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04/23/97 APPLICATION ASPREY INC. FOR A RESTAURANT

April 23, 1997

IN RE: APPLICATION OF ASPREY, INC. FOR A RESTAURANT LIQUOR LICENSE, HIRAMREST CORPORATION, PETITIONER; IN RE: APPLICATION OF ASPREY, INC. FOR A RESTAURANT LIQUOR LICENSE, ARTHUR GARRIS, JR. AND SHIRLEY GARRIS D/B/A GARRIS LOG CABIN RESTAURANT, PETITIONERS


Appealed From No. 96-9313. State Agency Pennsylvania Liquor Control Board.

Before: Honorable James Gardner Colins, President Judge, Honorable Jim Flaherty, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Senior Judge Narick.

The opinion of the court was delivered by: Narick

OPINION BY SENIOR JUDGE NARICK

FILED: April 23, 1997

The issues before this Court require us to 1) determine what a new restaurant liquor license applicant, under the resort exception to the retail liquor license quota, must prove to determine the requisite need; and 2) determine whether the Pennsylvania Liquor Control Board (Board) abused its discretion in granting a new restaurant liquor license when the applicant failed to post its notice continuously from the date of application to the date of the Board's decision and in refusing to grant intervention to certain parties.

Hiramrest Corporation (Hiramrest) and Arthur and Shirley Garris, d/b/a Garris Log Cabin Restaurant (Garrises) (collectively, Appellants) appeal from the orders of the Board which granted Asprey, Inc. (Asprey) an application for a new restaurant liquor license for a business known as Abby's General Store on Route 209, Lehman Township, Pike County (proposed premise). We affirm.

Asprey filed for a new restaurant liquor license under the resort exception to the retail liquor license quota. The proposed premise is located in the Delaware Watergap National Recreation Area which has an excess of 2,000,000 visitors a year. Between June 2 and June 7, 1995, Robert F. Kline, the Board's licensing analyst/investigator, assigned to conduct an investigation of Asprey's application, observed that the required notice of application for a liquor license was improperly posted inside the proposed premise. Mr. Kline advised Asprey to correctly post the notice inside the window of the proposed premise facing the highway. As of June 7, 1995, Asprey complied.

On June 30, 1995, Hiramrest filed a petition to intervene in a timely manner, i.e, within thirty days of the June 7th date of the proper posting of Asprey's notice of application. The Board accepted Hiramrest's petition to intervene pursuant to 40 Pa. Code § 17.12(b). *fn1

By letter dated January 11, 1996, the Bureau of Licensing notified Hiramrest and Asprey that an administrative hearing would be held before a Board hearing examiner on the application with respect to the following objections:

1. The quota for Lehman Township, Pike County is 1 and there are 4 restaurant liquor licenses in effect counted against the quota. Accordingly, the quota is exceeded.

2. The Board shall take evidence to determine whether there is a necessity for an additional restaurant liquor license in Lehman Township, Pike County.

3. The Board shall take evidence to determine why it should permit an interior connection to another business pursuant to Section 3.52(b) of Title 40, Pennsylvania Code.

4. The Board shall take evidence to determine why it should permit the sale of propane gas from the general store, which has an interior connection to the proposed licensed business, pursuant to Section 404 of the Liquor Code.

5. The Board shall take evidence that the approval of this application will not adversely affect the health, welfare, peace and morals of the neighborhood within a radius of ...


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