In re Appeal to Commonwealth Court

476 A.2d 474, 82 Pa. Commw. 242, 1984 Pa. Commw. LEXIS 1388
CourtCommonwealth Court of Pennsylvania
DecidedMay 3, 1984
DocketAppeal, No. 266 C.D. 1983
StatusPublished
Cited by10 cases

This text of 476 A.2d 474 (In re Appeal to Commonwealth Court) 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
In re Appeal to Commonwealth Court, 476 A.2d 474, 82 Pa. Commw. 242, 1984 Pa. Commw. LEXIS 1388 (Pa. Ct. App. 1984).

Opinion

Opinion by

Judge Williams, Jr.,

In June of 1981, the Pennsylvania Liquor Control Board (Board) entered a decision denying the application of Louis P. Pesante for a restaurant liquor license. When the Board’s decision was affirmed by the Court of Common Pleas of Warren County, Pesante filed the instant appeal from the trial court’s order.

On December 30, 1980, Louis Pesante applied to the Board for a retail liquor license, to be used in connection with a new, “.family-style” restaurant he was proposing to build in .Sheffield Township, Warren County. According -to Mr. Pesante, his restaurant would have plush appointments, table service and piped-in music; would be open seven days a week; and would be ,a place to which an entire family could go. At the time of Pesante’s application, Sheffield Township had a legal quota of one retail liquor license, as was mandated by the terms of Section 461(a) of the Liquor Code (Code).1 There were two existing restaurant liquor licenses, which counted against the Township’s quota. In addition, there were three hotel liquor licenses, one club license, and one club retail dispenser license: none of which counted against the quota.

Although the municipality’s quota was already exceeded, Mr. Pesante based his application on Section 461(b) of the Code,2 which provides that: “The [B] oard shall have the power to increase the number of licenses in any such municipality which in the opinion of the [B]oard is located within a resort area.” (Emphasis added.)

At a hearing before the Board, Pesante presented testimonial and epistolary evidence intended to support his contention that Sheffield Township is a resort [245]*245area, and that there is an actual need for the type of licensed establishment he proposed. Pesante’s evidence notwithstanding, the Board rejected his application on the grounds that (1) he had failed to show convincingly that the location of the proposed restaurant is in a resort area, and (2) he had failed to demonstrate an actual need for an additional retail liquor license in the Township. Pesante followed with an appeal to the Court of Common Pleas of Warren County, which heard the matter de novo.

In the proceedings before the trial court, Pesante again adduced testimonial evidence and some of the letters he had presented at the Board hearing. According to the applicant’s evidence, Sheffield Township is in the center of Allegheny Federal Forest; and is 16 miles from the Kinzua Dam, around which camping grounds and other recreational facilities have been created. A witness who worked at the Kinzua Dam testified that more than a million people visited that site in 1980, the year in which Pesante applied for a liquor license. This witness added that Sheffield Township is one of the major approaches to the Kinzua Dam. Trout streams and hunting grounds were also included on the list of recreational attractions in or accessible from the Township.

Additional testimony on behalf of Pesante represented that, in 1980, the population of Sheffield Township increased from 2,655 to over 6,000 during the “tourist season,” which was described as extending from the beginning of the fishing season in April to the end of the hunting season in December. Pesante himself testified that there were 1496 assessed properties in the Township, and that 20% of them were owned by seasonal visitors. Another Pesante witness, the owner of a five-and-dime store in the Township, stated that the seasonal influx of transients kept him in business.

[246]*246In further support of Pesante’s application, several witnesses, who either resided, worked or owned a business in Sheffield Township, offered an opinion that the Township area was in need of a “family-style” restaurant which could also serve alcoholic beverages. In this regard, the main thrust of the testimony was as follows: that, within Sheffield Township, there was no dining establishment which offered the combined accommodations of (1) being open to the public on Sundays; (2) providing a dining atmosphere suitable for an entire family, including children; and (3) being able to serve alcoholic beverages to adult family-members who wished to have such a drink with their meals. There Avas further testimony that tourists and other visitors passing through the Township on week-ends, travelling to and from Kinzua Dam or other recreational sites, would inquire if there was a liquor-licensed family restaurant that was open on Sunday.

Neither of the two existing restaurant licensees was open on Sundays. Indeed, according to a Board enforcement officer, whose testimony was elicited as part of Pesante’s case, one of the two restaurant licensees had closed its business completely. The enforcement officer also pointed out that whatever facilities the club licensees had were not open to the general public. Pesante’s evidence did not include a specific and factual description of the dining accommodations at any of the three hotel licensees.3 However, at least two of his witnesses did testify that, in Sheffield ToAvnship, there was no dining establishment at all that was open on Sundays. In describing the situation, one of these witnesses said: “[TJhere’s just absolutely no place to eat anywhere within probably 20 to 25 miles radius on a Sunday....”

[247]*247The Board presented no evidence at trial to rebut the assertions of Pesante’s witnesses, or to disprove anything else that had been adduced in support of his case. In fact, the Board’s evidentiary participation before the trial court was restricted to presenting a copy of Pesante’s application and the transcript of the administrative hearing, neither of which contained anything to contradict the applicant’s trial evidence. In sum, his evidence was undisputed.4

By an opinion and order dated August 27, 1981, the trial court rendered a decision in the matter. The court concluded, first of all, that the site of Pesante’s proposed restaurant is in an area that qualifies as a “resort area” within the meaning of Section 461(b) of the Code. Although the court’s specific factual-findings are difficult to identify and isolate, its conclusion on the “resort area” issue seems to have been based on two elements: (1) the applicant’s evidence concerning the seasonal influx of people drawn to the area’s recreational attractions; and (2) a prior decision by the same common pleas court holding that a certain other municipality, which is contiguous to Sheffield Township, is in a “resort area” because of its geographic relationship to the same recreational sites.

In addressing the question of whether another liquor license was needed in Sheffield Township, the trial court set forth what it considered to be the central ingredient of Pesante’s evidence on the issue: that none of the existing liquor-licensed dining establishments was open on Sundays. The court also observed that the applicant’s evidence had not been contradicted by the Board. However, the court did not set forth any identifiable findings of fact relative to the foregoing evidence; and in no way indicated whether [248]*248that evidence was accepted or rejected. Instead, the court held, as the Board had argued, that such evidence was not sufficient to prove a “necessity” for an additional liquor license in the Township.

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Bluebook (online)
476 A.2d 474, 82 Pa. Commw. 242, 1984 Pa. Commw. LEXIS 1388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-appeal-to-commonwealth-court-pacommwct-1984.