20IS-CV-Ob¥6F- 1 P v. LOCAL AGENCY APPEAL CITY OF HARRISBURG LICENSE AND TAX APPEAL BOARD Appellee NOTICE OF APPEAL Notice is given that 1400 North Third Street Enterprises, holder of License No. 29834-9, hereby appeals from the August 27, 2015 decision, received August 29, 2015, of the City of Harrisburg License Tax and Appeal Board's decision sustaining the revocation of the Business Privilege and Mercantile License of 1400 North Third Street Enterprises. A Copy of the Board’s decision is attached. Respectfully Submitted, ee ‘Christopher F. Wilson, Esquire Supreme Court I.D. 73004 James M. Petrascu, Esquire ‘Supreme Court .D. 75678 2215 Forest Hills Drive Suite 37 Harrisburg, PA 17112 P: (717) 856-0410 F: (717) 541-1527 August 31, 2015INRE: : BEFORE THE CITY OF HARRISBURG . © > HOWARD'S CLUB THIRD STREET-CAFE: LICENSE AND TAX APPEAL BOARD <> : DAUPHIN COUNTY, PENNSYLVANIA : LICENSE NO. 29834-9 EINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION DENYING PE ITIONER S 1. The Petitioner is 1400 N. Third Street Enterprises which is the owner of Third Street Café, with an address of 1400 North Third Street, Harrisburg, Pennsylvania. 2. The City of Harrisburg is a Third Class City with a mayor council form of ‘governance, with an address of 10 North Second Street, Harrisburg, Pennsylvania 17101. 3. . An Application for Business License and related licenses and permits, dated August 19, 2011, was submitted by or on behalf of Howard E. Hoffinan to operate a business at 1400 N. Third Street, to do business as “Howard’s Club 1400” 4, The City of Harrisburg (the “‘City”) issued the requested Business License on or about September 1, 2011, under License No, 29834-9. 5. On December 1, 2014, upon receipt of an annual renewal application and the related fees, the City issued a 2015 Business Privilege and Mercantile License, by renewing License No. 29834-9 under the name “Third Street Café”. 6. The Liconse/Permit form issued to Third Street Café provides, in pertinent part: “All licenses and permits may be suspended or revoked at any time by the Mayor or his designee if it is determined that the holder of the license secured the same by misrepresentation...consent to or 2allowed any behavior which would constitute a crime under federal, state or local laws, including, but not limited to drug trafficking or drug possession...or allowed any manner or form of public ouisance.” 7. Michael W. Hughes is the Tax and Enforcement Administrator of the City and the designee of the Mayor for issuance of Enforcement Notices on behalf ofthe City. 8 On March 27, 2015, the City, by its Tax and Enforcement Administrator, Michael W. Hughes, issued a Revocation of License No. 29834-9 to the Third Street Cafe. 9. The Revocation of License set forth the reason for the revocation as follows: “The grounds for the revocation of your license stem from multiple incidents as logged by the City of Harrisburg Police Department in which this establishment allowed behavior which constituted a crime(s) under federal, state or local laws, including, but not limited to drug possession; committed an act(s) of gross negligence, or allowed any manner or form of public nuisance.” 10. The Revocation of License also set forth the right to appeal the revocation within ten (10) days after the action has taken place, as well as, the requirements for fling an appeal. 11, Onorabout April 3, 2015, an appeal of the Revocation of License No. 29834-9 was filed on behalf of “1400 N. Third Street Enterprises” to the City License and Tax Appeal Board (the “Appeal Board”). 12, After filing the appeal, a 2015 Renewal Application was submitted on behalf of ‘Anthony Paliometros for the Third Street Café under License No. 29834-9. 13. Mr. Paliometros has been the owner of the Third Street Café since 2011, but the ownership change of the business was never submitted to the City with the annual license renewal. 14, The Third Street Café was also doing business as Club 1400.15. An initial hearing on the appeal before the Appeal Board was timely scheduled for April 30, 2015, which was continued at the mutual request of the parties. 16. A single-day hearing on the appeal was held before the Appeal Board on May 20, 2015. 17. During the hearing the City and Petitioner were afforded the opportunity to present evidence and cross examine witnesses, and both the City and Petitioner did so. 18. At the conclusion of the hearing, the Appeal Board requested that the City: and Petitioner submit post hearing briefs consisting of proposed findings of fact, proposed conclusions of law and arguments in support of their respective positions, which post hearing briefs were filed by both parties. 19. Detective Hefffter provided testimony with regard to the criminal activity occurring in the area of Third Street Café, also known and referred to as Club 1400. 20. Detective Heffner is familiar with Club 1400 and has been in the club numerous times. 21. During 2104 and 2015 a number of incidents of criminal activity occurred both inside and immediately outside of the business of Club 1400. 22. On March 18, 2014, Frank Lane filed a report with the Harrisburg Police that while he was seated inside Club 1400, $1,230.00 was stolen from his pocket. 23, On March 20, 2014, an individual named Abdullah Ali Sawab was arrested across ‘the street from Club 1400 for an outstanding arrest warrant, 24, From March 2104 until the date of the appeal hearing Detective Heffner hasobserved on-going drug transaction activity and other illegal activity in the immediate area of Club 1400. 