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COMMONWEALTH PENNSYLVANIA v. SPRING GULCH (02/06/85)

decided: February 6, 1985.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
SPRING GULCH, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lancaster County in the case of Spring Gulch, Inc. v. Pennsylvania Liquor Control Board, Liquor License Docket No. 1, Page 145.

COUNSEL

Eileen S. Manus, with her, Gary F. Di Vito, Chief Counsel, for appellant.

George C. Werner, Barley, Snyder, Cooper and Barber, for appellee.

President Judge Crumlish, Jr., and Judges Rogers, Williams, Jr., MacPhail, Doyle, Barry and Colins. Opinion by President Judge Crumlish, Jr. Dissenting Opinion by Judge MacPhail. Judge Doyle joins in this dissent.

Author: Crumlish

[ 87 Pa. Commw. Page 396]

The Pennsylvania Liquor Control Board appeals a Lancaster County Common Pleas Court order reversing the Board's decision and granting Spring Gulch, Inc.'s application for a new liquor license. We affirm.

Spring Gulch, Inc., operates a restaurant, Spring Gulch Inn, on its campground in Salisbury Township. Salisbury Township has filled its quota of three licenses for the retail sale of alcoholic beverages*fn1 under Section 461(a) of the Liquor Code (Code).*fn2

Spring Gulch, Inc., filed an application for a new restaurant liquor license, amusement permit and issuance of a provisional Sunday sales permit under the

[ 87 Pa. Commw. Page 397]

"resort area" exception, Section 461(b) of the Code,*fn3 which provides that the "board shall have the power to increase the number of licenses in any such municipality which in the opinion of the board is located within a resort area."*fn4 The Board denied the application, finding that the restaurant was not located within a resort area and that the necessity for an additional restaurant liquor license had not been established.

The common pleas court conducted a hearing,*fn5 found that the Board had abused its discretion and directed the Board to grant the application.*fn6

"Where, as here, the court below has taken additional evidence and made its own findings of fact, our scope of review is limited to determining whether or not there is substantial evidence in the record to support those findings and whether or not the trial court abused its discretion or committed an error of law." Appeal of Daras, 65 Pa. Commonwealth Ct. 456, 458-59, 442 A.2d 859, 861 (1982).

An applicant under Section 461(b) bears the burden of proving (1) that the premises sought to be licensed are located within a resort area and (2) that there is actual need for the additional license in the area. Appeal of Brandywine ...


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