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APPEAL FROM DECISION PENNSYLVANIA LIQUOR CONTROL BOARD REFUSING APPLICATION FOR A NEW RESTAURANT LIQUOR LICENSE BY DAVID J. AIELLO (03/21/79)

decided: March 21, 1979.

IN RE: APPEAL FROM DECISION OF THE PENNSYLVANIA LIQUOR CONTROL BOARD REFUSING APPLICATION FOR A NEW RESTAURANT LIQUOR LICENSE BY DAVID J. AIELLO, T/A MCBETHS RIBS AND CHIPS, STAR ROUTE 1, BOX 93, RIDGWAY, PENNSYLVANIA. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT


Appeal from the Order of the Court of Common Pleas of Elk County in case of In Re: Appeal from Decision of Pennsylvania Liquor Control Board Refusing Application for a New Restaurant Liquor License by David Aiello, t/a McBeths Ribs and Chips, Star Route 1, Box 93, Ridgway, Pennsylvania, No. 76-6.

COUNSEL

Mark Stephen Spenick, with him Kenneth W. Makowski, Assistant Attorney General, Harry Bowytz, Chief Counsel, and Robert P. Kane, Attorney General, for appellant.

John R. Fernan, with him Cartwright, Fernan & Whitney, for appellee.

Judges Crumlish, Jr. and Blatt, sitting as a panel of two. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, DiSalle and Craig. Judges Blatt and MacPhail did not participate. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 41 Pa. Commw. Page 346]

Before us is the question whether the Court of Common Pleas erred in reversing a decision of the Pennsylvania Liquor Control Board (PLCB) which denied an application by David J. Aiello, t/a McBeths Ribs and Chips, for a restaurant liquor license under Section 461(b) of the Liquor Code (Code).*fn1

[ 41 Pa. Commw. Page 347]

Section 461(b) of the Code, 47 P.S. § 4-461(b), provides for the discretionary issuance of liquor licenses beyond the established quota for any municipality if PLCB determines that the municipality is located in a resort area. An applicant, in order to fall within this "resort area" exception must further establish that there is an actual need for the granting of an additional license and that license holders already in business are not adequately equipped to supply the needs of those frequenting the area at certain seasons when the population is greatly increased. Willowbrook Country Club, Inc. Liquor License Case, 409 Pa. 370, 187 A.2d 154 (1962); Pennsylvania Liquor Control Board v. Struder, 20 Pa. Commonwealth Ct. 494, 342 A.2d 807 (1975).

Aiello's application for a new liquor license for his restaurant in Ridgway Township, Elk County, was disapproved by PLCB after a hearing on the grounds that (1) the liquor license quota for Ridgway Township was already exceeded;*fn2 (2) the establishment proposed to be licensed did not fall within the "resort area" exception which would allow the issuance of liquor licenses beyond Ridgway Township's established quota; and (3) there had been no showing of a necessity for an additional liquor license in Ridgway Township.

Aiello appealed to the Court of Common Pleas which held a hearing de novo on his application pursuant

[ 41 Pa. Commw. Page 348]

    to Section 464, 47 P.S. § 4-464. The trial court found as a matter of law that Aiello had established the actual necessity for an additional liquor license in the municipality and that his establishment was located in a resort area. The court then reversed PLCB and ordered the requested issuance of a liquor license.

On appeal, PLCB does not contest the court's finding of actual need for an additional liquor license but argues that the record lacks substantial evidence establishing Ridgway ...


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