Opinion
Argued October 6, 1983
January 5, 1984.
Pennsylvania Liquor Control Board — Resort area liquor license — De novo hearing by trial court — Authority of trial court — Proof of existence of resort area.
1. An appeal from a decision of the Pennsylvania Liquor Control Board is heard de novo by the court of common pleas, subject to the limitation that the court may reverse only if the Board has committed a clear abuse of discretion or the facts elicited at the de novo hearing differ from those found by the Board. [370]
2. Where the evidence submitted to the trial court on the issue of whether the area in question was a resort area did not differ from that submitted before the Pennsylvania Liquor Control Board, the trial court could not substitute its own findings on the issue and was limited to a determination of whether the Board committed a clear abuse of discretion in finding that no resort area existed. [371]
3. To establish the existence of a resort area for purposes of obtaining a liquor license, an applicant must present specific evidence as to 1) the number and size of the recreational facilities in and around the municipality, 2) their proximity to the applicant's place of business, 3) the seasons during which the facilities are used and 4) the actual number of non-residents occupying the recreational facilities. [371]
4. The Pennsylvania Liquor Control Board committed no error of law in refusing to find that a resort area existed where no evidence was offered to support a specific finding as to the numbers of seasonal population increase. [371-2]
Argued October 6, 1983, before Judges CRAIG, MacPHAIL and DOYLE, sitting as a panel of three.
Appeals, Nos. 2737 C.D. 1982 and 2653 C.D. 1982, from the Order of the 59th Judicial District of Pennsylvania, Court of Common Pleas of Elk County in case of Application of Benjamin T. Roberts and Janet M. Roberts for Retail Dispenser Eating Place Liquor License, No. CR. Misc. 82-17.
Application for retail dispenser eating place license filed with Pennsylvania Liquor Control Board. License denied. Applicants appealed to the Court of Common Pleas of Elk County. Board reversed. License to be issued. GREINER, P.J. Liquor Control Board and intervenors appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
Vernon D. Roof, for appellants, Gerald Willamen et al.
Gary F. DiVito, Chief Counsel, for appellant, Pennsylvania Liquor Control Board.
David A. Whitney, Cartwright, Fernan Whitney, for appellees, Benjamin T. and Janet M. Roberts.
Appellants seek review of a decision by the Court of Common Pleas of the 59th Judicial District which reversed the order of the Pennsylvania Liquor Control Board (Board) denying Appellees' application for a resort area liquor license.
The appeal of the intervenors, Gerald Willamen, Lois Lauglin, Fred Coble and Sam Crocco, has been consolidated with the appeal of the Pennsylvania Liquor Control Board.
Elk County Division.
Benjamin T. and Janet M. Roberts.
Appellees sought the issuance of a retail dispenser eating place license for their restaurant located in Benezette Township, Elk County, under the "resort area" provision of the Liquor Code. The Board denied Appellees' application, concluding that Appellees had neither established that the area in question was a resort area, nor that the additional license was necessary. On appeal, the court of common pleas took additional evidence and reversed, granting a resort area license to Appellees.
Section 4-461(b) of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. 4-461(b) permits the Board to increase the number of liquor licenses above the established quota for any municipality located in a resort area.
An appeal from a decision of the Liquor Control Board is heard de novo by the court of common pleas, subject to the limitation that the court may reverse only if the Board has committed a clear abuse of discretion or the facts elicited at the de novo hearing differ from those found by the Board. Byer Liquor License Case, 73 Pa. Commw. 336, 457 A.2d 1344 (1983); Application of Dorothy R. Hohl, 20 Pa. Commw. 490, 342 A.2d 493 (1975). Although additional evidence was taken by the court in this case, our review indicates that the evidence submitted on the issue of whether the area in question was a resort area did not differ from that submitted before the Board. Therefore, the court could not substitute its own findings on this issue and was limited to a determination of whether the Board committed a clear abuse of discretion in finding that no resort area existed. Ruse Liquor License Case, 67 Pa. Commw. 299, 447 A.2d 331 (1982).
The trial court did not interpret the Board's second finding to be an affirmative finding that no resort area existed. That finding stated: "The Board is not satisfied that the establishment proposed to be licensed is located in a resort area." Unlike the trial court, we interpret this finding to be an affirmative finding on this issue, and shall review the Board's decision accordingly.
To establish a resort area under Section 4-461(b) of the Liquor Code, an applicant must present specific evidence as to 1) the number and size of the recreational facilities in and around the municipality, 2) their proximity to the applicant's place of business, 3) the seasons during which the facilities are used and 4) the actual number of non-residents occupying the recreational facilities. Birchwood Center, Inc. Liquor License Case, 43 Pa. Commw. 517, 403 A.2d 155 (1979); Petition of the Springlale District Sportsmen's Association, 20 Pa. Commw. 479, 342 A.2d 802 (1975).
In this case the evidence before the Board established that Benezette Township is a rural, wooded community with a population of 310. In addition to the 108 year-round residences in the township, there are 667 campsites used by non-residents during the various hunting and fishing seasons. During such seasons the township's retail businesses experience a substantial increase in sales.
On the basis of this evidence, we cannot, however, conclude that the Board abused its discretion in finding that no resort area existed. Such evidence indicates neither the percentage of the 667 campsites occupied, nor the actual number of non-residents occupying them at any given time. This Court has previously held that a general finding of a seasonal increase in population is insufficient; there must be a specific finding as to the actual numbers involved in the increase. Springdale. Without the evidence to support such a finding, the Board committed no error in refusing to find that a resort area existed.
Because of our holding in this case, we need not reach the issue of whether the additional license was necessary.
Accordingly, we shall reverse the decision of the court of common pleas, and reinstate the Board's order.
ORDER
NOW, January 5, 1984, the order of the Court of Common Pleas of the 59th Judicial District, Elk County Division, in the above referenced matters, dated September 28, 1982, is hereby reversed.