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APPEAL PENN STATE FACULTY CLUB FROM REFUSAL PENNSYLVANIA LIQUOR CONTROL BOARD TO GRANT NEW CLUB LIQUOR LICENSE. PENN STATE FACULTY CLUB v. COMMONWEALTH PENNSYLVANIA (01/10/78)

decided: January 10, 1978.

IN RE: APPEAL OF PENN STATE FACULTY CLUB FROM REFUSAL OF PENNSYLVANIA LIQUOR CONTROL BOARD TO GRANT NEW CLUB LIQUOR LICENSE. PENN STATE FACULTY CLUB, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Centre County in case of In Re: Appeal of Penn State Faculty Club from Refusal of the Pennsylvania Liquor Control Board to Grant New Club Liquor License, No. 76-500.

COUNSEL

John C. Gilliland, II, with him McQuaide, Blasko & Brown, Inc., for appellant.

David Shotel, Assistant Attorney General, with him Harry Bowytz, Chief Counsel, and Robert P. Kane, Attorney General, for appellee.

Richard W. Cleckner and Jerome T. Foerster, for amicus curiae, State College Tavern Association.

President Judge Bowman and Judges Crumlish, Jr., Mencer, Rogers and Blatt. Judge Wilkinson, Jr. did not participate. Opinion by Judge Mencer. Dissenting Opinion by Judge Rogers. Dissenting Opinion by Judge Crumlish, Jr.

Author: Mencer

[ 33 Pa. Commw. Page 322]

The Penn State Faculty Club appeals to this Court to hold that The Pennsylvania State University and the immediately surrounding area is a resort within the meaning of Section 461 of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-461.

The Faculty Club's 300 members, most of whom are teachers and administrative personnel from the University's main campus in State College, are attempting to obtain a new club liquor license. The license would allow alcoholic beverages to be available at a new clubhouse building on the main campus. This building was built and is owned by the University, which leases it to the Faculty Club.

Problems have arisen because State College's quota of 16 licenses for the retail sale of alcoholic beverages is already exceeded by six. In addition, there are five hotel liquor licenses, one club liquor license, and two catering-club liquor licenses which are not counted against the quota. The Faculty Club therefore applied to the Pennsylvania Liquor Control Board (Board) to determine whether in its opinion, the Borough

[ 33 Pa. Commw. Page 323]

    of State College is located within a "resort area." Such a determination, coupled with a finding that the Faculty Club members actually need the license, would allow the Board to issue a license to the Club pursuant to Section 461. See Willowbrook Country Club, Inc. Liquor License Case, 409 Pa. 370, 187 A.2d 154 (1962); Application of Dorothy R. Hohl, 20 Pa. Commonwealth Ct. 490, 342 A.2d 493 (1975). See also Petition of Springdale District Sportsmen's Association, 20 Pa. Commonwealth Ct. 479, 342 A.2d 802 (1975); Riviera Country Club Liquor License Case, 201 Pa. Superior Ct. 70, 191 A.2d 725 (1963).

After extensive hearings, the Board issued an opinion finding that the quota for the municipality was exceeded as hereinbefore indicated, that the clubhouse on the main campus was not located within a resort area, and that necessity for an additional retail liquor license had not been established. It therefore refused to grant a new club liquor license, and the Faculty Club appealed to the Court of Common Pleas of Centre County.

Pursuant to Section 464 of the Liquor Code, 47 P.S. § 4-464, the lower court heard the application de novo on questions of fact and administrative discretion. Without making specific findings, the lower court concluded that the record justified the Board's finding that the Borough of State College is not within a resort area. The Court noted in particular that recreational facilities between 10 and 25 miles from The Pennsylvania State University campus did not effectively create a resort area surrounding the campus and that to call the campus itself a resort would be an insult to a fine university. Affirming the Board on the resort-area issue, the Court sustained the refusal to issue a license to the Faculty Club.

On appeal to this Court, the Faculty Club contends that the Board abused its discretion in failing to issue

[ 33 Pa. Commw. Page 324]

    a license. In particular, the Club maintains that it was an abuse of discretion not to consider recreational activities more than 10 miles from the campus and to determine that the activities which drew large numbers of transients were not resort activities. We disagree.

Initially, we note that our scope of review is limited because the discretion to determine whether or not a municipality is located within a resort area is vested in the Board by the express language of the Liquor Code, and there must be a clear abuse of administrative discretion before our courts are authorized to set aside the Board's action. Chukker Valley Golf Club, Inc. v. Pennsylvania Liquor Control Board, 20 Pa. Commonwealth Ct. 321, 341 A.2d 212 (1975); Bierman Liquor License Case, 188 Pa. Superior Ct. 200, 145 A.2d 876 (1958).

In determining whether the Board clearly abused its discretion in finding that the clubhouse was not located within a resort area, we are unaided by the Liquor Code, which leaves undefined the term "resort." Nevertheless, we are guided by the intention of the Legislature, see Willowbrook, supra, as derived from several sources. It has been recognized that

[t]he proceedings before the legislature at the time of the enactment of the original statute disclose that this exception to the quota rule 'was drafted solely for the purpose of having an equitable distribution of licenses' in areas wherein, at certain seasons, the 'population' is greatly increased, 'making it quite obvious that the usual number of licenses would not be adequate to serve the people.' It is apparent that the legislature contemplated the seasonal influx of a large number of temporary inhabitants and the presence of suitable accommodations for this 'transient population.'

[ 33 Pa. Commw. Page 325]

    miles from the main campus. Both Black Moshannon State Park and Bald Eagle State Park are located 22 miles from the campus.

In addition, the record establishes that there are room accommodations available to visitors of the Penn State area, including university residence halls which are widely used by continuing education participants. The record also reveals that the university-owned Faculty Club building is a mere 44 feet from the nearest licensed premises, the Nittany Lion Inn, which is also owned by the University. Further, of the 22 State College premises holding a retail liquor license, 18 are less than eight-tenths of a mile from the Faculty Club premises and the others are less than 2 miles from the Club building.

We hold that the instant record does not support a determination that the Board clearly abused its discretion. As to whether the campus itself should be termed a resort, we note that no center for educational and intellectual instruction has yet been so demeaned by the courts of this Commonwealth. Clearly, a legitimate question arises as to whether the type of activity which on this record could suggest occasionally slow service in State College is that contemplated by the Legislature when it chose to use the term "resort." Without judicial precedent to support a contrary position,*fn2 we cannot say the Board clearly

[ 33 Pa. Commw. Page 327]

    abused its statutory power to form an ...


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