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

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 ...


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