Original Jurisdiction in the case of Douglas Steve Replogle, trading and doing business as Ye Olde Barn Lounge v. Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board.
Richard S. Wilt, for petitioner.
Michael L. Harvey, Deputy Attorney General, with him, Allen C. Warshaw, Executive Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for respondent.
Judges Craig and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.
[ 95 Pa. Commw. Page 615]
The Pennsylvania Liquor Control Board preliminarily objects to Douglas Steve Replogle's original jurisdiction request for a declaratory judgment that section 472 of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-472, which permits municipalities to exercise a local option to prohibit the issuance or renewal of various liquor licenses, is in violation of the Pennsylvania and United States Constitutions. We sustain the board's preliminary objections, on the ground of failure to state a cause of action.
Replogle applied for a liquor license and the board conditionally approved that application on August 15, 1972. The board granted final approval on December 21, 1977, after Replogle had completed required renovations to the premises. The board renewed Replogle's license each year until 1985. On May 21, 1985, Penn Township, where Replogle operates his tavern business, voted to ban the issuance or renewal of retail liquor licenses within the township. Because of the results of the vote, the board, citing section 472, did not review Replogle's license for another year and it expired on January 31, 1986.
[ 95 Pa. Commw. Page 616]
Section 472 of the Liquor Code permits municipalities to exercise a "local option" to restrict the sale of alcoholic beverages by means of a referendum vote. Section 472 states in pertinent part:
[I]f a majority of the electors voting on any such question vote 'no' then the board shall have no power to grant or renew upon their expiration any licenses of the class so voted upon in any such municipality. . . .
Also, by the terms of section 472, Penn Township must wait for four years before it may conduct a vote in exercising its local option, to lift that ban. "It is abundantly clear that the conduct of the liquor business is lawful only to the extent and manner permitted by statute." Commonwealth v. Koczwara, 397 Pa. 575, 581, 155 A.2d 825, 818 (1959).
Replogle contends that effect of the local option law is to take the property without just compensation and contrary to due process of law, so that it violates both Art. I, § 10, of the Pennsylvania Constitution and the Fifth Amendment of the United States Constitution. In his brief, Replogle contends that Penn Township's exercising of its local option has denied him the benefits of his investment in his tavern as certainly as if the tavern had been closed because of eminent domain proceedings.
Properly stated, the issue before this court is: Does a licensee have a property right in the renewal of a liquor ...