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Estate of Deckard v. Pennsylvania Liquor Control Bd.

Commonwealth Court of Pennsylvania

July 31, 2015

Estate of Gloria Deckard, David I. Grunfeld, Administrator Ad Litem, t/a Beer Hut, Petitioner
v.
Pennsylvania Liquor Control Board, Respondent

Argued June 15, 2015

Appealed from No. 14-9122. State Agency: Pennsylvania Liquor Control Board.

Joshua J. Voss, Harrisburg, for petitioners.

Robert W. McAteer, Deputy Chief Counsel, Harrisburg, for respondent.

Stanley Wolowski, Pittsburgh, for intervenor Acme Markets, Inc.

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge.

OPINION

Page 1174

PATRICIA A. McCULLOUGH, J.

The Estate of Gloria Deckard, David I. Grunfeld, administrator ad litem, t/a Beer Hut (Petitioner) petitions for review of the November 1, 2014 order of the Pennsylvania Liquor Control Board (Board), which approved Acme Markets, Inc.'s (Applicant) application for double transfer of Restaurant Liquor License No. R-232 (License).

Facts/Procedural History

On January 24, 2014, Applicant filed an application for prior approval with the Board to transfer both the location and ownership of the License to Applicant's proposed restaurant located at 920 Red Lion Road, Philadelphia, Pennsylvania under section 404 of the Liquor Code (Code).[1] Applicant's proposed licensed restaurant would include the following: a 22'x80' outside serving area, accommodating 16 patrons; a serving area measuring 50'x73', accommodating 31 patrons; 2 kitchen areas measuring 24'x12' and 8'x12'; and a 4'x16' storage area. The Board's Bureau of Licensing scheduled a hearing on the application for September 4, 2014. (Board's Findings of Fact Nos. 1-2, 4.)

Michael Michlada (Michlada), a Board licensing analyst, testified that Applicant will have an interior connection to an unlicensed grocery store, which also is owned and operated by Applicant. Michlada stated that there will be fuel pumps located 294 feet from the proposed licensed restaurant on the same property. Michlada testified that he believed the fuel pumps had the " Acme" label and there was no indication that the fuel pumps were not part of the overall " Acme business." (Reproduced Record (R.R.) at 40a, 46a-47a, 52a, 57a.)

Kathleen Emory (Ms. Emory), owner and operator of Beer Hut, testified that Beer Hut is a licensed distributor whose property is located adjacent to Applicant's premises. (R.R. at 66a, 68a.) Steve Emory (Mr. Emory), Ms. Emory's husband and a Beer Hut employee, testified that the fuel pumps are labeled " Acme Gas" and that there is an attendant situated in a kiosk by the fuel pumps. Mr. Emory stated that he believes the sale of gasoline and alcohol on the same property is prohibited. (R.R. at 101a-03a.)

Daniel Croce (Croce), Applicant's Vice President of Operations, testified in support of the application. Croce stated that while Applicant's grocery store and proposed licensed restaurant will be " under the same roof," the proposed licensed restaurant will have a separate entrance with signage denoting Applicant's proposed business, " Frosted Mug." (R.R. at 105a, 110a-11a.) Croce further testified that customers may pay for prepared food items and non-alcoholic beverages at the unlicensed grocery stores' cash registers but may only purchase alcohol at the cash

Page 1175

registers in the proposed licensed restaurant. He said that there will be eleven ten-foot-wide interior connections between the proposed licensed restaurant and the unlicensed grocery store with signage indicating when a customer will enter the proposed licensed restaurant.[2] Croce stated that Applicant will not display alcohol in the grocery store. (R.R. at 119a, 124a-25a, 132a, 136a-37a.)

Croce testified that patrons may take alcohol purchased at the proposed licensed restaurant to the grocery store but may not consume the alcohol in the grocery store. Croce said that Applicant's employees working in the proposed licensed restaurant will be Responsible Alcohol Management Program (RAMP) certified. He testified that Applicant will have surveillance cameras at the proposed licensed restaurant with one camera specifically focused on the cash register area. Croce stated that the proposed licensed restaurant will have its own manager, and the manager and employees working at the proposed licensed restaurant will never work at the fuel pumps or the kiosk located near the fuel pumps. Croce further testified that Applicant owns and operates eight fuel pumps located on the property and that fuel may never be purchased at the proposed licensed restaurant or in the grocery store. (R.R. at 137a, 145a, 153a, 157a-58a, 164a-65a.)

Croce testified that the fuel pumps will be located 300 feet away from the proposed licensed restaurant. He stated that the following will separate the proposed licensed restaurant from the fuel pumps: curbing that is part of the proposed licensed restaurant, horticultural planters along the curbing, a driveway immediately in front of the proposed licensed restaurant, a parking lot, six landscaped islands in between the driveway and the parking lot containing trees and mulch, a separate parking lot/drive lane designated for fuel station customers, and a landscaped oval separating the proposed licensed restaurant's parking lot from the fuel station's parking lot/drive lane. Croce said that the employee working at the fuel-pump kiosk is responsible for supervising, observing, and controlling the fuel pumps. He said that Applicant's customers at the proposed licensed restaurant will not obtain fuel rewards points for alcohol purchases. (R.R. at 154a-56a, 159a-60a.)

The hearing examiner issued a recommended opinion, concluding that our decision in Water Street Beverage, LTD v. Pennsylvania Liquor Control Board, 84 A.3d 786 (Pa.Cmwlth.), appeal denied, 97 A.3d 746 (Pa. 2014), upholding the Board's initial determination interpreting the term " location" as used in section 432(d) of the Code, 47 P.S. § 4-432(d), is controlling with respect to interpretations of section 404 of the Code. The hearing examiner found the facts of Water Street Beverage to be similar to this case, and, thus, recommended that the grant of Applicant's application would not violate section 404. The hearing examiner further found that this Court's holding in Water Street Beverage should also control regarding the interpretation of the terms " place" and " property" as used in section 468(a)(3) of the Code, 47 P.S. ยง 4-468(a)(3), because those terms have a similar meaning to " location." The hearing examiner determined that ...


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