Water Street Beverage Ltd. v. Pennsylvania Liquor Control Board

84 A.3d 786
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 29, 2014
StatusPublished
Cited by5 cases

This text of 84 A.3d 786 (Water Street Beverage Ltd. v. Pennsylvania Liquor Control Board) 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
Water Street Beverage Ltd. v. Pennsylvania Liquor Control Board, 84 A.3d 786 (Pa. Ct. App. 2014).

Opinion

[788]*788OPINION BY

Judge McCULLOUGH.

Water Street Beverage, LTD., t/a Keller’s Beer (Water Street) petitions for review of the May 1, 2013 order of the Pennsylvania Liquor Control Board (Board) granting the application of Weis Markets, Inc. (Weis) for double transfer of Eating Place Malt Beverage License E-4611 (the license) to property owned by Weis located at 719 Route 522, Selins-grove, Snyder County, Pennsylvania (the property). We affirm.

The underlying facts of this case are not in dispute. Weis is in the process of constructing a new grocery store at the property, which will include an indoor café, limited outside seating, and gas pumps. The grocery store will encompass an area of approximately 66,000 square feet, with the café and outside seating areas accounting for approximately 5,600 square feet. The café will consist of: a serving area measuring 43 feet by 45 feet that will accommodate 32 patrons; a kitchen measuring 24 feet by 37 feet; and two storage areas measuring 16 feet by 16 feet and 10 feet by 32 feet, respectively. The outside seating areas will measure 21 feet by 8 feet and 53 feet by 53 feet, respectively, and accommodate a total of 20 patrons. The gas pumps will be installed approximately 340 feet from the grocery store and café and will be separated by parking spaces, trees, and islands of shrubbery. (Board’s Findings of Fact Nos. 3-4, 19, 22, 29-34.)

On July 30, 2012, Weis filed an application with the Board for the double transfer of the license originally granted to Lauver Enterprises, Inc. t/a IT Xpress, 31 South Market Street, Selinsgrove, Pennsylvania.1 Weis sought to sell malt beverages in the café area of the grocery store. Water Street, which operates a beer distributorship less than one mile from the property, filed a petition for intervention with the Board objecting to Weis’ application. The Board’s Bureau of Licensing directed that a hearing be held with respect to Weis’ transfer application regarding the following eight objections:

1. The Board shall take evidence to determine if it should permit interior connections with the unlicensed grocery store, in accordance with Section 3.52(b) of the Board’s Regulations [40 Pa.Code § 3.52(b) ].
2. The Board shall take evidence to determine whether it should permit the applicant to operate another business on the licensed premises (storage and preparation of food items for the unlicensed grocery store), in accordance with Section 3.52(c) of the Board’s Regulations [40 Pa.Code § 3.52(c) ].
3. The Board shall take evidence to determine if the applicant will allow minors to frequent its licensed premises, in violation of Section 493(14) of the Liquor Code [Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-493(14) ].
4. The Board shall take evidence concerning the sale of liquid fuels or oil at the same location as the proposed licensed premises, which is prohibited under Section 432(d) of the Liquor Code [hereafter Code, 47 P.S. § 4^432(d) ].
5. The Board shall take evidence to determine if the Notice of Application has been continuously and conspicuously posted as required by Section 3.14 of the Board’s Regulations [40 Pa.Code § 3.14],
6. The Board shall take evidence to determine if Matthew Silvinski is a resi[789]*789dent within 500 feet of the proposed licensed premises, which would qualify him as a valid protestant or, if he would be directly aggrieved by the granting of this application, which would qualify him as an intervenor in this matter.
7. The Board shall take evidence to determine if Water Street Beverage, Ltd. would be directly aggrieved by the granting of this application, which would qualify them (sic) as an intervenor in this matter.
8. The Board shall take evidence to determine that the approval of this application will not adversely affect the health, welfare, peace and morals of the neighborhood within a radius of 500 feet of the proposed licensed premises.[2]

(Reproduced Record (R.R.) at 37a-38a.) The Board appointed a hearing examiner, who conducted a hearing on March 20, 2013. The Board conditionally accepted Water Street’s intervention petition, thereby permitting Water Street to participate in the hearing. (Board’s Findings of Fact Nos. 1-6, 76.)

Joseph Murray, a licensing analyst for the Board, conducted an investigation of Weis’ application. His investigation revealed that, after several improper postings, the application was properly posted in November 2012. Murray testified that there were no proximity issues in regard to licensee or restrictive institutions located within 200-300 feet of the proposed licensed premises. Murray described the neighborhood within a radius of 500 feet of the proposed licensed premises as consisting of 25% residential, 25% rural/undeveloped, and 50% commercial. Murray stated that Weis owns the parcel of land where the proposed licensed premises will be constructed, as well as the proposed gasoline pumps and supermarket. (Board’s Findings of Fact Nos. 7, 13, 16-17, 23.)

Additionally, Murray testified that Weis’ plans for the proposed licensed premises will meet the Board’s requirements with respect to seating, including two outside serving areas, and interior connections to the unlicensed grocery store, noting that section 468(e) of the Code, 47 P.S. § 4-468(e), restricts the width of an interior connection between a licensed business and another business to no more than ten feet. Murray indicated that the licensed premises, including the kitchen and outside seating areas, would encompass approximately 5,600 square feet. Murray stated that food items prepared in the proposed licensed premises’ kitchen could also be displayed and sold in the unlicensed grocery store. Murray noted that gasoline pumps will be installed approximately 340 feet from the licensed premises and will be separated by parking spaces, trees, and shrub islands. Murray stated he investigated Weis’ licensed cafés in Sunbury and Lewisburg and noted that the present application was similar to the applications for those stores. (Board’s Findings of Fact Nos. 19-25, 34-38.)

Jack O’Hara, Weis’ vice president of legal affairs and real estate, testified that Weis owns the tract of land on which the grocery store, café, and fuel pumps will be located. O’Hara indicated that the grocery store and café will have separate entrances, as well as an interior connection, with cash registers in each section. The café will consist of a series of counters for the display and sale of different foods, pizza ovens, a rotisserie oven, sandwich preparation areas, fryers, beer coolers, and [790]*790displays for beer at room temperature. O’Hara noted that beer will be sold only in the café, subject to a 100% carding policy, and all café employees will be at least 21 years old and receive training through the Board’s Responsible Alcohol Management Program. Additionally, O’Hara testified that the café will have its own manager who will have no responsibilities in the unlicensed grocery store. (Board’s Findings of Fact Nos. 27-62.)

With respect to the gas pumps, O’Hara testified that there will be four pumps with eight fueling stations.

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Bluebook (online)
84 A.3d 786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/water-street-beverage-ltd-v-pennsylvania-liquor-control-board-pacommwct-2014.