Appeal from the Order of the Court of Common Pleas of Fayette County in the case of In Re: Application for new Restaurant Liquor License, Amusement Permit and Provisional Sunday Sales Permit by Kenneth N. Ruse, trading as The Sun Porch, No. 561 Miscellaneous Docket 1980.
Patrick M. McHugh, Counsel, with him J. Leonard Langan, Chief Counsel, for appellant.
Vincent J. Roskovensky II, for appellee.
Judges Blatt, Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge Williams, Jr. dissents.
[ 67 Pa. Commw. Page 300]
The Pennsylvania Liquor Control Board (Board) has appealed from an order of the Court of Common Pleas of Fayette County which reversed a Board decision refusing the application of Kenneth N. Ruse, t/a The Sun Porch (Applicant) for a new restaurant liquor license, amusement permit and provisional Sunday sales permit for premises in North Union Township, Fayette County.
Section 461(a) of the Liquor Code (Code), Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4.461(a) provides for a quota of one retail liquor license per two thousand inhabitants of a municipality. Under this provision, the quota for North Union Township is six licenses. According to the Board's evidence, seventeen restaurant licenses are presently in effect
[ 67 Pa. Commw. Page 301]
in the Township, along with four hotel licenses, one club license and one catering club license. Therefore, no new licenses may be issued under Section 461(a) authority.
Section 461(b) of the Code, 47 P.S. § 4.461(b), however, gives to the Board a discretionary power to issue further licenses if the municipality is a resort area. The burden is on the Applicant under Section 461(b) to show 1) that the premises sought to be licensed are in a resort area and 2) that there is an actual need for the license. Appeal of Brandywine Valley Inn, Inc., 53 Pa. Commonwealth Ct. 203, 206, 417 A.2d 823, 825 (1980). A hearing was conducted by the Board to consider this question, with testimony taken from a Board enforcement officer and from the Applicant. After said hearing, the Board determined that North Union Township was in excess of quota, that the proposed licensed premises was not located in a resort area, that there was no evidence of necessity for an additional restaurant liquor license in the Township and that the proposed liquor license was located within 300 feet of a cemetery owned by a Catholic Church.
On the appeal taken from this determination to the court of common pleas no further evidence was presented. Both parties also stipulated that the only issue to be presented to the trial court was that of necessity.*fn1
[ 67 Pa. Commw. Page 302]
The trial court determined that necessity was shown, based on Applicant's testimony that he had received many requests from patrons for alcoholic beverages and that there were no establishments which served moderately priced dinners within five miles of Applicant's premises. The Court therefore determined that there ...