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Malt Beverages Distributors Association v. Pennsylvania Liquor Control Board

March 2, 2009

MALT BEVERAGES DISTRIBUTORS ASSOCIATION AND K.E. PLETCHER, INC., PETITIONERS
v.
PENNSYLVANIA LIQUOR CONTROL BOARD, RESPONDENT



The opinion of the court was delivered by: Judge Simpson

Argued: December 10, 2008

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Judge*fn1, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge.

OPINION

In this appeal from an order of the Pennsylvania Liquor Control Board (PLCB), Malt Beverage Distributors Association (MBDA) and K.E. Pletcher, Inc. (K.E. Pletcher) ask whether the PLCB erred in granting Wegmans Food Markets, Inc.'s (Wegmans) application for a restaurant liquor license at its store in State College, Pennsylvania. Essentially, MBDA argues the real seller of beer here is Wegmans' supermarket, and the notion that Wegmans' Market Café restaurant is actually the seller is merely a legal fiction. Wegmans asserts the PLCB erred in granting MBDA standing to intervene in the proceedings. Upon review, we affirm.

I. Background

In February 2007, Wegmans filed an application for the inter-municipal double transfer of Restaurant Liquor License No. R-11694 from W.U. Enterprises, Inc., t/a Dreamers Pub, 112-114 East Pine Street, Philipsburg, Pennsylvania, to itself, for the premises located at 345 Colonnade Way, Patton Township, State College, Pennsylvania. MBDA and K.E. Pletcher filed a joint motion to intervene in the licensure proceedings. Wegmans filed an answer, requesting the PLCB deny the motion to intervene.

The PLCB's Bureau of Licensing (Bureau) informed Wegmans it would conduct a hearing to take evidence regarding several objections by the Bureau, including:

1) The [PLCB] shall take evidence to determine if it should permit an interior connection to the unlicensed grocery store in accordance with Section 3.52(b) of the [PLCB's] Regulations.

2) The [PLCB] shall take evidence to determine whether it should permit [Wegmans] to operate another business on the licensed premises (the storage and preparation of food items for the unlicensed grocery store as well as grocery item sales), in accordance with Section 3.52(c) of the [PLCB's] Regulations.

3) The [PLCB] shall take evidence to determine if [Wegmans] will allow minors to frequent its licensed premises, in violation of Section 493(14) of the Liquor Code.*fn2

8) The [PLCB] shall take evidence and hear argument on the issue of whether the Commonwealth Court decision in Malt Beverage Distributors Association v. Pennsylvania Liquor Control Board, [918 A.2d 171 (Pa. Cmwlth.), appeal granted, 593 Pa. 413, 931 A.2d 626 (2007)], and/or Section 3.52 -- 3.54 of its Regulations, precludes an interior connection between a supermarket and a restaurant, [notwithstanding] the lack of reference to such a limitation in the Regulation and its predecessors, Regulation 103 and Regulation R-37-27 and further notwithstanding the [PLCB's] historical policy of approving such connections when appropriate. [See] Freedman v. Pennsylvania Liquor Control Board, 20 Pa. D & C[.]2d 353 (CCP Montgomery 1954). [See also] Tacony Civic Association v. Pennsylvania Liquor Control Board, 668 A.2d 584 (Pa. Cmwlth. 1995).

9) The [PLCB] shall take evidence and hear argument on the issue of whether the Commonwealth Court decision in Malt Beverage Distributors Association v. Pennsylvania Liquor Control Board, [918 A.2d 171 (Pa. Cmwlth.), appeal granted, 593 Pa. 413, 931 A.2d 626 (2007)], and/or Section 3.52 -- 3.54 of its Regulations, imposes a limitation on the size of the unlicensed business, when compared to the size of the licensed business, notwithstanding the lack of reference to such a limitation in the Regulation and its predecessors, Regulation 103 and Regulation R-37-27 and further notwithstanding the [PLCB's] historical interpretation of the Regulations to allow an interior connection to other businesses such as department stores (Wanamaker's and Boscov's).

10) The [PLCB] shall take evidence to determine if [MBDA] and [K.E. Pletcher] has a valid reason for filing the petition-to-intervene late and if valid, how they would be directly aggrieved by the granting of this application, which would qualify them as intervenors in this matter. See In re Application of Family Style Restaurant, Inc., 503 Pa. 109, 468 A.2d 1088 (1983); Malt Beverage Distributors Association v. Pennsylvania Liquor Control Bd., 881 A.2d 37 (Pa. Cmwlth. 2005).

11) The [PLCB] shall take evidence to determine that the approval of this application will not adversely affect . the health, welfare, peace and morals of the neighborhood within a radius ...


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