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MILDRED J. MYERS v. PENNSYLVANIA LIQUOR CONTROL BOARD (10/28/82)

decided: October 28, 1982.

MILDRED J. MYERS, PETITIONER,
v.
PENNSYLVANIA LIQUOR CONTROL BOARD



No. 673 E.D. Misc. Docket 1981, (No. 1885 C.D. 1980), Petition for Allowance of Appeal from the Commonwealth Court.

COUNSEL

Timothy B. Fisher, Gouldsboro, for petitioner.

David Shotel, Pennsylvania Liq. C. Bd., Harrisburg, for respondent.

O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ.

Author: Roberts

[ 499 Pa. Page 77]

OPINION OF THE COURT

This is a petition for allowance of appeal from an order of a panel of the Commonwealth Court (Williams, J., dissenting) reversing an order of the Court of Common Pleas of Wayne County and reinstating an order of the Pennsylvania Liquor Control Board (Board) which denied a requested retail-dispenser eating-place license. Having concluded that the Commonwealth Court applied an erroneous standard in determining that the proposed establishment was not located

[ 499 Pa. Page 78]

    within a resort area, we grant the petition, reverse the order of the Commonwealth Court, and reinstate the order of the court of common pleas.

In 1979, appellant Mildred Myers filed an application with the Board seeking a license for an establishment to be located in the northern end of Lehigh Township, Wayne County, which would sell pizza and six-packs of beer. Because the statutory quota for Lehigh Township for retail establishments dispensing alcoholic beverages had been filled, appellant sought to come within the "resort area" exception provided by the Liquor Code. 47 P.S. § 4-461(b).*fn1 After a hearing, the Board denied the application without making findings of fact and without providing reasons in support of its conclusions that the proposed establishment was not located within a resort area and that an additional retail liquor license in Lehigh Township was not necessary. After a hearing de novo, the court of common pleas reversed the Board, finding (1) that there existed several thousand campsites and vacation home lots in the vicinity of the proposed establishment, inhabited primarily by seasonal residents; (2) that Lehigh Township contained numerous recreational facilities attracting seasonal visitors; (3) that the only licensed establishments in Lehigh Township consisted of one restaurant and three hotels, all located in the southern part of the township more than 3.5 miles from the proposed establishment; and (4) that a petition requesting appellant to apply for a license to sell beer had been signed by over 1200 people. On the basis of these findings, the court of common pleas determined that appellant's proposed establishment was located in a resort area and that an additional license had been shown to be necessary. Accordingly, the court concluded that the Board had abused its discretion in denying the application and ordered that the license be issued. A divided panel of the Commonwealth Court reversed

[ 499 Pa. Page 79]

    on appeal. Pennsylvania Liquor Control Board v. Myers, 62 Pa. Commw. 570, 437 A.2d 483 (1981).

The definition of the term "resort area" in 47 P.S. § 4-461(b) has been left by the Legislature to judicial interpretation. See Application of El Rancho Grande, Inc., 496 Pa. 496, 437 A.2d 1150 (1981). Construing the relevant legislative history, our courts have ...


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