Opinion
October 24, 1986.
Pennsylvania Liquor Control Board — Application for liquor license — Resort area — Liquor Code, Act of April 12, 1951, P.L. 90 — Actual necessity — Scope of appellate review — Findings of fact — Substantial evidence — Abuse of discretion — Error of law — Convenience.
1. One seeking a liquor license in a resort area pursuant to provisions of the Liquor Code, Act of April 12, 1951, P.L. 90, must establish the existence of an actual necessity for the additional licensed premises. [525]
2. In a liquor license appeal where the lower court conducted a hearing de novo, review by the Commonwealth Court of Pennsylvania is to determine whether the findings of fact of the lower court are unsupported by substantial evidence and whether the court committed an abuse of discretion or an error of law. [525]
3. In determining whether an actual necessity exists for an additional liquor license in a resort area, consideration will be given to the needs of persons who will use the facility, the number and types of existing establishments in the area and whether the persons to be served differ from those served by existing licensees. [526]
4. The liquor license regulatory scheme of the Commonwealth of Pennsylvania is designed to restrain, rather than to promote, the sale of liquor. [526]
5. Mere inconvenience suffered by bowlers and bowling spectators in having to leave a bowling alley to obtain alcoholic beverages does not establish the actual necessity for licensing the bowling alley to sell liquor when licensed premises exist nearby which are capable of serving the needs of such patrons. [527]
Submitted on briefs September 8, 1986, to Judges CRAIG and DOYLE, and Senior Judge BLATT, sitting as a panel of three.
Appeal, No. 3073 C.D. 1985, from the Order of the Court of Common Pleas of York County, in case of Hanover Bowling Center, Inc. v. Pennsylvania Liquor Control Board, No. 56 M.A. 1985.
Application for restaurant liquor license filed with Liquor Control Board. Application denied. Applicants appealed to the Court of Common Pleas of York County. Board reversed. License to be issued. BUCKINGHAM, J. Protesting licensees appealed to the Commonwealth Court of Pennsylvania. Held: Reversed. Application for reargument filed and denied.
Victor Dell'Alba, for appellants.
G. Steven McKonly, with him, Ruth E. Robey, Buchen, Wise, Dorr McKonly, for appellee.
This is an appeal by four liquor licensees (Protestants) from an order of the Court of Common Pleas of York County which reversed an order of the Pennsylvania Liquor Control Board (PLCB) denying a liquor license to the Hanover Bowling Center (Applicant). We reverse.
Applicant operates a 32-lane bowling alley located in Penn Township, York County. The premises also contains a food service area, a pro shop, a game room with video games and pool tables, and a nursery. The bowling alley handles approximately 500 bowlers per day, or about 1700 league and 800 "open" bowlers per week. Every weekend from Memorial Day to Labor Day, Applicant runs bowling tournaments attracting entrants from a number of states; in 1984, the tournaments had over 7,700 entrants.
While ordinarily 90 percent of the Applicant's patrons are local residents, during tournaments the percentage of tourists in the bowling alley increases to 8890 percent of the patrons. Applicant currently operates at about 65 percent of capacity.
Applicant applied for a liquor license under the "resort area" exception of Section 461(b) of the Pennsylvania Liquor Code (Code), Act of April 12, 1951, P.L. 90, as amended, 47 P. S. § 4-461(b), since the number of liquor licenses in Penn Township exceeded the quota permitted under Section 461(a) of the Code. It was conceded that Penn Township is located within a "resort area." See In re D.E. Weinbrenner III and James B. Weinbrenner, t/a South Hills Golf Course, No. 25 Misc. Action (York County 1979).
It is uncontested that, under Section 461(a), the quota for restaurant liquor licenses in Penn Township is four.
The Protestants, Applicant, the PLCB, and the court of common pleas agreed that Penn Township is within a resort area and, consequently, we treat it as such here. We are mindful, however, that a mere concession by the PLCB that an area is a "resort area" is not binding precedent upon this Court. Pennsylvania Liquor Control Board v. New Greensburg Aerie Fraternal Order of Eagles No. 3920, Inc., 82 Pa. Commw. 272, 476 A.2d 985 (1984).
At a hearing before a PLCB hearing examiner, three of six licensees within ten miles of Applicant's premises testified. Basically, they testified that there was no need for an additional license to be granted since their establishments were operating under capacity. Witnesses for Applicant testified that there was a need for the license because it would increase Applicant's business and allow Applicant to meet frequent patron requests for alcoholic beverages during and after bowling. They also testified that bowlers found it inconvenient to leave the bowling alley in order to get alcoholic beverages.
