Appeal from the Order of the Court of Common Pleas of the 43rd Judicial District, Monroe County Branch, in case of In Re: Application of Dorothy R. Hohl, Arrowhead Lake, Pocono Lake, Tobyhanna Twp., Monroe County, Pa. for a New Retail Dispenser Eating Place License.
Donald B. Owen, for appellant.
Albert B. Miller, Special Assistant Attorney General, with him Harry Bowytz, Chief Counsel, and Israel Packel, Attorney General, for appellee.
Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
[ 20 Pa. Commw. Page 491]
Dorothy R. Hohl (Appellant) appeals the decision and order of the Court of Common Pleas of Monroe County which held that the Pennsylvania Liquor Control Board (Board) did not abuse its administrative discretion when it denied Appellant's application for a retail dispenser eating place licence which she had made pursuant to Section 461(b) of The Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-461(b). We reverse.
Section 461(a) of the Code, 47 P.S. § 4-461(a) provides for one retail license to issue in municipalities for each two thousand inhabitants. In the case of Tobyhanna Township, Monroe County, the situs of this controversy, only one such license may be issued. See Hecktown Volunteer Fire Company No. 1 v. Liquor Control Board, 14 Pa. Commonwealth Ct. 586, 324 A.2d 803 (1974). However, Section 461(b), 47 P.S. § 461(b) provides for the discretionary issuance of more licenses if the area is a resort area. That section states in relevant part:
"(b) The board 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."
All parties agree that the present area is, indeed, a resort area. The issue before us is necessity or need for the license in the area.
[ 20 Pa. Commw. Page 492]
Our Supreme Court has interpreted Section 4-461(b) to mean that the Board is required to predicate the issuance of a license under this section upon a finding of actual need for the license. Willowbrook County Club, Inc. Liquor License Case, 409 Pa. 370, 187 A.2d 154 (1962). In that case, Justice Eagen wrote:
"There is no doubt that to warrant the granting of an additional license in a 'resort area,' it must be clear that there is actual need, and that the license holders already in business are not adequately equipped to supply the need of those frequenting the area. However, we agree with the conclusion reached in this case by the Superior Court, supra, stated at page 246: '[That] the requirement of necessity in a resort area must be considered in light of the circumstances under which the applicant operates. The term "actual necessity" in determing the need for a liquor license will be given a broad construction so as to mean substantial need in relation to the pleasure, convenience and general welfare of the persons who would make use of the facility.'" (Emphasis added.) Willowbrook, supra, 409 Pa. at 374-75, 187 A.2d at 156.
Further, our decision in Springdale District Sportsmen's Association v. Pennsylvania Liquor Control Board, 10 Pa. Commonwealth Ct. 479, 342 A.2d 802 (1975), ...