25. On April 2, 2014, on the 1400 block of North Third Street, immediately outside of the 1400 Club, James Brown and Garland Baylor were arrested inside of a vehicle with over $1,100.00 in marijuana and almost $5,000.00 in cocaine. 26. On August 26, 2014, Detective Heffner was involved in a drug investigation with regard to the Tap Room Bar and Club 1400, 27. Detective Heffner observed individuals that were drug dealing in the area of the comer of Third and Calder Streets, the Tap Room Bar, and Club 1400. 28. Detective Heffher observed the individuals going from the comer to Club 1400 to the Tap Room, back and forth in that area, 29, Club 1400 is located at 1400 North Third Street and the Tap Room located next door to Club 1400 at 1402 North Third Street. 30. Asa result of the investigation, an individual who was a bouncer at the Tap Room ‘was arrested at the front door of the Tap Room and cocaine was found in the Tap Room, 31. Detective Heffner testified the entire area, including the comer of Third and Calder, the Tap Room, Club 1400, the 300 block of Calder Street, the 1300 block of North Third Street and the alley just west, is a hub for criminal activity, drug dealing, prostitution, and assaults, 32, During Detective Hefner's visits to Club 1400 he has observed a cook at Club 1400 goes back and forth between the Tap Room and Club 1400 at least several time a day. 33. Detective Heffner has observed several individuals, namely Shelton McNeal, Julian Say, and Paul Say hang out at Club 1400.34. All of the individuals had outstanding warrants for their arrests. 35, Each of the individuals has been arrested in 2015. Julian Say and Paul Say were arrested for drugs and guns. Shelton McNeal was also arrested. 36. On September 27, 2014, Julia Jackson White was assaulted inside Club 1400 and ‘had her; necklace stolen. 37. On March 6, 2015, James Watson, who had been inside Club 1400, was assaulted and found in front of the Club 1400 front door. 38. On May 18, 2015 there was an aggravated assault in which a woman was badly beaten behind Club 1400 in the alley and an arrest was made. 39. On May 19, 2015, Detective Heffner was involved in a drug investigation in the area of Club 1400. 40. Three individuals, Darryl Pierce, Glenn Welker, and LeJuan Henry were in Club 1400. 41. A confidential informant entered Club 1400, identified the drug dealers and a drug transaction was arranged inside the bar. 42. The confidential informant, Darryl Pierce, Glenn Walker, and LeJuan Henry then left Club 1400 and walked across the street to the 300 block of Calder Street where the confidential informant and Pierce entered the confidential informant’s vehicle and Walker and Henry entered a black van. 43. Pierce then got out of the confidential informant’s vehicle and got into the black van with Walker and Henry.44, Pierce then got out of the black van and the police observed Pierce handing crack cocaine to the confidential informant. 45. After the transaction, Pierce, Walker and Henry walked back to Club 1400 and were taken into custody shortly thereafter. 46, The police found buy money in the possession of Pierce and Henry and in the cash register of Club 1400. 47. Detective Hefiner testified that it is normal for a drug transaction to involve a building and two vehicles. The drug dealer sets up in a safe place and has a the drugs stashed somewhere, such as a vehicle 48. Club 1400 is a focal point for criminal activity in the area of the comer of Third and Calder Streets. 49. The owners and operators of Club 1400 allow criminal activity to take place inside the bar and immediately outside of the bar. 50, The Petitioner offered the testimony of Anthony Paliometros, the owner of Club 1400, and Althea V. Roy, the manager of Club 1400, to rebut the testimony offered by the City with regard to allowing criminal activity to occur in the bar. 51. Mr. Paliometros testified that Club 1400 maintains a barred patron list, which contains a list of people who are not permitted to enter Club 1400, however, a copy of this list was never produced by the Petitioner. _ 52. Mr. Paliometros also testified about an upgrade that was made to the security cameras.53. Two additional security cameras were added to the exterior of Club 1400, specifically behind the building, close to the alley and at the front door, but the cameras were added after the Petitioner received the Revocation of Licerise. 54, Mr. Paliometros also testified that signs have been placed on the front and rear door ‘warning patrons that Club 1400 has a security camera syste to monitor for illegal activity at Club 1400, however, the signs were posted after the Petitioner received the Revocation of License. 55. Mr. Paliometros also testified that he has offered to the City Police that they may view video from the security camera system. 56. Onat least two occasions the City Police requested to see video from the security camera system in connection with incidents that occurred at Club 1400, but access to the video was not provided by the Petitioner. 57. The Police were initially told that they could not see the video unless it was authorized by Mr. Pailometros or Mr. Ellis, and later the Police were told there was no video. 