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COMMONWEALTH PENNSYLVANIA v. MILDRED J. MYERS (11/24/81)

decided: November 24, 1981.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
MILDRED J. MYERS, APPELLEE



Appeal from the Order of the Court of Common Pleas of Wayne County in the case of Mildred J. Myers v. Pennsylvania Liquor Control Board, No. 66-1980 -- Civil.

COUNSEL

David Shotel, Counsel, with him James J. Fitzgerald, III, Chief Counsel, for appellant.

Timothy B. Fisher, for appellee.

Judges Mencer, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Mencer. Judge Williams, Jr., dissents.

Author: Mencer

[ 62 Pa. Commw. Page 571]

The Pennsylvania Liquor Control Board (Board) has appealed from an order of the Court of Common Pleas of Wayne County which reversed a decision of the Board refusing the application by Mildred J. Myers for a new retail-dispenser eating-place license for premises in Lehigh Township, Wayne County.

The Board refused the Myers application because it found that the quota of one license for the retail sale

[ 62 Pa. Commw. Page 572]

    of alcoholic beverages applying to Lehigh Township, Wayne County, is filled and that there are also three hotel liquor licenses in effect in said municipality which are not counted against the quota.*fn1 In addition, the Board found that the establishment to be licensed had not been shown to be located in a resort area, so as to allow the issuance of a liquor license beyond the established quota, and that there had been no showing of necessity for the additional license.

The lower court, after conducting a hearing de novo on the application, determined that the Board had abused its discretion in the instant case. In so doing, the court concluded that the evidence of record was sufficient to establish that the premises sought to be licensed by Mildred J. Myers were located in a resort area and that there existed a necessity for the additional license.

Here the Board contests determinations of the lower court. It is our conclusion that the applicant failed to prove that the premises sought to be licensed are located in a resort area.*fn2

A municipality and its immediate environs, to be classified as a resort area, must have a seasonal influx of a large number of temporary inhabitants and suitable accommodations for this transient population. Penn State Faculty Club Liquor License Case, 33 Pa. Commonwealth Ct. 320, 381 A.2d 1017 (1978). There must be specific evidence relating to the number and size of the recreational facilities in and around the ...


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