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Shippensburg Sheetz Appeal

Shippensburg Sheetz Appeal

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-
O F 1 1 -1 E P R O T H O N I L
C U M B E R L A N D
P E N N S Y L V A I C O U N T Y
I N T H E C O U R T O F C O M M O N P L E A S O F C U M B E R L A N D C O U N T Y , P E N N S Y L V A N I A
C I V I L C L U B O F S H I P P E N S B U R G)
O H I O S P R I N GS , I N C . T /A S H E E T Z, A pplicant), ) C I V I L D I V I S I O N
P etitioner/P rotestant, )
a
S T A T U T O R Y A P P E A L
C A S E N O . ) —
1 -
L ib y
vs. )
P E T I T I O N FO R A P P E A L FR O M
D E C I S I O N O F P E N N S Y L V A N I A
L I QU O R C O N T R O L B O A R D
P E N N S Y L V A N I A L I QU O R C O N T R O L )
B O A R D , )
R espondent. ) FiledonB ehalfofP etitioner,
C I V I L C L U B O F S H I P P E N S B U R G
C ounsel ofR ecord for this P arty:
C harles L . C aputo, E sq.
P a. I .D . #86058
N icholas A .M iller, E sq.
P a. I .D . #2041 41
C aputo, C aputo& R egan, P .C .
B uhl
B uilding,
5th Floor
204FifthA venue
P ittsburgh, P A 1 5222
41 2- 325- 0693
41 2- 690- 2350(facsimile)
info@caputolawoffice.com
awkA
skl
spa
C ,
I L A
aosL 1 g
I N T H E C O U R T O F C O M M O N P L E A S O F C U M B E R L A N D C O U N T Y , P E N N S Y L V A N I A
C I V I L D I V I S I O N , S T A T U T O R Y A P P E A L
C I V I L C L U B O F S H I P P E N S B U R G)
O H I O S P R I N GS , I N C . T /A S H E E T Z, A pplicant), )
P etitioner, )
vs. )
P E N N S Y L V A N I A L I QU O R C O N T R O L )
B O A R D , )
R espondent. )
C A S E N O .
P E T I T I O N FO R A P P E A L FR O M D E C I S I O N
O F P E N N S Y L V A N I A L I QU O R C O N T R O L B O A R D
P etitioner, C ivic C lub of S hippensburg, by and through its counsel, C harles L . C aputo,
E squire, C aputo, C aputo& R egan, P .C .,
hereby appeals fromthe July 1 7, 201 4, D ecisionand
O rder of the P ennsylvania L iquor C ontrol B oard( the" B oard") in C ase N o. 1 3- 91 64, and in
support thereof, avers as follows:
1 .
P etitioner is anon- profit corporationsubsisting and doing business under thelaws
oftheC ommonwealthofP ennsylvaniawithits principal placeofbusiness located at 352 E . King
S treet, S hippensburg, P ennsylvania 1 7257.
2. P etitioner is a restrictive institution located within 300 feet of the proposed
licensed premises under theP ennsylvaniaL iquor C ode and has beengranted protestant status by
theB oard.
3. P etitioner filed aprotest letter withthe B oard and appeared at the administrative
hearing held onM arch 1 8- 1 9, 201 4 to contest theapplicationfor transfer filed by O hio S prings,
I nc. t/aS heetz.
4.
P etitioner appeals from the July 1 7, 201 4, D ecision and O rder of the B oard in
C ase N o. 1 3- 91 64, which approved the double inter -municipal transfer of P ennsylvania
R estaurant L iquor L icenseN o. R - 1 9377 ( the"L icense") to O hio S prings, I nc. t/aS heetz for use
at premises located at 359 E .
King
S treet,
S hippensburg,
P ennsylvania 1 7257 ( the" L icensed
P remises").
A copy ofthe B oard' s O rder is attached hereto, made apart hereof and marked as
E xhibit "A ".
5.
T he B oard' s O rder is not supported by any Findings of Fact, C onclusions ofL aw
or O pinion, whichwould informthe P etitioner as to the basis for the B oard' s approval of O hio
S prings' application, althoughthesameis required
by
47 P .S . § 4- 464.
6.
P etitioner avers that the B oard' s decision was arbitrary, capricious, an abuse of
discretionand contrary tolawinthat it was not supported by the testimony and evidenceoffered
at the evidentiary hearing of M arch 1 8- 1 9, 201 4, and the O rder is not fully in accord with
existinglaw.
7.
