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MILDRED AND WILLIAM E. DUNCAN v. COMMONWEALTH PENNSYLVANIA (08/13/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 13, 1980.

MILDRED AND WILLIAM E. DUNCAN, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, RESPONDENT

Original jurisdiction in the case of Mildred and William E. Duncan v. Pennsylvania Liquor Control Board.

COUNSEL

Craig S. Boyd, for petitioners.

David Shotel, Assistant Attorney General, with him Kenneth W. Makowski, Acting Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

Judges Mencer, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 53 Pa. Commw. Page 450]

William E. Duncan and Mildred Duncan made demand upon the Pennsylvania Liquor Control Board

[ 53 Pa. Commw. Page 451]

(Board) for the issuance of an application to renew the restaurant liquor license issued to them, and their demand was denied.*fn1 The Board's refusal was upon the ground that in May 1979 at a primary election held in the Borough of Elverson, the site of the Duncans' hotel for which the license in question was issued, the electors voted against the granting of liquor licenses for the sale of liquor in the Borough of Elverson. In consequence, it was prohibited by law*fn2 from renewing the license issued to the Duncans.

Thereupon, the Duncans filed a complaint in equity in this court, which we regarded and acted upon as a petition for review, addressed to this court's original jurisdiction. The Duncans also filed a motion for preliminary injunction and, after hearing, on January 30, 1980, former President Judge James S. Bowman ordered the Board to temporarily renew the restaurant liquor license issued to the Duncans, otherwise expiring on January 31, 1980, until disposition of this case on the merits or further order of this court. On February 7, 1980, the Board filed preliminary objections raising a question of this court's jurisdiction and setting forth a demurrer to the Duncans' cause of action.

[ 53 Pa. Commw. Page 452]

In this Commonwealth, we have a state stores system supervised by a liquor control board. In addition, our board regulates the importation of alcoholic beverages and the granting of licenses permitting the sale of alcoholic beverages for consumption on the premises. Our Liquor Code has statewide application, but Section 472 thereof authorizes local option elections whereby the people of the various municipalities within the Commonwealth have the right to determine, in accordance with the procedure prescribed by the Liquor Code, whether liquor licenses shall be granted within the municipalities where they reside.

Here the majority of the electors of the Borough of Elverson voting in the May 1979 primary election voted against the granting of liquor licenses for the sale of liquor in the Borough of Elverson, and the Board refused to renew the license issued to the Duncans. At this point in time, the pertinent portions of Section 464, 47 P.S. ยง 4-464, which read as follows, became applicable.

The board may of its own motion, and shall upon the written request of any applicant for club, hotel or restaurant liquor license, or any applicant for any malt or brewed beverage license other than a public service license, or for renewal or transfer thereof, whose application for such license, renewal or transfer has been refused, fix a time and place for hearing of such application for license or for renewal or transfer thereof, notice of which hearing shall be mailed to the applicant at the address given in his application. Such hearing shall be before the board, a member thereof, or an examiner designated by the board. At such hearing, the board shall present its reasons for its refusal or withholding of license, renewal or transfer thereof. The applicant may appear in person or

[ 53 Pa. Commw. Page 453]

    by counsel, may cross-examine the witnesses for the board and may present evidence which shall likewise be subject to cross-examination by the board. Such hearing shall be stenographically recorded. The examiner shall thereafter report to the board upon such hearing. The board shall thereupon grant or refuse the license, renewal or transfer thereof. In considering the renewal of a license, the board shall not refuse any such renewal on the basis of the propriety of the original issuance or any prior renewal of such license. If the board shall refuse such license, renewal or transfer following such hearing, notice in writing of such refusal shall be mailed to the applicant at the address given in his application. In all such cases, the board shall file of record at least a brief statement in the form of an opinion of the reasons for the ruling or order and furnish a copy thereof to the applicant. Any applicant who has appeared before the board or any agent thereof at any hearing, as above provided, who is aggrieved by the refusal of the board to issue any such license or to renew or transfer any such license may appeal. . . , within twenty days from date of refusal. . . , to the court of [common pleas] of the county in which the premises applied for is located or the county court of Allegheny County. Such appeal shall be upon petition of the aggrieved party, who shall serve a copy thereof upon the board, whereupon a hearing shall be held upon the petition by the court upon ten days' notice to the board, which shall be represented in the proceeding by the Department of Justice. The said appeal shall act as a supersedeas unless upon sufficient cause shown the court shall determine otherwise. The court shall hear the application

[ 53 Pa. Commw. Page 454]

    de novo on questions of fact, administrative discretion and such other matters as are involved, at such time as it shall fix, of which notice shall be given to the board. The court shall either sustain or over-rule the action of the board and either order or deny the issuance of a new license or the removal or transfer of the license to the applicant.

Accordingly, there is a statutorily provided procedure to be followed by the holder of a restaurant liquor license, the renewal of which has been refused. He must move the Board for a hearing of his application for renewal. Following the hearing, the Board shall grant or refuse the renewal of the license. If not satisfied with the Board's action, the applicant may appeal*fn3 to this court,*fn4 and we note that Section 464

[ 53 Pa. Commw. Page 455]

    provides that the appeal shall act as a supersedeas unless, upon sufficient cause shown, the court shall determine otherwise.*fn5

Admittedly, the Duncans have not pursued the administrative remedy available under Section 464 of the Liquor Code. Consequently, not having exhausted

[ 53 Pa. Commw. Page 456]

    the administrative remedy available to them, the complaint in equity, which we have regarded as a petition for review, was improperly filed in this court. Stull v. Robinson, 49 Pa. Commonwealth Ct. 96, 411 A.2d 270 (1980).

Accordingly, we make the following

Order

Now, this 13th day of August, 1980, the preliminary objections filed by the Pennsylvania Liquor Control Board are hereby sustained, and it is ordered that the complaint in equity filed in this court by Mildred Duncan and William E. Duncan be, and it is hereby, dismissed. It is further ordered that our order of January 30, 1980, directing the Pennsylvania Liquor Control Board to temporarily renew restaurant liquor license No. R18752, issued to Mildred Duncan and William E. Duncan, is hereby terminated, in accordance with our now disposition of the above captioned case.

Disposition

Preliminary objections sustained. Complaint dismissed.


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