In re New Restaurant Liquor License Caracciolo t/d/b/a Pirates Cove

25 Pa. D. & C.3d 570, 1982 Pa. Dist. & Cnty. Dec. LEXIS 246
CourtPennsylvania Court of Common Pleas, Cambria County
DecidedApril 16, 1982
Docketno. 181 Miscellaneous 1980
StatusPublished

This text of 25 Pa. D. & C.3d 570 (In re New Restaurant Liquor License Caracciolo t/d/b/a Pirates Cove) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Cambria County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re New Restaurant Liquor License Caracciolo t/d/b/a Pirates Cove, 25 Pa. D. & C.3d 570, 1982 Pa. Dist. & Cnty. Dec. LEXIS 246 (Pa. Super. Ct. 1982).

Opinion

O’KICKI, J.,

The case at bar is an appeal from a decision of the Pennsylvania Liquor Control Board denying a restaurant liquor license to petitioners, Richard A. and Marianne Caracciolo. That P. L. C. B. decision was appealed and two lengthy de novo hearings were held. The parties have supplied this court with briefs and supplemental briefs.

Petitioners operate a bona fide restaurant at R. D. 1, Beach Road, Patton, Pa. in Clearfield Township, Cambria County, called the “Pirates Cove.” The quota for restaurant liquor licenses in Clearfield Township is one; however, two already have been issued in that township. Therefore, the boardrefused petitioners’ application for issuance of a new restaurant liquor license.

These issues are presented by the facts:

1. Are the proposed premises (i.e. Pirates Cove) located in a ‘resort area,” thus qualifying it for the issuance of a new license under the “resort exception” to the quota system of the Liquor Code?

2. Is there such necessity in the affected area in which Pirates Cove is located to justify the issuance of an additional restaurant liquor license?

3. Is the testimony of protestants, Patrick and Diane M. Ott (proprietors of the “Anchor Inn”) inadmissible since their business is located more than 500 feet from petitioners’ business?

The board, by their refusal to issue the restaurant liquor license, found all three issues in protestants’ favor.

This court from its de novo record makes the following

[572]*572FINDINGS OF FACT

1. Pirates Cove is located in a “resort area.”

2. There is a necessity in this area in which Pirates Cove is located for its general proposed services attendant to a restaurant liquor license.

3. Protestants have standing in this proceeding and their testimony is admissible.

4. Daniel K. Park, an organizer of the Cambria County Tourist Council in 1961, and its president for 16years, testified without contradiction or rebuttal that:

a. The Prince Gallitzin area is a resort area that is promoted by State and local tourist agencies. 10).

b. More than 900,000 persons visited the Prince Gallitzin Park in 1980.

c. The Cambria County Tourist Council advertised the Prince Gallitzin Park in 42 newspapers in 1980.

5. Regina Winslow, Office Manager of Area Realty and Development Company, Patton, Pa., (sixmiles from Prince Gallitzin Park) and former justice of the peace for 30 years, testified without contradiction or rebuttal that:

a. She has been actively engaged in the rental of housing accomodations for visitors to Prince Gallitzin Park since the park was opened in 1961.

b. She has been active in the Patton Chamber of Commerce and its industrial committee and participated in a convention with the National Campers Convention that resulted in 35,000 campers coming to Prince Gallitzin Park.

c. She has been a leader in business efforts to secure funds from the Department of Community Affairs and the Department of Environmental Resources for the advancement of tourism at Prince Gallitzin Park.

d. Prince Gallitzin Park is a resort area.

[573]*573e. There is an acute need for another liquor license facility in Clearfield Township.

OPINION

The classification of an area as a “resort” entails many factors other than a definition. The mere fact that a neighborhood provides opportunities for fishing, boating, and swimming doesn’t, of itself, make the area a “resort area,” Appeal of Andes, 201 Pa. Super. 61, 190 A. 2d 355, (1963). Granted, these are typical activities of a resort area. However, these activities must be present in areas where a large transient population engage in them. In Re: Aiello, 41 Pa. Commw. 345, 399 A. 2d 154, (1979) defined the term “resort area” (there is no statutory definition evident in the Code) by holding that “the term connotes a territory experiencing a seasonal increase in population as a result of the visitation of transients, Aiello, supra, at 155. It required a “specific finding as to influx of transients. It is not sufficient to find that the number of people in the area increases during a certain season. What is required is a specific finding . . . “that there was an increase of_persons yearly in the region at peak periods. ” There is ample evidence in the record concerning the nature of the area in question which leads this court to make such a specific finding.

