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Irem Temple Aaonms v. Pa. Liquor Control Bd.

Commonwealth Court of Pennsylvania

March 14, 2014

Irem Temple AAONMS, Petitioner
v.
Pennsylvania Liquor Control Board, Respondent; Cataldo Saitta, individually and o/b/o the members of Irem Temple AAONMS, Petitioners
v.
Pennsylvania Liquor Control Board, Respondent; Irem Temple AAONMS, Cataldo Saitta, individually and o/b/o the members of Irem Temple AAONMS
v.
Pennsylvania Liquor Control Board, In Re: Application of Acacia Services, LLC for Restaurant License Transfer, Appeal of: Irem Temple AAONMS; Irem Temple AAONMS, Cataldo Saitta, individually and o/b/o the members of Irem Temple AAONMS
v.
Pennsylvania Liquor Control Board, In Re: Application of Acacia Services, LLC for Restaurant License Transfer, Appeal of: Cataldo Saitta, individually and o/b/o the members of Irem Temple AAONMS

Argued: December 9, 2013.

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Appealed from No. Liquor Control Board License No. CC-3449, Case No. 12-9167, Trial Court Docket No. 2013-02318. State Agency: Pennsylvania Liquor Control Board. Common Pleas Court of the County of Luzerne. Lupas, J.

Michael D. Yelen, Wilkes-Barre, for petitioners.

Rodrigo Diaz, Executive Deputy Chief Counsel, Harrisburg, for respondent.

Richard S. Bishop, Kingston, for intervenor Acacia Services, LLC.

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE ANNE E. COVEY, Judge. OPINION BY JUDGE LEADBETTER.

OPINION

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BONNIE BRIGANCE LEADBETTER, Judge.

Irem Temple AAONMS (Ancient Arabic Order, Nobles of the Mystic Shrine) (Irem Temple) and Cataldo Saitta, individually and on behalf of Irem Temple members, have filed five appeals with this Court: (1) two appeals from the February 14, 2013 order of the Pennsylvania Liquor Control Board (Board) approving the application of Acacia Services, LLC (Acacia) for, inter alia, an inter-municipal, double transfer of a restaurant liquor license, (2) an appeal from the Board's February 14, 2013 letter notifying Irem Temple of the " de-licensing" of its catering club liquor license for the areas covered by Acacia's approved license transfer, and (3) two appeals from the March 7, 2013 order of the Court of Common Pleas of Luzerne County (trial court) quashing the appeals from the Board's February 14, 2013 order for lack of jurisdiction.

In these consolidated appeals, we are asked to decide (1) whether jurisdiction to hear the appeals from the Board's February 14, 2013 order and notification letter lies in the trial court or in this Court, (2) whether the Board abused its discretion and committed an error of law in approving Acacia's application and de-licensing Irem Temple's liquor license, and (3) whether the Board deprived Irem Temple of due process rights by de-licensing its license without notice and a hearing. After careful review of the record, relevant statutory provisions and case law, we conclude that jurisdiction over the appeals from the Board's order lies in this Court, that the Board's notification of the de-licensing of Irem Temple's license is not a separate adjudication appealable to this Court, and that the Board did not abuse its discretion, commit an error of law or violate Irem Temple's constitutional due process rights. Accordingly, for the reasons set forth below, we affirm the Board's order, dismiss the appeal from the de-licensing of Irem Temple's license, and dismiss as moot the appeals from the trial court's order.

I.

Irem Temple is a male-only fraternal organization with 3200 members. It owns 350 acres of land in Dallas Township, Luzerne County, currently consisting of a golf course, areas for campers and trailers, 23 or 24 cottages, a 305-unit apartment complex and a new clubhouse constructed by Masonic Villages of the R.W. Grand Lodge of F. & A.M. of Pennsylvania (Masonic Villages) in 2009. In 2012, Acacia, a

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company wholly owned by Masonic Villages, sought to transfer a restaurant liquor license to the second floor of the new clubhouse. The evidence presented at a hearing reveals the following events leading to the disputes in this matter.

In June 2006, Irem Temple leased to Masonic Villages a portion of its land to allow Masonic Villages to construct apartments and cottages for retirees. In another lease agreement dated November 29, 2007, Irem Temple permitted Masonic Villages to construct a new clubhouse on Irem Temple's land at Masonic Villages' sole cost and to demolish the existing clubhouse built in the 1920s that Irem Temple had operated with a catering club liquor license. The term of the lease was 50 years with an option to extend it for each successive 10-year period.

Under the 2007 lease agreement, Masonic Villages owns all improvements made on the leased land until such time as the lease is terminated. Paragraph 5.1.4 of the 2007 Lease Agreement (Exhibit P-4); Item No. 20 of the Original Record of Administrative Proceedings (O.R.). Masonic Villages had a right to sublease the leased land and improvements thereon and to manage or have a third party manage the operation of the new clubhouse. On November 29, 2007, Masonic Villages subleased to Irem Temple the first floor of the new clubhouse to be built, except the far left side and the foyer area near the stairs and elevator, for a yearly rent of $16 per square foot. Irem Temple intended to use those areas for a shrine, offices and storage. The term of the sublease was 10 years with an option to extend it for each successive 10-year period. Masonic Villages built a new 26,000-square-foot clubhouse located at 64 Ridgway Drive, Dallas Township at the cost of $8,000,000 and opened it in 2009.

In December 2010, Irem Temple and Masonic Villages entered into a settlement agreement, designating Masonic Villages as the exclusive service provider at the new clubhouse. The agreement stated that they initially contemplated a transfer of Irem Temple's catering club liquor license to Masonic Villages, but that the Board refused to approve their management consulting agreement. The Board subsequently approved a management consulting agreement between Irem Temple and Acacia, which permitted Acacia to serve alcoholic beverages at the new clubhouse as Irem Temple's agent.

In December 2011, Masonic Villages terminated the 2010 settlement agreement, stating that Irem Temple failed to cooperate with transferring the catering club liquor license to Masonic Villages. Irem Temple then notified Masonic Villages and Acacia that female customers could not be served at the clubhouse because Irem Temple is a male-only organization. On March 13, 2012, Masonic Villages subleased to Acacia the second floor of clubhouse and the portion of the first floor that had not been subleased to Irem Temple. Two days later, Irem Temple terminated the management consulting agreement. Acacia has since operated a BYOB (bring your own beer, booze or bottle) restaurant on the second floor of the new clubhouse, which is open to the public.

On April 3, 2012, the Dallas Township Board of Supervisors passed a resolution approving an inter-municipal restaurant liquor license transfer from Kingston, ...


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