T heL iquor C odedoes not provideany discretiononthepart oftheB oard toallow
transfers to places, properties or locations which sell gasoline,
stating
that the B oard" shall
refuse
any
applicationfor anewlicense, thetransfer of
any
licenseto anewlocation... where
the sale ofliquid fuels or oil is conducted." S ee 47 P .S . § 404(emphasis added).
A dditionally,
S ection 468 of the L iquor C ode P rovides: "
fnlo license shall be transferred to any place or
property
upon which is located as a business the sale of liquid fuels and oil." 47 P .S . § 4-
468(a)( 3) ( emphasis added).
8. I t is clear fromtherecord that O hio S prings, I nc. t/aS heetz sells liquidfuels from
thesameplace, property and locationfor whichtheL icensewas approved by theB oard.
9.
B y
reason of the
foregoing
it is asserted that the B oard erred and abused its
discretion in approving the double inter -municipal transfer of P ennsylvania R estaurant L iquor
L icenseN o. R - 1 9377 toO hio S prings, I nc. t/a S heetz for use at premises located at 359 E . King
S treet, S hippensburg, P ennsylvania.
1 0.
P etitioner asserts that the C umberland C ounty C ourt of C ommon P leas is
empowered to hear this appeal de novo and determine this matter independently of the O rder
entered by the B oard, withtherequirement that this C ourt' s decisionbe based upon findings of
fact supported by theevidence.
WH E R E FO R E , P etitioner prays that a hearing be held to review the decision of the
P ennsylvaniaL iquor C ontrol B oard, and that this H onorable C ourt enter anO rder reversing the
O rder ofthe B oard and refusing the double inter -municipal transfer of P ennsylvaniaR estaurant
L iquor L icenseN o. R - 1 9377 toO hio S prings, I nc. t/aS heetz.
D ated: A ugust 4, 201 4
R espectfully S ubmitted,
C harles L aputo, E squire
P a. I .D . N o. 86058
C aputo, C aputo& R egan, P .C .
B uhl
B uilding,
5thFloor
204 FifthA venue
P ittsburgh, P A 1 5222
41 2- 325- 0693
41 2- 690- 2350(facsimile)
info@caputolawoffice.com
A ttorneys for P etitioner
C ivicC lub ofS hippensburg
3
V E R I FI C A T I O N
I , C H A R L E S L . C A P U T O , E S QU I R E ofC A P U T O , C A P U T O &R E GA N , P . C ., state
that I amtheattorney ofrecord for P etitioner, C ivicC lub ofS hippensburg, andthat I am
authorized tomakethis verificationonbehalfofP etitioner, and that thefacts and averments set
forthintheforegoing P etitionfor A ppeal fromD ecisionofP ennsylvaniaL iquor C ontrol B oard
and A pplicationfor S upersedeas aretrueand correct based upontheknowledge, informationand
beliefas provided totheundersigned by P etitioner. T his verificationis madesubject tothe
penalties of 1 8 P a. C .S . A . §
4904relatingtounswornstatements toauthorities, whichprovides
for criminal penalties ifaperson, withtheintent tomislead, makes awrittenfalse statement
whichhedoes not believetobetrue. T his V erificationis madeby counsel duetothefact that
P etitioner is not availabletoreviewand verifytheP etitionduetothelimitations oftimefor
submittingthis P etition. A dditional verifications will be obtained uponrequest.
D ated: A ugust 4, 201 4
4
C harles. C aputo, E squire
L T R B D P R A P P 07/ 1 2
pennsyhrania
L I QU O R C O N T R O L B O A R D
N orthwest O ffice B uilding
H arrisburg, P ennsylvania 1 71 24- 0001
ww,+.I cb. state.pa. us
July
1 7, 201 4
M A R K FL A H E R T Y E S QU I R E
61 0 S M I T H FI E L D S T R E E T
S U I T E 300
P I T T S B U R GH P A 1 5222
R E : L icense N o. R - 1 9377
L I D N o. 67077
O hio S prings, I nc.
S heetz
359 E ast King S treet
S hippensburg,
P A 1 7257- 1 424
D ear A ttorney Flaherty:
A fter
considering
the evidence presented at the
hearing
held on M arch 1 8, 201 4 and
M arch 1 9, 201 4, the P ennsylvania L iquor C ontrol B oard, at its June 4, 201 4 B oard S ession,
approved the application for " I ntermunicipal" double transfer of R estaurant L iquor L icense
R - 1 9377 to the above captioned location, from
R uby T uesday,
I nc., H ampden 8 C entre,
H ampden
T ownship, M echanicsburg.
