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COMMONWEALTH PENNSYLVANIA v. FRANK RANERI AND LENA RANERI (05/20/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 20, 1986.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD AND WESTMORELAND TAVERN ASSOCIATION
v.
FRANK RANERI AND LENA RANERI, T/A RANERI'S SUPPER CLUB. WESTMORELAND TAVERN ASSOCIATION, APPELLANT

Appeal from the Order of the Court of Common Pleas of Westmoreland County in the case of In Re: Frank Raneri and Lena Raneri, t/a Raneri's Supper Club, No. 40 Civil 1983.

COUNSEL

Eileen Maunus, with her, Irving L. Bloom, for appellant.

James R. McDonald, for appellee.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 97 Pa. Commw. Page 353]

"Westmoreland Tavern Association (Association) appeals a Westmoreland County Common Pleas Court order reversing a Pennsylvania Liquor Control Board (LCB) decision and granting Frank and Lena Raneri's application for a new liquor license. We reverse.

Frank and Lena Raneri are attempting to reopen their Italian-style restaurant in Hempfield Township. Hempfield Township has exceeded its quota of twenty-one licenses for the retail sale of alcoholic beverages*fn1 under Section 461(a) of the Liquor Code (Code).*fn2

The Raneris applied for a new restaurant liquor license under the Code's resort area exception to the license quota.*fn3 The LCB denied the application, finding that no need for an additional license had been established.

The common pleas court conducted a de novo hearing,*fn4 at which time it granted the Association's petition

[ 97 Pa. Commw. Page 354]

    to intervene.*fn5 It found that the Raneris had proved the necessity for an additional liquor license and directed the Board to grant the application.*fn6

Because the common pleas court took additional evidence and made its own findings of fact, our scope of review is limited to determining whether substantial record evidence supports those findings and whether the trial court abused its discretion or committed an error of law. Appeal of Daras, 65 Pa. Commonwealth Ct. 456, 442 A.2d 859 (1982).

[ 97 Pa. Commw. Page 355]

A license applicant under the resort area exception must prove that (1) the premises sought to be licensed are located within a resort area and (2) there is actual need for the additional license in the area. Appeal of Brandywine Valley Inn, Inc., 53 Pa. Commonwealth Ct. 203, 417 A.2d 823 (1980). The Association contends that the Raneris did not meet their burden of proof.

Unfortunately, there is insufficient record evidence from which to determine whether Hempfield Township is a "resort area."*fn7 However, the record does enable us to examine the alleged need for another area liquor license.

With respect to the second aspect of an applicant's burden of proof, this Court has held that the factors to be considered when determining the actual need for an additional liquor license are (1) the need of persons who will use the facility, (2) the number and types of establishments already present in the area and (3) whether the clientele to be served is different from that served by the existing licensees. Pennsylvania Liquor Control Board v. Spring Gulch, 87 Pa. Commonwealth Ct. 395, 487 A.2d 472 (1985). "The real question is whether the Applicant can add a service where and when the present licensee[s] cannot." Brandywine, 53 Pa. Commonwealth Ct. at 208, 417 A.2d at 826 (1980).

The record reveals that several of the presently licensed establishments (at least one of which is only four to five miles down the highway from the Raneris' establishment)

[ 97 Pa. Commw. Page 356]

    offer a selection of Italian cuisine and family atmosphere similar to that which would be provided by the Raneris. None of these existing establishments are overcrowded. Moreover, they already serve the clientele to which the Raneris would cater -- local residents and highway travelers.

We hold that the common pleas court erred by concluding that there is a need for an additional restaurant liquor license in Hempfield Township.

Reversed.

Order

The order of the Court of Common Pleas of Westmoreland County, No. 40 Civil 983 dated September 20, 1983, is reversed. The order of the Pennsylvania Liquor Control Board refusing the application of Frank Raneri and Lena Raneri for a new restaurant liquor license is reinstated.

Disposition

Reversed.


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