Without making detailed findings of fact, the PLCB denied the license, concluding that there was "no evidence of necessity" for it. Applicant appealed this decision to the Court of Common Pleas of York County. Following a de novo hearing at which the court took additional evidence on the issue of actual necessity, the court made findings of fact to the effect that 88 to 90 percent of the tournament bowlers come from outside the immediate area; that it was inconvenient for Applicant's patrons to have to resort to the establishments of existing licensees; and that Applicant attracted a large number of tourists each year for the tournaments. Accordingly, the court found that the PLCB abused its discretion in denying the license and ordered that the license be issued. From this, the Protestants appeal.
In its opinion, the court of common pleas states that the number of tournament bowlers per year exceeds 80,000. A review of the record disclosed that this is mistaken: 80,000 is the annual number of all patrons of Applicant's establishment. The number of participants in the bowling tournaments is roughly 7,700.
Because it was conceded that Penn Township is in a "resort area," the sole issue before this Court is whether Applicant showed the "actual necessity" for a liquor license required in order to obtain one under the "resort area" exception of the Liquor Code.
In a liquor license application case where, as here, the court of common pleas conducts a hearing de novo at which it receives additional evidence and makes its own findings of fact, our scope of review is limited to determining whether substantial record evidence supports its findings of fact, and whether it abused its discretion or committed an error of law. Fisher v. Pennsylvania Liquor Control Board, 93 Pa. Commw. 63, 500 A.2d 218 (1985).
"Actual necessity" for a liquor license is broadly construed to mean substantial need in relation to the pleasure, convenience and general welfare of the persons who would use the facility of the licensee. Pennsylvania Liquor Control Board v. Bridgeport Young Men's Club, 84 Pa. Commw. 13, 478 A.2d 157 (1984). In assessing actual necessity, the factors to consider are: 1) the needs of persons who will use the facility; 2) the number and types of existing establishments in the area; and 3) whether the persons to be served differ from those served by existing licensees. Pennsylvania Liquor Control Board v. Spring Gulch, 87 Pa. Commw. 395, 487 A.2d 472 (1985). In other words, the question is whether an applicant can provide a service where and when present licensees cannot. Appeal of Brandywine Valley Inn, Inc., 53 Pa. Commw. 203, 417 A.2d 823 (1980).
Guided by these standards, and bearing in mind that the regulatory scheme in respect to liquor licenses is designed to restrain the sale of liquor, not promote it, Application of El Rancho Grande, Inc., 496 Pa. 496, 437 A.2d 1150 (1981), we hold that there is no substantial evidence to support the conclusion that Applicant demonstrated "actual necessity" for the liquor license. A review of the record indicates that the court of common pleas was correct in finding that most of the tournament bowlers at Applicant's establishment are tourists and that they find it "inconvenient" to not be able to purchase and consume alcoholic beverages on Applicant's premises. This, however, is not enough to show "actual necessity." For instance, a key consideration is whether existing licensees are capable of serving the need created by an influx of people to the resort area. Willowbrook Country Club, Inc. Liquor License Case, 409 Pa. 370, 187 A.2d 154 (1962); Pesante Appeal, 82 Pa. Commw. 242, 476 A.2d 474 (1984). Nothing in the record contradicts the evidence presented by the Protestants that they and other current licensees are operating under capacity. Moreover, the influx of tournament bowlers only occurs on weekends between Memorial Day and Labor Day, and in 1984 amounted to a little more than 7,700 people; this is hardly enough to show that the existing licensees are incapable of meeting any increased demand. Without a showing of incapacity of current licensees to meet the need, mere convenience of the patrons of the bowling center does not establish "actual necessity." Pennsylvania Liquor Control Board Appeal, 82 Pa. Commw. 142, 474 A.2d 738 (1984). Were it otherwise, every facility of a recreational nature could lay claim to an exception under the "resort area" theory by merely proving that its out-of-area transient patrons found it inconvenient not to be able to buy alcoholic beverages on the premises of the applicant.
Accordingly, we find that the Court of Common Pleas of York County abused its discretion in reversing the decision of the PLCB denying a liquor license to Applicant.
Reversed.
ORDER
NOW, October 24, 1986, the Order of the Court of Common Pleas of York County, No. 56 M.A. 1985 dated October 15, 1985, is hereby reversed.