S ection 3. 52( b) of the B oard' s R egulations states, "
L icensed premises may not have
an inside passage or communication to or with any business conducted by the licensee or
other persons except as approved by the B oard."
S ection 404 of the L iquor C ode states in part, " T he B oard shall refuse
any
application for a new license or the transfer of any license to a location where the sale
of liquid fuels or oil is conducted."
A fter
considering
the circumstances in the instant case, the B oard also approved the
gas pumps located 80 feet distant and the request for interior connections with an
unlicensed convenience store.
T he approval is subject to the following conditions:
1 . T he transferred license, which will now be issued in the name of the
licensee for the premises listed in the application, shall be held in
safekeeping by
the B oard
pending
completion of the premises and
verification of full compliance with all statutory requirements.
A N E QU A L O P P O R T U N I T Y E M P L O Y E R
E XH I B I T
P R O C E E D S B E N E FI T A L L P E N N S Y L V A N I A N S
2
M ark
Flaherty,
E squire
July
1 7, 201 4
2. P L C B - 1 854T P , " C ertification of C ompletion,"
affirming
all financial
arrangements except the costs of construction/ renovations to the licensed
premises were completed as
originally
reported. B oth parties must sign
and date the C ertification of C ompletion. T he C ertification of C ompletion
must be returned to the B oard within 1 5 days of the formal transaction
completion date( settlement). Failure to conclude settlement within 30
days of the date of this letter may result in the approval being rescinded.
3. C ompletion of the premises and compliance with the requirements shall be
accomplished within six( 6) months from this date.
Failure to comply with
these requirements shall be considered cause for revocation of the license.
4. U pon completion of the premises,
the following will be required to initiate
final inspection:
Form P L C B - 1 689, " A pplication For R eturn of L icense From
S afekeeping"
and
requisite fee.
P L C B - 1 854- T P F, " C ertification of C ompletion,"
affirming
all financial
arrangements
including
the costs of construction/ renovations to the
licensed premises were completed as
originally
reported. I f the
financing
has been modified the changes will be verified
by
the
investigating officer during the final inspection of the premises.
O ne photograph at least 4" x 6" in size, of the exterior and main
serving
room. T he photographs must have a matte finish.
D ocumentary evidence that a valid health license is displayed on the
premises.
T his may be in the form of a photocopy or a written statement
from the issuing authority.
A t the time of the investigation, the premises must be
ready
for
operation as a bona fide restaurant.
U pon completion of the premises the attached forms should be completed
naming a manager and returned to this office together with the required
fee. O ne recent photograph of this individual must also be submitted.
T he photograph must have a matte finish.
A ll above mentioned forms are attached for your client' s convenience. P lease retain
for use when construction and/ or alterations are completed.
Y our client' s application is being approved in accordance with S ection 461 of the
L iquor C ode which provides, in part, that this license cannot be transferred from the
receiving municipality
for a period of five( 5) years after the date the licensed
premises is operational.
A N E QU A L O P P O R T U N I T Y E M P L O Y E R P R O C E E D S B E N E FI T A L L P E N N S Y L V A N I A N S
3
M ark
Flaherty,
E squire
July
1 7, 201 4
I f you intend to conduct any catered functions during the calendar year inwhich the
license is released from
safekeeping,
even though no functions have been scheduled, you
must submit an A pplication for O ff -P remises
C atering
P ermit ( form P L C B - 2403) with the
500. 00
filing
fee within
sixty (
60) days of the premises
becoming
operational. Failure
to submit the application and fee within that
sixty (
60)
day period will disqualify you
from obtaining permits for catered events during that calendar year.
A copy of the B oard' s O rder is attached.
P lease see that your client receives the attached copy of this letter.
S incerely,
7-
7
W .Gu .
Jerry
W. Waters, S r., D irector
O ffice of R egulatory A ffairs
R efer to:
L icensing B oard C ase S ection
71 7) 787- 6728
H ours: 7: 30 A M to 4: 00 P M
JWW: ch
A N E QU A L O P P O R T U N I T Y E M P L O Y E R P R O C E E D S B E N E FI T A L L P E N N S Y L V A N I A N S
I T R B D P R A P P 07/ 1 2
pennsyL vania
L I QU O R C O N T R O L B O A R D
N orthwest O ffice B uilding
H arrisburg, P ennsylvania 1 71 24- 0001
uww. I cb. state. pa. us
July
31 , 201 4
M A R K FL A H E R T Y E S QU I R E
61 0 S M I T H FI E L D S T R E E T
S U I T E 300
P I T T S B U R GH P A 1 5222
A M E N D E D
R E : L icense N o. R - 1 9377
L I D N o. 67077
O hio S prings, I nc.
