Opinion
No. 2492 C.D. 2010
06-21-2012
Bolete, LLC v. Pennsylvania Liquor Control Board, Appellant
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge (P.) HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Pennsylvania Liquor Control Board (Board) appeals the Order of the Court of Common Pleas of Lehigh County (common pleas court) which reversed the Board's decision to deny Bolete, LLC's, (Bolete) application for an exemption from the hotel room requirements, pursuant to Section 461(c) (8.1) of the Liquor Code, 47 P.S. § 4-461(c) (8.1).
Act of April 12, 1951, P.L. 90, as amended.
Bolete, LLC, (Bolete), operates a hotel and restaurant at 1740 Seidersville Road, Bethlehem, Pennsylvania, and is the owner of Pennsylvania Hotel Liquor License H-2364. Bolete's license has been in use at the same location since it was originally issued on June 23, 1936. On September 28, 2009, Bolete filed an application for a hotel room exemption.
Pursuant to the Liquor Code, the owner of a hotel liquor license is required to maintain a certain number of hotel rooms for public accommodation depending on the size of the municipality where the licensed premise is located. See Section 461 of the Liquor Code, 47 P.S. § 4-461(c).
A hearing on Bolete's application was held on May 21, 2010, before a Hearing Examiner. The Hearing Examiner issued a Recommended Opinion which recommended that Bolete's application be granted. However, the Board refused the recommended opinion, and, on July 27, 2010, issued an order which denied Bolete's application. The Board filed an opinion in support of its order on September 23, 2010, and determined:
The second exception under section 461(c)(8.1) has three (3) requirements: a hotel licensee's license must have been granted prior to September 1, 1949; its license must have lapsed no more than one (1) time; and the Board subsequently issued the hotel licensee a new license prior to January 1, 1971. In the instant matter, as stated above, Licensee's license was granted on June 23, 1936; however, the record shows that Licensee's license never lapsed and was subsequently renewed (not reissued) prior to September 1, 1971. Therefore, although Licensee meets the first requirement, it does not meet the second and third requirements and subsequently, it is not eligible for a bedroom exemption for its hotel under the second exception of section 461(c)(8.1).Board's Opinion, July 27, 2010, at 7; Reproduced Record at 11a.
On August 20, 2010, Bolete appealed to the common pleas court. A hearing was held on October 1, 2010. The common pleas court sustained Bolete's appeal because the Board's denial of Bolete's application was based on a clearly erroneous interpretation of Section 461(c) (8.1) of the Liquor Code, 47 P.S. § 4-461(c) (8.1).
The appeal to the common pleas court was submitted on the record developed before the Hearing Examiner on May 21, 2010; no additional testimony was offered at the hearing on October 1, 2010. --------
The sole issue before this Court is: whether the common pleas court committed an error of law when it concluded that Bolete was eligible for a hotel room exemption under section 461(c) of the Liquor Code, when Bolete's license never lapsed, and Bolete was never subsequently issued a new hotel liquor license?
This Court has reviewed the common pleas court's Opinion and the cases cited therein and concludes that it adequately and correctly addressed this issue and applied sound legal reasoning. Accordingly, this Court adopts in full the Opinion of the common pleas court and affirms on this basis of the Opinion at Bolete, LLC, vs. Pennsylvania Liquor Control Board, Court of Common Pleas of Lehigh County, No. MD-3477-2010 (filed October 15, 2010).
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 21st day of June, 2012, the Order of the Court of Common Pleas of Lehigh County is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge