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COMMONWEALTH PENNSYLVANIA v. MARK T. KLEIN (10/27/86)

decided: October 27, 1986.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
MARK T. KLEIN, T/A HILLTOP INN, APPELLEE



Appeal from the Order of the Court of Common Pleas of Luzerne County, in case of Mark T. Klein v. Pennsylvania Liquor Control Board, No. 1466 of 1984.

COUNSEL

Felix Thau, Deputy Chief Counsel, for appellant.

No appearance for appellee.

Judges Craig and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 101 Pa. Commw. Page 529]

The Pennsylvania Liquor Control Board (PLCB) appeals from an order of the Court of Common Pleas of Luzerne County reversing the PLCB's denial of an application for a new restaurant liquor license filed by Mark T. Klein (Applicant). We reverse.

In 1983, Applicant entered into an agreement to purchase a restaurant in the Borough of Harvey's Lake, Luzerne County, the agreement being contingent upon Applicant's obtaining a liquor license. Accordingly, Applicant sought a liquor license from the PLCB pursuant to the resort area exception of Section 461(b) of the Pennsylvania Liquor Code*fn1 (Code).

At a hearing before a PLCB hearing examiner, it was undisputed that Harvey's Lake is a resort area. Its statutory quota for liquor licenses is one, but at least 15 are located in the borough. One current licensee, appearing as a protestant, testified that there was no need for an additional liquor license since three were available for sale in the area, and the only occasions his establishment had to turn patrons away were a few weekends in the summer. Applicant testified that he intended to open a restaurant specializing in steaks and ribs, and a number of neighbors of the Applicant's proposed restaurant testified in effect that it would be

[ 101 Pa. Commw. Page 530]

    more convenient for them if Applicant were granted a license. The PLCB, without making detailed findings of fact, determined that while Harvey's Lake is a resort area, Applicant had not demonstrated the requisite need for an additional liquor license and thus denied his application.*fn2 Applicant timely appealed to the Court of Common Pleas of Luzerne County.

At a hearing de novo, the court heard additional testimony from Applicant and various permanent residents to the effect that Applicant intended to operate a family-style restaurant open for lunch and dinner six days per week on a year-round basis "if business warranted being open," and that such a place was needed in the area. The court made a number of findings of fact, including one that there was no comparable licensee in the area in terms of cuisine, hours and atmosphere, and concluded that there was actual need for a new liquor license, based upon "neighborhood convenience" and the interest expressed by permanent residents living in the area of Applicant's premises. The Court reversed the PLCB and ordered that Applicant be granted a license. From this order, the PLCB appeals.

The PLCB contends that the court of common pleas erred in two respects: by improperly substituting its discretion for that of the PLCB, and by finding that Applicant proved a need for an additional liquor license. Because we conclude that the court erred in finding actual need ...


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