Pirates Cove, as well as Anchor Inn, is squarely in the area of a recognized “resort area” — Prince Gallitzin State Park/Glendale Lake, which has over 16 miles of shoreline. There is a significant number of visitors in the area. The heavy influx of these tourists is established by the exhibits and testimony. Particularly significant is the fact that the statistics for the year 1980 indicate that 955,783 visitors attended the park alone, and an additional 141,529 campers were stationed within the park.

[574]*574Furthermore, the resort nature of the sitéis shown on the December 12, 1980 letter of the Cambria County Tourist Council offered in evidence. This letter designates the area as a “resort with much more growth material” and was authored by individuals whom the court feels are qualified and credible in their assessment. The purpose of the Tourist Council, which was established by the County Commissioners, is to encourage the development of the area, i.e. investments by public, semi-public, and private individuals and organizations. This development potential, coupled with the fact that a significant portion of the township area is devoted to summer park purposes dictates that the area clearly falls within the definition of the “resort area.” Case of Beckar Liquor License, 19 Bucks 131, (1969); In Re: Appeal of Brandywine Valley Inn, Inc., 417 A. 2d, 823 (1980)

Protestants urge us to classify the areain question as a “playground” rather than a “resort.” They also contend that since alcoholic beverages are specifically prohibited within the confines of Prince GaUitzin State Park, the grant of an additional liquor license would be contrary to public policy to promote a family atmosphere in the park. We cannot follow that view outside of the park area where the proposed license is located.

Neither petitioners’ nor protestants’ establishments are within the park itself. In fact, the Anchor Inn (protestants’ establishment) is the closer of the two to the park entrance. Further, although petitioner testified frankly as to his desire to provide alcoholic beverages in his business, the primary function of Pirates Cove is to be that of a “full service” restaurant rather than a primary supplier of alcoholic beverages. Although the court could follow protestants’ classification of the area, we cannot hand down a decision [575]*575for a purpose such as theirs, i.e. “to make over and mold the people of the Commonwealth into a model society, ’ ’ no matter how well-intentioned that decision may be. There is no evidence that Pirates Cove would be detrimental to the area. Therefore, to classify the area as a family playground contrary to the weight of the evidence, usurps the power of the legislature and will of society. We must base our decision within the limits of the authority granted to us by statute. See, Appeal of Maxie Club, 50 Lack. Jur. 249, (1949).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Guriel v. Scott
191 A.2d 856 (Superior Court of Pennsylvania, 1963)
Appeal of Amminiti
377 A.2d 1042 (Commonwealth Court of Pennsylvania, 1977)
Nasim v. State
366 A.2d 70 (Court of Special Appeals of Maryland, 1976)
Sawdey Liquor License Case
85 A.2d 28 (Supreme Court of Pennsylvania, 1951)
Willowbrook Country Club, Inc. Liquor License Case
187 A.2d 154 (Supreme Court of Pennsylvania, 1962)
Sawdey Liquor License Case
82 A.2d 713 (Superior Court of Pennsylvania, 1951)
William Penn Sportsmen's Association Liquor License Case
175 A.2d 908 (Superior Court of Pennsylvania, 1961)
Andes Grove Rod & Gun Club Liquor License Case
190 A.2d 355 (Superior Court of Pennsylvania, 1963)
Commonwealth v. Brock's Cafe, Inc.
396 A.2d 74 (Commonwealth Court of Pennsylvania, 1979)
Janes v. Pennsylvania Liquor Control Board
402 A.2d 1093 (Commonwealth Court of Pennsylvania, 1979)
In re Brandywine Valley Inn, Inc.
417 A.2d 823 (Commonwealth Court of Pennsylvania, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
25 Pa. D. & C.3d 570, 1982 Pa. Dist. & Cnty. Dec. LEXIS 246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-new-restaurant-liquor-license-caracciolo-tdba-pirates-cove-pactcomplcambri-1982.