Commonwealth, Pennsylvania Liquor Control Board v. Bankovich

502 A.2d 794, 94 Pa. Commw. 93, 1986 Pa. Commw. LEXIS 2055
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 7, 1986
DocketAppeal, No. 2926 C.D. 1984
StatusPublished
Cited by6 cases

This text of 502 A.2d 794 (Commonwealth, Pennsylvania Liquor Control Board v. Bankovich) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth, Pennsylvania Liquor Control Board v. Bankovich, 502 A.2d 794, 94 Pa. Commw. 93, 1986 Pa. Commw. LEXIS 2055 (Pa. Ct. App. 1986).

Opinion

Opinion by

Senior Judge Barbieri,

The Pennsylvania Liquor Control Board (LCB) appeals here from an order of the Court of Common [95]*95Pleas of Luzerne County which reversed the LCB’s denial of a restaurant liquor license requested by Paul Bankovich. We reverse.

The record before us contains the following facts which are pertinent. Bankovich desired to open a seafood speciality house in Dallas Borough which would serve only crabs. On December 18,1983 he applied for a restaurant liquor license for his proposed crab house. The liquor license quota for Dallas Borough is one and there are currently five restaurant liquor licenses in effect which are counted against this quota. Bankovich applied for his restaurant liquor license pursuant to the resort area exception specified in Section 461(b) of the Liquor Code (Code), Act of April 12,1951, P.L. 90, as amended, 47 P.S. §4-461 (b). This provision empowers the LCB to increase the number of licenses in any municipality which, in the opinion of the LCB, is located in a resort area. After a hearing, the LCB denied Bankovich’s request making the following findings of fact:

1. The quota for Dallas, Luzerne County is 1 and there are 5 restaurant liquor licenses in effect counted against this quota. There is also 1 catering club liquor license in effect which is not counted against the quota.
2. The Board is not satisfied that the establishment proposed to be licensed is located in a resort area.
3. There is no evidence of necessity for an additional restaurant liquor license in Dallas, Luzerne County.

Bankovich appealed the denial to Luzerne County Common Pleas Court. After a de novo review of the LCB’s decision, the common pleas court reversed. In its decision, the common pleas court noted that the proposed establishment is in the “environs” of a resort area, that it is “unique” with no comparable eating estab[96]*96lishment in' the area, and concluded that there is a necessity for a new additional eating place of ■ that nature in the area. The present appeal followed.

■ ‘ In this appeal, the LCB contends that the common pleas.court erred in finding that Bankovich’s establishment, was in the “environs” of a resort area and that there is insufficient evidence to support the granting ef a . restaurant liquor license to Bankovieh. Our scope" of review, where the common pleas court has heard .the matter de novo, is- limited to determining whether substantial evidence exists to support the common : pleas court’s findings and whether or not that court ’abused its. discretion or committed an error of law. . Appeal of Daras, 65 Pa. Commonwealth Ct. 456, 442 A.2d 859 (1982).

- ■ 'In its-: initial contention, the LCB argues that the resort area'exception of Séction1461(b) does not apply to Bankovich’s- crab house. The common pleas court, •the LCB stresses, -did not find that the crab house was located in a resort area, rather, that it was located in the “environs?1’ of a resort area. Simply being in the environs of a resort area,-the LCB contends, is not sufficient-' to ■ bring' an establishment into- the resort area exception found in Section 461(b). We agree.

There can be no question that the stated purpose of the'-'C'enerhl Assembly in- enacting liquor regulation legislation-has always-been to restrain and discourage the sale of liquor, not to promote it. Application of El Rancho Grande, Inc., 496, Pa. 496, 437 A.2d 1150 (1981). Thus, the resort' area'exception to the quota rule of the Code must be interpreted in light, of that hürpnsé; Penn State Faculty Club v. Pennsylvania Liquor Control Board, 33 Pa. Commonwealth Ct. 320, 381 A.2d 1017 (1978). Section 461(b) reads as follows:

[97]*97 §4-461. Limiting number of retail licenses to be - '■ issued in each municipality
(b) The board [LCB] shall have the power -' to increase the number of licenses in any such- ■ municipality which in the opinion' of the board is located within A resort area. • (Emphasis ■ added.) " -

While' the term “resort area” is not defined by the Code, our appellate courts have held that a “resort area” is characterized by a population increase' in the geographical area surrounding the premise's during certain seasons such that the usual number of liquor licenses- within the géographical area is not adequate to serve the needs of the people and that it must appear that the area’s facilities are used-primarily by temporary residents or tourists and not -by area residents. Willowbrook Country Club, Inc., Liquor License Case, 409 Pa. 370, 373, 187 A.2d 154, 155 (1962); In re Brandywine Valley Inn, Inc., 53 Pa. Commonwealth Ct. 203, 207, 417 A.2d 823, 826 (1980). The LCB has wide discretion in determining whether' ah area in which a municipality is located- is a “resort area” and the courts are not authorized to set aside such action of the LCB absent a clear abuse of discretion.- Application of El Rancho Grande, Inc.; Chukker Valley Golf Club, Inc. v. Pennsylvania Liquor Control Board, 20 Pa. Commonwealth Ct. 321, 341 A.2d 212 (1975).

Viewing the record, .we agree with the-LCB that Bankovich’s crab house is not located in a “resort area” within the purview of Section 461(b).- The crab house is located 3.4 miles from Harvey’s Lake, which the LCB has determined to be a resort area within the meaning of Section 461(b). The crab house is also 5.5 miles from Francis Slocum State Park and has two golf courses within a 3.4 mile radius. These facts are [98]*98closely akin to those presented in Chukker Valley Golf Club, Inc. in which this Court upheld an LCB determination that the golf club was not located in a “resort area.” There, the evidence indicated that there were four parks within a ten mile radius of the club, six more parks within thirty miles, and two racetracks and two amusement parks within thirty-two miles of the club, which was located in New Hanover Township, Montgomery County. We specifically stated that the mere presence of heavily used recreational facilities in the general vicinity;of an applicant is not sufficient to support a determination that the area is a “resort area” under the Code absent specific evidence as to seasonal population increase. 20 Pa. Commonwealth Ct. at 324, 341 A.2d at 213. There must be specific evidence relating to the size of the recreational facilities in and around the municipality, their proximity to the applicant’s place of business, the seasons during which the facilities are used, and the number of people occupying them. Aiello Liquor License Case, 41 Pa. Commonwealth Ct. 345, 399 A.2d 154 (1979).

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502 A.2d 794, 94 Pa. Commw. 93, 1986 Pa. Commw. LEXIS 2055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-pennsylvania-liquor-control-board-v-bankovich-pacommwct-1986.