S heetz
359 E ast King S treet
S hippensburg,
P A 1 7257- 1 424
D ear A ttorney Flaherty:
A fter
considering
the evidence presented at the
hearing
held on M arch 1 8, 201 4 and
M arch 1 9, 201 4, the P ennsylvania L iquor C ontrol B oard, at its
July
1 6, 201 4 B oard S ession,
approved the application for " I ntermunicipal" double transfer of R estaurant L iquor L icense
R - 1 9377 to the above captioned location, from
R uby T uesday,
I nc., H ampden 8 C entre,
H ampden
T ownship, M echanicsburg.
S ection 3. 52( b) of the B oard' s R egulations states, "
L icensed premises may not have
an inside passage or communication to or with any business conducted by the licensee or
other persons except as approved by the B oard."
S ection 404 of the L iquor C ode states in part, " T he B oard shall refuse
any
application for a new license or the transfer of any license to a location where the sale
of liquid fuels or oil is conducted."
A fter
considering
the circumstances in the instant case, the B oard also approved the
gas pumps located 80 feet distant and the request for interior connections with an
unlicensed convenience store.
T he approval is subject to the following conditions:
1 . T he transferred license, which will now be issued in the name of the
licensee for the premises listed in the application, shall be held in
safekeeping by
the B oard
pending
completion of the premises and
verification of full compliance with all statutory requirements.
A N E QU A L O P P O R T U N I T Y E M P L O Y E R P R O C E E D S B E N E FI T A L L P E N N S Y L V A N I A N S
2
M ark
Flaherty,
E squire
July
31 , 201 4
2. P L C B - 1 854T P , " C ertification of C ompletion,"
affirming
all financial
arrangements except the costs of construction/ renovations to the licensed
premises were completed as
originally
reported. B oth parties must sign
and date the C ertification of C ompletion. T he C ertification of C ompletion
must be returned to the B oard within 1 5 days of the formal transaction
completion date( settlement). Failure to conclude settlement within 30
days of the date of this letter may result in the approval being rescinded.
3.
C ompletion of the premises and compliance with the requirements shall be
accomplished within six( 6) months from this date.
Failure to comply with
these requirements shall be considered cause for revocation of the license.
4. U pon completion of the premises,
the following will be required to initiate
final inspection:
Form P L C B - 1 689, " A pplication For R eturn of L icense From
S afekeeping"
and
requisite fee.
P L C B - 1 854- T P F, " C ertification of C ompletion,"
affirming
all financial
arrangements
including
the costs of construction/ renovations to the
licensed premises were completed as
originally
reported. I f the
financing
has been modified the changes will be verified
by
the
investigating officer during the final inspection of the premises.
O ne photograph at least 4" x 6" in size, of the exterior and main
serving
room. T he photographs must have a matte finish.
D ocumentary evidence that a valid health license is displayed on the
premises.
T his may be in the form of a photocopy or a written statement
from the issuing authority.
A t the time of the investigation, the premises must be
ready
for
operation as a bona fide restaurant.
U pon completion of the premises the attached forms should be completed
naming a manager and returned to this office together with the required
fee. O ne recent photograph of this individual must also be submitted.
T he photograph must have a matte finish.
A ll above mentioned forms are attached for your client' s convenience. P lease retain
for use when construction and/ or alterations are completed.
Y our client' s application is being approved in accordance with S ection 461 of the
L iquor C ode which provides, in part, that this license cannot be transferred from the
receiving municipality
for a period of five( 5) years after the date the licensed
premises is operational.
A N E QU A L O P P O R T U N I T Y E M P L O Y E R P R O C E E D S B E N E FI T A L L P E N N S Y L V A N I A N S
3
M ark
Flaherty,
E squire
July
31 , 201 4
I f you intend to conduct any catered functions during the calendar year in which the
license is released from
safekeeping,
even though no functions have been scheduled, you
must submit an A pplication for O ff -P remises
C atering
P ermit ( form P L C B - 2403) with the
500. 00
filing
fee within
sixty (
60) days of the premises
becoming
operational. Failure
to submit the application and. fee within that
sixty (
60)
day period will disqualify you
from obtaining permits for catered events during that calendar year.