58, The City of Harrisburg Licensing and Tax Appeal Board (the “Appeal Board”) finds that the testimony of Anthony Paliometros and Althea V. Roy is not credible. CONCLUSIONS OF LAW 1. Pursuant to Chapter 5-101 of the City of Harrisburg Codified Ordinances (the “Codified Ordinances”), the Appeal Board has jurisdiction to hear all appeals due to the action of person(s) designated to administer any ordinance of the City relating to the issuance of licenses or the imposition of taxes other than real estate taxes.2. Inaddition, Section 109 of the Business Privilege and Mercantile Tax Regulations (the “Regulations”), authorizes the Appeal Board to handle any pre-deprivation and/or appeals from the revocation of licenses and permits. 3. Pursuant to Section 5-717.1 of the Codified Ordinances, it is the duty of the City ‘Tax Enforcement Administrator to enforce the Business Privilege and Mercantile Tax Ordinance (the “Ordinance”) and the Regulations. 4. — Section 5-715.8 of the Codified Ordinances provides that any Business Privilege/Mereantile License issued by the City is subject to revocation by the issuing officer upon a determination that the licensee has violated one or more provisions of the Codified ordinances of the City. 5. Inaddition, Section 109 Revocation, of the Regulations provides in pertinent part, as follows: “The Business Privilege and Mercantile License may be suspended or revoked at any time by the Mayor or designee if it is determined that the holder of the permit or license secured the same by misrepresentation ... consented to or allowed any behavior which would constitute a crime under federal, state or local laws, including, but not limited to drug trafficking or drug possession...or allowed any manner or form of public nuisance.” 6. Due process requires that no adjudication by a local agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard. 7. . Due process does not require that the Petitioner have pre-hearing access to the evidence to be presented by the City.8. The notice provided to Petitioner was sufficient to satisfy the requirement of a reasonable notice of hearing, and Petitioner was afforded the opportunity to be heard by attending the hearing, cross examining witnesses, presenting evidence, and presenting proposed findings of fact, conclusions of law and legal argument. 9. The City proceeding did not violate Petitioner's right to due process, 10. During the hearing, Petitioner objected on numerous occasions to the City submitting police reports alleging that the reports constitute hearsay and are inadmissible. 11. Rule 803(6) of the Pennsylvania Rules of Evidence provides an exception to the hearsay rule for records which include a memorandum, report or data compilation in any form of an act event or condition. 12, Section 554 of the Local Agency Law, 2 Pa.C.S. §554, provides: “Local agencies shall not be bound by technical rules of evidence at agency hearings, and all relevant evidence of reasonably probative value may be received.” 13, Hearsay evidence can be admitted, but an adjudication cannot be founded entirely on hearsay. See Kazmarek v. New Bethlehem Borough Council, 478 A.2d 514 (1984) (citing Bleilevens v. Pennsylvania Civil Service Commission, 312 A.2d 109 (1973). 14, In addition to the police reports, there was testimony from Detective Heffiier upon “which the Appeal Board has relied heavily in rendering its decision. 15. Accordingly, the police reports were properly admitted into evidence in the hearing. 16, The standard of proof required in a local agency hearing is substantial evidence. 17. The elements necessary to support the revocation of a Business Privilege end Mercantile License must be established by substantial evidence.18. Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 19. The owners and operators of the Third Street Café consented to or allowed behavior ‘on and around the premises that constituted crimes under federal, state, and local laws. 20. The owners and operators of the Third Street Café allowed behavior on and around the premises that constituted drug trafficking, 21. The owners and operators of the Third Street Café consented to ot allowed behavior ‘on and around the premises that constituted drug possession. 22. The owners and operators of the Third Street Café allowed behavior that constituted a public nuisance. 23. The owners and operators of the Third Street Café violated Section 109 of the ‘Regulations by consenting to or allowing behavior which would constitute a crime under federal, state of local laws, including, but not limited to drug trafficking or drug possession and allowing, any manner or form of public nuisance. 10DECISION In view of the foregoing and having carefully considered the testimony and exhibits submitted to the Appeal Board, the City’s revocation of Business Privilege and Mercantile License ‘No, 29834-9 is sustained and Petitioner's appeal is denied. This decision is adopted this 24), day of August, 2015 by the City of Harrisburg License and Tax Appeal Board, upon motion duly made and seconded. ‘The vote of each member is recorded to the k \ fe Evelyn L. Hist, Member MAILING DATE: 1CERTIFICATE OF SERVICE, AND NOW, on the date stated below, I, Christopher Wilson, hereby certify that I this day served the foregoing Notice of Appeal by sending a copy of it via first class postage prepaid upon the following at the address stated below: Michael Hughes ‘Tax Enforcement Officer City of Harrisburg 10 North Second Street Harrisburg, PA 17101 Neil Grover Solicitor City of Harrisburg 10 North Second Street Harrisburg, PA 17101 Date: August 31, 2015