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COMMONWEALTH PENNSYLVANIA v. ROBERT D. AND ANNICE V. BACKER (02/10/88)

decided: February 10, 1988.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
ROBERT D. AND ANNICE V. BACKER, APPELLEES



Appeal from the Order of the Court of Common Pleas of Franklin County in the case of In Re: Liquor License Appeal of Robert D. Backer and Annice V. Backer d/b/a Blondie's, Volume Y, Page 560, Misc. Docket.

COUNSEL

Felix Thau, Deputy Chief Counsel, for appellant.

Deborah K. Hoff, for appellees.

Judges MacPhail and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish. Judge Palladino concurs in the result only.

Author: Kalish

[ 113 Pa. Commw. Page 374]

This is an appeal by the Pennsylvania Liquor Control Board (Board) from an order of the Court of Common Pleas of Franklin County reversing the Board which had refused the application of Robert D. and Annice V. Backer, owners of Blondie's Restaurant (applicants) for a new restaurant liquor license. We reverse the common pleas court and reinstate the order of the Board.

An application for a new restaurant liquor license and amusement permit was filed by the applicants on May 22, 1985, for premises located in Washington Township, Franklin County. After a hearing held on October 31, 1985, the Board made the following findings of fact:

1. The quota for Washington Township, Franklin County, is 4 and there are 4 restaurant liquor licenses and 1 retail dispenser eating place license in effect counted against this quota. Accordingly, the quota is exceeded. There are also 1 hotel liquor license, 1 club liquor license and 2 catering club liquor licenses in effect which are not counted against this quota.

[ 113 Pa. Commw. Page 3752]

. While it is conceded that the applicants' premises are located in a resort area, there is no evidence of necessity for an additional restaurant liquor license in Washington Township, Franklin County.

On appeal, the trial court concluded that a necessity did exist for applicants' liquor license in this resort area and ordered that a new restaurant liquor license be issued.

Section 461(b) of the Liquor Code (Code), Act of April 12, 1951, P.L. 90, as amended, 47 P.S. ยง 461(b), provides, "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."

The issuance of an additional license in a resort area is warranted only upon a showing that "there is an actual need, and that the license holders already in business are not adequately equipped to supply the need of those frequenting the area." Willowbrook Country Club, ...


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