A copy of the B oard' s O rder is attached.
P lease see that your client receives the attached copy of this letter.
S incerely,
w
Jerry
W. Waters, S r., D irector
O ffice of R egulatory A ffairs
R efer to:
L icensing B oard C ase S ection
71 7) 787- 6728
H ours: 7: 30 A M to 4: 00 P M
JWW: ch
A N E QU A L O P P O R T U N I T Y E M P L O Y E R P R O C E E D S B E N E FI T A L L P E N N S Y L V A N I A N S
O R D E R 1 1 / 07
B E FO R E T H E P E N N S Y L V A N I A L I QU O R C O N T R O L B O A R D
O H I O S P R I N GS , I N C .
S heetz
359 E ast King S treet
S hippensburg,
P A 1 7257- 1 424
C ase N o. 1 3- 91 64
L I D N o. 67077
A pplication filed on a P rior
A pproval B asis for
I ntetrmunicipal" D ouble
T ransfer of R estaurant L iquor
L icense R - 1 9377
T he B oard,
after giving careful consideration to all of the facts established at the
hearing,
and in the exercise of its discretion,
makes the following O rder:
O R D E R
A N D N O W,
July
1 7, 201 4,
it is ordered and decreed that the P ennsylvania L iquor
C ontrol B oard approved the application for " I ntermunicipal" double transfer of R estaurant
L iquor L icense R - 1 9377 applied for
by
O hio S prings, I nc., S heetz for premises at 359 E ast
King
S treet,
S hippensburg,
C umberland
C ounty.
I n the event an appeal is filed an O pinion
will be issued.
A lvin O berholtzer, S haron
H ershey,
L ewis D eardorff, and L uke and L ois M artin should
not be granted standing as intervenors in this matter because they did not attend and
testify at the hearing on how they would be would be directly aggrieved by the approval of
A pplicant' s application.
Jaye A lleman should be granted standing as a protestant in the instant matter
because he resides within 500 feet of the proposed licensed premises.
T he C ivic C lub of S hippensburg should be granted standing as a protestant in the
instant matter because it is a charitable institution that is located within 300 feet of
the proposed licensed premises.
John M ummau should not be granted standing as an intervenor in this matter because
he did not provide sufficient non- speculative evidence on
how he would be directly
aggrieved by the approval of A pplicant' s application.
James A ndrews should not be granted standing• as an intervenor
he did not provide sufficient non- speculative evidence on how
aggrieved by the approval of A pplicant' s application.
T erry H elm should not be granted standing as an intervenor in
did not provide sufficient good cause for his late- filed petition.
Gabler' s B everage D istributor should be granted standing as
matter based on the O hio S prings and Wegmans' decisions.
in this matter because
he would be directly
this matter because he
an intervenor in this
O hio S prings, I nc.
July
1 7, 201 4
P KD , I nc.
should be granted standing as an intervenor in this matter based on the
O hio S prings and s' decisions.
M alt B everage D istributors A ssociation should be granted standing as an intervenor
in this matter based on the O hio S prings and Wegmans' decisions.
P E N N S Y L V A N I A L I QU O R C O N T R O L B O A R D
Joseph E . B rion
B Y : C hairman
R obert S . M arcus
M ember
T im H olden
M ember
A T T E S T :
John K. S tark
S ecretary
C E R T I FI C A T E O F S E R V I C E
I hereby certify that a true and correct copy of the withinP E T I T I O N FO R A P P E A L
FR O M D E C I S I O N O F P E N N S Y L V A N I A L I QU O R C O N T R O L B O A R D was forwarded to
theparties and counsel listed below
by
facsimileand U .S . M ail, postageprepaid, this 5
th
day of
A ugust, 201 4.
FaithS . D iehl, E squire
P ennsylvaniaL iquor C ontrol B oard
O fficeofC hiefC ounsel
401 N orthwest O fficeB uilding
C apital andForster S treets
H arrisburg, P A 1 71 24- 0001
C ommonwealthofP ennsylvania
P ennsylvaniaL iquor C ontrol B oard
B ureau ofL icensing
N orthwest O fficeB uilding, R oom1 08
H arrisburg, P A 1 71 24- 0001
A T T E N T I O N : T ishaA lbert
M ark Flaherty, E squire
Flaherty&
O ' H ara, P .C .
61 0 S mithfield S treet, S uite 300
P ittsburgh, P A 1 5222
C harles 1 /C aputo, E squire
C ounsel forP etitioner
6

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