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Malt Beverages Distributors Association v. Pennsylvania Liquor Control Board

March 2, 2009

MALT BEVERAGES DISTRIBUTORS ASSOCIATION AND LACKAWANNA DISTRIBUTION CORP., 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 Lackawanna Distribution Corp. (Lackawanna), ask whether the PLCB erred in granting Wegmans Food Markets, Inc.'s (Wegmans) application for a restaurant liquor license at its store in Dickson City, Pennsylvania. The PLCB denied MBDA and Lackawanna intervenor status because they filed an untimely joint motion to intervene in the licensure proceedings and they offered no explanation for the delay in filing their motion to intervene. Because we discern no abuse of discretion in the PLCB's denial of the untimely motion to intervene, we affirm.

I. Background

On January 29, 2007, Wegmans filed an application for the double transfer of Restaurant Liquor License No. R-14953 from Denny's, Inc., 410 Scranton Carbondale Highway, Dickson City, Scranton, Pennsylvania, to itself, for the premises located at 1315 Scranton Carbondale Highway, Dickson City, Scranton, Pennsylvania. Wegmans posted its notice of application, which provided public notice of the pending application, at its Dickson City location on January 26, 2007. MBDA and Lackawanna filed a joint motion to intervene in the licensure proceedings on March 5, 2007. Wegmans filed an answer, requesting the PLCB deny the motion to intervene as untimely based upon Section 17.13(b) of the PLCB's regulations. See 40 Pa. Code §17.13(b) (requiring a petition to intervene be filed with the PLCB within 30 days of the posting of the notice of application).

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

5) 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).

6) 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 (Wanamakers and Boscov's).

7) The [PLCB] shall take evidence to determine if there is a valid reason for the late-filing of the petition-to-intervene by [MBDA] and [Lackawanna] and if a valid reason exists, if 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).

8) 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 of 500 feet of the proposed licensed premises. .

PLCB Op., Finding of Fact (F.F.) No. 2. A hearing ensued before a PLCB hearing examiner.*fn3

Ultimately, the PLCB issued an order approving Wegmans' license application. The order indicated if an appeal was filed the PLCB would issue an opinion in support of its order. Additionally, the PLCB issued letters to representatives of MBDA and Lackawanna in which it informed these entities that it denied them intervenor status because their joint petition to intervene was untimely and they did not show good cause for their late filing. MBDA and Lackawanna filed a petition for review to this Court, and the PLCB issued an opinion in support of its order.*fn4

II. PLCB's Opinion

A. PLCB's Findings

The PLCB's opinion in support of its order approving Wegmans' license application contained 399 findings, ...


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